QJorn? U ICam ^rljnol library Cornell University Library KF 8858.D99 The law and procedure of United States c 3 1924 020 096 800 Cornell University Library The original of this book is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/cletails/cu31924020096800 THE LAW AND PROCEDURE OF UNITED STATES COURTS BY JOHN W. JIWYER, LL. M., AUTHOR OF CASES ON PRIVATE INTERNATIONAL LAW, ETC., INSTRUCTOR IN THE LAW DEPARTMENT OF THE UNIVERSITY OF MICHIGAN. ANN ARBOR, MICHIGAN: GEORGE WAHR, PUBLISHER AND BOOKSELLER, 1901 Copyrighted by George Wahr, 1901. THE INLAND PRESS ANN ARBOR, MICH. PREFACE, The purpose of this book is to give a brief and concise state- ment of the Organization, Jurisdiction, and Practice of the various courts of our national government. It is not intended to be a com- plete work in every detail ; but rather an elementary work for stu- dents in law schools, students in law offices and for young lawyers who have not received systematic instruction on this subject. The object of the chapter on the history of the United States is to remind the student of the circumstances as they existed at the time our government was formed — to recall the principal events in our historical development — so that the constitutional provisions may be interpreted in their true light. In stating the jurisdiction of the courts, I inserted a number of decisions of the Supreme Court. This seemed the best thing to do as the decisions reviewed the various statutes touching the points under consideration ; explained what provisions were repealed ; the reasons for such repeals ; and besides, they give us the law as it exists at the present time under the latest acts of Congress. In conclusion, I wish to state that a knowledge of this branch of the law is more necessary than ever before. The steady increase of litigation, arising from the rapid growth and reaching out of the business of the country, and the bringing of certain questions within Federal control, demands a thorough preparation on this subject. With this in view, I hope this little volume will enable beginners to learn more, work with greater advantage, and be bet- ter able to investigate the legal problems that may come to them in their practice. J. W. D. Ann Arbor, Michigan, March i, 1901. TO THE HON. LEVI T. GRIFFIN, FORMERLY FLETCHER PROFESSOR OF LAW IN THE UNIVERSITY OF MICHIGAN. AS A SLIGHT TRIBUTE TO HIS ABILITY AS TEACHER AND LAWYER AND FOR INNUMERABLE ACTS OF KINDNESS THIS BOOK IS DEDICATED. CONTENTS, CHAPTER I. INTRODUCTORY— HISTORICAL REVIEW. Period of Discoveey and Exploration 1,2 Colonial Period 1-4 Different Unions of the Colonies 3-4 Provisional Period 4 CONFEDERATIVE PeRIOD 4-6 Defects of the Confederation 4, 5 Different Conventions of the Colonies 5,6 National Period 6, 7 Our National Government dates from what time 7 The Constitution as the basis of our National Government 7, 8 The extent of national powers under the Constitution .... 8 CHAPTER 11. ORGANIZATION OF UNITED STATES COURTS. The Various United States Courts Outlined, Classi- fied and Explained 8, 9 United States Senate 9 In General 9 Why impeachment vested in the Senate 10 Who may be impeached 10 What offenses are impeachable 10, 11 Practice in Impeachments 1 1, 12 Cases of Impeachment 12, 13 Supreme Court 13 History 13, 14 Constitutional provision vesting power in 14, 15 Number of Justices 15 How chosen ■ 15, 16 Salaries 16 Order of precedence 16 Present Court 16, 17 Terms of Court i7 Three-fold duty of Justices 17 Judges cannot practice law 17 vui TABLE OF CONTENTS. Officers - i8 Attorney-General i8, 19 Circuit Courts of Appeals 19 Judges 19, 20 How chosen 20 Salaries 20 Terms 20,21 Officers 21 Circuit Courts 21 Judicial Circuits 21 Judges 22, 23 How chosen 25 Salaries 23 Terms of Court 23 Officers 24 District Courts 24 Judicial Districts 24 Judges 24, 25 Salaries 25 How chosen 25 Terms of Court , 25 Officers 25, 26 Court of Claims 26 Judges 27 How chosen 27 Salaries 2,^ Terms 28 Officers 28 Reports of, to Congress 28 Members of Congress 28 Jurisdiction , 28 Concurrent jurisdiction 33 Who may sue in Court of Claims 33; 34 Procedure 34 Forfeiture of claims 34 Appeals 34 Jury trials 34, 35 Barment of claims 35 Right of petition 35 Interstate Commerce Commission 35 Constitutional provision 35 Judges 35 TABLE OF CONTENTS. ix Terms ^ c Salaries 05 Officers ^5 Conduct of business 36 Jurisdiction , 36-46 Procedure 47 et seq. Court of Private Land Claims 50 Jurisdiction 50 Judges [.............. 50 How chosen cq Salaries cq Officers 50,51 Terms 51 Appeal 51 Territorial Courts 52 Government of the territories 52 Courts in general : 52-54 Jurisdiction 54) 55 Practice 55 Courts of the District of Columbia 55 Court of Appeals 55, 56 Officers 56 Supreme Court 56 Military Courts 57 Courts Martial 57 Military Commissions 57 Kinds of Military Jurisdiction 57, 58 Consular Courts 58, 59 United States Commissioners 60, 61 CHAPTER HI. JUDICIAL POWER OF THE UNITED STATES. In General 62 Extent of the Judicial Power 62, 63 Section 2, Art. 3, of the Constitution explained 63-65 Judicial Power distinguished from Legislative and Execu- tive powers 65-67 The term "shall extend" explained 67 "Case" defined 67 Scope of the term "Law and Equity" 67-73 X TABLE OF CONTENTS. Cases arising under the Constitution 73-74 Cases arising under the Laws 74 Cases arising under Treaties 74^7^ Cases affecting Ambassadors, etc 76-78 Cases of Admiralty and Maritime jurisdiction 78 et seq. Controversies to which the U. S. is a party ; . . . . 93 Controversies between two or more states 95 Controversies between a state and citizens of another state 96 Controversies between citizens of different states. ....... 104 Controversies concerning land grants from different states 106 Controversies between states, or citizens and foreign states or subjects 106 CHAPTER IV. JURISDICTION OF THE SUPREME COURT. Constitutional Provision- 108 Original Jurisdiction 115 Cases affecting ambassadors, public ministers and consuls. 115 Cases in which a state is a party 117 Appellate Jurisdiction 119 Appellate jurisdiction of Supreme Court over State Courts 1 19 The cases that may be taken from the State Court to the Supreme Court 120 Judgment of State Court must be final 120 The proceeding must be a suit 121 The decision must be by the highest court of the state 122 A Federal question must be involved 126 The record must show the Federal question 128 A writ of error takes the case to the Supreme Court. . 133 Decision of the Supreme Court 144 CHAPTER V. JURISDICTION (Continued). Appellate Jurisdiction of Supreaie Court over inferior U. S. Courts 145 Appellate Jurisdiction over District and Circuit Courts 145 Appellate Jurisdiction over Circuit Court of Appeals. . 162 Appellate Jurlsdiction over Territorial Courts 165 Appepllate Jurisdiction over Courts of District of Col- umbia 169 TABLE OF CONTENTS. xi CHAPTER VI. JURISDICTION OF THE CIRCUIT COURT OF APPEALS. In General j^c Cases appealable to the Supreme Court 175 Cases appealable to the Circuit Court of Appeals 176 Jurisdiction over Territorial Courts 186 CHAPTER VII. JURISDICTION OF CIRCUIT COURTS. The different classes of cases 191 Cases arising under the Constitution, Laws or Treaties 192 Cases in which the U. S. are plaintiffs or petitioners. . 196 Controversies between citizens of different States .... 200 Land claimed UNDER grants of different States 217 Suits between citizens and aliens 218 Crimes 218 Where suit must be brought 228 Suits by assignees - 237 Suits by or against National Banks 240 Suits for the protection of Civil Rights 240^ Suits against the United States 240 Miscellaneous Cases 241 CHAPTER Vni. REMOVAL OF SUITS FROAI STATE COURTS. Cases th.\t may be removed 242 Cases arising under the Constitution, Laws or Treaties 247 Cases where United States are plaintiffs or petitioners 253 Controversies between citizens of different States. . . . 253 Suits under Land Claims 260 Suits between citizens and .aliens 261 .Separable controversies 261 Prejudice or Local Influence cases 264 Suits against United States Revenue Officers 270 Civil Rights cases 280 Suits by Aliens against United States Officers 291 Procedure in cases of Removal 291 CHAPTER IX. JURISDICTION OF DISTRICT COURTS. Jurisdiction over Crimes 293 Cases of Piracy 296 Xll TABLE OF CONTENTS. Suits for Penalties and Forfeitures 297 Suits by the United States or Officers 297 Suits for payment of Revenue Tax 298- SuiTS to Recover Forfeitures or Damages ,. . . . 298 Cases arising under the Postal Laws : . . 298 Suits for Condemnation of Property 299 Suits for Drawback of Duties 299 Suits under Civil Rights Laws 300 Suits by Aliens for torts 301 Suits against Consuls or Vjce-Consuls 301 Cases of Bankruptcy 302 Suits against the United States 302 Proceedings to Condemn Land , 303 Prize Cases 303 Admiralty and Maritime Cases 304 Extent of Admiralty Jurisdiction 305. Contracts and Torts 306 Cases of Tort 310 Procedure in Admiralty 311 Exclusive and Concurrent Jurisdiction 312 CHAPTER X. EXTRAORDINARY REMEDIES. Habeas Corpus 313; Mandamus 315 Prohibition, Quo Warranto and Scire Facias 316 Certiorari, Ne Exeat and Supersedeas 316 Injunction, Attachment, Etc 317 CHAPTER XL RULES OF DECISION AND PROCEDURE. In Criminal Cases 318 In Common Law Cases 318 In Equity Cases 320 In Admiralty Cases 320 Index 321 TABLE OF CASES. Abraham v. Casey Sup. Ct. Rep., Jan. i, 1901, p. 88. . . 144 Adams v. Law 16 How. 144. -ji? Ainsa v. N. W. & A. Ry 175 U. S. 76 54 Allen V. United States 27 Ct. CI. 89 31 Ambler v. Eppinger 137 U. S. 480 ......238 Ames V. Kansas iii U. S. 449; 115 Am. Constr. Co. v. Jacksonville Ry. . . 148 U. S. 372 20 American Ins. Co. v. Canter I Pet. 511 52 Am. Mtge. Co. v. Hopper 29 U. S. App. 12 , 19 Anderson v. Carkinj 135 U. S. 483 135 Anderson v. Watt 138 U. S. 694 201 Andrews v. Swartz 156 U. S. 272 314 Armstrong v. Athens 16 Pet. 281 128 Avery v. Popper Sup. Ct. Rep., Jan. i, 1901, p. 94. . . 144 Aztec Mining Co. v. Ripley 151 U. S. 79 167 Bacon v. Texas 163 U. S. 207 142 Baker v. Cummings 169 U. S. 189 320 Ball V. Halsell 161 U. S. 72 32 Ball V. United Staes 140 U. S. 118 295 Balkam v. W. I. Co 154 U. S. 177 ■• -319 Baltimore v. Baugh 149 U. S. 368 319 Bank v. uank 14 Wall 383 240 Bank v. Roberts 4 Conn. 323 64 Bannon v. United States 156 U. S. 464 228 Bank v. Remsen 158 U. S. 337 320 Bamberger v. Schoolfield 160 U. S. 149 319 Bayard v. White 127 U. S. 246 31S Bardes v. Hawarden 17.=; U. S. 526 302 Bardes v. Hawarden 178 U. S. 524 302 Barron v. Burnside 121 U. S. 186 243 Barrow Steamship Co. v. Kane 170 U. S. 100 20 Baxendale v. Counties Ry Co 4 C. B. (N.S.) 63 ,39 Bergman v. Becker 157 U. S. 655 133 BIyew V. United States 13 Wall. 581 78 Blake v. McKim 103 U. S. 336 105 Bonner v. United States 9 Wall. 156 27 Borer v. Chaoman iiq U. S. 587 70 Bors v. Preston Ill U. S. 252 lOS Bostwick V. Brinkerhoff 106 U. S. 3 121 Bradley v. Rhines 8 Wall. 393 238 Brown v. Walker 161 U. S. 59i 47 Brown v. Strode 5 Cranch 303 106 Brown v. Wygant 163 U. S. 618 310 Buckstaff V. Russell 151 U. S. 626. 194 Buford V. Holly 28 Fed. Rep. 680 66 Burgess v. Seligman 107 U. S. 20 319 XIV TABLE OF CASES. Cal. ,v. So. Pac. Co i.S7 U. S. 229 97 Campbell v. Haverhill 155 U. S. 610 319 Campbell v. U. S 107 U. S. 407 299 Cape V. Vallatte 119 U. S. 625 3C^ Carrington v. Pratt 18 How. 67 309 Carson v. Dunham 121 U. S. 421 292 Carr v. United States 98 U. S. 433 94 Case of Sewing Machine Cos 18 Wall. 553 64 <» Cent. Land Co. v. Laidley 159 U. S. 103 129 Chappell V. U. S 160 U. S. 499 146 Chapman v. U. S 164 U. S. 436 169 Chase v. U. S IS5 U. S. 489 .241 Cherokee Nation v. Ga 5 Pet. i 96 Chesapeake v. Ky Sup. Ct. Rep., Jan. i, 1901 p. loi . . 144 Chicago R. I Ry. v. Martin 178 U. S. 245 248 Chisholm v. Ga 2 Dall. 419 96 City of Panama loi U. S. 453 54 Cin. N. O. & Tex. Pac. Ry. v. Int. Com. Com 162 U. S. 184 38 Clark V. Beaver 139 U. S. 96 319 Clark V. Smith 13 Pet. 195 72 Clark V. Matthewson 12 Pet. 164 106 Cohens v. Va 6 Wheat. 264 67 Columbus V. Crane 174 U. S. 600 190 Colvin V. Jacksonville 158 U. S. 456 175 Conrad v. Ins. Co I Pet. 386 309 Cook V. Hart 146 U. S. 183 314 Cooley V. Board 12 How. 299 309 Coppell V. Hall 7 Wall. 542 ^j Cornell v. Green 163 U. S. 75 162 Counselman v. Hitchcock 142 U. S. 547 ■. 47 Cross V. N. Car 132 U. S. 131 294 Cummings v. Jones 104 U. S. 419 134 Cunningham v. Macon & B. Ry 109 U. S. 446 97 Curtis V. U. S 34 Ct. CI. i 35 Davies v. Lathrop 12 Fed. Rep. 353 103 Davis V. Gray 16 Wall. 203 99 Davis v. Packard 6 Pet. 41 301 Davis v. Packard 7 Pet. 276 yj Dainese v. Hale 91 U. S. 13 59 Dennison v. U. S 168 U. S. 241 30 D. G. H. Ry. V. Int. Com. Cora 74 Fed. Rep. 803 38 DeSaussure v. Gaillard 127 U. S. 216 94 Detroit v. Osborne 135 U. S. 492 319 Dugan V. U. S 3 Wheat. 172 298 Dun V. Clarke 8 Pet. i . . : 106 Duncan v. Gegan loi U. S. 810 292 Dupont v. Vance 19 How. 162 308 Eastman v. Sherry 37 Fed. Rep. 844 196 Edwards v. Elliott 21 Wall. 532 310 Ex parte Benson 18 South Car. 38 39 Ex parte Boyd 105 U. S. 647 70 Ex parte Boyer 109 U. S. 629 80 Ex parte Easton 95 U. S. 68 309 TABLE OF CASES. Ex parte Fassett 142 U. S. 479. Ex parte Milligan 4 Wall. 2 311 58 Ex parte McNeil 13 Wall. 236 72' Ex parte Phoenix Ins Co 118 U. S. 610 310 Ex parte Steamboat Co 178 U. S. 317 311 Ex parte Tong 108 U. S. 556 314 Farnsvvorth v. Mont 129 U. S. 104 Fearing v. Glenn 73 Fed. Rep. 116. Fenn v. Holme 21 How. 485 .... Ferris v. Higlev 20 Wall 375 Field V. U. S. '. 27 Ct. CI. 224. . . . Fitchburg Ry. \\ Sage 12 Gray 393 55 318 320 52 31 _ . _ ^ 39 Fitzpatrick v. U. S 178 U. S. 304 294 Fisk V. Henarie 142 U. S. 459. Fisk V. Union Pac. Ry 10 Blatch. 518 Fla. V. Ga 17 How. 478 . Fletcher v. Hamlet 116 U. S. 408. . Folsom V. U. S 160 U. S. 121 . Fontain v. Ravenel 17 How. 369 . Forsythe v. Vehmeyer 177 U. S. 177. . Fowler v. Lindsey 3 Dal. 411 . . Fowler v. Rathbones 12 Wall. 102. . .160 ■317 .320 .261 ■ SS . 68 • 302 • 95 .308 Gaines v. Fuentes 92 Gelpcke V. Dubuque i Genesee v. Chief 12 Georgia v .Madrazo i Georgia v. Stanton 6 German Bank v. U. S 148 Gibbons v. U. S 8 Gibson V. Chouteau 8 Gibson v. Miss 162 Glass V. Concordia 176 Gleason v. Fla 9 Glenn v. Sumner 132 Glenn v. U. S ■ ■ 4 Gloucester v. Younger 2 Gorman v. Havird 141 Gormby v. Clark 134 Gowdy V. Green 69 Graver v. Faurot 162 Greely v. Lowe I5S Great West. Co. v. U. S. , 112 Great West. Ry. Co. v. Sutton Great West. Tel. Co. v. Burnham 162 Great So. Hotel Co. v. Jones I77 Great Ry. Co. v. Ives i44 Griswold V. Hazard 141 U. S. 10 63 Wall. 17s 319- How. 443 85 Pet. no lOL Wall, so 66 U. S. 573 241 Wall. 269 30 Wall. 314 128 U. S. 565 280 U. S. 207 238 Wall. 779 133 U. S. 152 320 Ct. CI. SOI 31 Curtis 322 319 J. S. 206 193 U. S. 338 320 Fed. Rep. 80S 240' U. S. 435 176 U. S. 58 228 U. S. 193 33 L. R. 4 H. L. 226 39 U. S. 339 122 U. S. 449 212 U. S. 408 319 U. S. 260 317- Hagan v. Lucas 10 Pet. 400 72 Hagood V. Southern 117 U. S. 52 102 Holloway V. Dunham 170 U. S. 61S 55 Haycraft v. United States 22 Wall. 81 31 Head Money Cases 112 U. S. 580 74 Hennessey v. Versailles i Curtis 353 308' Hermann v. Port 69 Fed. Rep. 646 30S, XVI TABLE OF CASES. Heron v. The Marchioness 42 Fed. Rep. 173 309 Holmes v. Goldsmith 147 U. S. 150 238 Holt V. Ind. Manf. Co 176 U. S. 68 240 Hornbuckle v. Toombs 18 Wall. 648 S3 Hotel Co. V. Jones 177 U. S. 449 320 Hozier v. Caledonian Ry 17 Sess. Cas. (2d Series) 302-54 Hurt V. HoUingsworth 100 U. S. 100 320 Hyde v. Ruble 104 U. S. 407 262 111. Cent. Ry. v. Ill 146 U. S. 387 86 111. Ry. Co. V. Horst 93 U. S. 291 320 In re Ayers 123 U. S. 443 99 In re Baiz 13S U. S. 403 ^^ In re Belt 159 U. S. 95 315 In re Boyd 4 U. S. App. 73 313 In re Bonner 151 U. S. 242 315 In re Claasen 140 U. S. 200 228 In re Debs 158 U. S. 564 ■ -298 In re Fassett 142 -feJ. S. 479 316 In re Iron County 37 U. S. App. 622 315 In re Loney 134 U. S. 372 66 In re Lennon 150 U. S. 393 314 In re Morrison 147 U. S. 14 305 In re Neagle 135 U. S. i 23 In re Palliser 136 U. S. 257 298 In re Penn Co., Petitioner 137 U. S. 4Si 265 In re Rice 155 U. S. 396 315 In re Ross 14 j U. S. 453 59 Insley v. U. S 150 U. S. 512 316 Ins Co. vs. Dunham 11 Wall, i 310 Int. Com. Com. v. Ala. Ry 168 U. S. 144 38 Int. Com. Com. v. Atch. Ry. Co. .... 149 U. S. 264 49 Int. Com. Com. v. Atch. T. & S. Ry. Co. 50 Fed. Rep. 295 38 Int. Com. Com. v. B. & O. Ry. Co. . . . 145 U. S. 263 38 Int. Com. Com. v. Lehigh Ry. . ' 49 Fed. Rep. 177 47 Int. Com. Com. v. Louis. & N. Rv. Co., T'^ Fed. Rep. 409 47 Jackson v. Chew 12 Wheat. 153 319 Jack- on v. Twentyman 2 Pet. 556 106 Jefferson v. Driver 117 U. S. 272 ' 265 Johnson v. Pensacola Ry 16 Fla. 623 39 Johnson v. Risk 137 U. S. 300 143 Jones v. Eastern Counties Ry 3 C. B. (N.S.) 718 45 Jones V. United States 137 U. S. 202 70 Kanouse v. Martin ._.... 15 How. 198 154 Karrahoo v. Adams I Dill. 344 107 Kans. Ry. Co. v. Daughtry 138 U. S. 298 292 Keith V. Clark 97 U. S. 454' 143 Kennedy v. Gibson 8 Wall. 498 240 Ky. & I. Bridge Co. v. Louis. & N. Ry., 37 Fed. Rep. 567 49 Klinger v. Mo 13 Wall. 257 142 Kohl V. Lehlback 160 U. S. 293 314 Kohl V. U. S 91 U. S. 367 121 Knox V. Bank 147 U. S. 91 319 Knox V. Exchange Bnk 12 Wall. 379 131 TABLE OF CASES. xvii Law Ow Bew v. U. S 144 U. S. 47 163 Lee V. Watson i Wall. 337 195 Lees V. U. S 150 U. S. 476 297 Lehigh Water Co. v. Easton 121 U. S. 388 131 Leon Galceran n Wall. 185 306 Leoyy v. U. S 177 U. S. 621 305 Lewis V. U. S 146 U. S. 370 228 Lincoln v, Power 151 U. S. 436 320 Liverpool Co. v. Ins. Co 129 U. S. 397 307 Loeb V. Trustees Sup. Ct. Rep., Jan. 15, 1901, p. 174. .162 Loeber v. Schroeder 149 U. S. 580 128 Logan V. U. S I44 U. S. 263 71 Lottawanna, The 21 Wall. 558 78 Louis Ry. Co. v. Miss 133 U. .S. 587 319 Luther v. Borden 7 How. i 57 Manchester v. Mass 139 U. S. 240 81 Marbury v. Madison i Cranch 137 99 Md. V. Baldwin 112 U. S. 490 105 Martin v. Baltimore 151 U. S. 673 254 iviartin v. Hunter i Wheat. 304 7 Martin v. Mott 12 Wheat. 19 57 McAllister v. U. S 141 U. S. 174 52 McComb V. Knox Co 91 U. S. i 122 McConihay v. Wright 121 U. S. 201 70 McConnochic v. Kerr 9 Fed. Rep. 50 308 McDonald v. Hovey no U. S. 619 46 McElrath v. United States 12 Ct. CI. 312 30 McKenzie v. United States 34 Ct. CI 278 McKnight v. James 155 U. S. 685 315 McLish V. Roff 141 U. S. 661 152 McNutt V. Bland 2 How. 9 105 McQuade v. irenton 172 U. S. 636 141 Meade v. Beale Taney's C. C. Dec. 339 68 Meriwether v. Court 120 U. S. 354 319 Metcalf V. Watertown 128 U. S. 586 238 Mexican Cent. Ry. v. Pinkney 149 U. S. 194 320 Mexican Ry. Co. v. Davidson 157 U. S. 201 292 Mills V. Brown 16 Pet. 525 127 Miller v. Texas 153 U. S. S3S i44 Minneapolis v. Reum 56 Fed. Rep. 576 107 Miss. Mills V. Cohn 150 U. S. 202 70 Mo. Pac. Ry. Co. v. Fitzgerald 160 U. S. 556 292 Mitchell v. Comm 7 Wall. 321 133 Mitchell V. Harmony 13 How. 115 98 Montalett v. Murray 4 Cranch 46 106 Moran v. Sturges 154 U. S. 256 312 Morgan v. Texas 137 U. S. 171 217 Mormon Church v. U. S 136 U. S. i 52 Morris v. Gilmer 129 U. S. 315 IDS Murdock v. Memphis 20 Wall. 590 134 National Reg. Co. v. Am. Reg. Co'. . . 3 U. S. App. 340 19 Neagle, In re 135 U. S. i 23 N. H. v. La 108 U. S. 76 95 New Jersey Co. v. Bank 6 How. 344 • • •• • • • -307 N. Am. Co. V. Morrison 178 U. S. 262 I93 XVlll TABLE OF CASES. New Orleans v. Winter i Wheat. 91 201 New Orleans v. Quinlan 173 U. S. 191 238 New Orleans v. Benjamin 153 U. S. 411 238 Neves v. Scott 13 How. 268 .*. 320 Nichols V. U. S 7 Wall 122 33 Nudd V. Burrows 91 U. S. 426 320 O'Brien v. Miller 168 U. S. 287 . . . . , 309 Ohio Trust Co. v. Debolt 16 How. 416 319 Ornelas v. Rinz 161 U. S. 502 , 313 Osborn v. Bank 9 Wheat. 738 67 Owings V. Speed 5 Wheat. 420 6 Oxlade v. North Ry i C. B. (N. S.) 454 45 Paquete Habana, The I7S U. S. 677 ISS Parsons v. United States 167 U. S. 324 . . . : , 25 Fatten \ . CiUey 62 Fed. Rep. 497 292 Pawkt V. Clark 9 Cranch 292 106 Peirce v. United States I Ct. CI. 19S 34 Penn v. Bender 148 U. S. 255 292 . Penn v. Quicksilver 10 Wall SS3 97 People V. Tyler 7 Mich. 161 90 Perrin v. United State; 12 Wall 315 33 Petri V. Commercial Bnk 142 U. S. 644 240 I Pettibone v. U. S 148 U. S. 197 219 Phenix Ins. Co. v. Charleston 25 U. S. App. 190 320 Phil. Ry. Co. V. Towboat Co 23 How. 209 311 Picket V. Filer 40 Fed. Rep. 313 72 Piquignot v. Pa. Ry. Co 16 How. 104 106 Plaquemines v. Henderson 170 U. S. 511 115 Poihdexter v. Grecnhow 114 U. S. 270 100 Pollard V. Vinton 105 U. S. 7 307 Postal Tel. Co. v. Ala 155 U. S. 482 254 Powell V. Brunswick Co 150 U. S. 400 128 Powers V. Chesapeake Ry. Co 169 U. S. 92 254 Railroad Co. v. McClure 10 Wall. 511 132 Ralli V. Troop IS7 U. S. 386 308 Ransome v. Eastern Counties I C. B. (N. S.) 437 45 Removal Cases 100 U. S. 457 105 Rice V. Houston 13 Wall. 66 105 Riggs V. Johnson County 6 Wall. 166 72 R. I. V. Mas : 12 Pet. 657 95 Rhodes v. Iowa 170 U. S. 412 ^7 Robertson v. Baldwin 163 U. S. 275 306 Robinson v. Campbell 3 Wheat. 212 70 Robertson v. Cease 97 U. S. 646 72 R bcrtson v. Perkins 129 U. S. 233 320 Roller v. Holly 176 U. S. 398 320 Root V. Railway 105 U. S. 189 70 Rosenbaum v. Bauer 120 U. S. 450 315 Sanborn v. United States 27 Ct. CI. 485 34 Sayward v. Denny •. 158 U. S. 180 127 Schillinger v. United States 155 U. S. 163 28 Scott V. Armstrong 146 U. S. 499 320 TABLE QF CASES. " XIX Scott V. Jones 5 How. 343 96 Scott \. Neely 140 U. S. 106 320 Scudder v. Comptroller 175 U. S. 32 133 Shaw V. Quincy 145 U. S. 444 106 Sheffield v. Witherow ..149 U. S. 574 70 Shcpard v. Adams 168 U. S. 618 320 bhively V. Bowlby 152 U. S. i 52 Shute V. Keyser 149 U. S. 649 165 Smith V. Adams 130 U. S. 167 193 Society v. New Haven 6 Wheat. 464 107 South B. Iron Works v. U. S 34 Ct. CI. 174 32 Spies V. Ill 123 U. S. 131 320 Springer v. Howes 69 Fed. Rep. 849 292 Steamboat v. Phoebus 11 Pet. 175 318 Stearns v. .Minn Sup. Ct. Rep. Jan. i, 1901, p. 73 319 St. Clair County v. Livingston 18 Wall. 628 121 Swift V. Tyson 16 Pet. I . . . .' 68 Taylor \ . Beckham 178 U. S. 548 66 1 enn v. Bank 152 U. S. 454 242 Tenn \ , Davis 100 U. S. 257 74 Tex. V. Pac. Ry. Co. v. Int. Com. Com. 162 U. S. 197 37 Texas v. White 7 Wall. 700 97 The Alabama 92 U. S. 695 311 The .Albert Dumois 177 U. S. 240 311 The Amiable Isabella 6 Wheat i 304 The Beaconsfield 158 U. S. 303 311 The Blackwell 10 Wall, i 308 The Caledonia IS7 LI. S. 124 307 The Carlos F. Rose 177 U. S. 655 304 The Chas. Morgan iiS U. S. 69 312 The Conqueror 166 U. S. no 316 The Corsair I4S U. S. 335 311 The Daniel Ball 10 Wall. 557 305 The Davis 10 Wall. 15 98 The Delaware 14 Wall 579 307 The Dos Hermanos 2 Wheat. 76 304 The Eagle 8 Wall. 15 81 The Eclipse i3S U. S. 599 310 The Elfrida 17^ U. S. 186 305 The Empire 19 Fed. Rep. 558 312 The Floyd Acceptances 7 Wall. 666 93 The General Rucker 35 Fed. Rep. 152 306 The General Smith 4 Wheat. 438 307 The Gi ape hot 9 Wall. 129 309 The Harrisburg 119 U. S. 199 311 The Hercules Brown's Adml. 560 312 The Hine v. Trevor 4 Wall. 555 81 The J. F. Card 43 Fed. Rep. 92 306 The J E. Rambell 148 U. S. i 307 The John Shav 81 Fed. Rep. 216 310 The John G. Stevens '. 170 U. S. 113 311 The Larch 2 Curtis 427 312 The L P. Dayton 120 U. S. 337 308 The Lottawanna 21 Wall. 5S8 80 The Lykus 36 Fed. Rep. 919 309 The Margaret 94 U. S. 494 308 TABLE OF CASES. The Moses Taylor 4 The Newtoundland and others 176 The New Idea 60 The New York 175 The Portsmouth 9 The Resolute 168 The Robert Fulton i The Rock Island Bridge 6 The Sabine lOl The Siren 7 The Stacey Clarke 54 The Star of Hope 9 The Steamer Webb 14 The Thomas Jefferson 10 The Venus 8 The Victory 168 The Wanata 95 Thompson v. Butler 95 Thompson v. Pool 70 Thorp V. Bonnifield 177 Town V. Murdock 92 Town V. Perkins 94 Townsend v. Todd 91 Turner v. Bank 4 United States v. Adams 9 United States v. Am. Bell. Tel. Co..iS9 United States v. Bevans 3 United States v. Bliss 172 United States v. Burlington 21 United States v. Chicago 7 United States v. Eaton 144 United States v. Garham 165 United States v. Grush 5 United States v. Hall 98 United States v. Holliday 3 United States v. Hudson 7 United States v. Hughes 70 United States v. Ingate 48 United States v. Jahn 155 United States v. Jones 131 United States v. La 123 United States v. Lee 106 United States v. O'Keefe 11 United States v. Ortega 11 United States v. Palmer 3 United States v. Palmer 128 United States v. Reid 12 United States v. Rodgers 150 United States v. Sanges 144 United States v. Sayward 160 United States v. Schurtz 102 United States v. Chung Shee 71 United States v. Texas 143 United States v. Thompson 98 United States v. Williams 32 United States v. Winchester 163 Wall. 411 81 U. S. 97, 361, 535, 568 304 Fed. Rep. 294 300 U. S. 187 311 Wall. 682 308 U. S. 437 306 Paine 620 307 Wall. 213 311 U. S. 384 308 Wall. 152 98 Fed. Rep. 533 3o6 Wall 203 308 Wall. 406 308 Wheat. 428 309 Cranch 253 304 U. S. 410 311 U. S. 600 311 U. S. 694 194 Fed. Rep. 725 240 U. S. 15 194 U. S. 494 319 U. S. 260 319 U. S. 452 319 Dall. 10 66 Wall. 661 316 U. S. 548 176 Wheat. 336 81 U. S. 321 32 Fed. Rep. 331 67 How. 185 94 U. S. 677 318 U. S. 316 32 Mason 290 82 U. S. 343 294 Wall. 407 14 Cranch 32 15 Fed. Rep. 972 60 Fed. Rep 93 U. S. 109 148 U. S. I 94 U. S. 32 115 U. S. 196 98 Wall 178 34 Wheat 467 78 Wheat. 610 296 U. S. 262 32 How. 361 318 U. S. 249 81 U. S. 310 182 U. S. 493 ig6 U. S. 378 .■ 98 Fed. Rep. 277 314 U. S. 621 04 U. S. 486 ; 72 U. S. App. 126 316 U. S. 244 33 TABLE OF CASES. XXI Vance v. Vandercook 170 U. S. 468 193 Van Norden v. Morten 99 U. S. 378 320 Va. V. Paul 148 U. S. 107 270 Va. V. W. Va 11 Wall. 39 95 'Waddell v. U. S 25 Ct. CI. 323 35 Wagner v. Baird 7 How. 234 72 Walter v. U. Ry. Co 147 U. S. 370 I93 Ward V. Peck 18 How. 267 311 Waring v. Clarke 5 How. 44a 82 Werner v. Charleston 151 U. S. 360 121 West Co. V. Lea 174 U. S. 590 •. 302 Wheaton v. Peters 8 Pet. 591 71 Whitehead v. Shattuck 138 U. S. 146 70 Whitten v. Tomlinson 160 U. S. 231 314 Wichita Natl. Bnk. v. Smith 72 Fed. Rep. 568 240 Wildenhus Case 120 U. S. i 88 Wiley V. Sinkler 179 U. S. — 193 Wisconsin v. Pelican Ins. Co 127 U. S. 265 117 Woolbridge v. McKenna 8 Fed. Rep. 650 lOS Young V. Amy 171 U. S. 179 55 UNITED STATES COURTS. CHAPTER I. INTRODUCTORY— HISTORICAL REVIEW. In order that a clear understanding may be had of this sub- ject, it is necessary to review briefly the early history of our coun- try, as such a review will fix in one's mind the conditions out of which our present government was formed. Our government is a thing of growth, and in reference to this growth, the history of the United States may be divided into periods, as follows : 1. Period of Discovery and Exploration, 1492-1607. 2. Colonial Period, 1607-1774. 3. Provisional Period, 1774-1781. 4. Confederative Period, 1 781 -1789. 5. National Period, 1789 . We will now examine each period, in the order named, with the view of bringing out the principal events leading up to the establishment of our national government. 1. Period of Discoyery and Exploration (1492-1607). During this period four leading nations acquired territory in North America. The Spanish explored the West Indies, Flor- ida and New Mexico, and claimed dominion over all the country northward to the Arctic Ocean. The French made* their first set- tlements in Acadia and Canada, and claimed the land southward from the St. Lawrence to the Gulf of Mexico. The English ex- plored the Atlantic coast at various points, and claimed that vast territory westward from the Atlantic to the Pacific. The Dutch settled in what is now New York and New Jersey, and claimed dominion over the territory lying between the Delaware and the Connecticut. To quote from Francis Parkman, an American his- torian, "Here lay the shaggy continent from Florida to the Pole, outstretched in savage slumber along the sea. On the bank of the James River was a nest of woe-begone Englishmen, a hand- Z UNITED STATES COURTS. ful of fur traders at the mouth of the Hudson, and a few shiver- ing Frenchmen among the snowdrifts of Acadia; while, deep within the wild monotony of desolation, on the icy verge of the great northern river, Champlain upheld the banner of France over the rock of Quebec. These were the advance guard of civiliza- tion, the messengers of promise to a desert continent. Yet, not content with inevitable woes, they were rent by petty jeal- ousies and miserable quarrels, while each little fragment of rival nationalities, just able to keep its own wretched existence on a few square miles, begrudged to all the rest the smallest share in a domain which all the nations in Europe could not have sufficed to fill." The claims of these nations were based upon the right of discovery;^ and, on account of the overlapping of claims, much strife followed, which did not cease till England became the ruling nation in the New World. It is a rule that when a country acquires territory, by con- quest or purchase, the old laws remain till changed by the con- queror or purchaser ; but if an uninhabited territory is discov- ered, the laws of the discoverer become -mmediately the laws of the discovered country, so far as applicable. This is how the Common Law became the law of the Colonies, and this is the rea- son we find in some of the southern states, even at the present time, traces of the French and Spanish laws. 2 . Colonial Period (1607-1774). After 1607, the English is the only nation that directly in- fluences the history of the United States. The English colonies were settled mainly by emigrants from Great Britain, yet it can- not be said that these colonies were on the best of terms with each other. The contiguous territory of the colonies and the dan- gers from outside rather forced them to ' come closer to each other. On the other hand, the political i:nd social organization of the different colonies, the sparseness of the population, and in- sufficient means of communication, did much to promote separate development. In other words, the necessities of their situation caused the colonies to act for themselves, and each colony, step by step, advanced toward the condition of a state. ^Story Const. Law, Sec. 146-158; Contra, i Blackstone Comm. 107. HISTORICAL REVIEW. 6 At various times efforts were made toward the formation of a union. These efforts may be enumerated and explained as fol- lows : (i) New England Confederacy, 1643; (2) Temporary Con- gress, 1690; (3) Plan of Union, 1754; (4) Stamp Act Congress, 1765; and (5) Continental Congress, 1774. i). The New England Confederacy was a famous league in colonial times. The colonies of Massachusetts Bay, Plymouth, New Haven and Connecticut united for a common protection against the Indians, and the encroachments of the Dutch and French settlers. This union lasted about forty years. 2). In 1690 the representatives of the New England col- onies and New York met at New York, lo arrange for an attack on Canada. Nothing came of it, but it shows how the colonies were acting together at this early time. 3). The convention of 1754 was held at Albany, and the ob- ject was to deliberate on matters concerning the Indian tribes; but when that business had been disposed of, the delegates turned their attention to other matters. Franklin made a strong appeal for the better union of the colonies. He proposed that ihere should be a legislature elected by the different colonies to control their own affairs. This proposition, however, not only was re- ceived with no favor by the English Government, but was rejected by all the colonial legislatures, without exception. 4). The Stamp Act Congress, in 1765, is the next notable meeting of the colonies. Eleven of the thirteen colonies met at New York, representatives being elected by the different col- onies. They met on an equal footing, and began the considera- tion of the union of the colonies. The strife with England over the right of Parliament to levy taxes on the colonies made them see that their deepest interests made their firm alliance an imperative necessity. This congress was the initial step toward American freedom. 5). The Continental Congress met in 1774, and continued to meet pretty much all through the Revolutionary war. The con- flict between England and the colonies took the shape of a rev- olution, and the colonies were forced into a position apart from the rest of the world, and more into the status of a nation. The Continental Congress was a body of delegates from the different colonies, and had no legal standing whatever. Bancroft says they were not a confederacy, they were not a legislative or judi- cial body, but were simply committees from the various colonies. UNITED STATES COURTS. to consider matters, without any means of enforcing their laws beyond a voluntary agreement. This First Continental Congress marks the beginning of the Provisional Period. 3. ProTisional Period (1774-1781). The Provisional Period began in 1774, and practically covers the period of the Revolutionary war. The Continental Congress, in the name of the people of the United States of America, de- clared the colonies independent of Great Britain in 1776, and for years this body was the government of the United States. Dur- ing its existence its powers were never defined, yet by common consent, and the necessities of the case, it exercised the highest functions of a government — carried on war, issued currency, and made an alliance with France — all witnout any legal authority. From this state of affairs is seen the need the colonies had of some central form of government. In 1777, Congress sent down to the states the Articles of Confederation, to be approved by the various legislatures. Practically all the states adopted the articles in 1778. Delaware ratified in 1779, and Maryland in 1781. 4. ConfederatiTe Period (1781-1789). During this period, the colonists made good the claim to be free and independent states. The government formed by the Articles of Confederation was avowedly a league of independent states. The articles were thirteen in number, and as to form re- sembled somewhat our present constitution. The articles proved very unsatisfactory. The Confederation had neither obedience at home nor credit nor respect abroad. The main defects in the Articles of Confederation may be summed up as follows : I.) The Confederation was tied down, or hindered, in legis- lation, by the need of the assent of nine states out of thirteen be- fore it could act on important matters. 2). It was given authority to make laws on some subjects, but it had no power to compel obedience. 3). It might enter into treaties and alliances, which the states and the people could disregard with impunity. 4). It could apportion obligations among the states, but the recognition of the obligations depended upon the voluntary action of the states. HISTORICAL REVIEW. 5 5). It could contract debts, but it could not provide the means for satisfying them. 6). It had no power to levy taxes, regulate trade and com- merce, or compel uniformity. 7). The judgments rendered in pursuance of its limited judi- cial authority were not respected by the states. 8). It had no system of courts, in the full sense of the term. 9). It had no executive except congress or its committees. The articles were practically a failure. Such a defective gov- ernment could not stand. Washington and the ablest men of that time felt that a stronger central government must be substituted. Although everyone desired a better government, it seemed hard to attain it. Commerce, the great factor in civilization, finally aroused the states to activity. Alexandria-Mt. Vernon Convention. (1785.) The first step, in the preliminaries to the Constitutional Convention, was the appointment of commissioners by Virginia and Maryland to draw a compact for the regulation of trade upon the Chesapeake Bay and the Potomac River. These commissioners met at Alex- andria, in March, 1785, and in the same month visited Mt. Ver- non, where they agreed, after consulting with Washington, to recommend a meeting of commissioners from all the states, to make arrangements, with the consent of congress, for the regu- lation of commerce. The state of Virginia now took up the mat- ter. Annapolis Convention. (1786.) A resolution was intro- duced by Mr. Madison into the Virginia legislature, and passed on the 2 1 St day of February, 1786, which appointed eight com- missioners, to meet commissioners appointed by the other states, at a time and place to be agreed upon, "to take into consideration the trade of the United States ; to examine the relative situation and trade of the states ; to consider how far a uniform system in their commercial regulations may be necessary to their common interest and their permanent harmony." This committee was directed to transmit copies of the resolution to the several states, with a letter requesting their concurrence, and proposing a time and place for the meeting. The time agreed upon was September, 1786, and the place was Annapolis. Nine states appointed dele- gates, but those of five states only attended. Of course such a convention as this could do little but make recommendations. What it did do was to suggest a convention of delegates from all 6 UNITED STATES COURTS. the states, "to devise such further provisions as might appear to be necessary to render the Articles of the Federal Government adequate to the exigencies of the Union." It also proposed that whatever should be agreed upon by such a convention should be reported to Congress, and confirmed by the legislatures of all the states. As a result of the Annapolis Convention, Congress called the delegates of the several states to meet at Philadelphia, May, 1787. The express purpose was to revise the Articles of Confed- eration. Philadelphia or Constitutional Convention. (1787.) On May 14, delegates from Virginia and Pennsylvania met, and adjourned from day to day, till the 25th, during which time dele- gates from other states made their appearance. On that day the convention was organized, by the election of George Washington as its chairman. On May 29, Edmond Randolph presented an outline of a constitution. Several other plans were considered. The convention labored without intermission till the 17th day of September, and on that day it closed its work by presenting a completed instrument, which, being subsequently ratified by the states, became the Constitution of the United States of America. According to the terms of the Constitution, it was to go into effect as soon as adopted by nine states. It was not till June 21st, 1788, that the ninth state ratified the constitution, and it became the charter of our National Government.^ On July 14, 1788, the Con- gress of the Confederacy, which was in session, referred the rati- fications received from the nine states to a committee, which re- ported a resolution for carrying the new government into effect. The place and time of meeting of the new Congress was finally fixed at New York, March 4, 1789. This brings us to the Nation- al Period. 5. National Period (17 89 ). Our National Government dates from the operation of the Constitution. In fact, all its powers are derived from the Consti- tution. Judge Story, speaking of the Constitution, in the case of ^In the case of Owings v. Speed, 5 Wheat. 420, (1820), Chief Justice Marshall held that the present Constitution of the United States did not commence its operation until the first Wednesday in March, 1789. and the provision in the Constitution that "No state shall make any law impairing the obligation of contracts" does not extend to a state law enacted before that day, and operating upon the rights of property vested before that time. HISTORICAL REVIEW. Martin v. Hunter, i Wheat. 304, (1816), said: "The Constitution is a grant of powers from the people of the United States to the Federal government, and the Federal government has no more power than is given in the Constitution. It was proper for the people to invest the general government with all the powers which they might deem proper and necessary; to extend or restrain these powers according to their own good pleasure, and to give them a paramount and supreme authority. The powers of the states remained unaltered and unimpaired, except so far as they were granted to the government of the United States. The gov- ernment of the United States can claim no powers which are not granted to it by the Constitution, and the powers actually granted must be such as are expressly given, or given by necessary impli- cation. The Constitution, like every other grant, is to have a reasonable construction, according to the import of its terms. The words are to be taken in their natural and obvious sense, and not in a sense unreasonably restricted or enlarged. The Constitution unavoidably deals in general language. It did not suit the pur- poses of the people, in framing this great charter of our liberties, to provide for minute specifications of its powers, or to declare the means by which those powers should be carried into execu- tion. It was foreseen that this would be a perilous and difficult, if not an impracticable, task. " The instrument was not intended to provide merely for the exigencies of a few years, but was to en- dure through a long lapse of ages, the events of which were locked up in the inscrutable purposes of Providence. It could not be foreseen what new changes and modifications of power might be indispensable to effectuate the general objects of the charter; and restrictions and specifications which, at the present, might seem salutary, might, in the end, prove the overthrow of the system itself. Hence its powers are expressed in general terms, leaving to the legislature, from time to time, to adopt its own means to effectuate legitimate objects, and to mould and model the exercise of its power, as its own wisdom and the pub- lic interests should require." The Constitution of the United States gave us a safe and lasting government. It has accomplished national unity consist- ent with local independence. A more extended discussion of the Constitution belongs to the branch of Constitutional Law, so wp will close the historical review at this point. CHAPTER II. ORGANIZATION OF THE VARIOUS UNITED STATES COURTS. We live under a double form of government. We have a national government, with its legislative, executive and judicial departments. We have state governments, each state having its legislative, executive and judicial departments. We have organ- ized and established by Congress, acting under the authority of the Constitution of the United States, a complete system of courts, and we have organized by each state legislature, acting under the authority of the state constitution, a complete system of state courts. The two systems — national and state — work in harmony over the same territory, yet each is supreme within its own juris- diction. Over some questions the courts of the United , States have exclusive jurisdiction; over many questions the courts of the states have exclusive jurisdiction, and in a few instances there is a concurrent jurisdiction. It is our purpose to speak of the vari- ous United States courts, giving no attention to the state courts. The United States courts may be classified as follows : United States Courts. I. United States Senate. 2. Federal Courts. 3. Administrative Courts. 4. Miscellaneous Courts. I 1. Supreme Court. 2. Circuit Courts of Appeals. 3. Circuit Courts. 4. District Courts. 1. Court of Claims. 2. Inter-State Commerce Commission. 3. Court of Private Land Claims. 1. Territorial Courts. 2. Courts of the District of Columbia. 3. Military Courts. 4. Consular Courts. 5. United States Commissioners Courts. It will be noticed from the outline that one branch — the Sen- ate — of our national legislative body is classified as a court. This is because it exercises a judicial power in cases of impeachment. The real judicial power of the Federal government is admin- istered, under existing laws, by four courts, viz., the Supreme Court, ORGANIZATION. 9 Circuit Courts of Appeals, Circuit Courts, and District Courts. These four courts are generally called Federal Courts, and are em- powered to define the boundaries of the federal authority as dis- tinguished from the authority of the states. There are also vari- ous administrative tribunals, such as the Court of Claims, Inter- State Commerce Commission, and Court of Private Land Claims. There are also separate judicial systems provided by Congress for territories, and the District of Columbia. Thus we have Ter- ritorial courts, and courts of the District of Columbia. For of- fenses against the laws or usages of war. Congress has provided Military Courts; and for offenses committed in foreign countries by our citizens, we have Consular Courts. Congress has also pro- vided for the appointment by the District Courts of a number of discreet persons in each judicial district, for the purpose of exer- cising a certain judicial power. These persons are called United States Commissioners. We will now discuss the organization of each court, in the order given in the outline. UNITED STATES SENATE. In Greneral. The United States Senate is sometimes called a court. It may be properly called a court in impeachment cases, but that is all. The Constitution of the United States says that the House of Representatives shall have the sole power of impeachment, and that the Senate shall have the sole power to try all impeachments. To convict, there must be a concurrence of two-thirds of the members present, and, in case of conviction, judgment shall not extend further than removal from office, and a disqualification to hold and enjoy any office of honor, trust or profit under the United States ; but the party convicted shall nevertheless be liable and subject to indictment, trial, judgment and punishment, ac- cording to law. The President can pardon all offenses against the United States, except cases ^of impeachment. If the President were al- lowed to pardon in impeachment cases, there would be no way to reach the misconduct of his political friends who hold offices of public trust. 10 UNITED STATES COURTS. Why Tested in the Senate. It was proposed by some that the power to try impeachments should be vested in the Supreme Court. Others proposed that a new body be created for this purpose — a body that was in no way connected with the departments of government. Objection was made to the Supfeme Court, because its members are appointed by the President; also, because it is not a numerous body. Objec- tions were made to the forming of a new separate body, because it would be a sort of fourth department of government. After careful consideration, it was decided that the Senate was the only body sufficiently dignihed or independent to try cases of impeach- ment. Who May he Impeached. The President, Vice-President, and all civil officers of the United States, are subject to impeachment. Who are included in the phrase "all civil officers ?" According to this, private citizens cannot be impeached. State officers cannot be impeached by the Federal government, but they may be impeached by the state gov- ernment. Military and naval officers are exempt from impeach- ment, because they are not civil officers. 'Military and naval offi- cers are subject to trial and punishment according to the laws, rules and usages of war. Neither a senator nor a member of the House of Representatives can be impeached. The only remedy against a member of either house of Congress is to expel him, or, in some cases, refuse him admission. Generally, all civil officers commissioned by the President, including Federal judges, may be impeached. It is in dispute whether an officer can be impeached after the expiration of his term of office. It seems to be well set- tled that if an officer is charged with an offense, his resignation before trial will not divest the Senate of jurisdiction. What Offenses Are Impeachable. The offenses that are impeachable are, treason, bribery, and high crimes and misdemeanors. Treason and bribery are well defined terms, but the phrase "high crimes and misdemeanors" is very indefinite. But this phrase includes gross indecency, habitual drunkenness, profanity, obscenity, or a public speech which en- ORGANIZATION. 11 courages insurrection. In fact, it includes any malfeasance or misfeasance. The power to determine what offenses are impeacn- able rests very much with Congress. The House of Representa- tives, before preparing articles of impeachment, will decide wheth- er the acts complained of constitute a high crime or misdemeanor. The Senate, in trying the case, will consider the same question. If, in the judgment of the Senate, the offense charged is not im- peachable, they will acquit ; otherwise, upon sufficient proof, and the concurrence of the necessary majority, they will convict; and in either case there is no other power which can review or reverse their decision. Practice in Impeachments. Charges are presented to the House of Representatives against an officer, either by the President, a private citizen, or a member of the House. The House then appoints a committee to consider the charges, and to report the same to the House. The accused may appear before this committee if he chooses, bui the committee can exclude him, if it so desires. If the committee determines that the accused should be impeached, it recommends a resolution to that effect. On the adop- tion of the resolution by the House, another committee is appointed, to state to the Senate that articles of impeachment will be presented in due time. The Senate then passes a resolution that the Senate take proper order in the case. Next, the articles, or charges are prepared by the House, and presented to the Sen- ate. The Senate then summons the party to appear before it, to answer the charges. If he does not appear, his default is re- corded, and the Senate proceeds ex parte in the trial of impeach- ment, in the same manner as if a plea of "not guilty" had been filed. If the accused appears, he proceeds very much in the same manner as he would in a suit at law. The House appoints a com- mittee to conduct the impeachment. The members of this com- mittee are usually members of the House, and are lawyers. The House can select outside counsel, if it so desires. The Senators preside a's the court, and are under oath or affirmation. At the conclusion of the evidence, and after both parties have been heard, the Senate proceeds to the consideration of the case. The debates are usually in secret, and it requires two-thirds of those present to convict. The presiding officer is ordinarily the Vice-President, 12 UNITED STATES COURTS. or, in his absence, the President pro tempore of the Senate. When the President of the United States is tried, the Chief Justice of the United States Supreme Court presides. The presiding officer on the trial may rule on all questions of evidence and incidental questions, which ruling shall stand as the judgment of the Sen- ate, unless some member of the Senate shall ask that a formal vote be taken thereon, in which case it shall be submitted to the Senate for decision ; or he may, at his option, in the first instance, submit any such c[uestion to a vote of the members of the Senate. Cases of Impeachment. In 1797, William Blount, a senator from Tennessee, was impeached for high crimes and misdemeanors. He was accused of having conspired to create and promote and set on foot, within the jurisdiction and territory of the United States, a military expedition against the territories of Spain in the Floridas and Louisiana, for the purpose of wresting the same from Spain, and of conquering the same for Great Britain, with which Spain was then at war. He was expelled from the Senate before his trial. At the trial, Blount's counsel claimed that their client was not then a senator, nor at the time of the offense charged a civil officer of the United States. Blount was acquit- ted.** The second impeachment was that of 'John Pickering, Dis- , trict Judge of New Hampshire, in 1803. The articles charged disobedience to the law in the course of proceedings on the part of the United States to condemn a ship. The defendant did not appear. He was convicted, and removed from office. The next was Samuel Chase, Justice of the Supreme Court, in 1803. He was charged with misconduct of office. He was ac- quitted. The next impeachment was that of J. H. Peck, District Judge of Missouri. This was in 1830-1831. He was acquitted. He was charged with abusing his high trust in a contempt case. S. H. Humphreys, District Judge of Tennessee, was im- peached in 1862. He was charged with inciting rebellion against the Constitution and government of the United States. He was convicted, and sentenced to removal and disqualification to hold any office. "Wharton's State Trials, 200-321. ORGANIZATION. 13 The impeachment of President Johnson, in 1867, was the next. He was charged with a usurpation of power. He was acquitted. W. W. Belknap was impeached in 1876. He was charged with the acceptance of bribes. He was acquitted. For a full discussion of Impeachments under the authority of the United States, also under the authorities of the different states of the Union, see* SUPREME COURT. History. When the Colonies declared themselves free, they had, of course, their own local courts; and these courts dealt exclu- sively with local questions. There was no federal system of courts to deal with questions of national import. There were questions of admiralty, of prizes, piracies, and controversies be- tween the Colonies, and many similar questions, but no independ- ent tribunal to decide them permanently for all the Colonies. Un- der the Articles of Confederation, there was not much of an im- provement in this respect, although Art. IX. gave Congress a limited jurisdiction over those questions ; yet it remained for the Constitutional Convention to provide for a complete system of national courts. The constitutional provision gave us a Supreme Court, and it also gave Congress power to establish inferior fed- eral courts. But before the judicial system provided for by the Constitution could become operative, it had to be organized by Congress. As soon as the First Congress met, the Senate took up the matter of organizing the judiciary. A bill was presented to the Senate June 12, 1789. This bill met with considerable oppo- sition in both houses of Congress, but it finally passed, and became a law Suptember 24, 1789. This bill is known as the "Judiciary Act of 1789." It divided the United States into circuits and dis- tricts, and provided for the number of judges for the Supreme Court and other federal courts, also salaries, terms, and officers, and has remained in force without substantial change, save in the extension of the system as required by the growth of the na- "Story Const. Sec. 742-813 ; Johnson's Impeachment Trial ; Foster Const., Vol. I, pp. 505-713- 14 UNITED STATES COURTS. tion.^ Its provisions are embodied in the Revised Statutes of the United States." Washington's signature to tlie Judiciary Act was hardly dry- before he sent to the Senate the names of -the persons appointed to the Supreme Court. On September 26, the appointments were confirmed, and our Supreme Court, the greatest court of modern times, entered upon its duties.^ Constitutional Provision. Section i, Ar.t. III., of the Constitution of the United States, provides as follows: "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." The Constitution says that the judicial power "shall be vested," not "may be vested." The language is inanifestly designed to be mandatory upon the legislature. Its obligatory force is so imperative that Congress could not, without a violation of its duty, have refused to carry it into operation. The judicial power must, therefore, be vested in some court, by Congress ; and to suppose that it was not an obligation binding on them, but might, at their pleasure, be omitted or de- clined, is to suppose that, under the sanction of the Constitution, they might defeat the Constitution itself. If Congress fails to perform its duties, there is no way by which you can compel such performance. The Supreme Court was established by the Consti- tution, but was organized by Congress. The inferior courts were established and organized by Congress. Under the constitutional provision, we have one Supreme Court. We can have no more than one. It was necessary to have only one Supreme Court. If there were more than one, there would be a conflict of decisions, ''United States v. Holliday, 3 Wall. 407, (1865). "Chapters 1-21, Title XIII. 'The creation of the Supreme Court was the greatest conception of the Constitution. Within its sphere it is absolute in authority. From its decisions there is no appeal. Its jurisdiction extends over states. It re- stricts congressional action to constitutional bounds. Its powers are lim- ited, and strictly defined. It cannot encroach upon the rights of the states, or abridge the privileges of local self-government. The judges are the sworn ministers of the Constitution, and are the high priests of Justice. Amenable to public opinion, they can be reached, in case of necessity, by impeachment by the Senate of the United States. History of Supreme Court, by H. L. Carson. ORGANIZATION. 15 and the Constitution and laws would not receive the same inter- pretation. The Supreme Court being thus provided for by the Constitution, is largely independent of Congress. It can neither be abolished, nor stripped of any, part of its original jurisdiction, by any act of Congress. Congress has power to establish and or- ganize any number of inferior courts, or abolish them. So the jurisdiction of the Supreme Court — except so far as it is granted by the Constitution — is within the control of Congress, and may be enlarg^ed or restricted as that body may determine. The infer- ior courts depend wholly for their jurisdiction upon Congression- al legislation.^ Number of Justices. As was stated before, Congress passed a statute September 24, 1789, usually called the "Judiciary Act," which contained provisions organizing the Supreme Court. Under this first organization, the Supreme Court consisted of a chief jus- tice, and five associate justices, any four of whom consti- tuted a quorum. The organization of the Supreme Court is now regulated by Chap. IX., Title XIII., of the Revised Statutes of the United States. There are a chief justice, and eight associate justices, any six of whom constitute a quorum.' The number of judges of the Supreme Court is left to the determination of Con- gress. The number may be indefinitely increased ; but, since a judge of this court cannot be lawfully legislated out of office, the number of judges cannot be diminished in any other way than providing that vacancies as they occur shall not be filled up, until the number of judges is reduced to a prescribed minimum. How Chosen. The justices are appointed by the President of the United States, by and with the advice and consent of the Senate, and they hold office for life, or during good behavior. When any judge of any court of the United States resigns his office, after having held his commission as such at least ten years, and having attained the age of seventy years, he shall during the 'United States v. Hudson, 7 Cranch 32, (1812). "Rev. Stat., Sec. 673. 16 UNITED STATES COURTS. residue of his natural life receive the same salary which was Ly law payable to him at the time of his resignation. Salaries. The Chief Justice of the Supreme Court of the United States receives the sum of ten thousand five hundred dollars a year, and the associate justices thereof receive the sum of ten thousand dol- lars a year, each, to be paid monthly. '^^ « Order of Precedence. The associate justices have precedence according to the dates of their commissions ; or, when the commissions of two or more of them bear the same date, acccording to their ages. In case of a vacancy in the office of Chief Justice, or of his inability to per- form the duties and powers of his office, they shall devolve upon the associate justice who is next in precedence, until such dis- ability is removed, or another chief justice is appointed and duly qualified. ^^ Present Court. The members of the Supreme Court at the present time, in the order of precedence, and the circuits to which they are allotted, are as follows : Chief Justice — M. W. Fuller, allotted to the 4th circuit.^^ Associate Justices — J. M. Harlan, allotted to the 6th circuit. H. Gray, allotted to the ist circuit. D. J. Brewer, allotted to the 8th circuit. H. B. Brown, allotted to the 7th circuit. G. Shiras, allotted to the 3rd circuit. E. D. White, allotted to the 5th circuit. "Rev. Stat., Sec. 676. "Rev. Stat., Sees. 674-675. '-The different Chief Justices who have been appointed to the Supreme Court since its organization, with the dates of their appointments, are: John Jay, in 1789; John Rutledge, in 1795; Oliver Elsworth, in 1796; John Marshall, in 1801 ; R. B. Taney, in 1836; S. P. Chase, in 1864; M R Waite, in 1874; and M. W. Fuller, in 1888. ORGANIZATION. 17 R. W. Peckham, allotted to the 2nd circuit. Jos. McKenna, allotted to the 9th circuit. Terms of Court. The Supreme Court has jurisdiction throughout the United States. Formerly there were two terms of court held each year at the seat of government, one on the first Monday of February, and the other on the first Monday of August. Now there is only one term each year, and the term begins on the second Monday of October, and continues in session till the following April or May, when the justices go to their allotted circuits. The Supreme Court may also hold adjourned or special terms. '^^ In case of a contagious or epidemic disease, a term may be held at another place than the seat of govern- ment.^* If at any session of the Supreme Court a quorum does not attend on the day appointed for holding it, the justices who do attend may adjourn the court from day to day until there is a quorum, or may adjourn without day. The justices attending at any term when less than a quorum is present may make all necessary orders touching any suit, proceeding or process pend- ing in or returned to the court, preparatory to the hearing, trial or decision thereof.^^ The justices of the Supreme Court while presiding are dressed in black gowns. They take their respective seats at twelve o'clock, noon, and adjourn at 4 p. m. Three-Fold Duty. The justices of the Supreme Court have a three-fold duty. They are members of the Supreme Court, justices of the Circuit Courts, and also presiding justices of the Courts of Appeals. Judges Cannot Practice Law. It shall not be lawful for any judge appointed under the authority of the United States to exercise the profession or to be engaged in the practice of the law.^" ''Rev. Stat., Sees. 684-686. "Rev. Stat, Sec. 4799. '°Rev. Stat., Sees. 685-686. "Rev. Stat., Sec. 7I3- 2 18 UNITED STATES COURTS. Officers. The officers of the court are: Reporter, Clerk, and Mar- shal. They are appointed by the court, and hold office during an unfixed period of time. The reporter shall cause the decisions of the Supreme Court made during his office to be printed and published within eight months after they are made. He shall be entitled to receive from the treasury an annual salary of four thousand five hundred dollars when his report of said decisions constitutes one volume, and an additional sum of twelve hundred dollars, when, by direction of the court, he causes to be printed and published in any year a second volume. The reporter is entitled to clerk hire, office rent, stationery, and contingent ex- penses.^' It is the duty of the Clerk to keep the records, enter prompt- ly the decrees, judgments and determinations of the court, issue its process, and perform the other acts required of him by tne law. He is required to give his personal attention to the duties of the office, and can hold or exercise no incompatible office, ap- pointment or employment. His salary is in the form of fees, and shall not exceed six thousand dollars a year.^* The Marshal is entitled to receive a salary at the rate of three thousand five hundred dollars a year. He shall attend the coun at its session; shall serve and execute all process and orders is- suing from it, or made by the Chief Justice, or any Associate Jus- tice, in pursuance of law, and shall take charge of all the prop- erty of the United States used by the court or its members.^" Attorney General. The Attorney General is to prosecute and conduct all suits in the Supreme Court in which the United States shall be con- cerned, and to give his advice and opinion upon questions of law, when required by the President or when requested by the heads of the departments, touching any matter which concerns their departments. He is a member of the Presi- dent's Cabinet, and receives a salary of ten thousand dollars a "Rev. Stat., Sees. 681-682. *'i Supp. Rev. Stat, 421. "Rev. Stat., Sec. 680. ORGANIZATION. 19 year, payable monthly. He is appointed by the President, by and with the advice and consent of the Senate, and he holds office during the administration. He is the fourth in succession, after the Vice-President, to the office ,of President, in case of a vacancy.^" CIRCUIT COURTS OF APPEALS. These courts were created and organized by Congress in 1891. The business of the Supreme Court was about four years behind, and to do away with this delay, to facilitate the prompt disposition of cases in the Supreme Court, and to relieve it from the oppressive burden of litigation, Congress, by the act of March 3, 1891,^^ created nine Circuit Courts of Appeals, one in each cir- cuit. Each court consists of three judges, of whom two consti- tute a quorum. The regular Circuit Court of Appeals in each circuit consists of the Justice of the Supreme Court and two cir- cuit judges. Each Circuit Court of Appeals is a court of record with ap- pellate jurisdiction, and is not bound by decisions of circuit courts. In the case of Natl. Reg. Co. v. Am. Reg. Co., 3 U. S. App. 340, (1892), the court said that "the decisions of the several Cir- cuit Courts, whenever pertinent, would be attentively considered by the Court of Appeals, but, because they are subject to appeal, and for other manifest reasons, it is not admissible for a court of review to accord them controlling efifect." And in the case of Am. Mtge. Co. v. Hopper, 29 U. S. App. 12, (1894), the court said that "the doctrine of stare decisis has not been applied to the decisions of Circuit Courts from which no appeal was taken." This court has power to establish rules, to adopt a seal, and prescribe the form of its writs and other process and procedure. Judges. The Chief Justice and the Associate Justices of the Supreme Court assigned to each circuit, the circuit judges of each circuit, and the district judges in each circuit, shall be competent to sit as judges of the Circuit Court of Appeals in their respective cir- '"Rev. Stat, i Supp., 487. ='i Supp. Rev. Stat., pp. 901-905. 20 UNITED STATES COURTS. cuits. If a justice of the Supreme Court is present he shall pre- side; if not, the circuit judge, senior in commission, shall pre- side. The district judges may sit to make up the full court, when the Supreme Court justice and circuit judges are not sufficient. But no justice or judge shall sit on appeal from his own deci- sion.-- Three district judges may hold this court. How Chosen and Salaries. As the judges of this court are members of the other courts, namely : Supreme Court, Circuit and District, the question of how chosen, and the question of salaries, need not be restated here. However, judges attending the Circuit Court of Appeals at places other than where they reside, are allowed reasonable trav- eling expenses. Terms of Court. Terms of court are held in the several circuits as follows : First Circuit, at Boston, one term annually on the first Tuesday of October. Second Circuit, at New York, one term annually on the last Tuesday of October. Third Circuit, at Philadelphia, two terms annually on the first Tuesday in March and the third Tuesday in September. Fourth Circuit, at Richmond, three terms annually on the first Tuesday of February, first Tuesday of May, and first Tues- day of November. Fifth Circuit, at New Orleans, one term annually on the third Monday of November. Sixth Circuit, at Cincinnati, one term annually on the Tuesday after the first Monday of October. Seventh Circuit, at Chicago, one term annually on the first Monday in October. Eighth Circuit, at St. Louis, one term annually on the first Monday in December. At St. Paul, one term annually on the first Monday in May. ^^26 U. S. Stat, 826-827; Amer. Constr. Co. v. Jacksonville Rv 148 U. S. 372, (1893). ORGANIZATION. 21 Ninth Circuit, at San Francisco, one term annually on the first Monday of October. Also, sessions may be held in other places in each circuit; each Court of Appeals can regulate this as necessity requires. Officers. The principal officers of each court are clerk, marshal, crier, bailiff and messenger.^" The duties of marshal are performed by the United States marshals in and for the districts where terms of said courts are held.^* CIRCUIT COURTS. Judicial Circuits. The territory of the United States is divided into nine parts called circuits. The circuits at the present time are made up of the following states and territories : First Circuit. Rhode, Island, Massachusetts, New Hamp- shire, and Maine. Second Circuit. Vermont, Connecticut, and New York. Third Circuit. Pennsylvania, New Jersey, and Delaware. Fourth Circuit. Maryland, Virginia, West Virginia, North Carolina, and South Carolina. Fifth Circuit. Florida, Georgia, Alabama, Mississippi, Louisiana, and Texas. Sixth Circuit. Ohio, Michigan, Kentucky, and Tennessee. Seventh Circuit^ Indiana, Illinois, and Wisconsin. Eighth Circuit. Colorado, Nebraska, Minnesota, Iowa, Missouri, Kansas, Arkansas, North Dakota, South Dakota, Wy- oming, Utah, and the territories of New Mexico and Oklahoma. Ninth Circuit. California, Nevada, Idaho, Washington, Montana, and the territories of Alaska and Arizona. At first there were only six circuits. This was under the Judiciary Act, but no circuit judges were appointeo. '=1 Supp. Rev. Stat., 901-905. "2 Supp. Rev. Stat., 40. 22 UNITED STATES COURTS. Judges. The judges who may hold the Circuit Court are: Justices of the Supreme Court, regular Circuit Court judges, and District judges. In the early history of our country no Circuit judges were appointed, as the business of the Circuit Courts was so little that the Supreme justices and the District judges could take care of it. By 1869, the business of the Circuit Courts had increased so much that Congress authorized the President to appoint one Circuit judge for each circuit to hear cases in the absence of the Supreme Court justice, and to sit with him when he desired such assistance. Subsequent acts increased the number of Circuit judges to two in several circuits where the btisiness of the court was excessive. And in 1891, to establish the Circuit Court of Appeals, an additional Circuit judge was appointed for each cir- cuit. So that in the second, third, fiffh, sixth, seventh, eighth, and ninth circuits there are now three Circuit judges to each circuit. In the first and fourth circuits, there are two for each circuit. The justices of the Supreme Court are members of the Cir- cuit Courts, and no commission is necessary to authorize such a justice to hold Circuit Court in the circuit to, which he is allotted. The Chief Justice and Associate Justices of the Supreme Court are allotted among the circuits by an order of the court, and a new allotment is made whenever it becomes necessary or con- venient by reason of the alteration of any circuit, or of the new appointment of a Chief Justice or Associate Justice, or otherwise. For the allotment at the present time see page 16. The Circuit Court may be held by the Circuit justice, or by the Circuit judges, or by the District judge sitting alone, or by any two of the said judges sitting together.^^ Every Circuit judge shall reside within his circuit. Although there are only nine cir- cuits, yet Circuit Court is generally held wherever a District Court is held. In case the judges hold court together, and the Supreme Court justice is present, he shall preside. If he is not present, then the judge oldest in commission shall preside. The two Cir- cuit judges may sit apart and hold court, or they may sit together and hold court, and in case there is a disagreement between them, the opinion of the judge older in commission shall prevail, or they may certify the case to a higher court. ■"Rev. Stat., Sec. 609. ORGANIZATION. ^3 When the District judge holds a Circuit Court with either of the other judges, the judgment or decree in such cases shall be rendered in conformity with the opinion of the presiding justice or judge. It is the duty of the Chief Justice, and of each Associ- ate Justice of the Supreme Court, to attend at least one term of the Circuit Court in each district of the circuit to which he is alloted during every period of two years.^^ In the case of In re Neagle, 135 U. S. i, (1890), Justice Field, of the United States Supreme Court, was traveling in his circuit for the purpose of holding Circuit Court at different places in his circuit, and threats having been made against him by one, Judge Terry, the President authorized a deputy United ' States marshal, Mr. Neagle, to accompany Justice Field and protect him on his journey. At a certain point on the journey where Justice Field stopped for lunch, he was assaulted by Judge Terry, and in order to protect Justice Field, Neagle shot and killed Terry. In deciding this case, the Supreme Court said that the jus- tices of the Supreme Court were members of the Circuit Courts ever since the organization of the government, and that it was the duty of such justices to attend their circuits, and that they should be protected while making the rounds of their circuits. The justices may attend their circuits oftener if necessary. The justices may exchange circuits if advisable in certain cases. How Chosen. The judges of the Circuit Court are appointed by the Presi- dent by and with the advice and consent of the Senate, and they hold office during good behavior. Salaries, The judges of the Circuit Court each receive a salary of six thousand dollars per year, payable monthly. Terms of Court. The terms vary from two to four terms each year, also, there may be special or adjourned terms. '°Rev. Stat, Sec. 610 • I 24 UNITED STATES COURTS. Officers. The officers of the Circuit Courts are Crier, Clerk, Marshal, and District Attorney. DISTRICT COURTS. Judicial Districts. The states and territories of the United States are divided into districts as follows: Alabama 3, Alaska i, Arizona 4, Arkan- sas 2, California 2, Colorado i, Connecticut i-, Delaware i, Florida 2, Georgia 2, Idaho i, Illinois 2, Iowa 2, Indiana i, Indian Terri- tory 3, Kansas i, Kentucky i, Louisiana 2, Maine i, Maryland i, Massachusetts i, Michigan 2, Minnesota i, Mississippi 2, Mis- souri 2, Montana i, Nebraska i, Nevada i, New Hampshire i, New Jersey i, New Mexico 5, New Yar^ 3, North Carolina 2, North Dakota i, Ohio 2, Oklahoma 5, Oregon i, Rhode Island i, South Carolina 2, South Dakota i, Tennessee 3, Texas 3, Utah I, Pennsylvania 2, Vermont i, Virginia 2, Washington i, West Virginia i, Wisconsin 2, Wyoming i, Porto Rico i, Hawaii i. There are at present eighty-nine judicial districts, and it will be noticed that the districts are confined to state or territorial lines. Also, the districts do not break over the boundary lines of the circuits. Some of the districts are sub-divided into divisions. For in- stance, Michigan is divided into two districts, the Eastern District and the Western District. The Western District of Michigan is divided into two divisions — the Northern division and the South- ern division. This is true of many of the districts, and in many cases when a district is sub-divided, separate district judges are appointed for the divisions. Judges. With but few exceptions, a district judge is appointed for each district. Every judge must reside in the district for which he is appointed, and for offending against this provision, shall be deemed guilty of a high misdemeanor.^' "Rev. Stat., Sec. 551. ORGANIZATION., .25 At first, under the Judiciary Act, the United States was divided into thirteen districts, and a district judge was appointed for each district. In a few instances, one judge is given charge over two dis- tricts. He may, also, hold Circuit Court alone, and he can sit as one of the judges of the Circuit Court of Appeals. Salaries. The salaries of the several judges of the District Courts of the United States are at the rate of five thousand dollars per an- num, and may be paid monthly.^^ How Chosen. The District judges are appointed by the President by and with the advice and consent of the Senate, and they hold office during good behavior. Terms of Court. There are from two to four terms of the District Court each year. Alsp, there may be special or adjourned terms. Officers. The officers of each District Court are Crier, District At- torney, Marshal, and Clerk. The Circuit and District courts have power to appoint criers for their courts, and such criers receive the sum of two dollars per day. District attorneys are appointed by the President by and with the advice and consent of the Sen- ate, and hold office for a term of four years. Their commissions cease and expire at the expiration of four years from their re- spective dates. Every district attorney, before entering upon his office, must be sworn to a faithful execution thereof. The Pres- ident may remove a district attorney, before his term of four years has expired, and appoint his successor, who must be con- firmed by the Senate. In Parsons v. United States, 167 U. S. 324, (1897), the '''26 U. S., Stat. 783- 26 UNITED STATES COURTS. Court said; "We are satisfied that the repeal of the Tenure of Office Act was again to concede to the President the power of removal if taken from hirri by the original Tenure of Office Act." It is the duty of every district attorney to prosecute all crimes- under the authority of the United States, and in all civil cases in which the United States is concerned. District Attorneys re- ceive a salary of from two thousand to five thousand dollars per year, depending upon the amount of work to be done in the dis- trict. This salary is to be paid monthly, and is to cover all services in the Circuit Courts of Appeals of their respective circuits.^" Marshals are appointed for a term of four years, and they re- ceive a salary of from two thousand to five thousand five hundred dollars per year, payable monthly.'"* It is the duty of the marshal of each district to attend the District and Circuit Courts, and to execute throughout the district all lawful precepts directed ta him, and issued under the authority of the United States, and he has power to command all necessary assistance in the execution of his duty. The marshals and their deputies have in each state the same powers in executing the laws of the United States as the sheriffs and their deputies in such state may have by law in executing the laws thereof.^^ The clerk is appointed by the Court, and is to attend the court and perform all duties required of him by law. He receives com- pensation in the' form of fees, which sum shall not exceed three thousand five hundred dollars per year. The clerk is appointed for an indefinite period, and must give bond for the faithful dis- charge of his duties. COURT OF CLAIMS. This is a national court with jurisdiction throughout rhe United States. It has jurisdiction of claims against the United States to a limited extent, depending upon the acts of Congress, and if Congress makes no provision, the only remedy is to ask Congress to appropriate money to satisfy the claim. The United States Court of Claims has no jurisdiction of claims against any particular state. Each state has a Court of '^"29 Stat, at Large, 140. '. '"29 Stat, at Large, 140-538. "Rev. Stat., Sees. 787-788. ORGANIZATION. 27 Claims of its own to hear and determine claims against itself, and if any state fails to establish such a court, the claimant must seek his remedy in the state legislature. It is a rule of the common law that a state or nation cannot be sued in its own courts without its consent, but most states now have given their consent to be sued. In the case of Bonner v. United States, 9 Wall. 156, (1869), Justice Davis said: "Immunity from suit is an incident of sover- eignty, but the government of the United States, in a spirit of great liberality, waived that immunity in favor of those persons who had claims against it which were founded upon any law of Congress or regulation of an executive department, or upon any contract with it, express or implied, and gave the Court of Claims the power to hear and determine cases of this nature." Before this court was established, all claims against the United States were presented to Congress, but it was plainly seen that Congress or its committees could not investigate all those claims, and decide them properly. Under such a condition of things relief could not be given, and the only thing to be done was to establish a court. In 1855, Congress created a Court of Claims. A large amount of business is transacted by this Court, and it promotes justice much better than under the method of petitioning Congress. Judges. The Court of Claims consists of a chief justice and four judges. How Chosen. They are appointed by the President, by and with the advice and consent of the Senate, and hold office during good behavior. Salaries. Eacii receives a salary of four thousand five hundred dollars a year, to be paid monthly. 28 UNITED STATES COURTS. Terms. The court is to hold one annual session, at the city of Wash- ington, beginning the first Monday iii December and continuing as long as may be necessary for the prompt disposition of the businiess of the court, and any three judges of the Court of Claims constitute a quorum. Officers. The officers of this court are a Chief Clerk, Assistant Clerk, Bailiff, and a Messenger. The Chief Clerk receives a salary of three thousand dollars, the Assistant Clerk two thousand dollars, the Bailiff fifteen hundred dollars, and the Messenger eight hun- dred and forty dollars, per year, payable quarterly from the treas- ury.''^ Reports to Congress- On the first day of every December session of Congress, the clerk of the Court of Claims must transmit to Congress a full and complete staterhent of all judgments rendered by the court during the previous year, stating the amounts, parties, and nature of the claims. Also, at the end of every term of court, the clerk must transmit a copy of its decisions to the heads of departments, and to certain other officers named in the statute. Memlbers of Congress. Members of either house of Congress are not allowed to prac- tice in the Court of Claims. The reason for this is apparent. Jurisdiction. In Schillinger v. United States, 155 U. S. 163, (1894), the Court held that : "The United States cannot be sued in their courts without their consent, and in granting such consent, Congress has an absolute discretion to specify the cases and contingencies in which the liability of the government is submitted to the courts "^Rev. Stat., Sees. 707-708. ORGANIZATION. 29 for judicial determination. Beyond the letter of such consent, the courts may not go, no matter how beneficial they may deem or in fact might be their possession of a larger jurisdiction over the liabilities of the government." Until the organization of the Court of Claims by the Act of February 24, 1855, C. 122, 10 Stat. 612, the only recourse of claimants was in an appeal to Congress. That act defines the claims which could be submitted to the Court of Claims for ad- judication as follows : "The said court shall hear and determine all claims founded upon any law of Congress, or upon any regulation of an execu- tive 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 re- ferred to said court by either house of Congress." By the act of Alarch 3, 1863, C. 92, 12 Stat. 765, this addi- tional jurisdiction was given: "That the said court * * * shall also have jurisdiction of all set-offs, counter-claims, claims for damages, whether liquid- ated or unliquidated, or other demands whatsoever, on the part of the government against any person making claim against the government in said court." On March 3, 1887, 24 Stat. 505, C. 359, a new act was passed in reference to the jurisdiction of the court, its language being as follows : "The Court of Claims shall have jurisdiction to hear and determine the following matters : "First. All claims founded upon the constitution of the United States or any law of Congress, except for pensions, or upon any regulation of an executive department, or upon any con- tract, express or implied, with the government of the United States, or for damages, liquidated or unliquidated, in cases not sounding in tort, in respect of which claims the party would be entitled to redress against the United States either in a court of law, equity or admiralty if the United States were suable. Second. All set-offs, counter-claims, claims for damages, whether liquidated or unliquidated, or other demands whatso- ever on the part of the government of the United States, against any claimant against the government in said court." Under neither of these statutes had or has the Court of Claims any jurisdiction of claims against the government for 30 UNITED STATES COURTS. mere torts; some element of contractual liability must lie at the foundation of every action. In the case of Gibbons v. United States, 8 Wall. 269, (1868), where the plaintiff tried to hold the United States liable for the refusal of a quartermaster to receive certain grain purchased by 3uch officer, Justice Miller said: "The government is liable for contracts entered into by it; but it is not liable for the unauthor- ized acts of its officer, those acts being in themselves torts. No government has ever held itself liable to individuals for the mis- feasance, laches, or unauthorized exercise of power by its of- ficers and agents. It does not undertake to guarantee to any person the fidelity of any of the officers or agents whom it em- ploys, since that would involve it in all its operations in endless embarrassments and difficulties and losses, which would be sub- versive of the public interests." In Dennison v. United States, 168 U. S. 241, (1897), the plaintiff petitioned the court for thirty-five thousand dollars for .services rendered as supervisor of elections. The Court of Claims disallowed about five thousand dollars of this large sum. Dennison appealed to the Supreme Court. The Supreme Court affirmed the decision of the Court of Claims, and said, that to en- title a supervisor to a valid claim against the government he must make it appear that the services performed were required by the letter of the statute, or were such as were actually and necessar- ily performed in the proper execution of the duties therein pre- scribed. If the services are only performed for his own conven- ience, or are manifestly unnecessary or useless — even if they be such as he judges proper for himself — they cannot be made the basis of a claim against the government. In the case of McElrath v. United States, 12 Ct. CI. 312, (1876), the plaintiff, an officer of the marines, filed a petition in the Court of Claims for back pay to the amount of $7,000. The United States pleaded the general issue and filed a counter-claim for $6,000. The court decided in favor of the United States. The petitioner then took the case to the Supreme Court, claiming that the judgment against him was in conflict with the Seventh Amendment to the Constitution of the United States, which amendment provides as follows : "In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved." The Supreme Court held that the Seventh Amendment is confined to suits at common law, and ORGANIZATION. 31 does not extend to suits against the government. Suits against the government are not suits at common law. By the theory of the common law the sovereign is not liable to suit. The right of suit against the government is a grant, and one of the conditions of the grant is that the government may set up and recover on counter-claims against the suitor. The court has jurisdiction of all claims for the proceeds of captured or abandoned property, as provided by the act of March 12, 1863, or by the act of July 2, 1864. These acts re- ferred to claims arising out of the war.'^ The act of May 9, 1866, 14 Stat. 44, gave the court jurisdic- tion of the claim of any paymaster, quartermaster, commissary of subsistence, or other disbursing officer of the United States, or of his administrators or executors, for relief from responsibility on account of capture or otherwise, while in the line of his duty, of government funds, vouchers, records, or papers in his charge, and for which such officer was and is held responsible.^* The act of March 3, 1883, the "Bowman Act," provided that claims pending before committees of Congress or executive de- partments might be referred to the Court of Claims for exam- ination, and that the facts found, without judgment being en- tered, should be reported to the committee or department re- spectively.^^ A claim is barred within the meaning of this act if it has been considered and rejected by the department having jurisdic- tion thereof, and is barred by the statute of limitations.^' The act of Jan. 20, 1885, authorized the Court of Claims to examine the French spoliation claims, upon petition of the claim- ants, and to report their finding without binding either the claim- ant or Congress. This act was amended in 1891.^'' These spoliations were committed by French war vessels and privateers in pursuance of governmental orders, inspired by alleged violations of the treaty of 1778 by the United States, and extended from about 1796 to 1801. The United States author- ized retaliatory measures in 1798, and according to our Supreme Court, war existed between the two countries. Napoleon, hav- ='Rev Stat., Sec. 1059; Haycraft v. United States, 22 Wall. 81, (1874). "Glenn v. United States, 4 Ct. CI. 501, (1868). '^'i Supp. Rev. Stat., 403. '"Allen V. United States, 2-; Ct. CI. 89, (1892). "i Supp. Rev. Stat., Sees. 471-925; Field v. United States, 27 Ct. CI. 224, (1892). 32 UNITED STATES COURTS. ing succeeded to the Directory, made a treaty with the United States by which the respective pretensions of the two nations were abandoned. The claimants insisted that this proceeding was a trading off of their claims against France for a national con- sideration, and that their own government became liable therefor, and the Court of Claims so advised Congress. Congress acted upon the advice of the court, and authorized all citizens of the United States, or their legal representatives, to present to the Court of Claims valid claims which they had against France for spoliations of property on the high seas prior tO' 1801. The act of March 3, 1891, gave the Court of Claims author- ity to adjudicate claims for Indian depredations accruing since July I, 1865.=^ This act gave the court jurisdiction and authority to inquire into and finally adjudicate all claims for property of citizens of the United States taken or destroyed by Indians belonging to any band, tribe, or nation in amity with the United States, with- out just cause or provocation on the part of the owner or agent in charge, and not returned or paid for. Every specific assignment, in whatever form, of any claim against the United States, under a statute or treaty, whether to be presented to one of the executive departments, or to be pros- ecuted in the Court of Claims, is void, unless assented to by the United States.'^ It has jurisdiction over cases growing out of patents.*" The court has no jurisdiction of matters in equity; but since the passage of the act of March 3, 1887, known as the "Tucker Act," the Court of Claims has been clothed with equity powers sufficient to deal with the question of the reformation of a con- tract, so as to effectuate the full intention of the parties.*^ In United States v. Bliss, 172 U. S. 321, (1899), Justice Brewer said : "The claimant's right is not measured by equit- able considerations, but by the language of the statute. Beyond the statute the court cannot go. If equitably the claimant is en- titled to more compensation, it must be sought by direct appro- priation or further legislation of Congress. ''i Supp. Rev.- Stat., 913 ; McKenzie v. United States, 34 Ct. CI. 278.. (1899) ; United States v. Gorham, 165 U. S. 316, (1897). ""Ball V. Halsell, 161 U. S. 72, (1896). "United States v. Palmer, 128 U. S. 262, (1888). "South B. Iron Works v. United States, 34 Ct. CI. 174, (1899). ORGANIZATION. 33 The court has no jurisdiction to try cases growing out of the appropriation of property by the army and navy not author- ized by contract.*^ A claim for property accidentally destroyed in the bombard- ment and burning of a town, by the naval forces of the United States, is not of itself within the jurisdiction of the Court of Claims, inasmuch as the claim is not one "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."*^ The court has no jurisdiction over the revenue laws. The case of Nichols v. United States, 7 Wall, 122, (1868), held: "Cases arising under the Revenue Laws are not within the juris- diction of the Court of Claims. The prompt collection of the revenue, and its faithful application, is one of the most vital duties of the government. A policy to allow revenue questions to be dragged through the Court of Claims would be disastrous to the finances of the country." The court has no jurisdiction growing out of a treaty.*'' Concurrent Jurisdiction. The District Courts have concurrent jurisdiction with the Court of Claims where the claim does not exceed one thousand dollars, and the Circuit Courts have concurrent jurisdiction where the amount exceeds one thousand dollars, but does not exceed ten thousand dollars. In addition to the above classes of cases, other claims of minor importance are placed within the jurisdiction of the court by special acts of Congress. These special acts are readily found by referring to the United States Statutes. Who May Sue in Court of Claims. As a rule our citizens, natural persons or corporations, can sue in the Court of Claims providing the subject matter falls within the jurisdiction of the court; but aliens can not sue unless our citizens are allowed a similar privilege by the foreign gov- *-United States v. Winchester, 163 U. S. 244, (1896). "Perrin >■. United States, 12 Wall. 31S, (1870). "Gt West Co. V. United States, 112 U. S. 193, (1884). 34 UNITED STATES COURTS. ernments. Great Britain, France, Belgium, Italy, Prussia, Spain and Switzerland allow our citizens to prosecute suits against their governments, and hence, an alien owing allegiance to any of thest governments, may maintain an action in the Court of Claims, in any of those cases where the court would have juris- diction if a citizen was the claimant.*^ Procedure. The Court of Claims has authority to establish rules for its practice ; to punish for contempt ; appoint commissioners ; and to make all regulations necessary for the -proper performance of its duties. Suit is begun by filing a petition ; said petition must contain the names of the parties, nature of the claim, and upon what such claim is based. The general rules of common law pleading are to be ob- served in the Court of Claims, although the exact rules of special pleading are not . required. The substance will control rather than forms and technicalities. The common law rules of evidence apply unless a different rule is prescribed by statute.*® Forfeiture of Claims. Any person who practices fraud upon the United States in the prosecution of a claim, forfeits the same to the government. Appeals. An appeal to the Supreme Court is allowed, on behalf of the United States, from all judgments of the Court of Claims adverse to the United States, and on behalf of the plaintiff in any case where the amount in controversy exceeds three thou- sand dollars, or where his claim is forfeited to the United States, by the judgment of the court.*' \ Jury Trials. A person is not entitled to a jury trial in the Court of Claims unless Congress sees fit to grant such trial. The issues of law as well as of fact must be tried by the court, and the provisions of "United States v. O'Keefe, ii Wall. 178, (1870). "Peirce v. United States, i Ct. CI. 19S, (1865). '"Sanborn v. United States, 27 Ct. CI. 485, (1892). ORGANIZATION. 35 the statute, although not providing for a jury trial, have been held to be constitutional. Barment of Claims. Every claim against the United States cognizable by tne Court of Claims is barred unless the petition for such claim is filed in the court within six years after the claim first accrues, but barred claims are sometimes paid by action of Congress.*** Right of Petition. The creation of a Court of Claims does not prevent a person from applying to Congress. He can still do this, as the right to petition Congress is guaranteed by the Constitution of the United States. INTERSTATE COMMERCE COMMISSION. Art. I, Sec. 8, of the Constitution of the United States, gives to Congress the power "to regulate commerce with foreign nations and among the several states and with the Indian tribes," and acting by authority of this constitutional provision. Congress passed the Interstate Commerce Act, Feb. 4, 1887, and the act went into effect on April 5, of the same year. Judges. This court consists of five commissioners, who are appointed by the President, by and with the advice and consent of the Sen- ate, and they hold office for six years. Not more than three of the commissioners are to be appointed from the same political party. Terms. The principal office of the commission is in the city of Wash- ington, where its general sessions are held, but the commission may hold special sessions in any part of the United States. ■"Rev. Stat., Sec. 1069; Waddell v. United States, 25 Ct. CI. 323, (1890); Curtis V. United States, 34 Ct. CI. i, (1899). 36 UNITED STATES COURTS. Salaries. Each commissioner receives an annual salary of seven thou- sand five hundred dollars. Officers. The commission appoints a Secretary, who receives an an- nual salary of three thousand five hundred dollars. Also, the commission has authority to employ and fix the compensation of such other employees as it may find necessary to the proper per- formance of its duties. Conduct of Business. The commission may conduct its proceedings in such man- ner as will best conduce to the proper dispatch of business and to tne ends of justice. A majority of the commission constitutes a quorum, but no commissioner shall participate in any hearing or proceeding in which he has any pecuniary interest. Jurisdiction. The commission has jurisdiction over all common carriers engaged in the transportation of passengers or property wholly by railroad or partly by railroad and partly by water, when both are used under a common control, management, or arrangement for a continuous carriage or shipment, between states or states and territories; between states or territories and the District of Columbia; between places in the United States and any adjacent foreign country; between places in the United States when any part of the transportation is through an adjacent foreign coun- try; and to transportation of property from any place in the United States to a foreign country which is carried from such place to a port of transshipment, and to property shipped from a foreign country to any place in the United States, and carried to such place from a port of entry, either in the United States or an adjacent foreign country. The act does not apply to the transportation of persons or property wholly within a state and not shipped to or from a for- eign country. It extends to bridges and ferries used in con- ORGANIZATION. 37 nection with any railroad, and all charges for service rendered in connection therewith are to be reasonable and just. Giving preference to persons, localities or distance is unlawful. Also, the pooling of freights is prohibited.*^ The Court said in the case of Tex. & Pac. Ry. Co. v. Int. Com. Com, 162 U. S. 197, (1896) : "The conclusion that we draw from the history and language of the acts under consideration, and from the decisions of the American and English courts, are : I). That the purpose of the act is to promote and facilitate commerce by the adoption of regulations to make charges for transportation just and reasonable, and to forbid undue and un- reasonable preferences or discriminations; 2). That in passing upon questions arising under the act, the tribunal appointed to enforce its provisions, whether the commission or the court, is empowered to fully consider all the circumstances and conditions that reasonably apply to the situa- tion, and that, in the exercise of its jurisdiction, the tribunal may and should consider the legitimate interests as well of the car- rier companies as of the traders and shippers, and in considering whether any particular locality is subjected to an undue prefer- ence or disadvantage, the welfare of the community occupying the locality where the goods are delivered is to be considered as well as that of the communities which are in the locality of the place of shipment ; 3). That among the circumstances and conditions to be con- sidered, as well in the case of traffic originating in foreign ports as in the case of traffic originating within the limits of the United States, competition that affects^ rates should be considered, and in deciding whether rates and charges made at a low rate to secure foreign freights which would otherwise go by other competitive routes are or are not undue and unjust, the fair interests of the carrier companies and the welfare of the community which is to receive and consume the commodities are to be considered; 4). That if the Commission, instead of confining its action to redressing on complaint made by some particular person, firm, corporation, or locality, some specific disregard by common carriers of provisions of the act, pr9poses to promulgate general orders, which thereby become rules of action to the carrying com- '"Rhodes v. Iowa, 170 U. S. 412, (1898). 38 UNITED STATES COURTS. panics, the spirit and letter of the act require that such orders should have in view the purpose of promoting and facilitating commerce, and the welfare of all to be effected, as well the car- riers as the traders and consumers of the country." Carriers must print and publish schedules of their rates, and, also, furnish adequate facilities for transportation. The commission can deal with violations of the statute with- out any formal complaint, and it can determine whether existing rates are in conflict with the statute, but it has no power to pre- scribe rates, either maximum, minimum, or absolute.^" In the case of The Cin., New Orleans & Tex. Pac. Ry. Co. V. Interstate Com. Commission, 162 U. S. 184, (1896), the Court said: "The Interstate Commerce Commission is not empowered either expressly or by implication to fix rates in advance; but, subject to the prohibitions that their charges shall not be unjust or unreasonable, and that they shall not unjustly discriminate, so as to give undue preference or disadvantage to persons or traffic similarly circumstanced, the Act to Regulate Commerce leaves common carriers as they were at the common law, free to make special contracts looking to the increase of their business, to classify their traffic, to adjust and apportion their rates so as to meet the necessities of commerce, and generally to manage their important interests upon the same principles which are re- garded as sound, and adopted in other trades and pursuits." In the case of Interstate Com. Commission v. Atchison, T. & S. Ry. Co., 50 Fed. Rep. 295, (1892), the Court decided that to render lawful a greater charge for a shorter than a longer haul, it is not necessary to first obtain authority from the commission. Such charge is lawful if the circumstances and conditions are not in fact "substantially similar," and the carrier may deter- mine the question for himself, subject to a liability for violating the act, if, on investigation, the facts be found against him.^^ In the case of Int. Com. Com. v. B. & O. Ry., 145 U. S. 263, (1892), the Court reviewed the commission as follows: "Prior to the enactment of the act of February 4, 1887, to regulate com- merce, commonly known as the Interstate Commerce Act, 24 Stat. 379, c. 104, railway traffic in this country was regulated by the principles of the common law applicable to comfnon carriers, =°Int. Com. Comm. v. Ala. Ry, 168 U. S. 144, (1897). °'D. G. H. Ry. V. Int. Com. Comm., 74 F. R. 803, (1896). ORGANIZATION. 39 which demanded little more than that they should carry for all persons who applied, in the order in which the goods were deliv- ered at the particular station, and that their charges for trans- portation should be reasonable. It was even doubted whether they were bound to make the same charge to all persons for the same service; Fitchburg Railroad Co. v. Gage, 12 Gray, 3;,3; Baxendale v. Eastern Counties Railway Co., 4 C. B. (N. S.) 63; Great Western Railway Co. v. Sutton, L. R. 4 H. L. 226, 237; Ex Parte Benson, 18 South Car. 38; Johnson v. Pensacola Rail- way Co., 16 Florida, 623; though the weight of authority in this country was in favor of an equality of charge to all persons for similar services. In several of the states acts had been passed with the design of securing the public against unreasonable and unjust discriminations ; but the inefficacy of these laws beyond the lines of the state, the impossibility of securing concerted action between the legislatures toward the regulation of traffic between the several states, and the evils which grew up under a policy of unrestricted competition, suggested the necessity of legislation by Congress under its constitutional power to regu- late commerce among the several states. These evils ordinarily took the shape of inequality of charges made, or of facilities fur- nished, and were usually dictated by or tolerated for the promo- tion of the interests of the officers of the corporation or of the corporation itself, of for the benefit of some favored persons at the expense of others, or of some particular locality or commun- ity, or of some local trade or commercial connection, or for the destruction or crippling of some rival or hostile line. The principal objects of the Interstate Commerce Act were to secure just and reasonable charges for transportation ; to pro- hibit unjust discriminations in the rendition of like services un- der similar circumstances and conditions; to prevent undue or unreasonable preferences to persons, corporations or localities ; to inhibit greater compensation for a shorter than for a longer distance over the same line; and to abolish combinations for the pooling of freights. It was not designed, however, to prevent competition between different roads, or to interfere with the cus- tomary arrangements made by railway companies for reduced fares in consideration of increased mileage, where such reduction did not operate as an unjust discrimination against other persons travelling over the road. In other words, it was not intended to ignore the principle that one can sell at wholesale cheaper than at 4U UNITED STATES COURTS. retail. It is not all discriminations or preferences that fall within the inhibition of the statute; only such as are unjust and un- reasonable. For instance, it would be obviously unjust to charge A a greater sum than B for a single trip from Washington to Pitts- burg; but if A agrees not only to go but to return by the same route, it is no injustice to B to permit him to do so for a reduced fare, since the services are not alike, nor the circumstances and conditions substantially similar, as required by section 2, to make an unjust discrimination. Indeed, the possibility of just discrim- inations and reasonable preferences is recognized by these sec- tions, in declaring what shall be deemed unjust. We agree, how- ever, in its contention that a charge may be perfectly reasonable under section i, and yet may create an unjust discrimination or an unreasonable preference under sections 2 and 3. As was said hy Mr. Justice Blackburn, in Great Western Railway Co. v. Sut- ton, L. R. 4 H. L. 226, 239 : "When it is sought to show that the charge is extortionate as being contrary to the statutable ob- ligation to charge equally, it is immaterial whether the charge is reasonable or not; it is enough to show that the company car- ried for some other person or class of persons at a lower charge during the period throughout which the party complaining was charged more under the like circumstances." The question involved in this case is, whether the principle above stated as applicable tO' two individuals applies to the pur- chase of a single ticket covering the transportation of ten or more persons from one place to another. These are technically known as party-rate tickets, and are issued principally to theatrical and operatic companies for the transportation of their troupes. Such ticket is clearly neither a "mileage" nor an "excursion" ticket within the exception of section 22 ; and upon the testimony in this case it may be doubtful whether it falls within the definition of "commutation tickets," as those words are commonly understood among railway officials. The words "commutation ticket" seem to have no definite meaning. They are defined by Webster (edition of 1891) as a "ticket, as for transportation, which is the evidence of a contract for service at a reduced rate." If this definition be applicable here, then it is clear that it would include a party-rate ticket. In the language of the railway, however, they are principally, if not wholly, used to designate tickets for transportation during a limited time between neighboring towns or cities and suburban towns. The party-rate ticket upon the ORGANIZATION. 41 defendant's road is a single ticket issued to a party of ten or more, at a fixed rate of two cents per mile, or a discount of one-third from the regular passenger rate. The reduction is not made by way of secret rebate or drawback, but the rates are scheduled, posted and open to the public at large. But, assuming the weight of the evidence in this case to be that the party-ticket is not a "commutation ticket," as that word was commonly understood at the time of the passage of the act, but is a distinct class by itself, it does not necessarily follow that such tickets are unlawful. The unlawfulness defined by sections 2 and 3 consists either in an "unjust discrimination'' or an "undue or unreasonable preference or advantage," and the object of sec- tion 22 was to settle beyond all doubt that the discrimination in favor of certain persons therein named should not be deemed un- just. It does not follow, however, that there may not be other classes of persons in whose favor a discrimination may be made without such discrimination being unjust. In other words, this section is rather illustrative that exclusive. Indeed, many, if not all, the excepted cases named in section 22 are those, which in the absence of this section, woyld not necessarily be held the sub- ject of an unjust discrimination, if more favorable terms were ex- tended to them than to ordinary passengers. Such, for instance, are the property of the United States, state or municipal govern- ment ; destitute and homeless persons transported free of charge by charitable societies ; indigent persons transported at the ex- pense of municipal governments ; inmates of soldiers' homes, etc., and the ministers of religion, in favor of whom a reduction of rates had been made for many years before the passage of the act. It may even admit of serious doubt whether, if the mileage, excursion or commutation tickets had not been mentioned at all in this section, they would have fallen within the prohibition of sections 2 and 3. In other words, whether the allowance of a re- duced rate to persons agreeing to travel one thousand miles, or to go and return by the same road, is a "like and contemporaneous service under substantially similar conditions and circumstances" as is rendered to a person who travels upon an ordinary single- trip ticket. If it be so, then under state laws forbidding unjust discriminations, every such ticket issued between points within the same state must be illegal. In view of the fact, however, rhat every railway company issues such tickets; that there is no re- ported case, state or federal, wherein their illegality has been 42 UNITED STATES COURTS. questioned ; that there is no such case in England ; and that the practice is universally acquiesced in by the public, it would seem that the issuing of such tickets should not be held an unjust dis- crimination or an unreasonable preference to the persons travel- ing upon them. But whether these party-rate tickets are commutation tickets proper, as known to railway officials, or not, they are obviously within the commutating principle. As stated in the opinion of Judge Sage in the court below : "The difference between com- mutation and party-rate tickets is, that commutation tickets are issued to induce people to travel more frequently, and party-rate tickets are issued to induce more people to travel. There is, how- ever, no difference in principle between them, the object in both cases being to increase travel without unjust discrimination, and to secure patronage that would not otherwise be secured." The testimony indicates that for many years before the pas- sage of the act it was customary for railroads to issue tickets at reduced rates to passengers making frequent trips, trips for long distances, and trips in parties of ten or more, lower than the reg- ular single fare charged between the same points ; and such lower rates were universally made at the date of the passage of the act. As stated in the answer, to meet the needs of the commercial trav- eller the thousand-mile ticket was issued ; to meet the needs of the suburban resident or frequent traveller, several forms of tickets were issued. For example, monthly or quarterly tickets, good for any number of trips within the specified time ; and ten, twenty- five or fifty-trip tickets, good for a specified number of trips by one person, or for one trip by a specified number of persons ; to accommodate parties of ten or more, a single ticket, one way or round trip, for the whole party, was made up by the agent on a skeleton form furnished for that purpose; to accommodate ex- cursionists travelling in parties too large to use a single ticket, special individual tickets were issued to each person. Tickets good for a specified number of trips were issued between cities where travel was frequent. In short, it was an established prin- ciple of the business, that whenever the amount of travel more than made up to the carrier for the reduction of the charge per capita, then such reduction was reasonable and just in the inter- ests of both the carrier and the public. Although the fact that railroads had long been in the habit of issuing these tickets would be by no means conclusive evidence that they were legal, since the ORGANIZATION. 43 main purpose of the act was to put an end to certain abuses which had crept into the management of railroads, yet Congress may be presumed to have had those practices in view, and not to have designed to interfere with them, except so far as they were unreasonable in themselves or unjust to others. These tickets, then, being within the commutation principle of allowing reduced rates in consideration of increased mileage, the real question is, whether this operates as an undue or unreasonable preference or advantage to this particular description of traffic, or an unjust discrimination against others. If, for example, a railway makes to the public generally a certain rate of freight, and to a partic- ular individual residing in the same town a reduced rate for the same class of goods, this may operate as an undue preference, since it enables the favored party to sell his goods at a lower price than his competitors, and may even enable him to obtain a complete monopoly of that business. Even if the same reduced rate be allowed to every one doing the same amount of business, such discrimination may, if carried too far, operate unjustly upon the smaller dealers engaged in the same business, and enable the larger ones to drive them out of the market. The same result, however, does not follow from the sale of a ticket for a number of passengers at a less rate than for a single passenger; it does not operate to the prejudice of the single pas- senger, who cannot be said to be injured by the fact that another is able in a particular instance to travel at a less rate than he. If it operates injuriously toward any one it is the rival road, which has not adopted corresponding rates ; but, as before observed, it was not the design of the act to stifle competition, nor is there any legal injustice in one person procuring a particular service cheaper than another. If it be lawful to issue these tickets, then the Pitts- burg, Chicago and St. Louis Railway Company .has the same right to issue them that the defendant has, and may compete with it for the same traffic ; but it is unsound to argue that it is unlaw- ful to issue them because it has not seen fit to do so. Certainly its construction of the law is not binding upon this court. The evi- dence shows that the amount of business done by means of these party-rate tickets is very large ; that theatrical and operatic com- panies base their calculation of profits to a certain extent upon the reduced rates allowed by railroads; and that the attendance at conventions, political and religious, social and scientific, is, in a great measure, determined by the ability of the delegates to go 44 UNITED STATES COURTS. and come at a reduced charge. If these tickets were withdrawn, the defendant road would lose a large amount of travel, and the single-trip passenger would gain absolutely nothing. If a case were presented where a railroad refused an application for a party-rate ticket upon the ground that it was not intended for the use of the general public, but solely for theatrical troupes, there would be much greater reason for holding that the latter were favored with an undue preference or advantage. In order to constitute an unjust discrimination under sec- tion 2, the carrier must charge or receive directly from one per- son a greater or less compensation than from another, or must accomplish the same thing indirectly by means of a special rate, rebate or other device; but in either case it must be for a "like and contemporaneous service in the transportation of a like kind of traffic, under substantially similar circumstances and condi- tions." To bring the present case within the words of this sec- tion, we must assume that the transportation of ten persons on a single ticket is substantially identical with the transportation, of one, and, in view of the universally accepted fact that a man- may buy, contract or manufacture on a large scale cheaper pro- portionately than upon a small scale, this is impossible. In this connection we quote with approval from the opinion of Judge Jackson in the court below : "To come within the in- hibition of said sections, the differences must be made under like conditions ; that is, there must be contemporaneous service in the transportation of like kinds of traffic under substantially the same circumstances and conditions. In respect to passenger traffic, the positions of the respective persons, or classes, between whom differences in charges are made, must be compared with leach other, and there must be found to exist substantial identity of situation and of service, accompanied by irregularity and par- tially resulting in undue advantage to one, or undue disadvantage to the other, in order to constitute unjust discrimination." The English Traffic Act of 1854 contains a clause similar to section 3 of the Interstate Commerce Act, that "no such com- pany shall make or give any undue or unreasonable preference or advantage to or favor of any particular person or company, or any particular description of traffic, in any respect whatsoever, nor shall any company subject any particular person or company, or any particular description of traffic, to any undue or unreasonable prejudice or disadvantage in any respect whatsoever." ORGANIZATION. 45 In Hozier v. Caledonian Railway, 17 Sess. Cas. (2d Series ;> 302, (S. C. I Nev. & Mach. Railway Cases, 27), complaint was made by one who had frequent occasion to travel, that passen- gers from an intermediate station between Glasgow and Edin- burgh were charged much greater rates to those places than were charged to other through passengers between these termini ; but the Scotch Court of Session held that the petitioner had not shown any title or interest to maintain the proceedings; his only com- plaint being that he did not choose that parties travelling from Edinburgh to Glasgow should enjoy the benefit of a cheaper rate of travel than he himself could enjoy. "It provides," said the court, "for giving undue preference to parties pari passu in the matter, but you must bring them into competition in order to give them an interest to complain." This is in substance holding that the allowance of a reduced through rate worked no injustice to passengers living on the line of the road, who were obliged to pay at a greater rate. So, in Jones v. Eastern Counties Railway, 3 C. B. (N. S.) 718, the court refused an injunction to compel a railway company to issue season tickets between Colchester and London upon the same terms as they issued them between Har- wich and London, upon the mere suggestion that the granting the latter, the distance being considerable greater, at a much lower rate than the former, was an undue and unreasonable preference -of the inhabitants of Harwich over those of Colchester. Upon the other hand, in Ransome v. Eastern Counties Railway, i C. B. (N. S.) 437, where it was manifest that a railway company charged Ipswich merchants, who sent from thence coal which had come thither by sea, a higher rate for the carriage of their coal than they charged Peterboro' merchants, who had made ar- rangements with them to carry large quantities over their lines, and that the sums charged the Peterboro' merchants were fixed so as to enable them to compete with the Ipswich merchants, the court granted an injunction, upon the ground of an undue prefer- ence to the Peterboro' marchants, the object of the discrimma- tion being to benefit the one dealer at the expense of the other, by depriving the latter of the natural advantages of his position. In Oxlade v. Northeastern Railway, i C. B. (N. S.) 454, a rail- way company was held justified in carrying goods for one per- son for a less rate than that at which they carried the same description of goods for another, if there be circumstances which render the cost of carrying the goods for the former less than 46 UNITED STATES COURTS. the cost of carrying them for the latter, but that a desire to intro- duce northern coke into a certain district was not a legitimate ground for making special agreements with different merchants for the carriage of coal and coke at a rate lower than the ordin- ary charge, there being nothing to show that the pecuniary inter- ests of the company were affected; and that this was an undue preference. In short, the substance of all these decisions is that railway companies are only bound to give the same terms to all persons alike under the same conditions and circumstances, and that any fact which produces an inequality of condition and a change of circumstances justifies an inequality of charge. These traffic acts do not appear to be as comprehensive as our own, and may jus- tify contracts which with us would be obnoxious to the long and short haul clause gf the act, or would be open to the charge of unjust discrimination. But so far as relates to the question of "undue preference," it may be presumed that Congress, in adopt- ing the language of the English act, had in mind the construc- tions given to these words by the English courts, and intended to incorporate them into the statute. McDonald v. Hovey, iiu U. S. 619. There is nothing in the objection that party-rate tickets afford facilities for speculation, and that they would be used by ticket brokers or "scalpers" for the purpose of evading the law. The party-rate ticket, as it appears in this case, is a single ticket covering the transportation of ten or more persons, and would be much less available in the hands of a ticket broker than an ordinary single ticket, since it could only be disposed of to a per- son who would be willing to pay two-thirds of the regular fare for that number of people. It is possible to conceive that party- rate tickets may, by a reduction of the number for whom they may be issued, be made the pretext for evading the law, and for the purpose of cutting rates, but should such be the case, the courts would have no difficulty in discovering the purpose for which they were issued, and applying the proper remedy. Upon the whole, we are of the opinion that party-rate tick- ets, as used by the defendant, are not open to the objections found by the Interstate Commerce Commission, and are not in violation of the act to regulate commerce." ORGANIZATION. 47 Procedure. The commission has authority to inquire into the management of the business of all common carriers subject to the provisions of the act, and it is to keep itself informed as to the manner and method in which the same is conducted, and shall have the right to obtain from common carriers full and complete information necessary to enable it to perform the duties for which it was cre- ated. It is the duty of the District Attorney to institute suit on the application of the commission, and the latter may subpoena wit- nesses and compel the production of books, papers, etc., or other evidence required in the case.°- Complaints of violations may be made to the commission by petition, and the charges in the petition are forwarded by the commission to the carrier, who is called upon to satisfy the com- plaint or answer the same within a reasonable time. If reparation is made the carrier is relieved from liability for that particular violation. If the carrier does not satisfy the com- plaint within the time specified, it is the duty of the commission to investigate the case. If, on investigation, the commission finds that the law has been violated, such carrier shall be notified and required to re- frain from such violation and make reparation to the injured party. If the carrier refuses to comply with the request of the com- mission, the commission, or any one interested, may apply in a summary way by petition to the Circuit Court of the United States sitting in equity in the proper district, which may hear and determine the matter on short notice without formal plead- ings, and on such hearing the report of the commission is to be prima facie evidence of the facts therein stated.''^ In brief, the different steps may be summed up as follows ; i). A petition, corresponding with the petition or bill in equity, is filed. 2). Notice is issued for, and service thereof made upon, the defendant or party complained of, conforming to, and correspond- ""Counselman v. Hitchcock, 142 U. S. 547, (1892); Brown v. Walker, 161 U. S. 591, (1896). '"Int. Com. Comm. v. Lehigh Ry., 49 Fed. Rep. 177, (1892) ; Int. Cpm. Comm. V. Louis. & N. Ry. Co., 73 Fed. Rep, 409, (1896). 48 UNITED STATES COURTS. ing with, the process of subpoena in courts of the United States, requiring such defendant to satisfy the complaint, or to appear and answer the same. 3). The filing of defendant's answer, as in equity, which makes up or forms the issue or issues. 4). The issuance of subpoenas requiring the attendance of witnesses, or for the taking of depositions, upon the issues made by the answer. 5 ) . The assignment of a time and place for the hearing and where the parties appear in person or by attorney, witnesses are sworn and examined and arguments are made, orally or by brief. 6). When the conclusion is reached, a written report cor- responding in all respects to an opinion is delivered, filed and published. 7). The order of the commission is recorded by its secretary as decrees in equity are recorded by clerks of the court, and 8). A copy of such order, under the seal of the commission, issues to the defendant requesting obedience thereto. On the hearing in the Circuit Court, the court will render whatever judgment is necessary to accomplish the object of the statute or law creating the commission. A jury trial may be had when such is needed, or the parties may waive a jury. If judgment is for party complaining, he is entitled to a reasonable counsel's fee, and collected as part of the costs of the case. Any carrier, or, if a corporation, any officer, etc., thereof, guilty of an infraction of the act, is guilty of a misdemeanor, and subject to a fine of not to exceed five thousand dollars, or if the offense is an unlawful discrimination in rates, to imprisonment for not to exceed two years, or both, in the discretion of the court. The provisions of the act are in addition to all remedies by common law or by statute. It is not necessary that the person making a complaint before the commission should have a pecun- iary interest in the violation of the statute complained of ; if the public is injured that is sufficient to move the commission to action. The carrier must furnish all its evidence on the hearing be- fore the commission, and not wait till tlje case reaches the Circuit Court. No appeal now lies to the Supreme Court from decisions of ORGANIZATION. 49 the commission, but cases brought to Circuit Court by Int. Com- merce Commission may be appealed to Circuit Court of Appeals." Circuit Courts have jurisdiction over the Interstate Commerce Commission regardless of the amount involved." In the case of Ky. & I. Bridge Co. v. Louisville & N. R. R. Co., 37 Fed. Rep. 567, (1889), the court held as follows: "While the commission possesses and exercises certain powers and func- tions resembling those conferred upon and exercised by regular courts, it is wanting in several essential constituents of a court. Its action or conclusion upon matters of complaint brought be- fore it for investigation, and which the act designates as the "recommendation," "report," "order," or "requirement" of the board is neither final nor conclusive ; nor is the commission in- vested with any authority to enforce its decision or award. With- out reviewing in detail the provisions of law, we are clearly of the opinion that the commission is invested with only adminis- trative powers of supervision and investigation, which fall far short of making the board a court, or its action judicial, in the proper sense of the term. The commission hears, investigates and reports upon complaints made before it, involving alleged v?olations of or omissions of duty under the act; but subsequent judicial proceedings are contemplated and provided for, as the remedy for the enforcement, either by itself or the party inter- ested, of its order or report in all cases where the party com- plained of or against whom its decision is rendered does not yield voluntary obedience thereto. The functions of the com- mission are those of referees or special commissioners, appointed to make preliminary investigation of and report upon matters for subsequent judicial examination and determination. In re- spect to inter-state commerce matters covered by the law, the commission may be regarded as the general referee of each and every Circuit Court of the United States, upon which the jurisdic- tion is conferred of enforcing the rights, duties, and obligations recognized and imposed by the act. It is neither a Federal Court under the Constitution, nor does it exercise judicial powers, nor do its conclusions possess the efficacy of judicial proceedings. This Federal Commission has assigned to it the duties, and per- forms for the United States, in respect to that inter-state com- "Int. Com. Comm. v. Atch. Ry. Co., 149 U. S. 264, (1893). '-'^2^ Stat, at Large, 379. 60 UNITED STATES COURTS. merce committed by the Constitution to the exclusive care and jurisdiction of Congress, the same functions which State Com- missioners exercise in respect to local or purely internal com- merce, over which the states appointing them have exclusive con- trol." COURT OF PRIVATE LAND CLAIMS. Jurisdiction. The purpose of this court is to settle unconfirmed land grants within the territory derived by the United States from the Repub- lic of Mexico, and now embraced within the territories of New Mexico and Arizona, and the states of Utah, Nevada, Colorado, and Wyoming. Judges. This court consists of a Chief Justice and four Associate Justices. How Chosen. The judges are appointed by the President, by and with the advice and consent of the Senate, and hold office for a definite time. Salaries. The Chief Justice and Associate Justices each receive a com- pensation of five thousand dollars per year, payable monthly, and their necessary traveling and personal expenses while en- gaged in the performance of their duties. Officers. The court appoints a Clerk, at a salary of two thousand dol- lars a year, who shall attend all the sessions of the court, and a Deputy Clerk, where regular terms of the court are held; at a salary of eight hundred dollars a year. The court appoints a Stenographer, at a salary of fifteen hundred dollars a year, who shall attend all the sessions of the court and perform the duties ORGANIZATION. 51 required of him by the court. Also, the United States Marshal for the district in which the court is held shall serve any process of said court placed in his hands for that purpose, and he is to attend the court in person or by deputy when so directed by the court. There is appointed by the President, by and with the advice and consent of the Senate, a competent attorney, learned in the law ,who shall represent the United States in said court. Such attorney shall receive a salary of three thousand five hundred dollars per year, payable monthly, and his necessary traveling and personal expenses while engaged in the discharge of his duties. The court appoints some one skilled in the Spanish and Eng- lish languages, to act as interpreter and translator in said court. Such person shall receive a salary of one thousand five hundred dollars per year, payable monthly, and his necessary traveling and personal expenses while engaged in the discharge of his duties. Terms. The court holds such sessions in the states and territories mentioned as shall be needful for the purposes thereof, and shall give notice of the times and places of the holding of such sessions, by publication in both English and Spanish languages. Appeal. The party against whom the court shall in any case decide shall have the right to appeal to the Supreme Court of the United States. The powers and functions of this court are to cease June 30, 1902, and all the records are to be returned to and filed in the Department of the Interior.^^ This court is a local one and needs no further consideration in a work of this kind. '"U. S. Stat, for 1899- 1900. p. 132. 52 UNITED STATES COURTS. TERRITORIAL COURTS. GrOTernment of the Territories. Congress has full and complete legislative authority over the people of the territories, and all the departments of the territorial government. The power of Congress over the territories arises from the grant of power in the Constitution "to make needed rules and regulations respecting territories," also, from the right of the national government to "acquire territory" under its war and treaty powers. °^ The territories are not states, but it is intended that some time in the future they will become states. The officers of the territories are appointed by the President, and the acts of the legislatures are liable to be overruled by Congress.'^ The people of a territory, exce'pt as Congress shall provide, are not of right entitled to any participation in political authority, until the territory becomes a state. As a general rule. Congress invests the people of the territories with a certain amount of local self-government, by authorizing them to elect their own legisla- tive bodies. In that way, they exercise the powers of taxation, police power, and eminent domain. If a territory is acquired from a foreign power with a defacto government in full operation, this government will continue, with the presumed assent of the people, and in so far as it is not inconsistent with the Federal Constitu- tion, until Congress provides a form of government for the ter- ritory.^^ Courts in General. The territorial courts are not constitutional courts in which the judicial power conferred by the Constitution on the general government can be deposited. They are legislative courts, or congressional courts, created under the power of Congress to make all needed rules and regulations respecting the territory be- longing to the United States.^" "Shively v. Bowlby, 152 U. S. i, (1894) ; Mormon Church v. United States, 136 U. S. i, (1890). ''"Am. Ins. Co. v. Canter, i Pet. 511, (1828). ""Ferris v. Higley, 20 Wall. 375, (1874). ""McAllister v. United States, 141 U. S. 174, (1890). ORGANIZATION. 53 The laws of Congress have always provided for the Consti- tution of appropriate courts in the territories. Congress may in- vest the courts of the territories with as much or as little jurisdic- tion as it may see fit. And while Congress creates the territorial courts and defines their jurisdiction, it leaves to the territorial legislature the power to regulate their practice and form of pro- cedure. For the act creating the Territory of Hawaii and pro- viding courts for the same, see''^ When a territory becomes a state, that ends the power of the territorial courts, and all cases pending in the territorial courts are transferred to the proper courts under the state organization. The territories usually have the following courts : i). Supreme Court. 2). District Courts. 3). Probate Courts. 4). Justices of the Peace. 5). Municipal Courts. The Supreme Court of every territory consists of a Chief Justice and generally two Associate Justices, any two of whom constitute a quorum, and they hold office for four years, and until their successors are appointed and qualified. Each member of this court receives a salary of four thousand dollars per year, to be paid monthly. Some territories have more than two associate Justices. There is one term of the Supreme Court each year at the seat of the government of the territory. Every territory is divided into three districts, and a District Court is held in each district by one of the judges of the Supreme Court. The judges are assigned by order of the territorial Supreme Court, and each judge must reside in the district to which he is assigned. The chambers of the District Judge may be held while he is in attendance upon the bench of the Supreme Court, even though the place where the Supreme Court is in session is without the territorial limit of his district. The inferior courts of a territory are the Probate Courts and courts of the justices of the peace. They are usually provided by Congress. "U. S. Stat. 1899-1900, p. 141 ; Hornbuckle v. Toombs, 18 Wall. 648, (1873). 54 UNITED STATES COURTS. The territorial legislature may create municipal courts for the enforcement of municipal regulations. When Congress enumerates the courts in which the judicial power shall be vested, it is not competent for a territorial legisla- ture to create any other judicial officers or vest judicial powers in any other tribunal. The justices of the territorial Supreme Court are appointed by the President, by and with the advice and consent of 1jie Sen- ate. The judges are subject to removal but cannot be impeached by Congress. The Supreme Court appoints its own clerk, who holds his office at the pleasure of the court. There is appointed in each territory, by the President, an attorney, who looks after the interests of the United States. He holds office for four years. There is also a marshal, who holds for four years. Jurisdiction. The Supreme Court of a territory has both original and ap- pellate jurisdiction. The District Courts of each territory have two distinct juris- dictions : I ) . As territorial courts, they administer the local law of the territorial government, and are vested with plenary municipal jurisdiction. 2). As vested with jurisdiction to administer the laws of the United States, they have all the authority of the United States Circuit and District Courts, and a portion of each term is directed to be appropriated to the trial of such cases. In cases arising under the latter jurisdiction, the practice and method of proceed- ing is the same as in cases arising under the laws of the territory. District Courts have both chancery and common law jurisdiction, and they have the same jurisdiction in admiralty cases as is vested in the Federal courts."^ The jurisdiction of the inferior courts of a territory is gen- erally prescribed by Congress, and it is beyond the power of a territorial legislature to extend or modify it. By Rev. Stat. 702, and by the act of March 3, 1885, final judgments and decrees of the Supreme Courts of the territories, ""City of Panama, loi U. S. 453, (1879) ; Ainsa v. N. M. & A. Ry., I7S U. S. 76, (1899). ORGANIZATION. 55 where the matter in dispute, exclusive of costs, exceeds the sum of five thousand dollars, may be reviewed in the Supreme Court of the United States, as if they were final judgments or decrees of a Circuit Court.''^ The Act qf Congress of 1891, provides in addition that the Circuit Court of Appeals, "in cases in which judgments of tht Circuit Court of Appeals are made final by this act," shall have the same appellate jurisdiction over the Supreme Court of the territories that they have over the Circuit and District Courts."* All appeals to the Supreme Court of the United States from judgments or decrees of territorial courts, must, in jury trials, be by writ of error. In other cases by appeal."^ Appeals are allowed from the territorial courts upon writs of habeas corpus involving the question of personal freedom. In capital cases and in cases of infamous crime there is no appeal from the territorial courts, but in cases of minor crimes there is an appeal to the Circuit Court of Appeals. "" Practice. The practice, pleading, and forms and mode of proceeding in the territorial courts, subject to any regulation that Congress may deem expedient, are left to the action of the territorial legis- latures, and to regulations that may be adopted by the courts themselves."^ COURTS OF THE DISFRICT OF COLUMBIA. The courts of the District of Columbia are established and organized by Congress. The two principal courts established for the district are (i) Court of Appeals, (2) Supreme Court. Court of Appeals. In 1893, a Court of Appeals was established in the District of Columbia. The Court of Appeals is composed of one Chief Justice and two Associate Justices, who are appointed by the "'Young V. Amy, 171 U. S. 179, (1898). "Shute V. Keyser, 149 U. S. 649, (1893)- "■Farsnworth v. Mont., 129 U. S. 104, (1889). ""Folsom V. United States, 160 U. S. 121, (1895). "'Hornbuckle v. Toombs 18 Wall. 648, (1873) ; Holloway v. Dunham, 170 U. S. 61S, (If "' 56 UNITEP STATES COURTS. President by and with the advice and consent of the Senate, and they hold office during good behavior. The Chief Justice receives a salary of six thousand five hundred dollars, and the Associate Justices each receive a salary of six thousand dollars. Officers. The officers are a Clerk, Crier and Messenger. The Clerk is appointed by the court and receives a salary not to exceed three thousand dollars. The Crier is appointed by the court, and his compensation is not to exceed one hundred dollars a month. The Messenger is appointed by the court and is to receive sixty dol- lars per month. The court holds a term every month in the year except in the months of July and August. If any member of the court is absent on account of illness or any other cause, a mem- ber of the Supreme Court of the District of Columbia may fill the vacancy. But no justice of the Supreme Court of the District of Columbia shall, while on the bench of said Court of Appeals, sit in review of any judgement, decree or order which he shall have himself entered or made. This has reference to cases ap- pealed from the Supreme Court of the District of Columbia to the Court of Appeals of the District of Columbia. The marshal of the United States for the District of Colum- bia shall execute the order and processes of the Court of Appeals in the same manner as he now executes those of the Supreme Court of the District of Columbia. The Court of Appeals is the highest court in the District, and appeals lie in certain cases to the Supreme Court of the United States. Supreme Court. The Supreme Court of the District of Columbia was estab- lished by Congress in 1863. It now consists of a Chief Justice and five Associate Justices. They are appointed by the President, by and with the advice and consent of the Senate, and hold office during good behavior. The justices receive an annual salary of five thousand dollars each. There are three terms of court held annually. The Supreme Court is next in order to the Court of Appeals, and cases may be appealed from this court to the Court of Appeals. The Supreme Court has the same powers and juris- diction as the Circuit Courts of the United States. There are other courts provided for the District, but they are not of such importance as to demand attention here. ORGANIZATION. 57 MILITARY COURTS. By authority of the Constitution of the United States, Con- gresshas power to estabhsh MiUtary and Naval Courts, or pro- vide for their being ordered, and to give such courts jurisdiction, and prescribe and regulate their procedure.*^ The Military Courts may be divided into two classes: (i) Courts 2^Iartial, (2) Military Commissions. Courts Martial, The jurisdiction of these courts is limited to such persons as are subject to the government of the articles of war, that is, those who are enrolled in the service of the United States, or liable to be so enrolled. If a Court Martial inflicts punishment upon a person not sub- ject to its jurisdiction nor amenable to the military law, he has a remedy at common law by suit against all the persons responsible for the action taken against him.'"' Military Commissions. Courts Martial are for the government of the military and naval forces, and exist in time of peace as well as in war. Mil- itary Commissions are established in time of war, or where mar- tial law has been declared. These courts deal with the acts of private individuals when they come in conflict with the military government, or where the regular courts of the country are pre- vented, by the war or otherwise, from discharging their proper functions of trying offenses against the general law. Congress established courts of this kind in the Southern states during the civil war as fast as the territory came into the control of the Fed- eral forces. Similar courts are at present established in the ter- ritory acquired from Spain. Jurisdiction. There are under the Constitution three kinds of military jurisdiction: One to be exercised both in peace and war; another 'o be exercised in time of foreign war without the boundaries of '"Martin v. Mott, 12 Wheat. 19, (1827). ''"Luther v. Borden, 7 How. i, (1849). 58 UNITED STATES COURTS. the United States, or in time of rebellion and civil war within states or districts occupied by rebels treated as belligerents ; and a third to be exercised in time of invasion or insurrection within the limits of the United States, or during rebellion within the lim- its of states maintaining adhesion to the national government, when the public danger requires its exercise. The first of these may be called jurisdiction under Military Law, and is found in acts of Congress prescribing rules and articles of war, or otherwise providing for the government of the national forces ; the second may be distinguished as Military Gov- ernment, superseding, as far as may be deemed expedient, the local law, and exercised by the rhilitary commander under the direction of the President, with the express or implied sanction of Con- gress ; while the third may be denominated Martial Law Proper, and is called into action by Congress, or temporarily, when the action of Congress cannot be invited, and in the case of justify- ing or excusing peril, by the President, in times of insurrection or invasion, or of civil or foreign war, within districts or local- ities where ordinary law no longer adequately secures public safety and private rights.^" CONSULAR COURTS. Congress has provided for courts in non-Christian countries, which are called Consular Courts. The establishment of these courts is authorized by treaties made with foreign countries, granting rights of ex-territoriality to the United States for this purpose. The object is to withdraw citizens of the United States from the operation of crude and barbarous systems of justice there prevailing. These courts are presided over by the consul at the port where the court is held. Consuls have jurisdiction of contro- versies, difficulties, or disorders arising at sea or in the waters or ports of other nations between the master or officer and any of the crew, or between any of the crew themselves, of any vessel belonging to the nation represented by such consular officer, pro- vided no treaty stipulation contravenes such action. The United ™Ex parte Milligan, 4 Wall. 2, (1866). ORGANIZATION. 59 States has such courts in China, . Japan, Siam, Madagascar, Per- sia, Tripoli, Tunis, Morocco, and Muscat. Such courts did exist in Egypt and Turkey, but were suspended under an act of Con- gress accepting the jurisdiction of the tribunals established by those countries.''^ The ministers and consuls of the United States, in those countries, are empowered to arraign and try all citizens of the United States charged with offenses against law committed in such countries, respectively, and to sentence the offenders in the manner authorized. They can also execute the provisions of tne treaties in regard to civil rights, whether of person or property. Their jurisdiction in both civil and criminal matters shall, in all cases, be exercised and enforced in conformity with the laws of the United States, which are hereby, so far as necessary to ex- ecute such treaties, and so far as they are suitable to carry the same into effect, respectively adopted. But when the United States laws are not adopted, the common law and the law of equity and admiralty shall be extended in like manner over such citizens and others in those countries. And in case this does not answer the ends of justice, then such officers may decree such regulations as shall supply the defects. In some cases an appeal is allowed to the minister. Ministers are allowed jurisdiction over certain offenses against foreign governments committed by citizens of the United States, provided no treaty stipulation pre- vents. Punishments are inflicted by fines and imprisonment. The minister can also carry out the execution of criminals, and punish for contempt. Marshals of Consular Courts are appointed by the President. The regulations of these courts are established by the ministers, who make the regulations public, and transmit them to the United States Secretary of State. '- A judgment of a Consular Court, passing sentence of death upon an American seaman for murder committed by him within the jurisdiction of the court, was held valid, notwithstanding there was no indictment nor trial by jury. The Constitution, it was said, was made for the United States, and not for foreign coun- tries, and can have no operation outside the limits of the United States.'^ "U. S. Rev. Stat, i Supp. 6. "i2 Stat, at Large 72; Dainese v. Hale, 91 U. S. 13, (1875). "In re Ross, 140 U. S. 453, (1891). 60 UNITED STATES COURTS. UNITED STATES COMMISSIONERS. The Revised Statutes of the United States, Sec. 627, gave to each Circuit Court of the United States power to appoint in dif- ferent parts of the district for vi^hich it was held, as many discreet persons as it may deem necessary, who shall be known as "Com- missioners of the Circuit Court." These officers were authorized to hold to security of the peace and for good behavior in cases arising under the Constitution and laws of the United States. They had power to carry into effect the award or arbitration, or decree of any consul, vice-consul, or commercial agent; to sit as judges or arbitrators in such differences as may arise between the captains and crews of vessels, application for the exercise of such power being first made by petition of such consul." They had power to take bail and affidavits when required or allowed in any Circuit or District Court of the United States.''^ They could im- prison or bail offenders ; discharge poor convicts imprisoned ; ad- minister oaths and take acknowledgments ; institute proceedings- under the civil rights laws ; issue warrants for the arrest of for- eign seamen, in case of dispute or desertion ; summon the master of a vessel in cases of seamen's wages ; and apprehend fugitives- from justice.'" Congress, by the act of May 28, 1896, abolished the "Com- missioners of the Circuit Courts,'' and created in its place the "United States Commissioners." Under this new arrangement,, the District Court of each judicial district appoints such persons, to be known as United States Commissioners, at such places in the district as may be designated by the District Court, and such United States Commissioners have the same powers and perform the same duties as were imposed upon Commissioners of the Cir- cuit Courts. The United States Commissioners hold their offices,, respectively, for the term of four years, but they are at any time subject to removal by the District Court. The jurisdiction of the "United States Commissioners" is briefly stated in the case of United States v. Hughes, 70 Fed. Rep. 972, (1895), where the court held that: "United States Commissioners have no judicial "Rev. Stat.,- Sec. 728. "Rev. Stat., Sec. 945. "Rev. Stat, Sees. loio, 1042, 1778, 4079, 5270; Rev. Stat, i Supp. 68. ORGANIZATION. 61 power to hear and determine any matter whatsoever. Their duties are those of examining magistrates — ministerial, not judicial. They are the arms of the court, to execute the preliminary work necessary to bring to trial persons charged with offenses against the United States. They have no authority to determine the probable or improbable credibility of the testimony adduced, nor to find any fact. They can only determine whether there is prob- able cause to put the defendant on trial. Whenever a charge is made upon oath, and testimony is offered in support of it, and the warrant is approved by the district attorney, the party charged is committed or bound over for trial as a matter of course." For a complete statement of the jurisdiction of the United States Commissioners, examine the Revised Statutes of 1878, and the supplements since that date. CHAPTER III. JUDICIAL POWER OF THE UNITED STATES. In General. During the period that England exercised control over the colonies, each colony had its courts, and these courts were gov- erned generally by the coiniiwn laiv rides and the equity rules as they existed in England at that time. England, of course, being the sovereign state, could change the courts of the colonies as she saw fit. But when the colonies became free from England, each colony had then full control of its own courts, and the col- onies as a whole recognized no superior judicial power elsewhere. This was the condition of affairs down to the adoption of the Constitution. When the Constitution was adopted, a central gov- ernment came into existence, and this central government was the supreme government for the whole United States to the extent of the Constitution. In this Constitution was embodied certain judi- cial power, and as the Constitution is a grant of power from the people to the national government, the national government has no more judicial power than is granted to it expressly or impliedly by the Constitution. All the rest of the judicial power was re- served to the states. Extent of Judicial Power. Section 2, Art. 3, of the Constitution, grants judicial power to the Federal government, and is as follows : "The judicial POWER OF THE UNITED StATES SHALL EXTEND TO ALL CASES, IN LAW AND EQUITY, ARISING UNDER THIS CONSTITUTION, THE LAWS OF TitE United States, and treaties made, or which shall be made^ under their authority; to all cases affecting Ambassadors, other public Ministers and Consuls; to all CASES of admiralty AND MARITIME JURISDICTION ; TO CONTRO- VERSIES TO WHICH THE UNITED StATES SHALL BE A PARTY; TO CONTROVERSIES BETWEEN TWO OR MORE STATES ; BETWEEN A STATE AND CITIZENS OF ANOTHER STATE, BETWEEN CITIZENS OF DIFFER- JUDICIAL POWER. 6B EXT STATES, BETWEEN CITIZENS OF THE SAME STATE CLAIMING LANDS UNDER GRANTS OF DIFFERENT STATES, AND BETWEEN A STATE, OR THE CITIZENS THEREOF, AND FOREIGN STATES, CITIZENS, OR SUBJECTS." This provision is the full extent of the judicial power of the Federal government. Congress. can not confer any more than this upon the Federal courts, nor can Congress abolish this or any part of it. Some of the framers of the Constitution who feared a strong central government, objected to this grant of judicial power in the Constitution. They thought it was granted in such general terms that the Federal government would have all the judicial power, and the power of the state courts would be destroyed. Their objections were not well founded. The judicial power of the Federal government was intended to operate in perfect harmony with the judicial systems of the states. Although the Federal judicial power is defined and granted by the Constitution, its provision, in this respect, was not self-ex- ecuting. That is to say : — the judicial power could not come into practical operation until courts were created by Congress and their jurisdiction regulated. Except in the few cases of original jurisdiction of the Supreme Court, [the cases of Original Juris- diction will be discussed later under the title "Jurisdiction of the Supreme Court"] the judicial power of the United States re- mained to be dealt with by Congress. Congress might confer on the courts constituting the Federal system as much or as little of the judicial power specified in the Constitution as it deemed best, and place restrictions upon the jurisdiction it granted out, and apportion that jurisdiction among the courts which it created according to its own discretion. In fact, many cases within the reach of the judicial power of the Federal government are left wholly to the state courts ; in other cases the courts ef the United States have exclusive jurisdiction; while in others, the state courts are permitted to exercise a jurisdiction concurrent with the Fed- eral courts.''^ Section 2, Article 3, Explained. The constitutional provision, for convenience of study, may be divided into classes of cases as follows : First. To all cases arising under the Constitution. "Martin v. Hunter, i Wheat. 304, (1816) ; Gaines v. Fuentes, 92 U. S. 10, (1875); United States v. Hudson, 7 Cranch 32, (1812). 64 UNITED STATES COURTS. Second. To all cases arising under the laws of the United States. Thi«d. To all cases arising under treaties of the United States. Fourth. To all cases affecting Ambassadors, other public Ministers, and Consuls. Fifth. To all cases of admiralty and maritime jurisdiction. Sixth. To controversies to which the United States shall be a party. Seventh. To controversies between two or more states. Eighth. To controversies between a state and citizens of another state. Ninth. To controversies between citizens of different states. Tenth. To controversies between citizens of the same state claiming lands under grants of different states. Eleventh. To controversies between a state, or the citizens thereof, and foreign states, citizens, or subjects. Thus it will be seen, the judicial power of the United States is, by the Constitution, declared to extend to eleven enumerated classes. This may properly be said to be the potential judicial power; to be called into action, either by some subsequent pro- vision of the Constitution, or by law, or by both.'^ In the First, Second, Third, Fourth, Fifth, and Sixth classes, the jurisdiction in no wise depends on the citizenship of individuals. The Sev- enth class relates only to states. The Eighth class relates only to controversies in which a state is a party. In the Ninth class, the jurisdiction depends entirely on the citizenship of the parties. In the Tenth, on the subject matter of the controversy. In the Elev- enth, partly as to states, and partly as to the citizenship of the parties.''" It will be observed that a distinction seems to be drawn be- tween the first five classes of cases and the latter six classes of cases. In the First, Second, Third, Fourth and Fifth classes, the judicial power is to extend to all cases. In the Sixth, Seventh, Eighth, Ninth, Tenth, and Eleventh classes, the judicial authority is to extend to controversies (not to all controversies). In the first five^ it was the intention of the framers of the Constitution to extend the judicial power either in an original or appellate form to all cases ; and in the latter six to leave it to Congress to qualify "Bank v. Roberts, 4 Conn. 323, (1822). "Case of Sewing Machine Cos., 18 Wall. 553, (1873). JUDICIAL POWER. 65 the jurisdiction, original or appellate, in such manner as .public policy might dictate. The reason for making a distinction is apparent. The first five enter into the national policy, afifect the national rights, and may compromise the national sov- ereignty. The Federal courts must decide cases arising under the Constitution, laws, and treaties, and all cases of this kind, or else we would have no uniformity of decisions. No state court could assume to decide such questions finally. The same remarks ma}' be urged as to cases affecting Ambassadors, other public Ministers, and Consuls, and cases of admiralty and maritime jurisdiction where the law of nations form an essential inquiry. In fact, these cases affect not only our internal policy, but our foreign relations as well. The same reasoning does not apply to the other cases, as the other cases do not so immediately involve our national existence. Congress has not extended the judicial power to all the cases under this latter class; but has made the jurisdiction to depend more or less upon the value in controversy. If the amount involved is below that required by the act of Con- gress, the case can not be brought in the Federal courts. We will now examine the entire provision, paying attention to the words in which this grant of power is expressed, as each word is im- portant. The Constitutional provision begins as follows : "The JUDICIAL POWER SHALL EXTEND TO ALL CASES IN LAW AND EQUITY." The first term we meet with is the term "judicial POWER." Judicial Power. Those who framed the Constitution of the United States were well aware of the experiences of other nations in their efforts to establish free governments, and, with this knowledge, the framers of our Constitution determined that our government should con- sist of three departments — legislative, executive and judicial — each having powers to be exercised independent of the other. The legislative power is the power to make and ordain laws, including the power to alter and repeal them. The executive power is the power to execute and enforce the laws and to see that they are duly executed and enforced. The judicial power is the power to ascertain, interpret, and construe the laws, and to apply them to controversies properly brought before the courts and to pronounce judgment accordinglv. The judicial pozver is to be vested in and 5 66 UNITED STATES COURTS. exercised by courts, not by Congress, and not by the President. Courts are not obliged to perform non- judicial duties. Neither Congress nor the executive can constitutionally assign to the judi- cial department any duties but such as are properly judicial, and to be performed in a judicial manner. But it must be remembered, that our judicial department gives effect to our legislative depart- ment, and it is co-extcnsive with the legislative department, and is capable of deciding every judicial question which grows out of the Constitution and lazvs. The judicial department will not under- take to decide political questions. When such questions arise, the judiciary will accept as conclusive the decision of the political departments of the government, namely — the executive and the legislative. The following are illustrations of political questions : Which of two opposing governments is the rightful government ? Whether war exists, or whether peace has been restored."" Con-, gress cannot vest any portion of the judicial power of the United States, except in courts established by itself, nor vest any por- tion of the jurisdiction in state courts. The judicial power of the United States is vested, by the Constitution, in the courts of the United States. To put it differently, the Constitution defines the limits of the judicial power, but Congress prescribes how much of it is to be exercised by the Federal courts.*' New rights and remedies may have the effect to add to and increase the business of the court, but that in no proper sense increases the jurisdiction ofr the court. Jurisdiction is one thing, and the legal rights and remedies to which a party may be entitled is another thing.*^ In order to give jurisdiction to a Federal court in any case whatever, the Constitution and the statute law must concur.^' It is not suf- ficient that the jurisdiction may be found in thfe Constitution or the law. The t.wo must cooperate ; the Constitution as the foun- tain, and the laws of Congress as the streams from which and through which the waters of jurisdiction flow to the^ court. This results necessarily from the structure of the Federal government. It is a government of granted and limited powers. All powers not granted by the Constitution to the Federal government nor prohibited to the states are reserved to the states or the people. '"Georgia v. Stanton, 6 Wall, so, (1867); Taylor v. Beckham, 178 U. S. 548, (1900). "In re Loney, 134 U. S. 372, (1890); Turner v. Bank, 4 Dall. lo, (1799)- "''Buford V. Holley, 28 Fed. Rep. 680, (1886). JUDICIAL POWER. 67 The great residuum of legislative, executive, and judicial power remains in the states. With respect to the Federal government, the question always is, what powers are granted? With regard to the states, what powers are prohibited?*^ The powers not bestowed upon the Federal courts by legislative provisions remain dormant until some law shall call them into action by designating the particular tribunal which shall be authorized to exercise them. The next term that needs explanation is the term "shall EXTEND.^^ Shall Extend. The words ''shall extend" are used in an imperative sense. They import an absolute grant of judicial power. The judicial power shall extend to all the cases enumerated in the Constitution. It may, therefore, extend to them in the shape of origmal or ap- pellate jurisdiction, or both. It does not mean "may extend," as claimed by some writers. The language is mandatory, and Con- gress could not, without a violation of its duty, refuse to carry it into operation. Cases. The Constitution says that the judicial power shall extend to all "cases" in law and equity. Before there can be any proper exercise of the judicial power a "case" must be presented in a court for its action. A "case" implies parties, an assertion of rights, or a wrong to be remedied. In other words, a "case" is a subject on which the judicial power is capable of acting, and v.'hich has been submitted to it by a party in the forms required by law.** Law and Equity. The judicial power extends to all cases in "law and equity." What is the meaning of the term "law and equity?" The term "law and equity" must be construed according to the meaning which these words conveyed at the time of the adoption of the "'United States v. Burlington, 21 Fed. Rep. 331, (1884). "Miller Const. 313; Osborn v. Bank, 9 Wheat. 738, (1824); Cohens V. Virginia, 6 Wheat. 264, (1821). 68 UNITED STATES COURTS. Constitution (1789). With the exception of admirahy, all modes of procedure for the assertion of rights must be arranged under one class or the other, either law or equity. The term includes criminal cases arising under the Constitution or laws, as well as civil cases. The Constitution grants only judicial power at law and in equity to its courts ; that is, powers at that time understood and exercised as judicial, in the courts of common law and equity of England. In the absence of special statutory authority, the Federal courts do not exercise those powers not judicial which were exercised over the persons and estates of infants, idiots, lunatics, and charities by the Lord Chancellor, as the representa- tive of the sovereign."*^ The term "law and equity" applies to the remedy and not to the right. In Meade v. Beale, Taney's Cr. Ct. Dec. 339, (1850), Justice . Taney said: "The Circuit Courts of the United States adminis- ter the laws of the states in which they sit, unless those laws are in conflict with the Constitution of the United States, treaties or acts of Congress ; and as a general rule, regard the decisions of the highest judicial tribunals of the state as conclusive evidence of the law. We do not speak of matters of practice, or of the form of proceeding, but of decisions upon the right or claim in dispute between the parties, where the right depends upon the laws of the particular state. The cases of Swift v. Tyson, 16 Pet. i, and Carpenter v. The Providence Insurance Co., 16 Pet. 511, 512, were cases depending upon the usage of commerce, and the general principles of com- mercial law. And the Supreme Court have always said that in cases of that description, where the state court does not decide the case upon any particular law of the state, or established local usage, but upon the general principles of commercial law, if it fall into error, that erroneous decision is not regarded as con- clusive evidence of the commercial law of the state, and will not be followed as such by the Supreme Court. And the reason of this distinction is obvious. The state court does not decide in such cases upon the peculiar laws and institutions of the state. Its decision, therefore, is not evidence that any law 'has been adopted by the state in conflict with the general principles which regulate commercial contracts throughout the commercial world. So, too, as relates to the jurisdiction of the Circuit Court ^'Fontain v. Ravenel, 17 How. 369, (1854).- JUDICIAL POWER. 69 sitting- as a Court of Chancery. It is undoubtedly true, as con- tended for in the arguments of the complainant, in regard to equitable rights, that the power of the Courts of Chancery of the United States, is, under the Constitution, to be regulated by the law of the English Chancery; that is to say, the distinction be- tween law and equity as recognized in the jurisprudence of Eng- land is to be observed in the courts of the United States, in ad- ministering the remedy for an existing right. The rule applies to the remedy and not to the right ; and it does not follow, that every right given by the English law, and which, at the time the Con- stitution was adopted, might have been enforced in the Court of Chancery, can also be enforced in a court of the United States ; the right must be given by the law of the state, or of the United States. It is the form of remedy for which the Constitution pro- vides ; and if a complainant has no right, the Circuit Court, sitting as a Court of Chancery, has nothing to remedy in any form of proceeding." The right must be given by the law of the state or of the United States, and if it exists through either one of these sources, the Federal courts will enforce the same at law or equity, if it falls within the remedies authorized by either branch of their jurisdiction. In other words, if the question in controversy falls within the judicial power of the United States as given in the Constitution, no matter where or how the right accrued, the Fed- eral courts will take jurisdiction, and if it is a law case, you must seek your remedy 'on the law side of the court, and if it is an equity case, you must seek your remedy on the equity side of the court. For example, the judicial power of the United States ex- tends to "controversies between citizens of dififerent states." Now, it makes no difference where or how this cause of action arose, whether by force of the common law or statute of a state, or whether by force of the Constitution, law, or treaty of the United States, the term "law and equity" is not concerned with where or how the right accrued to one party or the other, it con- cerns itself with the remedy, and thus compels you to bring your action or suit in the proper side of the court. In the courts of the United States, the practice at law and in equity is perfectly distinct, just as much so as it was in Eng- land at the time the Constitution of the United States was adopted. And it makes no difference in the courts of the United States that some states have abolished the distinction between law 70 UNITED STATES COURTS. and equity.*" The fact that those who framed the Constitution thought it necessary to separately mention law and equity, when providing the jurisdictioti of the Federal courts, has caused many to believe that it was thereby intended that these branches of the law should always be kept apart. But the weight of authority seems to be that this distinction between law and equity is en- forced by the Constitution only to the extent to which the Seventh Amendment forbids any infringement of the right of trial by jury, as fixed by the common law.*' The Seventh Amendment secured the right of trial by jury in suits at common law where the amount exceeds twenty dollars. In two very important classes of suits in United States courts, the right of trial by jury does not exist, namely, suits in equity and in admiralty. The equity practice of the courts of the United States is the same everywhere in the United States, and the courts of the United States administer the same system of equity rules and equity jurisprudence through the whole United States without regard to state laws. The state laws are operative, as rules of decision, in trials at law, because Con- gress has so enacted, but not in trials on the equity side of the court. A state statute can not give a Federal court jurisdiction in equity of a case in which there is an adequate remedy at law.** It is well settled that there is no common law of the United States. All the law of the United States is constitutional and statutory. All the rights, powers, and jurisdiction of the United States, as such, are derived from the Constitution, and its courts have no law to administer but the written Federal law. As a consequence of this, it follows that there can be no common law crimes or offenses against the United States. No act can be a crime against the United States unless it is made such, or recognized as such, by the Federal Constitution; or an act of Congress, or a treaty. In Jones v. United States, 137 U. S. 202, (1890), the Court said : "By the Constitution of the United States, while a crime committed within any state must be tried in that state and in a dis- trict previously ascertained by law, yet a crime not committed within any state of the Union may be tried at such place as Con- "'Sheffield v. Witherow, 149 U. S. 574, (1893) ; Robinson v. Campbell, 3 Wheat. 212, (1818). "Root V. Railway Co., 105 U. S. 189, (1881) ; Ex parte Boyd, lOS U. S. 647, (1881). ''U. S. Rev. Stat., Sec. 721; Whitehead v. Shattuck, 138 U. S. 146, (1891) ; McConihay v. Wright 121 U. S. 201, (1887) ; Borer v. Chap- man, 119 U. S. 587, (1887); Miss. Mills v. Cohn, 150 U. S. 202, (1893). JUDICIAL POWER. 71 gress may by law have directed. Constitution, Art. 3, Sec. 2 ; Amendments, Art. 6; United States v. Dawson, 15 How. 467, 488. Congress has directed that "the trial of all offenses com- mitted upon the high seas or elsewhere, out of the jurisdiction of any particular state or district, shall be in the district where the offender is found, or into which he is first brought." Rev. Stat., Sec. 730. And Congress has awarded the punishment of death to the crime of murder, whether committed upon the high seas or other tide waters outside of the jurisdiction of any particular state, or "within any fort, arsenal, dock-yard, magazine or in any other place or district of country under the exclusive jurisdiction of the United States." Rev. Stat., Sec. 5339. Both these acts of Congress clearly include murder committed on any land within the exclusive jurisdiction of the United States and not within any judicial district, as well as murder committed on the high seas. Exparte Bollman, 4 Cranch, 75, 136; United States v. Bev- ans, 3 Wheat. 336, 390, 391 ; United States v. Arwo, 19 Wall. 486." In the case of Wheaton v. Peters, 8 Peters 591, (1834), the Court, in speaking of the common law, said : "It is clear, there can be no common law of the United States. The Federal gov- ernment is composed of states ; each of which may have its local usages, customs, and common law. There is no principle which pervades the Union and has the authority of law, that is not em- bodied in the Constitution or laws of the Union. The common law could be made a part of our federal system, only by legislative adoption. When, therefore, a common law right is asserted, we must look to the state in which the controversy originated, or to the United States Constitution, laws or treaties." The provision of Sec. 858 of the Revised Statutes, that "the laws of the state in which the court is held shall be the rules of decision as to the competency of witnesses in the courts of the United States in trials at common law, and in equity and admir- alty," has no application to criminal trials.*" Although it is not in the power of the states to enlarge the jurisdiction of the Fed- eral courts or confer any new jurisdiction upon them, yet, the Federal courts have the right to take jurisdiction, in a case that comes within the constitutional grant of judicial power, involving the application of a remedy, or the enforcement of a new right, '"Logan V. United States, 144 U. S. 263, (1892). 72 UNITED STATES COURTS. created by the laws of a state.'" The jurisdiction of the United States Courts is a Hmited jurisdiction, as they have none except that conferred by the Constitution and laws of the United States, the presumption now, as well as before the adoption of the Four- teenth Amendment, is, that the United States Courts are without jurisdiction unless the contrary affirmatively appears. You must, in order to maintain your suit, show that your case comes within the jurisdiction of the court. "^ A state statute of limitations can not bar the United States, but the Federal courts usually follow such statutes unless an injustice would be done."^ The Federal courts, through a spirit of judicial comity, will usually refuse to interfere with property in the custody of a state court, and if property, on which a state officer has levied, is seized by the mar- shal in a Federal action of replevin, the state officer's remedy is a petition in the nature of an interpleader addressed to the Federal court, not a bill for an injunction.'"' The rules of comity which apply between state and Federal courts, also regulate conflicts as to jurisdiction between different Federal courts. In the case of Riggs v. Johnson County, 6 Wall. i66, (1867), the Court, in speaking of the relation of the Federal courts to the state courts, said : "Repeated decisions of this court have also determined that state laws, whether general or enacted for the particular case, cannot in any manner limit or affect the operation of the process or proceedings in the Federal courts." The Con- stitution itself becomes a mockery, say the court, if the state legislatures may at will annul the judgments of the Federal courts, and the nation is deprived of the means of enforcing its own laws by the instrumentality of its own tribunals. Congress may adopt state laws for such a purpose directly, or confide the authority to adopt them to the Federal courts, but their whole efficacy when adopted depends upon the enactments of Congress, and they are neither controlled' or controllable by any state regulation. State courts are exempt from all interfer ence by the Federal tribunals, but they are destitute of all power ™U. S. Rev. Stat, Sec. 722; Clark v. Smith, 13 Pet. 195, (1839); Ex parte McNiel, 13 Wall. 236, (1871). "'Turner v. Bank, 4 Dall. 8, (1799) ; Robertson v. Cease, 97 U. S. 646, (1878). "'United States v. Thompson, 98 U. S. 486, (1878) ; Wagner v. Baird, 7 How. 234, (1849). °^Hagan v. Lucas, 10 Pet. 400, (1836) ; Picket v. Filer, 40 Fed. Rep. 313, (1889). JUDICIAL POWER. 73^ to restrain either the process or proceedings in the national courts. Circuit courts and state courts act separably and independently of each other, and in their respective spheres of action the process issued by the one is as far beyond the reach of the other as if the line of division between them "was traced by landmarks and monuments visible to the eye." Appellate relations exist in a class of cases, between the state courts and this court, but there are no such relations between the state courts and the Circuit courts. A'iewed in any hght, therefore, it is obvious that the injunc- tion of a state court is inoperative to control, or in any manner to affect the process or proceedings of a Circuit Court, not on account of any paramount jurisdiction in the latter courts, but because, in their sphere of action. Circuit Courts are wholly inde- pendent of the state tribunals. Based on that consideration, the settled rule is, that the remedy of a party, whose property is wrongfully attached under process issued from a Circuit Court, if he wishes to pursue it in a state ttibunal, is trespass, and not replevin, as the sheriff cannot take the property out of the pos- session and custody of the marshal. Suppose that to be so, still the defendants insist that the writ was properly refused, because the injunction was issued before the plaintiff's application was presented to the Circuit Court. Undoubtedly Circuit Courts and state courts, in certain controversies between citizens of different states, are courts of concurrent and co-ordinate jurisdiction, and the general rule is, that as between courts of concurrent jurisdic- tion, the court that first obtains possession of the controversy, or the property in dispute, must be allowed to dispose of it without interference or interruption from the co-ordinate court. Such questions usually arise in respect to property attached on mesne process, or property seized upon execution, and the general rule is, that where there are two or more tribunals competent to issue process to bind the goods of a party, the goods shall be consid- ered as effectually bound by the authority of the process under which they were first attached or seized." We will now take up the different classes of cases in their order, and give the reason why the judicial power of the Federal government extends to each class ; also, we will explain each class fully. First. ""All cases arising under the Constitution." The reason the Federal courts were given jurisdiction in this class of cases was that the meaning, construction and interpreta- 74 UNITED STATES COURTS. tion of the Constitution ought always to be ascertained by a court provided for by all parties to the Constitution, not by a court provided for by only one of the states. If each state had the power to pass finally upon the Constitution, confusion and discord would be the result. When does a case "arise under the Consti- tion ?" A case may be said to arise under the Constitution when a power conferred or supposed to be, a right claimed, a privilege granted, a protection secured, or a prohibition contained therein, is in question."* Second. "All cases arising under the laws of the United States. The Federal judiciary was given jurisdiction in this classe because, as such laws, constitutionally made, are obli- gatory on each state, the measure of the obligation and obedience ought not to be decided and fixed by the courts of any one state, but by a tribunal deriving authority from all the states. When does a case arise under a law of the United States ? A case con- sists of the right of one party as well as the other, and may truly be said to arise under a law of the United States whenever its correct decision depends upon that law. Cases arising under the laws of the United States are such as grow out of the legislation of Congress, whether they constitute the right or privilege, or claim or protection, or defence of the party, in whole or in part, by whom they are asserted. "° Third. "All cases arising under treaties." Treaties are compacts made by and obligatory upon the whole nation, and their operation ought not to be affected or regulated by state laws. The Federal government is the only power in this country which can make treaties, consequently it is proper and necessary that the jurisdiction to construe them and determine their scope and effect should be confided alone to the national authorities. A treaty is primarily a compact between independent nations, and in that aspect of it the courts have nothing to do with its observance. But it is also the supreme law of the land, and it may become the foundation of private rights, and when that is the case, it becomes a proper subject of judicial inquiry and action. In "Head Money Cases," 112 U. S. 580, (1884), Justice Mil- ler, in speaking of treaties, said : "A treaty is primarily a com- pact between independent nations. It depends for the enforce- ment of its provisions on the interest and on the honor of the "Cohens v. Virginia, 6 Wheat. 264, (1821). '^Tennessee v. Davis, 100 U. S. 257, (1879). JUDICIAL POWER. 75 governments which are parties to it. If these fail, its infraction becomes the subject of international negotiations and reclama- tions, so far as the injured party chooses to seek redress, which may in the end be enforced by actual war. It is obvious that with all this the judicial courts have nothing to do and can give no redress. But a treaty may also- contain provisions which confer certain rights upon the citizens or subjects of one of the nations residing in the territorial limits of the other, which partake of the nature of municipal law, and which are capable of enforcement as between private parties in the courts of the country. An illus- tration of this character is found in treaties, which regulate the mutual rights of citizens and subjects of the contracting nations in regard to rights of property by descent or inheritance, when the individuals concerned are aliens. The Constitution of the United States places such provisions as these in the same category as other laws of Congress by its declaration that "this Constitu- tion and the laws made in pursuance thereof, and all treaties made or which shall be made under authority of the United States, shall be the supreme law of the land." A treaty, then, is a law of the land as an act of Congress is, whenever its provisions prescribe a rule by which the rights of the private citizen or subject may be determined. And when such rights are of a nature to be en- forced in a court of justice, that court resorts to the treaty for a rule of decision for the case before it as it would to a statute. But even in this aspect of the case there is nothing in this law v/hich makes it irrepealable or unchangeable. The Constitution gives it no superiority over an act of Congress in this respect, which may be repealed or modified by an act of a later date. Nor is there anything in its essential character, or in the branches of the government by which the treaty is made, which gives it this superior sanctity. A treaty is made by the President and the Senate. Statutes are made by the President, the Senate and the House of Repre- sentatives. The addition of the latter body to the other two in making a law certainly does not render it less entitled to respect in the matter of its repeal or modification than a treaty made by the other two. If there be any difiference in this regard, it would seem to be in favor of an act in which all three of the bodies par- ticipate. And such is, in fact, the case in a declaration of war, which must be made by Congress, and which, when made, usually suspends or destroys existing treaties between the nations thus .at war. 76 UNITED STATES COURTS. In short, we are of opinion that, so far as a treaty made by the United States with any foreign nation can become the sub- ject of judicial cognizance in the courts of this country, it is sub- ject to such acts as Congress may pass for its enforcement, mod- ification, or repeal." Fourth. "All cases affecting Ambassadors, other pub- lic Ministers and Consuls.'' The Constitution extends the judi- cial power of the United States to this class of cases because the privileges of diplomatic agents are accorded to them as to their sovereigns or governments, and not for their personal advantage, and it is proper that the courts of the government to which they are accredited, and with which alone they can have official dealings, should have cognizance of suits in which they are parties. The rights, liabilities and immunities of diplomatic agents depend mostly upon rules of international law, and as such rules must be consented to or rejected by our national government, it would be poor policy to allow the different states to pass upon such questions, especially when such states have, under our form of government, no power whatever to enter into international agree- ments or alliances. Congress, at an early day, enacted that the Supreme Court shall have exclusively all such jurisdiction of suits or proceed- ings against Ambassadors, or other public Ministers, or their domestics or domestic servants, as a court of law can have con- sistently 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 is a party. An Ambassador stands in the place of his sovereign, and to enable him to exercise his diplomatic functions freely he can neither be- sued in the civil courts nor arrested and tried for any breach of" the criminal laws. This is a rule of international law to which there are very few exceptions, if any. If a diplomatic agent com- mits a crime either against the state or against individuals, the- usual and at the same time correct course to pursue is to make application for his recall; or if the case is serious, he may be ordered to leave without making a formal application to his gov- ernment ; or, again, if the case is an extreme one, his arrest may- be warranted.^" The lower grade of diplomatic agents are not entitled to the same immunities as the higher grade. A Consul! inay be dismissed, and his exequatur revoked, for illegal or im- °°Hall Int. Law, p. 169. JUDICIAL POWER. '77 proper conduct, and may be punished or sent out of the country, at the option of the offended country."' But a Minister may con- sent to the prosecution of civil proceedings against him, and the courts are open to him if he desires to seek redress for injuries committed against him. The official character of an Ambassador or Minister is proved by a certificate from the Secretary of State, and this will be accepted by the courts as sufficient, and if it is produced, they will not go into collateral or argumentative proof."* The immunities of diplomatic agents are in general as f ollow^s : 1. They are exempt from the payment of all dues and taxes, and police regulations. 2. Their houses can not be entered by the authorities of the foreign state. 3. Their personal immunities extend to members of their suite. 4. They can perform such acts as are not in derogation of the laws of the foreign state. 5. In case of crime, they must be sent home for trial. 6. Civil actions between them must be sent home for trial. 7. They are duty bound to commit no acts against the for- ■eign state. 8. Their houses can not be made an asylum for criminals not members of their suite. 9. Their property possessed as individuals is subject to local jurisdiction. They are subject to the courts in the following cases : 1. Where he is a subject or citizen of the country to which he is accredited. 2. When he carries on trade. 3. When he holds and acquires property in individual capac- ity 4. When he has initiated the proceedings with consent of fiis government. Diplomatic agents are: (i) Ambassadors, Legates, and Nuncios; (2) Envoys and Ministers Plenipotentiary; (3) Minis- ters resident, accredited to the sovereign; (4) Charges d' Affaires, accredited to the minister of foreign affairs. "Coppell V. Hall, 7 Wall. 542, (1868). "Davis V. Packard, 7 Pet. 276, (1833) ; Black Const. Law, p. 123; In ■Te Baiz, 135 U. S. 403, (1890). 78 ' UNITED STATES COURTS. Consuls occupy a different status from that of Ambassadors and Ministers. Their duties are to watch over the commercial interests of their country, and to see that the local laws are prop- erly administered in reference to its subjects ; to report commer- cial, economical, and political matters ; to receive protests from masters of vessels, grant passports, etc. ; to reclaim deserters ; and to arbitrate differences, etc. Consuls, not being diplomatic agents, are not entitled to diplomatic immunities. Their official position carry the following privileges : ( i ) Exemption from arrest for political reasons; (2) Exempt frbm taxes; (3) And generally such privileges as may be necessary to perform the duties of his office. The Constitution says that the judicial power of the United States shall extend to all cases "affecting" Ambassadors, other public Ministers and Consuls. Now, the most important question to decide is, when is it a case "affecting" the Ambassador? Generally an Ambassador is "affected," within the meaning of this provision, if the Ambassador is a party to the record either as plaintiff or defendant. The Supreme Court decided that an indictment against a private person for an assault upon a public minister was not a case "affecting" the minister within the mean- ing of the Constitution."'* In another case, the question was whether the right of a negro to be a witness in the state of Ken- tucky, where he had previously been disqualified, was a case "affecting" that witness, and the court held that it was not. The witness was not "affected" by the case, whether he was admitted to testify or excluded from testifying; that was no affair of his. He was not a party to the record either as plaintiff or defend- ant.i"" Fifth. "To all cases of Admiralty and Maritime Jur- isdiction." Originally, the Admiralty Court was the court held by the Lord High Admiral of England. Its jurisdiction extended principally to crimes committed on the high seas or in places where all nations claimed a common right. Maritime jurisdiction refers to contracts, claims, services, and rights appertaining to com- merce and navigation. This word "maritime" was added to the word "admiralty" so as to guard against a narrow interpretation of this clause of the Constitution. The two terms were used to- °°United States v. Ortega, 11 Wheat. 467, (1826). '""Blyew V. United States, 13 Wall. 581, (1871). JUDICIAL POWER. 79 gether so that our admiralty and maritime jurisdiction would cover fully all questions that properly fall within the one term or the other. Most questions, if not all, under the admiralty and maritime jurisdiction, are concerned with the high seas, and as, the seas are the joint property of all nations, whose rights and priv- ileges relative thereto are regulated by the law of nations and treat'es, such cases necessarily belong to the national jvrisdiction This is the reason the Federal courts were given jurisdiction over this class of cases. From the earliest time till the fifteenth century, the Admir- alty Court of England grew in power, and encroached upon the common law courts. Then came a reaction. The common law courts regained their own ground, and in turn encroached upon the Admiralty Courts. Out of this condition grew a discussion in this country. The question was : How should our constitu- tional provision be interpreted? At the time our Constitution was adopted, the admiralty jurisdiction in England was consid- erably restricted. Should our judges give admiralty the same jurisdiction which was then exercised in England, or did the Constitution mean to confer the full admiralty jurisdiction as it was known to the civilized world? This was an important ques- tion in the early days of our government, because it involved a question of political power between the states and the United States. At first our Supreme Court inclined to the narrow con- struction of admiralty jurisdiction, but the court soon departed from this view, and now it follows the broad jurisdiction as recog- nized by the civilized world. The District Courts of the United States have jurisdiction of admiralty cases, and may be said to be our Admiralty Courts in this country. The admiralty jurisdiction may be outlined as fol- lows : I, Criminal Cases, ( I. Contracts, Admirality Jurisdiction. { 2. Civil Cases, j ( 2. Torts, 3. Prize Cases. The criminal jurisdiction extends to all crimes and offenses committed on the "high seas" or beyond the jurisdiction of any country. The cases of contracts are: Seaman's wages, charter parties, contracts Of aflfreightment, carriage of passengers, claims ,80 UNITED STATES COURTS. of material men, salvage, towage, general average, bottomry and respondentia bonds, pilotage, wharfage, claims of stevedores, and marine insurance. The cases of torts are usually cases, of negli- gence, breach of maritime contracts, injuries from negligent tow- age, loss of life, collisions, assault and battery, suits for spolia- tion, and possessory actions. Prize cases are cases of maritime capture made in time of war. In the United States, the District Courts discharge the duties both of a prize and an instance court. The term "instance court" has no proper application to ad- miralty courts in the United States. This is a term that was used in England at one time, and it indicated a branch of the admiralty x;ourt that had jurisdiction of all matters except those relating to prize. The term "instance cases" means all cases in admiralty other than prize cases. We have no branches of Admiralty Court in this country; jurisdiction is conferred upon 'the District Courts without such distinction. Cases of admiralty and maritime jurisdiction are not defined by the Constitution. They are determined by the ancient and settled rules of admiralty. And they are not limited by the stat- utes or the judicial decisions of England at the time our Consti- tution was adopted. But, if a state statute creates a cause of action, though such action be unknown to the ancient admiralty law, yet if it is of a maritime nature, the Federal courts, sitting in admiralty, will enforce it.^°^ The admiralty jurisdiction is an entirely distinct and separate .thing from the power of Congress to regulate commerce. Neither depends at all upon the other. When the admiralty jurisdiction is invoked, it is the nature of the cause of action and the place where it arose which must govern, and not the character of the -commerce in which the vessel may be engaged. Thus, for in- stance, the case of a collision between two ships on a navigable river is within the admiralty jurisdiction, notwithstanding the vessels were trading between ports of the same state and engaged wholly in internal commerce.^"^ The admiralty jurisdiction may extend within the boundaries of a state, following the course of a navigable river or lake, but it does not deprive the state of all jurisdiction over the territory covered by such navigable water; it deprives the state only of ™Ins. Co. V. Dunham, ii Wall i, (1870) ; The Lottawanna, 21 Wall. .558, (1874). "=Ex parte Boyer, 109 U. S. 629, (1884). JUDICIAL POWER. 81 such jurisdiction as relates to admiralty or maritime causes. If a crime against the laws of a state is committed on such navigable waters, within the limits of the state, the jurisdiction to try and punish the crime belongs to the state and not to the Admiralty Court. Also, the Federal admiralty jurisdiction does not deprive the state of the right to regulate the fisheries and the taking of oysters in its navigable waters, and to punish persons violating such state regulations.^"^ The Constitution does not declare that the Federal courts shall have exclusive jurisdiction in admiralty and maritime cases. But so far as relates to cases of prize, it has always been the doc- trine that the jurisdiction of the Federal courts must be exclusive, for the reason that the ordinary courts of law were never invested with jurisdiction in these cases. And the act of Congress makes the jurisdiction exclusive in all civil cases of admiralty and mari- time cognizance, saving to suitors a remedy by the common law, where the common law is competent to give it. Thus, the Fed- eral courts have exclusive jurisdiction of actions relating to mari- time torts and contracts and liens for maritime services, when the action is in rem (against the vessel), though the state courts have jurisdiction in the same cases when the action is in personum, provided that it is authorized by the common law or a state stat- ute.io* In admiralty jurisdiction, an important question to under- stand is: What is included within the term "high seas?" This term was fully considered in the case of United States v. Rodgers, 150 U. S. 249. (1893), where a person was indicted in the United States District Court for assaulting with a dangerous weapon a man on board the steamer Alaska, an American boat and then being on the Canadian side of the Detroit River. Justice Field, who delivered the opinion of the court, said : ''Several questions of interest arise upon the construction of Section 5346 of the Revised Statutes, upon which the indictment in this case was found. The principal one is whether the term 'high seas,' as there used, is applicable to the open, unenclosed waters of the Great Lakes, between which the Detroit River is a connecting stream. The term was formerly used, particularly ""United States v. Bevans, 3 Wheat. 336, (1818) ; Manchester v. Mas- sachusetts, 139 U. S. 240, (1891). '"The Moses Taylor, 4 Wall. 411, (1866) ; The Hine v. Trevor, 4 Wall. SSS, (1866) ; The Eagle, 8 Wall. 15, (1868). 82 UNITED STATES COURTS. by writers on public law, and generally in official communications between different governments, to designate the open, unenclosed waters of the ocean, or of the British seas, outside of their ports and havens. At one time it was claimed that the ocean, or por- tions of it, were subject to the exclusive use of particular nations. The Spaniards, in the i6th century, asserted the right to exclude all others from the Pacific Ocean. The Portuguese claimed, with the Spaniards, under the grant of Pope Alexander VI., the ex-- elusive use of the Atlantic Ocean west and south of a designated line. And the English, in the 17th century, claimed the exclusive right to navigate the seas surrounding Great Britain. Woolsey on International Law, Sec. 55. "In the discussions which took place in support of and against these extravagant pretensions, the term 'high seas' was applied, in the sense stated. It was also used in that sense by English courts and law writers. There was no discussion with them as to the waters of other seas. The public discussions were generally lim- ited to the consideration of the question whether the high seas, that is, the open, unenclosed seas, as above defined, or any por- tion thereof, could be the property or under the exclusive juris- diction of any nation, or whether they were open arid free to the navigation of all nations. The inquiry in the English courts was generally limited to the question whether the jurisdiction of the admiralty extended to the waters of bays and harbors, such -ex- tension depending upon the fact whether they constituted a part of the high seas. "In his treatise on the rights of the sea, Sir Matthew Hale says : 'The sea is either that which lies within the body of a coun- ty, or without. That arm or branch of the sea which lies within the fauces terrae, where a man may reasonably discern between shore and shore, is, or at least may be, within the body of a coun- ty, and, therefore, within the jurisdiction of the sheriff or cor- oner. That part of the sea which lies not within the body of a county is called the main sea or ocean.' De Jure Maris, c. iv. Bv the 'main sea,' Hale here means the same thing expressed by the term 'high sea' — mare altum,' or 'le haut meer.' "In Waring v; Clarke, 5 How. 440, 453, this court said that it had been frequently adjudicated in the English common law courts since the restraining statutes of Richard II. and Henry I\'., 'that high seas mean that portion of the sea which washes the open coast.' In United States v. Crush, 5 Mason, 290, it was JUDICIAL POWER. ,^ 83 held by Mr. Justice Story, in the United States Circuit Court, that the term 'high seas,' in its usual sense, expresses the unen- closed ocean or that portion of the sea which is without the fauces terrac on the sea coast, in contradistinction to that which is surrounded or enclosed between narrow headlands or promon- tories. It was the open, unenclosed waters of the ocean, or the open, unenclosed waters of the sea, which constituted the 'high seas' in his judgment. There was no distinction made by him between the ocean and the sea, and there was no occasion for any such distinction. The question in issue was whether the alleged offences were committed within a county of Massachusetts on the sea coast, or without it, for in the latter case they were com- mitted upon the high seas and within the statute. It was held that they were committed in the county of Suffolk, and thus were not covered by the statute. "If there were no seas other than the ocean, the term 'high seas' would be limited to the open, unenclosed waters of the ocean. But as there are other seas besides the ocean, there must be high seas other than those of the ocean. A large commerce is conducted on seas other than the ocean and the English seas, and it is equally necessary to distinguish between their open waters and their ports and havens, and to provide for offences on vessels navigating those waters and for collisions between them. The term 'high seas' does not, in either case, indicate any separate and distinct body of water; but only the open waters of the sea or ocean, as distinguished from ports and havens and waters within narrow headlands on the coast. This distinction was ob- served by Latin writers between the ports and havens of the Med- iterranean and its open waters — the latter being termed the high seas. In that sense the term may also be properly used in reference to the open waters of the Baltic and the Black Sea, both of which are inland seas, finding their way to the ocean by a narrow and distant channel. Indeed, wherever there are seas in fact, free to the navigation of all nations and people on their borders, their open waters outside of the portion 'surrounded or enclosed be- tween narrow headlands or prompntories,' on the coast, as stated by Mr. Justice Story, or 'without the body of a county,' as de- clared by Sir Matthew Hale, are properly characterized as high seas, by whatever name the bodies of water of which they are a part may be designated. Their names do not determine their character. There are, as said above, high seas on the Mediter- 84 UNITED STATES COURTS. ranean (meaning outside of the enclosed waters along its coast), upon which the principal commerce of the ancient world was con- ducted and its great naval battles fought. To hold that on such seas there are no high seas, within the true meaning of that term, that is, no open, unenclosed waters, free to the navigation of all nations and people on their borders, would be to place upon that term a narrow and contracted meaning. We prefer to use it in its true sense, as applicable to the open, unenclosed waters of all seas, than to adhere to the common meaning of the term two cen- turies ago, when it was generally limited to the open waters of the ocean and of seas surrounding Great Britain, the freedom of which was then the principal subject of discussion. If it be con- ceded, as we think it must be, that the open, unenclosed waters of the Mediterranean are high seas, that concession is a sufficient answer to the claim that the high seas always denote the open waters of the ocean. "Whether the term is applied to the open waters of the ocean or of a particular sea, in any case, will depend upon the context or circumstances attending its use, which in all cases affect, more or less, the meaning of language. It may be conceded that if a state- ment is made that a vessel is on the high seas, without any quali- fication by language or circumstance, it will be generally under- stood as meaning that the vessel is upon the open waters of one of the oceans of the world. It is true, also, that the ocean is often spoken of by writers on public law as the sea, and characteristics are then ascribed to the sea generally which are properly applic- able to the ocean alone ; as, for instance, that its open waters are the highway of all nations. Still the fact remains that there are other seas than the ocean whose open waters constitute a free highway for navigation to the nations and people residing on ~- their borders, and are not a free highway to other nations and people, except there be free access to those seas by open waters or by conventional arrangements. "As thus defined, the term would seem to be as applicable to the open waters of the great northern lakes as it is to the open waters of those bodies usually designated as seas. The Great Lakes possess every essential characteristic of seas. They are of large extent in length and breadth ; they are navigable the whole distance in either direction by the largest vessels known to com- merce; objects are not distinguishable from the opposite shores; they separate, in many instances, states, and in some instances JUDICIAL POWER. 85 constitute the boundary between independent nations ; and their waters, after passing long distances, debouch into the ocean. The fact that their waters are fresh and not subject to the tides, does not aifect their essential character as seas. Many seas are tide- less, and the waters of some are saline only in a very slight de- gree. "The waters of Lake Superior, the most northern of these lakes, after traversing nearly 400 miles, with an average breadth of over 100 miles, and those of Lake Michigan, which extend over 350 miles, with an average breadth of 65 miles, join Lake Huron, and, after flowing about 250 miles, with an average breadth of 70 miles, pass into the river St. Clair ; thence through the small lake of St. Clair into the Detroit River ; thence into Lake Erie and, by the Niagara River, into Lake Ontario ; whence they pass, by the river St. Lawrence, to the ocean, making a total dis- tance of over 2,000 miles. Ency. Britannica, vol. 21, p. 178. The area of the Great Lakes, in round numbers, is 100,000 square miles. Ibid., vol. 14. p. 217. They are of larger dimensions than many inland seas which are at an equal or greater distance from the ocean. The waters of the Black Sea travel a like distance before they come into contact with the ocean. Their first outlet is through the Bosphorus, which is about 20 miles long and for the greater part of its way less than a mile in width, into the sea of Marmora, and through that to the Dardanelles, which is about 40 miles in length and less than four miles in width, and then they find their way through the islands of the Greek Archipelago, up the Mediterranean Sea, past the Straits of Gibralter to the ocean, a distance, also, of over 2,000 miles. "In the Genesee Chief case, 12 How. 443, this court, in con- sidering whether the admiralty jurisdiction of the United States extended to the Great Lakes, and speaking, through Chief Jus- tice Taney, of the general character of those lakes, said: 'These lake are, in truth, inland seas. Different states border on them on one side, and a foreign nation on the other. A great and growing commerce is carried on upon them between different states and a foreign nation, which is subject to all the incidents and hazards that attend commerce on the ocean. Hostile fleets have encoun- tered on them, and prizes been made ; and every reason which ex- isted for the grant of admiralty jurisdiction to the general gov- ernment on the Atlantic seas applies with equal force to the lakes. There is an equal necessity for the instance and for the prize 86 UNITED STATES COURTS. power of the Admiralty Court to administer international law, and if the one cannot be established, neither can the other.' (P- 4S3-) "After using this language, the Chief Justice commented upon the inequality which would exist, in the administration of justice, between citizens of the states on the lakes, if, on account of the absence of tide water in those lakes, they were not entitled to the remedies afforded by the grant of admiralty jurisdiction of the Constitution, and the citizens of the states bordering on the ocean or upon navigable waters affected by the tides. The court, perceiving that the reason for the exercise of the jurisdiction did not in fact depend upon the tidal character of the waters, but upon their practical navigability for the purposes of commerce, disre- garded the test of tide water prevailing in England as inapplicable to our country with its vast extent of inland waters. Acting upon like considerations in the application of the term 'high seas' to the waters of the Great Lakes, which are equally navigable, for the purposes of commerce, in all respects, with the bodies of water usually designated as seas, and are in no respect affected by the tidal or saline character of their waters, we disregard the distinc- tions made between salt and fresh water seas, which are not essen- tial, and hold that the reason of the statute, in providing for pro- tection against violent assaults on vessels in tidal waters, is no greater but identical with the reason for providing against similar assaults on vessels in navigable waters that are neither tidal or saline. The statute was intended to extend protection to persons on vessels belonging to citizens of the United States, not only upon the high seas, but in all navigable waters of every kind out of the jurisdiction of any particular state, whether moved by the tides or free from their influence. "The character of these lakes as seas was recognized by this court in the Chicago Lake Front ca,?e^ where we said: 'These lakes possess all the general characteristics of open seas, except in the freshness of their waters, and in the absence of the ebb and flow of the tide.' 'In other respects,' we added, 'they are inland seas, and there is no reason or principle for the assertion of dominion and sovereignty over and ownership by the state of lands covered by tide waters that is not equally applicable to its ownership of and dominion and sovereignty over lands covered by the fresh waters of these lakes.' Illinois Central Railroad v. Illinois, 146 U. S. 387, 435. JUDICIAL POWER. 87 "It is to be observed also that the term 'high' in one of its significations is used to denote that which is common, open, and public. Thus e-\'ery road or way or navigable river which is used freely by the public is a 'high' way. So a large body of navigable water other than a river, which is of an extent beyond the meas- urement of one's unaided vision, and is open and unconfined, and not under the exclusive control of any one nation or people, but is the free highway of adjoining nations or people, must fall under the definition of 'high seas' within the meaning of the stat- utes. We may as appropriately designate the open, unenclosed waters of the lakes as the high seas of the lakes, as to designate similar waters of the ocean as the high seas of the ocean, or sim- ilar waters of the Mediterranean as the high seas of the Mediter- ranean. "The language of section 5346, immediately following the term 'high seas,' declaring a penalty for violent assaults when committed on board of a vessel in any arm of the sea or in any river, haven, creek, basin, or bay, within the admiralty jurisdiction of the United States, and out of the jurisdiction of any particular state, equally as when committed on board of a vessel on the high seas, lends force to the construction given to that term. The language used must be read in conjunction with that term, and as referring to navigable waters out of the jurisdiction of any particular state, but connecting with the high seas mentioned. The Detroit River, upon which was the steamer Alaska at the time the assault was committed, connects the waters of Lake Huron ( with which, as stated above, the waters of Lake Superior and Lake Michigan join) with the waters of Lake Erie, and separates the Dominion of Canada from the United States, constituting the boundary be- tween them, the dividing line running nearly midway between its banks, as established by commissioners, pursuant to the treaty between the two countries. 8 Stat. 274, 276. The river is about 22 miles in length, and from one to three miles in width, and is navigable at all seasons of the year by vessels of the largest size. The number of vessels . passing through it each year is immense. .Between the years 1880 and 1892, inclusive, they averaged from thirty-one to forty thousand a year, having a tonnage varying from sixteen to twenty-four millions. In traversing the river they are constantly passing from the territorial jurisdiction of the one nation to that of the other. All of them, however, so far as tran- sactions had on board of them are concerned, are deemed to be y8 UNITED STATES COURTS. within the country of their owners. Constructively they consti- tute a part of the territory of the nation to which the owners be- long. Whilst they are on the navigable waters of the river they are within the admiralty jurisdiction of that country. This juris- diction is not changed by the fact that each of the neighboring nations may in cases assert its own authority over persons on such vessels in relation to acts committed by them within its territorial limits. In what cases jurisdiction by each country will be thus asserted and to what extent, it is not necessary to inquire, for no question on that point is presented for our consideration. The general rule is that the country to which the vessel belongs will exercise jurisdiction over all matters affecting the vessel or those belonging to her, without interference of the local government, unless they involve its peace, dignity, or tranquility, in which case it may assert its authority. Wildenhus's case, 120 U. S. i, 12; Halleck on International Law, c. vii., sec. 26, p. 172. The admir- alty jurisdiction of the country of the owners of the steamer upon which the offence charged was committed is not denied. They being citizens of the United States, and the steamer being upon navigable waters, it is deemed to be within the admiralty jurisdic- tion of the United States. It was, therefore, perfectly competent for Congress to enact that parties on board committing an assault with a dangerous weapon should be punished when brought with- in the jurisdiction of the District Court of the United States. But it will hardly be claimed that Congress by the legislation in question intended that violent assaults committed upon persons on vessels owned by citizens of the United States in the Detroit River, without the jurisdiction of any particular state, should be punished, and that similar offences upon persons on vessels of like owners upon the adjoining lakes should be unprovided for. If the law can be deemed applicable to offences committed on vessels in any navigable river, haven, creek, basin, or bay, connecting with the lakes, out of the jurisdiction of any particular state, it would not be reasonable to suppose that Congress intended that no remedy should be afforded for similar offences committed on vessels upon the lakes, to which the vessels on the river in almost all instances, are directed, and upon whose waters they are to be chiefly engaged. The more reasonable inference is that Congress intended to include the open, unenclosed waters of the lakes under the designation of high seas. The term, in the eye of reason, is applicable to the open, unenclosed portion of all large bodies of nav- JUDICIAL POWER. 89' igable waters, whose extent cannot be measured by one's vision, and the navigation of which is free to all nations and people on their borders, by whatever names those bodies may be locally desig- nated. In some countries small lakes are called seas, as in the case of the Sea of Galilee, in Palestine. In other countries large bodies of water, greater than many bodies denominated seas, are called lakes, gulfs, or basins. The nomenclature, however, does not change the real character of either, nor should it affect our construction of terms properly applicable to the waters of either. By giving to the term 'high seas' the construction indicated, there is consistency and sense in the whole statute, but there is neither if it be disregarded. If the term applies to the open, unenclosed waters of the lakes, the application of the legislation to the case under indictment cannot be questioned, for the Detroit Rive is a water connecting, such high seas, and all that portion which is north of the boundary line between the United States and Can- ada is without the jurisdiction of any state of the Union. But if they be considered as not thus applying, it is difficult to give any force to the rest of the statute without supposing that Congress intended to provide against violence on board of vessels in nav- igable rivers, havens, creeks, basins, and bays, without the juris- diction of any particular state, and intentionally omitted the much more important provision for like violence and disturbances on vessels upon the Great Lakes. All vessels in any navigable river, haven, creek, basin, or bay of the lakes, whether within or with- out the jurisdiction of any particular state, would sometimes find their way upon the waters of the lakes ; and it is not a reasonable inference that Congress intended that the law should apply to offences only on a limited portion of the route over which the ves- sels were expected to pass, and that no provision should be made for such offences over a much greater distance on the lakes. "Congress in thus designating the open, unenclosed portion of large bodies of water, extending beyond one's vision, naturally used the same term to indicate it as was used with reference to similar portions of the ocean or of bodies which had been desig- nated as seas. When Congress, in 1790, first used that term the existence of the Great Lakes was known; they had been visited by great numbers of persons in trading with the neighboring In- dians, and their immense extent and character were generally understood. Much more accurate was this knowledge when the Act of March 3, 1825, was passed, 4 Stat. 115, c. '65, and when 90 UNITED STATES COURTS. the provisions of Sec. 5346 were reenacted in the Revised Stat- utes in 1874. In all these cases, when Congress provided for the punishment of violence on board of vessels, it must have intended that the provision should extend to vessels on those waters the same as to vessels on seas, technically so-called. There were no bodies of water in the United States to any portion of which the term 'high seas' was applicable if not to the open, unenclosed waters of the Great Lakes. It does not seem reasonable to sup- pose that Congress intended to confine its legislation to the high seas of the ocean, and to its navigable rivers, havens, creeks, basins, and bays, without the jurisdiction of any state, and to make no provision for offences on those vast bodies of inland waters of the United States. There are vessels of every descrip- tion on those inland seas now carrying on a commerce greater than the commerce on any other inland seas of the world. And we cannot believe that the Congress of the United States purposely left for a century those who navigated and those who were conveyed in vessels upon those seas without any protection. "The statute under consideration provides that every person who, upon the high seas or in any river connecting with them, as we construe its language, within the admiralty jurisdiction of the United States, and out of the jurisdiction of any particular state, commits, on board of any vessel belonging in whole or in part to the United States, or any citizen thereof, an assault on another with a dangerous weapon or with intent to perpetrate a felony, shall be punished, etc. The Detroit River, from shore to shore, is within the admiralty jurisdiction of the United States, and con- nects with the open waters of the lakes — high seas, as we hold them to be, within the meaning of the statute. From the boun- dary line, near its center, to the Canadian shore, it. is out of the jurisdiction of the state of Michigan. The case presented is therefore directly within its provisions. The act of Congress of September 4, 1890, 26 St. 424, c. 874 (i Sup. to the Rev. Stat, chap. 874, p. 799), providing for the punishment of crimes sub- sequently committed on the Great Lakes, does not, of course, affect the construction of the law previously existing. "We are not unmindful of the fact that it was held by the Supreme Court of Michigan in People v. Tyler, 7 Michigan, 161, that the criminal jurisdiction of the Federal courts did not extend to offences committed upon vessels on the lakes. The judges who rendered that decision were ab^e and distinguished ; but that fact, JUDICIAL POWER. 91 y/hilst it justly calls for a careful consideration of their reason- ing, does not render their conclusion binding or authoritative upon this court. Their opinions show that they did not accept the doctrine extending the admiralty jurisdiction to cases on the lakes and navigable rivers, which is now generally, we might say almost universally, received as sound by the judicial tribunals of the country. It is true, as there stated, that, as a general prin- ciple, the criminal laws of a nation do not operate beyond its ter- ritorial limits, and that to give any government, or its judicial tri- bunals, the right to punish any act or transaction as a crime, it must have occurred within those limits. We accept this doctrine as a general rule, but there are exceptions to it as fully recognized as the doctrine itself. One of those exceptions is that offences committed upon vessels belonging to citizens of the United States, within their admiralty jurisdiction (that is, within navigable waters), though out of the territorial limits of the United States, may be judicially considered when the vessel and parties are brought within their territorial jurisdiction. As we have before stated, a vessel is deemed part of the territory of the country to which she belongs. Upon that subject we quote the language of Mr. Webster, while Secretary of State, in his letter to Lord Ash- burton of August, 1842. Speaking for the government of the United States, he stated with great clearness and force the doc- trine which is now recognized by all countries. He said: 'It is natural to consider the vessels of a nation as parts of its territory, though at sea, as the State retains its jurisdiction over them; and, accordingly to the commonly received custom, this jurisdiction is preserved over the vessels even in parts of the sea subject to a foreign dominion. This is the doctrine of the law of nations, clearly laid down by writers of received authority, and entirely conformable, as it is supposed, with the practice of modern nations. If a murder be committed on board of an American vessel by one of the crew upon another or upon a passenger, or by a passenger on one of the crew or another passenger, while such vessel is lying in a port within the jurisdiction of a foreign State or Sovereignty, the offence is cognizable and punishable by the proper court of the United States in the same manner as if such offence had been committed on board the vessel on the liigh seas. The law of England is supposed to be the same. It is true that the jurisdiction of a nation over a vessel belonging to it, while lying in the port of another, is not necessarily wholly 92 UNITED STATES COURTS. exclusive. We do not consider or so assert it. For any unlawful acts done by her while thus lying in port, and for all contracts entered into while there by her master or owners, she and they must, doubtless, be answerable to the laws of the place. Nor, if her master or crew, while on board in such port, break the peace of the community by the commission of crimes, can exemption be claimed for them. But, nevertheless, the law of nations, as I have stated it, and the statutes of governments founded on that law, as I have referred to them, show that enlightened nations, in modern times, do clearly hold that the jurisdiction and laws of a nation accompany her ships not only over the high seas, but into ports and harbors, or wheresoever else they may be water-borne. For the general purpose of governing and regulating the rights, duties, and obligations of those on board thereof, and that, to the extent of the exercise of this jurisdiction, they are considered as parts of the territory of the nation herself.' 6 Webster's Works, 306, 307. "We do not accept the doctrine that, because by the treaty between the United States and Great Britain the boundary line be- tween the two countries is run through the center of the lakes, their character as seas is changed, or that the jurisdiction of the United States to regulate vessels belonging to their citizens navigating those waters and to punish offences committed upon such vessels, is in any respect impaired. Whatever effect may be given to the bound- ary line between the two countries, the jurisdiction of the United States over the vessels of their citizens navigating those waters and the persons on board remains unaffected. The limitation to the jurisdiction by the qualification that the offences punishable are committed on vessels in any arm of the sea, or in any river, haven, creek, basin, or bay 'without the jurisdiction cf any par- ticular state,' which means without the jurisdiction of any state of the Union, does not apply to vessels on the 'high seas' of the lakes, but only to vessels on the waters designated as connecting with them. So far as vessels on those seas are concerned, there is no limitation named to the authority of the United States. It is true that lakes, properly so-called, that is, bodies of water whose dimensions are capable of measurement by the unaided vision, within the limits of a state, are part of its territory and subject to its jurisdiction, but bodies of water of an extent which cannot be measured by the unaided vision, and which are nav- igable at all times in all directions, and border on different nations- JUDICIAL POWER. 93 or states or people, and find their outlet in the ocean as in the present case, are seas in fact, however they may be designated. And seas in fact do not cease to be such, and become lakes, be- cause by local custom they may be so called. "In our judgment the District Court of the Eastern District of Michigan had jurisdiction to try the defendant upon the in- dictment found, and it having been transferred to the Circuit Court, that court had jurisdiction to proceed with the trial, and the demurrer to its jurisdiction should have been overruled. Our opinion, in answer to the certificate, is that "The courts of the United States have jurisdiction, under section 5346 of the Revised Statutes, to try a person for an as- sault, with a dangerous zveapon, committed on a vessel belong- ing to a citizen of the United States, ivhen such vessel is in the Detroit River, out of the Jurisdiction of any partictdar State, and zi'ithin the territorial limits of the Dominion of Canada; and it will be returned to the Circuit Court of the United States for the Sixth Circuit and Eastern District of Michigan, and it is so or- dered." Sixth. "To controversies to which the United States SHALL BE A PARTY." The Federal courts were given jurisdiction of this class of cases because it would not be wise to let any one state, a part of the nation, decide questions concerning all the states, or nation. The United States is a sovereign state, and like every other independent nation, is not liable as defendant in any suit, either in one of its own courts or in the courts of a state, without its consent. The United States may, however, sue as plaintiff in any proper court. The United States is a body cor- porate and sovereign authority, and may institute suits like other corporate bodies, in any court of any state of the Union; and, in this respect, she has the same rights and is entitled to the same remedies as natural persons.^*"^ The United States has given its consent to be sued in certain cases, and it established a Court of Claims to hear and determine suits against itself. This Court of Claims may give judgment against the United States if it finds the legal right to be with the claimant; but there is no way of enforcing its judgments, since no constraint can be put upon the United States. Usually, Congress appropriates money to pay such judgments. The United States may now be sued in the Circuit "^The Floyd Acceptances, 7 Wall. 666, (1868); United States v. In- nate, 48 Fed. Rep. 251, (1891). 94 UNITED STATES COURTS. and District Courts of the United States as well as in the Court of Claims.^"^ There seems to be one exception to the rule that a state cannot be sued without its consent. It is in the case of proceedings to appropriate property to public use under the pow- er of eminent domain. Land within a particular state, purchased and held by the United States as a mere proprietor, and not ap- " propriated for any specific use pertaining to the functions of the national government, may be condemned and appropriated for streets, highways, or other public purposes.^"^ To sum up, the United States, as plaintiff, may maintain a suit either in one of its own courts, or in the courts of a state, or in those of a foreign nation, according to the nature of the cause of action and the circumstances which determine the selec- tion of a forum. It may sue one of the states, and the proper forum is the Supreme Court of the United States. In ail the other cases, suit is usually brought in the inferior Federal courts. Suits against individuals are brought in the inferior Federal courts ; suits against states are brought in the Supreme Court of the United States ; and suits against foreign states or nations are brought in the tribunals of the foreign nations.^"* As a rule, the United States cannot be sued as defendant in any court without its consent. This consent is usually given by United States stat- utes, and cannot be given by an officer of the United States.^"* When the United States or a state grants a right of remedy against itself, or against its officers in a case in which the pro- ceeding is in fact against the state or United States, it, the state or United States, may attach whatever limitations and conditions it chooses ; and its own interpretation and application of its stat- utes on that subject, given by its own judicial tribunals, are con- clusive upon the parties seeking the benefits of them.^^° The principal question to remember is: When is it a controversy to which the United States is a party ? As a rule, the United States mnst be a party to the record, or if not a party to the record, it must be the real party in interest. If the United States is a mere nominal party to the suit, whether a party to t}ie record or not, the case does not fall within this provision. ""24 U. S. Stat. 505; United States v. Jones, 131 U. S. i, (1889). "'United States v. Chicago, 7 How. 185, (1849). '""United States v. Texas, 143 U. S. 621, (1892). "'Carr v. United States, 98 U. S. 433 (1878). "°De Saussure v. Gaillard, 127 U. S. 216, (iS' judicial power. 95 Sevexth. "To controversies between two or more STATES." The reason for giving the Supreme Court original juris- diction of controversies between two or more states was partly the consideration that such a jurisdiction was necessary to main- tain the peaceful and harmonious relations of the states in the Union, and partly in order to secure the dignity of the states themselves, which might justly have been deemed compromised if the settlement of their dispute had been entrusted to any other or inferior authority. Before the Constitution there was no court in which one state could sue another. In fact, while history fur- nishes some few illustrations of a central authority invested with power to hear controversies between quasi-independent powers, and to arbitrate between them, there is no exact histor- ical parallel for this provision of the Constitution, which erects the Supreme Federal tribunal not merely into an arbitrator but a judge between states, invested with full jurisdiction and with power to command obedience to its decisions. That court can not only hear and determine all controversies between different states, of which it is given original jurisdiction, but can also bring before it by process, as it can bring the humblest citizen, and declare its judgment, which it has usually been able to en- force. ^^^ But in order to call into exercise this jurisdiction of the Supreme Court, it is necessary that states, as such, should be actually parties in interest in the controversy, and not merely nominal parties. ^^^ Many questions might arise under this clause concerning the reach of the Federal jurisdiction over controversies between states. The clause is general, and only as cases arise can it be determined whether they present questions which are properly of judicial cognizance as between states. Very few cases between states have been brought in the Supreme Court, except in regard to the settlement of disputed boundaries. These cases, it is set- tled, are such controversies as the court may hear and deter- mine."° It matters not what the character of the suit is. If it is brought by one state against another, the Supreme Court has original jurisdiction."* "'Miller Const. 330. "Towler V. Lindsey, 3 Dall. 411, (i799) : N. H. v. La., 108 U. S. 76, ( iSS^) '"R I. V. Mass., 12 Pet. 657, (1838). '"Va. V. W. Va., II Wall. 39, (1870). 96 UNITED STATES COURTS. In providing for the trial of causes between two or mori states, the Constitution intends only the states of the Union, thi term being taken in the strictest sense, and excluding the terri tories and the District of Columbia.^^^ Neither is an Indian tribi a "state" ; nor is it a foreign power or state. And consequently it cannot sue in the Federal courts."" The Eleventh Amendmen has not taken away the liability of a state to another state or to ; foreign state. Eighth. "Between a state and citizens of anotiiei STATE." The Federal courts were given jurisdiction of this clas! of cases in order that there be no friction between states, or theii citizens. An independent tribunal, such as a Federal court, woulc be above suspicion of partiality, and in that way, the harmoniou; relations between the states, or their citizens, would be preserved Under this class of cases, it will be noticed that the jurisdictior extends to suits brought by states against citizens of othe: states, or it extends to suits by citizens of other states agams' states. In other words, the provision works both ways. Soor after the Constitution went into operation, a question arose as tc the interpretation to be given to this provision. The questior was : Under this provision, can a state be sued in a Federal coun by a citizen of another state? Some maintained that such a suil could not be brought ; while others maintained that it could. I had long been a maxim of the common law that a sovereign state could not be sued by individuals except by its consent. The states considered themselves in the light of sovereign states, anc were very jealous of state rights. In the case of Chisholm v Georgia, 2 Dall. 4.19, (1793), the question finally came before th( Supreme Court, and it was decided that a citizen of another state could sue a state in the Federal court without the consent of the state sued. This decision excited much opposition, and led tc the adoption of the eleventh amendment to the Constitution, whicl: prohibited the construction given by the Supreme Court. The Eleventh Amendment to the Constitution of the Unitee; States provides as follows: "The judicial power of the United States shall not be construed to extend to any suit at law or equity commenced or prosecuted against one of the United States bj xitizens of another state, or by citizens or subjects of any foreigti 116, Scott V. Jones, 5 How. 343, (1847). Cherokee Nation v. Ga., 5 Pet. i, (1831). JUDICIAL POWER. 97 States." The effect of this amendment is that the states are no longer subject to suit in the Federal courts by private persons. If private persons wish to sue states, they must bring their suits in the courts that the states have provided, and these are usually called Courts of Claims. Since the adoption of the Eleventh Amendment, we may sum up the rules as follows: (i) A state may be sued in the Federal court by another state, or by a foreign state, or by the United States ; (2) A state may sue a state in the Federal court; (3) A state can not sue the United States except in the Court of Claims; (4) A citizen of another state, or the citi- zen or subject of a foreign state, can not sue a state in a Federal court, such suit must be brought in the Court of Claims provided by the state sued ; ( 5 ) A citizen can not sue his own state in a Federal court because the Federal courts were never given juris- diction of such cases ; if a citizen wishes to sue his own state he must sue it in the Court of Claims ; (6) A state can not sue one of its own citizens in a Federal court, the state must sue its own citizens in its own courts ; (7) A state may sue a citizen of another state in a Federal court, or it may sue such citizen in its own courts, providing it can get service on him within the state.^^^ When is a suit against a state under the Eleventh Amendment? This question has been before the United States Supreme Court miany times, and is now pretty well settled. In Cunningham v. Macon & B. Ry. Co., 109 U. S. 446, (1883), the Court, in speaking of this question, said: "It may be accepted as a point of departure unquestioned, that neither a state nor the United States can be sued as defend- ant in any court in this country witliout its consent, except in the limited class of cases in which a state may be made a party in the Supreme Court of the United States by virtue of the orig- inal jurisdiction conferred on this court by the Constitution. "This principle is conceded in all the cases, and whenever it can be clearl}- seen that the state is an indispensable party to en- able the court, according to the rules which govern its procedure, to grant the relief sought, it will refuse to take jurisdiction. But in the desire to do that justice, which in many cases the courts can see will be defeated by an unwarranted extension of this principle, they have in some instances gone a long way in holding "'United States v. Texas, 143 U. S. 621, (1892) ; Cal. v. So. Pac. Co., IS7 U S 229, (189s); Texas v. White, 7 Wall. 700, (1868); Penn. v. •Quicksilver Co., 10 Wall SS3, (1870). 7 98 UNITED STATES COURTS. the state not to be a necessary party, though some interest of hers may be more or less affected by the decision. In many of these cases the action of the court has been based upon principles whose sQundness cannot be disputed. A reference to a few of them may enlighten us in regard to the case now under consider- ation. 1. It has been held in a class of cases where property of the state, or property in which the state has an interest, comes before the court and under its control, in the regular course of judicial administration, without being forcibly taken from the possession of the government, the court will proceed to discharge its duty in regard to that property. And the state, if it choose to come in as plaintiff, as in prize cases, or to intervene in other cases when she may have a lien or other claim on the property, will be permitted to do so, but subject to the rule that her rights will receive the same consideration as any other party interested in the matter, and be subjected in like manner to the judgment of the court. Of this class are the cases of The Siren, 7 Wall, 152, 157; The Davis, 10 Wall., 15, 20; and Clark v. Barnard and oth- ers, 108 U. S. 2. Another class of cases is where an individual is sued in tort for some act injurious to another in regard to person or property, to which his defence is that he has acted under the orders of the government. "In these cases he is not sued, as, or because, he is, the officer of the government, but as an individual, and the court is not ousted of jurisdiction because he asserts authority as such officer. To make out his defence he must show that his authority was suf- ficient in law to protect him. See Mitchell v. Harmony, 13 How. 115; Bates V. Clark, 95 U. S. 204; Meigs v. McClung, 9 Cranch, 11; Wilcox V. Jackson, 13 Pet. 498; Brown v. Huger, 21 How. 305 ; Grisar v. McDowell, 6 Wall. 363. "To this class belongs also the recent case of United States V. Lee, 106 U. S. 196, for the action of ejectment in that case is, in its essential character, an action of trespass, with the power in the court to restore the possession to the plaintiff as part of the judgment. And the defendants. Strong and Kaufman, being sued individually as trespassers, set up their authority as officers of the United States, which this court held to be unlawful, and therefore insufficient as a defence. The judgment in that case did not conclude the United States, as the opinion carefully stated. JUDICIAL POWER. 99 but held the officers Hable as unauthorized trespassers, and turned them out of their unlawful possession. "3- -^ third class, which has given rise to more controversy, is where the law has imposed upon an officer of the government a well defined duty in regard to a specific matter, not affecting the general powers or functions of the government, but in the per- formance of which one or more individuals have a distinct inter- est capable of enforcement by judicial process. "Of this class are writs of mandamus to public officers, as in Marbury v. Madison, i Cranch, 137; Kendall v. Stokes, 3 How. 87; United States v. Schurtz, 102 U. S., 378; United States v. Boutwell, 17 Wall., 604. "But in all such cases, from the nature of the remedy by mandamus, the duty to be performed must be merely ministerial, and must involve no element of discretion to be exercised by the officer. "It has, however, been much insisted on that in this class of cases, where it shall be found necessary to enforce the rights of the individual, a court of chancery may, by a mandatory decree or by an injunction, compel the performance of the appropriate duty, or enjoin the officer from doing that which is inconsistent with that duty and with plaintiff's rights in the premises. "Perhaps the strongest assertion of this doctrine is found in the case of Davis v. Gray, 16 Wall., 203." In the case of In re Ayers, 123 U. S., 443, (1887), the Court held: "The principal contention on the part of the petitioners is that the suit, nominally against them, is, in fact and in law, a suit against the State of Virginia, whose officers they are, juris- diction to entertain which is denied by the Eleventh Amendment to the Constitution, which declares that 'the judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by citizens of another state, or by citizens or subjects of any for- eign state.' On the other hand, it is contended by counsel for the complainants in that cause, who have argued against the dis- charge of the petitioners, that the suit is not within that prohibi- tion. "It must be regarded as a settled doctrine of this court, estab- lished by its recent decisions, 'that the question whether a suit is within the prohibition of the Eleventh Amendment is not always 100 UNITED STATES COURTS. determined by reference to the nominal parties on the record.' Poindexter v. Greenhow, 114 U. S., 270, 287. This, it is true, is not in harmony with what was said by Chief Justice Marshall in Osborn v. Bank of the United States, 9 Wheat., 738, 857. In his opinion in that case he said : 'It may, we think, be laid down as a rule which admits of no exception, that, in all cases where juris- diction depends on the party, it is the party named in the record. Consequently, the Eleventh "Amendment, which restrains the jurisdiction granted by the Constitution over suits against states, is, of necessity, limited to those suits in which a state is a party on the record. The amendment has its full effect, if the Consti- •tution be construed as it would have been construed had the juris- diction of the court never been extended to suits brought against a state by the citizens of another state or by aliens.' And the point as involved in that case was stated by Mr. Justice Swayne, deliv- ering the opinion of the court in Davis v. Gray, 16 Wall., 203, 220, as follows : 'In deciding who are parties to the suit the court will not look beyond the record. Making a state officer a party does not make the state a party, although her law may have prompted his action and the state may stand behind him as the real party in interest. A state can be made a party only by shap- ing the bill expressly with that view, as where individuals or cor- porations are intended to be put in that relation to the case.' But what was said by Chief Justice Marshall in Osborn v. Bank of the United States, supra, must be taken in connection with its immediate context, wherein he adds (page 858) : 'The state not being a party on the record, and the court having jurisdiction over those who are parties on the record, the true question is not one of jurisdiction, but whether, in the exercise of its jurisdiction, the court ought to make a decree against the defendants ; whether they are to be considered as having a real interest, or as being only nominal parties.' This conveys the intimation, that where the defendants who are sued as officers of the state, have not a real, but merely a nominal interest in the controversy, the state appearing to be the real defendant, and therefore an indispens- able party, if the jurisdiction does not fail for want of power over the parties, it does fail, as to the nominal defendants, for want of a suitable subject matter. "This, indeed, seems to be the interpretation put upon this language by Chief Justice Marshall himself in the opinion of the court, delivered by him in the case of The Governor of Georgia JUDICIAL POWER. 101 V. Madrazo, i Pet., no, 123, 124. After quoting the paragraphs from the opinion in the case of Osborn v. Bank of the United States, above extracted, the Chief Justice mentioned the case of Georgia v. Brailsford, 2 DalL, 402, wliere the action was not in the name of the state, but was brought by tlie governor ill its behalf, and added: 'If, therefore, the state was properly consid- ered as a party in that case, it may be considered as a part\ in this.' He further said : 'The claim upon the Governor is as a gov- ernor ; he is sued, not by his name, but by his title. The demand made upon him is not made personally, but officially. The decree is pronounced, not against the person, but the officer, and appears to have been pronounced against the successor of the original de- fendant ; as the appeal bond was executed by a different governor from him who filed the information. In such a case, where the chief magistrate of a state is sued, not by his name, but by his style of office, and the claim made upon him is entirely in his official character, we think the state itself may be considered as a party on the record. If the state is not a party, there is no party against whom a decree can be made. No person in his natural capacity is brought before the court as defendant.' It was there- fore held, in that case, that the state was in fact, though not in form, a party defendant to the suit, and that, consequently, the Circuit Court had no jurisdiction to pronounce the decree ap- pealed from. See also Ex parte Juan Madrazzo, 7 Pet. 627. This view was reiterated by this court in Kentucky v. Dennison, 24 How. 66, 98, where it was said to be settled, 'that where the state is a party, plaintiff or defendant, the governor represents the state, and the suit may be, in form, a suit by him as governor in behalf of the state, where the state is plaintiff, and he must be summoned or notified as the officer representing the state, where the state is defendant.' Accordingly, in Cunningham v. Macon & Brunswick Railroad Co., 109 U. S. 446, it was decided that in those cases where it is clearly seen upon the record that a state is an indispensable party to enable the court, according to the rules which govern its procedure, to grant the relief sought, it will refuse to take jurisdiction. The inference is, that where it is manifest, upon the face of the record, that the defendants have no individual interest in the controversy, and that the relief sought against them is only in their official capacity as representatives of the state, which alone is to be affected by the judgment or de- 102 UNITED STATES COURTS. cree, the question then arising, whether the suit is not substan- tially a suit against the state, is one of jurisdiction. "The very question was presented in the cases of New Hampshire v. Louisiana and New York v. Louisiana, io8 U. S. "^6. In each of these cases thefe was upon the face of the record nominally a controversy between two states, which, according to the terms of the Constitution, was subject to the judicial power of the United States. So far as could be determined by refer- ence to the parties named in the record, the suits were within the jurisdiction of this court; but, on an examination of the cases as stated in the pleadings, it appeared that the state, which was plaintiff, was suing, not for its own use and interest, but for the use and on behalf of certain individual citizens thereof, who had transferred their claims to the state for the purposes of suit. It was accordingly unanimously held by this court, that it would look behind and through the nominal parties on the record, to ascertain who were the real parties to the suit. The Chief Jus- tice, speaking for the court in that case, made a review of the circumstances which led to the adoption of the Eleventh Amend- ment, and, in concluding his opinion, said: "The evident purpose of the amendment, so promptly proposed and finally adopted, was to prohibit all suits against a state by or for citizens of other states, or allies, without the consent of the state to be sued ; and, in our opinion, one state cannot create a controversy with another state, within the meaning of that term as used in the judicial clauses of the Constitution, by assuming the prosecution of debts owing by the other state to its citizens. Such being the case, we are satisfied that we are prohibited, both by the letter and the spirit of the constitution, from entertaining these suits, and the bill in each case is dismissed.' (p. 91.) "The converse of that case is to be found in Hagood v. Southern, 117 U. S. 52. There, the State of South Carolma, which was the party in interest, was not nominally a defendant. The nominal defendants were the Treasurer of the State of South Carolina, its Comptroller-General, and the treasurers of its various counties and their successors in office. The object of the bills was to obtain on behalf of the complainants, by judicial pro- cess, the redemption by the state of certain scrip of wljich they were holders, according to the terms of a statute in pursuance of which it was issued, by the levy, collection, and appropriation of a special tax pledged to that purpose, as they claimed, by an JUDICIAL POWER. 103 irrepealable law, constituting a contract protected from violation by the Constitution of the United States. The decrees of the Circuit Court granting the relief were reversed, and the cause re- manded, with instructions to dismiss the bills, on the ground that the suits, though nominally against the officers of the state, were really against the state itself. In its opinion this court said (page 67) : 'These suits are accurately described as bills for the specific performance of a contract between the complainants and the State of South Carolina, who are the only parties to it. But to these bills the state is not in name made a party defendant, though leave is gi^-en to it to become such if it chooses ; and, except with that consent, it could not be brought before the court and be made to appear and defend. And yet it is the actual party to the alleged contract, the performance of which is decreed; the one required to perform the decree; and the only party by whom it can be performed. Though not nominally a party to the record, it is the real and only party in interest, the nominal defendants being the officers and agents of the state, having no personal interest in the subject matter of the suit, and defending only as representing the state. And the things required by the decrees to be done and performed by them are the very things which, when done and performed, constitute a performance of the alleged contract by the state. The state is not only the real party to the controversy, but the real party against which relief is sought by the suit, and the suit is, therefore, substantially within the prohibition of the Eleventh Amendment to the Constitution of the United States.' "The conclusions in the case of Hagood v. Southern were justified by what had previously been decided by this court in the cases of Louisiana v. Jumel and Elliott v. Whitz, 107 U. S. 711. Those cases had for their object, one, by injunction, to restrain the officers of the state from executing the provisions of the act of the General Assembly alleged to be in violation of the contract rights of the plaintififs, and the other, by mandamus, to require the appropriation of money from the treasury of the state in ac- cordance with the contract. This relief, it was decided, was not within the competency of the judicial power. The Chief Justice said, on that point (page ^2^) : 'The remedy sought, in order to be complete, would require the court to assume all the executive authority of the state, so far as it related to the enforcement of this law, and to supervise the conduct of all persons charged with any official duty in .respect to the levy, collection, and disburse- 104 UNITED STATES COURTS. ment of the tax in question until the bonds, principal and interest, were paid in full ; and that, too, in a proceeding in which the state, as a state, was not and could not be made a party. It needs no argument to show that the political power cannot be thus ousted of its jurisdiction and the judiciary set in its place. When a state submits itself, without reservation, to the jurisdiction of a court in a particular case, that jurisdiction may be used to give full effect to what the state his, by its act of subimssion, allowed to be done ; and if the law permits coercion of the public officers to enforce any judgment that may be rendered, then such coercion may be employed for that purpose. But this is very far from authorizing the courts, when a state cannot be sued, to set up its jurisdiction over the officers in charge of the public moneys, so as to control them as against the political power, in their admin- istration of the finances of the state.' "It is, therefore, not conclusive of the principal question in this case, that the State of Virginia is not named as a party de- fendant. Whether it is the actual party, in the sense of the pro- hibition of the Constitution, must be determined by a considera- tion of the nature of the case as presented on the whole record." Ninth. "Between citizens of different states." The Federal courts were given jurisdiction of this class of cases be- cause of the apprehension that a -citizen sued in the courts of his own state by a non-resident might be able to prevail unjustly, in consequence of local influence and prejudice against citizens of other states. In this class of cases, a citizen of one state can sue a citizen of another state in the Federal court providing the amount involved is large enough. Congress has provided that in this class of cases the amount must be two thousand dollars. Al- though the Federal courts have jurisdiction of cases between citi- zens of different states, this does not necessarily deprive the state courts of jurisdiction of the same classes of cases. For example, "A," a citizen of Michigan, can sue "B," a citizen of Ohio, in the United States Circuit Court, providing the amount involved ex- ceeds two thousand dollars, exclusive of interest and costs. How- ever, "A" is not obliged to sue "B" in the United States Court; he can go to Ohio and sue "B" in the state court; or if "A" finds "B" in Michigan, he can sue "B" in the Michigan court. In order to confer Jurisdiction on the Federal courts in this class of cases, the requisite diversity of citizenship between the parties must appear on the face of the record, and if the record JUDICIAL POWER. 105 fails to show a case, the court will dismiss the cause on its own motion.^^^ In this class of cases, the controversy must be between citizens of different states. It does not mean a controversy be- tween two aliens or between an alien and a citizen; or a contro- versy between a citizen of the District of Columbia, or a citizen of a territory, and a citizen of a state. It means a controversy be- tween citizens of diiferent states, and the citizens between whom the controversy exists must be not only citizens of states but of the United States as well. If such is not the case, the Federal court has no jurisdiction under this Constitutional provision. It must be remembered that a person can be a citizen of the United States and not of a state, or a man can be a citizen of a state and not a citizen of the United States, but being a citizen of the United States and residing within a state makes you a citizen of that state within this Constitutional provision. A citizen is a native born or naturalized person, and a declaration of intention to become a citizen is not sufficient to make one a citizen. The full naturalization proceedings must be completed. Residence may not be the equivalent of citizenship.^^" To give jurisdiction in this class of cases, it must be a controversy between citizens of different states in which every party upon one side is a citizen of a different state from every party upon the other, and to deter- mine between whom the controversy exists, the court will exam- ine the record. ^^" The citizenship of formal parties with no real interest in the controversy does not affect the jurisdiction. It is the citizenship of the real party in interest that governs. ^^^ If one of the parties sues or is sued as a receiver, or as an executor or administrator, or as guardian or trustee, his own citizenship, not that of those whom he represents, is the test in determining the jurisdiction. But when an infant sues by his next friend or guardian, the citizenship of the infant alone is to be considered.^^'' If jurisdiction has once attached, it will not be defeated by change of citizenship between the parties. Neither will a change of own- "'Morris v. Gilmer, 129 U. S. 315, (li _ ""Robertson v. Cease, 97 U. S. 646, (1878); Bors v. Preston, iii U. S. 252, (1884). '""Blake v. McKim, 103 U. S. 336, (1880) ; Removal Cases, 100 U. S. 457, (1879)- ™Md. V. Baldwin, 112 U. S. 490, (1884) ; McNutt v. Bland, 2 How. 9, (1844). ""TDavies v. Lathrop, 12 Fed. Rep. 353, (1882) ; Rice v. Houston, 13 Wall. 66, (1871) ; Woolbridge v. McKenna, 8 Fed Rep. 650, (1881). 106 UNITED STATES COURTS. ership of property which is the subject of the action defeat juris- diction.^-^ For the purpose of bringing suit in Federal courts, a corporation is conclusively presumed to be a citizen of the state wherein it was incorporated. In other words, a corporation is a citizen within the meaning of this Constitutional provision, and it can sue in the Federal courts just the same as a natural person.^^* Tenth. "Controversies between citizens of the same state claiming lands under grants of different states.'" Jurisdiction in this class of cases was given to the Federal courts because neither of the two states ought to decide the controversy. The rights of the two states are drawn in question, consequently, neither is competent to provide the court to settle the case. An independent tribunal will be more apt to do justice in such cases. This provision is illustrated in a case where one party claimed land under a grant of New Hampshire made when Vermont was a part of that state, and the other under a grant from Vermont made after their separation, it was held that the controversy arose between persons claiming land under grants of different states.^^" Eleventh. "Between a state, or the citizens thereof, AND FOREIGN STATES, CITIZENS OR SUBJECTS." All questions touch- ing the duties due to foreign people ought to be decided by a national court, and this is the reason we find the Federal courts exercising jurisdiction over this class of cases. Under this Con- stitutional provision, the Federal jurisdiction extends to suits by states against foreign states, citizens or subjects. It also extends to suits by foreign states against states or against citizens of states; but it does not extend to suits against states by citizens or subjects of foreign states, as the Eleventh Amendment cuts off such suits. The citizens of a state may sue foreign citizens or subjects, or, foreign citizens or subjects may sue citizens of a state.^^" But where both plaintiff and defendant are aliens, a Federal court will not take jurisdiction under this provision.^^^ An alien continues to be a citizen or subject of a foreign state until he has been fully naturalized under the laws of the United "'Clark V. Mathewson, 12 Pet. 164, (1838) ; Dunn v. Qarke, 8 Pet. I, (1834). "■"Shaw V. Quincy, 145 U. S. 444, (1892). "'"Pawlet V. Clark, 9 Cranch 292, (1815). ""Brown v. Strode, s Cranch 303, (1809) ; Piquignot v. Pa. Ry. Co., 16 How. 104, (1853). ^"Montalett v. Murray, 4 Cranch 46, (1807) ; Jackson v. Twentyman, 2 Pet. SS6, (1829). JUDICIAL POWER. 107 States. A declaration of intention to become a citizen, nor will the fact that the state in which he resides has given him the right to vote be enough. An Indian residing within the United States is not a foreign citizen or subject within the meaning of the Constitution, and he cannot on that ground maintain a suit in the Federal courts. A foreign corporation is deemed an alien within the meaning of this provision. It must be remembered that in those cases where aliens can sue in the Federal courts, only alien friends are meant, as it is not according to the rules of International Law to open the courts to alien enemies ; but if an alien enemy is sued, he will be allowed to defend. The distinction between the word "citizen" and "subject," as used here, is said to be that the former relates to individuals of popular govern- ments, the latter to monarchies.^^* ^"Karrahoo v. Adams, i Dill. 344, ( 1870) ; Society v. New Haven, 8 Wheat. 464, (1823); Minneapolis v. Reum, 56 Fed. Rep. 576, (1893). CHAPTER IV. JURISDICTION OF THE SUPREME COURT. Constitutional ProTision. The provision in the Constitution of the United States which distributes the judicial power among the courts is as follows: "In all cases affecting ambassadors, other public ministers, and consuls, and those in which a state shall be a party, the Supreme Court shall have original jurisdiction, and in all other cases men- tioned in the grant of judicial power, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions and under such regulations as the Congress shall make.'' In other words, the jurisdiction of the Supreme Court is divided into two classes, viz., (i) Cases of Original Jurisdiction, (2) Cases of Appellate Jurisdiction. Original jurisdiction means that the case is begun there, in the first instance, without first hav- ing been instituted in an inferior court. Appellate jurisdiction means that the suit was begun in an inferior court and was taken up to a higher court by appeal or writ of error, or any other method, as the nature of the case may require. The original juris- diction of the Supreme Court extends to the following cases : ( i ) "All cases affecting ambassadors, other public ministers, and con- suls," (2) "All cases in which a state shall be a party." In all the other cases mentioned in the Constitution, the Supreme Court has appellate jurisdiction with such exceptions and under such regulations as Congress shall make. The purpose of giving the Supreme Court original jurisdiction in the two classes of cases mentioned, was to prevent delay in arriving at a final decision of questions of international importance and of questions involving the states, and also, to show curtesy to the parties by allowing them to bring their suits in the highest court of the land in the first instance. Very few cases are heard under the original jurisdic- tion. Nearly all the business of the Supreme Court is under its appellate jurisdiction, as it is the court of final resort upon all questions involving the constitution, laws, or treaties of the United States. JURISDICTION SUPREME COURT. 109 One of the first questions that came before the Supreme Court for its decision was, whether Congress could confer upon the Supreme Court other original jurisdiction than that mentioned in the Constitution. It arose in this way: John Adams, President of the United States, appointed Wil- liam Marbury Justice of the Peace of the District of Columbia; the Senate advised and consented to the appointment; the com- mission in due form was signed by President Adams ; and the seal of the United States was in due form affixed to the commis- sion by the Secretary of State. Adams' term of office having expired, Jefferson became President, and Madison was appointed Secretary of State. Madison refused to deliver the commission to Marbury, and so Marbury applied to the Supreme Court for a writ of mandamus to compel delivery of the commision. Mar- bury's application for mandamus was based upon an act of Con- gress, the Judiciary Act of 1789, which authorized the issuing of mandamus in such cases in the first instance. Now, if Congress could give the Supreme Court jurisdiction in such cases as this, it was actually conferring upon the Supreme Court original juris- diction in cases other than the two classes provided in the Consti- tution. But the Supreme Court said Congress could not do this, and that the act of Congress was null and void. The court in deciding this case, Marbury v. Madison, i Cranch 137, (1803), used the following language : "The constitution vests the whole judicial power of the United States in one Supreme Court, and such inferior courts as Congress shall, from time to time, ordain and establish. This power is expressly extended to all cases arising under the laws of the United States ; and, consequently, in some form, may be exercised over the present case ; because the right claimed is given by a law of the United States. "In the distribution of this power it is declared that 'the Supreme Court shall have original jurisdiction in all cases affect- ing ambassadors, other public ministers and consuls, and those in which a state shall be a party. In all other cases, the Supreme Court shall have appellate jurisdiction.' "It has been insisted, at the bar, that as the original grant of jurisdiction, to the Supreme and inferior courts, is general, and the clause, assigning original jurisdiction to the Supreme Court, contains no negative or restrictive words, the power remains to the legislature, to assign original jurisdiction to that court in other 110 UNITED STATES COURTS. cases than those specified in the article which has been recited ; provided those cases belong to the judicial power of the United States. "If it had been intended to leave it in the discretion of the legislature to apportion tlie judicial power between the Supreme and inferior courts according to the will of that body, it would cer- tainly have been useless to have proceeded further than to have defined the judicial power, and the tribunals in which it should be vested. The subsequent part of the section is mere surplusage, is entirely without meaning, if such is to be the construction. If Congress remains at liberty to give this court appellate jurisdic- tion, where the constitution has declared their jurisdiction shall be original; and original jurisdiction where the constitution has declared it shall be appellate ; the distribution of jurisdiction, made in the constitution, is form without substance. "Affirmative words are often, in their operation, negative of other objects than those affirmed ; and m this case, a negative or exclusive sense must be given to them, or they have no operation at all. "It cannot be presumed that any clause in the constitution is intended to be without ofifect; and, therefore, such a construction is inadmissable, unless the words require it. "If the solicitude of the convention, respecting our peace with foreign powers, induced a provision that the Supreme Court should take original jurisdiction in cases which might be supposed to affect them; yet the clause would have proceeded no further than to provide for such cases, if no further restriction on the pow- ers of Congress had been intended. That they should have appel- late jurisdiction in all other cases, with such exceptions as Con- gress might make, is no restriction; unless the. words be deemed exclusive of original jurisdiction. "When an instrument organizing fundamentally a judicial system, divides it into one supreme, and so many inferior courts as the legislature may ordain and establish; then enumerates its powers, and proceeds so far to distribute them, as to define the jurisdiction of the Supreme Court by declaring the cases in which it shall take original jurisdiction, and that in others it shall take appellate jurisdiction; the plain import of the words seems to be, that in one class of cases its jurisdiction is original, and not appel- late; in the other it is appellate, and not original. If any other construction would render the clause inoperative, that is an addi- JURISDICTION SUPREME COURT. Ill lional reason for rejecting such other construction, and for adher- ing to their obvious meaning. "To enable this court, then, to issue a mandamus, it must be shown to be an exercise of appellate jurisdiction, or to be necessary to enable them to exercise appellate jurisdiction. "It has been stated at the bar that the appellate jurisdiction may be exercised in a variety of forms, and that if it be the will of the legislature that a mandamus should be used for that pur- pose, that will must be obeyed. This is true, yet the jurisdiction must be appellate, not original. 'Tt is the essential criterion of appellate jurisdiction, that it revises and corrects the proceedings in a cause already instituted, and does not create that cause. Although, therefore, a mandamus may be directed to courts, yet to issue such a writ to an officer for the delivery of a paper, is in effect the same as to sustain an ori- ginal action for that paper, and, therefore, seems not to belong to appellate, but to original jurisdiction. Neither is it necessary in such a case as this, to enable the court to exercise its appellate jurisdiction. "The authority, therefore, given to the Supreme Court, by the act establishing the judicial courts of the United States, to issue writs of mandamus to public ofi&cers, appears not to be warranted by the constitution; and it becomes necessary to inquire whether a jurisdiction so conferred can be exercised. "The question, whether an act,- repugnant to the constitution, can become the law of the land, is a question deeply interesting to the United States ; but, happily, not of an intricacy proportioned to its interest. It seems only necessary to recognize certain prin- ciples, supposed to have been long and well established, to decide it. "That the people have an original right to establish, for their future government, such principles, as, in their opinion, shall most conduce to their own happiness is the basis on which the whole American fabric has been erected. The exercise of this original right is a very great exertion ; nor can it, nor ought it, to be fre- quently repeated. The principles, therefore, so established, are deemed fundamental. And as the authority from which they pro- ceed is supreme, and can seldom act, they are designed to be per- manent. "This original and supreme will organizes the government, and assigns to different departments their respective powers. It 112 UNITED STATES COURTS. may either stop here, or establish certain hmits not to be trans- cended by those departments. "The government of the United States is of the latter descrip- tion. The powers of the legislature are defined and limited ; and that those limits may not be mistaken, or forgotten, the constitu- tion is written. To what purpose are powers limited, and to what purpose is that limitation committed to writing, if these limits may, at any time, be passed by those intended to be restrained? The distinction between a government with limited and unlimited pow- ers is abolished, if those limits do not confine the persons on whom they are imposed, and if acts prohibited and acts allowed, are of equal obligation. It is a proposition too plain to be contested, that the constitution controls any legislative act repugnant to it; or, that the legislature may alter the constitution by an ordinary act. "Between these alternatives there is no middle ground. The constitution is either a superior paramount law, unchangeable by , ordinary means, or it is on a level with ordinary legislative acts, and, like other acts, is alterable when the legislature shall please to alter it. "If the former part of the alternative be true, then a legisla- tive act contrary to the constitution is not law : if the latter part be true, then written constitutions are absurd attempts, on the part of the people, to limit a power in its own nature illimitable. "Certainly all those who have framed written constitutions contemplate them as forming the fundamental and paramount law of the nation, and, consequently, the theory of every such govern- ment must be, that an act of the legislature, repugnant to the con- stitution, is void. "This theory is essentially attached to a written constitution, and is, consequently, to be considered, by this court, as one of the fundamental principles of our society. It is not therefore to be lost sight of in the further consideration of this subject. "If an act of the legislature, repugnant to the constitution, is void, does it, notwithstanding its invalidity, bind the courts, and oblige them to give it effect? Or, in other words, thought it be not law, does it constitute a rule as operative as if it was a law? This would be to overthrow in fact what was established in theory ; and would seem, at first view, an absurdity too gross to be insisted on. It shall, however, receive a more attentive consideration. "It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to JURISDICTION SUPREME COURT. 113 particular cases must of necessity expound and interpret tiiat rule. If two laws conflict with each other, the courts must decide on the operation of each. "wSo if a law be in opposition to the constitution ; if both the law and the constitution apply to a particular case, so that the court must either decide that case conformably to the law, dis- regarding the constitution ; or conformably to the constitution, dis- regarding the law , the court must determine which of these con- flicting rules governs the case. This is of the very essence of judicial duty. "If, then, the courts are to regard the constitution, and the constitution is superior to any ordinary act of the legislature, the constitution, and not such ordinary act, must govern the case to which they both apply. "Those, then, who controvert the principle that the constitu- tion is to be considered, in court, as a paramount law, are reduced to the necessity of maintaining that courts must close their eyes on the constitution, and see only the law. "This doctrine would subvert the very foundation of all writ- ten constitutions. It would declare that an act which, according to the principles and theory of our government, is entirely void, is yet, in practice, completely obligatory. It would declare that if the legislature shall do what is expressly forbidden, such act, notwithstanding the express prohibition, is in reality effectual. It would be giving to the legislature a practical and real omnipo- tence, with the same breath which professes to restrict their pow- ers within narrow limits. It is prescribing limits, and declaring that those limits may be passed at pleasure. "That it thus reduces to nothing what we have deemed the greatest improvement on political institutions, a written constitu- tion, would of itself be sufficient, in America, where written con- stitutions have been viewed with so much reverence, for rejecting the construction. But the peculiar expressions of the constitution of the United States furnish additional arguments in favor of its rejection. "The judicial power of the United States is extended to all cases arising under the constitution. "Could it be the intention of those who gave this power, to say that in using it the constitution should not be looked into? That a case arising under the constitution should be decided with- out examining the instrument under which it arises? 8 114 UNITED STATES COURTS. ' "This is too extravagant to be maintained. "In some cases, then, the constitution must be looked into by the judges. And if they can open it at all, what part of it are they forbidden to read or to obey ? "There are many other parts of the constitution which serve to illustrate this subject. "It is declared that "no tax or duty shall be laid on articles exported from any state.' Suppose a duty on the export of cotton, of tobacco, or of flour ; and a suit instituted to recover it. Ought judgment to be rendered in such a case? Ought the judges to close their eyes on the constitution, and only see the law ? "The constitution declares 'that no bill of attainder or ex post facto law shall be passed.' "If, however, such a bill should be passed, and a person should be prosecuted under it; must the court condemn to death those victims whom the constitution endeavors to preserve ? " 'No person,' says the constitution, 'shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court.' "Here the language of the constitution is addressed especially to the courts. It prescribes, directly for them, a rule of evidence not to be departed from. If the legislature should change that rule, and declare one witness, or a confession out of court, suffi- cient for conviction, must the constitutional principle yield to the legislative act? "From these, and many other selections which might be made, it is apparent, that the framers of the constitution contemplated that instrument as a rule for the government of courts, as well as of the legislature. "Why otherwise does it direct the judges to take an oath to support it ? This oath certainly applies • in an especial manner, to their conduct in their official character. How immoral to im- pose it on them, if they were to be used as the instruments, and the knowing instruments, for violating what they swear to sup- port! "The oath of office, too, imposed by the legislature, is com- pletely demonstrative of the legislative opinion on this subject. It is in these words : 'I do solemnly swear that I will administer justice without respect to persons, and do equal right to the poor and to the rich ; and that I will faithfully and impartially discharge all the duties incumbent on me as , according to the best JURISDICTION SUPREME COURT. 115 of my abilities and understanding, agreeably to the constitution and laws of the United States.' "Why does a judge swear to discharge his duties agreeably to the constitution of the United States, if that constitution forms no rule for his government? if it is closed upon him, and cannot be inspected by him ? "If such be the real state of things, this is worse than solemn mockery. To prescribe, or to take this oath, becomes equally a crime. "It is also not entirely unworthy of observation, that in declar- ing what shall be the supreme law of the land, the constitution itself is first mentioned ; and not the laws of the United States generally, but those only which shall be made in pursuance of the constitution, have that rank. "Thus, the particular phraseology of the constitution of the United States confirms and strengthens the principle, supposed to be essential to all written constitutions, that a law repugnant to the constitution is void ; and that courts, as well as other departments, are bound by that instrument." Although Congress cannot confer upon the Supreme Court other original jurisdiction than that mentioned in the Constitu- tion, yet Congress can give concurrent jurisdiction to inferior courts of the cases over which the Supreme Court has original jurisdiction. This does not take away the original jurisdiction of the Supreme Court; but gives to the inferior courts a concurrent jurisdiction. ■^^^ Original Jurisdiction. The first class of cases over which the Supreme Court has original jurisdiction is : "All cases affecting ambassadors, OTHER PUBLIC MINISTERS AND CONSULS." The reason for giving the court original jurisdiction in this class of cases was to avoid as far as possible any complications with foreign nations, which would probably arise if inferior courts were allowed to take juris- diction of such cases. All privileges extended to the representa- tives of a country are in fact extended to the country itself, and as a rule, the representatives of one nation are not subject to the ""Ames V. Kansas, iii U. S. 449, (1884) ; United States v. La., 123 U. S. 32, (1887) ; Plaquemines v. Henderson, 170 U. S. 511, (1898). 116 UNITED STATES COURTS. courts of another nation. And this rule is a necessary one in order that foreign representatives perform, without molestation, the duties for which they were appointed. The founders of our Con- stitution, having this rule in mind, provided, that as far as con- sistent with the principles of international law, our Supreme Court was to have original jurisdiction of cases affecting the representa- tives of foreign nations. That is to say, as far as foreign repre- sentatives are at all allowed to resort to our courts, they can begin the cases in the highest court of our country, the Supreme Court of the United States. The main question to determine is, when is the ambassador "affected" under this provision of the Constitu- tion? We may say, generally, that the ambassador is "affected" if he is a party to the record either as plaintiff or defendant. It is not enough that he is the cause of the controversy, or that he is involved indirectly in the proceedings. This is illustrated by the case of United States v. Ortega, ii Wheat. 467, (1826), where the defendant was indicted in the Circuit Court of the United States, for infracting the law of nations, by offering violence to the person of the Charge d' Affaires of the King of Spain in the United States, contrary to the law of nations, and to the act of Congress of the United States in such case 'provided. The jury having found a verdict of guilty, the defendant moved in arrest of judgment, and assigned for cause "that the Circuit Court has no jurisdiction of the matter charged in the indictment, inasmuch as it is a case affecting an ambassador or other public minister." The Supreme Court held that this was not a case affecting a public minister, within the plain meaning of the Constitution. It is that of a public prosecution, instituted and conducted by and in the name of the United States, for the purpose of vindicating the law of nations, and that of the United States, offended, as the indict- ment charges, in the person of a public minister, by an assault committed on him by a private individual. It is a case, thet), which affects the United States and the individual whom they seek to punish ; but one in which the minister himself, although he was the person injured by the assault, has no concern, either in the event of the prosecution or in the costs attending it. So the Supreme Court ordered that' the Circuit Court had jurisdiction of the mat- ter, and that the case was not one which affects an ambassador or other public minister under the original jurisdiction of the Su- preme Court. -Ortega's contention was, of course, that it was a case affecting an ambassador under the original jurisdiction of the JURISDICTION SUPREME COURT. 117 Supreme Court and should have been brought in the Supreme Court and not in the United States Circuit Court ; but the Supreme Court held adversely to this defense. In regard to ambassadors, public ministers and consuls, the following propositions may be deduced from the Constitution, law of nations, and acts of Congress : ( i ) That no civil suit or crimi- nal prosecution can be commenced against a foreign ambassador, other public minister or consul, in any state court. (2) That an ambassador, public minister or consul may, at his election, com- mence a suit in a state court. (3) Compulsory process will not issue against an ambassador or public minister, in any court what- ever. (4) A consul may be sued, civilly or criminally, in the courts of the Union, in the same manner as a private individual. (5) The Supreme Court has original and exclusive jurisdiction of suits against ambassadors, and other public ministers, as any court of justice can exercise consistently with the law of nations. (6) The Supreme Court has original, but not exclnsive, jurisdic- tion of suits brought by ambassadors, or other public ministers, or in which a consul is a party. (7) The Supreme Court has appellate jurisdiction, in all cases involving the construction of the Constitution, or the validity and construction of the laws and trea- ties of the United States in any case in which a representative of a foreign government is a party. (8) The property of foreign ambassadors and of those attached to their respective legations, are exempt from seizure under the law. If foreign representa- tives engage in trade, then such property must be subject to the law just the same as the property of private individuals. The second class of cases over which the Supreme Court has original jurisdiction is "Cases in which a state shall be a PARTY." The original jurisdiction extended to this class in order to recognize the high standing of the states, and to prevent delay in deciding any questions involving them. This provision does n(it give the Supreme Court original jurisdiction of every case in which a state is a party. It does not give jurisdiction to a suit by a citizen of another state or citizen or subject of a foreign state against a state. Nor does it extend to a suit by a citizen against his own state. However, it does extend to a suit of one state against another state, or of the United States against a state, or of a state against the individuals of other states or countries.^'" ""Wisconsin v. Pelican Ins. Co., 127 U. S. 265, (i 118 UNITED STATES COURTS. 9 To determine whether a state is a party to a particular suit is not always an easy matter. If the state is a party to the suit, the Supreme Court has original jurisdiction under the constitu- tional provision ; but, it must be remembered that not all cases in which a state is a party come within the original jurisdiction of the Supreme Court, for instance, the Eleventh Amendment takes away the jurisdiction of suits by citizens of other states or citizens or subjects of foreign states against states. Also, a state can not be sued by one of its own citizens in the Supreme Court, as the Supreme Court never was given jurisdiction of those cases, such suits are to be brought in the state court. But in all other cases, if the state is a party, suit can be brought in the Supreme Court under the original jurisdiction. The rules which determine whether a state is a party may be enu- merated as follows : First. Whether a state is an actual party must be determined by a consideration of the nature of the case as presented by the whole record. Second. A suit against the Governor of a state, in his official capacity, is deemed to be a suit against the state. Third. Neither a state nor the United States can be sued as a defendant in any court in this country without its consent, except in the limited class of cases under the original jurisdiction of the Supreme Court. Fourth. In order to do jus- tice, the courts, in some cases, will go a long way in holding the state not to be a necessary party, though some interest of hers may be more or less affected by the decision. Fifth. It has been held in a class of cases, where property of the state, or property in which the state has an interest, comes before the court and under its control, in the regular course of judicial administration, without being forcibly taken from the possession of the government, the court will proceed to discharge its duty in regard to that property, and the state, if it choose to come in as plaintiff, as in prize cases, or to intervene in other cases where she may have a lien or other claim on the property, will be permitted to do so, but subject to the rule that her rights will receive the same consideration as any other party interested in the matter, and be subjected in like man- ner to the judgment of the court. Sixth. Cases where an indi- vidual is sued in tort for some act injurious to another in regard to person or property, to which his defense is that he has acted under orders of the government. In these cases he is not sued as, or because he is, the officer of the government, but as an individual, and the court is not ousted of jurisdiction because he asserts JURISDICTION SUPREME COURT. 119 authority as such officer. To make out his defense he must show that his authority was sufficient in law to protect him. Seventh. Cases where the law has imposed upon an officer of the govern ment a well defined duty in regard to a specific matter, not affect- ing the general powers or functions of the government, but in the performance of which one or more individuals have a distinct interest capable of enforcement by judicial process. The courts will in those cases enforce obedience to the law. Appellate Jurisdiction. The appellate jurisdiction of the Supreme Court covers two classes of cases, namely: (i) Cases from state courts, (2) Cases from inferior United States Courts. Soon after the Constitution was adopted, some of the states disputed the right of the Supreme Court to review by appeal or writ of error a decision of the highest court of a state. They claimed that the Constitu- tion did not expressly give this jurisdiction to the Supreme Court, and as a consequence, the Supreme Court could not exercise any such authority. The question finally reached the Supreme Court and it was there settled once for all. It was decided that the Supreme Court could exercise appellate jurisdiction over state courts in some cases, and, although there is no express provision in the Constitution authorizing such appellate jurisdiction, there is implied authority. The source of this implied power is found irf the second clause of the sixth article of the Constitution. It is as follows : "This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land ; and the judges in every state shall be bound thereby, any thing in the constitution or laws of any state to the contrary notwithstanding." Now, it is very evident, that the constitution, laws, or treaties of the United States could not be the supreme law of the land unless the judicial power of the United States could take final jurisdiction of all questions arising under them. This question is thoroughly explained in the case of Martin v. Hunter, i Wheat. 304. (1806), and, also, in the case of Cohens v. Virginia, 6 Wheat. 264. (1821). The jurisdiction of the Supreme Court over the state courts, and, also, over the inferior United States courts, is regulated by 120 UNITED STATES COURTS. Congress. Section 2, Article 3, of the Constitution, gives Con- gress this power, and so we find statutes upon this subject. As soon as possible, after the convening of our government, Congress passed an act for the establishment of courts and the distribution of the judicial power among the same. This act is called the- Judiciary Act of 1789, and is found in the Revised Statutes of the United States, although it has been modified considerably since the time of its first passage. The 25th Section of this Judiciary" Act provided in what cases the Supreme Court exercises appellate jurisdiction over state courts. The law at present is as follows : "That a final judgment or decree in any suit, in the highest court of lai^' or equity of a state in which a decision in the suit could he had, FIRST. Where is drawn in question the validity of a treaty or stat- ute of, or an authority exercised under, the United States, and the^ decision is against their validity; second. Where is drawn in ques- tion the validity of a statute of, or an authority exercised rmder, any state, on the ground of their being repugnant to the Constitu- Hon, treaties, or lazvs of the United States, and the decision is in favor of their validity; third. Where any title, right, privilege, or immunity is claimed under the Constitution, or any treaty or stat- ute of, or commission held or authority exercised under, the United States, and the decision is against the title, right, privilege, or im- munity specially set up or claimed by either party under such Con- stitution, treaty, statute, commission or authority, — may be re-ex- amined, and reversed or affirmed, in the Supreme Court of the United States upon a zvrif of error.'' That is, in any of the above classes of cases. Congress has, by authority of the Constitution, given to the Supreme Court the power to review, reverse, or affirm the highest decision of a state court.^^^ In order that the Supreme Court may take jurisdiction under this act, certain essentials must exist, and we will now examine those essentials in the order in which they arise. A. JUDGMENT OF STATE COURT MUST BE FINAL. One of the first essentials, under the act of Congress, to give the Supreme Court jurisdiction over a decision of a state court is, that the judgment of the state court must have been a final judg- '"Rev. Stat., Sec. 709. JURISDICTION SUPREME COURT. 121 ment. If it is not a final judgment, but an interlocutory one, the Supreme Court will not take cognizance of the case. What is a final judgment depends upon the nature of the proceedings of the inferior court. As a general rule no judgment is final which does not terminate the litigation be- tween the parties. A judgment reversing the judgment of an in- ferior court, and remanding the cause for such further proceedings as to law and justice appertain, does not do this. The rule is well settled and of long standing that a judgment or decrfeee to be final, within the meaning of this term as used in the acts of Congress giving this court jurisdiction on writ of error, must terminate the litigation between the parties on the merits of the case, so that if there should be an affirmance in the Supreme Court, the court be- low would have nothing to do but to execute the judgment or de- cree it had already rendered. ^^^ A judgment of the highest court of a state, overruling a demurrer, and remanding the case to the trial court for further proceedings, is not a final judgment. ^■'■' A decree of the highest court of a state affirming the decision of an inferior court of a state, is a final decree or judgment from which a writ of error will lie to the Supreme Court. The settled rule is that if a superior court makes a decree fixing the liability and rights of the parties, and refers the case to a master or subordinate court for a judicial purpose, such, for instance, as a statement of account upon which a further decree is to be entered, the decree is not final. B. THE PROCEEDIXG IN THE STATK MUST BE A SUIT. The term "suit" is a very comprehensive term, and is under- stood to apply to any proceedings in a court of justice by which an individual pursues that remedy which the law affords. The modes of proceeding may be various ; but, if a right is litigatedin a court of justice, the proceeding by which the decision of the court is sought is a suit.^^* "'St. Clair County v. Livingston, i8 Wall. 628, (1873) ; Bostwick v. Brinkerhoff, 106 U. S. 3, (1882). "'Werner v. Charleston, 151 U. S. 360, (1894). "*Kohl V. United States, 91 U. S. 367, (i87S)- 122 UNITED STATES COURTS. C. THE DECISION MUST BE BY HIGHEST COURT OF THE STATE. The decision must, be by the highest court of the state, and this means the one that has power to make a final decision. If an in- ferior court has power to make a final decision of the case, then the inferior court, is the highest court of the state under this act of Con- gress. Mr. Justice Gray, in the case of Gt. West. Tel. Co. v. Burn- ham, 162 U. S. 339, (1896), in speaking of this question said: "This court has no jurisdiction, upon writ of error, to review a judgment of a state court, unless it was a final judgment, by the highest court of the state in which a decision in the suit could be had, and against a right set up under the Constitution or laws of the United States. "The order of the inferior court of Wisconsin, overruling the defendant's demurrer, with leave to answer over, was clearly not a final judgment, under the Judiciary Act of the United States, al- though it was reviewable on appeal in the Supreme Court of Wis- consin, under the statutes and practice of the state. "The judgment which was rendered by the Supreme Court of Wisconsin upon such an appeal cannot be reviewed by this court ; because, although it was a judgment of the highest court of the stale, and against the plaintifif in error, it was not a final judgment, disposing of the whole case, but only reversed the order of the in- ferior court overruling the demurrer, and remanded the case, to that court for further proceedings. "The subsequent judgment of the inferior court, sustaining the demurrer and dismissing the action, cannot be reviewed by this court; because, although it was a final judgment against the plain- tiff in error, setting up a right under the Constitution and laws of the United States, it wa^ not a final judgment in the highest court of the state in which a decision in the suit could be had. "The case is singularly like McComb v. Knox County Com- missioners, 91 U. S. I, in which an order of a Court of Common Pleas, overruling a demurrer to an answer, was reversed by the Su- preme Court of Ohio, and the case remanded for further proceed- ings according to law ; the Court of Common Pleas, in accordance with that decision, sustained the demurrer to the answer, and the defendant not moving to amend, but electing to stand by his an- swer, gave judgment against him; and a writ of error to review that judgment was dismissed by this court, Chief Justice Waite saying : 'The Court of Common Pleas is not the highest court of the JURISDICTION SUPREME COURT. 123 state; btit the judgment we are called upon to re-examine is the judgment of that court alone. The judgment of the Supreme Court is one of reversal only. As such, it was not a final judgment. Par- cels V. Johnson, 20 Wall. 653 ; Moore v. Robbins, 18 Wall. 588 ; St. Clair V. Lovingston, 18 Wall. 628. The Common Pleas was not di- rected to enter a judgment rendered by the Supreme Court and to carry it into execution, but to proceed with the case acording to law. The Supreme Court, so far from putting an end to the litiga- tion, purposely left ic open. The law of the case upon the pleadings as they stood was settled ; but ample power was left in the Com- mon Pleas to permit the parties to make a new case by amend- ment.' The final judgment is, therefore, the judgment of the Court of Common Pleas, and not of the Supreme Court. It may have been the necessary result of the decision by the Supreme Court of the questions presented for its determination ; but it is none the less, on that account, the act of the Common Pleas. As such, it was, when rendered, open to review by the Supreme Court, and for that reason is not the final judgment of the highest court in the state in which a decision in the suit could be had. Rev. Stat. Sec. 709. The writ is dismissed.' See also Bostwick v. Brinkerhoff, 106 U. S. 3 ; Rice v. Sanger, 144 U. S. 197 ; Rutland Railroad v. Central Vermont Rail- road, 159 U. S. 630, 638 ; Sanford Co., petitioner, 160 U. S. 247. " In the case at bar, it was argued in support of the jurisdic- tion of this court that, if an appeal had been taken from the final judgment of the inferior court to the Supreme Court of Wisconsin, that court, according to its uniform decisions, would have affirmed the judgment, upon the ground that its decision on the first appeal was conclusive ; that this court according to the decision in North- ern Pacific Railroad v. Ellis, 144 U. S. 458, would not take jurisdic- tion of a writ of error to review a judgment based upon that ground only ; and consequently that a writ of error from this court to the in- ferior court was the only way in which the decision of that court, refusing full faith and credit to the judicial proceedings in Illinois, could be reviewed by this court. "If all this were so, there would be strong ground for sustain- ing the present writ of error. Wheeling & Belmont Bridge v. Wheeling Bridge, 138 U. S. 337,342. But the argument is based upon a misconception of the decisions supposed to support it. "It is true that the Supreme Court of Wisconsin, upon a sec- ond appeal from an inferior court, has always declined to recon- sider any question of law decided upon the first appeal. Downer v. 124 UNITED STATES COURTS. Cross, 2 Wisconsin, 371, 381 : Noonan v. Orton, 27 Wisconsin, 300; DuPont V. Davis, 35 Wisconsin, 631 ; Lathrop v. Knapp, 37 Wisconsin, 307; Oshkosh Fire Department v. Tuttle, 50 Wiscon- sin, 552. It does not, however, as appears by the two cases last cited, when that question is the only one presented by the second appeal, dismiss that appeal for want of jurisdiction; but it enter- tains jurisdiction, and affirms the judgment. In so doing, that court has done no more than this court has always done, or than is necessary to enable an appellate court to perform its duties satis- factorily and efficiently, which would be impossible if- a question, . once considered and decided by it, were to be litigated anew in the same case upon any and every subsequent appeal. Washington Bridge v. Stewart, 3 How. 413, 425; Roberts v. Cooper, 20 How. 467, 481 ; Clark v. Keith, 106 U. S. 464; Chaffin v. Taylor, 116 U. S. 567; Sanford Co., petitioner, 160 U. S. 247, 259. "The case of Northern Pacific Railroad v. Ellis was very pecu- liar in its circumstances, and was as follows : Ellis brdught an ac- tion against the Northern Pacific Railroad Company, in an inferior court in the State of Wisconsin, to quiet title to land ; and in his complaint set forth not only his own title, but also the title of the railroad company under a conveyance by way of donation from a county. The railroad company demurred to the complaint, the de- murrer was overruled, and the company appealed to the Supreme Court of Wisconsin, which held the conveyance to be void for want of power in the county under the Constitution of the state, and therefore, without any Federal question being presented or consid- ered, affirmed the order overruling the demurrer, and remanded the case to the inferior court for further proceedings, "^"j Wiscon- sin, 114. The railroad company then filed an answer, reasserting its title under the deed from the county; and afterwards applied for leave to file a supplemental answer, setting up a decree which, since the decision of the Supreme Court of the state, had been ren- dered by the Circuit Court of the United States in a suit com- menced after the former order of the inferior court, by the rail- road company against Ellis and others, by which judgment the title of the railroad company in other lands held under the same con- veyance was adjudged to be valid. The inferior court of the state denied leave to file the supplemental answer, and, upon a hearing, rendered final judgment against the railroad company. The com- pany again appealed to the Supreme Court of the state, which af- firmed the judgment, upon the ground that its own decision upon JURISDICTION SUPREME COURT. 125 the demurrer as to the vahdity of the title of the railroad company was res adjndicata, and could not, according to the settled law of the state, be reviewed by the inferior court, or even by the Supreme Court of the state, save upon motion for rehearing. 80 Wisconsin, 459- 465- The only right under the laws of the United States, sug- gested or considered at any stage of the proceedings in the courts of the state, was the claim that the decree of the Circuit Court of the United Stater rendered after the decision of the Supreme Court of the state, upon the first appeal, estopped Ellis to deny the validity of the convt?*'ance from the county to the railroad company. The only decision made by the Supreme Court of the state upon that claim was that the invalidity of that conveyance had been finally adjudged, for the purposes of the suit, by its former decision, and therefore the decree of the Circuit Court of the United States should not be permitted to be pleaded by supplemental answer, in the nature of a plea puis darrein continuance. This court, in dismis- sing the writ of error to the Supreme Court of the state, dealt with no other question ; 144 U. S. 458 ; and never considered the right of the railroad company, merely by virtue of its charter from the United States, to tak"e land by such a conveyance, until that subject was brought into judgment upon the subsequent appeal from the decree of the Circuit Court of the United States. Roberts v. Nor- thern Pacific Railroad, 158 U. S. i. "There is nothing in the decisions above cited, or in any other decision of this court, which countenances the position that in Wis- consin, or in any other state, when the highest court of the state, upon the first appeal, decides a Federal question against the appel- lant, and remands the case to the inferior court, not merely to carry the judgment into execution, but for further proceedings according to law, and upon further hearing the inferior court renders final judgment against him, he can have that judgment reviewed by this court by writ of error, without first appealing from it to the highest court of the state, or at least, where such is the practice, presenting a petition to that court for leave to appeal. Fisher v. Perkins, 122 U. S. 522." "In the case at bar, as in McComb v. Knox County Commis- sioners, above cited, the final judgment of the inferior court of the state may have been the necessary result of the previous de- cision by the Supreme Court of the questions presented for its de- termination; but it was none the less, on that account, a judgment of the inferior court. As such, it was, when rendered, open to re- 126 UNITED STATES COURTS. view by the Supreme Court upon a new appeal ; and, for that rea- son, was not the final judgment of the highest court of the state in which a decision in the suit could be had." a A FEDERAL QUESTION MUST BE INVOLVED. A federal question is a question arising in a litigated case, and necessary io its decision, im'olving the construction of the Consti- tution, or a law or treaty of the United States. If from the ques- tions involved in a case, it appears that some title, right, privilege, or immunity, on which the recovery depends, will be defeated by one construction of the Constitution, or of a law or treaty of the United States, or sustained by the opposite construction, the case will be one arising under the Constitution or laws of the United States, and involves a federal question. A federal question, may be said, to be one arising under any one of the three classes of cases in which you can go, by writ of error, from the highest court of a state to the Suprem.e Court of the United States. It must, in order to be a_ federal question, arise under some one of those classes of cases mentioned by the 25th Section of the Judiciary Act, or what is now Section 709 of the Revised Stautes of the United States. In other words, you can go from the highest court of a state to the Supreme Court of the United States in any one of the following cases : ( i ) . Where the decision of the state court is against the validity of the United States statute or treaty. (2) . Where the de- cision of a state court is in favor of the validity of a state law, as against a United States law or treaty. (3). Where the decision of the state court denies to an individual some right, title, privilege, or immunity guaranteed by the Constitution, laws or treaties of the United States. In any of these cases, the aggrieved party, can, by writ of error, take the case to the Supreme Court of the United States, thus passing over all the inferior federal courts. But, it must be remembered, an actual case must arise, and it must fall strictly within the statute, or else, the Supreme Court will not take jurisdiction. The Supreme Court will not when requested by the counsel for plaintiffs and defendants in error, in a case in which it has not jurisdiction to affirm or reverse the judgment of the court from which the same has been brought by a writ of error to a state court, examine into the questions in the case and decide upon them. JURISDICTION SUPREME COURT. 127 Consent will not give jurisdiction. Jurisdiction must arise, under the act of Congress.^^^ If a party brings a suit in a state court, and his right is based upon a law or statute of the United States, and the state court de- cides against such United States statute, the party can then take the case to the Supreme Court of the United States. ' This is, briefly, an illustration of the first class of cases. If a party suing in a state court, claims that the law of the state is contrary to the law of the United States upon which he bases his claim, and the state court de- cides in favor of the state law as against the United States law, then we have an example of the second class of cases. Or, if a per- son who is sued in a state court claims some privilege or right or immunity under the Constitution, laws or treaties, and the state court decides against him, we have then an example of the third class of cases. But in any case, the federal question, must have been raised in the state court, and decided, and decided against the right claimed under the Constitution, laws or treaties of the United States. In Sayward v. Denny, 158 U. S. 180, (1895), Chief Justice Fuller, in speaking of this question, said : "As the validity of no treaty or statute of, or authority exer- cised under, the United States, nor of a statute of, or authority ex- ercised under, any state, was drawn in question, it is essential to the maintenance of our jurisdiction that it should appear that some title, right, privilege, or immunity under the Constitution or laws of the United States, was specially set up or claimed in the state court, and that the decision of the highest court of the state, in which such decision could be had, was against the title, right, privi- lege, or immunity so set up or claimed. And in that regard, certain propositions must be regarded as settled, i. That the certificate of the presiding judge of the state court, as to the existence of grounds upon which our interposition might be successfully in- voked, while always regarded with respect, cannot confer jurisdic- tion upon this court to re-examine the judgment below. Powell vi Brunswick County, 150 U. S. 433, 439, and cases cited. 2. That the title, right, privilege, or immunity must be specially set up or claimed at the proper time and in the proper way. Miller v. Texas, 153 U. S. 535 ; Morrison v. Watson, 154 U. S. iii, 115, and cases cited. 3. That such claim cannot be recognized as properly made when made for the first time in a petition for rehearing after judg- '''^Mills V. Brown, 16 Pet. 525, (1842). 128 UNITED STATES COURTS. merit. ^ Loeber v. Schroeder, 149 U. S. 580, 585, and cases cited. 4. That the petition for the writ of error forms no part of the rec- ord upon which action is tal actual possession of the land described, and after setting forth the interest of the other tenants in common, and alleging that no remedy at law exists to enable him to obtain his share of said lands in kind, or of the proceeds if sold, and that he is wholly without remedy except in chancery, prays for the partition of the land, and the segregation of his own share from that of the others, and incidentally that certain deeds may be construed and, if invalid, may be cancelled, and that he may recover his advances for taxes and expenses. This is clearly a bill to enforce a claim and settle the title to real estate. "(2) Further objection was made to the jurisdiction of the court upon the ground that it appeared from the face of the bill that the title of some of the parties to the land was in dispute; that such titles must be settled before partition could be made; that the interests of several of the defendants were adverse to each other; and that as some of the defendants were citizens of the same State, it would raise controversies beyond the jurisdic- tion of the Circuit Court to decide. These objections, however, are not within the question certified to us for decision, which is that it had been 'adjudged and decreed that this court has not JURISDICTION CIRCUIT COURT. 235 jurisdictioTi over all of the defendants to this action because they are not all citizens and residents of the district in which the land sought to be partitioned lies, and are not all found in said district at the time of service of the process, although they are all resi- dents and citizens of other States than that in which complain- ants had residence and citizenship.' The objections go not to the jurisdiction of the Federal court as such, but to the maintenance of such a bill in any court of equity in the State of Florida. They are questions proper to be considered on demurrer to the bill, and as bearing upon such questions, the local practice of the State in that regard may become an important consideration. This court has held in a multitude of cases that where the laws of a particular State gave a remedy in equity, as, for instance, a bill by a party in or out of possession, to quiet title to lands, such remedy would be enforced in the Federal courts, if it did not infringe upon the constitutional rights of the parties to a trial by jury. Clark v. Smith, 13 Pet. 195; Holland v. Challen, no U. S. 15; Reynolds v. Crawfordsville Bank, 112 U. S. 405; Chapman v. Brewer, 114 U. S. 158, 171; Cummings v. National Bank, loi U. S. 153, 157; United States v. Landram, 118 U. S. 81; More V. Steinbach, 127 U. S. 70. "This suggestion is the more important in view of a statute ■of Florida which authorizes a court of equity in partition cases 'to ascertain and adjudicate the rights and interests of the parties,* which has apparently been held tO' aythorize the court, in its dis- cretion, to settle the question of title as incidental to the main ■controversy, or retain the bill and refer it to a court of law. Street v. Benner, 20 Florida, 700; Keil v. West, 21 Florida, 508. "These questions, however, are not presented by the record in this case and are mentioned only as giving color to plaintiff's claim that the existence of controversies between different defendants is not fatal to the jurisdiction of the Federal court upon the allegations of this bill. "(3) The objection that Eliza B. Anderson was alleged in the bill to be a resident and citizen of the District of Columbia was met by an amended allegation that Anderson was 'a citizen ■of South Carolina now residing in Washington City, District of Columbia' ; and while this allegation was traversed, it must, for the purpose of this hearing, be taken as true. "As this case was appealed under section 5 of the act of March 3, 1891, upon a question of jurisdiction, no other question 236 UNITED STATES COURTS. can be properly considered, and the decree of the court below must, therefore, be Reversed, and the case remanded for further proceedings in conformity with this opinion." As to the district in which suit may be brought, the case of Interior Construction Co. v. Gibney, i6o U. S. 217, (1895), decided : "The record shows that the only matter tried and decided in the Circuit Court was a demurrer to the plea to the jurisdiction; and the petition, upon which the writ of error was allowed, asked only for the review of the judgment that the court had no juris- diction of the action. The question of jurisdiction alone is thus sufficiently certified to this court, as required by the act of March 3, 1891, c. 517, § 5, 26 Stat. 828; In re Lehigh Co., 156 U. S. 322;. Shields v. Coleman, 157 U. S. 168. "The act of March 3, 1887, c. 373, as corrected by the act of August 13, 1888, c. 866, confers upon the Circuit Courts of the United States original jurisdiction of all civil actions, at com- mon law or in equity, between citizens of different States, in which the matter in dispute exceeds, exclusive of interest and costs, the sum or value of $2,000; and provides that "where the jurisdiction is founded only on the fact that the action is between citizens of different States, suit shall be brought only in the dis- trict of the residence of either t?ie plaintiff or the defendant.' 24 Stat. 552 ; 25 Stat. 433. "The Circuit Courts of the United States are thus vested with general jurisdiction of ci^dl actions, involving the requisite pecuniary value, between citizens of different States. Diversity of citizenship is a condition of jurisdiction, and, when that does not appear upon the record, the court, of its own motion, will order the action to b'e dismissed. But the provision as to the par- ticular district in which the action shall be brought does not touch the general jurisdiction of the court over such a cause between such parties ; but affects only the proceedings taken to bring the defendant within such jurisdiction, and is a matter of personal privilege, which the defendant may insist upon, or may waive, at his election; and the defendant's right to object that an action, within the general jurisdiction of the court, is brought in the wrong district, is waived by entering a general appearance, with- out taking the objection. Gracie v. Palmer,, 8 Wheat. 699; To- land V. Sprague, 12 Pet. 300, 330; Ex parte Schollenberger, 96 U. S- 369, 378 ; St. Louis & San Francisco Railway v. McBride, 141 JURISDICTION CIRCUIT COURT. 237 U. S. 127; Southern Pacific Co. v. Denton, 146 U. S. 202, 206; Texas & Pacific Railway v. Saunders, 151 U. S. 105; Central Trust Co. V. McGeorge, 151 U. S. 129; Southern Expi'ess Co. V. Todd, 12 U. S. App. 351. "In Smith v. Lyon, 133 U. S. 315, this court held that the provision of the act of 1888, as to the district in which a suit between citizens of dififerent States should be brought, required such a suit, in which there was more than one plaintiff or more than one defendant, to be brought in the district in which all the plaintiffs, or all the defendants, were inhabitants. ■'\A'hen there are several defendants, some of whom are, and some of whom are not, inhabitants of the district in which the suit is brought, the question whether those defendants who are inhabitants of the district may take the objection, if the non- resident defendants have not appeared in the suit, has never been decided by this court. Strong reasons might be given for hold- ing that, especially where, as in this case, an action is brought against the principals and sureties on a bond, and one of the principals is a non-resident and does not appear, the defendants who do come in may object, at the proper stage of the proceed- ings, to being compelled to answer the suit. "But in the present case it is unnecessary to decide that question, because one of the principals and both sureties, being all the defendants who pleaded to the jurisdiction, had entered a general apparance long before they took the objection that the sureties were citizens of another district. Defendants who have appeared generally in the action cannot even object that they were themselves inhabitants of another district, and, of course, cannot object that others of the defendants were such." 8. Suits By Assignees. The eighth class of cases over which the Circuit Courts have jurisdiction is as follows : "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 subse- quent holder, if such instrument be payable to bearer and be not made by any corporation, unless such suit might have been pros- ecuted in such court to recover the said contents if no assign- ment or transfer had been made." 238 , UNITED STATES COURTS. This provision includes only choses in action. All other rights of suit may be assigned, and the assignee may sue without regard to the citizenship of his assignor. The term chose in action does not embrace mere naked rights of action founded on some wrongful act, some neglect of , duty to which the law attaches damages ; but it does include the infinite variety of con- tracts, covenants, and promises which confer on one party a right to recover a personal chattel or a sum of money from another by action."" This provision applies to the contents of the chose in action, and not to the instrument itself .as where replevin is brought.^"' The circumstances, under which suit can be maintained by an assignee, is stated in the case of New Orleans v. Quinlan, 175 U. S. 191, (1899), where it was said: "This was an action brought in the Circuit Court of the United States for the Eastern District of Louisiana by Mary Quinlan, a citizen of the State of New York, against the City of New Orleans, to recover on a number oi certificates owned by her, made by the city, and payable to bearer. Defendant ex- cepted to the jurisdiction because the petition contained no aver- ment that the suit could have been maintained 'by the assignors of the claims or certificates sued upon.' The Circuit Court over- ruled the exception, and the cause subsequently went to judg- ment. "By the eleventh section of the Judiciary Act of 1789, it was expressly provided that the Circuit Courts could not take cog- nizance of a suit to recover the contents of any promissory note or other chose in action in favor of an assignee, unless a suit might have been prosecuted in such court to recover the said con- tents, if no assignment had been made, except in cases of foreign bills of exchange. The act of March 3, 1875, 18 Stat. 470, c. 137, provided : 'Nor shall any Circuit or District Court have cogni- zance of any suit founded on contract in favor of an assignee, unless a suit might have been prosecuted in such court to recover thereon if no assignment had been made, except in cases of prom- issory notes negotiable by the law merchant and bills of ex- change.' The restriction was thus removed as to 'promissory ""Holmes v. Goldsmith, 147 U. S. 150, (1893) ; Glass v. Concordia, 176 U. S. 207, (1900) ; Ambler v. Eppinger, 137 U. S. 480, (1890). "'Metcalf V. Watertown, 128 U. S. 586, (1888) ; Bradley v. Rhines, 8 Wall 393, (1869) ; New Orleans v. Benjamin, 153 U. S. 411, (1894). JURISDICTION CIRCUIT COURT. 23d notes negotiable by the law merchant,' and jurisdiction in such suits made to depend on the citizenship of the parties as in other cases. Tredway v. Sanger, 107 U. S. 323. "By the first section of the act of March 3, 1887, c. 373, 24 Stat. 552, as corrected by the act of August 13, 1888, c. 866, 25 Stat. 433, the provision was made to read as follows : 'Nor shall any Circuit or District Court have cognizance of any suit, ex- cept 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 instruinent be payable to bearer and be not made by any corporation, unless such suit rnight have been prosecuted in such court to recover the said con- tents if no assignment or transfer had been made.' "These certificates were payable to bearer and made by a corporation; they were transfer^le by delivery; they were not negotiable under the law merchant, but that was immaterial;, they were payable to any person holding them in good faith, not by virtue of any assignment of the promisee, but by an original and direct promise, moving from the maker to the bearer. Thompson v. Perrine, 106 U. S. 589. They were, therefore, not subject to the restriction, and the Circuit Court had jurisdictioru In New Orleans v. Benjamin, 153 U. S. 411, where the question was somewhat considered, the instruments sued on were not pay- able to bearer. In Xewgass v. New Orleans, 33 Fed. Rep. 196, District Judge Billings construed the provision thus : 'The Circuit Court shall have no jurisdiction over suits for the recovery of the con- tents of promissory notes or other choses in action brought in favor of assignees or transferees except over, — First, suits upon foreign bills of exchange; Second, suits that might have been prosecuted in such court to recover the said contents, if no assign- ment or transfer had been made; Third, suits upon choses in action payable to bearer, and made by a corporation.' This deci- sion was rendered several months prior to the passage of the act of August 13, 1888, and has been followed by the Circuit Courts in many subsequent cases. The same conclusion was reached by Mr. Justice Miller in Wilson v. Knox County, 43 Fed. Rep. 481, and Newgass v. New Orleans was cited with approval. We think the construction obviously correct, and that the case before us was properly disposed of. "It is true that the act of March 3, 1887, was evidently in- 240 UNITED STATES COURTS. tended to restrict the jurisdiction of the Circuit Courts, but the plain meaning of the provision cannot be disregarded because in this instance that intention may not liave been carried out." 9. Suits By or Against National Sanlts. Banking associations carrying on business under the statutes of the United States may sue or be sued in a Circuit Court of the United States, and such associations are citizens of the states in which tliey are located. In suits in Circuit Courts, the same rules govern as in cases between citizens. Although a national bank can sue or be sued in a United States Court, this does not prevent such bank from suing or being sued in any court of a state. As corporations they can maintain actions or defend in any court, unless the United States restricts them by statute. The United States, by its proper officer, ca*n prosecute suits against National banks, and wind up the same under the statutes providing for such emergencies.^"* i 10. Suits For the Protection of Civil Eights. The Circuit Courts have jurisdiction of all cases arising under the Constitution and laws for the protection of civil rights. These rights were conferred principally by the Fourteenth Amendment, and were intended to secure to the colored citizens their right to vote as well as their personal safety.^^' 11. Suits Against the United States. By a late act of Congress the Circuit Courts were given juris- diction of all suits against the United States, to collect claims of more than one thousand dollars and not exceeding ten thousand dollars, for money only, founded upon the Constitution of the United States or any law of Congress, except for pensions, or upon any contract, expressed or implied, with the government of the United States ; or for damages, liquidated or vmliquidated, in '"'Kennedy v. Gibson, 8 Wall. 498, (1869) ; Bank v. Bank, 14 Wall. 383, (1871); Petri V. Commercial Bank, 142 U. S. 644, (1892); Thomp- son V. Pool, 70 Fed. Rep. 725, (1895) ; Wichita Natl. Bnk. v. Smith, 72 Fed. Rep. 568, (1896). , ""Gowdy V. Green, 69 Fed. Rep. 865, (1895) ; Holt v. Ind. Manf. Co., 176 U. S. 68 (1900). JURISDICTION CIRCUIT COURT. 241 cases not sounding in tort in respect of which claims the plaintiff would be entitled to redress against the United States, in a court of law, equity, or admiralty, if the United States were suable, — except war claims, and except other claims, which be- fore March 3, 1887, were rejected or reported on adversely by any court, department, or commission authorized to hear and determine the same.^'" The jurisdiction of the Circuit Court, to the extent of the statute, is concurrent with that of the Court of Claims. No action can be maintained against the United States for tort; the claim must be on contract or arising out of contract.^'^ The claimant is not entitled to a jury trial, but an appeal or writ of error lies to the Court of Appeals, or to the Supreme Court, depending upon the questions involved. If the case is decided against the government. Congress provides the money to pay the claim. ^^^ 12. Miscellaneous Cases. There are other classes of cases over which the Circuit Courts have jurisdiction, but it is hardly necessary to discuss them here, as they, some of them at least, are broad enough to constitute texts in themselves, while others are little known and seldom come before the courts. These miscellaneous cases are: Proceedings to condemn for national public uses land within their respective districts ; suits to recover penalties under the act of forbidding the importation of persons under a contract to perform labor ; suits to prevent violations of the acts to protect trade and commerce against unlawful restraint; to prevent the unlawful occupation of public lands ; to execute provisions of the treaties with China ; suits under the patent and copyright laws ; suits arising under the revenue laws ; suits under the postal laws ; suits by the assignees of debentures for draw-back of duties ; pro- ceedings to remove any person holding office contrary to the Fourteenth Amendment ; over interstate-commerce laws ; suits for the enforcement of liens or the removal of incumbrances; and suits for seizure under the slave trade laws. All these are read- ily found in the Revised Statutes and Supplements to date. ""United States v. Jones, 131 U. S. i, (18 "'German Bnk. v. United States, 148 U. S. S73. (1893). "=Chase v. United States, 15s U. S. 489, (1894). 16 CHAPTER VIII. REMOVAL OF SUITS FROM STATE COURTS. By removal of suits from state courts, we mean the taking of a case from a state court to the Circuit Court of the United States. There are cases of removal from one District Court into another District Court, or from a Circuit Court into another Cir- cuit Court, or from a District Court into a Circuit Court, because of the disqualification of the proper judge to preside; but the cases of removal that are to be considered in this chapter are cases taken from a State Court to a Circuit Court of the United States, and such suit is the exercise of original jurisdiction, and not the exercise of appellate jurisdiction. Cases That May Be Removed, As a rule, removal may be had of all actions at law, civil and criminal, and suits in equity, which could have been brought in the Circuit Court of the United States in the first instance.^^^ To be more definite, the following cases may be removed from a state court to a Circuit Court : First. Cases arising under the Con- stitution, laws and treaties of the United States where the amount exceeds the sum or value of two thousand dollars. Second. Cases where the United States are plaintiffs or petitioners, regardless of the amount involved. Third. Controversies between citizens of different states where the amount exceeds two thousand dol- lars. Fourth. Suits between citizens of the same state claimmg lands under grants of different states, where the amount involved exceeds two thousand dollars. Fifth. Suits between citizens of a state and fpreign states, citizens, or subjects, where the amount in- volved exceeds the value of two thousand dollars. Sixth. In cases of separable controversies. Seventh. In prejudice or local influ- ence cases. Eighth. In suits against United States revenue offi- cers. Ninth. All cases where citizens of the United States are de- nied civil rights. Tenth. Suits by aliens against United States '"Tenn. v. Bank, 152 U. S. 454, (1894). REMOVAL OF SUITS FROM STATE COURTS. 243 officers. These ten classes of cases constitute the principal suits that may be removed from state courts to circuit courts. We will now- take them up in the order named. But before we take up the cases, we may ask the question, what power has a state to regulate the removal of causes? The answer is, a state has no power to control the removal of suits from state to Federal courts. When Congress provides under what circumstances a case may be removed from a state court to a Circuit Court of the United States, this determines the jurisdiction, and a state can not impose restrictions upon the removal of a suit. This question was fully discussed and explained in the case of Barron v. Burn- side, 121 U. S. i86, (1887), where it was held: "The state of Iowa passed a statute for the regulation of for- eign corporations doing business in Iowa. The statute manifestly applies to the Chicago and Northwestern Railway Company as an Illinois corporation. The first section provides, that a foreign corporation, desiring to continue the transaction of its business in Iowa, is required, on and after September i, 1886, 'to file with the secretary of state a certified copy of its articles of incorpora- tion, duly attested, accompanied by a resolution of its board of directors or stockholders, authorizing the filing thereof, and also authorizing service of process to be made upon any of its officers or agents in this state engaged in transacting its business, and requesting the issuance to such corporation of a permit to tran- sact business in this state ; said application to contain a stipulation that said permit shall be subject to each of the provisions of this act; and thereupon the secretary of state shall issue to such cor- poration a permit in sucn form as he may prescribe, for the gen- eral transaction of the business of such corporation; and, upon the receipt of such permit, such corporation shall be permitted and authorized to conduct and carry on its business in this state.' The initial step required is a resolution authorizing the filing of the copy of the articles of incorporation, and authorizing ser- vice of process in the manner specified, and requesting the issue of the permit, the application to be accompanied by a stipulation that the permit shall be subject to each of the provisions of the act. This proceeding is a unit. The filing of the articles of in- corporation and the provision in regard to service of process are to be authorized by the same resolution which requests the issue of the permit, and this request or application is to contain the stipulation above mentioned. These various things are not sep- 2Jt4 UNITED STATES COURTS. arable. They are all indissolubly bound up with the application for a permit, which is to be subject to every provision of the act. The permit cannot be issued unless such a stipulation is given, and the' corporation is not to be permitted to carry on its business in the State unless the permit is issued to it and received by it. "Section 3 of the act provides, that, if the permit is issued, and the foreign corporation, being thereafter sued in a court of Iowa, upon a contract made or executed in Iowa, or to be per- formed in Iowa, or for any act or omission, public or private, arising, originating or happening in Iowa, shall remove the suit from the state court into any Federal court in Iowa, because the corporation is a non-resident of Iowa, or a resident of a state other than the state of the adverse party, or because of local prejudice against the corporation, that fact shall forfeit the permit and render it void, such forfeiture to be determined from the record of removal, and to date from the filing of the application on which the removal is effected. "Section 4 imposes a penalty of $100 a day on the corpora- tion for carrying on its business in Iowa without having complied with the statute, and having a valid permit, and provides that any agent, officer or employe who shall knowingly act, or transact such business, for the corporation, when it has no valid permit, shall be guilty of misdemeanor, and for each offence shall be fined not to exceed $100, or be imprisoned in the county jail not to exceed thirty days, and pay all costs of prosecution. It is apparent that the entire purpose of this statute is to deprive the foreign corporation, in suits such as those mentioned in § 3, of the right conferred upon it by the Constitution and laws of the United States, to remove a suit from the state court into the Federal court, either on the ground of diversity of citi- zenship or of local prejudice. The statute is not separable into parts. An affirmative provision requiring the filing by a foreign corporation, with the secretary of state, of a copy of its articles of corporation, and of an authority for the service of process upon a designated officer or agent in the state, might not be an unrea- sonable or objectionable requirement, if standing alone; but the manner in which, in this statute, the provisions on those subjects are coupled with the application for the permit, and with the stipulation referred to, shows that the real and only object of the statute, and its substantial provision, is the requirement of the stipulation not to remove the suit into the Federal court. REMOVAL OF SUITS FROM STATE COURTS. 245 "In view of these considerations, the case falls directly with- in the decision of this court in Home Insurance Co. v. Morse, 20 Wall. 445. In that case, which was twice argued here, a stat- ute of Wisconsin provided that it should not be lawful for any for- eign fire insurance company to transact any business in Wiscon- sin unless it should first appoint an attorney in that state, on whom process could be served, by filing a written instrument to that effect, containing an agreement that the company would not remove a suit for trial into the Federal court. The Home Insur- ance Company, a New /ork corporation, filed the appointment of an agent containing the following, clause : 'And said company agrees that suits commenced in the state courts of Wisconsin shall not be removed by the acts of said company into the United States Circuit or Federal courts.' A loss having occurred on a policy issued by the company, it was sued in a court of the state. It filed its petition in proper form for the removal of the suit into the Federal court. The state court refused to allow the re- moval, and, after a trial, gave a judgment for the plaintiff, which was affirmed by the Supreme Court of Wisconsin. The company brought the case into this court, which held these propositions: First. The agreement made by the company was not one which would bind it, without reference to the statute ; Second. The agreement required no validity from the statute. The general proposition was maintamed, that agreements in advance to oust the courts of jurisdiction conferred by law, are illegal and void, and that, while the right to remove a suit might be waived, or its exercise omitted, in each recurring case, a party could not bind himself in advance, by an agreement which might be specifically enforced, thus to forfeit his rights at all times and on all occa- sions, whenever the case might be presented. "In regard to the second question, the proposition laid down was, that the jurisdiction of the Federal courts, under Art. 3, § 2, of the Constitution, depends upon and is regulated by the laws of the United States; that state legislation cannot confer jurisdiction upon the Federal courts, nor limit or restrict the authority given to them by Congress in pursuance of the Consti- tion ; and that a corporation is a citizen of the state by which it is created, and in which its principal place of business is situated,, so far as its rights to sue and be sued in the Federal courts is con- cerned, and within the clause of the Constitution extending the jurisdiction of the Federal courts to controversies between citi- 246 UNITED STATES COURTS. zens of different states. The conclusions of the court were summed up thus: ist. The Constitution of the United States secures to citizens of another state than that in wtiich suit is brought an absolute right to remove their cases into the Federal court, upon compliance with the terms of the removal statutes; 2d, The statute of Wisconsin is an obstruction to this right, is repugnant to the Constitution of the United States and the laws made in pursuance thereof, and is illegal and void ; 3d, The agree- ment of the insurance company derives no support from an un- constitutional statute, and is void, as it would be had no such statute been passed. For these reasons the judgment of the Su- preme Court of Wisconsin was reversed, and it was directed that the prayer of the petition for removal should be granted. "The case of Doyle v. Continental Insurance Co., 94 U. S. 535, is relied on by the defendant in error. In that case, this court said, that it had carefully reviewed its decision in Insur- ance Co. V. Morse, and was satisfied with it. In referring to the second conclusion in Insurance Co. v. Morse, above recited, namely, that the statute of Wisconsin was repugnant to the Con- stitution of the United States, and was illegal and void, the court said, in Doyle v. Continental Insurajice Co., that it referred to that portion of the statute, which required a stipulation not to transfer causes to the courts of the United States. In that case, which arose under the same statute of Wisconsin, the foreign insurance company had complied with the statute, and had filed an agreeement not to remove suits into the Federal courts, and had received a license to do business in the state. Afterwards, it re- moved into the Federal court a suit brought against it in a state court of Wisconsin. The state authorities threatening to revoke the license, the company filed a bill in the Circuit Court of the United States, praying for an injunction to restrain the revoking of the license. A temporary injunction was granted. The de- fendant demurred to the bill, the demurrer was overruled, a de- cree was entered making the injunction perpetual, and the defend- ant appealed to this court. This court reversed the decree and dismissed the bill. The point of the decision seems to have been, that, as the state had granted the license, its officers would not be restrained by injunction, by a court of the United States, from withdrawing it. All that there is in the case beyond this, and all that is said in the opinion which appears to be in conflict with the adjudication in Insurance Co. v. Morse, must be regarded as not in judgment. REMOVAL OF SUITS FROM STATE COURTS. 24:7 In both the cases referred to, the foreign corporation had made the agreement not to remove into the Federal court suits to be brought against it in the state court. In the present case, no such agreement has been made, but the locomotive engineer is arrested for acting as such in the employment of the corpora- tion, because it has refused to stipulate that it will not remove into the Federal court suits brought against it in the state court, as a condition of obtaining a permit, and consequently has not obtained such permit. Its right, equally with any individual citi- zen, to remove into the Federal court, under the laws of the United States, such suits as are mentioned in the third section of the Iowa statute, is too firmly established by the decisions of this court to be questioned at this day; and the State of Iowa might as well pass a statute to deprive an individual citizen ot another state of his right to remove such suits. "As the Iowa statute makes the right to a permit dependent upon the surrender by the foreign corporation of a privilege secured to it by the Constitution and laws of the United States, the statute requiring the permit must be held to be void. The question as to the right of a state to impose upon a cor- poration engaged in interstate commerce the duty of obtaining a permit from the state, as a condition of its right to carry on such commerce, is a question which it is not necessary to decide in this case. In all the cases in which this court has considered the sub- ject of the granting by a state to a foreign corporation of its con- sent to the transaction of business in the state, it has uniformly asserted thai no conditions can be imposed by the state which are repugnant to the Constitution and laws of the United States. La Fayette Ins. Co. v. French, i8 How. 404, 407 ; Ducat v. Chi- cago, 10 Wall. 410, 415; Ins. Co. v. Morse, 20 Wall. 445, 456; St. Clair v. Cox, 106 U. S. 350, 356; Phila. Fire Assn. v. New York, 119 U. S. no, 120." 1. Cases Arising Under the Constitution, Laws or Treaties. A suit arising under the Constitution, laws or treaties of the United States can be removed from a state court to a Circuit Court of the United States providing the amount involved ex- ceeds the sum or value of two thousand dollars. The two essen- tials : Federal question and amount involved, appearing affirm- 248 UNITED STATES COURTS. atively in the petition for removal, will be sufficient to take the case from the state court to the Federal court. The defendant or defendants are the only ones that can remove in this class of cases. As to when the case arises under the Constitution, laws or treaties of the United States, and who may remove, and the cir- cumstances under which a removal will be allowed, is fully stated in the case of Chicago R. I. Ry. Co. v. Martin, 178 U. S. 245, (1900). "This was an action brought by Lissa Martin as adminis- tratrix of William Martin, deceased, against the Chicago, Rock Island and Pacific Railroad Company, and Clark and others, re- ceivers of the Union Pacific Railway Company, in the District Court of Clay County, Kansas, to recover damages for the death of the decedent. Plaintiff's petition was filed January 26, 1894, and on February 14, 1894, the Chicago, Rock Island and Pacific Railroad Company filed its separate answer thereto. February 20, 1894, defendants Clark and others, as receivers, presented their petition and bond, praying for the removal of the cause to the United States Circuit Court for the District of Kansas, on the ground that the case arose under the Constitution and laws of the United States, which application was overruled by the District Court, and the receivers duly excepted. The cause was tried, the jury returned a verdict in favor of plaintiff and against all the defendants, and judgment was entered thereon. The cause was taken on error to the Supreme Court of Kansas by the defendants, and the judgment was by that court affirmed. 59 Kansas, 437. The refusal of the state court to remove the cause to the Cir- cuit Court of the United States on the application' of the receivers was relied on as error throughout the proceedings, and the Su- preme Court of Kansas held, among other things, that the appli- cation for removal was properly denied because all the defend- ants were charged with jointly causing the death of plaintiff's intestate, and all did not join in the petition for removal. "Assuming that as to the receivers the case may be said to have arisen under the Constitution and laws of the United States, the question is whether it was necessary for the Chicago, Rock Island and Pacific Railroad Company, defendant, to join in the application of its co-defendants, the receivers of the Union Paci- fic Railway Company, to effect a removal to the Circuit Court. REMOVAL OF SUITS FROM STATE COURTS. 249 The Rock Island Company was not a corporation of Kansas, and all the receivers of the Union Pacific Railway Company were citizens of some other state than the State of Kansas. But the receivers applied for removal, after the Rock Island Company had answered, on the ground that the suit was, as to them, 'one arising under the laws of the United States,' in that they were appointed receivers by the Circuit Court of the United States for the Districts of Nebraska and Kansas, to take charge of and to operate, a corporation created by the consolidation, under the acts of Congress, of a Corporation of the United States, a cor- poration of Kansas and a corporation of Colorado. "The act of March 3, 1887, as corrected by the act of August 13, 1888, 25 Stat. 433, c. 866, § 2, provides: " 'That any suit of a civil nature, at law or in equity, arising under the Constitution or laws of the United States, or treaties made, or which shall be made, under their authority, of which the Circuit Courts of the United States are given origmal juris- diction by the preceding section, which may now be pending, or which may hereafter be brought, in any state court, may be re- moved by defendant or defendants therein to the Circuit Court of the United States, for the proper district. Any other suit of a civil nature at law or in equity, of which the Circuit Courts of the United States are given jurisdiction by the preceding section, and which are now pending, or which may hereafter be brought, in any state court, may be removed into the Circuit Court of the United States for the proper district by the defendant or defend- ants therein, being non-residents of that State. 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 de- fendants actually interested in such controversy may remove said suit into the Circuit Court of the United States for the proper dis- trict. And where a suit is now pending, or may be hereafter brought, in any state court, in which there is a controversy be- tween a citizen of the State in which the suit is brought and a citizen of another State, any defendant, being such citizen of an- other State, may remove such suit into the Circuit Court of the United States for the proper district, at any time before the trial thereof, when it shall be made to appear to said Circuit Court that from prejudice or local influence he will not be able to obtain justice in such state court ' 250 UNITED STATES COURTS. "It thus appears on the face of the statute that if a suit arises under the Constitution or laws of the United States, or if it is a suit between citizens of different states, the defendant, if ^nere be but one, may remove, or the defendants, if there, be more than one; but where the suit is between citizens of different States and there is a separable controversy, then either one or more of the defendants may remove. "Under the first clause of section 2 of the act of 1875, 18 Stat. 470, c. 137, which applied to 'either party,' but in its re- enactment in the second clause of section 2 of the act of 1887, above quoted, is confined to the defendant or defendants, it was well settled that a removal could not be effected unless all the parties on the same side of the controversy united in the peti- tion; and so as to the second clause of the second section of the act of 1875, which corresponds with the third clause of the sec- ond section of the act of 1887, it was held that that clause only applied where there were two or more controversies in the same suit, one of which was wholly between citizens of different states. Hanrick v. Hanrick, 153 U. S. 192, and cases cited, Tor- rence v. Shedd, 144 U. S 527, and cases cited. In the latter case Mr. Justice Gray said : 'As this court has repeatedly affirmed, not only in cases of joint contracts, but in actions for torts, which might have been brought against all or against any one of the de- fendants, separate answers by the several defendants sued on joint causes of action may present different questions for determina- tion, but they do not necessarily divide the suit into separate con- troversies A defendant has no right to say that an action shall be several which a plainriff elects to make joint. A separate de- fence may defeat a joint recovery, but it cannot deprive a plain- tiff of his right to prosecute his own suit to final determination in his own way. The cause of action is the subject-matter of the controversy, and that is for all the purposes of the suit, whatever the plaintiff declares it to be in his pleadings.' " And see Whit- comb V. Smithson, 175 U. S. 635. "There was no separable controversy here. The case pre- sented a joint cause of action against all the defendants, and, in- deed, the removal was applied for on the ground that the suit arose under the Constitution and laws of the United States. It, therefore, came within the first clause of the section quoted, find if the same rule governs proceedings under that clause that ob- tains in respect of the second clause, the judgment of the Su- REMOVAL OF SUITS FROM STATE COURTS. 251 preme Court of Kansas must be affirmed. And in view of the language of the statute we think the proper conclusion is that all the defendants must join in the application under either clause. We do not regard Sonnenthiel v. Moerlein Brewing Com- pany, 172 U. S. 401, as in point. There an action had been brought in the Circuit Court of the United States for the Eastern District of Texas by a citizen of Texas, against an Ohio corpora- tion and a United Sta^es Marshal, the jurisdiction depending as to one defendant on diverse citizenship, and as to the other on the case arising under the Constitution and laws of the United States, and the question v/as whether the judgment of the Circuit Court of Appeals was made final by the act of March 3, 1891, which we held it was not, as the jurisdiction was not dependent entirely upon the opposite parties to the suit being citizens of dif- ferent states. "Mitchell v. Smale, 140 U. S. 406 is, however, justly pressed on our attention as of weight in the disposition of the particular •question raised in this case. "The case was this : Mitchell was a citizen of Illinois, and commenced an action of ejectment in the Circuit Court of Cook County, in that state, against three defendants, Jabez G. Smale, and John J. and Frank I. Bennett. The Bennetts, who were at- torneys, appeared specially for Conrad N. Jordan, and moved that he be substituted as sole defendant. The motion was made upon an affidavit of Jordan that the Bennetts had no interest, having conveyed the property to him before the suit was commenced, and that Smale was a mere tenant under him, Jordan, and had no ■other interest. The court denied the motion, and thereupon Jor- dan was admitted to defend the cause as landlord and codefend- ant. Afterwards, and in due time, Jordan filed a petition, under the act of 1875, for the removal of the cause into the Circuit Court of the United States, alleging as a ground of removal that the plaintiff was a citizen of Illinois, and that he, Jordan, was a citi- zen of New York, and was the owner of the property, and that the sole controversy in the case was between him, Jordan, and the plaintif?, stating the facts previously affirmed in his affidavit as to the want of interest in the Bennetts, and the tenancy of Smale. Subsequently Jordan obtained leave to amend his petition, and amended it so as to set up that as between him and the plaintiff the controversy involved the authority of the Land Department of the United States to grant certain patents, under which he claimed 252 UNITED STATES COURTS. the right to hold the land in dispute, after and in view of the pat- ent under which the plaintiflE claimed the same land. As Smale was merely a tenant, the court held that there was no good reason why the contest respecting the title might not have been carried on between Jordan and the plaintiff alone so far as Smale was concerned; but as to the Bennetts the court thought there was greater difficulty in sustaining a removal, because they were made defendants apparently in good faith, and were not acknowledged to be tenants of Jordan, and plaintiff might well insist on prose- cuting his action against them, as well as against Jordan, in order that, if he should be successful, there might be no failure of a complete recovery of the land claimed by him, but inasmuch as Jordan exhibited a claim under the authority of the United States, which was contested by Mitchell on the ground of want of that authority, while it was true that laws of the State of Illinois might be invoked by the parties, still it was no less true that the authority of the United States to make the grant relied on would be neces- sarily called in question. In view of that defence the jurisdiction was sustained apparently on the ground that there was a sepa- rable controversy, and the particular terms of the different clauses of the statute were really not discussed. "The case was a peculiar one, and we must decline to allow it to control the determination of that before us. "In Gold Washing and Water Company v. Keyes, 96 U. S. 199, 203, Mr. Justice Waite said : 'A cause cannot be removed from a state court simply because, in the progress of the litigation,, it may become necessary to give a construction to the Constitu- tion or laws of the United States. The decision of the case must depend upon that construction. The suit must, in part at least, arise out of a controversy between the parties in regard to the operation and effect of the Constitution or laws upon the facts involved. . . . Before, therefore, a Circuit Court can be re- quired to retain a cause under this jurisdiction, it must in some form appear upon the record, by a statement of facts, "in legal and logical form," such as is required in good pleading, that the suit is one which "really and substantially involves a dispute or controversy" as to a right which depends upon the construction or effect of the Constitution, or some law or treaty of the United States.' Blackburn v. Portland Gold Hining Company, 175 U. S. 571. In Mitchell v. Smale, the claim of Jordan was treated by the REMOVAL OF SUITS FROM STATE COURTS. 253 •court as coming within that ruHng, but the case before us does not. This was an ordinary action under a state statute for wrongfully causing the death of plaintiff's intestate. No Federal question was in fact presented by the pleadings nor litigated at the trial. The liability depended on principles of general law ap- plicable to the facts, and not in any way upon the terms of the order appointing the receivers. Whatever the rights of the receiv- ers to remove the cause if they had been sued alone, the contro- versy was not a separable controversy within the intent and meaning of the act. This being so, the case came solely within the first clause of the section, and we are of opinion that it was not intended by Congress that, under such circumstances, there should be any difference between the rule applied under the firsi and second clauses of Section 2 of the act of 1887-8. Judgment affirmed." 2, Where United States Are Plaintiffs or Petitioners. In the class of cases, where the United States are plaintiffs or petitioners, the defendant, if a non-resident of the state where the suit is brought, may remove without regard to the amount in- volved. This class is not difficult, consequently no more will be said in explanation of it. 3. Controversies Between Citizens of Different States. Where the suit is between citizens of different states, and the amount exceeds two thousand dollars, the defendant if a non-resi- dent of the state, may remove the cause to the Circuit Court of the United States. Two essentials are necessary here: i. Diverse citizenship. 2. Amount involved. Controversies between a citi- zen of the District of Columbia, or a citizen of a territory and a citizen of a state cannot be removed unless the controversy arises under the Constitution, laws or treaties of the United States. The diverse citizenship must exist at the time the suit was begun in the State Court, and at the time the petition for removal was filed. Also, the record must show that the statutory amount is involved. If any of these requisites are absent the case will be re- manded. A corporation, created by the laws of one state, may carry on business in another, either by virtue of being created a corpora- 254 UNITED STATES COURTS. tion by the laws of the latter state also, or by virtue of a license, permission or authority, granted by the laws of the latter state, to act in that state under its charter from the former state. In the first alternative, it cannot remove into the Circuit Court of the United States a suit brought against it in a court of the latter state by a citizen of that state, because it is a citizen of the same state with him. In the second alternative it can remove such a suit, because it is a citizen of a different state from the plain- tiff.^'* A state is not a citizen. And under the Judiciary Acts of the United States, it is well settled that a suit between a state and a citizen or a corporation of another state is not between citizens of different states; and that the Circuit Court has no jurisdiction of it, unless it arises under the Constitution, laws or treaties of the United States."^' The case of Powers v. Chesapeake Ry. Co., 169 U. S. 92, (1898), reviews the questions of removal, separable controversy, right to go to the Supreme Court, amendments of petition for jfe- moval, and also, the question of losing rights by making a de- fence in the State Court when the case is properly removed. The court in this case decided as follows : "In the Circuit Court of the United States, the plaintiff con- tended that the court had no jurisdiction to entertain the case and render the final judgment complained of, because the case had not been duly removed into the court from the State Court in which it had been commenced. "The question thus presented was not, as in Smith v. Mc- Kay, 161 U. S. 355, whether a suit, of which the Circuit Court of the United States was admitted to have jurisdiction, was cogniz- able on the common law or on the equity side of the court; but the question was whether the Circuit Court of the United States had any jurisdiction whatever of the case. The jurisdiction of the Circuit Court of the United States was thus in issue, and the question of its jurisdiction having been duly certified, the case was rightly brought from the Circuit Court of the United States directly to this court, under the act of March 3, 1891, c. 517, § 5, upon the question of jurisdiction only. 26 Stat. 827. "The action was brought against a railroad company and several of its servants ro recover for an injury alleged to have "'Martin v. Baltimore Ry. Co., 151 U. S. 673, (1894). ""Postal Tel. Co. v. Ala.,' 15S U. S. 482, (1894). REMOVAL OF SUITS FROM STATE COURTS. 255 been caused to the plainiiff by the negUgence of all the defend- ants. It is well settled that an action of tort, which might have been brought against many persons or against any one or more of them, and which is brought in a State Court against all jointly, contains no separate controversy which will authorize its removal by some of the defendants into the Circuit Court of the United States, even if they file separate answers and set up different de- fences from the other defendants, and allege that they are not jointly liable with them, and that their own controversy with the plaintiff is a separate one; for, as this court has often said: 'A defendant has no right to say that an action shall be several which the plaintiff seeks to make joint. A separate defence may defeat a joint recovery, but it cannot deprive a plaintiff of his right to prosecute his suit to final decision in his own way. The cause of action is the subject matter of the controversy, and that is, for all purposes of the suit, whatever the plaintiff declares it to be in his pleadings.' Pirie v. Tvedt, 115 U. S. 41, 43; Sloane V. Anderson. 117 U. S. 275; Little v. Giles, 118 U. S. 596, 600, 601 ; Louisville and Nashville Railroad v. Wangelin, 132 U. S. 599; Torrence v. Shedd, 144 U. S. 527, 530; Connell v. Smiley, 156 U. S. 335, 340. Applying this rule, the Circuit Court of the United States, when this case was first removed into that court, ordered it to be remanded. 65 Fed. Rep. 129, 130. "It is true that the same court, in similar cases between other parties, has since decided otherwise; and, upon a review of con- flicting authorities, and referring to the distinction taken under the old system of special pleading between trespass and trespass on the case, has held that a master and servant cannot be joined in an action for a tort, and therefore the controversy between each of them and the .plaintiff is a separate controversy. Warax v. Cincinnati, &c. Railway- 72 Fed. Rep. 637 ; Hukil v. Mansfield and Big Sandy Railroad, 72 Fed. Rep. 745. "But it is unnecessary now to consider which of the views of the Circuit Court upon this question is the correct one, because that court, by its order remanding this case, distinctly and finally adjudged, as betwen these parties and for the purposes of this case, that, at the time of the filing of the first petition for re- moval, the case was not removable, because, as it then stood, some of the defendants were citizens of the same state with the plain- tiff, and there was no separate controversy between the plaintiff and the railway company, a citizen of a different state from him- 256 ' UNITED STATES COURTS. self. That order is not reviewable by this court. Gurnee v. Pat- rick County, 137 U. S. 141 ; In re Pennsylvania Co., 137 U. S. 451 ; Birdseye v. Schaeffer, 140 U. S. 117; Missouri Pacific Rail- way V. Fitzgerald, 160 U. S. 556. "After the case had been so remanded, and when it was called for trial in the State Court, the plaintiff discontinued his action against all the individual defendants, leaving it an action between citizens of different states ; and the case then for ihe first time became one in its nature removable, and the single re- maining defendant thereupon immediately filed a second petition for removal, which was denied by the State Court, but was granted an amendment thereof allowed by the Circuit Court of the United States. 65 Fed. Rep. 129. "The existence of diverse citizenship, or other equivalent condition of jurisdiction, is fundamental; the want of it will be taken notice of by the court of its own motion and cannot be waived by either party. .Manchester &c. Railway v. Swan, iii U. S. 379. But the time of filing a petition for removal is not es- sential to the jurisdiction ; the provision on that subject is, in the words of Mr. Justice Bradley, 'but modal and formal,' and a fail- ure to comply with it may be the subject of waiver or estoppel. Ayers v. Watson, 113 U. S. 594, 597-599; Northern Pacific Rail- road V. Austin, 135 U. S. 315, 318; Martin v. Baltimore and Ohio Railroad, 151 U. S. 673, 688, 691; Connell v. Smiley, 156 U. S. 335- "Undoubtedly, when the case, as stated by the plaintiff's dec- laration, is a removable one, the defendant should file his petition for removal at or before the time when he is required by the law or practice of the state to make any defense whatever in its courts. Edrington v. Jeflferson, iii U. S. 770; Baltimore and Ohio Railroad v. Burns, 124 U. S. 165 ; Kansas City, &c. Rail- road V. Daughtry, 138 U. S. 298; Martin v. Baltimore and Ohio Railroad, 151 U. S. 673, 686, 687. "But it by no means follows, when the case does not become in its nature a removable one until after the time mentioned in the act has expired, that it cannot be removed at all. "In Northern Pacific Railroad v. Austin, 135 U. S. 315, where a plaintiff suing in an inferior court of a state had laid his damages at less than the sum necessary to authorize a removal into the Circuit Court of the United States and was permitted at the trial to increase the ad damnuiu above that sum, and judg- REMOVAL OF SUITS FROM STATE COURTS. 257 ment of the District Court was affirmed by the highest court of the State, a writ of error to that court was dismissed by this court, solely because no application for removal had been made after the allowance of the amendment ; and the Chief Justice, in deliv- ering the opinion, said : 'If the application had been made, the question would then have arisen whether it came too late under the circumstances. The defendant was not entitled to remove the suit, as originally brought, "before or at the term at which such case could be first tried, and before the trial thereof." But the objection to removal, depending upon the absence of the jurisdictional amount, was obviated by the amendment. As the time within which a removal must be applied for is not jurisdic- tional, but modal and formal, Ayres v. Watson, 113 U. S. 594, 598, it may, though obligatory to a certain extent, be waived ; and as, where a removal is effected, the party who obtains it is es- topped upon the question of time, so, if the conduct of the plain- tiff in a given case were merely a device to prevent a removal, it might be that the objection as to the time could not be raised by him.' 135 U. S. 318. "The question whether a defendant may file, in the, State Court in which the suit is commenced, a petition for removal, after the time mentioned in the act of Congress has elapsed, in a case which was not removable when the time expired, is now di- rectly presented for adjudication; and the answer to this ques- tion depends upon the terms and effect of the act in force when these proceedings took place. "In order to warrant a removal from a court of a state into a Circuit Court of the United States, according to the terms of that act, the necessary diverse citizenship or other foundation of the jurisdiction of the Circuit Court of the United States must exist. It is only when that does exist that 'any party entitled to remove any suit' 'may make and file a petition in such suit in such State Court at the time, or at any time before the defendant is required by the laws of the state, or the rule of the State Court ■in which such suit is brought, to answer or plead to the decla- ration or complaint of the plaintiff, for the removal of such suit into the Circuit Court to be held in the District where such suit is pending,' and to give bond to file a copy of the record in that court 'on the first day of its then next session.' Act of March 5, 1887, c. 373, as corre-^ted by act of August 13, 1888, c. 866; 25 Stat. 435. )7 258 UNITED STATES COURTS. "This provision clearly manifests the intention of Congress that the petition for removal should be filed at the earliest pos- sible opportunity. But, so long as there does not appear of rec- ord to be any removable controversy, no party can be entitled to remove it, and the provision of the act of Congress, that 'any party entitled to remove any suit,' 'may make and file a petition for removal' at or before the time when he is required to make answer to the suit, cannot be literally applied. To construe that provision as restricting, to the time prescribed for answering the declaration, the removal of a case which is not a removable one at that time, would not only be inconsistent with the words of ihe statute, but it would utterly defeat all right of removal in many cases ; as, for instance, whenever citizens of the same state as the plaintiff were joined as defendants through an honest mis- take ,not discovered by the plaintiff until after the time pre- scribed for answering; or whenever a personal injury was sup- posed, at the time of bringing an action therefor, to be a com- paratively trifling one, which might be fully compensated by a sum much less than $2,000, and was afterwards discovered to be so much graver, that there could be no doubt of the power and the duty of the coui : to allow an amendment increasing the dd datnmtm. "The reasonable c^ iistrviction of the act of Congress, and the only one which will prevent the right of removal, to which the statute declares the party to be entitled, from being defeated b}' circumstances wholly beyond his control, is to hold that the incidental provision as to the time must, when necessary to carry out the purpose of the statute, yield to the principal enactment as to the right; and to consider the statute as, in intention and effect, permitting and requiring the defendant to file a petition for removal as soon as the action assumes the shape of a removable case in the court in which it was brought. "The result is that, when this plaintiff discontinued his ac- tion as against the individual defendants, the case for the first time became such a one as, by the express terms of the statute, the defendant railway company was entitled to remove; and therefore its petition for removal, filed immediately upon such discontinuance, was filed in due time. "A petition for removal, when presented to the State Court, becomes part of the record of that court, and must doubtless show, taken in connection with the other matters on that record. REMOVAL OF SUITS KROM STATE COURTS. 259 the jurisdictional facts upon which the right of removal depends; because, if those facts are not made to ap'pear upon the record of that court, it is not bound or authorized to surrender its juris- diction, and if it does, the Circuit Court of the United States can- not allow an amendment of the petition, but must remand the case. Crehore v. Ohio and Mississippi Railway, 131 U. S. 240; Jackson v. Allen, 132 U. S. 27. But if, upon the face of the petition and of the whole record of the State Court, sufficient grounds for removal are shown, the petition may be amended in the Circuit Court of the United States by leave of that court, by stating more fully and distinctly the facts which support those grounds. Carson v. Dunham, 121 U. S. 421, 427; Martin v. Bal- timore and Ohio Railroad, 151 U. S. 673, 690, 691. In the case at bar, the second petition for removal, as pre- sented to the State Court, alleged that the petitioner was a citi- zen of the States of Virginia and West Virginia only, that the plaintiff was a citizen of the State of Kentucky, that Evans and Hickey had been fraudulently and improperly joined as de- fendants for the purpose of defeating the petitioner's right of removal, that because of their joinder the case had been re- manded to the State Court, and that the action, having been dis- continued against ther.i, was now for the first time pending against the petitioner alone; and by the transcript, previously filed in the State Court, of the record of the proceedings in the Circuit Court of the I'nited States upon the first petition for re- moval, containing the opinion and order remanding the case, it appeared to have been admitted that the individual defendants were citizens of Kentucky. "It was thus made to appear, upon the record of the State Court, that the case could not have been removed before, and that it had now become in it? nature removable by reason of the di- verse citizenship of the parties. Such being the case, it was rightly removed by the second petition for removal into the Cir- cuit Court of the United States; and this petition was rightly permitted to be amended in that court. "The petition, as amended, distinctly alleged that Evans was a citizen of Virginia, that Boyer and Hickey were both citizens of Kentucky, and that by the discontinuance against them the action was for the first time pending against the railway com- pany alone; and thus ."^howed a case which the railway company was entitled to remove, independently of the allegations that 260 UNITED STATES COURTS. these persons had been fraudulently joined as defendants to de- feat the right of removal, and that the plaintiff was therefore estopped to deny that the second petition for removal was filed in time. "We do not find it necessary to pass upon the points of fratidulent joinder and of estoppel, made by the railway com- pany, and upon which the Circuit Court of the United States proceeded in retaining jurisdiction of the case, because, for the reasons before stated, we are of the opinion that, upon the true construction of the act of Congress, the petition, filed as soon as the case became a removable one, and before the railway com- pany took any new steps in defense of of the action, was season- ably filed ; and that it sufficiently stated grounds for removal, and was therefore rightly permitted to be amended. "It is hardly necessary to add that the railway company, by making defense in the State Court after that court had declined to surrender jurisdiction of the case, did not lose or impair its right to insist that the case had been lawfully removed into the Circuit Court of the United States. The defendant, notwith- standing its objection, duly saved upon the record, to the juris- diction of the State Court, having been forced to a hearing in that court, is entitled to have the error in this respect corrected in any court having jurisdiction for the purpose. Removal Cases, 100 U. S. 457, 475 ; Edrington v. Jefferson, iii U. S. 770, 774." 4. Suits Under Land Claims. Suits between citizens of the same state claiming lands under grants of different states, may be removed by either plaintiff or defendant. In this class of cases, the United States Statute (25 Stat. 435), provides that any one or more of the plaintiffs or de- fendants, may advise the State Court that he or they claim title to the land under a grant from a state, and thereupon, he or they may move that the adverse party inform the court whether such adverse party claims title to the land under a grant from some other state. If the adverse party claims title from some other state, then the party or parties moving for such information, may on petition and bond remove the case to the Circuit Court ■of the United States next to be holden in such District. Accord- ing to the statute two thousand "dollars must be involved in this ■class of cases. REMOVAL OF SUITS FROM STATE COURTS. 261 5. Suits Between Citizens and Aliens. Where the suit is between citizens of a state and foreign states, citizens, or subjects, and more than two thousand dol- lars are involved, the defendant, if a non-resident, may remove. To remove under this provision, you must show that one party is an alien of some foreign state, and that the other party is a citizen of some state; but it is no objection to the jurisdiction in such a case that the alien resides in the same state with the citi- zen. A corporation may be an alien, and is governed by the same rules that govern cases between natural persons. This question was fully considered in the last chapter, so it is not necessary to repeat here. 6. Separable Controversies. The United States Statute provides that when in any suit of a civil nature brought in a State Court, there are two or more separable causes of action, and in respect to one of them all the necessary parties on one side are citizens of different states from those on the other, either one or more of the defendants inter- ested in such controver.sy may remove the suit into the Circuit Court of the United States for the proper District. In all cases of removal the defendants must join if they wish to reinove the case; but in case of removal on ground of separable controversy, i'le defendants of the separable contro- versy join, the balance of the case and parties remain in the State Court. In all cases, to entitle a defendant to remove on account of a separable controversy, there must exist a separate cause of action on which a separate suit could be brought ana complete relief afforded distinct from the rest of the case, if the cause of action is joint, and there is no separable contro- versy in the case, there can be no removal by the defendants un- less they all join and all are citizens of different states from the plaintiffs. If one of the defendants fails to make application for removal in time, the other defendants also, lose their right of removal, as one canno!: remove without all the others joining. It follows that part of the defendants are subjected to the dis- ability of the defendant who failed to apply in time."^ ""Fletcher v. Hamlet, ii6 U. S. 408, (1886). 262 UNITED STATES COURTS. As to what is a separable controversy, is fully illustrated and explained in the case of Hyde v. Ruble, 104 U. S. 407, ( 1881 ) . It is as follows : "This was a suit begun by Ruble and Green, on the 6th of March, 1880, in a State Court of Minnesota, upon an alleged contract of bailment made by the defendants as partners. The amount involved was a -ittle more than $500. The plaintiffs were citizens of Minnesota. Only one defendant, Rowell, was a citi- zen of that state. The business of the alleged partnership was carried on there. He filed a separate answer to the complaint, in which he denied the existence of any partnership between him- self and the other defendants, and set up a full performance of the contract on his part The other defendants joined in a sep- arate answer for themselves, in which they denied any partner- ship with him, and any contract between themselves and the plaintiffs. They also denied generally all the allegations of the complaint. "On the I2th of April, 1880 , after these answers were in, all the defendants, including Rowell, filed in the State Court a petition for the removal of the suit to the Circuit Court of the United States for the District of Minnesota, on the ground of, the citizenship of the parties. At the next term of the Circuit Court the cause was remanded to the State Court. This order was entered in the Circuit Court July 31, 1880, and a copy thereof filed in the State Court on the nth of August. On the I2th of January, 1881, at a term of the State Court which began on the loth of that month, another petition was filed, by all the defendants who were not citizens of Minnesota, for a removal of the suit, as to themselves, on the ground that there could be a final determination of the controversy, so far as it concerned them, without the presence of RoAvell as a party. It is not con- tended that this petition was filed in time to effect a removal under the second clause of the second section of the act of March 3, 1875,- c. 137 (18 Stat., pt. 3, p. 470) ; but the State Court, under the second clause of Sect. 639 of the Revised Stat- utes, ordered a removal, so far as concerned the petitioning de- fendants, leaving the suit to proceed in that court as to Rowell. When the case was docketed in the Circuit Court under this second removal it was again remanded. To reverse these several orders of the Circuit Court this writ of error has been brought by the defendants. REMOVAL OF SUITS FROM STATE COURTS. 263 "This action is clearly one sounding in contract and not in tort. According to the allegations of the complaint the plain- tiffs stored, at an agreed rate, their wheat with the defendants, (vho undertook to buy it and pay for it at the market price when- ever the plaintiffs wanted to sell. The action is brought to re- cover what is alleged to be due on the price according to the terms of this contract. All the allegations of wrongful conver- sion are immaterial, and in no way change the character of the suit. "The suit, then, as it stands on the complaint, is in respect to a controversy between the parties as to the liability of the defendants on a single contract. One ground of defense is, that there was no partnership between the defendants, and that Row- ell alone was bound by the contract that was made ; and another that the contract, by whomsoever made, had been fully per- formed. Clearly, then, under our rulings in Removal Cases (lOO U. S. 457), and Blake v. McKim (103 id. 336), the case was not removable under the first clause of the second section of the act of 1875, because all the parties on one side of the controversy were not citizens of different states from those on the other. "Neither do we think it was removable under the second clause of the same section, on the ground that there was in the suit a separate controversy wholly between citizens of different states. To entitle a party to a reinoval under this clause there must exist in the suit a separate and distinct cause of action, in respect to which all the necessary parties on one side are citi- zens of different states from those on the other. Thus, in Barney V. Latham (103 id. 205), two separate and distinct controver- sies were directly involved ; one as to the lands held by the Win- ona and St. Peter Land Company, in respect to which the land company was the only necessary party on one side and the plain- tiff on the other ; and the second as to the moneys collected from the sales of lands before the land company was formed, and a.' to which only the natural persons named as defendants were the necessary party on one side and the plaintiffs on the other. One was a controversy about the land and the other about the money. Separate suits, each distinct in itself, might have been properly brought on these two separate causes of action, and complete re- lief afforded in each suit as to the particular controversy in- volved. In that about the land, the land company would have been the only necessary defendant ; and in that about the money, 2b4 UNITED STATES COURTS. the natural persons need only have been brought in. In that about the land there couid not have been a removal, because the parties on both sides would have been citizens of the same state; while in that about the money there could have been, as the plain- tiffs would all be citizens of one state, while the defendants would all be citizens of another. When two such causes of ac- tion are found united in one suit, we held in the case last cited there could be a removal of the whole suit on the petition of one or more of the plaintiffs or defendants interested in the contro- versy, which, if it had been sued on alone, would be removable. But that, we think, does not meet the requirements of this case. This suit presents but a single cause of action, that is to say, a single controversy. The issues made by the pleadings do not create separate controversies, but only show the questions which are in dispute between the parties as to their one controversy. "The suit is, therefore, governed by the principles in Re- moval Cases and Blake v. McKim, rather than those in Barney V. Latham, and was properly remanded. "The second clause of Section 639 of the Revised Statutes was, as we think, repealed by the act of 1875, and as the second petition for removal was not filed in time under the act of 1875, it was of no avail. The whole case depends on the first peti- tion." 7. Prejudice or Local Influence Cases. When a suit is broug"ht in any State Court, in which there is a controversy between a citizen of the state in which the suit is brought and a citizen of another state, any defendant, being such citizen of another state, may remove such suit into the Circuit Court of the United States for the proper District at any time be- fore the trial thereof, when it shall be made to appear to said Circuit Court that from prejudice or local influence he will not be able to obtain justice in such State Court, or in any other State Court to which said defendant may, under the laws of the state, have the right, on account of such prejudice or local in- fluence, to remove said cause; provided, that if it further appear that said suit can be fully and justly determined as to the other defendants in the State Court, without being affected by such prejudice or local influence, and that no party to the suit will be prejudiced by a separation of the parties, said Circuit Court may REMOVAL OF SUITS FROJI STATE COURTS. 265 direct the suit to be remanded, so far as relates to such defend- ants, to the State Court, to be proceeded with therein. In this class of cases, removal can only be had when all the parties to the suit are citizens of different states from those on the other.^'^ The application for removal must be made at ' the first term at which the case, under the laws of the state, can be tried, and an application for removal after the lapse of that term comes too late. A suit to be removable on the ground of prejudice or local influence must involve the sum or value of two thousand dollars besides costs. The question of removal on ground of prejudice and local influence, also, the question of remedies, in case a suit is re- manded by the Circuit Court, is fully given in the case of In re Penn. Co. Petitioner, 137 U. S. 451, (1890). This case is as follows : "This is a petition of the Pennsylvania Company, a corpo- ration and a citizen of Pennsylvania, for a mandamus to be di- rected to the judges of the Circuit Court of the United States for the District of Connecticut, commanding them to reinstate, take jurisdiction of and try and adjudge a certain suit of one Al- berto T. Roraback, a citizen of Connecticut, against the said Pennsylvania Company. The suit had been commenced on the 4th of June, 1889, by writ returnable the first Monday of July, 1889, in the Court of Common Pleas for Litchfield County, in the State of Connecticut. The demand in said suit was for the sum of five hundred dollars. In the term of March, 1890, of said Court of Common Pleas the company filed a petition for the removal of the suit to the United States Circuit Court for the District of Connecticut, on the ground of prejudice and locdl in- fluence, filing therewith proper affidavit and bond, and the said court accepted said petition and bond, and granted the applica- tion and ordered the suit to be removed. On the opening of the Circuit Court of the United States in April, the company entered in said Circuit Court a copy of the record, and also filed a pe- tition to the same court reciting the steps already taken, real- leging the ground of removal, and praying the court to tane jurisdiction of the suit; and filed an additional affidavit setting forth all the facts as to the existence of the alleged prejudice and local influence in the State Court, and that the petitioner would "'Jefferson v. Driver, 117 U. S. 272, (r 266 UNITED STATES COURTS. not be able to obtain justice therein. But afterwards the plainiff in the suit moved to remand the same to the State Court, on the ground that the amount in dispute did not exceed the sum of two thousand dollars, exclusive of interest and costs. The Circuit Judge granted the application and made an order for remanding the cause, and the Circuit Court refuses to take jurisdiction of the same. 42 Fed. Rep. 420. Wherefore the present mandamus is prayed. "The first question to be decided is, whether this court has power to grant the writ applied for. The general power of the court to issue a writ of mandamus to an inferior court, to take jurisdiction of a cause when it refuses to do so, is settled by a long train of decisions. Ex parte Bradstreet, 7 Pet. 634; Life and Fire Ins. Co. v. Wilson, 8 Pet. 291 ; United States v. Gomez, 3 WaU. 752; Ex parte Roberts, 15 Wall. 384; Ex parte United States, 16 Wall. 699, 702; Ins. Co. v. Comstock, 16 Wall. 258, 271 ; Railroad Co. v. Wiswall, 23 Wall. 507; Ex parte Schollen- berger, 96 U. S. 369; Harrington v. Holler, ill U. S. 796; Ex parte Brown, 116 U. S. 401; Ex parte Parker, 120 U. S. 737; Ex parte Hollon Parker, 131 U. S. 221. " It is true that after a case has proceeded to the filing of a declaration and a plea to the jurisdiction, or its equivalent, and a judgment is rendered in favor of the plea and a consequent dismissal of the action, this court has held that the plaintiff is confined to his remedy by writ of error, and cannot have a man- damus, which only lies, as a general trule, where there is no other adequate remedy. Ex parte Bait, and Ohio Railroad, 108 U. S. 566; Ex parte Railway Co., 103 U. S. 794. But it was ex- pressly held in Railroad Co. v. Wiswall, 23 Wall. 507, that a mandamus would lie to compel a Circuit Court to take jurisdic- tion of and proceed with a case which it had wrongfully re- manded to the State Court. The reason was that an order to remand was not a final judgment, and no writ of error would lie. This case is supported by the rule laid down by Chief Jus- tice Marshall in Ex parte Bradstreet, 7 Pet. 634; and if the de- cision of the present case depended only on the general rule, .the power of the court to issue the mandamus would be undoubted. "But in our opinion, the matter is governed by statute. This will be manifest by reference to previous legislation on the sub- ject. The 5th section of the act of March 3, 1875, (determining the jurisdiction of the Circuit Court,) provided that the order REMOVAL OF SUITS FROM STATE COURTS. 267 of the Circuit Court dismissing or remanding a cause to the State Court should be reviewable by the Supreme Court on writ of error or appeal, as the case might be. i8 Stat. 470, 472, c. 137. This act remained in force until the passage of the act of March 3, 1887, by which it was superseded, and the writ of error or appeal upon orders to remand causes to the State Courts, was abrogated. The provision of the act of 1887 is as follows: 'Whenever any cause shall be removed from any State Court into any Circuit Court of the United States, and the Ci regard it so, and might well have regarded it as not sufficient. The petition is denied." 8. Suits Against United States Revenue Officers. Suits of this kind are fully discussed in the case of Virginia v. Paul, 148 U. S. 107, (1893), where it was held: "The prosecution and punishment of crimes and offences committed against one of the States of the Union, appropriately belong to the courts and authorities of the State, and can be inter- fered with by the Circuit Court of the United States so far only as Congress, in order to maintain the supremacy of the Consti- tution and laws of the United States, has expressly authorized either a removal of the prosecution into the Circuit Court of the United States for trial, or a discharge of the prisoner by a writ of habeas corpus issued by that court or by a judge thereof. Ten- REMOVAL OF SUITS FROM STATE COURTS. 271 nessee v. Davis, loo U. S. 257; Virginia v. Rives, 100 U. S. 313; Davis V. South Carolina, 107 U. S. 597; In re Neagle, 135 U. S. I ; Huntington v. Attrill, 146 U. S. 657, 672, 673. "In the case at bar, Joseph H. Carrico, having been arrested under a warrant from a justice of the peace of the county of Smyth, on a cliarge of murder, was discharged by the District Judge on writ of habeas corpus from the commitment under state process ; and having afterwards been indicted by the grand jury of the county for that offence, and committed by order of the county court for trial upon the indictment, the prosecution against him was assumed to have been removed into the Circuit Court of the United States for trial, and was there tried. "The State of Virginia, by petition for a writ of mandamus, questions the validity both of the removal and of the discharge, and it will be convenient to consider the two separately beginning with the removal. "It is contended by the respondent that the prosecution was rightly removed into the Circuit Court of the United States un- der section 643 of the Revised Statutes, (the constitutionality of which was affirmed in Tennessee v. Davis, and in Davis v. South Carolina, above cited), authorizing the removal into the Circuit Court of the United States for trial of 'any civil suit or criminal prosecution' 'commenced in any court of a State against any. officer appointed under or acting by authority of any revenue law of the United States, now or hereafter enacted, or against any person acting under or by authority of any such officer, on account of any act done under color of his office, or of any such law, or on account of any right, title or authority claimed by such officer or other person under any such law.' "It is important, therefore, to consider whether the condi- tions of that section have been complied with. "By that section, it is only when a suit or prosecution has been 'commenced in any court of a State,' and 'at any time before the trial or final hearing thereof,' that it 'may be removed for trial into the Circuit Court,' 'upon the petition of such defendant to said Circuit Court, and in the following manner' : The peti- tion must set forth the nature of the suit or prosecution, and be verified by affidavit, and supported by certificate of counsel. It 'shall be presented to the said Circuit Court, if in session, or if it be not, to the clerk thereof at his office, and shall be filed in said'office.' 'The cause shall thereupon be entered on the docket fa 272 UNITED STATES COURTS. of the Circuit Court, and shall proceed as a cause originally com- menced in that court.' The clerk of the Circuit Court is required, when the case is commenced in the state court otherwise than by capias, to issue a writ of certiorari to the state court for the rec- ord; and, when it is commenced by capias, to 'issue a writ of habeas corpus cum causa, a duplicate of which shall be delivered to the clerk of the state court or left at his office by the, marshal' ; 'and thereupon it shall be the duty of the state court to stay all further proceedings in the cause, and the suit or prosecution, upon delivery of such process, or leaving the same as aforesaid, shall be held removed to the Circuit Court, and any further proceed- ings, trial or judgment therein in the state court shall be void.' "The removal of the case out of the jurisdiction of the state court into the exclusive jurisdiction of the Circuit Court of the United States takes place, without any order of the Circuit Court, as soon as the state court, by the service upon it, or upon its clerk, of the appropriate process, whether certiorari or habeas corpus cum causa, has notice of the filing of the petition in the Circuit Court. But it is only after such formal notice has been given, that the jurisdiction is transferred from the state court to the national court. The proceedings vxnder this section differ from those under section 641, in which the petition for removal is required to be filed in the state court, and is of itself notice to that court, and therefore, 'upon the filing of such petition, all further proceedings in the state court shall cease," and, if the petition shows a sufficient ground for removal, the case is in legal effect removed. Virginia v. Rives, 100 U. S. 313, 316. But under either section the jurisdiction of the state court is not taken away until it has notice, in one form or other, of the petition for removal; under section 641, by the petition filed in that court; under section 643, by notice from the clerk of the Circuit Court of the petition there filed. "The records of the District Court and of the Circuit Court, copies of which are annexed to the petition for a mandamus, pre- sent a curious and complicated condition of things, in which some of the confusion may be owing to the facts, that not only is the District Judge a judge of either court, but that in the Western District of Virginia both courts are held at the same times and places and have the same clerk. Rev. Stat. §§ 572, 602, 622, 658; Act of September 25, 1890, c. 922, 26 Stat. 474. "The petition for removal, praying also for a writ of habeas REMOVAL OF SUITS FROM STATE COURTS. 273 corpus cum causa, was evidently framed under section 643, of the Revised Statutes, and was addressed to the District Judge as 'Judge of the United States Circuit Court' ; and it is said, in his opinion delivered on allowing an appeal to this court from his order of January 12 upon the habeas corpus, that 'the petition for removal, as show.n by record evidence used in the discussion of this motion, was not filed in the clerk's office of the Circuit Court until December 19, 1891.' 51 Fed. Rep. 202. ' "But that record evidence, all of which is in the record now before us, shows only that the petition was filed in the clerk's office of the District Court on that day, being the same day on which the order granting the writ of habeas corpus was recorded in, and the writ issued from, that office. Indeed, the very ground assigned by the judge in his opinion, just referred to, for allow- ing an appeal from his order on the habeas corpus, was that the. writ of habeas corptis issued by him was not ancillary to the peti- tion for a removal, nor issued by the Clerk of the Circuit Court as provided in that section ; his return to this petition for a man- damus expressly states that it was not issued under section 643, but under section 753 ; and the memorandum, inserted at the beginning of the record of the proceedings in the Circuit Court on the indictment, describes that order as an order of the District Court, removing the prosecution of the Commonwealth of Vir- ginia against Carrico into the Circuit Court. "The single petition, addressed to Judge Paul as Judge of the Circuit Court, and praying for a removal of the cause into that court, and for a writ of habeas corpus cum causa to com- plete the removal, (which, so far as appears on the records o* either court, was the only petition, either for removal or for a habeas corpus), appears to have been treated by the judge as if it had been, or had included, two separate petitions ; the one a petition for an ordinary writ of habeas corpus, under section 753, which might be granted by the District Court or District Judge ; the other a petition for a removal of the cause, under section 643, which could only be addressed to and filed in the Circuit Court. ■'If the petition for removal had been duly filed in the Cir- cuit Court of the United States, and a writ of habeas corpus cum causa had been duly issued by the clerk of that court, and served on the clerk of the county court, no order of removal would have heen necessary. If the petition was not so filed and neither such a writ of habeas' corpus, nor writ of certiorari to bring in the ree- ls 274 UNITED STATES COURTS. ord, was so issued and served, no order, even of the Circuit Court, for the removal of the cause, could have any efifect. In any aspect, the District Court had no authority to grder the pros- ecution to be removed into the Circuit Court. ■'The inference appears to be inevitable that the only founda- tion of the exercise of jurisdiction by the Circuit Court over this indictment was a petition filed in the District Court and orders made and recorded in that court ; and that no petition for removal was ever filed in the clerk's office of the Circuit Court, and no writ of certiorari or habeas corpus cum causa was ever issued by the clerk, as clerk of that court, and served on the state court, as required by section 643 of the Revised Statutes, in order to take away the jurisdiction of the state court. "But there is a more serious objection to the exercise of jurisdiction by the Circuit Court of the United States over the indictment found in the state court. "By the law of Virginia, murder or other felony must be prosecuted by indictment found in the county court; and a justice of the peace, upon a previous complaint, can do no more than to examine whether there is good cause for believing that the accused is guilty, and to commit him for trial before the court having jurisdiction of the offence. Virginia Code of 1887 §§ 3990, 4016, 39SS-397I- "The petition for removal, which was sworn to on Decem- ber 12, 1891, alleged that Kirk, a jtistice of the peace of Smyth County, had that day issued his warrant to a constable to arrest the petitioner and bring him before the justice on a charge of murder of Nelson, and that the petitioner had been arrested by the constable on that warrant, and was now confined in the county jail, as the petition 'alleged, "awaiting a trial before said justice upon the said charge of murder,' which can only mean an exam- ination before the justice with a view to commitment to await the action of the grand jury; and prayed that 'said cause' might be removed from the jurisdiction of the justice and of the county court into the Circuit Court of the United States for trial, and, 'upon the removal of said prosecution, that a copy of the record and proceedings before said justice and by said constable' might be brought into the Circuit Court. "When that petition was signed and sworn to, there had been no proceedings, except before the justice of the peace and by the constable; there was no case pending in the county court, and REMOVAL OF SUITS FROM STATE COURTS. 275 the justice had not even committed the prisoner to await the action of that court; and no indictment was found, or other action taken, in the county court, until after the petition had been filed in the Federal court. "By the terms of section 643, it is only after 'any civil suit or criminal prosecution is commenced in any court of a State,' and 'before the trial or final hearing thereof,' that it can 'be re- moved for trial into the Circuit Court next to be holden in the district where the same is pending,' and 'shall proceed as a cause originally commenced in that court.' "Proceedings before a magistrate to coinmit a person to jail, or to hold him to bail, in order to secure his appearance to answer for a crime or offence, which the magistrate has no juris- diction himself to try, before the court in which he may be pros- ecuted and tried, are but preliminary to the prosecution, and are no more a commencement of the prosecution than is an ar- rest by an officer without a warrant for a felony committed in his presence. "We are aware that under this section the opposite view has prevailed in some cases in the Circuit Courts. Georgia v. Port, 4 Woods, 513; Georgia v. Bolton, 11 Fed. Rep. 217; North Car- olina V. Kirkpatrick, 42 Fed. Rep. 689. But the only aut'norities there cited, which afford any color for that conclusion, wore English decisions that the preliminary arrest upon the warrant of a justice of the peace took a case out of the statute of limita- tions, defining the time after the commission of the offence with- in which the prosecution shall be commenced.' Rex. v. Willace, J East P. C. 186; The Queen v. Brooks, i Denison, 217; S. C. 2 Car. & K. 402. The question whether the government has taken such action, as will stop the running of a statute of limita- tions, is quite different from the question when a prosecution can be deemed to be commenced, within the meaning of the acts of Congress authorizing removals from the state courts into the courts of the United States for trial. "A grand jury, whether of the State or of the United States, is empanelled and sworn to inquire into and present offences against the government only, under whose authority it is sum- moned. Story on the Constitution, § 1784. The grand jury sum- moned and empanelled under the authority of a State is the only appropriate body to enquire into any offence against the State, and to find or to ignore an indictment therefor. The duty of the 276 UNITED STATES COURTS. grand jury attending a court of the United States is limited to inquiring into and presenting offences against the laws of the United States, and its proper advisers in matters of law are the court and attorney of the United States. "In a criminal case removed from the state court into the Circuit Court of the United States after indictment found, tht; Circuit Court of the United States tries the case upon the accus- ation presented by a grand jury of the State, an d^ framed with the assistance of the law officers of the State. Tennessee v. Davis, ICO U. S. 257, 271. "But if a person arrested to await the finding of an indict- ment may remove the case before an indictment is found, the accusation is not framed and presented by the officers and the grand jury of the State whose criminal law has been violated, but by the officers and grand jury of another government ; and the Circuit Court of the United States has not only to try the defend- ant, but also to charge its own grand jury as to the accusation against him on behalf of the State ; and this too in a case in which the very ground of removal into the Circuit Court is the defend- ant's suggestion that he needs the protection of the Constitution and laws of the United States against the prosecution by the State. "We cannot believe that such was the intention of Congress in the statutes enacted to secure a fair and impartial trial between the State seeking to vindicate its public justice, on the one hand, and a defendant claiming the protection of the Constitution and laws of the United States on the other. . "In any case falling within the purview of the acts of Con- gress, the defendant is adequately protected against danger of unlawful oppression from the courts or authorities of the State, by the right to remove it into the Circuit Court of the United- States, as soon as a prosecution has been commenced against him ; and by the right to apply to any court or judge of the United States for a writ of habeas corpus under sections 751-753, when- ever he 'is in custody for an act done or omitted in pursuance of a law of the United States.' "The true rule on this subject, as it appears to us, was forc- ibly and accurately expressed by Mr. Justice Grier, in a case re- moved from the court of quarter sessions of Bucks County in the State of Pennsylvania, before indictment found, into the Circuit Court of the United States for the Eastern District of Pennsvl- REMOVAL OF SUITS FROM STATE COURTS. 277 vania, under the act of Congress of March 3, 1863, c. 81, § 5 (12 Stat. 756), since incorporated in section 641 of the Revised Stat- utes, and which, though differing from the statute now in ques- tion in requiring the petition for removal to be originally filed in the state court, yet, in substantial accord with this statute, pro- vides that, 'if any suit or prosecution, civil or criminal, has been or shall be commenced in any state court against any officer, civil or military, or against any other person,' for any such act as is therein described, done by virtue or under color of authority of the United States, the defendant may file a petition 'for the re- moval of the cause for trial at the next Circuit Court of the United States to be holden in the district where the suit is pend- ing.' Mr. Justice Grier, after quoting these words, ordered the case to be remanded to the state court, for the following reasons : 'The petition of the defendants brings their case fully within the provisions of this section, but the removal is premature. The prosecution has not been commenced in the state court. A war- rant has been issued by a justice of the peace, and the defend- ants have been arrested preparatory to the commencement of a prosecution in the state court, but the attorney for the Common- wealth has not sent a bill to the grand jury. We do not know, therefore, whether the Commonwealth of Pennsylvania intends to proseciite the defendants for the alleged offence, or whether the grand jury will find a bill, without which the prosecution cannot be said to be 'commenced in the state court.' The act con- *'emp:ates the removal of a prosecution 'pending* that a 'trial' may be had in the Circuit Court. If the attorney of the United States were required to send a bill of indictment before a grand jury of the United States court for a breach of the peace of the State ; it would present a truly anomalous proceeding. Yet without it there would be no case to try in the Circuit Court. If a bill of indictment had been found in the state court, it would have pre- sented such a case ; but, until this is done, there is no case pend- ing in the court of Bucks County, which can be removed to this court for trial.' Commonwealth v. Artman, 3 Grant, 436; S. C. 5 Phila. 304. "It appearing upon the face of the petition for removal, as well as by the copies of records laid before this court, that no prosecution had been commenced in the state court, within the meaning of section 643 of the Revised Statutes, when the petition for removal was drawn up and sworn to, nor even when it was 278 UNITED STATES COURTS. filed in the Federal court, the prosecution subsequently com- menced by the presentment of an indictment in the state court was never lawfully removed into the Circuit Court of the United States ; for, in all cases of removal from the state courts, the jurisdiction of the Circuit Court of the United States rests and depends upon the statements made in the petition for removal, and verified by the oath of the petitioner. Virginia v. Rives, 100 U. S. 313, 316; Crehore v. Ohio & Mississippi Railway, 131 U. S. 240; Graves v. Corbin, 132 U. S. 571, 590. "The result is that the. Circuit Court of the United Slates has, without authority of law, assumed jurisdiction of an indict- ment found in the courts of the State. of Virginia for a crime against the laws of the State, and that the State is entitled to have the prosecution remanded to its courts to be there dealt with according to law. For aught that appears on this record, the State is not bound to commence or carry on the prosecution in the courts of another government, but is entitled to resume its own rightful jurisdiction and authority, and to try the offender in its own courts. If the case should be allowed to proceed in the Circuit Court of the United States, and should finally result in an acquittal of the charge, in whole or in part, the State could not have a writ of error to review the judgment. United States V. Sanges, 144 U. S. 310. A stronger case for issuing a writ of mandamus can hardly be imagined. The writ may be directed to the judge who has unlawfully assumed jurisdiction of the prosecution ; and no previous motion to him to remand the case was necessary. The case is governed in every particular by Vir- ginia V. Rives, 100 U. S. 313, 316, 323, 324. "If any delay on the part of the State, in a case of this kind, could justify a denial of the writ of mandamus, no unreasonable delay is here shown. So far as appears by the copies of records submitted to us by both parties, the Circuit Court of the United States first took jurisdiction of the indictment on Saturday, May 14, 1892. It is alleged by the petitioner, and not denied by the respondent, (although the facts do not appear of record), that on that day a motion to remand the case to the state court was maHe by the State^ and denied by the Circuit Court. The accused was found guilty of voluntary manslaughter on Monday, May 16, the very day on which October term, 1891, of this court was finally adjourned. On the next day, the District Judge set aside the verdict, continued the case to October term, 1892, of the REMOVAL OF SUITS FROM STATE COURTS. 279 Circuit Court, and admitted the accused to bail on his own recog- nizance. On the first day of the present term of this court, and before any further proceedings in the Circuit Court, the State apphed to this court for leave to file the petition for" a manda- mus. "The necessary conclusion is that the State of Virginia is entitled to a writ of mandamus to compel the respondent to re- mand the indictment and prosecution against Carrico to the county court in which the indictment was found. "The matter of the discharge of the prisoner by the District Judge upon the writ of habeas corpus may be more briefly dis- posed of. If that writ had been a writ of habeas corpus cum causa, issued by the clerk of the Circuit Court, as ancillary to the removal of the prosecution into that court, under section 643, the remanding of the cause would carry with it the right to the custody of the prisoner. But being, as appears by the records annexed to the petition for a mandamus, as well as by the return to the rule to show cause, an ordinary writ of habeas corpus, issued by the District Judge upon the ground that the prisoner was in custody for an act done in pursuance of a law of the United States, the c^uestion whether good cause was shown for his discharge was to be judicially determined by the judge, in the exercise of the jurisdiction vested in him by sections 751-753 of the revised statutes. His determination might have been re- viewed, on the facts as well as the law, by appeal. Rev. Stat. §§ 763-766; Acts of March 3, 1885, c. 353, 23 Stat. 437; March 3, 1891, c. 517, §§ 5, 6, 26 Stat. 827, 828; In re Neagle, 136 U. S. I ; Horner v. United States, 143 U. S. 570, 576. But it cannot be reviewed or controlled by writ of mandamus. Ex parte Schwab, 98 U. S. 240; Ex parte Perry, 102 U. S. 183; Ex parte Morgan, 114 U. S. 174; Ex parte Morrison, 147 U. S. 14, 26. "It follows that, as to the discharge on the writ of habeas corpus, no order can properly be made upon this petition; but that, for the reasons above stated, there must be a "Writ of mandamus to remand the indictment and prosecu- tion of the Commonzuealth of Virgina against Joseph H. Carrico to the County Court of Smyth County." 280 UNITED STATES COURTS. 9. Civil Eights Cases. The jurisdiction in the civil rights cases is fully reviewed in the case of Gibson v. Mississippi, 162 U. S. 565, (1896). In this case, Gibson, a colored man, was indicted for the murder of a white man named Stinson. Gibson claimed he was not given a fair trial under the law and Constitution of the United States, as colored men were not permitted to act as grand jurors. Jus- tice Harlan, in delivering the opinion, said : "The first question presented for our consideration relates to the application of the accused for the removal of the prose- cution from the state court into the Circuit Court of the United States. "By section 641 of the Revised Statutes it is provided : 'When any civil suit or criminal prosecution is commenced in any state court, for any cause whatsoever, against any person who is denied or cannot enforce in the judicial tribunals of the State, or in the part of the State, where such suit or prosecution is pending, any right secured to him by any law providing for the equal civil rights of citizens of the United States, * * * such suit or prosecution may, upon the petition of such defend- ant, filed in the said state court at any time before the trial or final hearing of the cause, stating the facts and verified by oath, be removed, for trial, into the next Circuit Court to be held in the district where it is pending. Upon the filing of such petition all further proceedings in the state court shall cease,' etc. "In Neal v. Delaware, 103 U. S. 370, 385, 386, reference was made to the previous cases of Strauder v" West Virginia, Virginia v. Rives, and Ex parte Virginia, 100 U. S. 303, 313, 339, and to sections 641 and- 1977 of the Revised Statutes ; also to the act of March i, 1875, c. 114, 18 Stat. 335, which, among other things, declared that 'no citizen, possessing all other qualifications which are or may be prescribed by law, shall be disqualified from service as grand or petit juror in any court of the United States, or of any State, on account of race, color or previous conditions of servitude.' The cases cited were held to have decided that the statutory enactments referred to were constitutional exertions of the power of Congress to enact appropriate legislation for the enforcement of the provisions of the Fourteenth, Amendment, which was designed, primarily, to secure to the colored race, thereby invested with the rights, privileges and responsibilities REMOVAL OF SUITS FROM STATE COURTS. 281 of citizenship, the enjoyment of all the civil rights that, under the law, are enjoyed by white persons; that while a State, con- sistently with the purposes for which the amendment was adopted, may confine the selection of jurors to males, to free- holders, to citizens, to persons within certain ages, or to persons having educational quanncations, and while a mixed jury in a particular case is not, within the meaning of the Constitution, always or absolutely necessary to the enjoyment of the equal protection of the laws, and therefore an accused, being of the colored race, cannot claim as matter of right that his race shall be represented on the jury, yet a denial to citizens of the African race, because of their color, of the right or privilege accorded to white citizens of participating as jurors in the administration of justice, would be a discrimination aganst the former inconsistent with the amendment and within the power of Congress, by appro- priate legislation, to prevent ; that to compel a colored man to submit to trial before a jury drawn from a panel from which were excluded, because of their color, men of his race, however well qualified by education and character to discharge the func- tion of jurors, was a denial of the equal protection of the laws ; and that such exclusion of the black race from juries because of their color was not les; forbidden by law than would be the exclu- sion from juries, in States where the blacks have the majority, of the white race because of their color. "But those cases were held to have also decided that the Fourteenth Amendment was broader than the provisions of sec- tion 641 of the Revised Statutes ; that since that section author- ized the removal of a criminal prosecution before a trial, it did not embrace a case in which a right is denied by judicial action during a trial, or in the sentence, or in the mode of executing the sentence; that for such denials arising from judicial action after a trial commenced, the remedy lay in the revisory power of the higher courts of the State, and ultimately in the power of review which this court may exercise over their judgments when- ever rights, privileges or immunities claimed under the Consti- tution or laws of the United States are withheld or violated ; and that the denial or inability to enforce in the judicial tri- bunals of the States rights secured by any law providing for the equal civil rights of citizens of the United States, to which section 641 refers, and on account of which a criminal pros- ecution may be removed from a State Court, is primarily, if not 282 UNITED STATES COURTS. exclusively, a denial of such rights or an inability to enforce them resulting from the constitution or laws of the State, rather than a denial first made manifest at or during the trial of the case. "We therefore held in Neal v. Delaware that Congress had not authorized a removal of the prosecution from the state court where jury commissioners or other subordinate officers had, with- out authority derived from the constitution and laws of the State, excluded colored citizens from juries because of their race. "In view of this decision, it is clear that the accused in the present case was not entitled to have the case removed into the Circuit Court of the United States unless he was denied by the constitution or laws of Mississippi some of the fundamental rights of life or liberty that were guaranteed tO' other citizens resident in that State. The equal protection of the laws is a right now secured to every person without regard to race, color or pre- vious condition of servitude ; and the denial of such protection by any State is forbidden by the supreme law of the land. These principles are earnestly invoked by counsel for the accused. But they do not support the application for the removal of this case from the state court m which the indictment was found, for the reason that neither the constitution of Mississippi nor the stat- utes of that State prescribe any rule for, or mode of procedure in, the trial of criminal cases which is not equally applicable to all citizens of the United States and to all persons within the jurisdiction of the State without regard to race, color or previous condition of servitude. Nor would we be justified in saying that the constitution and laws of the State had, at the time this prose- cution was instituted, been so interpreted by the Supreme Court of Mississippi as to show, in advance of a trial, that persons of the race to which the defendant belongs could not enforce in the judicial tribunals of the States the rights belonging to them in common with their fellow-citizens of the white race. If such had been the case, it might well be held that the denial of the equal protection of the laws arose primarily from the constitu- tion and laws of the State. But when the constitution and laws of a State, as interpreted by its highest judicial tribunal, do not stand in the way of the enforcement of rights secured equally to all citizens of the United States, the possibility that during the trial of a particular case the state court may not respect and enforce the right to the equal protection of the laws constitutes no REMOVAL OF SUITS FROM STATE COURTS. -H8 ground, under the statute, for reiiioz'iiig the prosecution into the Circuit Court of the United States in advance of a trial. "We may repeat here what was said in Neal v. Delaware, namely, that in thus construing the statute 'we do not withhold from a party claiming that he is denied, or cannot enforce in the judicial tribunals of the State, his constitutional equality of civil rights all opportunity of appealing to the courts of the United States for the redress of his wrongs. For, if not entitled, under the statute, to the removal of the suit or prosecution, he may, when denied, in the subsequent proceedings of the state court, or in the execution of its judgment, any right, privilege or im- munity given or secured to him by the Constitution or laws of the United States, bring the case here for review.' "So, in Bush v. Kentucky, 107 U. S. no, 116, which was an indictment for murder, returned before but tried after the Court of Appeals of Kentucky held unconstitutional a statute of that Commonwealth excluding from grand or petit juries citizens of African descent because of their race and color, and had declared that thereafter every officer charged with the duty of selecting or summoning jurors must so act without regard to race or color, this court said : 'That decision was binding as well upon the infer- ior courts of Kentucky as upon all its officers connected with the administration of justice. After that decision, so long as it was unmodified, it could not have been properly said in advance of a trial, that the defendant in a criminal prosecution was denied or could not enforce in the judicial tribunals of Kentucky the rights secured to him by any law providing for the equal civil rights of citizens of the United States, or of all persons within their juris- diction. The last indictment was consequently not removable into the Federal court for trial under section 641 at any time after the decision in Commonwealth v. Johnson, [78 Kentucky, 509], had been pronounced. This point was distinctly ruled in Neal v. Del- aware, and is substantially covered by the decision in Virginia v. Rives, 100 U. S. 313. If any right, privilege or immunity of the accused, secured or guaranteed by the Constitution or laws of the United States, had been denied by a refusal of the state court to set aside either that indictment or the panel of petit jurors, or by any erroneous ruling in the progress of the trial, his remedy would have been through the revisory power of the highest court of the State, and ultimately through that of this court.' See also In re Wood, 140 U. S. 278, 284. 284 UNITED STATES COURTS. "In his petition for the removal of the prosecution into the Circuit Court of the United States the defendant also states that^ notwithstanding at the time of selecting the grand jurors for the said December term, 1892, there were in the five supervisors' dis- tricts of the county of Washington 7,000 colored citizens compe- tent for jury service, and 1,500 whites qualified to serve as jurors, there had not been for a number of years any colored man sum- moned on the grand jury in that county; and that colored citizens, were purposely, on account of their color, excluded from jury service by the officers of the law charged with the selection of jurors. It is clear, in view of what has already been said, that these facts, even if they had been proved and accepted, do not show that the rights of the accused were denied by the constitu- tion and laws of the State, and therefore did not authorize the removal of the prosecution from the state court. If it were com- petent, in a prosecution of a citizen of African descent, to prove that the officers charged with the duty of selecting grand jurors had, in previous years and in other cases, excluded citizens of that race, because of their race, from service on grand juries — upon which question we need not to express an opinion— it is clear that such evidence would be for the consideration of the trial court upon a motion by the accused to quash the indictment, such motion being based upon the ground that the indictment against him had been returned by a grand jury from which were purposely excluded, because of their color, all citizens of the race to which he belonged. United States v. Gale, 109 U. S. 65, 69. But there was no motion to quash the indictment. The applica- tion was to remove the prosecution from the state court, and a removal, as we have seen, could not be ordered upon the ground simply that citizens of African descent had been improperly ex- cluded, because of their race, and without the sanction of the con- stitution and laws of the State, from service on previous grand juries, or from service on the particular grand jury that returned the indictment against the accused. "We do not overlook in this connection the fact that the peti- tion for the removal of the cause into the Federal caurt alleged that the accused, by reason of the great prejudice against him on account of his color, could not secure a fair and impartial trial in the county, and that he prayed an opportunity to subpoena wit- nesses to prove that fact. Such evidence, if it had been intro- duced, and however cogent, could not, as already shown, have REMOVAL OF SUITS FROM STATE COURTS. 285 entitled the accused to the removal sought ; for the alleged exist- ence of race prejudice interfering with a fair trial was not to be attributed to the constitution and laws of the State. It was en- cumbent upon the state court to see to it that the accused had a fair and impartial trial, and to set aside any verdict of guilty based on prejudice of race. The petition for removal also proceeds upon the ground that the indictment was returned by a grand jury organized under the Code of Mississippi, vi'hich went into operation in 1892 after the date of the alleged murder, when, it is contended, it should have been organized in the mode required by the Mississippi Code of 1880, in force at the time the offence in question was committed. "The organization of the grand jury under a statute of the State, (even if that statute was not applicable to offences com- mitted before its passage), rather than under a statute that was applicable, constitutes no ground for the removal of the prosecu- tion into the Federal court, unless the statute whose provisions were followed expressly or by its necessary operation denied to the accused some 'right secured to him by any law providing for the equal civil rights of citizens of the United States.' It is not every denial by a state enactment of rights secured by the Consti- tution or laws of the United States that is embraced by section 641 of the Revised Statutes. The right of removal given by that section exists only in the special cases mentioned in it. Whether a particular statute, which does not discriminate against a class of citizens in respect of their civil rights, is applicable to a pend- ing criminal prosecution in a state court, is a question, in the first instance, for the determination of that court, and its right and duty to finally determine such a question cannot be interfered with by removing the prosecution from the state court, except in those cases which, by express enactment of Congress, may be re- moved for trial into the courts of the United States. If that question involves rights secured by the Constitution and laws of the United States, the power of ultimate review is in this court whenever such rights are denied by the judgment of the highest court of the State in which the decision could be had. As the judges of the state courts take an oath to support the Constitu- tion of the United States as well as the lavys enacted in pursu- ance thereof, and as that Constitution and those laws are of supreme authority, anything in the constitution or laws of any State to the contrary notwithstanding, 'upon the state courts, 286 UNITED STATES COURTS. equally with the courts of the Union, rests the obligation to guard, enforce and protect every right granted or secured by tht Constitution of the United States and the laws made in pursuance thereof, whenever those rights arp I'mmlvprl in anv suit or pro- ceeding before them' ; and 'if they fail therein, and withhold or deny rights, priviliges or immunities secured by the Constitution and laws of the United States, the party aggrieved may bring the case from the highest court of the State in which the question could be decided to this court for final and conclusive determina- tion.' Robb V. Connolly, iii U. S. 624, 637. "But it is said that the statute under which the grand jury was organized was c.v post facto when applied to the case of the present defendant, and for that reason the judgment should be reversed. This question does not depend upon section 641 of the Revised Statutes, but upon the clause of the Constitution forbid- ding a State to pass an ex post facto law. It is not clear that the record so presents this point as to entitle us to consider it un- der the statutes investing this court with jurisdiction to reexam- ine the final judgments of the highest courts of the several States. But, as human life is involved, as the defendant pleaded not guilty, and as the State, by its attorney general, had discussed the question upon its merits without disputing the authority of this court to pass upon it, we will assume, and we think it may be properly assumed, that the plea of not guilty, in connection with the petition for removal, sufficiently presents the question, and shows that the state court denied to the accused what he specially set up and claimed to be a right secured to him by the Constitution of the United States. "By the constitution of jMississippi of 1890, which was in force at the time of the commission of the alleged offence, it was provided: 'No person shall be a grand or petit juror unless a qualified elector and able to read and write ; but the want of any such qualification in any juror shall not vitiate any indictment or verdict. The legislature shall provide by law for procuring a list of persons so qualified, and the drawing therefrom of grand and petit jurors for each term of the Circuit Court.' Sec. 264. And by the same instrument it was also provided : 'AH crimes and mis- demeanors and penal actions shall be tried, prosecuted and pun- ished as though no change had taken place, until otherwise pro- vided by law.' Sec. 283. By the Mississippi Code of 1880, in force when the alleged murder was committed, it was provided REMOVAL OF SUITS FROM STATE COURTS. 287 that "all male citizens of the United States and not being under the age of twenty-one years, nor over the age of sixty years, and not having been convicted of any infamous crime, shall be quali- fied to serve as jurors within the county of their residence.' Sec. 1661 ; and by section 1664 of the same code it was provided that the board of supervisors of each county shall, at least twenty days before the term of every Circuit Court, select twenty persons competent to serve as jurors in said county, to be taken, as nearly as conveniently as may be, in equal numbers from each super- visor's district of the county, who shall serve as grand jurors for the next ensuing rerm of said court.' "The Annotated Code of 1892 went into effect on the first day of November, 1892, all prior statutes being thereby repealed. Sections 2358, 2361, 2365 of that code provide: Sec. 2358. 'The board of supervisors, at the first meeting in each year, or at a sub- sequent meeting if not done at the first, shall select and make a list of persons to serve as jurors in the Circuit Court for the next two terms to be held more than thirty days afterwards, and, as a guide in making the list, they shall use the registration books of voters ; and it shall select and list the names of qualified persons of good intelligence, sound judgment and fair character, and shall take them, as nearly as it conveniently can, from the several election districts, in proportion to the number of the qualified persons in each, excluding all who have served on the regular panel \\-ithin two years, if there be not a deficiency of jurors.' Sec. 2361. 'The names of the persons on the jury list shall be written on separate slips of paper by the clerk of the Circuit Court, and put in a box kept for that purpose, marked "jury box," which shall be securely locked and kept closed and sealed, except when opened to draw the jurors.' Sec. 2365. 'At each regular term of the Circuit Court, and at a special term if necessary, the judge shall draw, in open court, from the jury box the slips containing the names of fifty jurors to serve as grand and petit jurors for the first week and thirty to serve as petit jurors for each subse- quent week of the next succeeding term of court ; and he shall make and carefully preserve separate lists of the names, and shall not disclose the name of any juror drawn. The slips containing the names so drawn shall be placed by the judge in envelopes, a separate one for each week, and he shall securely seal and deliver them to the clerk of the court, so marked as to indicate which contains the names of the jurors for the first and each subse- 288 UNITED STATES COURTS. quent week. If in drawing it appears that any juror drawn has died, removed or ceased to be quahfied or liable to serve as a juror, the judge shall cause the slip containing the name to be destroyed, the name to be stricken from the jury list, and he shall draw another name to complete the required number." "The contention of the accused is that the constitution of the State (Sec. 283) required that the indictment against him should have been by a jury of the grand inquest organized as directed in the Code of 1880, because that code was in force at the date of the murder charged to have been committed; and that the law upon that subject in the Code of 1892 would be ex post facto if applied to his case. "We perceive in these constitution and statutory provisions nothing upon which to rest the suggestion that the accused was tried under a law that was ex post facto in its application to his case. At the time the homicide was committed no person was competent to be a grand or petit juror unless he was a qualified elector and able to read and write. This requirement was attend- ed by an injunction that the legislature should provide by law for procuring a list of persons so qualified, and for drawing there- Trom of grand and petit jurors for each term of the Circuit Court. Miss. Const., Sec. 264. And, as ^ye have seen, it was further provided that all crimes and misdemeanors and p;nal actions should be tried, prosecuted and punished as though no change had taken place until otherwise provided by law. Miss. Const.. .Sec. 283. It is clear that the provision in the constitution of 1890 pri:scribing the qualifications of grand and petit jurors be- came the law of the State immediately upon the adoption of the constitution, and thaL legislation was not necessary to give it effect ; and that the provisions of the Code of 1880 for the con- duct of trials was not superseded by those on the same subject in the Code of 1892. "It is equally clear that the provisions of the Code of 1892 it'gulating the selection of grand and petit jurors were not ex post facto as to the case of Gibson, although they were not in force when the alleged homicide was committed. The require n.ent of the constitut-on of 1890 that no person should be a grand or petit juror unless he was a qualified elector and able to read and wrile, did not privent the legislature from providing, as was done in the Code of i892, that persons selected for jury service shcaild possess good intelligence, sound judgment and fair char- REMOVAL OF SUITS FROM STATE COURTS. 289 acter. Such regulations are always within the power of a legis- lature to establish unless forbidden by the constitution. They tend to recure the proper administration of justice, and are in the interest, equally, of St. LouU Medical and Hurgical Journal. WARTHIN. — A Blank Book for Autopsy Protocols. By Aldred Scott Warthin, M.D., Ph.D., Assistant Professor of Pathology in the University of Michigan. Bound in Full Canvass, 50 cents. The medical student at the University of Michigan is expected to attend twenty autopsies during the last two years of his studies, and this book is designed to facilitate the keeping of a careful protocol, which he is required to make In every case. The book is of a convenient size and can accommodate the autopsy protocols of ten cases. Each autopsy is allowed ten pages, carefully ruled for the various organs. WATSON. — Tables for the Calculation of Simple or Compound Lntei est and Discount and the Averaging of Accounts. The Values of Annuities^ Leases, Interest in Estates and the Accumulations and Values of Investments at Simple or Compound Interest for all Rates and Periods; also Tables for the Conversion of Securities and Value of Stocks and Bond^. With full Explanation for Use. By James C. Watson, Ph.D., LL.D. Quarto. Cloth, $2.50. A book most valuable to bankers, brokers, trustees, guardians, judges, lawyers, accountants, and all concerned in the computation of interest, the division and set- lement of estates, the negotiation of securities, or the borrowing and lending of money, is the above work of the late Professor James C. Watson, formerly Director of the Observatories and Professor of Astronomy at the Universities of Michigan and Wisconsin, and Actuary of the Michigan Mutual Life Insurance Company. It contains, in additioi;! to the usual tables for the calculation of simp le or com- pound interest and discount, many tables of remarkable value, not found elsewhere, for the averaging of accoutns, the values of annuities, leases, interests in estates, and the accumulations and values of investments; also tables for ihe conversion of securities, and the values of stocks and bonds. There are also given very full and clear explanations of the principles involved in financial transactions, and a great variety of miscellaneous examples are worked out in detail to illustrate the problems arising in interest, discount, partial payments, veraging of accounts, present values, annuities of different kinds, annual payments for a future expectation (as in life insurance), or for a sinking fund, conversion of securities, values of stocks and bonds, and life interests. This book was issued from the press under the author's careful supervision. Professor Watson was noted for his clear insight into problems involving computa- tions, and also for his wonderful ability in presenting the method of solution of such problems in a plain and simple manner. The varied array of practical examples given in connecfon with his "Table " shows these facts in a remarkable manner. 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The first chapter is devoted. to Materials and Instruments; the second chapter, Mechanical Construction; third chapter. Penciling. Inking, Tinting; fourth chap- ter, Linear Perspective; fifth chapter. Teeth of Grass. WRENTMORE.— -P/^z"« Alphabets for Office and School. Selected by C. G. Wrentmore, B.S., C.E., Instructor in Descriptive Geometry and Drawing, University of Michigan. Oblong, ig plates. Half leather, '75 cents. REV. J. T. YOUNG — *^ Mprmonis??i: Its Origin^ Doctrines, ana Dangers.'^'' Pamphlet. 72 pages. 25 cents. This brochure of seventy pages in paper covers is a sharp attack on the Mormon system, showing that its beginnings were in fraud and villainy, that its doctrines are debasing, and that its continuance in ihe United States is a political and religi- ous menace. If Mormonism is one-tenth as bad as this booklet represent^;, the marvel is that the viper life was not crushed out long 3.go.— The Standard, Chicago Souvenir of the University of Michigan, Ann Arbor. Containing 38 photo-gravures of President James B. Angell, prom.nent University Buildings, Fraternity Houses, Churches, Views of Ann Arbor, Etc., Etc. Done up in blue silk cloth binding. Price, 50 cents, postpaid. Physical Laboratory Note Book. — A Note Book for the Physical Lab- oratory. Designed to be used in connection with Chute's Physical Laboratory Manual. Contains full directions for keeping a Physical Laboratory Note Book. 112 pages of excellent writing paper, ruled in cross sections, Metric System, size 7x9^ inches. Bound in full canvass, leather corners. Price, by mail, 30 cents. Special prices' to Schools furnished on application. Botanical Laboratory Note Book.— ^ Note Book for the Botanical Lab- oratory. 200 pages of best 'writing paper, ruled with top margins. Pocket on inside of front cover for drawing cards. Bound in sub- stantial cloth cover and leather back. Size 6x9^. Price, by mail, 35 cents. Special prices to schools furnished on application.