((nrttfll Hatu ^rtjnnl library Cornell University Library KF8719.S74 The law of the federal udiciary:a treat 3 1924 020 613 414 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/details/cu31924020613414 THE LAV OP THE FEDERAL JUDICIARY A TREATISE PROVISIONS OF THE CONSTITUTION, THE LAWS OF CONGRESS, AND THE JUDICIAL DECISIONS RELATING TO THE JURISDICTION OF, AND PRACTICE AND PLEADING IN THE FEDERAL COURTS. BY ^e SAMUEL T. SPEAR, Author of "The Law of Extradition 3 " "The Constitutionality of the Legal Tender Acts," &c. NEW YORK: BAKEE, YOOEHIS & CO., LAW PUBLISHERS, 66 NASSAU STREET. 1883. * Copyright, 1883, By Samuel T. Spear. Baker & Godwin, Printers, 25 Park Row, N. Y. PEEFACE. "The Law of the Federal Judiciary" consists, first, in the provisions of the Constitution which grant and define the judicial power of the United States ; secondly, in the legislation of Con- gress in pursuance thereof, and for the purpose of carrying the same into effect; and, thirdly, in the decisions of the Federal courts, especially those of the Supreme Court, settling the con- struction of these constitutional provisions and this legislation, and stamping with their authority certain general principles of law which, though not statutory enactments, and not sources of jurisdiction, rest on judicial precedents, and in these courts have the practical force and effect of law. The design of this treatise is, in an analytic and orderly manner, to present these elements of Federal law as an aid and guide to pleading and practice in the courts of the United States. The treatise is comprised in seven Parts, as follows : Part I, consisting of a single chapter, explains that provision of the Constitution which declares that " the judicial power of the United States shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish." The investiture of the power is the sub- ject here considered. Part II, embracing nine chapters, examines and explains the several clauses of the Constitution which specify the " cases " and " controversies " to which the judicial power of the United States is extended. Reference, in the preparation of this Part, was necessarily had to the legislation of Congress; yet its primary and main idea is to expound these constitutional clauses. IV PREFACE. The subject of Part III, containing eight chapters, is the machinery, judicial and auxiliary, together with the Federal law of evidence, established by Congress for the purpose of putting the judicial power of the United States into practical operation. The courts of the United States, with the laws regulating their organization, sessions, and jurisdiction, original and appellate, and also the auxiliary agencies annexed thereto, are considered in these chapters. Part IY, embracing three chapters, and covering one hundred and fifty pages of the work, treats of the Eemoval of Causes from State to Federal courts, either before trial and judgment or decree, or after final judgment or decree in the highest State court in which a decision in the cause could be had. The con- stitutionality of such removal, the cases in which and the Federal courts to which the removal may be had, and the laws regulating the mode thereof, form the subject-matter of these chapters. The general question of relation between Federal and State jurisprudence is examined in the three chapters of Part V, con- sidered with reference to exclusive and concurrent jurisdiction, to Federal and State writs of habeas corpus, and also the ad- ministration of State laws by the courts of the United States. Federal jurisprudence and the common law form the subject of the two chapters of Part VI, with special reference to the question whether the United States, as such, have any common law for the guidance of Federal courts in civil and criminal causes ; and, if so, to what extent, and on what basis, this law furnishes their rule in the administration of justice. The four chapters of Part YII are devoted to Federal Equity Jurisprudence : the first giving a statement of equity in general ; the second setting forth the laws that regulate equity as a branch of Federal jurisprudence ; the third presenting a general outline of English Chancery Practice when the Constitution was adopted ; and the last being mainly a reprint of the Pules of Equity estab- lished by the Supreme Court to regulate equity procedure in the Circuit Courts of the United States. PREFACE. V Such is the outline of the contents of this volume. The field is a wide one, and the matters to be considered are alike numer- ous and various. The difficulty of bringing these matters into a single volume of convenient size is apparent at sight ; and yet this is what the author has attempted, and, with what degree of success, it is for the public to judge. He is aware of no other treatise on the subject that seeks to cover so nmch ground. The Rules of the Supreme Court, those regulating appeals from the Court of Claims, those of Equity Procedure in the Circuit Courts, and those of Admiralty Procedure in the District Courts, will be found in the chapters which respectively treat of the subject to which they refer. And, as to " Forms," it was not judged expedient to increase the size of the volume by inserting them, inasmuch as they are given in several works usually found in lawyers' libraries. Free use in all parts of this volume has been made of side headings, as calls to attention, and the means of facilitating access to its contents. The index has been made so full that the reader can readily find any subject in the volume which he may wish to examine. This, with the side headings and the table of cases, makes the contents easily accessible. The critical reader, upon comparing some of the chapters of this volume, will perhaps notice occasional repetitions of the same matter. This grows out of the plan adopted in the construction of the work, and the desire of the author to make each Part as complete as possible by itself, without reference to any other Part. Removal of causes, for example, from State courts to the Supreme Court of the United States has many things in it that are common to it and the removal of causes to the Supreme Court from the inferior Federal courts; and yet there are so many peculiarities connected with the former removal not thus com- mon, that it was deemed expedient to consider it in a distinct chapter by itself, and in the same to give all the law on the sub- ject, though some parts of this law, being equally applicable to the latter removal, are presented in another connection. . VI PREFACE. The power of the Federal courts to issue writs of scire facias, habeas corpus, ne exeat, injunction, and all writs not specifically provided for by statute, which may be necessary for the exercise of their respective jurisdictions, and agreeable to the usages and principles of law, either granted to these courts in common, or in certain cases exclusively to the Supreme Court, together with the provisions of law regulating the same, is considered in the chapters on the District and Circuit Courts, in that on the Supreme Court, and in chapter second of Part Y, especially in the last two of these chapters. While the author, in the preparation of this volume, has sought information from all sources at his command, he desires here to make special mention of Bump's " Federal Procedure," which is substantially a digest of Title XIII of the Kevised Statutes of the United States, and has greatly aided the author in his search for the proper cases to sustain and illustrate legal prin- ciples. Frequent references are made to that most admirable book. This work is the result of the study which, from the simple love of the study, and in connection with editorial labors that specially demanded this kind of research, has been pursued for several years ; and if it shall be accepted by the legal profession, as of value, the author's highest hope will be realized. SAMUEL T. SPEAR. Bbookltn, October, 1883. CONTENTS. PART I. FEDEEAL JUDICIAL POWEE. CHAPTEE I. PAGE. THE INVESTITURE OF THE POWER, .... 1 PART II. THE EXTENT OF FEDEEAL JUDICIAL POWEE. CHAPTEE I. CASES IN LAW AND EQUITY, 17 CHAPTEE II. AMBASSADORIAL AND CONSULAR CASES, ... 32 CHAPTEE III. ADMIRALTY AND MARITIME CASES, .... 44 Sec. I. — Constitutional Provision, . . .44 Sec. II. — Locality of the Jurisdiction, .... 48 Sec. III.— The Subjects of the Jurisdiction, . . .58 Sec IV.— The Forms of Admiralty Procedure, . . 70 Sec. V. — The Remedy at Common Law, . . • .80 Sec. VI.— Admiralty Rules, ... .84 VU1 CONTENTS. CHAPTER 1Y. PAGE CONTROVERSIES OF THE UNITED STATES, . . .101 CHAPTER V. CONTROVERSIES BETWEEN TWO OR MORE STATES, . . 114 CHAPTER VI. CONTROVERSIES BETWEEN A STATE AND CITIZENS OF ANOTHER STATE, 127 CHAPTER VII. CONTROVERSIES BETWEEN CITIZENS OF DIFFERENT STATES, 141 CHAPTER VIII. CONTROVERSIES BETWEEN CITIZENS OF THE SAME STATE, 173 CHAPTER IX. CONTROVERSIES WITH FOREIGN STATES, CITIZENS OR SUBJECTS, 179 PART III. COURTS OF THE UNITED STATES. CHAPTER I. DISTRICT COURTS, ...... 187 CHAPTER II. CIRCUIT COURTS, 309 Sec. I. — Judicial Circuits, .... 209 Sec. H.— Organization of Circuit Courts, . . . .210 Sec. III. — The Jurisdiction of Circuit Courts, ... 216 Sec. IV.— Sessions of Circuit Courts, . . . 231 Sec. V— Supplementary Legislation, .... 234 CONTENTS. ix CHAPTEK III. PAGE. THE SUPREME COURT, ...... 242 Sec. I. — The Organization of the Court, . . . 243 Sec. II. — Sessions of the Court, ..... 246 Sec. III. — Original Jurisdiction of the Court, . 247 Sec. IV. — Cases of Appellate Jurisdiction, . . 255 Sec. V. — Revisory Power of the Court, . . . 285 Sec. VI.— Law and Fact, ...... 293 Sec. VII. — Procedure in Writs of Error and Appeals, . 296 Sec. VIII.— Limitation of Time, . . . . .311 Sec. IX.— Writ Powers of the Court, . . 314 Sec. X. — Rules of the Supreme Court, .... 344 CHAPTER IV. THE COURT OP CLAIMS .362 Clf APTEE V. COMMISSIONERS OF CIRCUIT COURTS, . . . .376 CHAPTER YI. OFFICERS OF FEDERAL COURTS, . . . .388 CHAPTER VII. THE FEDERAL JURY, . . . . . .401 Sec. I. — CoDstitutional Provisions, .... 401 Sec. II. — Statutory Regulations, . . . . 414 CHAPTER VIII. THE FEDERAL LAW OF EVIDENCE, . . .425 CONTENTS. PART IV. REMOYAL OF CAUSES FROM STATE TO FEDERAL COURTS. CHAPTER I. PAGE. CONSTITUTIONAL AUTHORITY, . . . ■ .447 CHAPTER II. REMOVAL OF CAUSES PROM STATE TO THE CIRCUIT COURTS, Sec. I.— The Revised Statutes, ..... 460 Sec. II.— The Act of March 3d, 1875, . . . .488 CHAPTER III. REMOVAL OP CAUSES FROM STATE COURTS TO THE SU- PREME COURT, .536 Sec. I. — Grant of the Jurisdiction, .... 536 Sec. II. — Revisory Powers of the Court, . . . 538 Sec. III.— The Writ of Error, ..... 541 Sec. IV.— The Record, ...... 546 Sec. V.— The Petition for the Writ, . . . . 55S Sec. VI.— Allowance of the Writ, . . . .553 Sec. VII.— The Citation, ..... 556 Sec. VIII.— The Security, ...... 559 Sec. IX. — Supersedeas, ..... 561 Sec. X. — Limitation of Time, ..... 566 Sec. XL— Formal Conditions, ..... 567 Sec. XII. — Federal Questions, ..... 574 Sec. XIII. — The Record and Scope of the Jurisdiction. . 590 CONTENTS. XI PART V. RELATIONS OF FEDERAL AND STATE JURIS- PRUDENCE. CHAPTER I. PAGE. EXCLUSIVE AND CONCURRENT JURISDICTION, . . 597 CHAPTER II. FEDERAL AND STATE HABEAS CORPUS, . . .615 CHAPTER III. FEDERAL JURISPRUDENCE AND STATE LAWS, . . 033 Sec. I. — Introductory Statement, .... 632 Sec. II. — Legislative Adoption of State Laws, . . . 635 Sec. III. — Special Supplementary Provisions, . . . 655 Sec. IV. — Adoption of the Procedure in State Courts, . , 658 PART VI. FEDERAL JURISPRUDENCE AND THE COM- MON LAW. CHAPTER I. THE COMMON LAW IN CRIMINAL CASES, . . 667 Sec. I. — Preliminary Statement, .... 667 Sec. II. — Criminal Jurisdiction in the States, . . ,669 Sec. III.— The District of Columbia, .... 685 Sec. IV.— Territories of the United States, . • .688 CHAPTER II. THE COMMON LAW IN CIVIL CASES 694 301 CONTENTS. PART VII. FEDEKAL EQUITY JUEISPEUDENCE. CHAPTER I. PAGE. EQUITY IN GENERAL, ...... 723 CHAPTEE II. FEDERAL EQUITY, ....... 736 CHAPTEE III ENGLISH CHANCERY PRACTICE, . • . . .755 CHAPTEE IY. FEDERAL EQUITY RULES, ...... 765 ADDITIONS AND CORRECTIONS, .... 793 INDEX, 797 TABLE OF CASES. Abbottsford, The, 260. Ableman v. Booth, 625, 629. Adams Express Co. v. D. & R. G. Railway Co., 493. Adams v. Jones, 226. Adams v. Law, 304, 560. Adams v. Preston, 579. Adams v. Robinson, 557. Admiral, The, 272, 273. Akerly v. Villas, 486. Alabama v. Georgia, 1 20. Alcott v. Bynum, 645. Aldrich v. Crouch, 511. Aldrich v. ^Etna Company, 569. Alexis Nicolas, In re, 210. Alicia, The, 260, 273. Allen v. Blunt, 219. Allen v. Ryerson, 467. Alviso v. The United States, 297. American Ins. Company v. Canter, 14, 46, 639, 688. Ames v. Colorado Cent. R. R. Co., 461, 509. Amis v. Myers, 750. Amory v. Amory, 465, 466, 507. Amy v. Dubuque, 644. Anderson v. Bell, 148. Andrews v. Garrett, 507. Andrews v. Wall, "]"]. Andrews & Mott, Ex parte, 467. Angel v. Stone, 725. Anna, The, 394. Ann Arbor, The, 55. Ann, The, 78. Anon, 378. Anson, Banks & Co. v. The Blue Ridge R. R. Co., 560. Argo, The, 428. Armstrong v. United States, 373. Armstrong et al. v. Treasurer of Athens County, 584, 591, 592. Arnold v. Frost, 300. Atherton v. Fowler, 302, 570, 572. Atocha, Ex parte, 284. Austin v. The Aldermen, 579. Avon, The, 56. Ayers v. Chicago, 272, 526. Babbitt v. Clark, 524, 526. Bacon v. Hart, 298, 557. Baird v. Byrne, 183. Baker v. Biddle, 725, 745. Baker v. Peterson, 507. Baker v. White, 262, 571. Baltimore, The, 260. Bank of Alabama v. Dalton, 442. Bank of Augusta v. Earle, 166. Bank of Columbia v. Okley, 413. Bank of Dover v. Dodge, Meigs, et al., 498. Bank of Hamilton v. Dudley's Lessee, 642. Bank of Kentucky v. Wister, 134, 157, 252. Bank ot the United States v. Hal- stead, 316, 640. Bank of U. S. v. Planters' Bank of Georgia, 155. Bank, The v. Dudley, 637. Barber v. St. Louis, &c, R. R. Co., 468. Barclay v. The Commissioners, 464. Barnes v. Williams, 290. Barney v. Baltimore City, 290, 461. Barney v. Latham, 494, 499, 500. Barney v. The Globe Bank, 1 56, 464. Barrett v. Holmes, 651. Barron v. Mayor of Baltimore, 9, 403, 404, 410. Barry, Ex parte, 323. Barry v. Mercein, 257, 262, 462, 490. Bartemeyer v. Iowa, 555, 556. Basey v. Gallagher, 748. Bayard v. Lombard, 259. Bayne et al., Trustees v. United States, 112. Beale v. Thompson, 429. Beardsley v. Little, 427. Beardsley v. Torrey, 464. Beaston v. The Farmers' Bank of Delaware, 111. Beauregard v. New Orleans, 650. Beebee v. Russell, 261, 571. Beede v. Cheeney, 5° 2 - Beers v. Houghton, 640, 662. XIV TABLE OF CASES. Belfast, The, 47, 52, 63, 67, 75, 82. Bell v. Morrison, 428, 429. Benner v. Porter, 1 5, 279, 639. Bennett v. Butterworth, 24, 521, 747, 748. Best v. Polk, 643. Bethell v. Demaret, 578. Beyer v. County Com. of Douglas Co., 504. Bible Society v. Grove, 469, 470, 510, 532. Bigler v. Waller, 298, 557, 560. Bills v. New Orleans, St. Louis & Chicago R. R. Co., 521, 523. Bissell v. Horton, 148. Bixby v. Course, 467, 470. Bixby v. Jansen, 42. Black v. Thorne, 228. Black v. Zacharie, 299. Blaine v. The Charles Carter, 259. Blair v. Miller, 297. Blanchard v. Brown, 641. Blanchard v. Sprague, 637. Blease v. Garlington, 275, 427, 660. Bliven v. The New England Screw Co., 464. Board v. Kans. & Pac. R. R. Co., 496, 532. Board of Commissioners v. Gorman, 3°5- Bold Buccleugh, 72. Boiling v. Lersner, 595. Bollman & Swartwout, Matter of, 248, 324- Bollman, Ex parte, 322, 617. Bonafee v. Williams, 151, 157. Bond v. Brown, 268. Bondurant v. Watson, 501. Bonner v. United States, 365. Booth v. Clark, 443. * Bostwick v. Brinkerhoff, 261, 571. Bowen v. Chase, 470. Boyce v. Tabb, 650. Boyce's Executors v. Grundy, 749, 75°- 751- Boyle v. Zacharie & Turner, 262, 754- Bradford v. Jenks, 157, 160. Bradley, Ex parte, 332, 333. Bradley v. Fisher, 390. Bradley v. Rhines' Admr., 164. Bradstreet, Ex parte, 144, 333, 335. Bradstreet v. Thomas, 334. Bramhall v. United States, 373. Breedlove v. Nicolet, 184. Brent v. The Bank of Washington, in. Brewster v. Wakefield, 278. Bridge Proprietors v. The Hoboken Company, 550, 551, 592. Briges v. Sperry, 146. Briggs v. French, 165. Bright v. Milwaukee & St. Paul R. R. Co., 513. Brine v. Insurance Company, 641. Bristol v. Chapman, 465. Broadnax v. Eisner, 513, 528. Brobst v. Brobst, 560. Brockett v. Brockett, 310. Bronson v. Kinzie, 637. Bronson v. The Railroad Company, 262, 571, 572. Brooks et al. v. Jenkins et al., 438. Brooks v. Farwell, 522. Brooks v. Norris, 311, 567. Browden v. McArthur, 540. Brown v. Huger, 106. Brown v. Shannon, 264. Brown v. Wiley, 281. Brown v. The Union Bank, 571. Browne et al. v. Strode, 152, 184. Bruce v. Gibson, 501. Bruce v. United States, 436. Buckingham v. McLean, 299. Buckley v. United States, 444. Buckner v. Finley, 162, 442. Buddecum v. Kirk, 429. Buel v. Van Ness, 542, 543. Bull, Jesse H., In re, 621. Bullard v. Bell, 156. Burch v. The D. & St. P. R. R. Co., 495, 5i8. Burdick v. Hale, 511, 512, 525. Burford, Ex parte, 323. Burgess v. Seligman, 648. Burke v. Flood, 495. Bushnell v. Kennedy, 155, 158, 458, 464, 505. Butler v. Farnsworth, 142. Butz v. Muscatine, 650. Byrne v. Holt, 143. Cabrera, Ex parte, 39. Cadle v. Tracy, 196. Calvin v. Boutwell, 473. Camanche, The, 289. Campbell v. Reed, 282. Cannon v. Pratt, 280. Caperton v. Bowyer, 584. Carlisle v. United States, 368. Carpenter v. Providence Washington Insurance Co., 652. Carpenter v. The Insurance Co., 650. Carraher v. Brennan, 496. Carroll v. Dorsey, 558. Carroll v. Sofford, 650. TABLE OF CASES. XV Carswell v. Schley, 518. Cary v. Curtis, 264. Case v. Clark, 143, 165. Cassius, The, 78. Castor v. Mitchell, 165. Castro v. The United States, 297. Cathcart v. Robinson, 687. Catlett v. Brodie, 300, 560. Catlett v. The Pacific Ins Co., 165. Chaffee v. Hayward, 298, 299. Chamberlain v. American N. L. & T. Co., 512. Chappedelaine v. Dechenaux, 1 50, 1 56, 184. Cherokee Nation v. Georgia, 116, 180, 252, 319. 576. Cherokee Tobacco Case, 31. Chicago & N. W. R. R. Co. v. Chicago & P. R. R. Co., 171. Chicago v. Gage, 495. Child y. United States, 373. Childress v. Emory, 1 50, 1 56. Chiles, In re, 343. Chisholm v. Georgia, 101, 104, 117, 124, 126, 127, 128, 129, 138, 140, 248. Chittenden v. Darden, 661. Christy, Ex parte, 329. Christy v. Pridgeon, 650. Circuit Court, In re, 210. Cissel v. McDonald, 461. Citizens Bank v. Board of Liquidation, 595- City v. Lampson, 650. City Bank of New York v. Skelton, 321. City of Chicago v. Robbins, 715. City of Lexington v. Butler, 1 56, 1 58, 160, 505. City of Richmond v. Smith, 646. Clark v. Deck, 405. Clark v. Keith, 540. Clark v. Opdyke, 518. Clark v. Smith, 745. Clarke, Ex parte, 326. Clarke v. The United States, 368. Clatsop Chief, The, 79. Clements v. Berry, 641. Clifton v. Sheldon, 263. Clifton v. United States, 444. Clinton v. Englebrecht, 15, 639. Cliquot's Champagne, 444. Clouster v. Sherer, 725. Coal Company v. Blatchford, 148, 150, iS3. 494- Cobb v. Globe Mutual Life Ins. Co., 528. Cochrane v. Deener, 292. Coddington v. Richardson, 266. Coe v. The Cayuga Lake Railroad Co., 161, 701. Cohens v. Virginia, 18, 20, 103, 108, 115, 130, 249, 250, 260, 297, 454, 472, 542, 556. Coleman v. Tennessee, 622. Colson v. Lewis, 177, 488. Commercial and Railroad Bank of Vicksburg v. Slocomb, 148, 149. Commercial Savings Bank v. Corbett, 5'9- Commissioner v. Whitley, 333, 334. Commissioners v. Lucas, 571, 572. Commonwealth v. Freely, 608. Commonwealth v. Kosloff, 40. Commonwealth Bank v. Griffith, 579. Congdon v. Goodman, 579. Connell v. Utica, U. & E. R. Co., 495, 497- Connor v. Peugh, 260. Conolly v. Taylor, 149, 166, 184. Conrad v. The Atlantic Ins. Co., in. Cook v. Burnley, 261, 429. Cooke v. Ford, 529, 532. Cooke v. Seligman, 515. Cooke v. United States, 263. Cooley v. Lawrence, 465. Cooper v. Condon, 470. Cooper v. Galbraith, 142, 143, 165. Cooper v. The Town of Thompson, 157, 160. Copelin v. The Ins. Company, 268. „ Corfield v. Coryell, 28. Cornett v. Williams, 426. Corning v. Troy Iron and Nail Co., 54o. Cotton v. United States, 192. County of Wilson v. Nat. Bank, 219. Course v. Stead, 263. Covington Drawbridge Co. v. Shep- herd, 167, 639. Cowles v. Mercer Co., 167. Cox v. United States, 297, 436, 710. Craig v. Smith, 276. Craighead v. Wilson, 571. Cramer v. Mack, 510. Crandall v. The State, 28. Crane, Ex parte, 331, 334, 335. Crane v. Reeder, 507. Crawford v. Addison, 332. Cromwell v. County of Sac, 654. Cropper v. Coburn, 321. Crosby v. Buchanan. 571. Crowell v. Randell, 581, 591, 592. Culver v. Crawford, 144. Custin v. Decker, 501. Cutler v. Rae, 77. XVI TABLE OF CASES. Cutting, Ex parte, 332, 334. Dade v. Irwin, 750, 751. Daly v. James, 650. Daniel Ball, The, 53. Daniels v. The Railroad Co., 269. D'Arcy v. Ketchum, 442, 443. Darst v. Bates, 467. Darst v. McKinney, 468. Dartmouth College v. Woodward, 138. Davenport, Ex parte, 334. Davenport v. Fletcher, 558. Davidson v. Lanier, 302, 560. Davie v. Briggs, 644, 650. Davies v. Lathrop, 503. Davis v. Braden, 269. Davis v. Child, jy. Davis v. Crouch, 571, 573. Davis v. Gay, 106. Davis v. Packard, 41, 196. Davis v. The Police Jury of Con- cordia, 30. Davis v. The Seneca, 229. Davis, The, 104, 106. Dayton v. Lash, 298. Deford v. Mehaffy, 515. De Groot v. The United States, 284. Dehler v. Dodge, 1 56. De Krafft v. Barney, 281. Delmas v. Insurance Company, 638. De Lovio v. Boit, 62. Dennis v. Alachua, 471, 532. Denniston v. Potts, 464. Dennistoun v. Draper, 458, 484, 485. Dennistoun v. Stewart, 270. De Sobry v. Nicholson, 504. Devereaux v. Marr, 269. D'Wolf v. Rabaud, 503. Dick v. Runnels, 428. Diggs v. Wolcott, 320. Dirst v. Morris, 267. Dodge v. North Western Union Packet Co., 471. Doe v. Braden, 29. Doe v. City of Mobile, 592. Dorsheimer v. United States, 365. Dos Hermanos, The, 312, 560, Douglass v. County of Pike, 648, 650. Dow v. Johnson, 269. Downham v. Alexandria, 569. Doyle v. Wisconsin, 564. Dred Scott Case, 142. Dugan v. United States, (92, 217. Duncan v. Gegan, 473, 521, 523. Duncan v. United States, 711. Dundas v. Bowler 1 56. Dunn v. Clarke. 166. Durant v. The Essex Co., 288, 539. Durousseau v. United States, 257. Duryee v. Elkins, 76. Dynes v. Hoover, 405. Eagle, The, 52, 53, 75. Early v. Rogers, 260. Easton, Ex parte, 63, 329. Edmundson v. Bloomshire, 300. Edwards v. Elliott, 9, 412, 551. Electoral College of South Carolina, The, 623. Elmendorf v. Taylor, 646, 650. Elmwood v. Marcy, 650. Elsineur, The, 276. Ely v. The North Pac. R. R. Co., 533. Emerson v. Hogg, 438. E. M. McChesney, The, 55. Empire Trans. Co. v. Richards, 512. Equator Company v. Hall, 645. Eslava v. Magange's Administrator, 426. Etting v. Bank of the United States. 288. Evans v. Gee, 262, 503. Evans v. Hettich, 429. Ewing v. St. Louis, 750. Ex parte Andrews and Mott, 467. Ex parte Atocha, 284. Ex parte Barry, 323. Ex parte Bollman, 322, 617. Ex parte Bradley 332, 333. Ex parte Bradstreet, 144, 333, 335. Ex parte Burford, 323. Ex parte Cabrera, 39. Ex parte Christy, 329. Ex parte Clarke, 326. Ex parte Crane, 331, 334, 335. Ex parte Cutting, 332, 334. Ex parte Davenport, 334. Ex parte Easton, 63. Ex parte Eaton, 329. Ex parte Flippin, 335. Ex parte Geissler, 622. Ex parte Gordon, 271, 329. Ex parte Graham, 329. Ex parte Grimball, 532. Ex parte H. B. Titus, 622. Ex parte H. H. Robinson, 622. Ex parte Hoyt, 334. Ex parte John W. Tatem, 622. Ex parte Jordan, 334. Ex parte Kerney, 324. Ex parte Lange, 325, 409. Ex parte Loring, 334. Ex parte Madrazzo, 130. Ex parte Many, 333. Ex parte McCardle, 257. Ex parte McCready, 623. TABLE OF CASES. XY11 Ex parte McNeil, 73, 746. Ex parte Meador, 409. Ex parte Milligan, 324, 403. Ex parte Milwaukee Railroad Co., 300, 335. Ex parte Myra Clarke Whitney, 790. Ex parte Newman, 332. Ex parte Parks, 325. Ex parte Perry, 334. Ex parte Poultney, 790. Ex parte Railroad Co., 308. Ex parte Railway Company, 333. Ex parte Reynolds, 623. Ex parte Roberts, 283, 373. Ex parte Robinson, 333, 342, 343. Ex parte Russell, 373. Ex parte Schwab, 334. Ex parte Sibbald v. The United States, 292. Ex parte Siebold, 325, 387. Ex parte Swartwout, 322. Ex parte Thomas Kaine, 378. Ex parte Tillinghast, 390. Ex parte Turner, 623. Ex parte Van Orden, 377. Ex parte Virginia, 325, 416, 479. Ex parte Waddy Thompson, 621. Ex parte Wall, 391. Ex parte Warmouth, 264, 329. Ex parte Watkins, 324. Ex parte Wells, 478. Ex parte Whitney, 334. Ex parte Wood, 315. Ex parte Yerger, 248, 324, 326. Ex parte Zellner, 283. Express Co. v. Kountze Brothers, 277. Fairfax's Devisee v. Hunter's Lessee, 3°- Fairfield v. The Gallatin Co., 650. Farez, Francois, In re, 381. Farlow v. Lea, 151. Farrar v. United States, 290. Fellows v. Blacksmith, 29. Fenn v. Holme, 24. Ferguson v. Harwood, 442. Field v. Lamb, 467. Field v. Lownsdale. 467. Field v. The United States, 112. Findley v. Satterfield, 484. First Nat. Bank v. Douglas, 219. Fisher's Lessee v. Cockrell. 547, 548. Fisk v. Union Pacific R. R. Co., 321, 472, 473, 475, 483, 484, 521, 747. Fitch v. Creighton, 746. Fitz v. Hayden, 471. Fitzgerald v. Allman. 478. Flanders v. Tweed, 266. B Flippin, Ex parte, 335. Florida v. Anderson, 136. Florida v. Georgia, 120. Ford v. Surget, 577. Forgay v. Concord, 262. Forgay v. Conrad, 571. Forrest v. Keeler, 509. Foster v. Neilson, 30, 181. Fowle v. Alexandria, 290. Fowle v. Lawrason, 751. Fowler v. Lindsey, 133, 252. Fowler v. Merrill, 428. Fowler v. Miller, 175. Fox v. The State of Ohio, 9, 410. Foxcroft v. Mallett, 715. Freeborn v. Smith, 279. French v. Hay, 320, 473. French v. Shoemaker, 262, 300. Fulenweider v. United States, 369. Fuller v. The County of Colfax, 461. Fullerton v. Bank of the United States, 650. Fulton v. Golden, 512. Furman v. Nichol, 550, 551, 592. Gaines v. Fuentes et al., 455, 462, 490, 491- Gait v. Galloway, 438. Gard v. Durant, 474. Garden City Manufacturing Co. v. Smith, 486. Gardner v. Collins, 650. Gardner v. Sharp, 142, 143. Garland v. Davis, 290. Garneau v. Dozier, 275, 297. Garnett v. The United States, 281. Gassies v. Ballon, 127, 142. Gay v. Parpart, 300, 560. Geissler, Ex parte, 622. Gelpcke v. City of Dubuque, 647, 648, 650. Gelston v. Hoyt, 552, 566, 567, 570. General Cass, The, 56. General Smith, The, 73. Genesee Chief v. Fitzhugh, 45, 47, 48, 5i. 53- Georgia v. Brailsford, 117, 248, 318. Georgia v. Madrazo, 106, 117, 252. Georgia v. O'Grady, 420, 484. Georgia v. Stanton, 102, 252, 319. Germania Fire Ins. Co. v. Francis, 473. Gernon v. Boccaline, 317. Gibbons v. United States, 365. Gibson v. Bruce, 793. Gibson v. Chouteau, 548. Gill v. Oliver's Executors, 30, 592. Girardey v. Moore, 530, 532. Gleason v. Florida, 554. xvm TABLE OF CASES. Glover v. Shepperd, 502. Godfrey v. Terry, 146 Gold W. & W. Co. v. Keys, 506. Goodman v. Simonds, 162, 653, 714. Goodrich v. Hunton, 470. Goodyear v. Day, 145, 219. Gordon, Ex parte, 271, 329. Gordon v. Caldcleugh, 586. Gordon v. Longest, 462, 472, 517. Gordon v. Ogden, 263. Gordon v. The United States, 365. Goshorn v. Alexander, 745. Gould v. Gould, 429. Governor of Georgia v. Madrazo, 117, 252. Graham, Ex parte, 329. Graham v. Bayne, 290. Graham v. Stucken, 41, 184, 249, 317. Grand Chute v. Winegar, 725, 750. Grand Gulf R. R. & B. Co. v. Mar- shall, 583, 793. Graner v. United States, 260. Grant v. The Phcenix Ins. Co., 571. Grant v. United States, 365. Gratiot v. United States, 436. Gray v. Blanchard, 262. Grayson v. Virginia, 117, 118, 248. Gregg v. Weston, 1 58. Gregory v. McVeigh, 569. Gregory v. Morris, 712. Green v. Creighton, 753. Green v. Custard, 155, 464, 505. Green v. Fisk, 572. Green v. Neale's Lessee, 644, 646, 650. Green v. United States, 426. Green v. Van Buskirk, 562. Greene v. Kingler, 508. Griffin, John, The, 444. Grimball, Ex parte, 532. Grisar v. McDowell, 106. Gross v. United States Mortgage Co., 793- Grosvenor v. Danforth, 557. Groves v. Slaughter, 650. Guppy v. Brown, 429. Gurnee v. County of Brunswick, 509. G. W. & W. Co. v. Keyes, 492. Hagan v. Foison, 263. Hagan v. Ross, 562. Haines v. Carpenter, 320. Hale v. Gaines, 587. Hall v. Weare, 261. Halsey v. Town of New Providence, 159. Halstead v. Lyon, 1 56. Hamilton Company v. Massachusetts, S84. Hampton v. Rouse, 297. Hampton, The, 197. Handly's Lessee v. Anthony et al., 175. Hanger v. Abbott, 311. Hanrick v. Barton, 438. Harcourt v. Gaillard, 176. Hardin v. Olson, 504. Harman v. Tappenden, 405. Harpending v. The Dutch Church, 644. Harris v. Wall, 428, 429. Harris v. Wheeler, 229. Hart v. City of New Orleans, 470. Hartford Fire Ins. Co. v. Van Duzer, 554- Havemeyer v. Iowa City, 226, 648, 650. Hawkins v. Barney's Lessee, 644. Hawthorne v. United States, 275. Hayburn's Case, 6. Henderson v. Tennessee, 30, 587. Henfield's Case, 671. Henrich's Case, 381. Hepburn v. Ellzey, 145, 461. Hervey v. Illinois M. R. R. Co., 512. Hickie v. Starke, 585. Highland Light, The, 74. Hill v: Henderson, 471. Hill v. United States, 104, 319. Hills v. Ross, 289. Himely v. Rose, 540. Hine, The v. Trevor, 52, 74, 81, 422. Hipp v. Babin, 751. Hoadley v. San Francisco, 272,' 492, 507, 526. Hobby v. Allison, 532. Hodge v. Williams, 302. Hodgkins v. Hayes, 467. Hodgson v. Bowerbank, 183. Hodson v. Milward, 480. Hogan v. Ross, 308. Holcombe v. McKusick, 262. Holden v. The Ins. Co., 502. Holland et al. v. Ryan et al., 794. Hollingsworth v. Virginia, 129. Holmes v. Jennison, 568. Holmes v. The O. & C. Ry. Co., 73. Houser v. Clayton, 502. Houston v. Moore, 13, 573, 603, 606, 608. Houston v. Rice, 151. Hoyt, Ex parte, 334. Hoyt v. Hammekin, 428. Hoyt v. Thompson's Executors, 550, 55i- Hoyt v. United States, 436. Hoyt v. Wright, 525. Hubbard v. Northern Railway Co., 464. TABLE OF CASES. XIX Hudgins v. Kemp, 304, 310. Huff v. Hutchinson, 153. Huger v. South Carolina, 118. Hunt v. Palao. 279. Hunter v. Royal Canadian Ins. Co., 528. Hunter v. The United States, 113. Hurst v. W. & A. R. R. Co., 469. Hurt v. Hollingsworth, 522. Hyde v. Ruble, 500, 532. Illinois v. Illinois Central R.R.Co.,794. Indianapolis, &c, R. R. Co. v. Horst, 659. Ind. R. R. Co. v. Risley, 502. Inglee v. Coolidge, 548. Innerarity v. Byrne, 557. Insurance Co. v. Adams, 333. Insurance Co. v. Bailey, 725. Insurance Co. v. Boykin, 289. Insurance Co. v. Comstock, 272, 334, 413. 526. Insurance Co. v. Dunham, 52. Insurance Co. v. Dunn, 472, 517, 518. Insurance Co. v. Folsom, 267. Insurance Co. v. Francis, 469. Insurance Co. v. Laettel, 502. Insurance Co. v. Mordecai, 298. Insurance Co. v. Pechner, 463, 465, 501,507. Insurance Co. v. Piaggio, 289. Insurance Co. v. Sea, 267. Insurance Co. v. The Treasurer, 579, 581. Insurance Co. v. Wilson, 333. Irvine v. Lowry, 151, 152. Jackson v. Ashton, 146. Jackson v. Chew, 642, 646, 650. Jackson v. James, 54. Jackson v. Lamphire, 579. Jackson v. Rose, 608. Jackson v. The Ins. Co., 501, 502. Jackson v. The Mutual Life Insurance Co., 519. Jackson v. Twentyman, 183, 184. Jackson v. Wood, 410. James v. The Bank, 297. Jecker v. Montgomery, 274. Jerome v. McCarter, 299, 561. Johnson v. Donaldson, 427. Johnson v. Johnson, 510, 532. Johnson v. Jumel, 220. Johnson v. Monell, 465, 502. Johnson v. Owens, 426. Jones v. Andrews. 1 50. Jones v. League, 165. Jones et al. v. McMasters, 748. Jones v. Oceanic Steam Nav. Co., 474, 475- Jones v. Seward, 480. Jones v. United States, 364, 370. Jordan, Ex parte, 334. Judson v. Macon Co., 144. Juniata, The, 275. Justices, The v. Murray, 412, 413. Kaeiser v. The Illinois Cent. R. R. Co., 502. Kail v. Douglas, 558. Kail v. Wetmore, 297, 558. Kain v. Tex. & Pac. R. R. Co., 533. Kaine, Thomas, Ex parte, 378. Kaine's Case, 327. Kanouse v. Martin, 462, 517, 572. Karrahoo v. Adams, 183. Kate Tremain, The, 56. Kaufman v. Lee, 104. Kearney v. Case, 267. Kearny, Ex parte, 324. Keary v. Farmers and Mechanics Bank, 640. Keith v. Levi, 462. Kellogg v. Hughes, 468. Kelly v. Harding, 145. Kendall v. Stokes, 338. Kendall v. United States, 338, 685, 687, 688, 709. Kennedy v. Gibson, 196, 219. Kentucky v. Dennison, 118, 247, 252, 338, 34i- Kerting v. Amer. Oleograph Co., 511. Kidder v. Featteau, 514. Kimball v. Evans, 573. King v. Baldwin, 725.% King v. Cornell, 495, 496, 532. King v. Oliver, 184. King v. Riddle, 665. King, The v. Barker et al., 331. Kitchen v. Randolph. 306, 565, 567. Klinger v. State of Missouri, 580, 595, 596. Knowlton v. Congress & Empire Spring Co., 509, 522. Kohl v. United States, 217. Lalor v. Dunning, 519. Lamar v. Dana, 486. La Mothe Manuf. Co. v. National Tube Works, 521, 529, 747, 764. Lane v. Vick, 650. Lange, Ex parte, 325, 409. Latham's & Deming's Appeals, 284. Laury v. Lousada, 196. Lawlerv. Walker, 549, 551. Lawrence v. United States, 437. XX TABLE OF CASES. Lea v. Kelly, 262. League v. Egery, 650. Lee v. Blandy, 438. Lee v. Watson, 262. Lee Co. v. Rogers, 650. Leffingwell v. Warren, 644, 646, 650. Lemmon v. The People, 28. Leon v. Galceran, 82. Levy Court v. Ringgold, 395. Lewis v. Smythe, 508. Life and Fire Ins. Co. v. Wilson, 334. Linton v. Stanton, 586. L'Invincible, 69. Livingston v. The Mayor, 405. Livingston et al. v. The Ins. Co., 290. Livingston's Lessee v. Moore, 9, 412. Locke v. United States, 230, 444. Lockhart v. Horn, 148. Lombard v. Bayard, 641. London Packet, The, 275, 428. Long v. Converse, 588. Loring, Ex parte, 334. Lorman v. Clarke, 703, 745. Lottawana, The, 65, 66, 68, 73, 229, 695. Louisville, &c, R. Co. v. Letson,i67. Low v. Durfee, 665. Lowe v. Williams, 462, 491. Lucas v. Brooks, 426, 643. Lucille, The. 229. Luminary, The, 444. Luther v. Borden, 271. Lyell v. Goodwin, 40. Lytle v. State of Arkansas, 593. Macauley v. United States, 372. Ma'drazo v. Governor of Georgia, 248. Madrazzo, Ex parte, 1 30. Magee v. Union Pac. R. R. Co., 475. Mag wire v. Tyler, 539, 581. Mahone v. M. & L. R. R. Co., 471. Mahoney Mining Co. v. Bennett, 522. Malone v. United States, 366. Malony v. The City of Milwaukee, 55. Mandelbaum v. The People, 291. Manro v. Almeida, 80. Many, Ex parte, 333. Marbury v. Madison, 26, 248, 249, 336, 337, 339. 34o. Market Company v. Hoffman, 281. Marshall's Case, 405. Marshall v. The Baltimore & Ohio R. R. Co., 167. Martin v. Hunter,- 299, 300. Martin v. Hunter's Lessees, 11,13, 45i, 454. 457. 539. 54°. 552, 560, 593, 602, 605, 606, 607, 608. Martin v. The Hazzard Powder Com- pany, 299, 561. Martin, Robert M., In re., 378. Mason v. Gamble, 264. Massingill v. Downs, 662, 663. Masterson v. Herndon, 297, 545. Maxwell v. Newbold, 549, 551. Mayer v. Foulkrod, 1 56. Mayor v. Cooper, 21, 455, 492, 519. McArthur v. Porter, 290. McBride v. Hoey, 579. McCardle, Ex parte, 257. McCollum v. Eager, 260. McComb v. Commissioners, 573. McComb v. Knox County, 571. McCoy v. Washington Co., 167. McCraken v. Hayward, 637. McCready, Ex Parte, 623. McCready v. Virginia, 57. McCulloch v. Maryland, 11. McElmoyle v. Cohen, 442, 644. McGarrahan v. Mining Company, 438. McGinnity v. White, 469, 502. McKeen v. Delancy's Lessee, 646, 650. McKim v. yoorhies, 322. McLean v. St. Paul & Chicago R. R. Co., 501, 502, 513, 525. McLellan v. United States, 229, McMundy v. The Connecticut Gen- eral Life Ins. Co., 515. McNeil, Ex parte, 73, 746. McNeil v. Holbrook, 642, 643, 718. McNulty v. Batty, 279. McNutt v. Bland, 152. Meade v. Beale, 745. Meade v. The United States, 284. Meador, Ex parte, 409. Meadow Valley Mining Co. v. Dodds, 47o. Mechanics' Bank v. Seaton, 428. Medbery v. State of Ohio, 579. Meigs v. McClung's Lessee, 106. M'Elrath v. United States, 366. Mercer Co. v. Hacket, 650. Merchant, The, 76. Merchant Exchange Co. v. United States, 370. Merchants' & Manuf. Nat. Bank v. Wheeler, 507, 521.. Merrill v. Petty, 260. Mersman v. Werges, 160. Messenger v. Mason, 550, 551. Metzger, Matter of, 323, 326. Meyer v. Meyer, 66. Meyers v. Union Pacific R. R. Co., 492. Miles v. Caldwell, 641, 645. TABLE OF CASES. XXI Milkman v. Ordway, 725. Miller v. Finn, 470. Miller v. Joseph, 569. Miller v. Lancaster Bank, 588. Miller v. The Insurance Co., 267, 268. Milligan, Ex parte, 324, 403. Millingar v. Hartupee, 584. Mills v. Brown, 592. Mills v. Duryee, 442. Milner v. Meek, 310. Milwaukee R. R. Co., Ex parte, 300, 335- Miners' Bank v. Iowa, 576. Mining Co. v. Taylor, 225. Minor v. Happersett, 221. Mississippi v. Johnson, 102, 252, 319. Missouri v. Iowa, 120. Mitchell v. Burlington, 650. Mitchell v. Harmony, 365. Mitchell v. The United States, 292. Mix v. Andes Ins. Co., 471. Mollan v. Torrance, 164, 165. Montalet v. Murray, 183. Montejo v. Owen, 521. Montello, The, 53. Montgomery v. Anderson, 229, 262, 273- Montgomery v. Hernandez, 585, 588, 592. Moore v. Mississippi, 595. Moore v. Robbins, 571, 573. Moore v. United States, 364. Mordecai v. Lindsay, 229. Morgan v. Beloit, 751. Morgan v Curtenius, 650. Morgan's Executors v. Gay, 224. Morgan's Heirs v. Morgan et al., 165. Morrison v. Slopper, 405. Moses Taylor. The, 74, 82, 454, 605. Mossman v. Higginson, 183. Mullerv. Dows, 170. Munn v. Illinois, 712. Murdock v. City of Memphis, 537, 594, 793- Murphy v. People, 403, 405. Murray v. Charleston. 551, 593. Murray v. Gardner, 654. Murray v. Holden, 510, 511. Murray v. Lardner, 714. Murray v. Patrie, 485. Mussina v. Cavazos, 296, 301, 542. Myers v. Tyson, 663. Myers v. Union Pacific R. R. Co., 794- Myra Clarke Whitney, Ex parte, 790. National Bank v. Bank of Commerce, 298, 558. National Bank v. County of Yankton 688. National Bank v. Omaha, 299 310 559- National Steamship Co. v. Tugman 185, 520. Nations v. Johnson, 104. Nazro v. Cragin, 661. N. C. Bank, The v. N. S. Co., 78. Neal v. Delaware, 479, 533. Neill, Thomas H., In re, 622. Neilson v. Lagow, 581. Nelson v. Leland, 53. Nelson v. Woodruff, 458, Nesmith v. Sheldon, 226, 270, 650. Neves v. Scott, 748, 754. Newcomb v. Wood, 295. Newell v. Norton and Ship, 79. New Hampshire v. Louisiana, 124. New Jersey v. New York, 118, 120, 248. New jersey Steam Navigation Co. v. The Merchants' Bank, jj, 81. Newman, Ex parte, 332. New Orleans v. Morris, 662. New Orleans v. Winter, 145, 461. New York v. Connecticut, 133, 252, 3i8. New York v. Louisiana, 124. New York Silk Manuf. Co. v. Second Nat. Bank of Patterson, 516. Nichols v. United States, 365. Nicolas, Alexis, In re, 210. Noel v. Mitchell, 157. Noonan v. Lee, 754. Norris v. Jackson, 225, 266. Nudd v. Burrows, 659, 660. Nuestra Senora de Regla, The,- 274, 302, 314. Oa^es v. The Bank of Montgomery, 650. Oates v. The National Bank, 653. Ober v. Gallagher, 650. Ocean Queen, The. 275. O'Dowd v. Russell. 297, 545, 572. Oelrichs v. Spain, 725, 750. Ohio & Mississippi R. R. Co. v. Wheeler, 167, 168, 171. Ohio Life Ins. & Trust Co. v. Debolt, 647, 650. Olcott v. Bynum, 640. Olcott v. Supervisors, 648, 650, 654. Oler, The, 56. OIney v. Arnold, 569. O'Reilly v. Edrington, 299, 559. Orosco v. Gazliardo, 463. Orvis v. Powell, 641. XXII TABLE OF CASES. Osborn v. The United States Bank, 3, S, 20, 21, 38, 106, 117, 132, HS, 15°. 194. 249, 252, 793, 794. Osgood v. Chicago, &c, R. R. Co., 495- Osgood v. Railroad Company, 497. Ottawa v. Perkins, 650. Ottawa, The, 428. Ouachita, The, 197. Owings v. Hull, 442, 639. Owings v. Norwood's Lessee, 30. Pacific, The, 72. Packer v. Nixon, 269. Packet Company v. Clough, 426. Palmer v. Downer, 558. Palmer v Low, 643. Palmyra, The, 273. Parcels v. Johnson, 571. Parker v. Haworth, 438. Parker v. Overman, 147. Parker v. Winnipiseogee & Co., 725. Parkes, Ex parte, 325. Parsons v. Armor, 413. Parsons v. Bedford, 23, 261, 294, 295, 413, 696, 737. Parton v. Williams, 405. Patapsco Ins. Co. v. Southgate, 428, 429, 433- Patrie v. Murray, 480. Patterson v. United States, 229. Paul v. Virginia, 28, 166. Payne v. Hook, 745, 753, 754. Payne v. Niles, 296, 545. Peale v. Phipps, 558. Pearson v. Yewdall, 302. Pease v. Peck, 650. Peck v. Jenness, 320. Pelham v. Ross, 270. Penhallow v. Doane, 289. Pennington v. Gibson, 639. Pennsylvania v. The Quicksilver Com- pany, 137, 253. Pennsylvania v. The Wheeling Bridge Co., 26, 118, 135, 679, 707. Penrose v. Penrose, 519. People v. Folsom, 705. People v. Goodwin, 409. People v. Johnson, 402. People v. Whipple, 407. Pepper v. Dunlap, 571, 573. Perkins v. Fourniquet, 262. Perry v. Corning, 219. Perry, Ex parte, 334. Pervear v. The Commonwealth, 9. Peterhoff, The, 394. Peters v. Peters, 467. Peterson v. Chapman, 495, 496. Pettibone v. Derringer, 438. Pettigrew v. United States, 264. Pettilon v. Noble, 474. Pettit v. Town of Hope, 160. Peyton v. Bliss, 483. Phillip v. Nock, 264. Phillips v. Moore, 224, 422. Phoenix Life Ins. Co. v. Saetter, 508. Picquet v. Swan, 184, 661. Pierce v. Cox, 299. Pierpont v. Fowle, 745. Piquignot v. Penna. R. R. Co., 309. Piscataqua Ins. Co. v. The Hill Co., 725. Pizarro, The, 274. Polk's Lessees v. Wendell, 650. Pollard v. Dwight, 473. Pomeroy v. Bank of Jndiana, 288. Pomeroy v. The State Bank, 260. Porter v. The City of Janesville, 1 59, 262. Postmaster General v. Cross, 230. Postmaster General v. Early, 217. Poultney, Ex parte, 790. Pratt v. Fitzhugh, 262, 490. Pratt et al. v. Northam et al., 753. Prentice v. Zane, 290. Prentiss v. Barton, 142. Prentiss v. Brennan, 184. Prescott v. State, 405. Preston's Heirs v. Bowman, 650. Prince v. Bartlett, ill. Protector, The, 312. Public Grain & Stock Exchange v. Western Union Tel. Co., 511. Pueblo Case, The, 394. Railroad Railroad Railroad Railroad Railroad Railroad Railroad Railroad 519- Railroad Railroad 5I 8. Railroad Railroad Railroad Railroad Railroad Railroad Railroad Railway v. Howard, 443. v. Johnson, 545. Co. v. Alabama, 104. Co. v. Blair, 298. Co. v. Bradleys, 262. Co. v. Grant, 281. Co. v. Harris, 308, 562. Co. v. Koontz, 472, 517. Co. v. McClure, 578, 581. Co. v. Mississippi, 21, 517, Co. v. Pollard, 426. Co. v. Rock, 579, 581. Co. v. Schutte, 301. Co. v. Swasey, 262, 571. Co. v. Tennessee, 104. Co. v. Wiswall, 272, 334,526. Co., Ex parte, 308, 333. Co. v. Ramsey, 146, 504. TABLE OF CASES. xxm Railway Co. v. Whitton, 167, 168, 169, 171, 455. 458, 464- Rankin v. The State, 573. Rateau v. Bernard, 1 84. Rathbone Oil Co. v. Rausch, 461. Rathbone v. Warren, 725. Ray v. Law, 572. Rector v. Ashley, 548, 580. Reddall v. Bryan, 573. Redmond v. Russell. 465. Reed v. Bertrand, 142, 143. Reed's Lessee v. Marsh, 548. Reform, The, 197. Removal Cases, The, 148, 493, 500, 507, 508, 512, 514, 515, 517, 518. Reynolds, Ex parte, 623. Reynolds v. United States, 280. Rhode Island v. Massachusetts, 115, 119, 120, 175, 242, 250. Rice v. Houston, 165. Rich v. Ricketts, 644. Richard Doane, The, 79. Richardson v. City of Boston, 213. Richmond v. Milwaukee, 263. Riggs v. Johnson County, 315. Rio Grande, The, 275. Rison v. Cribbs, 490. Roarer, The, 229. Roberts, Ex parte. 283, 373. Roberts v. Cooper, 540. Roberts v. Nelson, 463. Robertson v. Cease, 146. Robertson v. Coulter, 579. Robinson, Ex parte, 333, 342, 343, 622. Robinson v. Campbell, 24, 708, 709, 737, 748, 753, 754- Robinson v. Potter, 471. Robinson v. Satterlee, 210. Rock Island Bridge, The, 72. Roemer v. Simon, 275. Roosevelt v. Meyer, 587. Ropes et al. v. Clinch, 31. Ross v. Duval, 644. Rowan v. Runnels, 647, 650. Rowland v. The Ins. Co., 516. Rubber Company v. Goodyear, 299, 560. Ruckman v. Palisade Land Co., 496. Ruckman v. Ruckman, 495, 496, 497. Rush v. Parker, 263. Russell, Ex parte, 373. Ryan v. Bindley, 643. Ryan v. Thomas, 587. Sabine, The, 79. Sackett v. Davis, 156. Sadler v. Hoover, 270. Sage v. Central R. R. Co. of Iowa, 308, 562. Sage v. Railroad Company, 262, 298. Sagory v. Wissman, 43, Saltmarsh v. Tuthill, 259. Sampson v. Welsh, 260. Samuel, The, 275, 428. Sands v. Smith, 466. San Pedro, The, 309. Sarah, The, 218. Sarchet v. United States, 259. Sawyer v. Oakman, 213. Scarborough v. Pargoud, 793. Schwab, Ex parte, 334. Schwab v. Hudson, 518. Scott v. Clinton & S. R. Co., 511. Scott v. Jones, 116, 576, 577. Sea Gull, The, 74. Segee v. Thomas, 637. Semmes v. United States, 230. Sergeant v. Biddle, 429. Sevier v. Haskell, 579. Sewing Machine Companies, Case of, 466, 467, 470. Seybert v. Pittsburg, 650. Seymour v. Freer, 300, 560. Shaw v. United States, 370. Shelby v. Guy, 646, 650. Sheldon v. Sill, 156, 160, 164. Shelton v. Tiffin, 143. Shepherd v. Young, 488. Sheppard v. Graves, 504. Sheppard v. Taylor, tj. Sheppard v. Wilson, 298. Sherman v. Clark, 144. Shields v. Thomas, 413. Short v. Wilson, 480. Shutte v. Thompson, 428, 429. Sibbald v. United States, 292, 539, 540. Siebold, Ex parte, 325, 387. Silliman v. Hudson River Bridge Co., 269. Simpson v. Baker, 290. Simpson v. Greeley. 297, 545. Sims v. Hundley, 504, 643. Siren, The, 104, 106. Sizer v. Maney, 540. Skeen v. Huntington, 480. Slaughter v. Glenn, 640, 645. Slaughter House Cases, 28, 300, 320, 562. Smith, Ex parte, 217. Smith v. Clapp, 160. Smith v. Honey, 263. Smith v. Kernochan, 650. Smith v. McKay, 495, 496. Smith v. Rives, 464, 473. Smith v. The Railroad Company, 746. XXIV TABLE OF CASES. Smith v. The State of Maryland, 57. Smith v. Trabue, 262. Smith v. United States, 280, 436. Smyth v. Strader. 426. Snow v. United States. 689. Society, &c. v. New Haven, 184. Stacey v. Thrasher, 442. Stanton v. Embrey, 281. State v. Cox, 402. State v. Gaines, 478. State v. Gleason, 478. State v. Lewis. 531. State Railroad Tax Cases, 650. St. Clair Co. v. Livingston, 262, 571. St. Luke's Hospital v. Barclay, 41, 184, 196. 249. St. Paul & C. R. R. Co. v. McLean, 520, 526. Steamboat Company v. Chase, 75, 83. Steamboat Orleans v. Phoebus, 49.635. Steamer St. Lawrence, The, 47, 66. Steamer Virginia, The, 311. Steamship Co. v. Tugman, 464, 472. Stein v. Bowman, 429. Stevens v. Gladding & Pound, 288. Stevens v. Richardson, 511, 519. Stevenson v. Williams, 468, 491. Stewart v. The Potomac Ferry Co., 75. Stimpson v. Putnam, 343. Stittimus v. United States, 403. Stockton v. Bishop, 288. Stockwell v. United States, 406. Stone v. Mississippi. 138. Stough v. Hatch, 508. Strader v. Baldwin, 586. Strauder v. West Virginia, 478, 479. Strawbridge v. Curtis. 147. Stringfellow v. Cain, 280. Stuart v. Laird, 211. Stupp, Joseph, In re, 382. Supen isors v. Kennicott, 540. Supervisors v. Rogers, 211, 213. Supervisors v. United States, 650. Suydam v. Smith, 465. Suydam v. Williamson, 260, 288, 290, 581. 646. 650. Swan v. M. C. & L. M. R. R. Co., 512. Swartwout, Ex parte. 322. Sweeney v. Coffin, 465. Swift v. Tyson, 650, 651, 654. Sykes v. United States, 364. Tapley v. Martin, 502. Tappan v. Beardsley. 428. Tarble's Case. 629. 630. Tatem, John W., Ex parte, 622. Taylor et al. v. Morton, 31, 288. Taylor v. Rockefeller, 496. Teal v. Felton, 604. Telegraph Company v. Eyser, 305, 564. Tennessee v. Davis, 21, 22, 42, 457, 482, 483, 492. 533. Terry v. The Imperial Fire Ins. Co., 464. Texas v. Chiles, 426. Texas v. Lewis et al., 530. Texas v. Tex. & Pacific R. R. Co., 474. Texas v. The Railroad Co., 475. Thatcher v. McWilliams, 473. Thatcher v. Powell, 650. Thelusson v. Smith, 113. Thomas v. Brockenbrough, 311. Thomas Jefferson, The, 49. Thomas v. The State, 478. Thompson v. Dean, 262, 571. Thompson v. Kendricks, 488. Thompson v. Lee, 158, 160, 650. Thompson v. The Railroad Companies, 521, 748, 754. Tiernan v. Booth, 300. Tillinghast, Ex parte, 390. Titus, H B., Ex parte, 622. Tobias Watkins, Ex parte, 324, Toland v. Sprrgue, 661. Torrey v. The Grant Locomotive Works. 514. Town of Paulet v. Clark, 176, 177, 487, 488. Town of Thompson v. Perrine, 157.651. Township of Pine Grove v. Talcott, 650, 654. Tracy v. Holcombe, 262, 571, 573. Traders' Bank of Chicago v. Tall- madge, 524. Transportation Co. v. Fitzhugh, 52. Troy v. Evans. 263. Tuedt v. Carson, 495, 497. Turner, Ex parte, 623. Turner v. Bank of North America, 164. Turner v. The American Baptist Missionary Union, 30. Turton v. The Union Pacific R. R. Co., 475. Twitchell v. The Commonwealth, 9, 410, 543, 553, 554, 568. Tyler v. Magwire, 540. Tyng v. Grinnell, 268. Udell v. Davidson. 583. Union Insurance Co. v. United States, 194, 218. Union Nat. Bank v. Chicago, 219. Union Pacific R. R. Co. v. McComb, 794- United States v. Aaron Burr, 636, 674, 681. TABLE OF CASES. XXV United States v. Adams, 283, 284. United States v. Alire, 365. United States v. Ambrose, 418. United States v. Amedy, 442. United States v. Ames, 273. United States v. Arredondo, 30. United States v. Avery, 270. United States v. Ayres, 374. United States v. Bailey, 226, 271. United States v. Bank of the Me- tropolis, 109, 192. United States v. Barney, 59, 680. United States v. Battiste, 403. United States v. Benner, 39. United States v. Bevans, 56, 57, 59, 61, 677. United States v. Blaisdell, 395. United States v. Block, 406. United States v. Booth, 276, 625, 629. United States v. Bozzo, 406. United States v. Briggs, 226, 271. United States v. Brilliants, The, 230. United States v. Bromley, 264. United States v. Buford, 436. United States v. Campbell, 608. United States v. Carr, 264. United States v. Case, 378. United States v. Clark, 104, 285, 371. United States v. Collins, 321, 409, 415, 416. United States v. Conner, 409. United States v. Coolidge, 26, 223, 675, 676. United States v. Coombs, 49. United States v. Corrie, 394. United States v. Council of Keokuk, 662. United States v. Cruikshank, 221, 408. United States v. Curry, 298, 310. United States v. Daniel, 270. United States v. Davis, 395, 411. United States v. Dawson, 225, 268, 404, 410. United States v. Distillery, 427. United States v. Doughty, 394. United States v. Douglas, 415. United States v. Ebert, 406. United States v. Farnham, 222. United States v. Ferreira, 7. United States v. Fifteen Hogsheads of Brandy, 230. United States v. Fisher, no. United States v. Garlinghouse, 704. United States v. Gaussen, 436. United States v. Gear, 192. United States v. Gilbert, 403. United States v. Gomez, 276, 312. United States v. Goodwin, 259. C United States v. Hall, 223. United States v. Hamilton, 323. United States v. Haskell, 409. United States v. Hawkins, 290. United States v. Herron, 1 1 1 . United States v. Hickey, 285. United States v. Hodge, 298, 437. United States v. Hoe, no. United States v. Hoffman, 328. United States v. Holliday, 222. United States v. Howland, 1.11, 737, 753- United States v. Huckabee, 291. United States v. Hudson & Goodwin, 26, 223, 342, 675, 676. United States v. Hughes, 427. United States v. Insurance Companies, 37o. United States v. Irving, 436. United States v. Isham, 406. United States v. Jailer, 622. United States v. Jones, 436. United States v. Lancaster, 59, 679. United States v. Lathrop, 608. United States v. La Vengeance, 218. United States v. Lawrence, 333. United States v. Lee, 104. United States v. Lippitt, 368. United States v. Loughery, 417. United States v. Mann, 192, 406. United States v. Maxon, 410. United States v. Maxwell, 405, 406, 421. United States v. McAvoy, 394, 395. United States v. McLemon, 104. United States v McLemore, 319. United States v. Moore, 257, 282. United States v. Morris, 403, 622. United States v. Morrison, 641, 646, 650. United States v. Mundell, 637. United States v. Murphy, 426. United States v. New Bedford Bridge, 7°3- United States v. Nourse, 229. United States v. O'Keefe, 368. United States v. Ortega, 38, 39, 249. United States v. Perez, 409. United States v. Peters, 106, 133, 252, 333- United States v. Primer, 315. United States v. Ravara, 42, 249, 671. United States v. Reed, 415, 426. United States v. Reeves, 417. United States v. Reid, 636, 681. United States v. Riley, 403. United States v. Rosenburgh, 270. United States v. Russell, 365. XXVI TABLE OF CASES. United States v. Sawyer, 230. United States v. Schooner Betsey and Charlotte, 218. United States v. Schooner Peggy,. 31. United States v. Schooner Sally, 218. United States v. Sheppard, 406. United States v. Shumann, 395. United States v. Smith, 284. United States v. Steamship Missouri, 73- United States v. Stiner, 217. United States v. Stowell, 395, 417. United States v. Tallman, 415. United States v. Taylor, 59, 222, 680. United States v. Thirty-seven Barrels, 229. United States v. Three Tons of Coal 427. United States v. Tuska, 415. United States v. Tyler, 271. United States v. Waller, 406. United States v. Ward, 197. United States v. Warren, 222. United States v. Weed, 274. United States v. Wilkinson, 437. United States v. Williams, 409, 415. United States v. Wilson, 59, 61, 415, 416. United States v. Wiltberger, 61, 678. United States v. Woonson, 229. United States v. Worms, 378. United States v. Worrall, 673, 675, 702. United States v. Yates, 299, 407, 558. United States v. Young, 284, 374. United States Bank v. Deveaux, 167. United States Bank v. Moss, 164. United States Bank v. Planters' Bank of Georgia, 133, 252. Urtetiqui v. D'Arbel, 442. Van Allen v. A. C. & P. R. R. Co., 492, 512. Van Antwerp v. Hulburd, 220. Van Brunt v. Corbin, 495. Vance v. Campbell, 642, 718. Vandervelpen, In re, 382. Vannevar v. Bryant, 468, 470. Van Norden v. Morton, 748. Van Orden, Ex parte, 216, 377. Van Rensselaer v. Kearny, 650. Vattier v. Hinde, 753. Venable v. Richards, 533. Venice, The, 197. Venus, The, 143. Verden v. Coleman, 30, 541. Victory, The, 584. Villabolos v. United States, 298, 558. Virginia, Ex parte, 200, 325, 479, 416. Virginia v. Rives, 331, 332, 334, 340, 341, 478, 479. 533- Virginia v. West Virginia, 131. Vose v.'Reed, 171. Waddy Thompson, Ex parte, 621. Waggener v. Cheek, 468. Wahl, In re, 382. Walker v. Dreville, 260. Walker v. Sauvinet, 412. Walker v. State Harbor Commission- ers, 646. Walker v. Taylor, 579, 581. Walker v. United States, 262, 462, 490. Wall v. County of Monroe, 160. Wall, Ex parte, 391. Walsh v. Rogers, 428. Walton v. United States, 436. Walworth v. Kneeland,s83. Ward v. Arredondo, 464, 465. Ward v. Chamberlain, 270, 641. Ward v. Maryland, 28. Ware v. Hylton, 30. Waring v. Clarke, 49, 81, 413. Warmouth, Ex parte, 220, 264, 329. Warner v. Fowler, 483. Warner v. Norton, 295. Warner v. Pennsylvania R. R. Co., 490, 510. Washington Bridge Co. v. Stewart, 288, 292. Washington, City of v. Dennison, 302. Watchful, The, 274. Watkins, Ex parte, 324. Watson v. Brooks, 461. Watson v. Jones, 320. Watson v. Sutherland, 750. Watson v. Tarpley, 650, 653. Watts v Territory of Washington, 278. Wayman v. Southard, 316, 640, 664. Webb v. Ridgely, 725. Webber v. Bishop, 515. Webster v. Cooper, 270, 646, 650. Webster v. Crothers,465. Webster v. Reid, 552, 570. Weeth v. New England Mortgage Co., 270. Wehlv.Wald, 518. Wells, Ex parte, 478. Wertheim v. Continental Railway & Trust Co., 520. West v. Aurora City, 465. West v. Barnes, 301. West v. Brashear, 292, 539. TABLE OF CASES. XXVll West v. Smith, 521. Western Metropolis, The, 275. Western Union Tel. Co. v. Rogers, 262. Weston v. City Council of Charles- ton, 261, 568, 571, 577, 578. Wheaton v. Peters, 26, 679, 706, 708, 709. Wheaton v. United States, 230. White v. Hart, 638. White v. Railroad Company, 160. White v. Turk, 226, 270. Whitehouse v. Continental Fire Ins. Co., 532. Whiting v. Bank of the United States, 57i, 572. Whitney, Ex parte, 334. Whyte v. Gibbes, 292. Wickliffe v. Owings, 147. Wiggins v. Gray, 269. Wiggins v. The People, 280. Wilcox v. Jackson, 106. Wilcox & Gibbs S. M. Co. v. Follett, 512. Wilder v. Union National Bank, 492. Wilkerson v. Utah, 280. Wilson v. Daniel, 297. Wilson v. Wall, 29. Williams v. Bank, 545. Williams v. Benedict, 662. Williams v. Bruffy, 577. Williams v. Norris, 548. Williams v. Oliver, 595. Williams' Case, 672. Williamson v. Berry, 650. Williamson v. Kincaid, 263. Wilson v. Barnum, 269. Wilson v. Daniel, 558. Wilson v. Sandford, 264. Winder v. Caldwell, 314. Winn v. Jackson, 573. Winston v. United States, 262. Wiscart v. Dauchy, 257, 259. Withenbury v. United States, 273. Withers v. Buckley, 405, 579. Wong Young Quy, In re, 622. Wood v. Dummer, 157. Wood v. Matthews, 483. Wood, Ex parte, 315. Woodman v. Freeman, 725. Woodworth v. Hall, 438. Woolridge v. McKenna, 513. Worcester v. State of Georgia, 30, 1 80, . 552. Work v. The State, 402. Wormser v. Dahlman, 532. Wright v. Bales, 426. Wright v. Ellison, 750. Yeaton v. Lenox, 311. Yeaton v. United States, 229. Yerger, Ex parte, 248, 324, 326. Young v. United States, 284, 373. Youngstown Bank v. Hughes, 490. Zellner, Ex parte, 283. Zenobia, The, 80. Zodiac, The, 79. THE FEDERAL 'JUDICIARY. PART I. FEDERAL JUDICIAL POWEE, CHAPTEE I. THE INVESTITURE OF THE POWER. 1. Powers of Government — The powers of government be- stowed by the Constitution of the United States are of three classes, being legislative, executive, and judicial. The first class of powers is vested in "a Congress of the United States," consisting of two legislative bodies, namely, " a Senate and House of Representatives." The former is " composed of two Senators from each State, chosen by the legislature thereof for six years." The latter is " composed of members chosen every second year by the people of the several States." The actual electors of these members in each State are those persons who have "the qualifications requisite for electors of the most numer- ous branch of the State legislature," and the number of such members apportioned to each State is fixed by the rule of popula- tion. The Senate represents the States as such ; and in this body the several States are entitled to an equal representation. The House of Representatives represents the people as individuals; and inasmuch as the States differ in population, they also differ in the number of members to which they are entitled in this House. 1 2 THE INVESTITURE OF THE POWER. The second class of powers is " vested in a President of the United States of America," who holds "his office during the term of four years." The provision for his election is as follows : "Each State shall appoint, in such manner as the legislature thereof may direct, a number of electors equal to the whole number of Senators and Representatives to which the State may be entitled in the Congress ; but no Senator or Representative, or person holding an office of trust or profit under the United States, shall be appointed an elector." These electors choose the Presi- dent by " a majority of the whole number of electors appointed." In the event of their failure to make a choice, the power of choosing the President devolves upon the House of Represen- tatives. The third class of powers is vested in the judicial department of the Government ; and this consists of " one Supreme Court " and " such inferior courts as the Congress may from time to time ordain and establish." The judges of these courts are appointed by the President, with the advice and consent of the Senate, and " hold their offices during good behavior," and, for their services, receive a compensation which cannot " be diminished during their continuance in office." A National Legislature, a National Executive, and a National Judiciary, therefore, form the three co-ordinate departments which, taken collectively, constitute the Government of the United States. Their respective functions are distinct and sepa- rate, and the agents for the performance of these functions are also distinct and separate. The members of Congress cannot at the same time be United States judges, and these judges, while holding their office, cannot be members of Congress. 2. The Grant of Judicial Power.— The Constitution, in article 3, section 1, expressly declares that " the judicial power of the United States shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish." It also provides, in article 1, section 8, that Congress shall have power " to constitute tribunals inferior to the Supreme Court," and power "to make all laws which shall be necessary and proper for carrying into execution " the powers expressly delegated to Congress, and " all other powers vested by this Constitution in the Government of the United States, or in THE NATURE OF JUDICIAL POWER. 3 any department or officer thereof." These grants of power to Congress enable it to pass the laws necessary to give effect to the judicial power bestowed by the Constitution. 3. The Nature of Judicial Power.— What is judicial power? Mr. Abbott answers this question by saying that the phrase, as •" used in relation to the distribution of the functions of govern- ments," means "the authority to determine the rights of person or property, by arbitrating between adversaries, in specific con- troversies, at the instance of a party thereto." (Abb. U. S. Pr., vol. 1, p. 22.) The generic part of this definition is given by the term " authority ; " yet this term, standing by itself, does not dis- tinguish judicial power from power that is legislative or execu- tive. The kind of authority that is judicial in its nature relates to and acts upon " rights of person or property," not created by this authority, but existing under law. This authority, in "specific controversies" between parties, determines these rights, as they thus exist, and does so "at the instance of a party thereto." These qualities distinguish judicial power from that which is simply legislative or executive. The agency by which judicial power is exercised is called a court, whether with or without a jury. Courts have no existence and no function independently of law. They are the creatures of law. Law precedes them and governs them. Their function is to expound and administer law in application to the cases and con- troversies which may come before them in due course of legal procedure. Chief Justice Marshall, in Osbom v. The United States Bank, 9 "Wheat. 738, 866, said : " Judicial power, as contradistinguished from the power of the laws, has no existence. Courts are the mere instruments of the law, and can will nothing. "When they are said to exercise a discretion, it is a mere legal discretion — a discretion to be exercised in discerning the course prescribed by law; and when that is discovered, it is the duty of the court to follow it. Judicial power is never exercised for the purpose of giving effect to the will of the judge; always for the purpose of giving effect to the will of the legislature, or, in other words, to the will of the law." Mr. G-eorge Ticknor Curtis, in his chapter on "What con- 4 THE INVESTITURE OF THE PQWER. stitutes judicial power," says : " It is apparent that, in order to make a case for judicial action, there must be parties to come into court, who can be reached by its process and be bound by its power — parties whose rights admit of ultimate decision by a tribunal to which they are bound to submit ; and also that the question to be acted upon should be capable of final determination in the judicial department of the government, without the revision or control of either the executive or the legislature." (Curtis's Comm. p. 96.) It is a general principle of law that the judgments and decrees of courts in the exercise of judicial power are not reviewable or' reversible by legislative or executive authority. If reviewed at all, the work must be done by a higher court. The reprieving and pardoning power, as granted to executive authority, is not designed to vacate or contradict this principle. It is simply a provision of law to extend the clemency of government to con- victed criminals in extraordinary cases. It by no means makes the executive authority a tribunal of general review and correction. The framers of the Constitution evidently intended that the Judicial Department, provided for in the instrument, should be clothed with a full and complete competency to exercise judicial power, in all its forms and with all its necessary incidents, on all the subjects placed within its scope. The phrase, as used in the Constitution, must, hence, be taken in its most comprehensive sense, including all the exercises of this power within the limits defined, whether in civil or criminal cases, and whether in the form of original or appellate jurisdiction. The phrase embraces all the incidental powers, in the conduct of trials and the issuing of writs and orders, which are necessary to make the power prac- tically effective. Congress, in the Judiciary Act of 1789 (1 U. S. Stat, at Large, 73), which provided for the organization of the courts of the United States, declared that these courts "shall have power to issue writs of scire facias, habeas corpus, and all other writs not specially provided for by statute, which may be necessary for the exercise of their respective jurisdictions and agreeable to the principles and usages of law." The power to issue writs, to grant orders, to hear and determine motions, to judge of their own jurisdiction, to supervise and control the administrative officers of courts, to preserve decorum in the process of trials, to punish for LIMITATION OF JUDICIAL POWER. 5 contempts of court, to enforce judgments and decrees, to ad- minister oaths, to examine witnesses, &c, belongs, of necessity, to the exercise of judicial power. Such powers were included in the general grant of judicial power. The design was to provide for the establishment of courts fully qualified to expound and administer law, by hearing litigated cases and rendering authori- tative judgments on all subjects and between all parties coming within the sphere of their jurisdiction. 4. Limitation of Judicial Power. — The Constitution does not make its grant of judicial power in unlimited terms. "While it says that "the judicial power of the United States shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish," it also spec- ifies the " cases " and " controversies " to which this power shall extend, and beyond which, by obvious implication, it shall not ex- tend. The power is to be vested in and exercised by courts, not by Congress, and not by the President ; and the enumeration of the " cases " and " controversies " to which it is applicable is, of itself, a limitation. It defines the power with reference to its .sphere of action ; and Congress has no authority to extend it by law beyond this sphere. Chief Justice Marshall, referring, in Osborn v. The United States Bank, 9 Wheat. 738, 819, to the second section of the third article of the Constitution, which declares that " the judicial power shall extend to all cases in law and equity, arising under this Con- stitution, the laws of the United States, and treaties made or which shall be made under their authority," said : " This clause enables the judicial department to receive jurisdiction to the full extent of the Constitution, laws and treaties of the United States, when any question respecting them shall assume such a form that the judicial power is capable of acting on it. That power is capa- ble of acting only when the subject is submitted to it by a party who asserts his rights in the form prescribed by law. It then be- comes a case, and the Constitution declares that the judicial power shall extend to all cases arising under the Constitution, laws and treaties of the United States." There is then a party before the court, with his declaration or complaint in due form of law, invoking its action and asking for an appropriate remedy under the Constitution, or a law, or a 6 THE INVESTITURE OF THE POWER. treaty of the United States. Courts never decide anything in the absence of cases or controversies brought before them in the man- ner prescribed by law. Though open for litigants, they wait for the litigants to appear before judicially acting ; and whether they can then afford the relief sought depends on the merits of the case and the extent of their jurisdiction. It should be borne in mind, also, that not all cases and contro- versies which may, have their basis in the Constitution, or a law, or treaty of the United States, are necessarily judicial in their character. There are many questions of a legal nature, in the set- tlement of which facts are to be ascertained, and in respect to- which judgment is to be exercised upon the provisions of law ap- plicable to them, but which do not come within the scope of the judicial power provided for in the third article of the Constitu- tion. They do not belong to the " cases " and " controversies '* specified in this article. They are rather political than judicial in their nature, and hence it is not the province of courts, as such, to- determine them. Some of them are to be determined by the Ex- ecutive Department, and others by Congress. Congress has, in some instances, assigned to Federal courts- duties which, though of a quasi-judicial nature, do not come within the judicial power granted in the Constitution. The Act of March 23d, 1792 (1 U. S. Stat, at Large, 243), made it the duty of the judges of the Circuit Courts, to examine into the claims of persons asking for pensions, and to report them to the Secretary of War. The judges of the Circuit Court for the district of New York, declared that the function was not judicial ; yet they con- sented to execute the act " in the capacity of commissioners," and not as judges. The judges of the Circuit Court for the district of Pennsylvania were unanimously of the opinion that they could not proceed under the act, "because the business directed by thi& act is not of a judicial nature," and because their judgments- " might, under the same act, have been revised and controlled by the legislature, and by an officer in the Executive department." The Circuit Court for the district of North Carolina assigned sub- stantially similar reasons why the Court could not execute " that part of the act which requires it to examine and report an opinion on the unfortunate cases of officers and soldiers disabled in the service of the United States." {Hayburrts Case, 2 Dall. 409, note.) REGULATIONS OF JUDICIAL POWER. 7 Congress, by the Act of March 3d, 1849 (9 U. S. Stat, at Large, 788), taken in connection with previous acts referred to in this act, directed the judge of the District Court for the northern district of Florida, to adjudicate certain claims for injuries suffered by the inhabitants of Florida, by the operations of the American army in Florida, which claims were to be paid if the Secretary of the Treasury should, on a report of the evidence, deem payment equitable. The Supreme Court of the United States, in The United States v. Ferreira, 13 How. 40, held that the authority here conferred was not " authority to exercise any of the judicial power of the United States, under the Constitution," and that the judge having acted simply as a commissioner, no appeal would lie from his award to the Supreme Court. "His decision," said Chief Justice Taney, "is not the judgment of a court of justice," but simply " the award of a commissioner." The function performed was no exercise of the judicial power granted in the Constitution. The subject-matter arose under a law of the United States, yet it was not judicial in its nature. The judicial power to be exercised by the Federal courts, as courts, is limited to such " cases " and " controversies " as admit of final settlement by these courts, when brought before them in ac- cordance with the provisions of law. The mere circumstance that questions of fact and of law are to be considered and determined, does not necessarily make the case a judicial one. The executive officers of the Government are often called upon to pass judgments upon law and facts, in matters that come within the sphere of their duties ; and yet, in so doing, they are not acting as courts of justice, or exercising any part of the judicial power referred to in the Constitution. If Congress appropriates money for the pay- ment of specified claims, upon certain conditions, and makes the President the judge of the presence of these conditions, he does not, in acting under such a law, perform a judicial function. A case may grow out of his action which would be judicial in its nature, and which a court of justice would be competent to settle ; but the action itself is not such. 5. Regulations of Judicial Power.— The Constitution, in its third article, and in the fourth, fifth, sixth, seventh, eighth and o THE INVESTITURE OF THE POWER. eleventh amendments, qualifies its grant of judicial power by the following regulations : (1.) That " the trial of all crimes, except in cases of impeach- ment, shall be by jury ; and such trial shall be held in the State where the said crimes shall have been committed ; but when not committed in any State, the trial shall be at such place or places as the Congress may by law have directed." (2.) That " treason against the United States shall consist only in levying war against them, or in adhering to their enemies, giv- ing them aid and comfort," and that " no person shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court." (3.) That " the right of the people to be secure in their per- sons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated, and no warrant shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." (4.) That "no person shall be held to answer for a capital or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia when in actual service, in time of war or public danger." (5.) That no person shall " be subject, for the same offense, to be twice put in jeopardy of life or limb," or " be compelled in any criminal case to be a witness against himself," or " be de- prived of life, liberty or property without due process of law," or have his property "taken for public use without just compen- sation." (6.) That "in all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law," and also the right "to be informed of the nature and cause of the ac- cusation, to be confronted with the witnesses against him, to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense." (7.) That " in suits at common law, where the value in contro- versy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury shall be otherwise re-ex- THE SOURCE OF JUDICIAL POWER. 9 amined in any court of the United States, than according to the rules of the common law." (8.). That " excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." (9.) 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 foreign State." These qualifications and regulations relate exclusively to the judicial power granted in the Constitution, and vested in the courts of the United States, and, consequently, have no reference whatever to judicial power possessed and exercised under State authority. The Supreme Court of the United States has so con- strued them. {Barron v. The Mayor of Baltimore, 7 Pet. 243 ; Livingston's Lessee v. Moore, 7 Pet. 469 ; Fox v. The State of Ohio, 5 How. 410 ; Pervear v. The Commonwealth, 5 Wall. 475 ; Twitchell v. The Commonwealth, 7 Wall. 321 ; and Edwards v. Elliott, 21 Wall. 535.) The jury system is annexed to the courts of the United States in the trial of all crimes, except in cases of impeachment ; and the right of trial by jury is preserved in all suits at common law where the value in controversy exceeds twenty dollars. Jurors in these cases must be summoned to render verdicts upon questions of fact ; and, except in certain specified cases, no person can be held to answer for a capital or otherwise infamous crime unless on presentment or indictment of a grand jury. The Constitution, especially in the amendments thereto, adopts some of the leading principles of the common law relating to the exercise of judicial power. Courts cannot disregard these principles without violat- ing the Constitution. They are fundamental rules, either limit- ing jurisdiction or regulating judicial procedure. 6. The Source of Judicial Power. — The judicial power, referred to in the Constitution, is exclusively that of the " United States," in distinction from that of the several States. The title "The United States," or "The United States of America," as occurring in the Constitution, was not invented by the framers of this instrument. It was already in use in application to the union or confederacy of the thirteen original States established by the Articles of Confederation. These Articles were adopted 10 THE INVESTITURE OF THE POWER. by the legislatures of these States. The "league of friendship" which they created was, however, after a short trial, found insufficient ; and this led to the efforts " to form a more perfect Union" under a Constitution, which should be accepted and operate as " the supreme law of the land." The theory of those who framed and of the people in adopt- ing the Constitution, is well expressed in its preamble, which reads thus : " We, the people of the United States, in order to form a more perfect Union, establish justice, insure domestic tranquillity, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America." This may be regarded as the enact- ing clause of the Constitution; and, as such, it contains five particulars. The words, " We, the people of the United States," present the enacting authority. The people of the several States, and, taken in the aggregate, of the United States, here assume their own inherent and original sovereignty to establish a Constitution for their own government. The purpose of this Constitution, as decreed by the people, is stated in the six recitals which specify the objects to be attained by it. The enacting act is indicated by the words " do ordain and establish." This is not the language of a compact or mere agree- ment between sovereign States, but the language of authority by which " the people of the United States " declared their will. The thing enacted is "this Constitution," which means the seven articles drafted by the Federal Convention, and subse- quently submitted to the people for their ratification or rejection. The term " Constitution " is the strongest term in the English language to designate the fundamental law of a government. The territorial scope of the Constitution is stated by the words "for the United States of America." It was to operate as a Constitution over all the territory embraced in this designation. The third article of the Constitution relates to the Judicial Department of the G-overnment, to be organized under it ; and contemplated in the light of the preamble, it may be read as follows : " We, the people of the United States, do ordain that the judicial power granted in this article, and to be exercised in THE SOURCE OF JUDICIAL POWER. 11 the name and by the authority of the people of the United States, shall extend to the cases and controversies herein specified, and shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish." The people who ordained and established the Constitution, or- dained and established the judicial power granted and defined therein. It is properly called " the judicial power of the United States," since it not only came from the people of the United States, but, by their authority, operates among and upon them. It is their judicial power, being lodged by them in the proper agents for its exercise. The Constitution is the expression of their will on this subject, as it is on every other subject to which it refers. Mr. Justice Story, in Martin v. Hunter's Lessee, 1 Wheat. 304, 324, said : " The Constitution of the United States was or- dained and established, not by the States in their sovereign capa- cities, but emphatically, as the preamble of the Constitution declares, by the people of the United States." Chief Justice Marshall, in McCulloch v. Maryland, 4 Wheat. 316, 405, said : "The Government of the Union, then (whatever may be the influ- ence of this fact on the case), is emphatically and truly a govern- ment of the people. In form and in substance it emanates from them. Its powers are granted by them, and are to be exercised directly on them, and for their benefit." Neither the States, as such, nor the State governments, as such, adopted the Constitution. The adoption was the act of the people, through conventions elected by them, to be the organs of expressing their will; and this is a fundamental distinction be- tween the Constitution and the Articles of Confederation that were superseded by it. These Articles were simply a league or alliance between sovereign States, established by the authority of their respective legislatures. The Constitution, however, goes directly back to the people themselves for its source and author- ity. The Supreme Court, whenever it has had occasion to refer to the subject, has uniformly based its authority, not upon State legislatures, but upon the people of the United States, regarded as a political unit, and enacting for themselves a fundamental law. 12 THE INVESTITURE OF THE POWEK. 7. The Depositary of the Power.— The depositary of the judi- cial power granted in the third article of the Constitution is; " one Supreme Court," and " such inferior courts as the Congress may from time to time ordain and establish." The same Constitution authorizes the President, with the advice and consent of the Sen- ate, to appoint " the judges of the Supreme Court," and of any inferior courts which may be established by Congress. The theory of the Constitution is that there must be one and but one Supreme Court. It expressly ordains the existence of such a court. Congress may provide for its organization, fix the number of its judges, and make regulations for its procedure; but the court itself must exist as the Supreme Court of the United States. The supremacy of this court makes it the final and conclusive authority in all cases and controversies within its jurisdiction, that come before it for settlement. There is no higher court to review its decision. The Constitution, moreover, directly confers and defines the jurisdiction of the Supreme Court as it does not that of any other court. Having enumerated the cases and controversies to which the judicial power of the United States shall extend, it proceeds to say : " In all cases affecting ambassadors, other public ministers and consuls, and those in which a State shall be party, the Su- preme Court shall have original jurisdiction. In all the other cases before mentioned, 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." The juris- diction of this court, in one or the other form, is thus made potentially as broad as the judicial power of the United States. As to other courts, inferior to the Supreme Court, in which a portion of the judicial power of the United States is directed to be vested, the whole question of their organization, number, relation to each other, and the apportionment of judicial power among them, is left to the legislative discretion of Congress. Whether, in a particular court, the jurisdiction shall be original or appellate, or original in some cases and appellate in others, and to what cases and controversies it shall extend in particular courts, is for Congress to determine. These courts are exclusively the creatures of law, and can exercise judicial power only as it is con- ferred by law. The Constitution specifies in general terms the subjects upon which, and the parties between whom, the power THE DUTY OF VESTING THE POWER. 13 may act, and limits the jurisdiction to these subjects and parties, and then leaves the distribution of the power in the hands of Congress, with the exception of its provisions in regard to the Supreme Court. Congress, however, has no authority for conferring any por- tion of this power upon State courts. It must be conferred by Congress upon courts organized under its authority, if at all, which is not true of State courts. This doctrine was stated in Martin v. Hunter's Lessee, 1 Wheat. 304, and in Houston v. Moore, 5 Wheat. 1. If State courts exercise jurisdiction in any of the cases or controversies to which the judicial power of the United States extends, it is not in virtue of any direct authority conferred upon them by Congress. Congress may omit to ex- clude them from this jurisdiction, and this leaves the question whether they can exercise any portion of it or not, to be deter- mined by State authority. 8. The Duty of Testing the Power. — The Constitution says that "the judicial power of the United States shall he vested" &c. The words, " shall be vested," were in Martin v. Hunter's Lessee, 1 Wheat. 304, regarded as mandatory, making it the duty of Congress to vest in the courts of the United States, all the judicial power granted in the Constitution, and, consequently, to provide for the organization of the Supreme Court, and ordain and establish other courts, and clothe them with such jurisdiction that, as the result, all the judicial power specified in the Constitu- tion will be actually vested in the courts of the United States. Mr. Justice Story, in stating the opinion of the court in this case, said : " If, then, it is a duty of Congress to vest the judicial power of the United States, it is a duty to vest the whole judicial power. The language, if imperative as to one part, is imperative as to all. If it were otherwise, this anomaly would exist, that Congress might successively refuse to vest the jurisdiction in any one class of cases enumerated in the Constitution, and thereby de- feat the jurisdiction as to all ; for the Constitution has not singled out any class on which Congress are bound to act in preference to others." Mr. Justice Story hence concludes that "the whole judicial power of the United States should be, at all times, vested either in an original or appellate form, in some courts created 14 THE INVESTITURE OF THE. POWER. under its authority." Chancellor Kent adopts this view. (Kent's Comm., Lect. 14.) This may be a duty imposed by the Constitution upon Con- gress ; yet there is no way, through any other department of the Government, to enforce its performance. The performance of the duty depends entirely upon the will of Congress, and if it should choose to leave a part of the judicial power of the United States in the dormant state, by not vesting it in courts, there would be no power to compel it to do otherwise. As a matter of fact, the question has been treated by Congress as if the authority to create courts and confer jurisdiction upon them, within the prescribed limits, were to be exercised " from time to time " in its legislative discretion. It is, of course, conceivable that Congress might, by simple omission to act, defeat the purpose of the Constitution. This, however, is a peril, so far as it is one at all, against which it is not possible to provide. The Constitution assumes that Congress will, in the exercise of its legislative power, pass the necessary laws for carrying into effect the judicial power of the United States, and that the President and the Senate will so exercise the appointing power as to furnish the requisite judges for the same purpose, just as it assumes that the States will appoint electors to choose the President and Yice-President of the United States. 9. Territorial Courts — The judicial power, conferred in the third article of the Constitution upon the General Government, has no application to courts organized by Congress in the Terri- tories of the United States. Chief Justice Marshall, referring to these courts in The American Insurance Company v. Canter, 1 Pet. 511, 546, said : "These courts, then, are not constitutional courts, in which the judicial power conferred by the Constitution on the General Government can be deposited. They are incapable of receiving it. They are legislative courts, created in virtue of the general right of sovereignty which exists in the Government, or in virtue of that clause which enables Congress to make all needful rules and regulations respecting the territory belonging to the United States. The jurisdiction with which they are invested is not a part of that judicial power which is defined in the third article of the Constitution, but is conferred by Congress in the execution of those general powers which that body possesses over the Terri- tories of the United States. * * * In legislating for them TERRITORIAL COURTS. 15 Congress exercises the combined powers of the General and of a State government." Mr. Justice Nelson, referring, in Benner v. Porter, 9 How. 235, to the territorial courts of Florida, said: "The territorial courts, therefore, were not courts in which the judicial power conferred by the Constitution on the Federal Government could be deposited. They were incapable of receiving it. (1 Pet. 546.) Neither were they organized by Congress under the Constitution, as they were invested with powers and jurisdiction which that body were incapable of conferring upon a court within the limits of the State." Chief Justice Chase, in Clinton v. Englebrecht, 13 "Wall. 434, said : " There is no Supreme Court of the United States, nor is there any District Court of the United States, in the sense of the Constitution, in the Territory of Utah. The judges are not ap- pointed for the same terms, nor is the jurisdiction which they exercise part of the judicial power conferred by the Constitution on the General Government. The courts are legislative courts of the Territory, created in virtue of the clause which authorizes Congress to make all needful rules and regulations respecting the Territories belonging to the United States." This settles the question that territorial courts, though estab- lished by the authority of Congress, are not the courts contem- plated in the third article of the Constitution, and not recipients of the power there conferred. The provisions of this article have no relation to them, and furnish no authority for their existence. Whether their judges shall be appointed by the President, or elected, by the people, and whether they shall hold office during good behavior, or for a limited term, are questions for Congress to determine by law. The same doctrine is equally applicable to courts organized in the District of Columbia, over which Congress has the power of " exclusive legislation in all cases whatsoever ; " to military courts established by Congress in the exercise of its power with refer- ence to the army and navy of the United States, and the militia when called into the public service ; and to consular courts which by treaties may be established in foreign countries. The author- ity for the establishment of these courts may, of course, be traced to the Constitution, but not to the provisions contained in its third article. They form no part of the judicial system there 16 THE INVESTITURE OF THE POWER. contemplated, but are the result of other powers granted in the Constitution. The single purpose of this chapter has been to examine and explain that clause of the Constitution which declares that " the judicial power of the United States shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish." This clause either vests the power or authorizes Congress to do so. PART II. THE EXTENT OF FEDERAL JUDICIAL POWER. CHAPTER I. CASES IN LAW AND EQUITY. 1. Enumeration of Cases and Controversies. — The Consti- tution having, in article 3, section 1, provided for the investiture of the judicial power of the United States in one Supreme Court, and in such inferior courts as Congress may from time to time ordain and establish, proceeds, in section 2 of the same article, to state as follows the several cases and controversies to which this power shall extend : (1.) " All cases in law and equity, arising under the Constitu- tion, the laws of the United States, and treaties made or which shall be made under their authority." (2.) "All cases affecting ambassadors, other public ministers, and consuls." (3.) " All cases of admiralty and maritime jurisdiction." (4.) " Controversies to which the United States shall be a party." (5.) " Controversies between two or more States." (6.) Controversies " between a State and citizens of another State." (7.) Controversies " between citizens of different States." (8.) Controversies "between citizens of the same State, claim- ing lands under grants of different States." (9.) Controversies "between a State or the citizens thereof and foreign States, citizens or subjects." This enumeration fixes the limit within which the power must act, and beyond which it cannot extend. The cases and contro- versies specified, and these only, come within its scope. The Constitution, in granting the power, at the same time establishes 2 18 CASES m LAW AND EQUITY. its limitation. It is a settled rule, in interpreting this instrument, that no power can be exercised by the Government of the United States, except that which has been granted by the Constitution, either in express terms, or by necessary implication. The tenth amendment declares that " the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the peo- ple." The General Government is supreme in its constitutional sphere, but beyond this sphere it has no power whatever, and can exercise none except by usurpation. This is alike true of all its departments, whether legislative, executive, or judicial. 2. Classification of Cases and Controversies. — Chief Jus- tice Marshall, in Cohens v. Virginia, 6 Wheat. 264, 378, said that " the second section of the third article of the Constitution defines the extent of the judicial power of the United States," and that " jurisdiction is given to the courts of the Union in two classes of cases." The first of these classes comprehends all the enumer- ated cases in which the " jurisdiction depends on the character of the cause, whoever may be the parties." This, without any ex- ception, and without "regard to the condition of the party," in- cludes " all cases in law and equity arising under this Constitution, the laws of the United States, and treaties made or which shall be made under their authority." The other class embraces those cases in which " jurisdiction depends entirely on the character of the parties," of which the Chief Justice cites " controversies be- tween two or more States, between a State and citizens of another State, and between a State and foreign States, citizens or sub- jects," as examples. Mr. George Ticknor Curtis arranges these cases and contro- versies into three classes. The first class, founded on the subject- matter, without reference to the character of the parties, includes all cases arising under the Constitution, laws, and treaties of the United States, and all cases of admiralty and maritime jurisdic- tion. The second class, founded on the character and relation of the parties, without reference to the subject-matter of the contro- versy, includes controversies to which the United States may be a party, and those between two or more States, or between a State and citizens of another State, or between citizens of different States, or between a State or the citizens thereof and foreign CLASSIFICATION OF CASES AND CONTROVERSIES. 19 States, citizens or subjects. The third class, in which the jurisdic- tion seems to have reference both to the nature of the controversy and the character of the parties, embraces all cases affecting ambassadors, other public ministers and consuls, and controversies between citizens of the same State, claiming lands under grants of different States. (Curtis's Oomm. pp. 3, 4.) Mr. Pomeroy's arrangement of these cases and controversies is into two general classes, which he respectively styles " the neces- sary and supplementary or expedient." The first class, being based upon the intrinsic nationality and supremacy of the General Gov- ernment, without which that nationality and supremacy would be but a name, comprehends all cases in law and equity arising under the Constitution, laws, and treaties of the United States, all cases affecting ambassadors, other public ministers and consuls, all cases of admiralty and maritime jurisdiction, controversies to which the United States shall be a party, and controversies between two or more States. The other class embraces controversies between a State and citizens of another State, or between citizens of differ- ent States, or between citizens of the same State, claiming lands under grants of different States, or between a State or the citizens thereof and foreign States, citizens or subjects. (Pomeroy's Const. Law, 3d ed., pp. 506, 515.) The framers of the Constitution, with an exceedingly saga- cious foresight, selected the cases, as to the subject-matter in- volved therein, whoever might be the parties, and also the cases and controversies, as to the parties thereto, whatever might be the subject-matter in dispute, which, in their judgment, should come within the cognizance of the judicial power of the United States, not only as expressing and enforcing the supremacy of the Gen- eral Government, but also as the means of justice and internal har- mony. The problem before them was to construct a judicial system, not for an absolutely consolidated nation, in which all ju- dicial power should proceed from the same authority, but for a nation embracing in its bosom a number of separate States, inde- pendent and sovereign, except as limited by the Constitution. The two objects to be gained were, to assert the national supremacy on the one hand, and to provide for internal harmony on the other. The powers of the Federal judiciary were planned with reference to both objects ; and the experience of nearly a century shows that the details of the plan were wisely conceived. 20 CASES JS LAW AND EQUITY. The first class of cases in the enumeration embraces " all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made or which shall be made under their authority. To the consideration of this class the remainder of this chapter will be devoted. 3. The Meaning of a Case.— The Supreme Court of the United States has had occasion to expound the word " cases," as it occurs in this clause of the Constitution. The following state- ment presents the result of this exposition : (1.) Chief Justice Marshall, in Osborn v. The United States Bank, 9 Wheat. 738, 819, said : " This clause enables the judicial department to receive jurisdiction to the full extent of the Con- stitution, laws, and treaties of the United States, when any ques- tion respecting them shall assume such a form that the judicial power is capable of acting on it. That power is capable of acting only when the subject is submitted to it by a party who asserts his rights in the form prescribed by law. It then becomes a case." Mr. Justice Story, referring to this language, says : " In other words, a case is a suit in law or equity, instituted according to the regular course of judicial proceedings ; and when it involves any question arising under the Constitution, laws, or treaties of the United States, it is within the judicial power confided to the Union." (Story's Const, sec. 1646.) This supposes a legal pro- ceeding, with a party before the court seeking to prosecute and enforce an alleged right on some one of the grounds specified in the clause. (2.) Chief Justice Marshall, in Cohens v. Virginia, 6 Wheat. 264, 379, referred to the theory that " a case, arising under the Constitution or a law, must be one in which a party comes into coiirt to demand something conferred on him by the Constitution or a law," and then proceeded to say : " We think the construction too narrow. A case in law or equity consists of the right of one party, as well as of the other, and may be truly said to arise under the Constitution or a law of the TJnited States, whenever its correct decision depends on the construction of either." The obvious meaning is, not that a case exists when there is no proceed- ing pending before the court, but that, when there is a proceed- ing pending, it is sufficient to constitute a case in the sense of the THE MEANING OF A CASE. 21 Constitution, if a correct decision in the matter depends upon the construction of the Constitution, or a law, or treaty of the United States. This fact makes it a case. The right of either party, and of one as well as the other, in these circumstances, constitutes a case to which the judicial power of the United States is applicable. (3.) Mr. Justice Strong, in Tennessee v. Davis, 10 Otto, 257. 264, said : " 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 de- fense of the party, in whole or in part, by whom they are asserted." They may exist in any one of these forms ; and when they thus exist, Federal jurisdiction attaches to them. {The Rail- road Co. v. Mississippi, 12 Otto, 135.) (4.) It is sufficient to constitute a case for cognizance by a Federal court if it involves but a single ingredient or question dependent on tbe Constitution, or a law, or treaty of the United States, although it may, at the same time, involve other questions that depend on the general principles of law. Chief Justice Marshall, in Osborn v. The United States Bank, 9 "Wheat. 738, 823, considered this point, and came to the follow- ing conclusion : " We think, then, that when a question to which the judicial power of the Union is extended by the Constitution, forms an ingredient of the original cause, it is in the power of Congress to give the Circuit Courts jurisdiction of that cause, although other questions of fact or law may be involved in it." Mr. Justice Swayne, in The Mayor v. Cooper, 6 Wall. 247, 252, said : " Nor is it any objection that questions are involved which are not all of a Federal character. If one of the latter exists, if there be a single such ingredient in the mass, it is suffi- cient. That element is decisive upon the subject of jurisdiction." That element makes a case in the sense of the Constitution. (5.) So, also, a case may arise by implication of law, as well as by express enactment. Chief Justice Marshall, in Osborn v. The United States Bank, 9 "Wheat. 738, 865, said: "It is not unusual for a legislative act to involve consequences which are not ex- pressed. An officer, for example, is ordered to arrest an indi- vidual. It is not necessary, nor is it usual, to say that he shall not be punished for obeying this order. His security is implied in the order itself. It is no unusual thing for an act of Congress 22 CASES IN LAW AND EQUITY. to imply, without expressing, this very exemption from State control, which is said to be so objectionable in this instance. The collectors of the revenue, the carriers of the mail, the mint establishment, and all those institutions which are public in their nature, are examples in point. It has never been doubted that all who are employed in them are protected while in the line of duty ; and yet this protection is not expressed in any act of Con- gress. It is incidental to, and implied in, the several acts by which these institutions are created, and is secured to the indi- viduals employed in them by the judicial power alone ; that is, the judicial power is the instrument employed by the Government in administerting this security." If, then, a Federal officer should, in a State court, be called in question for acts done under the laws of the United States, and should invoke the protection of a Federal court authorized by law to act in the premises, a case would be presented to that court under the laws of the United States. These laws, by necessary implication, intend to protect Federal officers in discharging the duties which they assign to them, and do not intend to permit State courts to interfere with them in or for the performance of such duties ; and it is the province of duly authorized Federal courts to administer the protection, when appealed to for this purpose. This is one of the leading points decided in Tennessee v. Davis, 10 Otto, 257. 4. Cases in Law and Equity. — The clause under considera- tion divides the cases, arising in the manner specified, into tw» classes, one of which is spoken of as cases in " law," and the other as cases in " equity." The judicial power of the United States- extends alike to both classes. The distinction between these classes was well known and well established when the Constitution was adopted. The Con- stitution did not create the distinction or change it. It rather recognized it as an existing fact, not only in the courts of England, but also in the State courts of this country, and established it in the jurisprudence of the United States. England had her law courts, in which legal rights were ascertained and determined by proceedings according to the common law, including trial by jury. She also had her High Court of Chancery, in which equitable rights were considered, and equitable remedies administered,, CASES IN LAW AND EQUITY. 23 without trial by jury, and according to methods which had become the standard practice of that court. Both of these systems of jurisprudence had been transferred to this country, and both were familiar to the framers of the Constitution. Their design was to incorporate both into the judicial system of the United States, leaving Congress to deter- mine the question whether both should be administered by the same courts, or whether there should be two classes of courts — one to determine cases " in law," and the other to decide cases " in equity." Mr. Justice Story, in Parsons v. Bedford, 3 Pet. 433, M7, referred to the Seventh Amendment to the Constitution, in which the phrase " common law " occurs, and then proceeded to say : " This phrase ' common law,' found in this clause, is used in con- tradistinction to equity and admiralty and maritime jurisprudence. * * * By 'common law' they meant what the Constitution denominated in the third article ' law,' not merely suits which the common law recognized among its old and settled proceedings, but suits in which legal rights were to be ascertained and deter- mined in contradistinction to those where equitable rights alone were recognized, and equitable remedies were administered." The term " law " and the phrase " common law," as thus used, then mean precisely the same thing, and both have reference to legal remedies in distinction from such remedies as are applicable to cases of equity. So also the term " equity," used by way of distinction from "law" or "common law," refers to equitable cases and remedies, as distinguished from those that are simply legal. Congress, in the Judiciary Act of 1789 (1 TJ. S. Stat, at Large, 73), though not creating two sets of courts, one for law and the other for equity, nevertheless, recognized the distinction between the two classes of cases. The eleventh section of the act gave to the Circuit Courts jurisdiction in " suits of a civil nature at com- mon law or in equity ; " and the twelfth section provided that " the trial of issues of fact in the Circuit Courts shall, in all suits, except those of equity and of admiralty and maritime jurisdiction, be by jury." So also the sixteenth section declared " that suits in equity shall not be sustained in either of the courts of the United States, in any case where plain, adequate and complete remedy may be had at law." The thirty-fourth section also declared 24 CASES IN LAW AND "EQUITY. " that the laws of the several States, except where the Constitu- tion, treaties, or statutes of the United States shall otherwise require or provide, shall be regarded as rules of decision in trials at common law in the courts of the United States, in cases where they apply." This legislation carries upon its face the broad stamp of a dis- tinction between the two classes of cases. Though jurisdiction of both was vested in the same courts, neither class was confounded with the other. The Act of May 8th, 1792 (1 U. S. Stat, at Large, 275), pro- vided, in its second section, that the forms of writs, executions and other process, except their style, and the forms and modes of proceeding in suits, in those of common law, should be the same as established by the Judiciary Act of 1789, and that in suits of equity and those of admiralty and maritime jurisdiction, they should be according to the principles, rules, and usages which belong to courts of equity and to courts of admiralty respectively, as contradistinguished from courts of common law, except as otherwise provided by law. Here equity and law or the common law are placed in contrast with each other. In Robinson v. Campbell, 3 Wheat. 212, 223, Mr. Justice Todd, having referred to the provisions in the Judiciary Act of 1789 and of the Act of May 8th, 1792, and also to the fact that some of the States do not recognize any distinction between law and equity, said that "the remedies in the courts of the United States are to be at common law or in equity, not according to the practice of State courts, but according to the principles of com- mon law and equity, as distinguished and defined in that country from which we derive our knowledge of these principles." In Bennett v. Butterworth, 11 How. 669, 675, Chief Justice Taney said : " The Constitution, in creating .and defining the judicial power of the General Government, establishes this distinc- tion between law and equity ; and a party who claims a legal title must proceed at law, and may undoubtedly proceed according to the forms of practice in such cases in the State court. But if the claim is an equitable one, he must proceed according to the rules which this court has prescribed, under the authority of the Act of August 23d 1842, regulating proceedings in equity, in the courts of the United States." (5 U. S. Stat, at Large, 516.) In Fenn v. Holme, 21 How. 481, 488, Mr. Justice Daniel CRIMINAL CASES. 25 laid down the principle that the practice in State courts could " in no wise affect the jurisdiction of the courts of the United States, who, both by the Constitution and by the acts of Congress, are required to observe the distinction between legal and equitable rights, and to enforce the rules and principles of decision appro- priate to each." The two systems of jurisprudence, — the one of law relating to legal rights and furnishing legal remedies, and the other of equi- ty, in which equitable rights are considered and determined, — are then established by the Constitution of the United States, and, unless the Constitution shall in this respect be altered, must be perpetuated in and administered by the courts of the United States, no matter whether these systems are blended or kept sepa- rate in State courts. They alike rest upon " the supreme law of the land," and no policy that may be adopted by the States, can affect the distinction between them, or the application of each to its appropriate cases. 5. Criminal Cases. — There are but three provisions of the Constitution which directly and expressly authorize Congress to provide for the punishment of crime. The first provision gives the authority " to provide for the punishment of counterfeiting the securities and current coin of the United States ; " the second gives the authority "to define and punish piracies and felonies committed on the high seas, and offenses against the law of na- tions ; " and the third gives Congress " power to declare the pun- ishment of treason." Congress, however, in the exercise of the various legislative powers granted to it, has ample authority, within the scope of these powers, to pass laws for the government of the people ; and this clearly implies an authority to enforce these laws by penal- ties, and also to establish courts and vest in them jurisdiction to try and punish offenders against the laws of the United States. The Judiciary Act of 1789 did not itself establish a penal code, but it did provide for the organization of courts, and gave to the Dis- trict and Circuit Courts cognizance of crimes and offenses cogniz- able under the authority of the United States. The Crimes Act of April 30th, 1790 (1 U. S. Stat, at Large, 112), specified a list of such offenses and prescribed their punishment. Subsequent legislation has enlarged the list, and the result is a criminal code 26 CASES m LAW AND EQUITY. under the authority of the General Government, with jurisdiction vested in the Federal courts to administer it. This code, as in force on the 1st of December, 1873, is chiefly compiled in Title LXX of the Kevised Statutes of the United States. There is no doubt that the phrase " cases in law," includes criminal cases as well as those of a civil nature, and that the judi- cial power of the United States extends to such cases. The courts of the United States are, however, not courts of general, but of limited jurisdiction, and have no authority to try and punish offenses, except as it is conferred by the laws of Congress, and ex- cept as these offenses have been specified by law. They possess no common law jurisdiction over offenses. Congress must in every instance designate the crime and fix its punishment, in or- der to make it a case cognizable by a Federal court. (The United States v. Hudson & Goodwin, 7 Cranch, 32 ; The United States v. Ooolidge, 1 "Wheat. 415 ; Wheaton v. Peters, 8 Pet. 591 ; and The State of Pennsylvania v. The Wheeling Bridge Co. 13 How. 518.) 6. Cases under the Constitution. — This class of cases de- pends upon the Constitution itself, and hence arises under it and grows out of its provisions. Some of these provisions are grants of power to the General Government, legislative, executive, or ju- dicial. They authorize certain things to be done, and the power to do these things is derived from this authority. Congress, for example, is authorized to pass laws, not on all subjects, but only such as lie within the limits of the grant. If the question, in a suit between two parties, should arise, whether a given law of Congress is within or beyond these limits, then it would be' the right and the duty of the court to decide that question, and, in so doing, to determine the validity of the law by the Constitution it- self. The Constitution is always the paramount authority, and as binding upon courts as it is upon Congress. An enactment of Congress not in pursuance of the Constitution, is really no part of the supreme law of the land, and no rule for the guidance of a court. The Supreme Court of the United States, in Marbury v. Madison, 1 Cranch, 137, held that " an act of Congress, repug- nant to the Constitution, is not law," and that " when the Consti- tution and an act of Congress are in conflict, the Constitution CASES UNDER THE CONSTITUTION. 27 must govern the case to which both apply." On this ground it held that a part of the thirteenth section of the Judiciary Act of 1789 was inoperative, since it attempted to confer upon the Su- preme Court an original jurisdiction not conferred by the Consti- tution. This part of the section was in conflict with the Constitu- tion in the sense of exceeding the limits fixed by it, and for this reason the court refused to gire effect to it, holding the Constitu- tion to be the paramount authority. The same principle has been adopted by the court in subsequent cases. Some of the provisions of the Constitution, instead of being grants of power to Congress, are express restrictions upon its power. The Constitution, for example, says that " no bill of at- tainder, or ex post facto law shall be passed;" that "no capitation or other direct tax shall be laid, unless in proportion to the census or enumeration hereinbefore directed to be taken ; " that " no tax or duty shall be laid on articles exported from any State ; " and that while Congress may fix the punishment of treason, " no attainder of treason shall work corruption of blood, or forfeiture except during the life of the person attainted." These are examples of restriction placed upon the powers of Congress; and if a law should be passed coming in conflict with such restrictions, and a suit or prosecution should be commenced in a Federal court under the law, then the validity of the law would be called in question ; and it would be the duty of the court to give effect to the Consti- tution and disregard the law. It is the province of courts to pass upon such questions, when they arise in the course of judicial proceedings and affect the rights of parties litigating before them, no matter whether they relate to the powers of Congress or those of the executive or judi- cial departments of the Government. The Constitution itself is always the paramount rule for the guidance of courts, and they must for themselves judge of its meaning. So, also, the Constitution, in some of its provisions, imposes restriction upon the powers of the States. It forbids them to coin money ; to emit bills of credit : to make paper money a legal tender ; to pass any bill of attainder ; to enact ex post facto laws, or laws impairing the obligation of contracts ; to lay, without the consent of Congress, any imposts or duties on imports or exports, except what may be absolutely necessary for executing inspec- tion laws ; to lay any tonnage duties ; to make or enforce laws 28 CASES IN LAW AND EQUITY. abridging the privileges or immunities of citizens of the United States ; to deprive any person of life, liberty, or property, without due process of law ; and to deny to any person within their juris- diction the equal protection of the laws. These are restrictions upon State power, directly imposed by the Constitution itself ; and should the question of their violation by State authority arise in a Federal court, in a suit there pending, it would be the prov- ince of the court to decide this question, and also to treat State laws as of no force if in conflict with the Constitution. Another and very important provision of the Constitution de- clares that " the citizens of each State shall be entitled to all privi- leges and immunities of citizens in the several States." The gen- eral meaning of this clause is, that the rule in respect to the fundamental rights of citizenship which each State adopts for her own citizens, must be impartially applied to the citizens of other States, whenever her jurisdiction acts upon them, so that as re- gards these rights there shall be no discrimination against the latter. {Corfield v. Coryell, 4 "Wash. 371 ; Ward v. Maryland, 12 "Wall. 418 ; Paul v. Virginia, 8 "Wall. 168 ; The Slaughter House Cases, 16 Wall. 36 ; Lemmon v. The People, 20 N". T. 608; Crandall v. The State, 10 Conn. 340; and Serg. Const. Law, 2d ed., p. 393.) Each State, having made a rule for its own citizens, must not exclude the citizens of other States from its benefits. The denial of any right thus guaranteed would raise a question under the Constitution which, in a proper suit involving the matter, a Federal court would be authorized to determine. The same would be true in respect to the denial of any other right which the Constitution confers or protects. Mr. Justice Story says that cases arising under the Constitution " are such as arise from the powers conferred, or privileges granted, or rights claimed, or protection secured, or prohibitions contained in the Constitution itself, independent of any particular statute enact- ment." (Story's Const. Law, sec. 1647.) This comprehensive statement covers the whole field of such cases. 7. Cases under the Laws of the United States. — The laws of Congress, enacted in pursuance of the Constitution, are a part of " the supreme law of the land," superior in rank to State con- stitutions and State laws. All cases and questions that grow out of these laws, whether relating to a right secured, a power be- CASES UNDER TREATIES. 29 stowed, a duty imposed, or a crime forbidden, that are judicial in their nature, come within the scope of the judicial power of the United States ; and if they arise before a Federal court, then they are to be determined by that court, in the exercise of the jurisdic- tion conferred by Congress. These laws furnish the rule for the guidance of the Federal courts in all matters to which they apply. Far the larger part of the questions with which these courts have to deal, and which it becomes their duty to decide, grows out of, and depends upon, the legislation of Congress. If the question be whether a law of Congress is constitutional, then, of course, the law must be tested by tbe Constitution itself. But if there be no question as to the constitutionality of such a law, as is the fact in most cases, then the sole inquiry relates to its meaning and application to the case before the court. It not infrequently happens that, in the case pending, the validity of a State constitution or law is called in question, on the ground of an alleged conflict with a law of the United States, and when this is a fact, it becomes the duty of the court to decide this question of validity, and in all cases give effect to the latter law. When the case involves no such conflict, alleged or real, then the whole question is simply one of construction and application. 8. Cases under Treaties. — The Constitution makes the treaties of the United States a part of " the supreme law of the land," placing them in this respect upon the same footing as that which is assigned to the laws of Congress. Having the character of su- preme laws, they are binding upon the Federal courts as such ; and all questions arising under them in a judicial proceeding, and affecting the rights of the parties litigating before the court are, so long as the treaties continue in force, to be decided according to their provisions. The construction of treaties, considered as laws affecting rights as between parties, is exclusively a judicial function. ( Wilson v. Wall, 6 "Wall. 83.) This function, however, has nothing to do with the question that relates to the competency of the contract- ing parties to make a treaty, since this belongs to the President and the Senate. (Doe v. Braden, 16 How. 635 ; and Fellows v. Blacksmith, 19 How. 366.) Treaties, though binding between the contracting govern- ments, from the date of their signature, unless they otherwise 30 CASES IN LAW AND EQUITY. stipulate, are not laws affecting private rights until they are rati- fied and proclaimed. {Davis v. The Police Jury of Concordia, 9 How. 280; The United States v. Arredonde, 6 Pet. 691; and Saver v. Yaker, 9 Wall. 32.) So, also, treaties that are not self-executing, but require legislation to carry them into effect, are not laws for the guidance of courts until the necessary legislation has been supplied by Con- gress, {Foster v. Neilson, 2 Pet. 253 ; Turner v. The American Baptist Missionary Union, 5 McLean, 344.) Treaties made with the Indian tribes of this country, consid- ered as laws, stand on the same footing with treaties made with foreign nations. ( Worcester v. The State of Georgia, 6 Pet. 515.) Mr. Justice McLean, in Turner v. The American Baptist Mis- sionary Union, 5 McLean, 344, said: "It is contended that a treaty with Indian tribes has not the same dignity and effect as a treaty with a foreign and independent nation. This distinction is not authorized by the Constitution. Since the commencement of the Government, treaties have been made with the Indians and the treaty-making power has been exercised in making them. They are treaties within the meaning of the Constitution, and as such are the supreme law of the land." State constitutions and laws in conflict with a treaty of the United States, are thereby abrogated, and have no validity ; and the Federal courts are bound so to decide, in cases that raise the question. ( Ware v. Hylton, 3 Dall. 199 ; Owings v. Norwood's Lessee, 5 Cranch, 344 ; Fairfax's Devisee v. Hunter's Lessee, 7 Cranch, 603; and Worcester v. The State of Georgia, 6 Pet. 515.) Cases in law or equity, arising under the treaties of the United States, are such, and such only, as involve rights that directly grow out of or are directly protected by these treaties. If this be not the fact then no case exists under a treaty. (Owmgs v. Nor- wood's Lessee, 5 Cranch, 344 ; Henderson v. Tennessee, 10 How. 311.; Gill v. Oliver's Executors, 11 How. 529 ; and Verden v. Coleman, 1 Black, 472.) If there be a conflict between a treaty of the United States and a law of Congress, and the question of such conflict arises in a suit pending before a Federal court, then, under the general principle that leges posteriores priores contrarias abrogant, the one or the other will furnish the rule of decision, accordingly as it CASES UNDER TREATIES. 31 is the last expression of authority. The law, if enacted subse- quently to the treaty, will be the rule for deciding the case ; and so the treaty, if self-operative without the aid of legislation, and made subsequently to the enactment of the law, will be the rule. Both being an exercise of sovereign authority, and both having the same rank as laws, either may repeal the other, considered simply as a law to guide and control the action of a court in a case to which both apply. {The United States v. The Schooner Peggy, 1 Cranch, 103; The Cherokee Tobacco Case, 11 Wall. 616; Ropes et al. v. Clinch, 8 Blatch. 304 ; and Taylor et al. v. Mor- ton, 2 Curtis, 454.) The judicial cognizance granted in the cases considered in this chapter, enables the General Government to act directly upon the people, as individual persons subject to its authority, and expound and enforce its own laws through the agency of its own courts. The cognizance is not only independent of State courts, but co-extensive with the Constitution, laws, and treaties of the United States ; and any question arising under them, or one of them, be- ing capable of becoming the subject-matter of a suit, and actually becoming such, whether civil or criminal, and whether in law or equity, may be considered and determined in the courts of the United States. Any such question arising in and determined by the highest court of a State may, by writ of error, be carried to the Supreme Court of the United States. The appellate jurisdiction of the Supreme Court over the judgments and decrees of the inferior Federal courts, and its re- visory jurisdiction over State courts, in all cases involving the construction and application of the Constitution, laws, or treaties of the United States, make that court the key-stone in the judi- cial arch of our political system. The decisions rendered by it are final and conclusive. Its authority is supreme, and this gives in all parts of the Union harmony to the judicial administration of " the supreme law of the land." CHAPTEK II. AMBASSADORIAL AND CONSULAR CASES. 1. Diplomatic Agents. — It has, from the earliest times, been the practice of nations to hold intercourse with each other through the medium of official representatives. The sovereign authority of one nation in this way speaks to that of another. Complaints and demands are thus made and answered. Treaties are thus ne- gotiated. Indeed, the whole correspondence between sovereign nations is conducted through diplomatic or representative agents. And, in modern times especially, permanent or resident embassies are established between the principal nations of the earth. Their mutual convenience and good understanding are thereby pro- moted. These agents may differ in rank, and in the delicacy and im- portance of the duties confided to them, yet they all act for and by the authority which they represent. The law of nations as- signs the highest rank to ambassadors. Other diplomatic agents, though not less representative in their character, are known as en- voys, ministers resident, charges d'affaires, &c. Whatever may be their relative rank, as among themselves, they are public min- isters, and, as such, speak and act for the governments appointing them, and investing them with their official character. 2. Diplomatic Rights. — The general principle respecting the rights, privileges, and immunities of these diplomatic agents, as established by the law of nations, is thus stated by Mr. Wheaton, in his Elements of International Law : " From the moment a public minister enters the territory of the State to which he is sent, during the time of his residence, and until he leaves the country, he is entitled to an entire exemp- tion from the local jurisdiction, both civil and criminal. Eepre- senting the rights, interests, and dignity of the sovereign State by whom he is delegated, his person is sacred and inviolable. To give a more lively idea of this complete exemption from the local jurisdiction, the fiction of extra-territoriality has been invented, by which the minister, though actually in a foreign country, is DIPLOMATIC RIGHTS. 33 supposed still to remain within the territory of his own sovereign. He continues still subject to the laws of his own country, which govern his personal status and rights of property, whether de- rived from contract, inheritance, or testament. His children, born abroad, are considered as natives. This exemption from the local laws and jurisdiction is founded upon mutual utility, growing out of the necessity that public ministers should be entirely indepen- dent of the local authority, in order to fulfill the duties of their mission. _ The act of sending the minister, on the one hand, and of receiving him on the other, amounts to a tacit compact between the two States that he shall be subject only to the authority of his own nation." (Lawrence's Wheaton, p. 392.) The same general statement, as to the law of nations, is found in the writings of Grotius, Eutherforth, Wicquefort, Bynker- shoek, Yattel, Martens, Kluber, Foelix, and Phillimore. "Mr. Wheaton extends this exemption from the local jurisdiction to the family, servants, and suite of the public minister, and also his personal effects and movables, and the dwelling in which he re- sides. It includes his couriers and messengers, if provided with passports from their own governments, attesting their official character. As to what may be done in the event that a public minister commits an offense against the State in which he temporarily re- sides, Mr. Wheaton remarks : " In case of offenses committed by public ministers, affecting the existence and safety of the State where they reside, if the danger is urgent, their persons and papers may be seized, and they may be sent out of the country. In all other cases it appears to be the established usage of nations to request their recall by their own sovereign, which, if unreasonably refused by him, would unquestionably authorize the offended State to send away the offender. There may be other cases which might, under cir- cumstances of sufficient aggravation, warrant the State thus of- fended in proceeding against an ambassador as a public enemy, or in inflicting punishment upon his person, if justice should be refused by his own sovereign. But the circumstances which would authorize such a proceeding are hardly capable of a precise definition, nor can any general rule be collected from the exam- ples to be found in the history of nations, where public ministers have thrown off their public character, and plotted against the safety of the State to which they were accredited. These anoma- lous exceptions to the general rule resolve themselves into the paramount right of self-preservation and necessity." (Id., pp. 395, 396.) 3 34 AMBASSADORIAL AND CONSULAR CASES. 3. Consular Agents. — Consuls, on the other hand, are not public ministers, and, under the law of nations, not entitled to their special rights and privileges. They do not perform diplo- matic functions. They are commercial agents of the government appointing them, residing in foreign countries, and charged with the duty of promoting the commercial interests of the State, and especially of its citizens or subjects in these countries. In regard to them, Mr. "Wheaton says : " They are to be approved and ad- mitted by the local sovereign, and, if guilty of illegal or improper conduct, are liable to have the exequatur which is granted them withdrawn, and may be punished by the laws of the State where they reside, or sent back to their own country, at the discretion of the government which they have offended. In civil and criminal cases they are subject to the local law, in the same manner with other foreign residents owing a temporary allegiance to the State." (Id., p. 423.) Mr. Phillimore states the same doctrine in regard to consuls. (Phillimore's International Law, vol. II, p. 241.) 4. Constitutional Proyision. — The framers of the Constitu- tion anticipated that the United States would be one among the nations of the earth. They hence provided that the President should have power, with the advice and consent of the Senate, to appoint ambassadors, other public ministers and consuls, and also that he should receive ambassadors and other public ministers who might be sent to this country by foreign governments. They provided, in article three, section two, of the Constitution, that the judicial power of the United States shall extend to " all cases affecting ambassadors, other public ministers and consuls." The terms " ambassadors," and " other public ministers," are intended to include public ministers of all grades, as to rank. The term " consuls," includes consuls of all grades. Both classes of terms are to be interpreted by the law of nations. The clause relating to these persons applies exclusively to pub- lic ministers and consuls appointed by other countries, and tempo- rarily resident as such within the United States. Cases arising in this country and affecting them are assigned to the judicial power of the General Government ; and in respect to all these cases the Constitution expressly declares that the Supreme Court shall have original jurisdiction. The test of the jurisdiction, so far as it can be exercised at all, is not that the public minister or consul must STATUTORY PROVISIONS. 35 necessarily be a party on the record, but that the case, whatever it is, affects the public minister or consul, within the meaning of the Constitution. If this be the fact, then the case comes within the judicial power of the United States, whether the minister or con- sul be a party on the record or not. It deserves to be noticed that, in the matter of jurisdiction, the Constitution makes no distinction between a public minister and a consul. It is enough in respect to either, that a case arises which affects one or the other. The jurisdiction depends in part upon the party affected, and in part upon the fact that the party is affected. 5. Statutory Provisions. — The first legislation of Congress, in giving effect to the provision of the Constitution in relation to public ministers and consuls, is found in the thirteenth section of the Judiciary Act of 1789 (1 U S. Stat, at Large, 73), which, as reproduced in section 687 of the Revised Statutes of the United States, declares that the Supreme Court " shall have exclusively all such jurisdiction of suits or proceedings against ambassadors or other public ministers, or their domestics or domestic servants, as a court of law can have, consistently with the law of nations, and original but not exclusive jurisdiction of all suits brought by am- bassadors or other public ministers, or in which a consul or vice- consul shall be a party." The same act, as reproduced in section 563 of the Revised Statutes, gives to the District Courts of the United States jurisdiction " of all suits against consuls or vice-con- suls," except for certain offenses specified, and, as reproduced in section 629 of these Statutes, gives to the Circuit Courts " exclu- sive cognizance of all crimes and offenses cognizable under the authority of the United States, except where it is or may be other- wise provided by law, and concurrent jurisdiction with the Dis- trict Courts of the crimes and offenses cognizable therein." The jurisdiction thus exclusively conferred upon the Supreme Court, in suits against ambassadors or other public ministers, or their domestics or domestic servants, is such, and such only, " as a court of law can have consistently with the law of nations." This limitation, according to the doctrine as stated by Mr. Wheaton, excludes all jurisdiction in suits against public ministers, or their domestics or domestic servants, since no such jurisdiction can be exercised in consistency with the law of nations. 36 AMBASSADORIAL AND CONSULAR CASES. The original jurisdiction of the Supreme Court is extended to "all suits brought by ambassadors or other public ministers." There is nothing in the law of nations which forbids them to bring suits in the courts of the country to which they are sent, and noth- ing in this law to prevent these courts from taking jurisdiction in such cases. The jurisdiction of the Supreme Court in these cases is original, but not exclusive, and may be concurrently exercised with other courts of the United States, if jurisdiction is vested in the latter courts, and, for aught that appears, concurrently with State courts. So, also, the jurisdiction of the Supreme Court is extended to all suits "in which a consul or vice-consul shall be a party," whether as plaintiff or defendant. The jurisdiction here is orig- inal, but not exclusive, and hence may be exercised concurrently with the Circuit and District Courts of the United States, so far as these courts possess such jurisdiction. The law of nations im- poses no limitation as to suits, whether against or by consuls or vice-consuls. The Judiciary Act of 1789, which gave the jurisdiction as above stated, was followed by the Act of April 30th, 1790 (1 U. S. Stat, at Large, 112), containing certain provisions; which, as reproduced in the Revised Statutes, read as follows : " Section 4063. Whenever any writ or process is sued out or prosecuted by any person in any court of the United States, or of a State, or by any judge or justice, whereby the person of any public minister of any foreign prince or State, authorized and re- ceived as such by the President, or any domestic or domestic serv- ant of any such minister, is arrested and imprisoned, or his goods or chattels are distrained, seized, or attached, such writ or pro- cess shall be deemed void." " Section 4064. Whenever any writ or process is sued out in violation of the preceding section, every person by whom the same is obtained or prosecuted, whether as a party or as an attorney or solicitor, and every officer concerned in executing it, shall be deemed a violator of the laws of nations, and a disturber of the public repose, and shall be imprisoned for not more than three years, and fined at the discretion of the court." " Section 4065. The two preceding sections shall not apply to any case where the person against whom the process is issued is a citizen or inhabitant of the United States, in the service of a public minister, and the process is founded upon a debt contracted before he entered upon such service ; nor shall the preceding section ap- ply to any case where the person against whom the process is CASES AFFECTING PUBLIC MINISTERS. 37 issued is a domestic servant of a public minister, unless the name of the servant has, before the issuing thereof, been registered in the Department of State, and transmitted by the Secretary of State to the Marshal of the District of Columbia, who shall, upon the receipt thereof, post the same in some public place in his office." The purpose of Congress, in these provisions of the Act of April 30th, 1790, was to give statutory form to the law of nations, by declaring all writs and processes void which involve the arrest of public ministers or their servants, or the seizure of their goods and chattels, and by punishing those who procure or execute such writs or processes. The act does not expressly forbid suits com- menced merely by summons, where there is no arrest of person or seizure of goods ; yet even such suits are contrary to the estab- lished principles of the law of nations. They imply that the court has jurisdiction over the minister or his servant, and may, if nec- essary, enforce process against him, or against his goods and chat- tels, which, according to the law of nations, is not permissible. This law gives to the public minister and his servants a complete immunity from the local jurisdiction, whether civil or criminal, unless he forfeits the privileges annexed by the law to his official character. The eighth paragraph of section 711 of the Revised Statutes, ■as contained in the first edition of these Statutes, made the juris- diction of the Federal courts exclusive of State courts " in all suits or proceedings against ambassadors or other public ministers, or their domestics or domestic servants, or against consuls or vice- consuls." This entire paragraph was ordered to be stricken out by the Act of February 18th, 1875. (18 IT. S. Stat, at Large, 318.) It could not have been the intention of Congress to imply, by striking out the paragraph, that State courts might exercise jurisdiction in all these cases. Such an implication would repeal the exclusive jurisdiction of the Supreme Court in suits against public ministers or their servants, as provided for in section 687 of the Eevised Statutes. The effect of striking out the paragraph is, that the Revised Statutes do not, as formerly, expressly exclude the jurisdiction of State courts in suits against consuls or vice- consuls. 6. Cases affecting Public Ministers.— It is but seldom that the courts have had occasion to expound the clause of the Consti- 38 AMBASSADORIAL AND CONSULAR CASES. tution relating to ambassadors or other public ministers. Cases calling for the exposition have seldom arisen. The Circuit Court for the Eastern District of Pennsylvania certified the case of The United Slates v. Ortega, 11 Wheat. 467, to the Supreme Court, on the ground that the judges of the court were divided in opinion as to whether the Circuit Court had " ju- risdiction of the matter charged in the indictment, inasmuch as it is a case affecting an ambassador or other public minister." Orte- ga had been indicted for offering violence to the charge d'affaires of the King of Spain. Mr. Justice Washington, in stating the opinion of the court, said : " This is 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, then,, 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." The court therefore certified to the Circuit Court that it had jurisdic- tion of the matter charged in the indictment. Chief Justice Marshall, in Osborn v. The United States Bank, 9 Wheat. 738, 854, made the following remarks in regard to this clause of the Constitution : " If a suit be brought against a foreign minister, the Supreme Court alone has original jurisdiction, and this is shown on the record. But, suppose a suit to be brought which affects the interest of a foreign minister, or by which the person of his secre- tary or his servant is arrested. The minister does not, by the mere arrest of his secretary or his servant, become a party to this suit, but the actual defendant pleads to the jurisdiction of the court, and asserts his privilege. If the suit affects a foreign minister it must be dismissed, not because he is a party to it, but because it affects him. The language of the Constitution in the two cases is different. This court can take cognizance of all cases ' affecting ' foreign ministers ; and, therefore, jurisdiction does not depend on the party named in the record. But this language changes when the enumeration proceeds to States. Why this change ? The answer is obvious. In the case of foreign ministers it was intended, for reasons which all comprehend, to give the CASES AFFECTING PUBLIC MINISTERS. 39 national courts jurisdiction over all cases by which they were in any manner affected. In the case of States, whose immediate or remote interests were mixed up with a multitude of cases, and who might be affected in an almost infinite variety of ways, it was intended to give jurisdiction in those cases only to which they were actual parties." The Judiciary Act of 1789 gave jurisdiction to the Supreme Court in suits brought against or by public ministers. This made them parties on the record, either sued or suing. Chief Justice Marshall gives a wider import to the word " affecting," as used in the Constitution. If a suit is brought against the secretary or servant of a public minister, the privileges and immunities of the minister may be so involved and invaded as to be affected, even though the minister himself is not directly a party on the record ; and in this case the secretary or servant would be entitled to assert his privilege in virtue of his relation to the minister. " It was intended," says Chief Justice Marshall, "to give the national courts jurisdiction over all cases by which they [public ministers] were in any manner affected." if their rights, privileges, and exemptions, or those of others holding such relations to them as to be entitled to the same rights, are in any way involved, then they are affected in the sense of the Constitution, whether they are actual parties to the suit or not. If no such fact exists, then they are not affected. The Federal jurisdiction is made to depend partly upon the person, and partly upon the fact that he is affected by the proceeding. As to the question whether a given person is a public minister, it was held, in The United States v. Ortega, 4 Wash. 531, that his reception and recognition as such by the President of the United States are conclusive evidence to this effect before a court. In The United States v. Benner, Bald. 234, it was held that the certificate of the Secretary of State, under the seal of office, that a person has been recognized by the Department of State as a foreign minister, is full evidence that he has been received as such by the President of the United States. In Ex parte Cabrera, 1 "Wash. 232, it was held that the laws of the United States which punish those who violate the privileges of a foreign minister, are equally obligatory upon the State courts as upon those of the United States, and that it is equally the duty of each to quash the proceedings against any one having such privileges. The mode of 40 AMBASSADORIAL AND CONSULAR CASES. redress for a person thus privileged from arrest was, in Lyell v. Goodwin, 4 McLean, 29, held to be by a motion to the court from which the process issued. 7. Cases affecting Consuls. — The Constitution extends the judicial power of the United States to all cases affecting consuls, although they do not by the law of nations possess the special privileges of public ministers ; and in all these cases the Supreme Court is clothed with original jurisdiction. Consuls in this respect stand on the same footing with such ministers. The Judiciary Act of 1789, as we have seen, gave the Supreme Court original but not exclusive jurisdiction of all suits " in which a consul or vice-consul shall be a party," whether as plaintiff or defendant. This provision is continued in section 687 of the Kevised Statutes of the United States. So, also, the Judiciary Act gave to the District Courts, exclusively of the courts of the several States, jurisdiction of " all suits against consuls or vice-consuls," except for offenses above a certain grade. This provision is con- tinued in section 563 of the Revised Statutes, with the omission of the words which declare the jurisdiction to be exclusive of the State courts. The general doctrine adopted by the courts is that jurisdiction in all suits and proceedings against consuls belongs exclusively to the courts of the United States. Mr. Justice Story says : " And in cases against ambassadors and other foreign ministers and con- suls the jurisdiction has been deemed exclusive " in these courts. (Story's Const, sec. 1660.) Mr. Bishop says : " Consuls are neither indictable nor pursuable civilly in the State courts, but only in those of the United States." (Bishop's Criminal Law, 6th ed., vol. I, sec. 181.) Chief Justice Tilghman, in The Commonwealth v. Kosloff, 5 Serg. & Eawle, 545, quashed an indictment found by the grand jury for the city and county of Philadelphia against Kosloff, who was Consul General of Russia, not on the ground that he was by the law of nations entitled to an exemption from criminal prosecu- tion, but because the jurisdiction to find and try the indictment was exclusively vested in the courts of the United States. State courts, as he held, have no jurisdiction to deal with offenses com- mitted by foreign consuls. CASES AFFECTING CONSULS. 41 Mr. Justice Thompson, in stating the opinion of the court in Davis v. Packard, 7 Pet. 276, said : " As an abstract question, it is difficult to understand on what ground a State court can claim jurisdiction of civil suits against foreign consuls. By the Constitution, the judicial power of the United States extends to all cases affecting ambassadors, other public ministers, and consuls. * * * But if the question was open for consideration here, whether the privilege claimed was not waived by omitting to plead it in the Supreme Court [of the State], we should incline to say it was not. If this was to be viewed merely as a personal privilege, there might be grounds for such a conclusion, but it cannot be so considered. It is the privi- lege of the country or government which the consul represents. This is the light in which foreign ministers are considered by the law of nations, and our Constitution and law seems to put consuls on the same footing in this respect." The judgment of the New York Court of Errors was reversed on the ground that, by the showing of the record, it had " decided that the character of Consul General of the King of Saxony did not exempt the plaintiff in error from being sued in the State court." There is no doubt, however, that the laws of this country may, in both civil and criminal suits, be administered against foreign consuls by the Federal courts. They are not entirely exempt from the local jurisdiction because they are not pursuable in State courts. In St. Luke's Hospital v. Barclay & Bunch, 3 Blatch. 259, which was a suit in equity, the defendants took the ground that, being consuls of Great Britain, and acknowledged as such by the United States, they were in this capacity exempt from suit in a Circuit Court of the United States. Judge Betts decided that, being aliens, they were "amenable to the jurisdiction of the Circuit Court in a suit in favor of citizens," and also that " their consular character exempts them only from the jurisdiction of State courts." He said that, " by the law of nations, consuls are subject to the ordinary jurisdiction of the tribunals of the country to which they are accredited," and that there was no legal impedi- ment " to actions by citizens against consuls in the Circuit Courts of the United States." Being aliens, they could, under the Judi- ciary Act, be sued in these courts by citizens, and the fact that they were consuls in no way affected the jurisdiction. In Graham v. Stucken, 4 Blatch. 50, it was held by Mr. Jus- 42 AMBASSADORIAL AND CONSULAR CASES. tice Nelson that, although the Supreme Court has original juris- diction in a case "in which a consul or yice-consul shall be a party," the jurisdiction is not exclusive in that court, but may be exercised by a Circuit Court of the United States, in a suit brought against a foreign consul by a citizen. {Bixby v. Jims&en, 6 Blatch. 315.) In The United States v. Bavara, 2 Dall. 297, the Circuit Court of the United States for the District of Pennsylvania held that it had jurisdiction to try Joseph Eavara, who was a consul from Genoa, on an indictment charging him with sending threat- ening letters to the British minister and others, for the purpose of extorting money. It was claimed on behalf of Kavara that, on ac- count of his official character, the jurisdiction to try him was vested exclusively in the Supreme Court. The Circuit Court, however, held that it had jurisdiction in the case of foreign consuls charged with offenses, and in its charge to the jury said " that the offense was indictable, and that the defendant was not privileged from prosecution in virtue of his consular appointment." Consuls then, being aliens, may be sued by citizens in the Cir- cuit Courts of the United States, and may be criminally prose- cuted in Federal courts having jurisdiction to try their offenses. Though not amenable to State courts, they have no exemption from civil suits or criminal prosecutions in the courts of the Unit- ed States. If the matter involved in a civil suit against a consul depends upon a law or treaty of the United States, or upon the law of a State, then the Federal court will administer the one or the other as a rule of decision, according to the facts in the case. If, in a criminal prosecution, the offense charged against a consul be against a law of the United States, then the offender would be tried and punished under this law. How then would the matter stand if the offense of a consul be simply against a State law ? If State courts have no jurisdiction in civil suits or criminal prosecutions against consuls, then, in the case supposed, the jurisdiction must be exercised by a Federal court, or not at all, and if so exercised, it must apply the criminal law of the State applicable to the case. Mr. Justice Strong, in stating the opinion of the court in Tennessee v. Davis, 10 Otto, 257, 271, said : " The Circuit Courts of the United States have all the appliances which are necessary for the trial of any criminal case. They adopt and apply the laws of the State in civil cases, and there CASES AFFECTING CONSULS. 43 is no more difficulty in administering the State's criminal law. They are not foreign courts. The Constitution has made them courts within the States to administer the laws of the States in certain cases ; and, so long as they keep within the jurisdiction as- signed to them, their general powers are adequate to the trial of any case." This language would seem to cover the case of a consul who is simply an offender against State law, provided the Federal court has obtained jurisdiction of the case. The supposition is not ad- missible that consuls, because exempt from the jurisdiction of State courts, are exempt from all jurisdiction if they violate the laws of a State. There is nothing in the Constitution or any law of Congress, or in the law of nations, which prevents a foreign consul from bring- ing suits in the courts of the State in which he resides, if he so elects, or to prevent these courts from taking jurisdiction in such cases. That State courts may take such jurisdiction was held in Sagory v. Wissman, 2 Ben. 240. The fact that the Federal courts have jurisdiction in a case in which a consul or a vice-consul is a party, whether as plaintiff or defendant, does not necessarily exclude the jurisdiction of a State court, in a case in which a for- eign consul brings the suit. Indeed, there is no reason, in the Con- stitution, or the laws of Congress, or in the law of nations, why a foreign minister may not bring a suit in a State court. The fact that he cannot be sued in such a court does not prove that he can- not sue in it. What is intended by the Constitution and the law is, that all proceedings against foreign ministers and consuls, allowable by the law of nations, shall be confined exclusively to the courts of the United States, and that these courts shall be available to them for the purpose of bringing suits. It is no part of this intention to deny to them the privilege of resorting to State courts if they so choose. Though foreign consuls have no diplomatic functions to per- form, they are nevertheless sent to the United States as commer- cial agents of the governments appointing them ; and, as to cases " affecting " them, the Constitution classes them with public minis- ters, and gives the same judicial power that it gives as to cases "affecting" such ministers. The framers of the Constitution judged it expedient that the judicial power of the United States should be alike extended to both classes of cases. CHAPTER III. ADMIRALTY AND MARITIME CASES. SECTION" I. CONSTITUTIONAL PROVISION. 1. The Power Granted. — The judicial power of the United States is, by a distinct and separate clause of the Constitution, extended to " all cases of admiralty and maritime jurisdiction." This grants and establishes the jurisdiction as a part of the jurisprudence of the United States, but does not define either its' nature or extent. The question as to what are "cases of admiralty and maritime jurisdiction," within the meaning of the Constitution, was left to be determined by Congress, or by the Federal courts, or by both. The special character of the jurisdiction is indicated by the terms " admiralty " and " maritime." The former of these terms was borrowed from the title of the court by which the jurisdiction was exercised in England, and the latter was derived from the locality on which it operates. Mr. Justice Story says that the word " maritime " was added to the word " admiralty," in order to guard against too narrow a construction of the latter term. (Story's Const, sec. 1666.) The jurisdiction does not depend at all upon the character or citizenship of the parties to the suit, but does depend wholly upon the subject-matter of the controversy, considered relatively to the locality of the acts or occurrences involved therein, or relatively to the nature of the contract which, in connection with locality, forms the subject of this controversy. Locality is the primary question which determines the presence or absence of this jurisdiction. 2. The Jurisprudence intended. — This form of jurispru- dence was, at the time of the adoption of the Constitution, not only practiced by State courts under State authority, but existed, CONSTITUTIONAL PROVISION. 45 in some form and to some extent, in most of the countries of the civilized world having a maritime commerce, and had so existed from the earliest times. Codes of laws had been established and special courts organized, having reference to rights and duties, liabilities and wrongs, instrumentalities and agencies connected with and growing out of commerce as conducted by vessels iD navigating the seas. Chief Justice Taney, in The Genesee Chief v. Fitzhugh, 12 How. 443, 454, remarks : " Courts of admiralty have been found necessary in all commercial countries, not only for the safety and convenience of commerce, and the speedy decision of controversies where delay woidd often be ruin, but also to administer the laws of nations in a season of war, and to determine the validity of captures and questions of prize or no prize in a judicial proceed- ing." This necessity, common to the trading nations of the earth, at a very early period, created such courts, and has ever since per- petuated them. The framers of the Constitution were familiar with the facts and the general character of " admiralty and maritime jurisdiction," especially as existing in England and in this country ; and when they used this phrase, without explaining it, they meant by it that system of jurisprudence to which by common usage the phrase was attached, and which was understood in this country when the Constitution was adopted. They did not invent the language. It was already in use, and usage had given to it an intelligible mean- ing. Mr. George Ticknor Curtis remarks on this point: "The principle which defines the jurisdiction granted in these few com- prehensive words is, that it embraces what was known and under- stood in the United States, as admiralty and maritime jurisdiction, at the time when the Constitution was adopted." (Curtis's Comm. page 33.) 3. Procedure not Prescribed. — The clause conferring this jurisdiction does not prescribe the precise mode of proceeding in admiralty, or exclude the power of Congress to regulate the pro- ceeding in any manner that it shall deem expedient. In The Genesee Chief v. Fitzhugh, 12 How. 443, 460, Chief Justice Taney said : " The Constitution declares that the judicial power of the United States shall extend to ' all cases of admiralty and mari- time jurisdiction.' But it does not direct that the court shall pro- 46 ADMIRALTY AND MARITIME CASES. ceed according to ancient or established forms, or shall adopt any other form or mode of practice. The grant defines the subjects to which the jurisdiction may be extended by Congress. But the extent of the power, as well as the mode of proceeding in which that jurisdiction is to be exercised, like the power and practice in all the other courts of the United States, is subject to the regula- tion of Congress, except where that power is limited by the terms of the Constitution or by necessary implication from its language." This was said in answer to the objection that the Act of Febru- ary 26th, 1845 (5 U. S. Stat, at Large, 726), had provided, in the cases and upon the condition specified, for the trial of issues of fact by a jury. While it is true that a jury trial is not ordinarily an incident of the jurisdiction, it is competent, as the Chief Justice declares, for Congress to make it such whenever it shall think proper. There is nothing in the Constitution to exclude this exer- cise of its legislative power. 4. Distinct from Cases in Law or Equity. — The cases com- ing within this jurisdiction, as referred to in the Constitution, are not identical with, or embraced in, the cases of law and equity re- ferred to in the same instrument, as arising under the Constitution, laws, or treaties of the United States. They belong to a different category, and are provided for by a distinct and specific grant of judicial power. Referring to this point in The American Insur- ance Co. v. Canter, 1 Pet. 511, 545, Chief Justice Marshall said: " The Constitution declares that the judicial power shall extend to all cases in law and equity, arising under this Constitution, the laws of the United States, and treaties made or which shall be made under their authority ; to all cases affecting ambassadors or other public ministers or consuls ; to all cases of admiralty and maritime jurisdiction. The Constitution certainly contemplates these as three distinct classes of cases ; and if they are distinct, the grant of jurisdiction over one of them does not confer jurisdiction over either of the other two. The discrimination made between tbem is, we think, conclusive against their identity. * * * A case in admiralty does not, in fact, arise under the Constitution or laws of the United States. These cases are as old as navigation itself ; and the law, admiralty and maritime, as it has existed for ages, is applied by our courts to the cases as they arise." 5. Not Dependent on the Commercial Power. — Nor does admiralty and maritime jurisdiction, being granted by the Consti- CONSTITUTIONAL PROVISION. 47 tution itself, depend upon the power of Congress to regulate com- merce. It has no necessary connection with commercial regula- tions by this power. The function of Congress in relation to it is not to create it, but rather to bestow it upon courts organized under its authority, and thus give effect to the constitutional pro- vision on this subject. Chief Justice Taney, in The Genesee Chief v. Fitzhugh, 12 How. 443, 452, said : " Nor can the jurisdiction of the courts of -the United States be made to depend on the regidations of commerce. They are en- tirely distinct things, having no necessary connection with one an- other, and are conferred in the Constitution by separate and dis- tinct grants. * * * The power [to regulate commerce] is as extensive upon land as upon water. And if the admiralty ju- risdiction, in matters of contract and tort, which the courts of the United States may lawfully exercise on the high seas, can be ex- tended to the lakes under the power to regulate commerce, it can, with the same propriety and upon the same construction, be ex- tended to contracts and torts on land, when the commerce is be- tween different States. And it may embrace also the vehicles and persons engaged in carrying it on. It would be in the power of Congress to confer admiralty jurisdiction upon its courts, over the cars engaged in transporting passengers or merchandise from one State to another, and over the persons engaged in conducting them, and deny to the parties the trial by jury." Mr. Justice Clifford, in The Belfast, 7 Wall. 624, 640, said : " Congress may regulate commerce with foreign nations and among the several States, but the judicial power, which, among other things, extends to all cases of admiralty and maritime juris- diction, was conferred upon the Federal Government by the Con- stitution, and Congress cannot enlarge it, not even to suit the wants of commerce, nor for the more convenient execution of its com- mercial regulations." (The /Steamer St. Zawrence, 1 Black, 522.) Congress may pass laws regulating commerce in the locality to which admiralty and maritime jurisdiction applies, and the courts of the United States, in the exercise of this jurisdiction, may administer these laws in the admiralty cases to which they are applicable. Yet this does not derive the jurisdiction from the commercial power of Congress, or make it dependent upon that power. The jurisdiction depends upon the Constitution, and what Congress does is simply to vest it in courts, not in the exercise of its commercial power, but of its power to pass all laws necessary and proper for carrying into execution the judicial power of the 48 ADMIRALTY AND MARITIME CASES. United States. A law that simply regulates commerce does not of itself confer admiralty and maritime jurisdiction upon any court ; and Congress cannot by such regulations enlarge the jurisdiction beyond the limits fixed in the Constitution. SECTION II. LOCALITY OF THE JTJEISDICTIOM'. 1. The English Doctrine.'— The doctrine held by the ad- miralty courts of England, at the time of the adoption of the Con- stitution, and subsequently thereto, was that this jurisdiction operates only upon the high seas, and upon navigable rivers con- nected therewith, as far inland as high-water mark, and does not extend inland beyond this mark. English writers and decisions on the subject confined the jurisdiction to tide-waters. And in regard to this construction, Chief Justice Taney, in The Genesee Chief v. Fitzhugh, 2 How. 443, 454, 455, remarked : " And this definition in England was a sound and reasonable one, because there was no navigable stream in the country beyond the ebb and flow of the tide ; nor any place where a port could be established to carry on trade with a foreign nation, and where vessels could enter and depart with cargoes. In England, there- fore, tide-water and navigable water were synonymous terms, and tide water, with a few small and unimportant exceptions, meant nothing more than public rivers, as contradistinguished from pri- vate ones ; and they took the ebb and flow of the tide as the testy because it was a convenient one, and more easily determined the character of the river. Hence the established doctrine in England, that the admiralty jurisdiction is confined to the ebb and flow of the tide. In other words, it is confined to public navigable waters." The Chief Justice adds that, "at the time the Constitution of the United States was adopted, and our courts of admiralty went into operation, the definition which had been adopted in England was equally proper here." Ear the greater part of the navigable waters of the original thirteen States were tide-waters to the head of navigation. 2. Early Decisions of the Supreme Court.— The Supreme Court of the United States, in its earlier decisions, accepted and LOCALITY OF THE JURISDICTION. 49 followed the English doctrine on this subject, and hence held that the jurisdiction as given in the Constitution, and in the Judiciary Act of 1789, conferred by Congress upon the District Courts of the United States, was limited to the high seas and to tide-waters connected therewith. In The Thomas Jefferson, 10 Wheat. 428, which came before the Supreme Court in 1825, it was held that " the District Court has not admiralty jurisdiction of a siiit for wages earned on a voy- age upon the Missouri river, above the ebb and flow of the tide." In The Steamboat Orleans v. Phoebus, 11 Pet, 175, 183, decided in 1837, Mr. Justice Story, in stating the opinion of the court, said : " But the case is not one of a steamboat engaged in mari- time trade. Though in her voyages she may have touched at one terminus of them, in tide- waters, her employment has been sub- stantially on other waters. The admiralty has not any jurisdiction over vessels employed on such voyages, in cases of disputes be- tween part owners. The true test of its jurisdiction in all cases of this sort is, whether the vessel be engaged substantially in mari- time navigation, or in interior navigation and trade, not on tide- waters. In the latter case there is no jurisdiction." In The United States v. Coombs, 12 Pet. 72, 76, decided in 1838, Mr. Justice Story, referring to this jurisdiction, said : " Our opinion is, that in cases purely dependent upon the locality of the act done, it is limited to the sea and to tide-waters, as far as the tide flows, and that it does not reach beyond high-water mark. It is the doctrine which has been repeatedly asserted by this court, and we see no reason to depart from it." In Waring v. Clarke, 5 How. 441, decided in 1846, there was a doubt on the part of some of the judges of the court, whether the collision on the Mississippi river was within the ebb and flow of the tide ; yet the majority of the court were of the opinion that such was the fact, and accordingly held that a case of collis- ion on this river " within the ebb and flow of the tide, is within the admiralty and maritime jurisdiction of the 'courts of the . United States, though also infra corpus comitatusP These cases settled the construction of the Constitution, at least for the time being, as to the admiralty and maritime jurisdic- tion of the courts of the United States, considered with reference to the question of locality. They confined the jurisdiction to the high seas and to tide-waters connected therewith. 4 50 ADMIRALTY AND MARITIME CASES. 3. The Jurisdiction Granted to District Courts. — The ninth section of the Judiciary Act of 1789 (1 U. S. Stat, at Large, 73), gave to the District Courts of the United States exclusive cognizance of certain crimes, committed within their respective districts or upon the high seas, and also " exclusive original cog- nizance of all civil causes of admiralty and maritime jurisdiction, including all seizures under laws of impost, navigation, or trade of the United States, where the seizures are made on waters which are navigable from the sea by vessels of ten or more tons burthen, within their respective districts as well as upon the high seas ; saving to suitors, in all cases, the right of a common law remedy, where the common law is competent to give it." It was in the interpretation of the power here granted, that the Supreme Court limited the jurisdiction, in the earlier cases, to the high seas and tide-waters. It is worthy of notice that this section says nothing about tide-waters as fixing the limit beyond which the jurisdiction cannot extend. It includes the seizures specified within admiralty and maritime jurisdiction, and makes the navigability of waters " from the sea by vessels of ten or more tons burthen," and not the ebb and flow of the tide, the test of admiralty jurisdiction. "Waters thus navigable from the sea, and so far as thus navigable, were deemed by Congress as within the admiralty and maritime jurisdiction conferred by the Constitution, without reference to the ebb and flow of the tide. This certainly was a different test from the one adopted by the Supreme Court in the earlier cases. 4. Extension of the Jurisdiction to Lakes. — Congress, by the Act of February 26th, 1845 (5 U. S. Stat, at Large, 726), pro- vided that the District Courts of the United States shall have " the same jurisdiction in matters of contract and tort arising in, upon, or concerning steamboats and other vessels of twenty tons burden and upwards, enrolled and licensed for the coasting trade, and at the time employed in the business of commerce and nav- igation, between ports and places in different States and Terri- tories, upon the lakes and navigable waters connecting said lakes, as is now possessed and exercised by the said courts in cases of the like steamboats and other vessels employed in navigation and commerce upon the high seas or tide-waters, within the admiralty and maritime jurisdiction of the United States." LOCALITY OP THE JURISDICTION. 51 This act secured " to the parties the right of trial by jury of all the facts put in issue in such suits where either party shall re- quire it," and also " the right of a concurrent remedy at the com- mon law where it is competent to give it, and of any concurrent remedy which may be given by the State laws where such steamer or other vessel is employed in such business of commerce and navigation." It also provided that the remedies, forms of process, and modes of proceeding, shall be the same as are or may be used by the District Courts in cases of admiralty and maritime jurisdic- tion, and that the maritime law of the United States, so far as the same is or may be applicable in such cases, shall constitute the rule of decision, in the same manner, to the same extent, and with the same equities, as now apply in cases of admiralty and mari- time jurisdiction. The act was entitled " an Act extending the jurisdiction of the District Courts to certain cases upon the lakes and navigable waters connecting the same." The object of the act was to give a wider scope to the admiralty and maritime jurisdiction of the United States, as to the locality of its operation, than had been previously recognized and admitted. As tide-waters did not em- brace the great lakes of the United States, the act was plainly in- consistent with the doctrine which had been laid down by the Supreme Court, and this fact raised serious doubts as to its consti- tutional validity. 5. Constitutionality of the Act of 1845. — In 1851, six years after the passage of this act, the case of The Genesee Chief v. Fitz- hugh, 12 How. 443, which was a case of collision on Lake Ontario, came before the Supreme Court under the provisions of the act ; and this raised the question whether the court should reaffirm or revise and modify its previously declared doctrine as to the locali- ty of the admiralty and maritime jurisdiction of the United States. Chief Justice Taney, in stating the opinion of the court, delivered an elaborate argument, the object of which was to show that the admiralty jurisdiction granted by the Constitution extends to the navigable lakes and rivers of the United States, without reference to the ebb and flow of the tides of the ocean, and that Congress had power to pass the Act of February 26th, 1845, not as a regulation of commerce, which it was not and did not purport to be, but under the provision of the Constitution that extends the 52 ADMIRALTY AND MARITIME CASES. judicial power of the United States to " all cases of admiralty and maritime jurisdiction," which provision Congress was authorized to carry into effect. The Supreme Court, in this case, reconsidered, revised and cor- rected its former opinion, and held that the admiralty and mari- time jurisdiction, conferred by the Constitution, is not, as in Eng- land, confined to tidal waters, but extends to the public navigable lakes and rivers of the United States, on which commerce is car- ried on between States and Territories, or with foreign nations. This decision adopted navigability and the public use of the waters for commercial purposes, rather than the mere ebb and flow of the tide, as the true criterion in respect to such jurisdiction. The same view has been repeatedly affirmed by the court in subse- quent cases, and is now the settled law on the subject. In Jackson v. James, 20 How. 296, it was held that "the ad- miralty jurisdiction of the courts of the United States is not de- pendent upon the ebb and flow of the tide," and that it is not "defeated because the place of the transaction was within the body of the county of a State." {The Transportation Go. v. Fitz- hugh, 1 Black, 574; The Eine v. Trevor, 4 Wall. 555 ; The Bel- fast, 7 "Wall. 624; and The Insurance Co. v. Dunham, 11 Wall. 1.) In the last of these cases it was said that admiralty jurisdic- tion " extends not only to the main sea, but to all the navigable waters of the United States, or bordering on the same, whether land-locked or open, salt or fresh, tide or no tide." This construction of the territorial extent of the jurisdiction was, in The Eagle, 8 Wall. 15, regarded as rendering the Act of February 26th, 1 845, practically " obsolete and of no effect,'-" with the exception of the provision giving to either party the right of trial by jury when requested, since, under the construction, the admiralty powers of the District Courts, as conferred by the ninth section of the Judiciary Act of 1789, extend to all the navigable waters of the United States, including the waters expressly men- tioned in the act, and all other navigable waters. So, also, the words, " including all seizures under laws of im- post, navigation, or trade of the United States, where the seizures are made on waters navigable from the sea by vessels of ten or more tons burthen, within their respective districts, as well as upon the high seas," which formed a part of the ninth section of the Judiciary Act of 1789, were, in the light of the decision in LOCALITY OF THE JURISDICTION. 53 The Genesee Chief v. Fitzhuqh, supra, regarded in The Eagle, supra, as " no longer of any force." The general jurisdiction in admiralty exists without regard to these words, and hence they have " become useless and of no effect." They are entirely omit- ted in the re-statement of this jurisdiction, in the Eevised Statutes of the»United States. (Sec. 563.) 6. Navigable Rivers and Lakes. — If, then, navigability, and not the ebb and flow of the tide, be the test of admiralty jurisdic- tion in the United States, so far as the question of locality is con- cerned, what waters are for this purpose to be deemed navigable ? The case of The Daniel Ball, 10 Wall. 557, answers this question as follows : " The test by which to determine the navigability of our rivers is found in their navigable capacity. Those rivers are public navigable rivers in law, which are navigable in fact. Rivers are navigable in fact when they are used, or are susceptible of being used, in their ordinary condition, as highways for commerce over which trade and travel are or may be conducted in the ordinary modes of trade and travel on water. _ And they constitute naviga- ble waters of the United States within the meaning of the acts of Congress, in contradistinction from navigable waters of the States, when they form in their ordinary condition, by themselves or by uniting with other waters, a continued highway over which com- merce is or may be carried on with other States or foreign coun- tries, in the customary modes in which commerce is conducted by water." This definition of navigable waters was repeated in The Mon- tello, 11 Wall. 411, 415, with the following remark: "If, how- ever, the river is not of itself a highway for commerce with other States or foreign countries, or does not form such a highway by its connection with other waters, and is only navigable between different places within the State, then it is not a navigable water of the United States, but only a navigable water of the State, and the acts of Congress, to which reference is made in the libel, for the enrollment and license of vessels, have no application." In Nelson v. Leland, 22 How. 48, it was held that " the admi- ralty jurisdiction extends to the Yazoo river, although it is wholly within the State of Mississippi, and the stage of the water is sometimes too low for practicable navigation." This occasional non-navigableness of the river was not regarded as destroying its 54: ADMIRALTY AND MARITIME CASES. general character as a navigable river of the United States. Nor does the fact that the river lies wholly within the boundary of a State destroy its character as such, or withdraw admiralty juris- diction over it. (Jackson v. James, 20 How. 296.) There is no doubt and no dispute as to whether the great lakes of the United States, that serve as the highways of commerce between States, or between States and Territories, or with foreign nations, and the waters by which these lakes are connected, are, under the test of navigability, to be deemed public waters, and within the admiralty jurisdiction established by the Constitution. Some of these lakes are inland seas, and all of them are connected by rivers with the ocean. They are the highways of a vast inter- State commerce, as well as of commerce with foreign nations. 7. Canals. — It is difficult to see why those canals of the country, which are also highways of commerce, inter-State and International, by their connection with rivers and lakes, should not come within admiralty jurisdiction. It is true that they are artificial water-ways ; yet, navigability and commercial use being assumed as the test of this jurisdiction, then the canal which connects Lake Erie with the Hudson river, and, through this- river, with the ocean at New York, and on which a vast inter- State and foreign commerce is conducted, as really meets the con- ditions of the test as the Mississippi river or the great lakes of the country. The fact that it is an artificial water-way does not affect it in this respect. It makes no difference with the use or the reason for admiralty jurisdiction. Mr. Benedict, referring to the commerce transported by canals, says : " The vessels in which it is carried on, called sometimes canal-boats, and sometimes lake-boats, have a tonnage of one hundred and fifty to two hundred and fifty tons, and they must be registered or enrolled and licensed as vessels of the United States, and by those connected navigable waters, in such vessels, the productions of the mines, the forests, the soil, and the manu- factures of vast regions yet to be settled and improved, are to find their way to the markets of the world. * * * In view of the proportions which this commerce must assume, I can see no valid reason for denying those waters, navigable from the sea by vessels of ten or more tons burthen, the character of navigable waters, and LOCALITY OF THE JURISDICTION. 55 such vessels the maritime character of vessels." (Benedict's Ad- miralty, p. 124.) There has been some diversity in the decisions of courts on this question. In The Ann Arbor, 4 Blatch. 205, which was a libel in rem against the canal-boat Ann Arbor, for a breach of contract of affreightment in respect to certain tubs of butter, shipped by that craft from Rome (N. Y.), on the Erie Canal, to the city of New York, Mr. Justice Nelson said: "I am also inclined to think that the canal-boat is not a ship or vessel, upon the North river, or other navigable waters within the admiralty jurisdiction, subject to maritime liens in the admiralty, for breaches of contract of affreightment. Those boats are exclusively adapted to canal navigation. Of themselves they have no power as respects navigation upon public waters, any more than a raft, an ark, or a mud-scow." This opinion was expressed in 1858. On the other hand, in The E. M. McChesney, 15 Blatch. 183, which was a proceeding in rem against the canal-boat for oats shipped therein from Buffalo to New York city by the Erie Canal, a part of which was stolen from the boat while on her passage, it was held by the District Court " that the admiralty had jurisdiction to enforce such a contract, although part of the serv- ice was to be performed on the Erie Canal," and although the boat "was built to navigate the canal and had no means of locomotion in herself." Chief Justice Waite, before whom this case came in 1878 on appeal, sustained the decree of the court below. He re- marked : " The well considered opinion of the district judge, in which I fully concur, makes it unnecessary for me to attempt to add to what he has so well said." Judge Choate, in Malony v. The City of Milwaukee, 1 Fed. Rep. 611, said : " Without going at large into the discussion of the reasons for and against the jurisdiction, it is enough for the disposition of the point in this case to say that, upon a careful perusal of the opinions delivered by the Supreme Court which touch upon the question, it seems to me that the test established for determining the jurisdiction in admiralty, in a case of alleged maritime tort not on tide-water, is whether the place in which it was committed is upon the navigable waters of the United States, and that an artificial water-way or canal opened by a State to public use, for purposes of commerce, and while in fact used as a highway of commerce between the States of the Union, and be- 56 ADMIRALTY AND MARITIME CASES. tween foreign countries and the United States, is navigable water of the United States within the meaning of that term as used to define and limit the jurisdiction of admiralty courts." The same doctrine was held in The Oler, 2 Hughes, 12; and The Avon, 1 Brown, 170. The kind of water-craft employed, and the manner of pro- pulsion, whether by steam, wind, or hcrse power, are immaterial questions, provided the business or employment is that of com- merce, and the water upon which the craft moves or is moved is navigable by itself, or by its connection with other waters, for the purposes of commerce between the States of the Union, or with foreign nations. These conditions being present, the fact that the craft is called a canal-boat, or that its main or even exclusive use is upon a canal, furnishes no reason why it should not be sub- ject to admiralty jurisdiction. {The General Cass, 1 Brown, 334 ; and The Kate Tremaine, 5 Ben. 60.) The better opinion then would seem to be that canals which, though artificial water-ways, serve the purposes of international commerce, or those of commerce with foreign nations, and the craft used thereon for these purposes, whether self-propelled or not, and in whatever manner propelled, are in respect to these purposes subject to the admiralty jurisdiction of the United States, in common with lakes and rivers, harbors, bays, and wharves that serve the same purposes. No good reason can be assigned why this should not be the fact. 8. State Jurisdiction. — It follows from this construction of admiralty jurisdiction that it may and often does operate upon localities that lie within the limits of States, and are subject to State authority. How far then is the latter authority affected by the admiralty and maritime jurisdiction of the United States, when, as to its locality, operating within the limits of States? Chief Justice Marshall, in stating the opinion of the court in The United States v. Bevans, 3 Wheat. 336, took the ground that the jurisdiction in admiralty and maritime cases, as granted by the Constitution, is not to be understood as a cession of the waters to the United States " on which these cases may arise." The general jurisdiction of the State over the place, as he maintained, subject to this particular grant of judicial power to the United States, " adheres to the territory " which is a part of the State by LOCALITY OF THE JURISDICTION. 57 being within its limits, " as a portion of sovereignty not yet given away." Congress can legislate to carry admiralty jurisdiction into effect, but in so legislating it is limited to this single purpose. The Federal Government, by its admiralty powers, acquires no general jurisdiction over a place or waters within the boundaries of a State, beyond the scope and proper exercise of these powers. " The article which describes the judicial power of the United States is not intended for the cession of territory or of general jurisdiction." In Smith v. The State of Maryland, 18 How. 71, it was claimed that the law of that State which undertook to regulate the catch- ing of oysters in any of the waters thereof, and under which a vessel was forfeited to the State for a violation of the law, was repugnant to that clause of the Constitution which extends the judicial power of the United States to all cases of admiralty and maritime jurisdiction. Mr. Justice Curtis, in stating the opinion of the court, referred to the doctrine laid down in The United States v. JSevans, supra, and then added that "this clause in the Constitution did not affect the jurisdiction, nor the legisla- tive power of the States, over so much of their territory as lies below high- water mark, save that they parted with the power so to legislate as to conflict with the admiralty jurisdiction or laws of the United States." He further said : " As this law conflicts neither with the admiralty jurisdiction of any court of the United States conferred by Congress, nor with any law of Congress whatever, we are of opinion it is not repugnant to this clause of the Constitution." Chief Justice "Waite, in stating the opinion of the court in McCready v. Virginia, 4 Otto, 391, said: "The principle has long been settled in this court, that each State owns the beds of all tide-waters within its jurisdiction, unless they have been granted away. * * * The title thus held is subject to the paramount right of navigation, the regulation of which in respect to foreign and inter-State commerce has been granted to the United States. There has been, however, no such grant of power over the fisher- ies. These remain under the exclusive control of the State, which has consequently the right, in its discretion, to appropriate its tide- waters and their beds to be used by its people as a common for taking and cultivating fish, so far as it may be done without ob- structing navigation." 58 ADMIRALTY AND MARITIME CASES. The Constitution simply assigns to the judicial power of the United States the eases designated as "cases of admiralty and maritime jurisdiction," with the right of Congress to vest this jurisdiction exclusively in Federal courts ; and when any of these cases arise upon waters within the limits of a State, then the juris- diction attaches to them through the agency of the proper courts, and is competent to dispose of them, while the general sovereignty of the State over persons and things within its own territory is, with this exception, untouched and unimpaired, so far as this par- ticular form of jurisdiction is concerned. The fact .that it oper- ates within a State, or is by Congress made exclusive of any similar jurisdiction by State Courts, is no objection to it. The jurisdiction has its basis in the Constitution of the United States, which is " the supreme law " in every State and over every State. No State rights are interfered with in those cases in which the locality of the jurisdiction is within a State. This results simply from the fact that the cases there arise, and that, under the Constitution and the laws of Congress, the jurisdiction attaches to them as fully as its does to cases which arise upon the high seas where the State has no jurisdiction. SECTION III. THE SUBJECTS OF THE JURISDICTION. The locality of the jurisdiction being the high seas and public navigable waters of the United States, and the jurisdiction being limited thereto, it necessarily follows that the specific subjects embraced in it, and to which it is therefore applicable, designated in the Constitution as " cases of admiralty and maritime jurisdic- tion," must all bear some relation to this locality. They must be things done where the jurisdiction operates, or contracts there to be fulfilled. Whatever may be their specific character, they hold and must hold some relation to the place of the jurisdiction. It is for this reason that they are admiralty and maritime cases. These cases are divisible into three subordinate classes. 1. Criminal Cases. — Admiralty jurisdiction is a criminal as well as a civil jurisdiction, and, as such, takes cognizance of THE SUBJECTS OF THE JURISDICTION. 59 crimes, and administers therefor the proper punishment. There is no doubt that the Constitution includes crimes in the general terms which grant this jurisdiction ; and upon this fact is based the power of Congress to provide for the punishment of a large class of offenses committed upon the high seas. In so doing it carries into effect this branch of the judicial power of the United States. Title LXX, chapter 3, of the Revised Statutes of the United States, designates the various crimes, with their punishment, which come within the admiralty and maritime jurisdiction of the General Government. These crimes are specified, not only by their titles, but also with reference to the places where they are committed, among which are mentioned the high seas, or any arm of the sea, or any river, haven, creek, basin, or bay within the ad- miralty and maritime jurisdiction of the United States, and out of the jurisdiction of any particular State. The two things that mark these crimes, as to the place of commission are, that they are committed within the admiralty jurisdiction of the General Government, and out of the jurisdiction of any particular State. If committed in places within admiralty jurisdiction, but not out of the jurisdiction of any particular State, they would not come within the terms of the statute. The well settled principle is that the courts of the United States can take no cognizance of any crimes, whether committed within admiralty jurisdiction or not, except as Congress shall have expressly conferred the authority by law, specifying the crimes to be tried by them, and the punishment to be inflicted. In The United States v. Wilson, 3 Blatch. 435, it was held that the Fed- eral courts " cannot take cognizance of criminal offenses of any grade, without the express appointment or direction of positive law;" and in The United States v. Bevans, 3 Wheat. 336, the same doctrine was stated by Chief Justice Marshall. {The United States v. Barney, 5 Blatch. 294 ; The United States v. Lancaster, 2 McLean, 431 ; and The United States v. Taylor, 1 Hughes, 514.) The courts of the United States are therefore limited, in the trial and punishment of admiralty crimes, to those that have been expressly designated by legislative enactment. There is no doubt that Congress has power to bring all the waters subject to admiral- ty jurisdiction, whether within the jurisdiction of a particular 60 ADMIRALTY AND MARITIME CASES. State or not, within the scope of criminal jurisprudence ; but Fed- eral courts have no power to carry this jurisprudence beyond the actual legislation of Congress giving them the requisite authority. {The United States v. Bevans, 3 Wheat. 336 ; and The United States v. Wiliberger, 5 Wheat. 76.) Section 563 of the Eevised Statutes of the United States pro- vides that the District Courts shall have jurisdiction "of all crimes and offenses cognizable under the authority of the United States, committed within their respectrve districts, or upon the high seas, the punishment of which is not capital, except in the cases mentioned in section 5,412." These excepted cases have no relation to admiralty jurisdiction. The criminal jurisdiction granted by this section to District Courts is qualified by three circumstances : 1. The crimes must be cognizable under the authority of the United States. 2. The crimes must be committed within their respective districts, or upon the high seas. 3. The crimes must not be punishable with death. In respect to the term " high seas," it was held, in The United States v. Wilson, 3 Blatch. 435, that " Congress, in its criminal legislation, uses the term high seas in its popular and natural sense, in contradistinction to mere tide-waters, flowing in ports, havens and basins, that are land-locked in their position, and sub- ject to territorial jurisdiction." {The United States v. Orush, 5 Mason, 290 ; The Schooner Harriet, 1 Story, 251 ; and Thomas v. Lane, 2 Sumner, 1.) The case was dismissed by Judge Betts on the ground that the offense charged in the indictment was not committed on the "high seas," and the prisoner ordered to be handed over to " the proper State authority." The Eevised Statutes of the United States, in section 5,339, speak of murder as being committed "upon the high seas, or in any arm of the sea, or in any river, haven, creek, basin, or bay, within the admiralty and maritime jurisdiction of the United States, and out of the jurisdiction of any particular State." This plainly distin- guishes between the " high seas " and other waters that are within admiralty jurisdiction. Tide-waters in havens, basins, bays, and rivers, though connected with the "high seas," do not constitute a portion of those seas. It results from this construction that no jurisdiction is given, in section 563 of the Eevised Statutes, to THE SUBJECTS OF THE JURISDICTION. 61 District Courts, over offenses not committed within their respect- ive districts, nor upon the high seas. Section 629 of these Statutes, in paragraph twenty, provides that the Circuit Courts shall have " exclusive cognizance of all crimes and offenses cognizable under the authority of the United States, except where it is or may be otherwise provided by law, and concurrent jurisdiction with the District Courts, of crimes and offenses cognizable therein." This gives to the Circuit Courts all the jurisdiction over crimes possessed by the District Courts, and extends their jurisdiction to such other crimes and offenses as by express statute are made cognizable under the au- thority of the United States. Congress has not seen fit to give to either class of courts a criminal jurisdiction in admiralty that, as to locality, is co- extensive with the jurisdiction granted in civil causes of admiralty. The policy of Congress, where the waters, though within admiralty jurisdiction, are also within the jurisdic- tion of a particular State, has been to leave the trial and punish- ment of crimes to the courts of that State, proceeding under State authority. Murder, for example, if committed within the admiralty and maritime jurisdiction of the United States, and also within the jurisdiction of a particular State, is not declared to be an offense against the United States, and is not cognizable under the author- ity thereof. It is an offense against the State within whose juris- diction it was committed, and is left to be dealt with by the courts of that State. Judge Betts, in The United States v. Wilson, 3 Blatch. 435, said : "It is no doubt within the competency of Con- gress to bring all waters, subject to Federal jurisdiction, within the scope of its criminal jurisprudence. This is manifestly the doctrine declared by the Supreme Court, in the case of The United States v. Bevans, 3 Wheat. 336, and in The United Stales v. Wiliberger, 5 "Wheat. 76. But the power is regarded as dor- mant, unless exercised by direct enactments of law." The procedure of the District and Circuit Courts, when sitting as courts of admiralty in criminal cases, is the same as that of courts of common law in the trial and punishment of crimes. This results from certain provisions of the Constitution. This in- strument says : " The trial of all crimes, except in cases of im- peachment, shall be by jury ; and such trial shall be held in the State where the said crimes shall have been committed ; but when 62 ADMIRALTY AND MARITIME CASES. not committed in any State, the trial shall be at such place or places as the Congress may by law have directed." The Fifth Amendment to the Constitution declares that " no person shall be held to answer for a capital or otherwise infamous crime, unless on presentment or indictment of a grand jury, ex- cept in cases arising in the land or naval forces, or in the militia when in actual service, in time of war or public danger." The Sixth Amendment provides as follows : " In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial by an impartial jury of the State and district where the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the na- ture and cause of the accusation, to be confronted with the wit- nesses against him, to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense." These provisions of the Constitution apply to all criminal trials in the courts of the United States, whether proceeding as courts of admiralty or courts of common law. The fact that the crimes come within admiralty jurisdiction, and are tried by the courts in the exercise of this jurisdiction, does not make it any the less necessary to comply with these constitutional require- ments. 2. CMl Causes.— Section 563 of the Eevised Statutes of the United States, in paragraph eight, provides that the District Courts shall have cognizance "of all civil causes of admiralty and maritime jurisdiction, saving to suitors in all cases the right of a common law remedy where the common law is competent to give it." This jurisdiction is declared to be exclusive, except in the particular cases in which jurisdiction of such causes is given to the Circuit Courts. As to what are such " civil causes" the statute is silent. This question is left to be determined by courts in exer- cising the jurisdiction and explaining its subject-matter, and espe- cially by the Supreme Court of the United States, as the final au- thority on the subject. (1.) Specification of Civil Causes. — Mr. Justice Story, in De Lovio v. Boit, 2 Gallison, 398, having in view this class of causes, and referring to the words used in the Constitution, said that these THE SUBJECTS OF THE JURISDICTION. 63 words " include jurisdiction of all things done upon or relating to the sea, or, in other words, all transactions and proceedings rela- tive to commerce and navigation and to damages and injuries upon the sea." Referring to the jurisdiction in " maritime contracts," he further said : "All civilians and jurists agree that, in this ap- pellation are included, among other things, charter-parties; af- freightments ; marine hypothecations ; contracts for maritime serv- ice in the building, repairing, supplying, and navigating ships ; contracts between part owners of ships ; contracts and quasi-con- tracts respecting averages, contributions, and jettisons ; and, what is more material to our present purpose, policies of insurance." The direct question before the court in this case, which was answered in the affirmative, was whether a marine insurance pol- icy is a contract coming within the admiralty and maritime juris- diction of the United States. The affirmative answer to this ques- tion was sustained by a very exhaustive examination of maritime law. Mr. Justice Clifford, in The Belfast, 7 Wall. 624, 637, gave the following enumeration of civil causes of admiralty jurisdic- tion : " The principal subjects of admiralty jurisdiction are maritime contracts and maritime torts, including captures jure belli, and seizures on water for municipal and revenue forfeitures. Con- tracts, claims, or service, purely maritime, and touching rights and duties appertaining to commerce and navigation, are cognizable in the admiralty. Torts or injuries committed on navigable waters, of a civil nature, are also cognizable in the admiralty courts. Ju- risdiction in the former case depends upon the nature of the con- tract, but in the latter it depends entirely upon locality. Mistakes need not be made if these rules are observed ; but contracts to be performed on waters not navigable, are not maritime any more than those made to be performed on land. Nor are torts cogniz- able in the admiralty unless committed on waters within the ad- miralty and maritime jurisdiction, as denned by law." In Ex parte Easton, 5 Otto, 68, 72, Mr. Justice Clifford said : " Wide differences of opinion have existed as to the extent of the admiralty jurisdiction ; but it may now be said, without fear of contradiction, that it extends to all contracts, claims and services essentially maritime, among which are bottomry bonds, contracts of affreightments and contracts for the conveyance of passengers, pilotage on the high seas, wharfage, agreements of consortship, surveys of vessels damaged by the perils of the seas, the claims of 64 ADMIRALTY AND MARITIME CASES. material-men, and others for the repair and outfit of ships be- longing to foreign nations or to other States, and the wages of mariners ; and also to civil marine torts and injuries, among which are assaults or other personal injuries, collision, spoliation and dam- age, illegal dispossession or withholding of possession from the owners of ships, controversies between part owners as to the em- ployment of ships, municipal seizures of ships, and cases of sal- vage and marine insurance." Mr. Benedict gives a full and detailed statement of the civil causes which have been recognized by courts as coming within admiralty jurisdiction, citing authorities in explanation of this jurisdiction in particular cases. (Benedict's Admiralty, pp. 147- 191.) (2.) The General Principle. — The general principle that un- derlies all cases of admiralty jurisdiction is that the jurisdiction rests upon a contract essentially maritime in its nature, whether express or implied, or upon the locality of the facts or occurrences which form the subject-matter of controversy between the parties. No case, not presenting one or the other of these features, comes within the limits of this jurisdiction. All these cases relate, either directly or indirectly, to ships or vessels, or some species of water-craft, considered as the instru- ments of navigation, and, through navigation, of commerce and the transportation of passengers. The ship or vessel in its uses, in what is implied in or necessary to these uses, and in the liabilities connected therewith, manifestly forms the central point of admi- ralty and maritime jurisdiction, as well as of the laws which it applies. A ship or vessel is an instrument of locomotion in water, and not on the land or in the air ; and to such instruments are at- tached the great interests of commerce and travel by water, and, through and in connection with them, these interests become sub- ject to the regulation of maritime law. The law is called mari- time because the sea is prominently the place of its operation. It is the law of the sea in distinction from a law that operates simply upon the land. (3.) Maritime Law. — All civilized nations, having a commerce with each other conducted by water, have had occasion to use ships for this purpose, and, from the earliest times, they have had a law for the sea and the navigable waters connected therewith, as THE SUBJECTS OF THE JURISDICTION. 65 well as courts to administer it. The purpose of this law is to sub- ject this branch of human affairs to the regulations, restraints, and protection of justice. This purpose being common to all nations, and the facts to be dealt with being to a large extent similar in all, the general principles of maritime law throughout the civilized world have presented a corresponding similarity. They all relate to ships or vessels as the instruments of commerce upon the sea and its connected navigable waters, and, to a very considerable ex- tent, embrace the same remedial rules. To these principles, especially as recognized and established in England and this country when the Constitution was adopted, the framers thereof referred when they declared that the judicial power of the United States shall extend to " all cases of admiralty and maritime jurisdiction." They did not define or explain this language, but assumed that the words, like "cases in law and equity," or "suits at common law," would be understood by courts when it became necessary to apply them, and especially that the Supreme Court of the United States would, as the occasion should arise, authoritatively determine their meaning for the whole country. On this point, Mr. Justice Bradley, in The Lottawanna, 21 "Wall. 558, 574, remarks : " The general system of maritime law which was familiar to the lawyers and statesmen of the country when the Constitution was adopted, was most certainly intended and referred to when it was declared in that instrument that the judicial power of the United States shall extend to all cases of ad- miralty and maritime jurisdiction." He adds that the Constitu- tion does not define the system, or " attempt to draw the boundary line between maritime law and local law," or " lay down any cri- terion for ascertaining that boundary." What the Constitution does is to adopt, in general terms, the system of maritime law as a distinct branch of jurisprudence, leav- ing the meaning of these terms and their application to be deter- mined by legal and judicial construction. It is worthy of notice that it extends the judicial power of the United States to "cases," that is to say, to the subjects or recognized matters to which ad- miralty and maritime jurisdiction is applicable, but does not de- clare what courts shall exercise this jurisdiction in the first in- stance or what shall be the extent of the power exercised by these 5 66 ADMIRALTY AND MARITIME CASES. courts, and does not prescribe any particular form or mode of procedure. Chief Justice Taney, in Meyer v. Meyer {The Steamer St. Lawrence), 1 Black, 522, 526, remarks : " Judicial power, in all cases of admiralty and maritime juris- diction, is delegated by the Constitution to the Federal Govern- ment in general terms, and courts of this character had then been established in all commercial and maritime nations, differing, how- ever, materially in different countries in the powers and duties confided to them ; the extent of the jurisdiction conferred depend- ing very much upon the character of the government in which they were created ; and this circumstance, with the general terms of the grant, rendered it difficult to define the exact limits of its power in the United States. This difficulty was increased by the complex character of our Government, where separate and distinct specified powers of sovereignty are exercised by the United States and a State independently of each other within the same territorial limits. And the reports of the decisions of this court will show that the subject has often been before it, and carefully considered, without being able to fix with precision its definite boundaries ; but certainly no State can enlarge it, nor can an act of Congress or rule of court make it broader than the judicial power may deter- mine to be its true limits. And this boundary is to be ascer- tained by a reasonable and just consideration of the words used in the Constitution, taken in connection with the whole instrument, and the purposes for which admiralty and maritime jurisdiction was granted to the Federal Government." . (4.) The Maritime Law of the United States. — The maritime law of the civilized nations, though similar in its general princi- ples, purposes, and reasons, is not precisely the same in all nations as to its various details, especially in those aspects of it which re- late to the condition and local laws of a particular country, and do not concern other countries. This general maritime law is not the law of any nation, except by its own adoption, and except so far as it may be adopted. It is in this respect like the common law, or the civil law, or international law, dependent on local adoption for its local operation and authority. Each nation may modify it in a way to suit its own necessities and wants. On this point, Mr. Justice Bradley, in The Lottawanna, 21 Wall. 558, 573, remarks : "It will be found, therefore, that the maritime codes of France, England, Sweden, and other countries, are not one and THE SUBJECTS OF THE JURISDICTION. 67 the same in every particular ; but that whilst there is a general correspondence between them, arising from the fact that each adopts the esseijtial principles and the great mass of the general maritime law, as the basis of its system, there are varying shades of difference corresponding to the respective territories, climate, and genius of the people of each country respectively. Each State adopts the maritime law, not as a code having any inde- pendent and inherent force, proprio vigore, but as its own law, with such modifications and qualifications as it sees fit. Thus adopted and thus qualified in each case, it becomes the maritime law of the particular nation that adopts it." Thai the United States have a maritime law, and that this law is one and the same in all parts of the country, admits of no doubt. As to the subjects embraced in this law, and the rules and regulations with reference to these subjects, by which the rights of parties in particular cases are to be determined, the legis- lation of Congress, within the sphere of its powers relating to commerce and to ships as the instruments thereof, and the decis- ions of the Supreme Court in regard to " cases of admiralty and maritime jurisdiction," must be taken as an authoritative statement and exposition. The " best guides as to the extent of the admiral- ty jurisdiction of the Federal courts," says Mr. Justice Clifford, in The Belfast, 7 Wall. 624, 636, " are the Constitution of the United States, the laws of Congress, and the decisions of this Court." The Constitution designates the " cases," or subjects to which the jurisdiction is applicable. Congress, by law, organizes the courts, confers upon them their authority, and, so far as it shall deem expedient, prescribes regulations for their observance. The Supreme Court is the final authority in settling all questions as to the meaning and application of the Constitution and the law. And thus we have a maritime law of the United States, and for the United States, alike authoritative and uniform in all parts thereof. « It is quite true that Congress cannot, any more than the Su- preme Court, originate admiralty and maritime jurisdiction, since this is granted, and, as to its subjects, defined by the Constitution ; yet Congress, in the exercise of its commercial power, which " em- braces the largest portion of the ground covered by " this jurisdic- tion, may pass a great variety of laws in respect to commerce, in respect to ships and vessels as the instruments thereof, and in re- 68 ADMIRALTY AND MARITIME CASES. spect to the rights and duties of seamen and ship-masters, which laws, being constitutional, furnish a rule for the guidance of the Federal courts in the exercise of their admiralty jurisdiction. This is precisely what Congress has done ; and, so far as it has thus legislated, the laws of Congress are a part of the maritime law of the United States. {The Lottawanna, 21 Wall. 558, 577.) 3. Prize Causes. — These causes, though generally placed under the head of civil causes of admiralty, are, nevertheless, sufficiently distinct from the ordinary character of such causes to make a class by themselves. • , Section 563 of the Eevised Statutes of the United States, hav- ing, in paragraph eight, given jurisdiction to the District Courts of " all civil causes of admiralty and maritime jurisdiction," pro- ceeds to declare that these courts " shall have exclusive and orig- inal jurisdiction of all prizes brought into the United States, ex- cept as provided in paragraph six of section 629." Jurisdiction, in the section here referred to, is given to the Circuit Courts, "of all proceedings for the condemnation of property taken as prize in pursuance of section 5308." Section 695 of the Eevised Statutes provides that " an appeal shall be allowed to the Supreme Court from all final decrees of any District Court in prize causes, when the matter in dispute, ex- clusive of costs, exceeds the sum or value of two thousand dollars, and shall be allowed, without reference to the value of the matter in dispute, on the certificate of the district judge that the adjtidi- cation involves a question of general importance," and that " the Supreme Court shall receive, hear, and determine such appeals, and shall always be open for the entry thereof." So, also, these Statutes, in Title LIV, supply a series of statu- tory regulations in respect to "all captures made as prize by au- thority of the United States, or adopted and ratified by the President of the United States." Some of these regulations re- late to the rights and duties of the captors, and others relate to the powers and duties of the prize court. The term " prize," in maritime law, means the apprehension and detention at sea of a ship or other vessel, by authority of a belligerent power, either with the design of appropriating it with the goods and effects it contains, or with that of becoming master of the whole or a part of its cargo. (1 C. Rob. Adm. 228.) THE SUBJECTS OF THE JURISDICTION. 69 Such captures of ships, or cargoes, or both, as prize, are either made or adopted by the authority of the Government, in the time of war and in the exercise of belligerent rights ; and this distin- guishes them from acts of piracy upon the high seas. They are not, by the law of nations, regarded as acts of robbery. They are, rather, one of the methods of prosecuting war. The property of an enemy, whether it be used in actual hostil- ity or not, is liable to such capture as the means of weakening his strength ; and so the property of neutral owners, if engaged in violating a blockade, or if it be contraband of war, or if in any way used in aid of the enemy, may be captured by the other bel- ligerent power, and appropriated as prize, in the exercise of the rights of war. This is a settled principle of international law. It was formerly held that the title to the property was vested in the captor, when the capture was complete, and the spes recup- erandi was gone. This, however, in the modern practice of na- tions, is not deemed sufficient to settle the question. The mere fact of capture does not necessarily prove that the capture is law- ful, or that the captured property is forfeited, and to be con- demned as a prize under the laws of war. The question whether a capture is lawful is essentially a judi- cial question, and is to be determined by a proceeding before a prize court,, which gives to all parties interested an opportunity to be heard. It is the duty of the captor, if possible, to bring the property into the country to which he belongs, and by whose au- thority he makes the capture, that the rightfulness of the act may be settled by the proper court of that country, which, in the United States, is the District Court. The Government under whose authority the capture was made, or by whose authority it has been adopted, claims the exclusive right of determining the question of its lawfulness, and, if lawful, of making such a disposition of the property as it shall see fit ; and this right it exercises through a prize court. (L 'Invincible, 1 Wheat. 238.) The law governing the decision in prize causes, except as to the disposition and distribution of the property, if the capture was lawful, is not the local or municipal law of any country, but rather the law of nations in application to belligerent rights. Captures, in order to be lawful, must be " made in the cases and upon the grounds recognized by the laws of war." The question is not simply one of individual and private rights, but also one of 70 ADMIRALTY AND MARITIME CASES. national rights, since every nation claims the right to protect property lawfully sailing under its own flag. If the captured property is forfeited under the recognized laws of war, then the court condemns it as lawful prize, and makes that distribution of it which the local law directs. If, on the other hand, it is not, in the opinion of the court, thus forfeited, then its duty is so to de- cree, and order its restoration to its proper owners. The captors themselves, though they in the first instance ob- tain possession, have no title to the property, except as they derive it from the authority of the government in whose name they made the capture, or by whose authority the capture was adopted. Hence, in all cases in which it is practicable, the property must be brought within the jurisdiction of this government, and the questions of fact and those of law involved must be determined by a prize court, in the mode provided by law for this purpose. The occasion for the exercise of the belligerent right of cap- ture arises only from the state of war which itself furnishes the occasion for the adjudications of a prize court ; and fortunately for the Government of the United States, its usual condition has been that of peace with the other nations of the earth. Though fully equipped with prize courts in the admiralty powers of the District Courts, it has had but little judicial business of this kind to perform. Prize cases in the United States are few in comparison with the " civil causes of admiralty and maritime ju- risdiction," which have come before the District Courts ; and these cases have arisen in "the maritime ports and harbors" of the country. SECTION IV. THE FORMS OF ADMIRALTY PROCEDURE. Proceedings in admiralty are divided into two general classes. The first class embraces proceedings in rem. The second class em- braces proceedings in personam. A brief explanation of these classes will form the subject of this section. 1. Proceedings in Rem.— The general characteristic of all proceedings in rem is, that they are brought against the thing it- self, the ship, its tackle and furniture, and not against its owner or THE FORMS OF ADMIRALTY PROCEDURE. 71 master. The thing itself is ordered to be seized and held subject to the decree of the court. The process of the court is confined to the specific thing which is seized and impleaded, and has no rela- tion to other property which may belong to the owner or master of the ship, or to persons, unless some one in the character of a claimant of the property seized " intervenes and assumes the re- sponsibilities of the controversy." In the sense of being the thing proceeded against, the thing seized is the defendant. The suit, in its essential substance, is really against all parties having or claim- ing any rights or interests in the thing seized ; and hence the de- cree of the court, in disposing of the case, is valid against all the world. (Benedict's Admiralty, pp. 218, 257.) The party bringing the suit is technically known as the libel- lant ; and his petition or complaint to the court, which in many respects is analogous to a complaint in an equity suit, is called a libel. This libel, being addressed to the proper District Court, or the judge thereof, and signed by the libellant, specifies the ship or thing to be seized, and the particular cause or causes for the seizure sought to be obtained. It prays that, in view of the recital of facts, a pro- cess in due form of law may be issued against the thing authoriz- ing its seizure by the proper officer of the court, and that all parties claiming any right or title therein may be cited to appear and answer upon oath such interrogatories as may be appended to the libel, and that the court would be pleased to decree to the libellant the relief asked and such further relief as law and justice may require. Such is the substance of the libel in a proceeding in rem, varying in its recital of facts according to the facts of each par- ticular case. It must, of course, upon its face, make out a case that comes within the admiralty and maritime jurisdiction of the court. This libel is the basis upon which the process for arrest or seizure is issued ; and no such seizure can be ordered until the libel is filed in the office of the clerk of the court. The first of the admiralty rules prescribed by the Supreme Court declares that " no mesne process shall issue from the District Courts in any civil cause of admiralty and maritime jurisdiction until the libel, or libel of information, shall be filed in the clerk's office from which such process is to issue." The foundation of a proceeding in rem is the existence of a 72 ADMIRALTY AND MARITIME CASES. maritime lien against the thing seized, created by law, and arising either ex contractu or quasi ex emtractu, or ex delicto or quasi ex delicto. The object of the proceeding is to enforce this lien or right. In The Pacific, 1 Blatch. 567, it was held, by Mr. Justice Nelson, that " a maritime contract depends upon its subject-matter, and, when entered into for the conveyance of goods or persons in a particular ship, it binds the ship," and that "her obligation results directly from the contract, and not from the performance, and the liability of the owner and that of the ship attach at the same time." Mr. Justice Field, in The Rock Island Bridge, 6 Wall. 213, 215, said : " A maritime lien, unlike a Ken at common law, may, in many cases, exist without the possession of the thing upon which it is asserted, either actual or constructive. It confers, however, upon its holder such a right in the thing that he may subject it to condemnation and sale to satisfy his claim or dam- ages; and when the lien arises from torts committed at sea, it travels with the thing, wherever it goes, and into whosesoever hands it may pass. The only object of the proceeding in rem is to make this right, where it exists, available — to carry it into effect. It subserves no other purpose. The lien and the proceed- ing in rem are, therefore, correlative — where one exists, the other can be taken, and not otherwise." The same doctrine, in substance, was stated by Mr. Justice Story in The General Smith, 4 Wheat. 438. " A maritime hen," said the Privy Council in The Bold Buc- cleugh, 7 Moore, 284, " is the foundation of the proceeding in rem, a process to make perfect a right inchoate from the moment the lien attaches ; and whilst it must be admitted that where such hen exists a proceeding in rem may be had, it will be found to be equally true that, in all cases where a proceeding in rem is the proper course, there a maritime lien exists, which gives a privilege or claim upon the thing to be carried into effect by legal process." The question whether a maritime hen exists, as the foundation for a proceeding in rem, is a question of maritime law, particu- larly of the country in which the case arises, and is to be deter- mined by the application of this law to the facts set forth in each case. Mr. Justice Field, in The Rock Island Bridge, supra, said: "A maritime lien can only exist upon movable things THE FORMS OF ADMIRALTY PROCEDURE. 73 engaged in navigation, or upon things which are the subjects of commerce on the high seas or navigable waters. It may arise with reference to vessels, steamers, and rafts, and upon goods and merchandise carried by them. But it cannot arise upon anything which is fixed and immovable, like a wharf, a bridge, or real estate of any kind." The doctrine stated by Mr. Justice Story in The General Smith, 4 Wheat. 438, was that "in respect to repairs and neces- saries in the port or State to which the ship belongs, the case is governed altogether by the municipal law of that State, and no lien is implied unless it is recognized by that law." This doctrine was followed and reaffirmed in The Zottawanna, 21 "Wall. 558. It was held, in The United States v. The Steamship Missouri, 9 Blatch. 433, that where Congress establishes a lien by express statute against a ship for a violation of the revenue laws of the United States, the hen may be enforced in admiralty by a pro- ceeding in rem against the ship for a recovery of the penalty. In Ex parte McNeil, 13 Wall. 236, it was held that " the statutes of the several States regulating the subject of pilotage are, in view of the numerous acts of Congress recognizing and adopt- ing them, to be regarded as constitutionally made, until Congress by its own acts supersedes them," and that "although a State statute cannot confer jurisdiction on a Federal court, it may yet give a right to which, other things allowing, such a court may give effect." The State law in this case gave a lien on the ship for the tender of pilotage services ; and this, not being in conflict with any law of the United States, was held to be enforceable by an admiralty proceeding in the proper Federal court. Judge Deady, in Holmes v. The 0. & C. Ry. Go. 5 Fed. Rep. 75, held that "when a passenger on the railway ferry-boat plying across the Wallamet river, between East Portland and Portland, was drowned by reason of the negligence of the owner of the boat or its servants, a marine tort was committed, for which a suit may be maintained in the District Court by the administrator of the deceased to recover damages given therefor " by a statute of the State of Oregon. The judge, while conceding that "a State cannot enlarge the jurisdiction or control the process of the national courts," claimed that " it may increase the cases in such courts by enlarging the class of persons and things included in their jurisdiction." He said that " if a right is of admiralty juris- 74 ADMIRALTY AND MARITIME CASES. diction, it is cognizable in the District Courts without reference to the residence of the parties or the origin of the right." Chief Justice Chase, in The Sea Gull, Chase's Decisions, 145, held that "the process to enforce the remedy for a wrong done or an injury incurred by the death of a person, may be either in per- sonam or m rem," and that " a husband can recover by a proceed- ing in rem against the vessel which caused the death of his wife, for the injury suffered by him thereby." In The Highland Light, Id. 150, he held that the statute of Maryland furnished " a clear right and plain remedy, and the right may be enforced in this court by an admiralty process." " The right," he said, "is quite separate from the remedy. The rights, like that of a statute lien upon a vessel for repairs in home ports, may be enforced in admiralty by its own processes. It is not necessary to pursue the statutory remedy in order to enforce the statutory right. It is clear, therefore, that for an injury, such as that proved in this case, the wife and son of the man killed may have redress in admiralty." This was said with reference to the statute of Mary- land giving the right for a tort committed on the navigable waters of that State. The general principle of law would seem to be that where a maritime lien exists, whether growing out of a maritime contract or a maritime tort, and whether founded upon a statute of the United States, or upon a right given by the statute of a State, it may be enforced in a District Court of the United States by a proceeding in rem. " The origin of the right " does not deter- mine the question of jurisdiction. This proceeding, however, is strictly an admiralty proceeding ; and when the cause is cognizable in a District Court of the United States, no State law can confer jurisdiction upon a State court to enforce a maritime lien by a proceeding in rem. In The Moses Taylor, 4 Wall. 411, it was held that "a statute of California, which authorizes actions in rem against vessels for causes of action cognizable in the admiralty, to that extent attempts to invest her courts with admiralty jurisdiction." On this ground the decision of the State court was reversed, and the cause remanded with directions to dismiss the action for want of jurisdiction. In The Hine v. Trevor, 4 Wall. 555, it was held that " State statutes which attempt to confer upon State courts a remedy for marine torts and marine contracts, by proceedings strictly in rem, THE FORMS OF ADMIRALTY PROCEDURE. 75 are void, because they are in conflict with the act of Congress, except as to cases arising on the lakes and their connecting waters." This exception which depended on the Act of February 26th, 1845 (5 U. S. Stat, at Large, 726), was, in The Eagle, 8 Wall. 15, 26, regarded as practically obsolete and of no effect. In The Belfast, 7 Wall. 624, it was held that State legislatures cannot confer jurisdiction upon State courts to enforce maritime liens " by a suit or proceeding in rem, as practiced in admiralty courts." The jurisdiction of the latter courts in such proceedings is, therefore, exclusive of any concurrent jurisdiction by the former. Judge Hughes, in Stewart v. The Potomac Ferry Co., 12 Fed. Rep. 296, held that what was known as "the original vessel-hen law," as last amended on March 12th, 1878, under which an attachment could be sued out from a State court against a steam- boat or other vessel, if the steamboat or vessel be found within the jurisdiction of the State, is, in effect, an attempt, by a State statute, to give " for a maritime cause of action a proceeding in rem specifically against a ship as the debtor or offender," and is, therefore, inconsistent with " the third classification of causes in section 711 of the Revised Statutes of the United States, giving cognizance to the admiralty courts, exclusive of State courts, of all civil causes of admiralty and maritime jurisdiction." He ad- mitted that since "the decision of the United States Supreme Court in The Steamboat Go. v. Chase, 16 Wall. 522, common law suits are maintainable against ships of commerce for causes of action arising at common law," and that " a State has power to annex to suits for such causes of action auxiliary remedies, like foreign attachment, for the purpose of subjecting property of non- residents to the payment of debts due her own citizens." But this does not, in the opinion of Judge Hughes, authorize a State to " give a special lien upon a ship for a cause of action pe- culiarly of admiralty cognizance, and provide a remedy by attach- ment for its enforcement specifically and directly against the par- ticular vessel as the debtor or offender." The proceedings in this case, taken under " the Yirginia-vessel-lien-law," were regarded as " substantially a libel in rem and in personam in admiralty," and, on this account, not within the jurisdiction of the State court, ac- cording to the well-settled doctrine of the Supreme Court of the United States. The proceeding in rem is not a common law rem- 76 ADMIRALTY AND MARITIME CASES. edy, and, in all civil causes of admiralty and maritime jurisdiction, belongs exclusively to the Federal courts, and hence the authority for such proceedings cannot by State laws be conferred upon , State courts. 2. Proceedings in Personam. — This class of suits is brought against persons, and not against ships or vessels, for some cause within the admiralty jurisdiction of the court. The process, as in a case at common law, acts upon the person sued, and the decree of the court acts upon " his property generally, without regard to its relation to the matter in controversy." In principle there is no difference between such a suit and an ordinary action at common law. The court is different and the procedure different, yet the nature of the action is substantially the same in both cases. (Ben- edict's Admiralty; and Duryee v. Elhins, 1 Abb. Ad. 529.) The libel, or petition of the complainant, in a proceeding in personam, being addressed to the proper court or judge thereof, and signed by the libellant, specifies the party against whom the suit is brought, and also the causes of the action in detail. It prays for a process of monition, summoning this party to appear before the court at the place and time designated therein, and answer thereto according to the course in admiralty courts. It asks for the relief named in the libel, and such other and further relief as justice may require. If interrogatories are appended to the libel it asks that the party may be required to answer the same. If a warrant of arrest is sought, this is included in the libel ; and if an attachment upon the goods, chattels, and credits of the defendant is desired, this also is included. As in the proceeding in rem, so also in that in personam, no process, for these purposes, or any of them, can issue until the libel is filed in the office of the clerk of the court. This form of proceeding was in common use in the English ad- miralty courts long prior to the proceeding in rem. The usual course of admiralty practice, in the earlier periods, was not to ar- rest and seize the vessel, " except in cases where the owners or master were absent, or where a mere question of privilege or pref- erence was to be decided." (Benedict's Admiralty, p. Ill ; and The Merchant, 1 Abb. Ad. 1.) The jurisdiction in admiralty does not depend upon the ques- tion whether the proceeding is in rem or in personam, but upon THE FORMS OF ADMIRALTY PROCEDURE. 77 the question whether the subject-matter of the suit comes within the admiralty and maritime jurisdiction of the United States. " If the cause is a maritime cause, subject to the admiralty cognizance, jurisdiction is complete over the person as well as the ship. It must in its nature be complete, for it cannot be confined to one of the remedies on the contract, when the contract in itself is within its cognizance." (Benedict's Admiralty, p. Ill ; Andrews v. Wall, 3 How. 568 ; Cutler v. Rae, 7 How. 729 ; The JVew Jersey Steam Nav. Co. v. The Merchants' Bank, 6 How. 344; and Davis v. Child, 2 Ware, 78.) If a ship or the proceeds thereof, subject to a maritime lien, have, by assignment or otherwise, passed into the hands of third parties, an action in personam may be brought against these par- ties. {Sheppard v. Taylor, 5 Pet. 575.) 3. Proceeding toy Either Method. — Where the cause of ac- tion gives the right to proceed in rem against the ship or vessel, or in personam against the master or owner, the libellant may bring his suit in either form, at his own election. The admiralty rules, prescribed by the Supreme Court, provide for this right in suits by material-men, in suits for mariners' wages, in suits for pilotage, in suits for damages by collision, in suits for hypotheca- tion, in suits on bottomry bonds with certain qualifications, and in suits for salvage services. The libellant may bring his action ac- cording to either method in these cases, subject to the qualification named in suits on bottomry bonds. The seventeenth of these rules, however, provides that " in all suits for an assault or beating on the high seas, or elsewhere within admiralty and maritime jurisdiction, the suit shall be in personam only." This expressly excludes the proceeding in rem. The general rule of admiralty is that, where the cause gives jurisdiction to the court, the court may exercise that jurisdiction in either way, and hence that either way is available to the libel- lant. 4. Joinder of the two Proceedings. — Mr. Benedict says that " in certain cases the proceedings in rem and the proceedings in personam may be united in the same suit, for the purpose of more complete justice." He adds that " wherever the libellant's cause of action gives him, at the same time, a lien or privilege 78 ADMIRALTY AND MARITIME CASES. against the thing and a full personal right against the owner, he may by a libel, properly framed, proceed against the person and the thing, and compel the owner to come in and submit to the decree of the court against him personally, in the same suit, for any possible deficiency." (Benedict's Admiralty, pp. 219, 234.) Judge Cohkling, on the other hand, thinks this to be an " ex- tremely questionable" position. (2 Conk. U. S. Adm. 42.) Mr. Justice Story, in The N. C. Bank v. N. S. Co., 2 Story, 16, which case was decided in 1841, said : " In case of collision, the injured party may proceed in rem or in personam, or successively in each way until he has full satisfaction ; but I do not understand how the proceedings can be blended in one libel." {The Ann, 1 Mass. 512; and The Cassius, 2 Story, 99.) The question is simply one of procedure ; and in regard to it the admiralty rules, adopted by the Supreme Court in 1845, fur- nish the guide to the District Courts, certainly so in all the cases to which they apply. These rules are as follows : Kule 12. — " In all suits by material-men for supplies or repairs, or other necessaries, the libellant may proceed against the ship and freight in rem, or against the master or owner alone in per- sonam." Here is a provision for either mode of proceeding in this class of suits, but none for their combination in the same suit. Rule 13. — " In all suits for mariners' wages the libellant may proceed against the ship, freight, and master, or against the ship and freight, or against the owner or the master alone in per- sonam." This provides for a combination of the two modes of proceeding against "the ship, freight, and master," but for no other combination of the proceedings. Kule 14. — " In all suits for pilotage the libellant may proceed against the ship and master, or against the ship, or against the owner alone, or the master alone in personam." Here also is a provision for combining the proceedings against "the ship and master," not including the freight. Rule 15. — "In all suits for damage by collision the libellant may proceed against the ship and master, or against the ship alone, or against the master or the owner alone in personam," This gives the right of joinder of the two proceedings against " the ship and master," but extends the right no further. There cannot under this rule be a joinder of proceedings against the 6hip and the owner, unless the owner happens also to be the master of the THE FORMS OF ADMIRALTY PROCEDURE. 79 ship. (The Clatsop Chief, 8 Fed. Kep. 163, 165 ; The Zodiac, 5 Fed. Eep. 223 ; The Richard Doane, 2 Ben. Ill ; and Newell v. Norton and Ship, 3 Wall. 257.) Rule 16. — This relates to suits for assault and battery, and limits the libellant to a proceeding in personam alone, necessarily excluding the proceeding in rem. Rule 17. — " In all suits against the ship and freight, founded upon a mere maritime hypothecation, either express or implied, of the master, for moneys taken up in a foreign court for supplies or repairs or other necessaries for the voyage, without any claim of marine interest, the libellant may proceed either in rem, or against the master or the owner alone in personam." In regard to this rule Mr. Benedict remarks : " In these case6 money is borrowed by the master, on the responsibility of the owner, and the ship is mortgaged for security. The ship, the master, and the owner are all liable for the debts, and may on principle be joined in the action." (Benedict's Admiralty, p. 232.) Rule 18. — " In all suits on bottomry bonds, properly so called, the suit shall be in rem only against the property hypothecated, or the proceeds of the property, in whosoever hands the same may be found, unless the master has, without authority, given the bot- tomry bond, or by his fraud or misconduct has avoided the same, or has subtracted the property, or unless the owner has by his own misconduct or wrong lost or subtracted the property, in which latter cases the suit may be in personam against the wrong-doer." This confines the suit to a proceeding in rem, except in the cases specified. Rule 19. — " In all suits for salvage, the suit may be in rem against the property saved, or the proceeds thereof, or in personam against the person at whose request and for whose benefit the salvage service has been performed." In The Sabine, 11 Otto, 384, it was held that " salvors cannot in the same libel proceed in rem against a vessel and in personam against the consignees of her cargo." Rule 20. — "In all petitory and possessory suits between part owners or adverse proprietors, or by the owners of a ship or a ma- jority thereof, against the master of a ship, for the ascertainment of the title and delivery of the possession, or for the possession only, or by one or more part owners against the others, to obtain security for the return of the ship from any voyage undertaken 80 ADMIRALTY AND MARITIME CASES. without their consent, or by one or more part owners against the others, to obtain possession of the ship for any voyage, upon giv- ing security for the safe return thereof, the process shall be by an arrest of the ship, and by a monition to the adverse party or par- ties to appear and make answer to the suit." These provisions specify the cases, with the mode of remedy, enumerated in the admiralty rules adopted by the Supreme Court. As to other cases not thus specified, yet within admiralty jurisdic- tion, they prescribe no rule for the District Courts. Mr. Benedict expresses the opinion that they are not " exclusive of any other joinders of persons or property which may be authorized by sound principle." On this point he says : " All rights against the thing to recover a demand, are in the nature of a mortgage or hypothe- cation. The thing is pledged either by operation of law, or by the act of the parties, and the rule of the civil law was, that the party had his choice to proceed against the party, or the thing, or both. The specification of particular causes of action, in Eules 12 to 20, inclusive, is therefore presumed not to exclude other causes of action, but to be intended only to lay down a rule in those enu- merated cases, leaving others to the operation of analogous princi- ples, or of the general rule." (Benedict's Admiralty, pp. 233, 234.) The two forms of proceeding rest on the same ground as to the general question of jurisdiction ; and, though in some respects different, they are not so different, or so incompatible with each other, as to preclude their combination in the same suit where this will best serve the purposes of justice. {Manro v. Almeida, 10 Wheat. 473 ; and The Zenobia, Abb. Ad. 52.) Where both forms are combined, the libel prays for a process against the ship or ves- sel, and also against the party named in respect to whom the suit is a proceeding in personam. SECTION V. THE REMEDY AT COMMON LAW. The ninth section of the Judiciary Act of 1789 (1 U. S. Stat, at Large, 73), which gave to the District Courts their jurisdiction in civil causes of admiralty, saved " to suitors in all cases, the right of a common law remedy, where the common law is competent to THE REMEDY AT COMMON LAW. 81 give it." This provision is reproduced and continued in section 563 of the Revised Statutes of the United States. The right here reserved or saved is to " suitors," or the parties bringing suits ; and it is so saved in their behalf " in all cases," with the qualification specified. That qualification, is that "suitors," instead of bringing a suit in admiralty, may resort to " a common law remedy " for the relief sought, " where the com- mon law is competent to give it." In such cases they are not ex- cluded from the remedy at common law, and hence not confined to the remedy in admiralty. They have the right of seeking relief by either remedy, as they themselves shall elect. Such is the ob- vious meaning of the language. This language has been the subject of judicial construction. Mr. Justice Nelson, in stating the opinion of the court, in The New Jersey Steam Nav. Co. v. The Merchants Bank, 6 How. 344, 390, said : " The saving clause was inserted probably from abundant caution, lest the exclusive terms in which the power is conferred on the District Courts, might be deemed to have taken away the concurrent remedy which had before existed. This leaves the concurrent power where it stood at common law." Referring to this saving clause in the Judiciary Act of 1789, in Waring v. Clarke, 5 How. 441, 461, Mr. Justice Wayne said : " The saving is for the benefit of suitors, plaintiff and defendant, when the plaintiff in a case of concurrent jurisdiction, chooses to sue in the common law courts, so giving to himself and the de- fendant all the advantages which such tribunals can give to suitors in them. It certainly could not have been intended more for the benefit of the defendant than for the plaintiff, which would be the case if he could at his will force the plaintiff into a common law court, and in that way release himself and his property from all the responsibilities which a court of admiralty can impose upon both, as a security and indemnity for injuries of which a libellant may complain, — securities which a court of common law cannot give." The clause does not make the jurisdiction of common law courts, exclusive in such cases, but simply permits it to be concur- rent with that of the District Courts of the United States. In The Hine v. Trevor, 4 Wall. 556, it was held that State statutes which attempt to confer upon State courts a remedy for marine torts and marine contracts, by proceedings strictly m rem, " do not come within the saving clause of the Act of 1789, con- 6 82 ADMIRALTY AND MARITIME CASES. cerning a common law remedy." Mr. Justice Miller, referring in this case to the ninth section of the Judiciary Act, said : " But it could not have been the intention of Congress, by the exception in that section, to give to the suitor all such remedies as might after- wards be enacted by State statutes, for this would have enabled the States to make the jurisdiction of their courts concurrent in all cases, by simply providing a statutory remedy for all cases. Thus the exclusive jurisdiction of the Federal courts would be de- feated." Mr. Justice Clifford, in Leon v. Oalceran, 11 "Wall. 185, 191, said : " Suitors, by virtue of the saving clause in the ninth section of the Judiciary Act, conferring jurisdiction in admiralty upon the District Courts, have the right of a common law remedy in all cases where the common law is competent to give it, and the com- mon law is as competent as the admiralty to give a remedy in all cases where the suit is in personam against the owner of the prop- erty." He added : " Common law remedies are not competent to enforce a maritime lien by a proceeding in rem, and consequently the original jurisdiction to enforce such a lien by that mode of proceeding is exclusive in the District Courts." Mr. Justice Field, in The Moses Taylor, 4 "Wall. 411, 431, re- marked : " The case before us is not within the saving clause of the ninth section. That clause only saves to suitors the right of a common law remedy, where the common law is competent to give it. It is not a remedy in the common law courts, but a common law remedy. A proceeding in rem, as used in the admiralty courts, is not a remedy afforded by the common law ; it is a pro- ceeding under the civil law. When used in the common law courts, it is given by statute." In The Belfast, 7 Wall. 624, 644, Mr. Justice Clifford said : " State legislatures have no authority to create a maritime lien, nor can they confer any jurisdiction upon a State court, to enforce such a lien by a suit or proceeding in rem, as practiced in the ad- miralty courts. Observe the language of the saving clause under consideration. It is to suitors, and not to the State courts, nor to the Circuit Courts of the United States. Examined carefully, it is evident that Congress intended by that provision to allow the party to seek redress in the admiralty if he saw fit to do so, but not to make it compulsory in any case where the common law is competent to give him a remedy. Properly construed, a party THE REMEDY AT COMMON LAW. 83 under that provision may proceed in rem in the admiralty, or he may bring a suit in personam in the same jurisdiction, or he may elect not to go into admiralty at all, and may resort to his com- mon law remedy in the State courts, or in the Circuit Court of the United States, if he can make proper parties to give that court jurisdiction of his case." In The Steamboat Company v. Chase, 16 Wall. 522, the fol- lowing doctrine was held by the court : " A statute of a State giving to the next of kin of a person crossing upon one of its public highways with reasonable care, and killed by a common carrier, by means of a steamboat, an action on the case for dam- ages for the injury caused by the death of such person, does not interfere with the admiralty jurisdiction of the District Courts of the United States, as conferred by the Constitution and the Judi- ciary Act of September 24th, 1789 ; and this is so, even though no such remedy, enforceable through the admiralty, existed when the said act was passed, or has existed since." The action in this case was originally brought in a court of Rhode Island, and the right to the action against The Steamboat Company, as a common carrier, was given by a special statute of that State enacted in 1853. The wrongful act for which the suit, under the State statute, was brought, was committed on public waters within admiralty jurisdiction ; and the action not being in rem, but simply an action on the case for the recovery of damages, the Supreme Court of the United States held that it was within the jurisdiction of the State court, and that the State statute was not inconsistent with the admiralty jurisdiction of the District Courts as bestowed by Congress. The conclusion to be drawn from these cases is, that if the suitor proposes to proceed in rem, by filing a libel against a ship or vessel, for the purpose of enforcing a maritime lien, he must bring his action in a District Court of the United States, since this form of proceeding is practicable only in such a court. If he proposes to proceed in personam, by filing his libel, not against the ship, but against its master or owner, then he may bring his action in the same court. If, however, he does not choose to avail himself of admiralty jurisdiction at all, then he may resort to a common law remedy, if the common law is competent to give him such a remedy, and for this purpose may bring a personal ac- tion in a State court against the master or owner of the ship, or 84 ADMIRALTY AND MARITIME CASES. may bring such an action in the Circuit Court of the United States, provided the parties are such as to give that court jurisdic- tion of the case. SECTION" VI. ADMIRALTY RULES. Congress, by the Act of September 29th, 1789 (1 U. S. Stat, at Large, 93), provided that, until further provision shall be made, " the forms and modes of proceedings in causes of equity and of admiralty and maritime jurisdiction, shall be according to the course of the civil law." By the second section of the Act of May 8th, 1792 (1 U. S. Stat, at Large, 275), Congress further provided that the proceed- ings in cases " of equity and in those of admiralty and maritime jurisdiction" shall be "according to the principles, rules, and usages which belong to courts of equity and to courts of admiralty respectively, as contradistinguished from courts of common law," and that these rules shall be subject to any alterations, additions, or regulations which "the Supreme Court of the United States shall think proper from time to time by rule to prescribe to any Circuit or District Court." The substance of these provisions is reproduced in section 913 of the Revised Statutes of the United States. Section 917 of these Statutes reproduces the substance of section six of the Act of August 23d, 1842, relating to the same subject. (5 U. S. Stat, at Large, 516.) The Supreme Court, proceeding under the authority thus granted, has prescribed the following rules for the guidance of the Federal courts in the exercise of their admiralty and maritime jurisdiction in civil cases. Rule No. 1. The Process. — No mesne process shall issue from the District Courts in any civil cause of admiralty and maritime jurisdiction, until the libel, or libel of information, shall be filed in the clerk's office from which such process is to issue. AH process shall be served by the marshal or by his deputy, or, where he or they are interested, by some discreet and disinterested person appointed by the court. ADMIRALTY RULES. 85 Rule JSTo. 2. Suits in personam. — In suits in personam, the mesne pro- cess may be by a simple warrant, of arrest of the person of the defendant, in the nature of a capias, or by a warrant of arrest of the person of the defendant, with a clause therein that, if he cannot be found, to attach his goods and chattels to the amount sued for ; or if such property cannot be found, to attach his credits arid effects to the amount sued for in the hands of garnishees named therein, or by a simple monition in the nature of a summons to appear and answer to the suit, as the libellant shall, in his libel or information, pray for or elect. Rule No. 3. Bail for Appearance. — In all suits in personam, where a simple warrant of arrest issues and is executed, the marshal may take bail, with sufficient sureties, from the party arrested, by bond or stipulation, upon condition that he will appear in the suit and abide by all orders of the court, interlocutory or final, in the cause, and pay the money awarded by the final decree rendered therein in the court to which the process is returnable, or in any appellate court. And upon such bond or stipulation, summary process of execution may and shall be issued against the principal and sureties by the court to which such process is returnable, to enforce the final decree so rendered, or upon appeal by the appellate court. Rule No. 4. Attachments. — In all suits in personam, where goods and chattels, or credits and effects are attached under such warrant authorizing the same, the attachment may be dissolved by order of the court to which the same warrant is returnable, upon the de- fendant whose property is so attached giving a bond or stipulation, with sufficient sureties, to abide by all orders, interlocutory or final, of the court, and pay the amount awarded by the final decree rendered in the court to which the process is returnable, or in any appellate court ; and upon such bond or stipulation, sum- mary process of execution shall and may be issued against the principal and sureties by the court to which such warrant is return- able, to enforce the final decree so rendered, or upon appeal by the appellate court. Rule No. 5. Bonds and Stipulations. — Bonds or stipulations in admiralty suits may be given and taken in open court, or at chambers, or before any commissioner of the court who is authorized by the 86 ADMIRALTY AND MARITIME CASES. court to take affidavits of bail and depositions in cases pending before the court, or any commissioner of the United States author- ized by law to take bail and affidavits in civil cases. Rule No. 6. Reduction of Bail. — In all suits in personam, where bail is taken, the court may, upon motion, for due cause shown, reduce the amount of the sum contained in the bond or stipulation there- for ; and in all cases where a bond or stipulation is taken as bail, or upon dissolving an attachment of property as aforesaid, if either of the sureties shall become insolvent pending the suit, new sureties may be required by the order of the court, to be given upon motion, and due proof thereof. Rule No. 7. Warrant of Arrest. — In suits in personam, no warrant of arrest, either of the person or property of the defendant, shall issue for a sum exceeding five hundred dollars, unless by the special order of the court, upon affidavit or other proper proof showing the propriety thereof. Rule No. 8. The Ship's Tackle, &c. — In all suits in rem against a ship, her tackle, sails, apparel, furniture, boats or other appurtenances, if such tackle, sails, apparel, furniture, boats, or other appurtenances are in the possession or custody of any third person, the court may, after a due monition to such third person, and a hearing of the cause, if any, why the same should not be delivered over, award and decree that the same be delivered into the custody of the mar- shal or other proper officer, if, upon the hearing, the same is re- quired by law and justice. Rule No. 9. Cases of Seizure. — In all cases of seizure, and in other suits and proceedings in rem, the process, unless otherwise provided for by statute, shall be by a warrant of arrest of the ship, goods, or other thing to be arrested ; and the marshal shall thereupon arrest and take the ship, goods, or other thing into his possession for safe custody, and shall cause public notice thereof, and of the time assigned for the return of such process and the hearing of the cause, to be given in such newspaper within the district as the District Court shall order ; and if there is no newspaper published therein, then in such other public places in the district as the court shall direct. ADMIRALTY RULES. 87 Eule No. 10. _ Perishable Property.— In all cases where any goods or other things are arrested, if the same are perishable, or are liable to deterioration, decay, or injury, by being detained in custody pend- ing thesuit, the court may, upon the application of either party, in its discretion, order the same or so much thereof to be sold as shall be perishable or liable to depreciation, decay, or injury ; and the proceeds, or so much thereof as shall be a full security to satisfy the decree, to be brought into the court to abide the event of the suit ; or the court may, upon the application of the claimant, order a delivery thereof to him, upon a due appraisement, to be had under its direction, either upon the claimant's depositing in the court so much money as the court shall order, or upon his giving a stipulation, with sureties, in such sum as the court shall direct, to abide by and pay the money awarded by the final decree rendered by the court, or the appellate court, if any appeal intervenes, as the one or the other course shall be ordered by the court. Eule No. 11. Delivery of Ship to Claimant. — In like manner, where any ship shall be arrested, the same may, upon the application of the claimant, be delivered to him, upon a due appraisement, to be had under the direction of the court, upon the claimant's depositing in court so much money as the court shall order, or upon his giving a stipulation, with sureties, as aforesaid ; and if the claimant shall decline any such application, then the court may, in its discretion, upon the application of either party, upon due cause shown, order a sale of such ship, and the proceeds thereof to be brought into court, or otherwise disposed of, as it may deem most for the bene- fit of all concerned. Eule No. 12. . Material-men. — In all suits by material-men for supplies or repairs, or other necessaries, the libellant may proceed against the ship and freight in rem, or against the master or owner alone in personam. Eule No. 13. Mariners' Wages. — In all suits for mariners' wages, the libel- lant may proceed against the ship, freight, and master, or against the ship and freight, or against the owner or the master alone in personam. 88 ADMIRALTY AND MARITIME CASES. Eule No. 14. Pilotage Suits. — In all suits for pilotage the libellant may proceed against the ship and master, or against the ship, or against the owner alone or the master alone in personam. Eule No. 15. Collisions. — In all suits for damage by collision, the libellant may proceed against the ship and master, or against the ship alone, or against the master or the owner alone in personam. Eule No. 16. Assault and Battery. — In all suits for an assault or beating on the high seas, or elsewhere within the admiralty and maritime jurisdiction, the suit shall be in personam only. Eule No. 17. Hypothecations. — In all suits against the ship or freight, founded upon a mere maritime hypothecation, either express or implied, of the master, for moneys taken up in a foreign port for supplies or repairs or other necessaries for the voyage, without any claim of marine interest, the libellant may proceed either in rem, or against the master or the owner alone in personam. Eule No. 18. Bottomry Bonds. — In all suits on -bottomry bonds, properly so-called, the suit shall be in rem only against the property hypo- thecated, or the proceeds of the property, in whosesoever hands the same may be found, unless the master has, without authority, given the bottomry bond, or by his fraud or misconduct has avoided the same, or has subtracted the property, or unless the owner has, by his own misconduct or wrong, lost or subtracted the property, in which latter cases the suit may be in personam against the wrong-doer. Eule No. 19. Salvage. — In all suits for salvage, the suit may be in rem against the property saved or the proceeds thereof, or in personam against the party at whose request and for whose benefit the sal- vage service has been performed. Eule No. 20. Petitory and Possessory Suits. — In all petitory and posses- sory suits between part owners or adverse proprietors, or by the ADMIRALTY RULES. 89 owners of a ship, or the majority thereof, against the master of a ship, for the ascertainment of the title and delivery of the posses- sion, or for the possession only, or by one or more part owners against the others, to obtain security for the return of the ship from any voyage undertaken without their consent, or by one or more part owners against the others, to obtain possession of the ship for any voyage, upon giving security for the safe return thereof, the pro- cess shall be by an arrest of the ship, and by a monition to the ad- verse party or parties to appear and make answer to the suit. Kule No. 21. Enforcement of Final Decree.— In all cases of a final decree for the payment of money, the libellant shall have a writ of exe- cution, in the nature of a fieri facias, commanding the marshal or his deputy to levy and collect the amount thereof, out of the goods and chattels, lands and tenements, or other real estate, of the defendant or stipulators. Rule No. 22. Seizures for "Violations of Law. — All informations and li- bels of information upon seizures for any breach of the revenue, or navigation, or other laws of the United States, shall state the place of seizure, whether it be on land or on the high seas, or on navigable waters within the admiralty and maritime jurisdiction of the United States, and the district within which the property is brought, and where it then is. The information or libel of in- formation shall also propound, in distinct articles, the matters re- lied on as grounds or causes of forfeiture, and aver the same to be contrary to the form of the statute or statutes of the United States in such case provided, as the case may require, and shall conclude with a prayer of due process to enforce the forfeiture, and to give notice to all persons concerned in interest, to appear and show cause at the return day of the process, why the forfeit- ure should not be decreed. Rule No. 23. Libels in Instance Cases. — All Libels in instance causes, civil or maritime, shall state the nature of the cause ; as, for example, that it is a cause, civil and maritime, of contract, or of tort or damage, or of salvage, or of possession, or otherwise, as the case may be ; and if the libel be in rem, that the property is within the district ; and if in personam, the names and occupations and places of residence of the parties. The libel shall also propound and articulate in distinct articles the various allegations of fact upon which the libellant relies in support of his suit, so that the 90 ADMIRALTY AND MARITIME CASES. defendant may be enabled to answer distinctly and separately the several matters contained in each article ; and it shall conclude with a prayer of due process to enforce his rights, in rem or in personam (as the case may require), and for such relief and re- dress as the court is competent to give in the premises. ■ And the libellant may further require the defendant to answer on oath all interrogatories propounded by him touching all and singular the allegations in the libel at the close or conclusion thereof. Ecle No. 24. Amendments to Libels. — In all informations and libels in causes of admiralty and maritime jurisdiction, amendments in mat- ters of form may be made at any time, on motion to the court, as of course. And new counts may be filed, and amendments in matters of substance may be made, upon motion, at any time be- fore the final decree, upon such terms as the court shall impose. And where any defect of form is set down by the defendant upon special exceptions, and is allowed, the court may, in granting leave to amend, impose terms upon the libellant. Eule ISTo. 25. Security for Costs. — In all cases of libels in personam, the court may, in its discretion, upon the appearance of the defend- ant, where no bail has been taken, and no attachment of property has been made to answer the exigency of the suit, require the de- fendant to give a stipulation, with sureties, in such sum as the court shall direct, to pay all costs and expenses which shall be awarded against him in the suit, upon the final adjudication there- of, or by any interlocutory order in the progress of the suit. Eule No. 26. Teriflcation of Claim. — In suits in rem, the party claiming the property shall verify his claim on oath or solemn affirmation, stating that the claimant by whom or on whose behalf the claim is made, is the true and oonafide owner, and that no other person is the owner thereof. And where the claim is put in by an agent or consignee, he shall also make oath that he is duly authorized thereto by the owner ; or if the property be, at the time of the arrest, in the possession of the master of a ship, that he is the law- ful bailee thereof for the owner. And, upon putting in such claim, the claimant shall file a stipulation, with sureties, in such sum as the court shall direct, for the payment of all costs and ex- penses which shall be awarded against him by the final decree of the court, or, upon an appeal, by the appellate court. ADMIRALTY RULES. 91 Eule No. 27. Answer Yerifled. — In all libels in causes of civil and mari- time jurisdiction, whether in rem or in personam, the answer of the defendant to the allegations in the libel shall be on oath or solemn affirmation, and the answer shall be full and explicit and distinct to each separate article and separate allegation in the libel, in the same order as numbered in the libel, and shall also answer in like manner each interrogatory propounded at the close of the libel. Eule No. 28. Exceptions to Answer. — The libellant may except to the suf- ficiency, or fullness, or distinctness, or relevancy of the answer to the articles and interrogatories in the libel ; and, if the court shall adjudge the same exceptions, or any of them, to be good and valid, the court shall order the defendant forthwith, within such time as the court shall direct, to answer the same, and may further order the defendant to pay such costs as the court shall adjudge rea- sonable. Eule No. 29. Failure to Answer. — If the defendant shall omit or refuse to make due answer to the libel upon the return day of the pro- cess, or other day assigned by the court, the court shall pronounce him to be in contumacy and default, and thereupon the libel shall be adjudged to be taken pro eonfesso against him, and the court shall proceed to hear the cause ex parte, and adjudge therein as to law and justice shall appertain. But the court may, in its discretion, set aside the default, and, upon the application of the defendant, admit him to make answer to the libel, at any time before the final hearing and decree, upon his payment of all the costs of the suit up to the time of granting leave therefor. Eule No. 30. Further Answer. — In all cases where the defendant answers, but does not answer fully and explicitly and distinctly to all the matters in any article of the libel, and exception is taken thereto by the libellant, and the exception is allowed, the court may, by attachment, compel the defendant to make further answer thereto, or may direct the matter of the exception to be taken pro eonfesso, against the defendant, to the full purport and effect of the article to which it purports to answer, and as if no answer had been put in thereto. 92 ADMIRALTY AND MARITIME CASES. Rule No. 31. Criminating Answer. — The defendant may object, by his answer, to answer any allegation or interrogatory contained in the Hbel, which will expose him to any prosecution or punishment for a crime, or for any penalty or any forfeiture of his property for any penal offense. Rule No. 32. Interrogatories in Answers. — The defendant shall have a right to require the personal answer of the libellant upon oath or solemn affirmation, to any interrogatories which he may, at the close of his answer, propound to the libellant touching any matters charged in the libel, or touching any matter of defense set up in the answer, subject to the like exception as to matters which shall expose the libellant to any prosecution, or punishment, or forfeit- ure, as is provided in the thirty-first rule. In default of due answer by the libellant to such interrogatories, the court may ad- judge the libellant to be in default, and dismiss the libel, or may compel his answer in the premises by attachment, or take the sub- ject-matter of the interrogatory fro confesso in favor of the defend- ant, as the court, in its discretion, shall deem most fit to promote public justice. Rule No. 33. Inability to Answer. — Where either the libellant or the de- fendant is out of the country, or unable, from sickness or other casualty, to make an answer to any interrogatory on oath or sol- emn affirmation at the proper time, the court may, in its discre- tion, in furtherance of the due administration of justice, dispense therewith, or may award a commission to take the answer of the defendant when and as soon as it may be practicable. Rule No. 34. Intervention of Another Party. — If any third person shall intervene in any cause of admiralty and maritime jurisdiction in rem for his own interest, and he is entitled, according to the cause of admiralty proceedings, to be heard for his own interest therein, he shall propound the matter in suitable allegations, to which, if admitted by the court, the other party or parties in the suit may be required, by the order of the court, to make due an- swer ; and such further proceedings shall be had and decree ren- dered by the court therein, as to law and justice shall appertain. But every such intervenor shall be required, upon filing his alle- gations, to give a stipulation, with sureties, to abide by the final de- ADMIRALTY RULES. 93 cree rendered in the cause, and to pay all such costs and expenses and damages as shall be awarded by the court upon the final de- cree, whether it is rendered in the original or appellate court. Eule No. 35. Stipulations. — The stipulations required by the last preceding rule, or on appeal, or in any other admiralty or maritime proceed- ing, shall be given and taken in the manner prescribed by rule fifth as amended. Eule No. 36. Exceptions. — Exceptions may be taken to any libel, allega- tion, or answer, for surplusage, irrelevancy, impertinence, or scandal ; and if, upon reference to a master, the exception shall be reported to be so objectionable, and allowed by the court, the matter shall be expunged at the cost and expense of the party in whose libel or answer the same is found. Eule No. 37. Attachment and Garnishment. — In cases of foreign attach- ment, the garnishee shall be required to answer on oath or solemn affirmation, as to the debts, credits, or effects of the defendant in his hands, and to such interrogatories touching the same as may be propounded by the libellant ; and if he shall refuse or neglect so to do, the court may award compulsory process in personam against him. If he admits any debts, credits, or effects, the same shall be held in his hands, liable to answer the exigency of the suit. Eule No. 38. Property Brought into Court. — In all cases of mariners' wages, or bottomry, or salvage, or other proceedings in rem, where freight or other proceeds of property are attached to or are bound by the suit, which are in the hands or possession of any person, the court may, upon due application by petition of the party inter- ested, require the party charged with the possession thereof to appear and show cause why the same should not be brought into court to answer the exigency of the suit ; and, if no sufficient cause be shown, the court may order the same to be brought into court to answer the exigency of the suit, and, upon failure of the party to comply with the order, may award an attachment or other compulsive process, to compel obedience thereto. 94 ADMIRALTY AND MARITIME CASES. Eule No. 39. The Suit Abandoned. — If, in any admiralty suit, the libel- lant shall not appear and prosecute his suit according to the course and orders of the court, he shall be deemed in default and con- tumacy ; and the court may, upon the application of the defend- ant, pronounce the suit to be deserted, and the same may be dis- missed with costs. Eule No. 40. Rescinding of the Decree. — The court may, in its discre- tion, upon the motion of the defendant and the payment of costs, rescind the decree in any suit in which, on account of his contu- macy and default, the matter of the libel shall have been decreed against him, and grant a rehearing thereof at any time within ten days after the decree has been entered, the defendant submitting to such further orders and terms in the premises as the court may direct. Kule No. 41. Sales of Property. — All sales of property under any decree of admiralty shall be made by the marshal or his deputy, or other proper officer assigned by the court, where the marshal is a party in interest, in pursuance of the orders of the court ; and the pro- ceeds thereof, when sold, shall be forthwith paid into the registry of the court lay the officer making the sale, to be disposed of by the court according to law. Kule No. 42. Deposit of the Moneys. — All moneys paid into the registry of the court shall be deposited in some bank designated by the court, and shall be so deposited in the name of the court, and shall not be drawn out except by a check or checks signed by a judge of the court and countersigned by the clerk, stating on whose ac- count and for whose use it is drawn, and in what suit and out of what fund in particular it is paid. The clerk shall keep a regular book, containing a memorandum and copy of all the checks so drawn, and the date thereof. Kule No. 43. Intervention for Proceeds. — Any person having an interest in any proceeds in the registry of the court shall have a right, by petition and summary proceeding, to intervene pro interesse suo for a delivery thereof to him ; and upon due notice to the adverse parties, if any, the court shall and may proceed summarily to hear ADMIRALTY RULES. 95 and decide thereon, and to decree therein according to law and justice. And if such petition or claim shall be deserted, or, upon a hearing, be dismissed, the court may, in its discretion, award costs against the petitioner in favor of the adverse party. Rule No. 44. Reference to Commissioners. — In cases where the court shall deem it expedient or necessary for the purposes of justice, the court may refer any matters arising in the progress of the suit to one or more commissioners, to be appointed by the court, to hear the parties and make report therein. And such commissioner or commissioners shall have and possess all the powers in the premises which are usually given to or exercised by masters in chancery in reference to them, including the power to administer oaths to and examine the parties and witnesses touching the premises. Rule JSTo. 45. Appeals. — All appeals fronT the District to the Circuit Court must be made while the court is sitting, or within such other period as shall be designated by the District Court by its general rules, or by an order specially made in the particular suit ; or in case no such rule or order be made, then within thirty days from the rendering of the decree. Rule No. 46. Cases not provided for. — In all cases not provided for by the foregoing rules, the District and Circuit Courts are to regulate the practice of the said courts respectively, in such manner as they shall deem most expedient for the due administration of justice in suits of admiralty. Rule No. 47. Bail on Arrest. — In all suits in personam, where a simple warrant of arrest issues and is executed, bail shall be taken by the marshal and the court in those cases only in which it is required by the laws of the State where an arrest is made upon similar or analogous process issuing from the State courts. Imprisonment for Debt. — And imprisonment for debt, on process issuing out of the admiralty court, is abolished in all cases where, by the laws of the State in which the court is held, im- prisonment for debt has been, or shall be hereafter, abolished upon similar or analogous process issuing from a State court. 96 ADMIRALTY AND MARITIME CASES. Rule No. 48. Limitation of Rule No. 27.— The twenty-seventh rule shall not apply to cases where the sum or value in dispute does not exceed fifty dollars, exclusive of costs, unless the District Court shall be of opinion that the proceedings prescribed by that rule are necessary for the purposes of justice in the case before the court. Repeal of Rules. — All rules and parts of rules heretofore adopted, inconsistent with this order, are hereby repealed and annulled. Rule No. -19. Further proof on Appeal. — Further proof, taken in a Circuit Court upon an admiralty appeal, shall be by deposition, taken before some commissioner appointed by a Circuit Court, pursuant to the acts of Congress in that behalf, or before some officer authorized to take depositions by the thirtieth section of the act of Congress of the 24th of September, 1789, upon an oral ex- amination and cross-examination, unless the court in which such appeal shall be pending, or one of the judges thereof, shall, upon motion, allow a commission to issue to take such depositions upon written interrogatories and cross-interrogatories. When such de- position shall be taken by oral examination, a notification from the magistrate before whom it is to be taken, or from the clerk of the court in which such appeal shall be pending, to the adverse party, to be present at the taking of the same, and to put interrog- atories, if he think fit, shall be served on the adverse party or his attorney, allowing time for their attendance after being notified, not less than twenty-four hours, and, in addition thereto, one day, Sundays exclusive, for every twenty miles travel ; provided that the court, in which such appeal may be pending, or either of the judges thereof, may, upon motion, increase or diminish the length of notice above required. Rule No. 50. Oral Evidence on Appeal. — When oral evidence shall be taken down by the clerk of the District Court, pursuant to the above mentioned section of the act of Congress, and shall be transmitted to the Circuit Court, the same may be used in evi- dence on the appeal, saving to each party the right to take the depositions of the same witnesses, or either of them, if he should so elect. ADMIRALTY RULES. 97 Buxe No. 51. New Facts in Answer.— When the defendant, in his answer, alleges new facts, these shall be considered as denied by the libel- lant, and no replication, general or special, shall be allowed. But within such time after the answer is filed as shall be fixed by the District Court, either by general rule or by special order, the libellant may amend his libel so as to confess and avoid, or ex- plain or add to, the new matters set forth in the answer ; and within such time as may be fixed, in like manner, the defendant shall answer such amendments. Bttle No. 52. The Records on Appeals. — The clerks of the District Courts shall make up the records to be transmitted to the Circuit Courts on appeals, so that the same shall contain the following : 1. The style of the court. 2. The names of the parties, setting forth the original parties, and those who have become parties before the appeal, if any change has taken place. 3. If bail was taken, or property was attached or arrested, the process of the arrest or attachment and the service thereof ; all bail and stipulations ; and if any sale has been made, the orders, warrants, and reports relating thereto. 4. The libel, with exhibits annexed thereto. 5. The pleadings of the defendant, with the exhibits annexed thereto. 6. The testimony on the part of the libellant, and any exhibits not annexed to the libel. I. The testimony on the part of the defendant, and any ex- hibits not annexed to his pleadings. 8. Any order of the court to which exception was made. 9. Any report of an assessor or assessors, if excepted to, with the orders of the court respecting the same, and the exceptions to the report. If the report was not excepted to, only the fact that a reference was made and so much of the report as shows what results were arrived at by the assessor are to be stated. 10. The final decree. II. The prayer for an appeal and the action of the District Court thereon ; and no reasons of appeal shall be filed or inserted in the transcript. The following shall be omitted : 1. The continuances. 2. All motions, rules, and orders not excepted to, which are merely preparatory for trial. 3. The commissions to take depositions, notices therefor, their captions, and certificates of their being sworn to, unless some ex- 7 98 ADMIRALTY AND MARITIME CASES. ception to a deposition in the District Court was founded on some one or more of these ; in which case, so much of either of them as may be involved in the exception shall be set out. In all other cases, it shall be sufficient to give the name of the witness, and to copy the interrogatories and answers, and to state the name of the commissioner, and the place where and the date when the deposi- tion was sworn to ; and, in copying all depositions taken on inter- rogatories, the answer shall be inserted immediately following the question. [Hereafter, in making up the record to be transmitted to the Circuit Court on appeal, the clerk of the District Court shall omit therefrom any of the pleading, testimony, or exhibits which the parties, by their proctors, shall, by written stipulation agree, may be omitted ; and such stipulation shall be certified up with the record. Amendment promulgated May 2d, 1881.] The clerk of the District Court shall page the copy of the record thus made up, and shall make an index thereto, and he shall certify the entire document, at the end thereof, under the seal of the court, to be a transcript of the record of the District Court in the cause named at the beginning of the copy made up pursuant to this rule ; and no other certificate of the record shall be needful or inserted. Kule No. 53. Costs on Cross-libels. — "Whenever a cross-libel is filed upon any counter-claim, arising out of the same cause of action for which the original libel was filed, the respondents in the cross-libel shall give security in the usual amount and form, to respond in damages, as claimed in said cross-libel, unless the court, on cause shown, shall otherwise direct; and all proceedings upon the original libel shall be stayed until such security shall be given. Supplementary rules of practice in admiralty, under the Act of March 3d, 1851, entitled " An Act to limit the liability of ship-owners, and for other purposes." Eule No. 54. Libel against a Ship.— When any ship or vessel shall be libeled, or the owner or owners thereof shall be sued, for any embezzlement, loss, or destruction by the master, officers, mariners, passengers, or any other person or persons, of any property, goods or merchandise, shipped or put on board of such ship or vessel, or for any loss, damage, or injury by collision, or for any act, matter, or thing, loss, damage, or forfeiture done, occasioned or incurred, without the privity or knowledge of such owner or owners, and he ADMIRALTY RULES. 99 or they shall desire to claim the benefit of limitation of liability provided for in the third and fourth sections of the said act above recited, the said owner or owners shall and may file a libel or petition in the proper District Court of the United States, as here- inafter specified, setting forth the facts and circumstances on which such limitation of liability is claimed, and praying proper relief in that behalf ; and thereupon said court, having caused due appraise- ment to be had of the amount or value of the interest of said owner or owners, respectively, in such ship or vessel, and her freight, for the voyage, shall make an order for the payment of the same into court, or for the giving of a stipulation, with sureties, for payment thereof into court whenever the same shall be ordered ; or, if the said owner or owners shall so elect, the said court shall, without such appraisement, make an order for the transfer by him or them of his or their interest in such vessel and freight, to a trustee to be appointed by the court under the fourth section of said act ; and, upon compliance with such order, the said court shall issue a monition against all persons claiming damages for any such em- bezzlement, loss, destruction, damage, or injury, citing them to appear before the said court and make due proof of their respec- tive claims at or before a certain time to be named in said writ, not less than three months from the issuing of the same ; and public notice of such monition shall be given as in other cases, and such further notice served through the post office, or other- wise, as the court, in its discretion, may direct ; and the said court shall also, on the application of the said owner or owners, make an order to restrain the further prosecution of all and any suit or suits against said owner or owners in respect of any such claim or claims. Rule No. 55. Proof of Claims. — Proof of all claims which shall be pre- sented in pursuance of said monition shall be made before a com- missioner, to be designated by the court, subject to the right of any person interested to question or controvert the same ; and, upon the completion of said proofs, the commissioner shall make report of the claims so proven, and upon confirmation of said report, after hearing any exceptions thereto, the moneys paid or secured to be paid into court as aforesaid, or the proceeds of said ship or vessel and freight (after payment of costs and expenses), shall be divided pro rata amongst the several claimants, in propor- tion to the amount of their respective claims, duly proved and confirmed as aforesaid, saving, however, to all parties any priority to which they may be legally entitled. Rule No. 56. Party or Parties Defendant. — In the proceedings aforesaid, the said owner or owners shall be at liberty to contest his of their 100 ADMIRALTY AND MARITIME CASES. liability, or the liability of said ship or vessel for said embezzle- ment, loss, destruction, damage, or injury (independently of the limitation of liability claimed under said act), provided that, in his or their libel or petition, he or they shall state the facts and circumstances by reason of which exemption from liability is claimed ; and any person or persons claiming damages as aforesaid, and who shall have presented his or their claim to the commis- sioner under oath, shall and may answer such libel or petition, and contest the right of the owner or owners of said ship or vessel, either to an exemption from liability, or to a limitation of liability under the said act of Congress, or both. Kuxe ISTo. 57. The filing of the Libel. — The said libel or petition shall be filed and the said proceedings had in any District Court of the United States in which said ship or vessel may be libeled to answer for any such embezzlement, loss, destruction, damage, or injury ; or, if the said ship or vessel be not libeled, then in the District Court for any district in which the said owner or owners may be sued in that behalf. If the ship have already been libeled and sold, the proceeds shall represent the same for the purposes of these rules. Eule No. 58. Rules applicable to Circuit Courts.— All the preceding rules and regulations for proceeding in cases where the owner or owners of a ship or vessel shall desire to claim the benefit of limitation of liability provided for in the act of Congress in that behalf, shall apply to the Circuit Courts of the United States where such cases are or shall be pending in said courts upon appeal from the. Dis- trict Courts. (Promulgated March 30th, 1881.) CHAPTER IV. CONTROVERSIES OP THE UNITED STATES. The Constitution extends the judicial power of the United States to "controversies to which the United States shall be a party." 1. The Nature of these Controversies. — It will be ob- served that in this and the ensuing clauses, which contain grants of judicial power, the terra " controversies " is used instead of the word " cases." The word " cases " is employed in the first three grants, and the word " controversies " is used in reference to the other six. The Constitution, in stating the original and appellate jurisdiction of the Supreme Court, applies the term " cases " com- prehensively to all these specific grants of judicial power. Mr. Tucker regards the term " cases " as including all cases, whether civil or criminal ; and in respect to the term " controver- sies," he makes the following remarks : " The word ' controversies,' as here used, must be understood merely as relating to such as are of a civil nature. It is probably unknown in any other sense, as I do not recollect ever to have heard the expression criminal controversy. As here applied, it seems particularly appropriated to such disputes as might arise between the United States and any one or more States, respecting territorial or fiscal matters, or between the United States and their debtors, contractors, and agents. This construction is confirmed by the application of the word in the ensuing clauses, where it evidently refers to disputes of a civil nature only, such, for exam- ple, as may arise between two or more States, or between citizens of different States, or between a State and citizens of another State." (1 Tuck. Black. Comm. App. 420, 421.) Mr. Justice Iredell, in Chisholm v. Georgia, 2 Dall. 419, 431, 432, observes : " It cannot be presumed that the general word ' controversies ' was intended to include any proceedings that re- late to criminal cases, which, in all instances that respect the same government, are uniformly to be considered of a local nature, and to be decided by its particular laws. The word ' controversy,' in- 102 CONTROVERSIES OF THE UNITED STATES. deed, would not, naturally, justify any such construction." Mr. Curtis remarks : " The word ' controversies ' seems to embrace only civil suits, for, where all suits, civil or criminal, are evidently intended, the Constitution employs the term ' cases.' " (Curtis's Comm. 58.) The meaning of the constitutional clause evidently is, that the judicial power shall extend to civil " controversies to which the United States shall be a party." Criminal prosecutions, in the name and by the authority of the United States, are fully pro- vided for in the clause which refers to cases arising under the Constitution, laws, or treaties of the United States. The controversies here referred to as those to which "the United States shall be a party," must admit of judicial settlement, and hence the term must be limited in its application to such as can be determined in a court or justice. It has no reference to controversies that are purely diplomatic, or such as belong exclu- sively to the political department of the Government, or such as relate to the prerogatives and duties of the President of the United States, as defined by the Constitution or the law. Such controversies are not judicial in their nature. In The State of Mississippi v. Johnson., & Wall. 475, an at- tempt was made to restrain President Johnson from executing the reconstruction laws of Congress in that State. The court, how- ever, held that "the President of the United States cannot be restrained by injunction from carrying into effect an act of Con- gress, alleged to be unconstitutional, nor will a bill having such a purpose be allowed to be filed," and that " it makes no difference whether such incumbent of the Presidential office be described in the bill as President, or merely as a citizen of a State." A similar attempt was made in The /State of Georgia v. Stan- ton, 6 Wall. 50, to enjoin the Secretary of War and other officers who represent the Executive authority of the United States, from carrying into execution certain acts of Congress ; and the case was dismissed on the ground that it " calls for a judgment upon a political question, and will therefore not be entertained by this court." The matter in both of these cases was not judicial, and hence the court had no jurisdiction over it. 2. The United States a Party. — The language of the Con- stitution is, that the judicial power shall extend to " controversies THE UNITED STATES' A PARTY. 103 to which the United States shall be a party." This says nothing about any other party. It is sufficient if a civil controversy be presented to a court, and the United States be a party thereto. .This makes the case contemplated in the Constitution, as coming within the scope of the judicial power of the United States. There can be no doubt that this clause of the Constitution in- cludes civil controversies in which the United States shall appear as plaintiff or petitioner, and hence, that, with proper legislation by Congress, in the establishment of courts, and in the bestow- ment of the necessary jurisdiction, the General Government may bring suits in its own courts for the judicial enforcement of its claims. It was the design of those who framed the Constitution, not only that the Government organized under it should have courts, but that it should be able to use these courts in asserting its •own claims against other parties. Mr. Justice Story remarks : " A sovereign without the means of enforcing civil rights, or compelling the performance, either civilly or criminally, of duties on the part of the citizens, would be a most extraordinary anomaly. It would prostrate the Union at the feet of the States. It would compel the National Govern- ment to become a suppliant for justice before the judicature of those who were by other parts of the Constitution placed in sub- ordination to it." (Story's Const, sec. 1674.) It does not, however, follow, because the judicial power ex- tends to " controversies to which the United States shall be a party," that the General Government may be sued in its own courts, and, hence, be made a " party " in the sense of being a de- fendant. The general maxim of law is, that a sovereign State cannot, without its own consent, be made amenable to suits brought against it. This immunity is assumed to inhere in the very nature of sovereignty, and to be founded on important pub- lic considerations. The United States, as an organized body poli- tic, form a sovereign nation within the sphere of its powers ; and, hence, without their consent given by a law of Congress, they are not suable in any court, whether State or Federal. Chief Justice Marshall, in Cohens v. Virginia, 6 Wheat. 264, 412, said that " the universally received opinion is that no suit can be commenced or prosecuted against the United States," and that "the Judiciary Act does not authorize such suits." The same doctrine has on several occasions been referred to by the Supreme 104 CONTROVERSIES OF THE UNITED STATES. Court of the United States, as an established principle. {The United States v. Clarice, 8 Pet. 436 ; Same v. MeLemon, 4 How. 286 ; Hill v. The United States, 9 How. 386 ; Nations v. John- son, 24 How. 195; The Siren, 7 Wall. 152; and The Davis, 10 Wall. 15.) The States of the Union, as sovereign bodies politic, within the sphere of their reserved rights, possess the same immunity from suits brought against them, except as they have surrendered this immunity and consented to be sued. A State can, under the Constitution, be sued by another State in the Supreme Court of the United States, and, before the adoption of the Eleventh Amendment, it could be sued in that court by citizens of another State, or by citizens or subjects of a foreign State. But this lia- bility to suit was, in Chisholm v. Georgia, 2 Dall. 419, placed ex- pressly on the ground that the people of the several States, in adopting the Constitution, had given their consent to such liabili- ty, and made it a part of the fundamental law of the land. The United States may, through the legislative action of Con- gress, give a similar consent ; and this, as will appear in the sequel, is the fact within certain defined limits. But, without such con- sent, the principle of non-suableness is alike applicable to the several States and to the United States. (The Railroad Co. v. Tennessee, 11 Otto, 337; and The Hailroad Co. v. Alabama, 11 Otto, 832.) There is no dispute in the courts of this country as to this principle of law. 3. Officers and Agents of the United States. — The question, however, has arisen whether the same immunity from suits attaches to the officers and agents of the United States when, as such, they hold property in the name of and for the United States. The Supreme Court of the United States, in The United States v. Lee, and Kaufman & Strong v. Lee, 27 Albany Law Journal, 10 — cases not yet regularly reported — has recently, in a very elaborate opinion by Mr. Justice Miller, answered this question in the negative. The property in dispute was the property known as the Arling- ton estate, which was by Mr. G-eorge Washington Park Custis devised to his daughter, the wife of General Robert E. Lee, and, after her death, to her son, George W. P. C. Lee, and was situated in the county of Alexandria, in the State of Virginia. This prop- OFFICERS AND AGENTS OF THE UNITED STATES. 105 erty, consisting of about eleven hundred acres, was, some twenty years since, sold by commissioners for taxes alleged to be due to the United States and unpaid. At this sale the property was bid in by the commissioners for the United States ; and, through the title thus acquired, the General Government, through its officers, has held it and appropriated it to public uses. Mr. Lee, claiming that his title by the will of his grandfather Custis had not been legally divested, brought a suit in the Circuit Court for the county of Alexandria, in Virginia, against Kauf- man & Strong and others, as officers of the United States holding the property, for its recovery. The suit was not against the United States eo nomine, but against the officers and agents of the Government. The action thus commenced in a State court was removed into the Circuit Court of the United States for the dis- trict of Virginia, where the issue was tried. The result was a verdict in favor of Mr. Lee, declaring that the tax sale had not legally transferred the property to the United States, and hence that the lawful title thereto was still vested in him. The case was then by writ of error removed to the Supreme Court of the United States ; and this court sustained the judg- ment of the court below as to the validity of the title of Mr. Lee and the invalidity of the tax sale and the certificate thereof under which the United States held the property. The court said that " the United States acquired no title under tax sale proceedings." It was, however, claimed that, although "what is set up in behalf of the United States is no title at all," still the court could render no judgment in favor of Mr. Lee against the defendants in the action, " because the latter hold the property as officers and agents of the United States, and it is appropriated to lawful pub- lic uses." To this claim Mr. Justice Miller replied as follows : " This proposition rests on the principle that the United States cannot be lawfully sued without its consent in any case, and that no action can be maintained against any individual without such consent, where the judgment must depend on the right of the United States to property held by such persons as officers or agents for the Government. The first branch of this proposition is con- ceded to be the established law of this country and of this court at the present day ; the second, as a necessary or proper deduction from the first, is denied." 106 CONTROVERSIES OF THE UNITED STATES. It is to the proof of this denial that Mr. Justice Miller devotes the larger part of the opinion ; and for this purpose he cites a series of cases in which the court had sustained actions against the officers or agents of a State or of the United States to recover the possession of property held by them as such officers or agents, and in which neither the State, in the one case, nor the United States, in the other, were made a party defendant on the record, although one or the other was the real party in interest. (The United States v. Peters, 5 Cranch, 115 ; Meigs v. McChmg's Lessee, 9 Cranch, 11 ; Wilcox v. Jackson-, 13 Pet. 498 ; Georgia v. Madrazo, 1 Pet. 110 ; Osbom v. The United States Bank, 9 Wheat. 738 ; Grisar v. McDowell, 6 "Wall. 363; Brown v. Huger, 21 How. 305; Davis v. Gray, 16 Wall. 204 ; The Siren, 7 Wall. 152 ; and The Davis, 10 WaU. 15.) After commenting upon these cases, and explaining their analogy to the case pending before the court, Mr. Justice Miller proceeded to say : " This examination of the cases in this court establishes clearly this result : That the proposition that when an individual is sued in regard to property which he holds as officer or agent of the United States, his possession cannot be disturbed when that fact is brought to the attention of the court, has been overruled and denied in every case where it has been necessary to decide it, and that in many others where the record shows that the case as tried below actually and clearly presented that defense, it was neither urged by counsel nor considered by the court here, though, if it had been a good defense, it would have avoided the necessity of a long inquiry into plaintiff's title and of other perplexing questions, and have quickly disposed of the case. And we see no escape from the conclusion that during all this period the court has held the principle to be unsound, and in the class of cases like the present, represented by Wilcox v. Jackson, Brown v. Huger, and Grisar v. McDowell, it was not thought necessary to re-examine a pro- position so often and so clearly overruled in previous well-con- sidered decisions." This case settles the question, even if it were previously in doubt, that although an individual cannot directly bring an orig- inal suit against the United States, and make the United States a defendant party on the record, he may bring such a suit against an officer or agent of the United States having the custody and possession of the property thereof, and that in such a suit the title of the United States to the property in dispute may be inquired STATUTORY REGULATION. 107 into and determined by the court, as in any other case where the court has lawful jurisdiction. The fact that the property is claimed by the United States, and held by officers or agents thereof, does not preclude such an inquiry. If it were otherwise, there would be no remedy for the private citizen, however un- justly he might be deprived of his property by the General Government. The mere fact of possession by the United States through the officers thereof, whether with or without due process of law, and whether with or without just compensation, would end the question, so far as courts are concerned: 4. Statutory Regulation. — The provision of the Constitution, under consideration, is not self-executing ; and, hence, in order to become operative, it must be supplemented by legislation to carry it into effect. In what controversies can the United States appear as a party ? What courts shall have cognizance of these contro- versies ? Is the term " party," as here used, to be understood as comprehending both plaintiff and defendant, so that the United States may be either, suing in the one instance and being sued in the other? Congress must by legislation answer these questions, designating the controversies which, the United States being a party thereto, shall be submitted to the Federal tribunals, and also designating the tribunals that shall have cognizance of the same. Congress must create the courts and confer upon them the necessary jurisdiction, and these courts must carry the provision into effect under the regulations of law. All this is necessary to give to the provision operative force. "What, then, has been the legislation of Congress on this sub- ject ? The general answer to this question is that Congress has given to the Federal courts cognizance of suits brought by the United States against other parties, and that, with the exception of the Act of February 24th, 1855, establishing a Court of Claims, and other acts amendatory thereof, it has never authorized suits to be brought against the United States. The Judiciary Act of 1789 (1 U. S. Stat, at Large, 73), in its ninth section, provided that the District Courts shall have cogni- zance " of all suits for penalties and forfeitures incurred under the laws of the United States," and " of all suits at common law where the United States sue and the matter in dispute amounts, exclu- sive of costs, to the sum or value of one hundred dollars." The 108 CONTROVERSIES OF THE UNITED STATES. same act provided, in its eleventh section, that the Circuit Courts shall have original cognizance " of all suits of a civil nature, at common law or in equity, where the matter in dispute exceeds, ex- clusive of costs, the sum or value of five hundred dollars, and the United States are plaintiffs or petitioners." So, also, Congress, by the Act of March 3d, 1 815 (3 U. S. Stat, at Large, 244), provided that the District Courts shall have cognizance " of all suits at common law where the United States or any officer thereof, under the authority of any act of Congress, shall sue, although the debt or claim or other matter in dispute shall not amount to one hundred dollars." These and other similar provisions of law, in their essential substance found in the Revised Statutes, contemplate the United States as the suing party, and were designed to give effect to the constitutional provision which extends the judicial power to " con- troversies to which the United States shall be a party " in the sense of being the plaintiff or petitioner. They do not authorize suits to be brought against the United States ; and, if this authority had not been given by other legislation, no such suit could be enter- tained by any Federal court. 5. Judgments for the United States. — The non-suableness of the United States, unless with the consent of Congress, does not, however, preclude a writ of error for the review of a judg- ment rendered by an inferior court in favor of the United States. Chief Justice Marshall, after saying, in Cohens v. Virginia, 6 Wheat. 264, 412, that "no suit can be commenced or prosecuted against the United States," proceeds to say : " Yet writs of error, accompanied with citations, have uniformly issued for the removal of judgments in favor of the United States into a superior court, where they have, like those in favor of an individual, been re-ex- amined, and affirmed or reversed. It has never been suggested that such a writ of error was a suit against the United States, and therefore not within the jurisdiction of the appellate court." The person against whom a judgment has been rendered by a lower court in favor of the United States does not, by suing out a writ of error to obtain a review of this judgment by a higher court, bring a suit against the United States. He simply removes the judgment, rendered in the suit brought against him, to an appellate court for the purpose of review. His relation to the THE RIGHT OF SET-OFFS. 109 case as the defendant party, and the relation of the United States as the plaintiff, are not changed by the removal. It is the same case before a higher court for review. 6. The Right of Set-offs.— The non-suableness of the United States does not exclude other parties, in suits brought against them by the United States, from the right to claim the benefit of credits or set-offs against the United States. The Supreme Court, in The United States v. The Bank of the Metropolis, 15 Pet. 377, 392, spoke as follows on this point : " When the United States, by its authorized officer, became a party to a negotiable paper, they have all the rights, and incur all the responsibilities of individuals who are parties to such instru- ments. "We know of no difference, except that the United States cannot be sued. But if the United States sue, and a defendant holds its negotiable paper, the amount of it may be claimed as a credit, if, after being presented, it has been disallowed by the ac- counting officers of the Treasury ; and if the liability of the United States upon it be not discharged by some of those causes which discharge a party to commercial paper, it should be allowed by a fury as a credit against the debt claimed by the United States. This is the privilege of the defendant for all equitable credits given by the Act of March 3d, 1797." The fourth section of the act here referred to is the basis of section 951 of the Revised Statutes, which reads as follows : " In suits brought by the United States against individuals, no claim for a credit shall be admitted upon trial, except such as appear to have been presented to the accounting officers of the Treasury for their examination, and to have been by them disallowed, in whole or in part, unless it is proved to the satisfaction of the court that the defendant is, at the time of the trial, in possession of vouchers not before in his power to procure, and that he was prevented from exhibiting a claim for such credit at the Treasury, by ab- sence from the United States, or by some unavoidable accident." (1 U. S. Stat, at Large, 512.) Section 952 of the Revised Statutes, reproducing a part of the fifteenth section of the Act of July 2d, 1836 (5 U. S. Stat, at Large, 80), provides as follows : " No claim for a credit shall be allowed, upon the trial of any suit for delinquency against a post- master, contractor or other officer, agent or employee of the Post- Office Department, unless the same has been presented to the 110 CONTROVERSIES OF THE UNITED STATES. Sixth Auditor and by him disallowed, in whole or in part, or unless it is proved to the satisfaction of the court that the defend- ant is, at the time of the trial, in possession of vouchers not before in his power to procure, and that he was prevented from exhibit- ing to the said Auditor a claim for such credit by some unavoid- able accident." These provisions of law are rules to regulate the action of courts in respect to credits and set-offs, claimed by parties against whom suits are brought in behalf of the United States. They rec- ognize the right of such set-offs, subject to the limitations im- posed by law. 7. Priority of the Claims of the United States. — Con- gress, by the fifth section of the Act of March 3d, 1797, and a clause of the sixty-fifth section of the Act of March 2d, 1799 (1 U. S. Stat, at Large, 515, 676), provided that the claims of the United States should, in the cases specified, have the precedence, as to payments over all other claims. This legislation, as repro- duced in section 3466 of the Revised Statutes, is as follows : ' ' Whenever any person indebted to the United States is insolv- ent, or whenever the estate of any deceased debtor, in the hands of the executors or administrators, is insufficient to pay all the debts due from the deceased, the debts due to the United States shall be first satisfied ; and the priority hereby established shall extend as well to cases in which a debtor, not having sufficient property to pay all his debts, makes a voluntary assignment there- of, or in which the estate and effects of an absconding, concealed, or absent debtor are attached by process of law, as to cases in which an act of bankruptcy is committed." The fifth section of the Act of March 3d, 1797, was considered by the Supreme Court, in The United States v. Fisher, 2 Cranch, 358, and the doctrine laid down in this case was, that the provis- ion " giving a preference to the United States in cases of insolv- ency, is not confined to persons accountable for public money, but extends to debtors of the United States generally." In The United States v. Hoe, 3 Cranch, 73, it was held that the United States have no lien on the estate of their debtor until suit brought, or a notorious insolvency or bankruptcy has taken place, or, being unable to pay all his debts, he has made voluntary assignment of all his property, or the debtor having absconded, concealed, or absented himself, his property has been attached by PRIORITY OF THE CLAIMS OF THE UNITED STATES. Ill process of law. At least one of these conditions must exist in order to establish the priority of the claim of the United States, as provided in. the statute. In Prince v. Bartlett, 8 Cranch, 431, it was held that " the in- solvency necessary to give the United States a priority, must be a legal insolvency, and not a mere failure or inability to pay debts." In The United States v. Howland, 4 "Wheat. 108, it was held that, under the sixty-fifth section of the Act of March 2d, 1799, the United States are not entitled to a priority of payment over all other creditors, upon the ground that the debtor has made an as- signment for the benefit of creditors, unless it is proved that he has made an assignment of all his property, and that the onus probandi on this question of fact is upon the United States. In Conrad v. The Atlantic Insurance Co., 1 Pet. 386, it was held that the priority of the United States " does not affect a mortgage of part of the debtor's property, made to secure a honafide debt." In Brent v. The Bank of Washington, 10 Pet. 596, it was held that the priority of the United States for debts due to them by an insolvent debtor, or by the estate of a deceased debtor, does not extend to affect the lien of an incorporated bank on the stock held by one indebted to the bank, when, by the charter of the bank, such lien is given. In Beaston v. The Farmers' Bank of Delaware, 12 Pet. 102, it was held that, under the fifth section of the Act of March 3d, 1797, giving a right of priority of payment to the United States, in certain cases, a corporation may be included in the word per- son. Mr. Justice McKinley, in stating the opinion of the court, said that the construction of the statute by the court had established the following rules : " First, that no lien is created by the statute ; secondly, the priority established can never attach while the debtor continues the owner and in possession of the property, al- though he may be unable to pay all his debts ; thirdly, no evidence can be received of the insolvency of the debtor until he has been devested of his property in one of the modes stated in the section ; and, fourthly, whenever he is'thus devested of his property, the person who becomes invested with the title is thereby made a trustee for the United States, and is bound to pay their debt first out of the proceeds of the debtor's property." In The United States v. Herron, 20 Wall. 251, it was held that a debt due to the United States, though by one who owes it 112 CONTROVERSIES OF THE UNITED STATES. as a surety only, is not barred by the debtor's discharge under the Bankrupt Act of 1867, and that no general words in a statute can divest the Government of its rights or remedies. In Ba/yne et al. Trustees v. The United States, 3 Otto, 642, it was held that a party who obtains from a disbursing officer public moneys without right thereto, and with full knowledge that they are such, becomes indebted to the United States, within the mean- ing of the fifth section of the Act of March 3d, 1797, and, in the event of his insolvency, the United States is entitled to priority of payment out of his assets. These cases show the judicial construction given to the statute by the decisions of the Supreme Court of the United States. Section 3467 of the Revised Statutes, reproducing a part of the sixty-fifth section of the Act of March 2d, 1799 (1 U. S. Stat, at Large, 676), provides as follows : " Every executor, administrator, or assignee, or other person, who pays any debt due by the person or estate from whom or for which he acts, before he satisfies and pays the debts due to the United States from such person or estate, shall become answerable in his own person and estate for the debts so due to the United States, or for so much thereof as may remain due and unpaid." It was held, in Field v. The United States, 9 Pet. 182, that, under this provision, if the assignees of an insolvent debtor have notice of a claim of the United States, they are not protected by an order of a State court to distribute the funds to other creditors ; that if any of the property comes into their hands subject to liens, tbey must be satisfied out of that property, not out of the general fund ; and that the assignees are liable only for funds received by them, not for promissory notes not yet payable. Section 3468 of the Revised Statutes, reproducing a portion of the sixty-fifth section of the Act of March 2d, 1799 (1 U. S. Stat, at Large, 676), provides as follows : " "Whenever the principal in any bond given to the United States is insolvent, or whenever, such principal being deceased, his estate and effects which come into the hands of his executor, administrator, or assignee, are insufficient for the payment of his debts, and, in either of such cases,. any surety on the bond, or the executor, administrator, or assignee, of such surety, pays to the United States the money due upon such bond, such surety, his ex- ecutor, administrator, or assignee, shall have the like priority for the recovery and receipt of the moneys out of the estate and THE COURT OF CLAIMS. 113 effects of such insolvent or deceased principal as is secured to the United States, and may bring and maintain a suit upon the bond, in law or equity, in his own name, for the recovery of all moneys paid thereon." (Thelusson v. Smith, 2 Wheat. 396 ; and Hunter v. The United States, 5 Pet. 173.) 8. The Court of Claims. — As already stated, Congress, by the Act of February 24th, 1855, established, a Court of Claims, and provided, in this act and in subsequent acts amendatory thereof, for bringing in this court a certain class of suits against the United States, thereby giving its consent to such suits. There was, prior to this legislation, for claimants against the United States, no court to which they could appeal, and at whose hands seek judicial relief. Congress was the only body before which they could bring their claims against the General Government. Mr. Justice Story in his day spoke of this as a defect, and, in many instances, as involving wrong which it was the duty of Con- gress to correct. (Story's Const, sec. 1678.) The remedy supplied by Congress is in the Court of Claims, having a jurisdiction lim- ited and defined by law. It is sufficient here to allude to this court, since its organization and powers will be the subject of a future chapter. CHAPTEE V. CONTROVERSIES BETWEEN TWO OR MORE STATES. 1. Articles of Confederation. — The Articles of Confedera- tion, which preceded and were superseded by the Constitution of the United States, provided, in the ninth article, that " the United States, in Congress assembled, shall also be the last resort on appeal in all disputes and differences now subsisting, or that may hereafter arise, between two or more States, concerning boundary, jurisdiction, or any other cause whatever." This authority was to .be exercised by the creation of a tribunal in the manner specified, whose judgment was to be final and conclusive. The provision extended to all disputes, either then pending between two or more States, or that might thereafter arise. The legislatures of the several States, in adopting these Articles, gave their consent that all such disputes and differences should be settled in this way. It is well known that, at the time and also when the Constitution was adopted, there were controversies pend- ing between several of the States respecting the question of boundaries. New York and New Hampshire both claimed the territory which now forms Vermont. Connecticut claimed a por- tion of what is now a part of New York and Pennsylvania. Rhode Island and Massachusetts were disputing as to the bound- ary line between them. Some of these disputes were of long standing. It was in view of this fact, and as a peaceful remedy therefor, that, in the compact made by the Articles of Confederation, a way was provided for settling all such disputes and all others that might arise between States. The matter was committed to a special court created in each case. 2. The Constitutional Provision.— The same theory led the framers of the Constitution to provide that the judicial power of the United States shall extend to " controversies between two or more States," and that in all cases " in which a State shall be party the Supreme Court shall have original jurisdiction." The Judi- THE CONSTITUTIONAL PROVISION. 115 ciary Act of 1789 (1 U. S. Stat, at Large, 73), which established the judicial system of the United States on the basis of the Con- stitution, declared " that the Supreme Court shall have exclusive jurisdiction of all controversies of a civil nature where a State is a party, except between a State and its citizens, and except also between a State and citizens of other States or aliens, in which latter case it shall have original but not exclusive jurisdiction." This provision is continued in section 687 of the Revised Statutes of the United States. The people of the several States, in adopting the Constitution, and by it extending the judicial power of the United States to " controversies between two or more States," and in giving in these cases original jurisdiction to the Supreme Court, waived their right as sovereign States to exemption from the operation of ju- dicial power, and consented that such controversies should be authoritatively and finally determined by the supreme tribunal of the land. This consent enables the States to bring suits against each other in the proper court for the judicial settlement of con- troversies between them. The consent, as remarked by Chief Justice Marshall in Cohens v. Virginia, 6 Wheat. 264, 380, is " given in a general law," which is the Constitution. " The States," says Mr. Justice Baldwin in Rhode Islands. Massachusetts, 12 Pet. 657, 720, "waived their exemption from judicial power, as sovereigns by original and inherent right, by their own grant of its exercise over themselves in such cases." The Constitution, in declaring that " no State shall, without the consent of Congress, * * * enter into any agreement or compact with another State or with a foreign State," expressly excludes from the States all power to settle differences between themselves by the process of direct negotiation, without the previous consent of Congress. If, therefore, a controversy arises between two or more States, they must, in order to adjust it by mutual agreement or compact, obtain this consent. Failing to do so, they must resort to the judicial power vested in the Supreme Court, as the only tribunal authorized to determine the matter in dispute. A resort to the sword is out of the question. The United States could not, in consistency with their own safety, tolerate such a remedy for a moment. One of the objects of the Constitution is to " insure domestic tranquillity," and prevent the 116 CONTROVERSIES BETWEEN TWO OR MORE STATES. States from ever assuming the belligerent attitude toward each other. 3. Jurisdictional Parties.— The jurisdiction, conferred by the Constitution and the law in these cases, depends wholly upon the parties to the suit, without regard to the subject-matter of the controversy. The controversy is described in the Constitution as "being between two or more States." The parties are States; and the jurisdiction of the Supreme Court to consider and deter- mine the matter in dispute depends upon this fact. The reference is to States as members of the Union. It was held in The Cherokee Nation v. Georgia, 5 Pet. 1, that an Indian tribe within the United States, though a State in the general sense, is not a foreign State, and not a State within the meaning of the third article of the Constitution, and hence that the Cherokee tribe of Indians could not sue the State of Georgia in the Supreme Court of the United States. So, also, in Scott v. Jones, 5 How. 343, 377, it was said by Mr. Justice 'Woodbury that, in order to give jurisdiction, a State " must be a member of the Union," and that, under the twenty-fifth section of the Judiciary Act of 1789, the Supreme Court has no jurisdiction to try the question whether a political body which passed a particular law was a State or not in this sense, since it is only the statute of a State which can be thus re-examined. It is for Congress to admit new States into the Union, and for courts to take judicial knowledge of such admission, without undertaking to pass judgment upon the legitimacy of the process. A State recognized by Congress as a member of the Union, is one of the United States for all judicial purposes. The action of Congress is final and conclusive on this question of fact. The Territories of the United States, though organized political communities, are not States in the constitutional sense, and the District of Columbia is not a State ; and, hence, neither can sue or be sued under this provision of the Constitution. The pro- vision has no application to either. A State, in order to come within the operation of the provision, must not only be a member of the Union, but must also be a party in the record of the suit ; and, hence, in a suit between two States, both must be such parties, the one as plaintiff or petitioner, and the other as defendant. THE PROCESS. 117 Chief Justice Marshall, in O shorn v. The United States Bank, 9 Wheat. 738, 857, observed : " 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." He also said that " in cases where a State is a party on the record, the question of jurisdiction is decided by inspection. If jurisdic- tion depend, not on this plain fact, but on the interest of the State, what rule has the Constitution given by which this interest is to be measured? If no rule be given, is it to be settled by the court ? If so, the curious anomaly is presented of a court examin- ing the whole testimony of a cause, inquiring into and deciding on the extent of a State's interest, without having the right of ex- ercising any jurisdiction in the case." The record, in a suit between States, must, therefore, on its face, and simply from inspection, show that both States are parties, the one prosecuting a remedy against the other. If this be not shown, no jurisdiction will attach to the case. 4. The Process. — The Judiciary Act of 1789, which origi- nally gave jurisdiction to the Supreme Court in cases where a State is a party, contained no specific process or procedure for bringing a suit against a State ; and hence the Supreme Court, being vested with jurisdiction in such cases, assumed the right, without any further legislation, to " regulate and mold the process it uses in such manner as in its judgment will best promote the purposes of justice." It was held in Ohisliolm v. Georgia, 2 Dall. 419, that, when a suit is brought against a State, the service of a summons on the Governor and Attorney-General of the State will be sufficient ; and, in Georgia v. Brailsford, 2 Dall. 402, it was held that, when a State brings a suit, the bill should be filed by tie Gover- nor in behalf of the State. In Grayson v. Virginia, 3 Dall. 320, the Supreme Court adopted the following general order : " That when process at common law, or in equity, shall issue against a State, the same shall be served upon the Governor or chief execu- tive magistrate and the Attorney-General of such State." The doctrine laid down in The Governor of Georgia v. Madrazo, 1 Pet. 110, was that " where the chief magistrate of a State is sued, not by his name, but in his official character, and the claim is made upon him solely by reason of his holding the 118 CONTROVERSIES BETWEEN TWO OR MORE STATES. office of Governor, and no decree could be made against him per- sonally, the State must be considered as the real party on the record." Chief Justice Taney, in Kentucky v. Dennison, 24 How. 66 f 98, having adverted to prior cases before the Supreme Court, pro- ceeded to say : " 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." In The State of Pennsylvania v. The Wheeling Bridge Vo. y 13 How. 518, 560, Mr. Justice McLean, in answer to the objection that there was no evidence that the State of Pennsylvania had con- sented to the prosecution of the suit in its name, said: "This would seem to be answered by the fact that the proceedings were instituted by the Attorney- General of the State. He is its legal representative, and the Court cannot presume, without proof, against his authority." The resolution of the legislature of the State, directing the Attorney-General to institute these proceed- ings, was cited in support of his authority. The fifth of the Rules of the Supreme Court, adopted by the court in 1796, when the case of Grayson v. Virginia, 3 Dall. 320, was pending before it, provides as follows : 1. That " when a pro- cess at common law, or in equity, shall issue against a State, the same shall be served upon the Governor or chief executive magis- trate, and the Attorney-General of such State." 2. That "pro- cess of subpoena, issuing out of this court, in any suit in equity, shall be served on the defendant sixty days before the return-day of the said process ; and if the defendant, on such service of the subpoena, shall not appear at the return-day contained therein, the complainant shall be at liberty to proceed ex parte." In Huger v. South Carolina, 3 Dall. 339, it was held that " leaving a copy of a subpoena, in a suit against a State, at the house of the Governor, is a sufficient service on him," and that this service of the subpoena being proved, the complainant is en- titled to proceed ex parte in the event that the State fails to ap- pear on the return day. The same doctrine was stated by Chief Justice Marshall, in New Jersey v. New York, 5 Pet. 284, 291. So, also, if a State, having appeared in a suit brought against it, withdraws its appearance, the adverse party may then proceed ex THE MATTER IN DISPUTE. 119 parte. {Rhode Island v. Massachusetts, 12 Pet. 657.) JSTo State can either oust or escape the jurisdiction of the Supreme Court by disregarding its process. 5. The Matter in Dispute. — The Constitution designates the matter in dispute by the general term " controversies," evi- dently intending to make the grant of power so comprehensive as to apply to any subject of dispute between two or more States that is capable of being judicially determined. This term is a substitute for the phrase " disputes and differences," as used in the Articles of Confederation. The Judiciary Act of 1789 translates it by the words " all controversies of a civil nature." Such con- troversies, when brought before a court, are simply suits in law or equity, in which one party sets up the claim of legal or equitable rights against the other, and asks the court to afford the proper relief in the premises. The subject-matter comprehended in these controversies is as broad as these rights. Mr. Justice Baldwin, in Rhode Island v. Massachusetts, 12 Pet. 657, 721, said that, "though the Constitution does not in terms extend the judicial power to all controversies between two or more States, yet it in terms excludes none, whatever may be their nature or subject." Further on in the same opinion (p. 722) he said: "This court, in construing the Constitution as to the grants of powers to the United States, and the restrictions upon the States, has ever held that an exception of any particular case, presupposes that those which are not excepted are embraced with- in the grant or prohibition, and has laid it down as a general rule that, where no exception is made in terms, none will be made by mere implication or construction. (6 Wheat. 378 ,' 8 Id. 489, 490 ; 9 Id. 206, 207, 216 ; and 12 Id. 438.)" The term " controversies," therefore, covers the whole field of disputes and differences between States that possess a, judicial character and admit of settlement by a court of justice, whatever may be the matter involved. It embraces, in the language of the Judiciary Act of 1 789, " all controversies of a civil nature, where a State is a party." The Constitution makes no exception, what- ever may be the subject in dispute, and none can be made by mere implication. The design of the framers of the Constitution was to provide, in the judicial power of the United States, the means of peacefully determining all controversies between the dif- 120 CONTROVERSIES BETWEEN TWO OR MORE STATES. f erent States of the Union, and thus preclude all occasion for a resort to violence as a remedy for injustice. The provision that the Supreme Court shall have original jurisdiction in all cases "in which a State shall be party," was intended as a tribute of defer- ence to the dignity of a State. Nearly all the suits between States which the Supreme Court has had occasion to determine have, as to the matter in contro- versy, related to the question of their boundary lines, and, hence, have incidentally involved the question of State jurisdiction over the territory in dispute. The case of New Jersey v. New York, 5 Pet. 284, was that of a bill filed by the former State against the latter, " for the purpose of ascertaining and settling the boundary between the two States." In the case of Missouri v. Iowa, 7 How. 660, the allegation of the complaining State was, that the defendant had obtruded on and claimed a portion of its territory, and wrongfully ousted its jurisdiction over the said territory, having actual possession there- of, and claiming it to be within its limits, contrary to the rights of the State bringing the suit. The Supreme Court examined this question, and determined the true boundary between the litigat- ing States, and thus settled the controversy between them. The case of Florida v. Georgia, 17 How. 478, was a contro- versy as to the boundary line between the two States. Chief Jus- tice Taney, in stating the opinion of the court, said that " it is settled, by repeated decisions, that a question of boundary between States is within the jurisdiction " conferred by the Constitution on the Supreme Court ; that such a question is " in its nature a political question, to be settled by compact made by the political departments of the government ; " but that, " under our Govern- ment, a boundary between two States may become a judicial question, to be settled by this court ; " and that the " decision, when pronounced, is conclusive upon the United States, as well as upon the States that are parties to the suit." The same question was involved in Alabama v. Georgia, 23 How. 505. The most notable of all the cases in the amplitude and length of the discussion by the Supreme Court, is that of Rhode Island v. Massachusetts, 12 Pet. 657. The matter in dispute was that of the true boundary line between the two States ; and inasmuch as the jurisdiction of the court over such a question was denied, Mr. THE MATTER IN DISPUTE. 121 Justice Baldwin, in stating the opinion of the court, said : " Before we can proceed in this cause, we must, therefore, inquire whether we can hear and determine the matter in controversy between the parties, who are two States of the Union, sovereign within their respective boundaries, save that portion of power which they have granted to the Federal Government, and foreign to each other for all but Federal purposes." The learned Justice traversed the whole question by an elaborate and exhaustive argument, leading to the conclusion adopted by the court, that " this court has juris- diction of a suit in equity brought by one State against another, to determine a question of disputed boundary." The question before the court, in Virginia v. West Virginia, 11 "Wall. 39, was whether certain counties belonged to the former or the latter of these States. Both States claimed rightful juris- diction over them, and, in order to determine this question, it be- came necessary to examine and construe the series of acts by which West Virginia was erected into a State out of a portion of the territory of Virginia, and by Congress admitted into the Union. It was claimed by one of the parties to this controversy that the court had no jurisdiction of the case, because it involved " the consideration of questions purely political." Mr. Justice Miller, in answer to this claim, referred to various cases in which the court had passed judgment in controversies be- tween States, and then proceeded to say ; " We consider, there- fore, the established doctrine of this court to be, that it has juris- diction of questions of boundary between two States of this Union, and that this jurisdiction is not defeated because, in decid- ing that question, it becomes necessary to examine into and construe compacts or agreements between those States, or because the de- cree which the court may render affects the territorial limits of the political jurisdiction and sovereignty of the States which are par- ties to the proceeding." These cases settle the question of jurisdiction in the Supreme Court over controversies between two or more States, relating to the subject of boundary lines between them. The Constitution gives to this court original jurisdiction in such suits ; and States have no sovereignty which exempts them from its operation. No State can oust or defeat the jurisdiction by omission to obey the summons of the court, or declining to appear at its bar. The court can proceed in its absence, after proper notice, and make a 122 CONTROVERSIES BETWEEN TWO OR MORE STATES. decree that will bind the State, even though it should affect its political sovereignty over the territory which is the subject of the dispute. The decree of the Supreme Court upon such a question cannot be lawfully resisted ; and should a State attempt to defeat its opera- tion by resistance, it would be the province and duty of the General Government to provide for carrying it into effect, if necessary, by force of arms. There can be no question that Congress has ample power to provide the means needful to give effect to the decisions of this court. These decisions are not mere opinions, but absolute and final laws in respect to the matter upon which they operate ; and they must be Obeyed whether they affect States or individuals. The whole physical power of the Government is pledged for their execution. The jurisdiction of the Supreme Court in " controversies be- tween two or more States," is by no means limited to the single question of boundary lines. It extends, as already remarked, to a controversy between States on any subject, that is judicial in its nature, and assumes the form of a suit in law or equity. There can be no doubt that a State can contract a debt and issue legal evidences of the same. If these evidences should become bwia fide the property of another State, then the relation between the two States would be that of debtor and creditor. If the debtor State should omit to discharge the obligation at maturity, or at- tempt to repudiate it altogether, then the creditor State would, under the Constitution and the law, be entitled to invoke the orig- inal jurisdiction of the Supreme Court, by bringing a suit in that court for the enforcement of its claim. The case presented would be a controversy between two States, clearly judicial in its nature ; and if the court can determine a controversy between States in re- spect to a boundary line, then manifestly it can determine one in respect to a debt obligation. Moreover, a judgment or decree rendered by the court in such a case would be as authoritative and binding as in any other case. It would be the duty of the parties to abide by the judgment or decree ; and if it were adverse to the defendant State, then that State must pay the debt which was the subject of the controversy. Judicial power extends to the execution of its own judgments or decrees ; and Congress has power to pass all the laws necessary and proper to enable the courts of the United States to execute all the ASSIGNMENTS TO A STATE. 123 judgments and decrees they have the right to render, as well against States as against individuals. No State can plead its sover- eignty as a State against the constitutional power of Congress, or against decisions rendered by the Supreme Court of the United States. There is no reason why Congress may not provide for a tax levy, if necessary, upon the inhabitants of a State, to be ordered by the court, for the satisfaction of a judgment or decree rendered by it in favor of one State against another. This would be simply passing a law for carrying into execution the judicial power of the United States ; and any law necessary and proper to this end is within the legislative power of Congress. Jurisdiction, in order to be real and effective, must be able to command and control the proper means of its own execution. 6. Assignments to a State. — The legislature of New York, assuming that a State, being the assignee of a debt-obligation against another State, may bring a suit in the Supreme Court of the United States to enforce its payment, passed an act, on the 1 5th of May, 1880, authorizing the citizens of that State to assign such obligations to the State, and provided in the act for the institution of legal proceedings with a view to the enforcement of these ob- ligations. (Session Laws of New York for 1880, vol. I, p. 440.) This act provides as follows : " Section 1. Any citizen of this State, being the owner and holder of any valid claim against any of the United States of America, arising upon a written obligation to pay money, made, executed, and delivered by such State, which obligation shall be ?ast due and unpaid, may assign the same to the State of New 'ork, and deliver the assignment thereof to the Attorney-General of the State. Such assignment shall be in writing, and shall be duly acknowledged before an officer authorized to take the ac- knowledgment of deeds, and the certificate of such acknowledg- ment shall be duly indorsed upon such assignment before the delivery thereof. Every such assignment shall contain a guaranty, on the part of the assignor, to be approved by the Attorney- General, of the expenses of the collection of such claim, and it shall be the duty of the Attorney-General, on receiving such assignment, to require, on behalf of such assignor, such security for said guaranty as he shall deem adequate." " Section 2. Upon the execution and delivery of such assign- ment, in the manner provided for in section one of this act, and furnishing the security as in said section provided, and the de- livery of such claim to him, the Attorney-General shall bring and 124 CONTROYERSIES BETWEEN TWO OR MORE STATES. prosecute such action or proceeding, in the name of the State of New York, as shall be necessary for the recovery of the money due on such claim, and the said Attorney-General shall prosecute such action or proceeding to final judgment, and shall take such proceedings after judgment as may be necessary to effectuate the same." " Section 3. The Attorney-General shall forthwith deliver to the Treasurer of the State, for the use of such assignor, all moneys collected upon such claim, first deducting therefrom all expenses incurred by him in the collection thereof, and said assignor or his legal representatives shall be paid said money by said Treasurer upon producing the check or draft therefor of the Attorney- General to his or their order and proof of his or their identity." " Section 4. This act shall take effect immediately." The legislature of New Hampshire, on the 18th of July, 1879, passed a substantially similar act in respect to citizens of that State having debt obligations against any other State of the Union, past due and unpaid. Suits in equity, under these acts, respectively, were brought by the State of New Hampshire and the State of New York, in the manner prescribed, in the Supreme Court of the United States, against the State of Louisiana. These suits, in New Hampshire v. Louisiana, and New York v. Louisiana, 27 Alb. Law Jour. 228, were. considered and determined at the same time, and both were dismissed as not coming within the jurisdiction of the court. Chief Justice "Waite, in delivering the opinion of the court, referred to the clauses of the Constitution which extend the judi- cial power of the United States to " controversies between two or more States," and " between a State and citizens of another State," and which provide that, in all cases " in which a State shall be a party, the Supreme Court shall have original jurisdiction." The Judiciary Act of 1789 gave to this court " exclusive jurisdiction of all controversies of a civil nature where a State is a party," with certain exceptions specified. In this state of the law occurred the celebrated case of Chis- holm v. Georgia, 2 Dall. 419, in which the Supreme Court held that it could entertain and determine a suit brought against a State by a citizen of another State. The provision of the Consti- tution under which this decision was made extends the judicial power of the United States to controversies " between a State and citizens of another State." This the court held to be sufficient to ASSIGNMENTS TO A STATE. 125 sustain such a suit. The decision in this case led to the adoption of the Eleventh Amendment, which says : " The judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by citizens of another State, or by citizens or subjects of any foreign State." Chief Justice Waite, having quoted this amendment, proceeded to say: "Under the operation of this amendment the actual owners of the bonds and coupons held by New Hampshire and New York are precluded from prosecuting these suits in their own names. The real question, therefore, is whether they can sue in the name of their respective States after getting the con- sent of the State, or, to put it in another way, whether a State can allow the use of its name in such a suit for the benefit of one of its citizens." These suits, though formally in the name of the respective States, were, as Chief Justice Waite claimed, in reality and in legal effect, commenced and prosecuted by the owners of the bonds. They paid all the expenses and were to derive all the benefit from any recovery of money. The States, respectively, in these suits, are " nothing more nor less than a mere collecting agent of the owners of the bonds and coupons, and while the suits are in the names of the States, they are under the actual control of individual citizens, and are prosecuted and carried on altogether by and for them." Such being the facts, no State, simply as a formal assignee, can lend its name to its own citizens for the purposes of a suit against another State, when these citizens themselves cannot bring the suit. They cannot thus indirectly do what they are prevented from doing directly. Chief Justice Waite concludes the opinion of the court in the following words : " It follows that when the amendment took away the special remedy there was no other left. Nothing was added to the Con- stitution by what was thus done. No power taken away by the frant of the special remedy was restored by the amendment, 'he effect of the amendment was simply to revoke the new right that had been given, and leave the limitations to stand as they were. In the argument of the opinions filed by the several justices in the Chisholm case, there is not even an intimation that if the citizen could not sue, his State could sue for him. The evident purpose of the amendment, so promptly proposed and finally 126 CONTROVERSIES BETWEEN TWO OR MORE STATES. adopted, was to prohibit all suits against a State by or for citizens of other States, or aliens, 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 prosecu- tion 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 of them is consequently dismissed." This settles the question that, under the Constitution as it now is, the New Hampshire and New York plan of assignment and of suit on the basis of such assignment is not an available remedy for the repudiation of debts by States. It plainly cannot be such a remedy, except by an evasion and virtual nullification of the obvious intention of the Eleventh Amendment. If the Constitu- tion had not been thus amended, the clause which extends the judicial power of the United States to controversies " between a State and citizens of another State," as construed by the Supreme Court in Ghisholm v. Georgia, supra, would have enabled such citizens to bring the necessary suits in that court for the enforce- ment of their claims. The amendment, however, took away this right and was designed to do so ; and to suppose that a State, by accepting an assignment from its own citizens and making itself a collecting agent in their behalf, can, under the clause of the Constitution which enables one State to sue another, in effect re-establish the right thus taken away, is to make the Constitution inconsistent with itself. If one State can do this, then every other State can equally do it ; and if all can do it, then the Eleventh Amendment, at the option of the States, may be made practically a dead letter. The repudiation of debts by States has undoubtedly become an enormous evil, for which the American people should supply an adequate remedy. That remedy consists in so amending the Constitution that the judicial power of the United States will be able to compel the States to pay their debts due to citizens of other States, or to citizens or subjects of foreign States. This is the true remedy, and it is fully within the power of the people to supply it. CHAPTER VI. CONTROVERSIES BETWEEN A STATE AND CITIZENS OP ANOTHER STATE. 1. Constitutional Provision. — The Constitution, as it orig- inally stood, provided, in its third article, that the judicial power of the United States shall extend to controversies "between a State and citizens of another State." The Judiciary Act of 1789 gave to the Supreme Court original but not exclusive jurisdiction " of all controversies of a civil nature, where a State is a party," and the suit is " between a State and citizens of other States." (1 U. S. Stat, at Large, 73.) Whether the authority thus conferred was limited to suits by States against citizens of other States, or extended also to suits by such citizens against States, was a question for judicial construc- tion. There was no doubt that it included the former class of suits. Did it also include 6uits of the latter class, so that citizens of a State might in the Federal courts bring suits against another State ? There certainly is nothing in the language to exclude the supposition that a State might be made a defendant in a Federal «ourt at the suit of a citizen of another State. The controversies described are " between a State and citizens of another State ; " and this, in the absence of any words of limitation or qualification, im- plies that either party might be plaintiff or defendant. The term "State," in both applications, means one of the United States, or a member of the Union, in distinction from a foreign State, an Indian tribe, a Territory of the United States, or the District of Columbia. The " citizens " of a State are citizens of the United States, having their domicile or residence in that State. (Gasies v. Ballon, 6 Pet. 761.) The celebrated case of Chisholm v. Georgia, 2 Dall. 419, which was in 1793 considered and determined by the Supreme Court of the United States, involved the question whether, under the Constitution as it then was, a State is suable in that court by individual citizens of another State. The case before the court was that of a suit brought by the executor of Chisholm against the 128 CONTROVERSIES WITH CITIZENS OF ANOTHER STATE. State of Georgia. The State, being summoned by process duly served upon its Governor and Attorney-General, and having at first declined to enter an appearance before the court, subse- quently addressed to the court a written remonstrance and pro- testation, denying its power to exercise jurisdiction in the cause, and refusing to participate in the argument of this question. The members of the court, having heard the argument in behalf of the plaintiff, gave their opinions seriatim upon this point ; and the result was an affirmatidn of the jurisdiction of the court to enter- tain and determine a suit brought against a State by a citizen or citizens of another State. Mr. Justice Oushing, in giving his opinion, said : " As contro- versies between State and State, and between a State and citizens of another State, might tend gradually to involve States in war and bloodshed, a disinterested civil tribunal was intended to be instituted to* decide such controversies, and preserve peace and friendship. Further, if a State is entitled to justice in the Fed- eral court against the citizen of another State, why not such citi- zen against the State, when the same language equally compre- hends both ? The rights of individuals and the justice due to them are as dear and precious as those of States. Indeed, the lat- ter are founded upon the former, and the great end and object of them must be to secure and support the rights of individuals, or else vain is government." It can hardly be doubted that this correctly expresses the view of those who framed the Constitution, and provided therein that the judicial power of the United States shall extend to controver- sies " between a State and citizens of another State." 2. The Eleventh Amendment. — This decision led Congress soon after to propose, and the State legislatures to ratify, the Elev- enth Amendment to the Constitution, providing as follows : " The judicial power of the United States shall not be con- strued to extend to any suit in law or equity commenced or prose- cuted against one of the United States by citizens of another State, or by citizens or subjects of a foreign State." (1 U. S. Stat, at Large, 402.) The construction placed upon this power by the Supreme Court, in the case of Chisholm v. Georgia, supra, had extended the power to such suits, and what the amendment did was to for- SUITS IN ADMIRALTY. 129 bid this construction in the future. Its effect was to arrest all 6uits in law and equity against States by citizens of other States that had been commenced, and exclude the bringing of other simi- lar suits at any future time. It dispossessed the Federal courts of all jurisdiction in such cases. It had the same effect in reference to suits in law or equity, commenced or prosecuted against one of the United States by citizens or subjects of a foreign State. It was on this ground that the Supreme Court dismissed the case of Hollingsworih v. Virginia, 3 Dall. 378, which was a suit brought before the ratification of the amendment. The unani- mous opinion of the court in this case was, " that, the amendment being constitutionally adopted, there could not be exercised any jurisdiction in any case, past or future, in which a State was sued by citizens of another State, or by citizens or subjects of a foreign State." The amendment uses the words " commenced or prose- cuted," intending to exclude alike suits then pending and those that might be brought thereafter. . This is the whole effect of the amendment. No change was made in the Constitution in any other respect. It still remains true that suits may be brought in the Supreme Court by a State against the citizens of another State, by States against each other, by a foreign State against a State of the Union, and by the latter against the former. The design of the amendment, therefore, was not to relieve States from all liability to suits. The States at the time were heavily indebted, and the decision of the Supreme Court, in Chisholrn v. Georgia, supra, led to the fear that numer- ous similar suits would be commenced and prosecuted, in that court. It was to prevent this result, rather than assert the gen- eral doctrine of State exemption from suits, that the amendment was proposed and adopted. 3. Suits in Admiralty. — The amendment expressly limits its prohibition to suits " in law and equity ; " and if these suits do not include admiralty suits, then it would seem to follow that the States are still liable to such suits by citizens of another State, or by citizens or subjects of a foreign State, for anything that is cog- nizable under admiralty jurisdiction. Mr. Justice Story remarks, in regard to this point : " It has been doubted whether this amendment extends to cases of admiralty and maritime jurisdiction, where the proceeding is 9 130 CONTROVERSIES "WITH CITIZENS OF ANOTHER STATE. in rem, and not in personam. There the jurisdiction of the court is founded upon the possession of the thing ; and if the State should interpose a claim for the property, it does not act merely in the character of a defendant, but as an actor. Besides, the language of the amendment is, that ' the judicial power of the United States shall not be construed to extend to any suit in law or equity.'' But a suit in admiralty is not, correctly speaking, a suit in law or equity, but is often spoken of in contradistinction to both." (Story's Const, sec. 1689.) Mr. Curtis says : " As the words of the amendment only pro- hibit ' suits in law or in equity ' from being brought against a State by citizens of another State, or aliens, there can be little doubt that the Supreme Court of the United States, in a case of admi- ralty jiirisdiction, would sustain, as a branch of its original juris- diction, a suit by an alien against a State." (Curtis's Comm. p. 207, note.) In Ex parte Madrazzo, 7 Pet. 627, which was a case of libel in admiralty against the State of Georgia, Chief Justice Marshall said : " The case is not a case where the property is in the custody of a court of admiralty, or brought within its jurisdiction, and in possession of any private person. It is not, therefore, one for the exercise of that jurisdiction. It is a mere personal suit against a State to recover proceeds in its possession, and in such a case no private person has a right to commence an original suit in this court against a State." The reasoning here suggests that, if the case had been one for admiralty jurisdiction, the court would have taken cognizance of it and disposed of it upon its merits. The admiralty jurisdiction of the Supreme Court, or of any other court of the United States, does not appear to be affected at all by the Eleventh Amendment, since it is expressly confined to a " suit in law or equity," which is not in either case a suit in admiralty. 4. Appellate Review. — The Supreme Court of the United States, in Cohens v. Virginia, 6 Wheat. 264, had occasion to con- sider and determine the question whether, when a suit or prosecu- tion is originally brought in and by a State against a private citizen, the Eleventh Amendment excludes the right of that court, in the exercise of its appellate jurisdiction, to re-examine by writ of error the judgment of a State court rendered against such citizen, if the case comes within the provision of law authorizing such re- examination. APPELLATE REVIEW. 131 Cohens claimed protection against an indictment fonnd against him under the laws of Virginia, on the ground that the act for which he was indicted was authorized by a law of the United States, which, as he insisted, rendered the Virginia law of no ef- fect. The case being carried to the Supreme Court of the United States, the question there arose whether the court had any juris- diction ; and, among the reasons assigned against the jurisdiction, it was claimed that the case, as pending before the court, was a suit against the State of Virginia by Cohens, and was hence ex- cluded by the Eleventh Amendment. Chief Justice Marshal], in delivering the opinion of the court, said that the amendment " was intended for those cases, and those only, in which some demand against a State is made by an individ- ual, in the courts of the Union." '' To commence a suit," he said, " is to demand something by the institution of a process in a court of justice ; and to prosecute the suit is, according to the common acceptation of language, to continue that demand. By a suit com- menced by an individual against a State, we should understand process sued out by that individual against the State, for the purpose of establishing some claim against it by the judgment of a court ; and the prosecution of that suit is its continuance. Whatever may be the stages of its progress, the actor is still the same." He further said ; " If a suit, brought in one court and carried by legal process to a supervising court, be a continuation of the same suit, then this suit is not commenced or prosecuted against a State. It is clearly, in its commencement, the suit of a State against an individual, which suit is transferred to this court, not for the purpose of asserting any claim against the State, but for the purpose of asserting a constitutional defense against a claim made by the State." Further on in the same opinion, the Chief Justice remarked : " Where, then, a State obtains a judgment against an individual, and the court rendering such judgment overrules a defense set up under the Constitution or laws of the United States, the transfer of this record into the Supreme Court, for the purpose of inquir- ing whether the judgment violates the Constitution or laws of the United States, can, with no propriety, we think, be denominated a suit commenced or prosecuted against the State whose judgment is so far re-examined. Nothing is demanded from the State. No claim against it of any description is asserted or prosecuted." 132 CONTROVERSIES "WITH CITIZENS OJF ANOTHER STATE. The argument and decision of the court in this case settled the question that the Eleventh Amendment " applies only to orig- inal suits against a State, and does not touch the appellate jurisdic- tion of the Supreme Court to re-examine, on appeal or writ of error, a judgment or decree rendered in any State in a suit brought originally by a State against any private citizen." (Story's Const, sec. 1684:.) Such re-examination is not a suit commenced or prosecuted against a State, within the meaning of the Eleventh Amendment, and is, hence, not excluded by it. 5. States as Parties to Suits. — The case of Osborn v. The United States Bank, 9 "Wheat. 738, brought before the Supreme Court another important question of constitutional construction. That question was this : When is a State to be judicially deemed a party to a suit, either for the purpose of bringing suits in a Fed- eral court against a citizen or citizens of another State, or for the purpose of claiming exemption from suits in law or equity, sought to be brought against it by such citizen or citizens ? This case originated in a bill filed in the Circuit Court of the United States for Ohio, against Ralph Osborn, who was auditor of the State of Ohio, asking for an injunction to restrain him from proceeding to collect a tax from the Bank of the United States, as provided for by the laws of the State. A supplemental bill was subsequently filed, setting forth the fact that the sum of one hun- dred thousand dollars had by violence been taken from the branch bank of the United States at Chilicothe, by one Harper, employed by Osborn to collect the tax, and praying the court to order the restoration of this money. The court, upon hearing the case, directed the money to be re- stored, and from this decree an appeal was taken to the Supreme Court of the United States. The appellants took the ground that the bill filed in the Circuit Court was a suit in equity against the State of Ohio, because it sought to restrain the officers of that State from executing one of its tax laws, and that for this reason, the Circuit Court, under the Eleventh Amendment, had no juris- diction in the case. This raised the question whether the State of Ohio was in fact a party to this suit. That it had an interest in the suit was undoubted. "Was it judicially a party ? "Was the suit, in being brought against the agents of the State, brought against the State, and the proceeding void for this reason ? STATES AS PARTIES TO SUITS. 133 Chief Justice Marshall, having examined this question at large, came to the following conclusion : " It may, we think, be laid down as a rule which admits of no exception, that, in all cases where jurisdiction depends on the party, it is the party named in the record. Consequently, the Eleventh Amendment, which re- strains 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 Constitution be construed as it would have been construed, had the jurisdiction of the court never been extended to suits brought against a State by citizens of another State or by aliens." The court held in this case that the State of Ohio, not being named in the record as a party, was not a party to the suit, and that the Circuit Court had jurisdiction over those who were parties on the record, and affirmed the decree of the Circuit Court order- ing the restoration of the money to the bank from which it had been taken. The doctrine sustained by this case is that a State, in order to be a party to a suit, must either sue or be sued in its political character as such, and that this fact must appear on the record. It must, in legal terms, be an actual plaintiff or petitioner bring- ing the suit in the one case, or an actual defendant sued as a State in the other case, and in either case hold such a relation to the proceeding that the judgment or decree of the court would be as binding upon it as it would, in like circumstances, be upon indi- viduals. No State is or can be a party to a suit, within the meaning of the Constitution and the law, in cases in which juris- diction depends upon the party, unless it be an actual plaintiff or petitioner or a defendant on the record of the suit. The mere fact that a State has an interest in the result of a suit, or that its rights and powers may be incidentally drawn in question, or that a party to the suit is sued as an agent of the State for acts done as such agent, or that a State is a stockholder, even the sole stockholder, in a corporation that appears as a party suing or sued, will not, in the judicial sense, make the State a party to the controversy, or give or vacate jurisdiction for this reason. {Fowler v. Lindsey, 3 Dall. 411 ; New York v. Connecti- cut, 4 Dall. 1 ; The United States v. Peters, 5 Cranch, 115, 139 ; Kent's Comm. Lect. 15 ; and Story's Const, sec. 1685.) In The United States Bank v. The Planters' Bank of Georgia, 134 CONTROVERSIES WITH CITIZENS OF ANOTHER STATE. 9 Wheat. 904, the court laid down the doctrine that the fact that a State is a stockholder in a banking corporation will not impart thereto its own exemption from suits as secured by the Eleventh Amendment. On this point Chief Justice Marshall said : "The State does not, by becoming a corporator, identify itself with the corporation. The Planters' Bank of Georgia is not the State of Georgia, although the State holds an interest in it. It is, we think, a sound principle that when a government becomes a partner in any trading company, it divests itself, so far as concerns the transactions of that company, of its sovereign character, and takes that of a private citizen. Instead of communicating to the company its privileges and its prerogatives, it descends to a level with those with whom it associates itself, and takes the character which belongs to its associates, and to the business to be trans- acted. * * * As a member of a corporation, a government never exercises its sovereignty. It acts merely as a corporator, and exercises no other power in the management of the affairs of the corporation than are expressly given in the incorporating act." The same doctrine was stated in The BanTc of Kentucky v. Wister, 2 Pet. 318. In this case the State of Kentucky was the " sole proprietor of the stock of the bank," and on this ground it was insisted in the court below " that the suit was virtually against a sovereign State." The Supreme Court, however, rejected this theory, and held that the bank could claim no exemption from suits against it in the courts of the United States, because the State was the sole owner of the stock. These cases settle the principle that the Eleventh Amendment considered as giving to a State an exemption from liability to suits in the Federal courts, brought by citizens of another State or by citizens or subjects of a foreign State, has no application, unless the State itself, in its political character as such, is. sought to be sued, and this fact is shown by the record. 6. Suits l>y States. — The Constitution as originally adopted, extended the judicial power of the United States to controversies " between a State and citizens of another State," and provided that, in all cases " in which a State shall be party, the Supreme Court shall have original jurisdiction." The Eleventh Amend- ment, in no way, affects the right of a State, under these pro- visions, to bring a suit in the Supreme Court of the United States against a citizen or citizens of another State. SUITS BY STATES. 135 The case of Pennsylvania v. The Wheeling, dec, Bridge Company, 13 How. 518, was a suit in equity brought by Penn- sylvania, as the complainant, in the Supreme Court of the United States, praying for certain relief against the Bridge Company as a corporate citizen of Virginia, organized under the laws of the latter State, and claiming authority under the laws of the State to erect a bridge across the Ohio River at Wheeling. The ground of the complaint was that Pennsylvania, as the owner of public works, canals, and railways, which had been constructed at a large expense to the State, and from which a large revenue was received by the State, would be seriously injured by the erection of the bridge. The bill therefore prayed for an injunction against the erection of the bridge, as a public nuisance, and for general relief. In a supplemental bill subsequently filed, the State represented that the defendants had completed the bridge, and prayed that it might Tbe abated as a public nuisance. These proceedings were instituted by the Attorney- General of Pennsylvania under the express direction and authority of the legislature of the State ; and the court held that he acted as the legal representative of the State, and hence that the State, for the purposes of the suit, was a party on the record. Mr. Justice McLean, in stating the opinion of the court, said : " As this is the exercise of original jurisdiction by this court, on the ground that the State of Pennsylvania is a party, it is im- portant to ascertain whether such a case is made out as to entitle the State to assume this attitude. * * * In this case the State of Pennsylvania is not a party in virtue of its sovereignty. It does not come here to protect the rights of its citizens. The sovereign powers of the State are adequate to the protection of its own citizens, and no other jurisdiction can be exercised over them, or in their behalf, except in a few specified cases. Nor can the State prosecute this suit on the ground of any remote or con- tingent interest in itself. It assumes and claims, not an abstract right, but a direct interest in the controversy, and that the power of this court can redress its wrongs and save it from irreparable injury. If such a case be made out the jurisdiction may be sus- tained. * * * The rights asserted and the relief prayed are considered in no respect _ different from those of an individual. Prom the dignity of the State the Constitution gives to it the right to bring an original suit in this court. And this is the only privi- lege, if the right be established, which the State of Pennsylvania •can claim in the present case. * * * Pennsylvania claims nothing connected with the exercise of sovereignty. It asks from 136 CONTROVERSIES WITH CITIZENS OF ANOTHER STATE. the court a protection of its property, on the same ground and to the same extent as a corporation or an individual may ask it. An d it becomes an important question whether such facts are shown as require the extraordinary interposition of this court." The court, holding that the Ohio river is a public navigable stream, was of opinion, in the light of the facts as ascertained, that the bridge obstructs its navigation, and " that the State of Pennsyl- vania has been and will be injured in her public works, in such manner as not only to authorize the bringing of this suit, but to entitle her to the relief prayed." A decree was made in accord- ance with this view. / Jurisdiction was sustained in this case on the ground that Pennsylvania, being a State and having not simply a remote and contingent, but a direct and proprietary interest in the matter of the controversy, had a right, under the Constitution of the United States, to bring an original suit in the Supreme Court, for the protection of that interest against injury by the defendants, who were citizens of another State. , Hot only was the State formally a party on the record, but the court examined into the merits of the case sufficiently to conclude that its interest in the controversy entitled it to appear as a plaintiff, and seek the protection of the court against an injury to its public works. It seems, then, as remarked by Mr. Curtis, that when a State is plaintiff against citizens of another State, the Supreme Court " will look into the nature of the controversy, and that the jurisdiction requires not merely that the State should be a nominal party, but that it should have a real, direct, and substantial interest." (Curtis's Comm. p. 84.) The case of The /Stale of Florida v. Anderson et al., 1 Otto, 667, was a bill in equity filed in the Supreme Court by the State of Florida, in behalf of the State and the trustees of the internal improvement fund of the State, against Holland, Anderson,- and others, who were citizens of Georgia. It was an original suit by a State against citizens of another State, and the court took juris- diction of the controversy, and made a decree, in the premises. On the question of jurisdiction, Mr. Justice Bradley, in stating the opinion of the court, said : " The first question which naturally presents itself is, whether the State of Florida has such an interest in the subject-matter of the suit, and in the controversy respecting the same, as to give it STATE CONTRACTS. 137 a standing in court. It is suggested that the trustees of the inter- nal improvement fund are the only parties legally interested, and that they have no right to bring an original bill in this court. To this it may be answered, in the first place, that the State has a direct interest in the subject-matter (the railroad in question) by reason of holding, as it does, the four millions of bonds which are a statutory lien upon the road. In the next place, the interest of the State in the internal improvement fund is sufficiently direct to give it a standing in court, whenever the interests of that fund are brought before a court for inquiry. * * * It is apparent that the trustees are merely agents of the State, invested with the legal title of the lands for their more convenient administration, and that the State remains in every respect the beneficial proprie- tor, subject to the guaranties which have been made to the holders of railroad bonds secured thereby. The residuary interest in the fund belongs to the State. * * * Now, to protect its inter- ests, it is competent for the State, seeking equitable relief against citizens of another State, to file an original bill in this court. The reference to the trustees in the bill cannot affect the jurisdiction of the court, inasmuch as they are not the litigants before it." Jurisdiction was sustained in this case on the ground that Flor- ida, being a State, had a constitutional right to bring an original suit in the Supreme Court, and that the State had a direct interest in the subject-matter of the controversy, for whose protection it was entitled to file a bill in that court. The case of Pennsylvania v. The Quicksilver Company, 10 "Wall. 553, was dismissed by the Supreme Court, on the ground that the declaration of the bill, filed by Pennsylvania, setting forth that the Company is " a body politic in the law of, and do- ing business in the State of California," was not a sufficient aver- ment that the Company was a corporation created by the laws of California. It was admitted in the argument that the corporation was created under the laws of Pennsylvania. It was hence a corporate citizen of that State, and not of California, although its office and business were located in the latter State. The case, therefore, was not a controversy between a State and a citizen of another State, and, consequently, the court had no jurisdiction over it. 7. State Contracts.— States, as political sovereignties, have the power to make contracts with the citizens of other States; and as the Constitution originally stood, these contracts, according 138 CONTROVERSIES WITH CITIZENS OF ANOTHER STATE. to the decision in Chisholm v. Georgia, 2 Dall. 419, could be en- forced by original suits in the Supreme Court. The Eleventh Amendment, in depriving these citizens of all power to bring suits in any Federal court against a State, completely destroyed this remedy, and left the States in possession of the debt-contracting power, with this constitutional exemption from liability to suits in law or equity. It placed the citizens of foreign States in the same predicament. As to the direct enforcement of contracts between a State and its own citizens, the Constitution never gave any juris- diction to the Federal courts. There is, however, a provision in the Constitution which for- bids the States to pass any law " impairing the obligation of con- tracts ; " and this provision, as the Supreme Court has repeatedly declared in the exercise of its appellate jurisdiction over the judg- ments and decrees of State courts, extends not only to contracts between individuals, but also to those made by States with indi- viduals. {The Trustees of Dartmouth College v. Woodward, 4 Wheat. 518; and Stone v. Mississippi, 11 Otto, 814.) The Supreme Court has frequently explained this constitu- tional provision, in each instance with reference to the particular case pending before it ; but, in no case has it either declared or implied that a State can, by a legal proceeding in a Federal court, be compelled to discharge its contracts with the citizens of other States, or the citizens of subjects of foreign States, or with its own citizens. If, therefore, a State neglects or refuses to pay debts due to any of these parties, they cannot judicially en- force the claim in the courts of the State without its consent, and they cannot do so at all in the courts of the United States. The prohibition against impairing the obligation of contracts is not an adequate remedy against State repudiation. It does not enable the Federal courts to compel a State to pay debts to any of these parties. If the States of the Union were nations, owing debts to the citizens or subjects of foreign nations, then the latter, under the law of nations, would have the right to compel them by force, if necessary, to pay these debts. In regard to this point, Mr. Phil- limore says : " The right of interference on the part of a State, for the pur- pose of enforcing the performance of justice to its citizens from a foreign State, stands upon an unquestionable foundation, when the STATE CONTRACTS. 139 foreign State has become itself a debtor of these citizens. It must, of course, be assumed that such State has, through the medium of its proper and legitimate organs, contracted such debts. * * * The debt so contracted with foreign citizens, whether in an individ- ual or corporate capacity, constitutes an obligation of which the coun- try of the lenders has a right to require and enforce the fulfillment. Whether it will exercise that right or not is a matter fpr the con- sideration of its private domestic policy." (Phillimore's Interna- tional Law, vol. II, p. 8.) Vattel, in his Law of Nations, lays down the same doctrine. Lord Palmerston, in 1848, being then the Secretary of State for Foreign Affairs, addressed a circular to the British representatives in foreign States, in which he claimed the right of the British Government to interfere in behalf of "the unsatisfied claims of British subjects who are holders of public bonds and money se- curities of those States," and directed these representatives to communicate this view to these respective States. There is noth- ing unreasonable or unjust in the doctrine that a government should interpose its power for the protection of its own citizens or subjects, and demand that foreign governments owing debts to them should honestly discharge this obligation. It is to be remembered, however, that the States of this Union, while they have the debt-contracting capacity, are, never- theless, not nations, but simply integral parts of a nation. They send no ambassadors to foreign nations, and receive none from them. They make no treaties, and can neither declare war nor make peace. They are not known in the family of nations, and have no international rights, and are subject to no international responsibilities. Any attempt on the part of foreign nations to compel them to pay debts due from them to the citizens or sub- jects of those nations, would be instantly resisted by the United States. , Nor would the United States permit any State of the Union to resort to the law of force for the purpose of compelling other States to pay debts due from them to its citizens. The result then, is, that the States of this Union have no in- ternational responsibility in respect to the payment of debts due to the citizens or subjects of foreign nations, and that no State can afford to its own citizens any remedy in respect to debts due to them from other States, while the courts of the United States have no power to protect either class of citizens against acts of 140 CONTROVERSIES "WITH CITIZENS OF ANOTHER STATE. State repudiation. The States are free to contract debts, and just as free from any law to compel their payment. Such is the position of a debtor State of this Union, and such is the position of its creditors, being citizens of other States or aliens. Whether the former, having made a contract with the latter, shall repudiate or fulfill that contract, is left to its own un- controlled and uncontrollable pleasure. That pleasure, as the history of the States shows, has, to a most lamentable extent, been a fraudulent pleasure. State debts, that were just, legal claims, have been repudiated by millions. Constitutions and laws have been altered for this purpose, and when this has not been done, the repudiation has been as practically effective by the mere omission of payment. The public conscience has, by these acts of State repudiation, been demoralized, and the whole people of the United States have been disgraced in the eyes of the world. There may be some inconveniences and evils in making a State suable in the courts of the United States by citizens of other States, and by citizens or subjects of foreign States. But it may well be doubted whether these inconveniences and evils are at all as serious as those entailed by exemption from this liability. If the Eleventh Amendment had never been adopted, and the Con- stitution had been left as it was before it was thus amended, and if the construction placed upon it in Chisholm v. Georgia, 2 Dall. 419, had become the settled and established law of the land, so that all the States, in contracting debts, would have understood that the payment of these debts could be enforced by law, the policy of the States in reference to the contraction of debts would have been more cautious and conservative, and their record would have been much more honorable. The Eleventh Amendment opened the way for a great abuse ; and some of the States — hap- pily, not all of them — have not had sufficient honor to keep them from perpetrating this abuse. CHAPTER VII. CONTROVERSIES BETWEEN CITIZENS OF DIFFERENT STATES. 1. Constitutional Proyision. — The Constitution, in article 3, section 2, provides that the judicial power of the United States shall extend to controversies " between citizens of different States." The Judiciary Act of 1789 gave to the Circuit Courts of the United States original cognizance " of all suits of a civil nature, at common law or in equity, where the matter in dispute exceeds, exclusive of costs, the sum or value of five hundred dollars," and " the suit is between a citizen of the State where it is brought and a citizen of another State." (1 U. S. Stat, at Large, 73.) This provision is continued in section 629 of the Eevised Statutes of the United States. Congress, by the Act of March 3d, 1875, provided that the Circuit Courts of the United States shall have original cognizance " of all suits of a civil nature, at common law or in equity, where the matter in dispute exceeds, exclusive of costs, the sum or value of five hundred dollars," and " there shall be a controversy between citizens of different States," subject to the following qualifications : 1. That "no person shall be arrested in one district for trial in another in any civil action before a Circuit or District Court." 2. That " no civil suit shall be brought before either of said courts against any person by any original process or proceeding in any other district than that whereof he is an inhabitant, or in which he shall be found at the time of serving such process or commencing snch proceeding," with certain exceptions named in the act. 3. That neither of these courts shall " have cognizance 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 promissory notes negotiable by the law merchant and bills of exchange. (18 U. S. Stat, at Large, 470.) The object of this legislation is to carry into effect the clause of the Constitution which extends the judicial power of the United States to controversies " between citizens of different States." 142 CONTROVERSIES BETWEEN CITIZENS. 2. Who are Citizens? — The Fourteenth Amendment declares that " all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside." Being citizens of the United States, they are ipso facto citizens of the particular State in which their domicile is established. This was a fact before the adoption of the Fourteenth Amendment. Chief Justice Marshall, in Gassies v. Ballon, 6 Pet. 761, said : " The defendant in error is alleged in the proceeding to be a citizen of the United States, naturalized in Louisiana and residing there. This is equivalent to the averment that he is a citizen of that State. A citizen of the United States, residing in any State of the Union, is a citizen of that State." In Prentiss v. Barton, 1 Brock. 389, it was held that "a citizen of the United States residing permanently in any State is a citizen of that State." ( Cooper v. Galbraith, 3 "Wash. 546 ; Gardner v. Sharp, 4 Wash. 609 ; Butler v. Farnsworth, 4 Wash. 101 ; and Bead v. Bertrand, 4 Wash. 514.) State citizenship, as thus ascertained by residence in a particu- lar State, supposes the party to be at the same time a citizen of the United States. Chief Justice Taney, in The Bred Scott Case, 19 How. 393, 405, having said that, before the adoption of the Constitution, each State had the right to bestow the privileges of citizenship upon whom it pleased, proceeded to say : " Each State may still confer them upon an alien, or any one it thinks proper, or upon any class or description of persons ; yet he would not be a citizen in the sense in which that word is used in the Constitu- tion of the United States, nor entitled to sue as such in one of its courts, nor to the privileges and immunities of a citizen in the other States. The rights which he would acquire would be re- stricted to the State which gave them." Citizenship in a State of this purely local character, unaccom- panied with citizenship of the United States, would not, according to this statement, confer " the rights and privileges secured to a citizen of a State under the Federal Government." The person who possessed only this local citizenship, would not be a citizen at all in the sense of the Constitution. As to the question of residence or domicile, Mr. Wharton says : " Domicile is residence as a final abode. To constitute it, there must be : 1, residence, actual or inchoate ; 2, the non-existence of WHO ARE CITIZEN'S. 14:3 any intention to make a domicile elsewhere." (Wharton's Conflict of Laws, 2d. ed. sect. 21.) In Byrne v. Holt, 2 Wash. 282, it was held that " a party who resides in a State with his family and carries on business there is a citizen of that State." If, however, "a party merely abides without his family in a State temporarily for a special purpose, with the animo revertendi always continuing, he does not thereby become a citizen of the State." {Cooper v. Galbraith, 3 Wash. 546 ; Gardner v. Sharp, 4 Wash. 609 ; and Head v. JBertrand, 4 Wash. 514.) In Shellon v. Tiffin, 6 How. 163, 185, Mr. Justice McLean said : " Where an individual has resided in a State for a consider- able time, being engaged in the prosecution of business, he may well be presumed to be a citizen of such State, unless the contrary appear. And this presumption is strengthened where the indi- vidual lives on a plantation and cultivates it with a large force, as in the case of Shelton, claiming and improving the property as his own. On a change of domicile from one State to another, citizen- ship may depend upon the intention of the individual. But this intention may be shown more satisfactorily by acts than declara- tions. An- exercise of the right of suffrage is conclusive on the subject ; but acquiring the right of suffrage, accompanied by acts which show a permanent location, unexplained, may be sufficient." Removal from one State to another, under circumstances im- plying the anirnum manendi, or purpose to remain, is a transfer of citizenship from the former to the latter State, provided the person so removing was a citizen of the former State in the sense of the Constitution. There is no doubt that one may in this way change his citizenship from one State to another. This right is secured not only by the Fourteenth Amendment, but by the pro- vision of the Constitution which declares that "the citizens of each State shall be entitled to all privileges and immunities of citizens in the several States." The animus manendi is the chief point in such a case, and distinguishes a legal residence, or one that involves citizenship, from a temporary and transient occupancy of a place which carries with it no change of citizenship. Courts of justice adopt reason- able rules as to the evidence of such a purpose. {The Venus, 8 Cranch, 253, 279 ; Case v. Clcwke, 5 Mason, 70 ; and Cooper v. Galbraith, 3 Wash. 546.) 144 CONTROVERSIES BETWEEN CITIZENS. It is a general principle that one who is a citizen of a given State, retains that citizenship, with the rights involved therein, until his citizenship, being unf orf eited by crime, shall be established elsewhere. He cannot at the same time be a citizen of different States. If removing from one State to another, being a citizen of the former, he remains such until he becomes a citizen of the latter; and this is an accomplished fact as soon as his legal domicile is established in the latter State. 3. The Matter in Dispute. — Congress, in vesting the juris- diction conferred by this clause of the Constitution, has not only confined it to the Circuit Courts of the United States, but also limited it by a jurisdictional sum. The matter in dispute between the parties must exceed, exclusive of costs, the sum or value of five hundred dollars. By the matter in dispute is meant the subject-matter of the litigation, as set forth in the declaration or bill of complaint, or that for which the 6uit is brought and on which the issue is joined between the parties. {Culver v. Craw- ford, 4 Dill. 239; Judson v. Macon County, 2 Dill. 213; and Sherman v. Clark, 3 McLean, 91.) This supposes that the subject of the controversy is of such a character that the value involved is capable of being expressed in the terms of money. If the " demand is not for money, and the nature of the action does not require the value of the thing de- manded to be stated in the declaration," the plaintiff may intro- duce evidence to show the value of the property in litigation. (Ex parte Bradstreet, 7 Pet. 634.) The value in all cases, in order to support jurisdiction, must, exclusive of costs, exceed the sum specified in the statute. 4. The Requisite Citizenship. — The fundamental fact upon which jurisdiction in these controversies depends, is the requisite citizenship of the parties, considered relatively to each other. The controversies, as described in the Constitution and the law, are " between citizens of different States." The opposing parties to the suit must not only be citizens, but must have a different State citizenship. If one party be a citizen of a given State, then the other must be a citizen of some other State. This relation of the parties is a jurisdictional relation, since it is upon this ground^ THE REQUISITE CITIZENSHIP. 145 and not the subject-matter of the controversy, that the jurisdiction is conferred. . The Judiciary Act of 1789 (1 U. S. Stat, at Large, 73), re- quired that one of the parties should be a citizen of the State in which the suit is brought. (Goodyear v. Day, 1 Blatch. 565; and Kelly v. Harding, 5 Blatch. 502.) In the latter of these cases it was said by the court : " This court has no jurisdiction whatever over controversies between parties, all of whom, plaint- iffs as well as defendants, are citizens of States other than that in which the suit is brought." Such was the fact under the Judici- ary Act of 1789. The Act of March 3d, 1875 (18 U. S. Stat, at Large, 470), has removed this condition as to jurisdiction, giving jurisdiction of controversies "between citizens of different States," without any reference to the question whether either party is a citizen of the State in which the suit is brought. States of the Union are the political bodies referred to in the extension of the judicial power of the United States to contro- versies " between citizens of different States." The Territories of the United States are not such States, and the District of Colum- bia is not a State ; and hence citizenship in neither will suffice to give jurisdiction. (Hepburn v. JEllzey, 2 Cranch, 445 ; and The Corporation of New Orleans v. Winter, 1 Wheat. 91.) It being a fact that the jurisdiction depends upon the relative situation of the parties, considered as citizens of different States, it then necessarily results that this situation must be shown on the record. A failure to make the proper averment as to citizenship defeats the jurisdiction altogether. The court surely cannot take cognizance of a case that does not upon the face of the proceed- ings come within the terms of the Constitution and the law. The parties, as. known to the court, are those and those only that appear on the record ; and if these parties are not set forth, as being citizens of different States, then the case must be dismissed for the want of jurisdiction. Chief Justice Marshall, in Osborn v. The United States Bank, 9 Wheat. 738, 856, referring to controversies " between citizens of different States," said that the universally received construction is " that jurisdiction is neither given nor ousted by the relative situation of the parties concerned in interest, but by the relative situation of the parties named on the record." The parties on 10 146 CONTROVERSIES BETWEEN CITIZENS. the record are the party suing and the party Bued, as shown by the record; and these parties must be shown to be citizens of different States, or jurisdiction will not attach to the case. The fact that there are other parties, not named in the record, who may have an interest in the suit, does not remove the neces- sity that the parties on the record should be presented as citizens of different States. " The jurisdiction of the court," as remarked by Chief Justice Marshall, " depends, not upon this interest, but upon the actual party on the record." The citizenship of the parties, in Jackson v. Ashton, 8 Pet. 148, was stated in the title of the bill, but not in the bill itself ; and in regard to the question of jurisdiction, Chief Justice Mar- shall said ; " The title or caption of the bill is no part of the bill, and does not remove the objection to the defects in the pleadings. The bill and proceedings should state the citizenship of the par- ties to give jurisdiction of the case." The case was dismissed for the want of jurisdiction. In Godfrey v. Terry, 7 Otto, 171, 175, the citizenship of the plaintiff was set forth on the record, but not that of any of the de- fendants, and this was held not sufficient to give jurisdiction. In regard to this case Mr. Justice Miller remarks ; " This whole pro- ceeding is a very extraordinary one. It is a case in which, if the Circuit Court of the United States had any jurisdiction at all, it must have been on the ground of the - citizenship of the parties. But the only allegation or evidence in the whole record on that subject is, that plaintiff, Terry, is a citizen of the State of Vir- ginia." In Robertson v. Cease, 7 Otto, 646, it was held : 1, That " where the jurisdiction of a court of the United States depends upon the citizenship of the parties, such citizenship, not simply their residence, must be shown by the record." 2. That "the ruling in Railway Company v. Ramsey (22 Wall. 322), approved in Briges v. Sperry (95 U. S. 401), that such citizenship need not necessarily be averred in the pleadings, if it otherwise affirmatively appears by the record, does not apply to papers copied into the transcript which do not make a part of the record by bill of ex- ceptions, or by an order of the court referring to them, or by some other mode recognized by law." Mr. Justice Harlan remarks in regard to this case : " Looking, then, at the pleadings, and to such portions of the transcript as CO-PLAINTIFFS AND CO-DEFENDANTS. 147 properly constitute the record, we find nothing beyond the naked averment of Cease's residence in Illinois, which, according to the uniform course of decisions in this court, is insufficient to show his citizenship in that State. Citizenship and residence, as often declared by this court, are not synonymous terms." {Parker v. Overman, 18 How. 137, 141.) These cases, without the addition of others, are sufficient to establish these two principles : 1. That the parties to a suit under this clause of the Constitution must be citizens of different States. 2. That the record must in each case clearly show this fact, and not leave it to be inferred from the fact of residence. The averments of the record as to the citizenship of the par- ties to a suit, if upon their face sufficient to establish jurisdiction, can be impugned by the defendant only in a special plea, a plea of abatement, which denies the fact of the requisite citizenship, and, therefore, the jurisdiction of the court. This doctrine was laid down in Wickliffe v. Owings, 17 How. 47, 51. If the de- fendant pleads to the merits of the case, he virtually concedes the jurisdiction, and having done this, he is in no condition to deny it. (Jurisdiction of the U. S. Courts, by Curtis, p. 126.) 5. Co-plaintiffs and Co-defendants. — The rule adopted by the Supreme Court, in construing the Constitution and the law in respect to controversies between citizens of different States is, that if, as may be the fact, there are several co-plaintiffs or several co-de- fendants, or several plaintiffs and several defendants, as parties in the same suit, then all the plaintiffs or all the defendants, as the case may be, must have the requisite citizenship, considered rela- tively to the person or persons composing the opposite party. Each plaintiff must, in the matter of citizenship, be so related to each defendant, that the one is competent to sue, and the other is liable to be sued ; and this fact must be shown on the record in respect to them all. The requisite citizenship, on the part of some of the plaintiffs or some of the defendants, will nqt be sufficient. It must be true of them all on both sides, in order to sustain the jurisdiction. Chief Justice Marshall, in Strawbridge v. Curtis, 3 Cranch, 267, having referred to the words of the Judiciary Act of 1789, giving the jurisdiction, proceeded to say : " The court understands these expressions to mean that each distinct interest should be rep- 148 CONTROVERSIES BETWEEN CITIZENS. resented by persons, all of whom are entitled to sue, or may be sned, in the Federal courts. That is, that where the interest is joint, each of the persons concerned in that interest must be com- petent to sue or liable to be sued in those courts/' This rule of construction was referred to and affirmed in The Commercial and Railroad Bank of Vicksburg v. Slocomb, 14 Pet. 60. In The Coal Company v. Blatchford, 11 Wall. 172, Mr. Jus- tice Field said : "If there are several co-plaintiffs, the intention of the act is, that each plaintiff must be competent to sue, and, if there are several co-defendants, each defendant must be liable to be sued, or the jurisdiction cannot be entertained." This is the settled doctrine of the Federal courts, in cases where there are several plaintiffs or several defendants. (ZocMart v. Horn, 1 Woods, 628 ; Anderson v. Bell, 2 Paine, 426 ; and Bissell v. Eorton, 3 Day, 281.) The obvious reason for this doctrine is founded on the fact that the jurisdiction, as conferred by the Constitution, depends entirely on the parties to a suit, who must be " citizens of differ- ent States." Hence, if one or more of the plaintiffs and one or more of the defendants be citizens of the same State, then, as be- tween these plaintiffs and defendants, the court can determine nothing, since it has no jurisdiction over them. Their relative situation is not the one defined in the Constitution as the basis of jurisdiction. Ex-Judge Dillon raises the question whether, under the Act of March 3d, 1875, "the Federal judicial power as conferred and limited by the Constitution can, by reason of citizenship, ex- tend to a case in which some of the necessary defendants are citi- zens of the same State with the plaintiffs or some of the plaint- iffs." He expresses the opinion that "the Supreme Court would be justified in holding that a case does not cease to be one between citizens of different States, because one or some of the defendants are citizens of the same State with the plaintiffs or some of the plaintiffs, provided the other defendants are citizens of another or other States." (Dillon's Kemoval of Causes, 3d ed. pp. 31, 32.) This does not accord with the view taken by the Supreme Court. Chief Justice Waite, in The Removal Cases, 10 Otto, 457, 468, referring to the jurisdiction of Circuit Courts in cases removed to them from State courts, under one of the provisions of the Act of March 3d, 1875, said: "For the purposes of a re- CO-PLAINTIFFS AND CO-DEFENDANTS. 149 moval, the matter in dispute may be ascertained, and the parties to the suit arranged on opposite sides of that dispute. If, in such an arrangement, it appears that those on one side are all citizens of different States from those on the other, the suit may be re- moved." The distinct implication is, that if this fact does not appear, the suit cannot be removed. The controversy, in order that the Circuit Court may take jurisdiction as between the par- ties, must be " between citizens of one or more States on one side, and citizens of other States on the other side." This being the fact, then either party, under the Act of 1875, may remove it to the Circuit Court. It appears, however, from the case of Conolly v. Taylor, 2 Pet. 556, 564, that "where, at the commencement of a suit, there are several parties on one side, one of whom has not the character requisite for jurisdiction, while the others have that character, and before the hearing or trial an amendment can properly be made by striking out such party, the impediment to the exercise of jurisdiction will be removed." Such was the ruling of the Su- preme Court in this case. Chief Justice Marshall said : " We can perceive no objection, founded in convenience or in law, to this course." Congress, by the Act of February 28th, 1839 (5 U. S. Stat, at Large, 321), the first section of which is reproduced as section 737 of the Revised Statutes of the United States, provided as follows : " When there are several defendants in any suit at law or in equity, and one or more of them are neither inhabitants of nor found within the district in which the suit is brought, and do not voluntarily appear, the court may entertain jurisdiction, and pro- ceed to the trial and adjudication of the suit between the parties who are properly before it ; but the judgment or decree rendered therein shall not conclude or prejudice other parties not regularly served with process, nor voluntarily appearing to answer ; and the non- joinder of parties who are not inhabitants of nor found within the district, as aforesaid, shall not constitute a matter of abatement, or objection to the suit." Mr. Justice Barbour, in The Commercial and Railroad Bank of Vicksburg v. Slocomb, 14 Pet. 60, 65, said that this legislation was intended to remove certain difficulties in respect to non-resi- dent defendants, not served with process and not voluntarily ap- pearing, and that " it did not contemplate a change in the juris- diction of the courts, as regards the character of the parties, as 150 CONTROVERSIES BETWEEN CITIZENS. prescribed by the Judiciary Act, and as expounded by this court ; that is, that each of the plaintiffs must be capable of suing, and each of the defendants capable of being sued." It simply per- mitted the trial to proceed as between the parties properly before the court, dispensing with the presence of other parties in the cir- cumstances specified, without prejudice to their interests. In Jones v. Andrews, 10 "Wall. 327, the following doctrine was held by the court : " By the Judiciary Act of 1789, in a case where jurisdiction of the Circuit Court depended on citizenship, every defendant must have resided, or been served with pro- cess, in the district where the suit was brought. But by the Act of 1839 this is not necessary. A non-resident defendant may either voluntarily appear, or, if not a necessary party, his appear- ance may be dispensed with. Appearing by counsel and moving to dismiss the bill for want of jurisdiction, and also for want of equity, is a waiver of a non-resident's privilege, and amounts to a voluntary appearance." 6. Legal Representatives. — The question of citizenship, in cases in which suits are brought by or against the legal represent- atives of other parties, as administrators, executors, guardians, or trustees, relates to these representatives, and not to those whom they represent.- This rule of construction was adopted in the cases of Chappedelaine v. Dechenaux, 4 Cranch, 306, and Childress v. Emory, 8 Wheat. 642. Chief Justice Marshall in Osborn v. The United States Bank, 9 Wheat. 738, 856, said that, in a suit " brought by or against an executor, the creditors or legatees of his testator are the persons really concerned in interest ; but it has never been suspected that if the executor be a resident of another State, the jurisdiction of the Federal courts could be ousted by the fact that the creditors or legatees were citizens of the same State with the opposite par- ty." The jurisdiction depends not on " the relative situation of the parties concerned in interest," but on " the relative situation of the parties named in the record." In The Coal Company v. Blatchford, 11 Wall. 172, it was held that if the legal representatives of others "are personally qualified by their citizenship to bring suit in the courts of the United States, the jurisdiction is not defeated by the fact that the parties whom they represent may be disqualified ; and if they are LEGAL REPRESENTATIVES. 151 not personally qualified by their citizenship, the courts of the United States will not entertain jurisdiction, although the parties they represent may be qualified." Mr. Justice Davis, in Houston v. Rice, 13 "Wall. 66, 67, stated the doctrine as follows : " Although in controversies between citi- zens of different States, it is the character of the real and not that of the nominal parties to the record which determines the ques- tion of jurisdiction, yet it has been repeatedly held by this court that suits can be maintained in the Circuit Court by executors and administrators if they are citizens of a different State from the party sued, on the ground that they are the real parties in interest, and succeed to all the rights of the testator or intestate by opera- tion of law. And it makes no difference that the testator or intes- tate was a citizen of the same State with the defendants, and could not, if alive, have sued in the Federal courts ; nor is the status of the parties affected by the fact that the creditors and legatees of the decedent are citizens of the same State with the defendants." In Bonnafee v. Williams, 3 How. 574, 577, Mr. Justice McLean said : " Where the citizenship of the parties gives juris- diction, and the legal right to sue is in the plaintiff, the court will not inquire into the residence of those who may have an equitable interest in the claim. They are not necessary parties on the record. A person having the legal right may sue at law in the Federal courts, without reference to the citizenship of those who may have the equitable interest." {Irvine v. Lowry, 14 Pet. 293.) In Farlow v. Lea, 2 C. L. B. 329, it was held, that "if a re- ceiver of a corporation is a citizen of another State, he may sue in the Circuit Court, although the corporation and the defendant are citizens of the same State." The settled rule is, that where jurisdiction depends on citizen- ship, the question of the requisite citizenship relates to the party who has the legal right to sue ; and if this party, though an exec- utor or trustee, has the necessary citizenship, considered relatively to that of the party sued, the Circuit Court has jurisdiction, with- ont reference to those whom he represents, and who have an equi- table interest in the suit. 152 CONTROVERSIES BETWEEN CITIZENS. 7. Nominal Parties. — The case of Browne et al. v. Strode, 5 Cranch, 303, was that of a suit brought in the Circuit Court of the United States for Virginia, on a bond given by an executor for the faithful execution of the testator's will, in conformity with the statute of Virginia. The object of the suit was to recover a debt due from the testator in his lifetime, to a British subject. The bond being required to be given to the justices of the peace of the county in which the testator died, the suit was brought in their name as plaintiffs. They were all citizens of Virginia, and so was the defendant. The question whether the Circuit Court had jurisdiction of the case was certified to the Supreme Court, and answered in the affirmative. The ground of this answer, as explained in Irvine v. Lowry, 14 Pet. 293, 300, is the following: "The jurisdiction of the Cir- cuit Court was sustained on the ground that, though the plaintiffs and defendants were citizens of the same State, the former were mere nominal parties, without any interest or responsibility, and made by the law of Virginia the mere instruments or conduits through whom the legal right of the real plaintiff could be asserted. As such, their names must be used, for the bond must be given to them in their official capacity; but as the person to whom the debt was due was a British subject, he was properly considered as the only party plaintiff in the action." The justices of the peace were regarded as merely nominal and not real plaintiffs, and hence the fact that they were citizens of the same State with the defend- ant did not affect the jurisdiction of the Circuit Court to entertain the suit. The case of McNutt v. Bland, 2 How. 9, was an action of debt upon a sheriff's bond, instituted by certain citizens of New York in the name of the Governor of Mississippi, as Governor of the State, to whom, in pursuance of a statute of the State, the bond was required to be given, for the protection of any party who might be aggrieved by the conduct of the sheriff. The Gov- ernor of Mississippi was, in this case, regarded as merely a nominal plaintiff. Mr. Justice Baldwin, in stating the opinion of the court, said : " In this case, there is a controversy and suit between citizens of JSTew York and Mississippi ; there is neither between the Governor and the defendants. As the instrument of the State law to afford a remedy against the sheriff and his sureties, his name is on the bond and to the suit upon it ; but in no just view ASSIGNEES. 153 of the Constitution or law can he be considered as a litigant party. Both, look to things, not to names : to the actors in controversies and suits, not to the mere forms or inactive instruments in con- ducting them, in virtue of some positive law." Mr. Justice Baldwin, referring to the case of Browne v. Strode, supra, as involving the same principle, added: "That where the real and only controversy is between citizens of differ- ent States, or an alien and a citizen, and the plaintiff is by some positive law compelled to use the name of a public officer who has not, nor ever had, any interest in or control over it, the courts of the United States will not consider any others as parties to the suit than the persons between whom the litigation before them exists." Both of the above cases were referred to in The Goal Company v. Blatchford, 11 Wall. 172, with the remark by the court that " the justices of the peace in the one case, and the Governor in the other, were the mere conduits through whom the law afforded a remedy to the parties aggrieved." The question of citizenship in respect to such merely nominal parties has nothing to do with that of jurisdiction. The same principle was applied in Huff v. Hutchinson, 14 How. 586, in which case it was held that " a marshal, even after he has gone out of office, is competent to sue, in a court of the United States, on an attachment bond, citizens of the State of which he himself is a citizen, averring on the record that the suit is brought for the benefit of the plaintiffs in the original action, and that they are citizens of another State." The attach- ment bond was, by certain citizens of Wisconsin, executed to the United States marshal for that State and his successor in office, in pursuance of a statute of the State ; and the suit on the bond was brought in his name, for the benefit of certain citizens of New York named in the declaration. The Supreme Court held that " the real plaintiffs were those named in the declaration, for whose use the suit was brought, and who are averred to be citizens of New York," and that the citizenship of the marshal, whose rela- tion to the suit was merely formal, was immaterial, so far as the question of jurisdiction was concerned. 8. Assignees. — The first paragraph of section 629 of the Revised Statutes of the United States, reproducing a part of the 154: CONTROVERSIES BETWEEN CITIZENS. eleventh section of the Judiciary Act of 1789 (1 IT. S. Stat, at Large, 73), provides that " no Circuit Court shall have cognizance of any 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 contents if no assignment had been made, except in cases of foreign bills of ex- change." The Act of March 3d, 1875 (18 U. S. Stat, at Large, 470), provides that no Circuit or District Court shall " have cognizance 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 promissory notes negotiable by the law merchant, and bills of exchange." The purpose of Congress in both of these acts was to impose a limitation upon the jurisdiction of the Federal courts in respect to suits coming within the description given, and sought to be brought by assignees. The general rule laid down is that, if these suits could not have been prosecuted in these courts, if no assign- ment had been made, they shall not be so prosecuted by assignees. It necessarily follows that, in a suit where the jurisdiction of the court depends upon the citizenship of the parties, an assignee, if the party bringing it, cannot prosecute it in a Federal court, unless he himself has the requisite citizenship, and unless the assignor, by virtue of the requisite citizenship, could have pros- ecuted the suit in the same court if no assignment had been made. Both conditions, in the class of suits referred to and brought by assignees, must be present in order to give the court jurisdiction. The suits that come under the operation of this rule, as stated in the Judiciary Act of 1789 and in section 029 of the Revised Statutes, are those brought " to recover the contents of any pro- missory note or other chose in action in favor of an assignee." The cases excepted from the rule are " foreign bills of exchange." The suits embraced in the rule, as stated in the Act of March 3d, 1875, are suits "founded on contract in favor of an assignee." The exceptions to the rule are " promissory notes negotiable by the law merchant and bills of exchange." Promissory notes, with other choses in action, came within the restriction in the earlier law ; but such notes, if " negotiable by the law merchant," come within the exceptions in the later law. ASSIGNEES. 155 So, also, " foreign bills of exchange " formed the only exception mentioned in the earlier law ; but, in the later act, " bills of ex- change " are embraced in the exception, without the qualification of the word " foreign " being annexed thereto. The theory which originally led Congress to establish the restriction in respect to assignees, is thus stated by Chief Justice Chase in Bushnell v. Kennedy, 9 Wall. 387, 392 : " Not a little apprehension was excited at the time of the adoption of the Con- stitution in respect to the extent of the jurisdiction vested in the national courts ; and that apprehension was respected in the Judi- ciary Act, which soon after received the sanction of Congress. It was obvious that numerous suits by assignees, under assignments made for the express purpose of giving jurisdiction, would be brought in those courts if the right of assignees to sue was left unrestricted. It was to prevent that evil and to keep the juris- diction of the national courts within just limits that the restriction was put into the act." Referring to the same point in The Bank of the United States v. The Planters' Bank of Georgia, 9 Wheat. 904, 909, Chief Justice Marshall said : "It was apprehended that bonds and notes given in the usual course of business, by citizens of the same State to each other, might be assigned to the citizens of another State, and thus render the maker liable to a suit in the Federal courts. To remove this inconvenience, the act which gives jurisdiction to the courts of the Union over suits, brought by the citizen of one State against the citizen of another, restrains that jurisdiction where the suit is brought by an assignee to cases where the suit might have been sustained, had no assignment been made." The great mass of the cases in which the courts have ex- pounded the restriction with reference to the end, as thus explained, arose under the provision made in the Judiciary Act of 1789, which was the sole law on the subject until the Act of March 3d, 1875. The later act, though it does not change the general pur- pose of the earlier one, enlarges the list of cases that come within the exceptions to the restriction upon the jurisdiction of the Federal courts. The doctrine is well settled that the restriction has no applica- tion to suits originally commenced in State courts, and transferred therefrom to the Circuit Courts of the United States. {Green v. Custard, 23 How. 484 ; Bushnell v. Kennedy, 9 Wall. 387 ; and 156 CONTROVERSIES BETWEEN CITIZENS. The City of Lexington v. Butler, 14 Wall. 282.) Nor does the restriction apply to suits brought by executors or administrators, who are not regarded as assignees claiming by the acts of assignors. (Chappedelaine v. Dechenaux, 4 Cranch, 306 ; Childress v. Emory, 8 Wheat. 642 ; and Mayer v. Foulkrod, 4 Wash. 349.) In Hoisted v. Lyon, 2 McLean, 226, 'and in Sackett v. Davis, 3 Id. 101, it was held that, under the restriction in the Judiciary Act of 1789, " the transfer of a promissory note by indorsement is not an assignment within the provision forbidding an assignee to sue in the courts of the United States, when his assignor could not have done so." And in Dundas v. Bowler, 3 McLean, 205, it was held that the assignment of a mortgage is not within this provision. The foreclosure suit acts upon the land. There are four questions, any one or more of which may arise in determining whether a suit sought to be brought in a Federal court is excluded therefrom by the restriction contained in the Act of March 3d, 1875. The first of these questions is whether the suit is " founded on contract." The statute, in express terms, describes it as such a suit ; and if this be not its character, then the restriction has no application to it. The obvious meaning of the statute is that the suit must arise out of a " contract," and be originally brought in a Federal court, to enforce the performance of its stipulations. A contract is a chose in action, a covenant, a promise, giving to one party the right legally to claim of the other its fulfillment. (Shel- don v. Sill, 8 How. 441.) The " contents " of a contract are the things specified in it and stipulated to be done. (Deshler v. Dodge, 16 How. 622 ; and Barney v. The Globe Bank, 5 Blatch. 107.) The second question is whether the suit, if " founded on con- tract," is " in favor of an assignee," or the party to whom the con- tract, with all its rights, has been assigned by a transfer in writing, as distinguished from a mere delivery, and who by the suit seeks to enforce the contract. If the party bringing the suit be not an assignee in the legal sense, then he does not come within the terms of the statute, and, of course, it does not apply to him. Mr. Justice Story, in Bullard v. Bell, 1 Mason, 243. 251, took the ground that, in order to bring a case within the inhibition spec- ified in the eleventh section of the Judiciary Act of 1789, "the action must not only be founded on a chose in action, but it must be assignable, and the plaintiff must sue in virtue of an assign- ASSIGNEES. 15T ment." As to the assignableness of a note, he said : "A note pay- able to bearer is often said to be assignable by delivery ; but, in correct language, there is no assignment in the case. It passes by mere delivery, and the holder never makes any title by or through any assignment, but claims merely as bearer. The note is an orig- inal promise by the maker to pay any person who shall become the bearer. It is, therefore, payable to any person who succes- sively holds the note oonafide, not by virtue of any assignment of the promise, but by an original and direct promise, moving from the maker to the bearer." In The Bank of Kentucky v. Wister, 2 Pet. 318, it was held that " a note, payable to bearer, is payable to anybody, and is not affected by the disability of the nominal payee to sue." Judge Wallace, in Cooper v. The Town of Thompson, 13 Blatch. 434, 437, said that, under the Judiciary Act of 1789, it was uniformly held " that the holder of a promissory note, payable to bearer, was not an assignee, within the meaning of the statute, for the reason that a note payable to bearer is payable to anybody who may become the holder, and the contract is with the holder, and the holder does not acquire title by assignment, but by deliv- ery." ( Wood v. Dummer, 3 Mason, 308 ; Bradford v. Jenks, 2 McLean, 130 ; Bonnqfee v. Williams, 3 How. 574 ; and Noel v. Mitchell, 4 Biss. 346.) In The Town of Thompson v. Perrine, 27 Albany Law Jour. 132, it was held by the Supreme Court of the United States that " overdue coupons of municipal bonds which have not matured are negotiable by the law merchant," and that " the right of the owner of coupons payable to bearer, or to the holder thereof, to sue in the Federal courts, does not depend upon the citizenship of any previ- ous holder," and that such owner or holder " is not an assignee within the meaning of the Act of March 3d, 1875." Mr. Justice Harlan, in stating the opinion of the court in this case, said : " Giving the words assignee and assignment their broadest signification, and conceding that in some cases the holder of a promissory note may become such in virtue alone of an assign- ment, yet, according to the established construction of the Judi- ciary Act of 1789, the right of the holder of a promissory note or bond payable to a particular person or bearer to sue in his own name, did not depend upon the citizenship of the named payee or of the first or any previous holder ; this, because in all such cases 158 CONTROVERSIES BETWEEN CITIZENS. the title passed by delivery, and not in virtue of any assignment." {Thompson v. Lee Co. 3 Wall. 331 ; Bushnell v. Kennedy, 9 Id. 391 ; and The City of Lexington v. Butler; 14 Id. 293.) The doctrine established by these cases is, that the bona fide holder by simple delivery, of a promissory note, payable to the person named therein, or to his order, or to bearer, is not an as- signee within the meaning of the Act of March 3d, 1875. The note is negotiable and transferable by delivery, and the promise made therein is made to the bona fide holder, whoever he may be. If he brings a suit to recover on it, he does so in his own name, and by virtue of his rightful possession of the note, and not in virtue of any authority, power, or right, acquired by an assignment. The law, consequently has no application to such a case. It ap- plies only when the party seeking to bring the suit is an assignee, and brings the suit in the exercise of the power thus acquired. The third question is, whether the suit is brought on a prom- issory note negotiable by the law merchant, or on a bill of ex- change, both of which are expressly excepted from the inhibition of the law. This being the fact, then the law, by its own terms, has no application to the case, and that, too, whether the holder acquired possession by assignment or by mere delivery. The first form of the exception is that of " promissory notes negotiable by the law merchant." The notes here referred to are not only "promissory notes negotiable," but such notes "negotia- ble by the law merchant." This law is mentioned as the test and criterion of the negotiability ; and by this law Congress undoubt- edly referred to the general commercial usages which constitute "the law merchant." The phrase is a technical one, and has a well understood meaning as used in legal statutes. And, under the exception made by Congress, it is the business of courts to de- termine whether promissory notes, being the subjects of suits, are negotiable by the law merchant. In Gregg v. Weston, 7 Biss. 360, " promissory notes negotiable by the law merchant," as intended by Congress, were held to be " notes which, in the hands of a bona fide purchaser for value be- fore maturity, were subject to no equities in favor of the maker." It was further held in this case that, " if a note which is not pay- able to order or bearer at a particular bank in the State, does not, under the laws of the State, possess the qualities of a negotiable note, then the assignee cannot sue in the Circuit Court if the ASSIGNEES. 159 maker and payee are both citizens of the same State." Such a note, on the supposition stated, lacks the element of negotiability, and hence does not, in the hands of an assignee, come within the exception of the statute, but does come within its prohibition, if the maker and payee are citizens of the same State. In Porter v. The City of Janesville, 3 Fed. Kep. 617, it was held that " the Circuit Courts of the United States have jurisdiction, under section 1, c. 137, of the Act of March 3d, 1875, over a suit brought by the assignee of a municipal bond, where such bond is, in form, a simple acknowledgment of indebtedness, and an uncon- ditional promise to pay a certain sum of money at a time certain." The municipal bond in this case bore the seal of the city issuing it, and was made payable to a specified railroad company, " or its assignees," and had been assigned to the plaintiff, who was a citi- zen of Massachusetts, and by whom the suit was brought against the city of Janesville, in Wisconsin, the State in which' the rail- road company was located. As to the question whether this bond was a promissory note negotiable by the law merchant, Judge Bunn said : " Sealed in- struments of this character, providing for the payment of money at a future time, certainly have, in this country, with very few exceptions, been held promissory notes rather than specialties. In fact, the instrument in suit answers every definition and requi- site of a promissory note by the law merchant." He said that the intention of Congress, in using the words "promissory notes " and "bills of exchange," was "to include all negotiable paper, by whatever technical name it might be known," and that " munici- pal bonds of this character have always been held commercial paper by the United States courts." The fact that the bond was made payable to "said company or its assignees," and not to " bearer," or " order," did not in his view affect its commercial character as a promissory note negotiable by the law merchant. In Halsey v. The Town of New Providence, 3 Fed. Rep., 364, it was held by Judge Nixon, that "municipal bonds do not come within the prohibition of the Act of March 3d, 1875." The judge in this case said : " Such municipal bonds are contracts, but they are not the contracts that are contemplated by the section of the statute under consideration. It is not a contract which the maker of the bonds enters into with the original holder, who transfers his right of action, by assignment, to a subsequent holder, 160 CONTROVERSIES BETWEEN CITIZENS. but one made with every holder of a bond who has the right of action by reason of his oonafide possession. Such bonds have all the qualities of negotiable paper, and pass from hand to hand without assignment, and hence come within the spirit, if not the letter, of the exception stated in the act." The object of Congress in the inhibition of the act was, as the judge said, "to prevent persons assigning contracts to nominal parties, residing in other States, merely to clothe the court with jurisdiction from the residence of the litigants." This has no ap- plication to negotiable paper payable to bearer and transferable by dehvery. The party holding such paper is the party to whom the promise is made, and he can sue in his own right and name. {Smith v. Clapp, 15 Pet. 125 ; White v. The Railroad Co. 21 How. 575 ; Thompson v. Lee Co. 3 "Wall. 327; The City of Lex- ington v. Butler, 4 Wall. 282, 295 ; and Bradford v. Jenks, 12 McLean, 130.) Coupons payable to bearer are " promissory notes negotiable by the law merchant," and the holders thereof are not assignees within the meaning of the Act of March 3d, 1875. {Pettit v. The Town of Hope, 2 Fed. Rep. 623; and Cooper v. The Town of Thompson, 13 Blatch. 434.) Mortgages are not negotiable instruments, transferable by mere delivery ; and hence a Circuit Court cannot take jurisdiction of a suit brought by the assignee of a mortgage alone, when the assignor and the mortgagor are citizens of the same State. {Mers- man v. Werges, 3 Fed. Rep. 378 ; and Sheldon v. Sill, 8 How. 441.) Mr, Justice Field, in Wall v. The County of Monroe, 13 Otto, 74, speaking of warrants issued by the treasurer of the county, and payable to " Frank Gallagher or bearer," said : " The war- rants, being in form negotiable, are transferable by delivery so far as to authorize the holder to demand payment of them, and so maintain, in his own name, an action upon them. But they are not negotiable instruments in the sense of the law merchant, so that, when held by a lonafide purchaser, evidence of their inva- lidity, or defenses against the original payee, would be excluded. The transferee takes them subject to all legal and equitable de- fenses which existed to them in the hands of such payee." Such warrants are, according to this language, negotiable by the law merchant for the purpose of enabling the holder to bring and ASSIGNEES. 161 maintain, in his own name, an action upon them, though not for the purpose of excluding all legal and equitable defenses which existed to them when in the hands of the original payee. In Coe v. The Cayuga Lake R. Co., 19 Blatch. 522, it was held by Mr. Justice Blatchf ord, that " a promissory note made by a corporation and sealed with its corporate seal, payable to the or- der of a payee, and indorsed by him, is not. a promissory note ne- gotiable by the law merchant, within section 1 of the Act of March 3d, 1875 (18 TJ. S. Stat, at Large, 470), and, therefore, an assignee of it cannot sue the payee on it, in a Circuit Court of the United States, unless his assignor could have sued the payee on it in such court." The ground on which this opinion rests is the fact that the notes in this case, being sealed with the corporate seal of the rail- road company, though promissory notes payable to the order of the party named, were not, according to " the long-settled and well- settled principles of law," to be deemed " negotiable by the law merchant." They would have been such if they had not borne the seal of the company. This, however, made them " a specialty," and took them out of the category of notes excepted from the in- hibition of the Act of March 3d, 1875. And, inasmuch as these notes had been transferred to the plaintiff by assignment, and bearing the corporate seal of the company, were not within the exception of the law, the assignee could not, in a Circuit Court of the United States, bring an action to recover thereon, unless the assignor could have done so if no assignment had been made. In regard to these notes, Mr. Justice Blatchf ord said : " The in- struments, aside from the seal of the company, have all the qualities of promissory notes, and of promissory notes made by the com- pany as a corporation." Having remarked that the maker of a promissory note, whether an individual or a corporation, might make it either with or without a seal, he further said : " The in- strument without the corporate seal will be a promissory note ne- gotiable by the law merchant, and the instrument with the cor- porate seal will be a specialty and not a promissory note negotiable by the law merchant." He assumes that it was not the intention of Congress, under the phrase " promissory notes negotiable by the law merchant," to except sealed instruments from the inhibi- tion of the Act of March 3d, 1875. This construction of the law differs from that of Judge Bunn, 11 162 CONTROVERSIES BETWEEN CITIZENS. in Porter v. The City of Janesville, supra. The construction, however, accords with the general doctrine of the law merchant. Mr. Daniel, in his work on " Negotiable Instruments," 3d ed., vol. I, p. 37, says : " The first requisite of a bill is, that it shall be an open letter of direction, and of a note, that it shall be an open promise for the payment of money. By the term open is meant unsealed, and though the instrument possess all the other requi- sites of a bill or note, its character as a commercial instrument is destroyed, and it becomes a covenant, governed by the rules affect- ing common law securities, if it be sealed." (Edwards on Bills, 208, 210 ; Story on Bills, sec. 62 ; Story on Notes, sec. 55.) The other exception made in the statute is that of " bills of exchange," without the word " foreign," which was in the earlier law on this subject. Bouvier defines such a bill to be "a written order from one person to another, directing the person to whom it is addressed to pay to a third person a certain sum of money therein named." (Law Diet.) If drawn in one country and pay- able in another, such an order is called a foreign bill ; but if drawn and payable in the same State or country, it is an inland bill. It is essentially the same in either case. The person who makes the order is known, in the language of commerce, as the drawer of the bill; the person upon whom it is drawn is the drawee ; and the party to whom the drawee is di- rected to pay a certain sum of money is the payee. Such bills, when drawn in one State of the Union and made payable in another State, are regarded as foreign bills, and if drawn and made payable in the same State, they are deemed in- land bills. This is the doctrine stated in Buckner v. Finley, 2 Pet. 586. The payee named in a bill of exchange has the power, by in- dorsement and delivery, to transfer it to another party, who may make a transfer in the same way to another party, and so on through successive indorsements and deliveries. This mercantile usage has given to bills of exchange the character of commercial paper, negotiable by indorsement and delivery ; and it is a rule among courts to treat them as possessing this character. Thus Mr. Justice Clifford, in stating the opinion of the court in Goodman v. Simonds, 20 How. 343, 364, remarked : " Bills of exchange are commercial paper in the strictest sense, and must ever be regarded as favored instruments, as well on account of ASSIGNEES. 163 their negotiable quality, as their universal convenience in mercan- tile affairs. They may be transferred by indorsement, or when indorsed in blank, or made payable to bearer, they are transferable by mere delivery." They serve the purposes of money in the settlement of transactions between parties. The lawful holder of a bill of exchange is entitled to bring an action against the prop- er party to recover thereon. The well-known commercial and negotiable character of such bills, like that of " promissory notes negotiable by the law mer- chant," undoubtedly furnished the reason why Congress excepted them from the inhibition of the Act of March 3d, 1875, and omitted to make any discrimination between foreign and inland bills. It was not necessary, for the purposes of the act, to include them in the inhibition. The lawful holder of such a bill, no mat- ter whether he has acquired possession of it by assignment or other- wise, may bring a suit thereon in the proper Circuit Court, without regard to the question whether the assignor, if the possession is by assignment, could have brought a suit in the same court if no assignment had been made. He may maintain the action in his own name, and simply in virtue of his lawful possession of the bill, upon the proper conditions as to citizenship between him and the party sued. The fourth and last question is, whether the suit might have been prosecuted in the Federal court by the assignor, to recover on the contract, if no assignment had been made. If the assignor, by reason of the requisite citizenship between himself and the other contracting party, could have brought the suit in the Fed- eral court, then the assignee of the contract, having the proper citizenship considered relatively to the other party, may also bring the suit in the same court, but not otherwise, unless the contract be a promissory note negotiable by the law merchant, or a bill of exchange. Here, then, is a question of fact relating to the power of the assignor to bring the suit, if no assignment had been made. He must have the proper citizenship, and in respect to the requisite citizenship of the assignor as the basis of supporting jurisdiction of a suit " in favor of an assignee," the rule of law is that the latter must affirmatively show that the former could, by reason of the proper citizenship, have brought the suit if no assignment had been made. 164 CONTROVERSIES BETWEEN CITIZENS. Mr. Justice Miller, in stating the opinion of the court, in Bradley v. Rhines 1 Administrator, 8 Wall. 393, said : " "We take the doctrine to be settled, that when a party claims in the Federal courts, through an assignment of a chose in action, he must show affirmatively that the action might have been sustained by the as- signor, if no assignment had been made." [Turner v. The Bank of North America, 4 Dall. 8 ; Mollan v. Torrance, 9 Wheat. 537 ; The United States Bank v. Moss, 6 How. 31 ; and Sheldon v. Sill, 8 How. 441.) It is quit© true that the doctrine established by these cases rests on the provision contained in the eleventh section of the Ju- diciary Act of 1789. The doctrine, however, is just as applicable under the similar provision contained in the Act of March 3d, 1875. The two acts in this respect are identical. A suit, then, to which the inhibition in the Act of March 3d, 1875, applies, is one that is " founded on contract," and is brought by and in favor of the assignee of the contract, which contract is not a promissory note negotiable by the law merchant, or a bill of exchange, and in respect to which contract it is true that the assignor could not have prosecuted the suit in the Federal court, in which the assignee seeks to prosecute it, if no assignment had been made. The statute expressly excludes the cognizance of the court in all cases coming within this description. "Whether a particular case presented to the court is within the description or not must be determined by the application of the terms of the statute to the facts of that case. If it is, then that ends the question of jurisdiction ; but if it is not within the de- scription, then jurisdiction is not excluded by the inhibition, and whether it exists or not must be settled by other considerations. And since the Act of March 3d, 1875, is later than the Judiciary Act of 1789, the inhibition of the former, with its qualifications and exceptions, must be taken as the rule on this subject. The reader will find in Bump's "Federal Procedure," pp. 139-143, 156, a reference to a series of cases in which the courts have passed upon the construction of the inhibition in both of these acts. 9. Change of Citizenship. — Every citizen of a State has the right to remove his residence from one State to another ; and if the removal be bona fide, and with the animo manendi, he be- CHANGE OF CITIZENSHIP. 165 comes ipso facto a citizen of the latter State, and ceases to be a citizen of the State from which he has removed. The fact that his motive, in making this change of citizenship, was to bring a snit in the Circuit Court of the United States, which he could not otherwise bring, will not invalidate the act or destroy the right of such suit, provided that the change is not simply colorable, but is real and in good faith, which is a question of fact to be deter- mined by the court. It was held in Jones v. League, 18 How. 76, 81, that "a change of residence, with a real intent to remain, makes a change of citi- zenship, and though made with intent to give jurisdiction, will be sufficient for that purpose." Mr. Justice McLean said in this case : " The change of citizenship, even for the purpose of bringing a suit in the Federal court, must be with oona fide intention of be- coming a citizen of the State to which the party removes. Noth- ing short of this can give him a right to sue in the Federal courts, held in the State from whence he removed." Such a change, however, will give the right. (Briggs v. French, 2 Sum. 251 ; Castor v. Mitchell, 4 Wash. 19 ; Catlett v. The Pacific Ins. Co. 1 Paine, 594; Cooper v. Calbraith, 3 "Wash. 546; Casey. Clark, 5 Mason, 70.) This principle was, in Rice v. Hmston, 13 Wall. 66, held to- be applicable to an administrator who, after getting letters of administration in the State of which the decedent was a citizen, removes to another State and becomes a citizen thereof, in order that he may bring a suit in the Circuit Court of the United States for the State from which he removed, provided that there is nothing in the laws of the State forbidding administrators thus to remove from that State. An administrator has, in this respect, the same right of removal and of suit as any other citizen. If, however, a suit has been commenced in a Circuit Court, and if, on the ground of the requisite citizenship, the court has acquired jurisdiction, then this jurisdiction cannot be ousted or divested by any subsequent change of residence of either party, pendente lite. Chief Justice Marshall, in Morgan's Heirs v. Morgan et al, 2 Wheat. 290, 297, said : " We are all of opinion that the juris- diction, having once vested, was not deveste'd by the change of residence of either of the parties." In Mollan v. Torrance, 9 Wheat. 537, 539, Chief Justice Marshall said : " The jurisdiction 166 CONTROVERSIES BETWEEN CITIZENS. of the court depends upon the state of things at the time of the action brought, and that, after vesting, it cannot be ousted by subsequent events." In Dunn v. Clarke, 8 Pet. 1, 3, Mr. Justice McLean said : " The Circuit Court had jurisdiction, and no change in the residence or condition of the parties can take away a juris- diction which has once attached." In Conolly v. Taylor, 2 Pet. 556, 565, Chief Justice Marshall said : " Where there is no change of party, a jurisdiction depend- ing on the condition of the party is governed by that condition, as it was at the commencement of the suit." He also affirmed as correct the following propositions of the counsel for the defend- ants in this case : " If an alien becomes a citizen pending the suit, the jurisdiction which was once vested is not devested by this cir- cumstance. So if a citizen sue a citizen of the same State, he cannot give jurisdiction by removing himself and becoming a citizen of a different State." These cases settle the law as to the continuance of jurisdiction, after it has been once acquired in virtue of the proper conditions as to citizenship. Neither party can either give or evade juris- diction by a change of residence after the suit has been brought in the Circuit Court. The law never wittingly makes itself a party to tricks designed to evade its provisions. 10. The Citizenship of Corporations. — Civil corporations are not persons in the natural sense, and can claim no privileges or immunities under the clause of the Constitution which declares that " the citizens of each State shall be entitled to all privileges and immunities of citizens in the several States." This doctrine was laid down in The Bank of Augusta v. Earle, 13 Pet. 519, and in Paul v. Virginia, 8 Wall. 168; The Siipreme Court has, however, regarded such corporations as legal persons, having a local residence and citizenship in the State in which they are organized under the authority of law, for the purpose of suits under the provision of the Constitution which extends the judicial power of the United States to controversies "between citizens of different States," and under the laws of Congress enacted in pursuance thereof. The ground originally taken by the court was that citizenship depends upon and is determined by the citizenship of the indi- vidual corporators, and, hence, that it was necessary to aver this THE CITIZENSHIP OF CORPORATIONS. 167 citizenship in the record. The ground subsequently taken and now thoroughly established is that, for all the purposes of juris- diction, a corporation is a citizen of the State creating it, within the meaning of the provision which extends the judicial power to controversies " between citizens of different States." {The United States Bank v. Deveaux, 5 Cranch, 61 ; The Louisville, dec, Railroad Co. v. Letson, 2 How. 497 ; Marshall v. The Baltimore <& Ohio Railroad Co. 16 How. 314; The Covington Drawbridge Co. v. Shepherd, 20 How. 227 ; The Ohio & Mississippi. Rail- road Co. v. Wheeler, 1 Black, 286 ; Cowles v. Mercer County, 7 Wall. 118 ; and The Railway Co. v. Whilton, 13 Wall. 270.) Ex-Judge Dillon, in his Removal of Causes, 3d ed. p. 69, says : " The settled rule now is that a corporation, for all purposes of Federal jurisdiction, is conclusively considered as if it were a citizen of the State which created it, and no averment or proof as to citizenship of its members elsewhere is competent or material." It can hence sue or be sued in the Federal courts as if it were a natural person, under the conditions as to citizenship applicable to such a person. This rule applies to public municipal corporations, created and regulated by State authority, such as cities, towns, and counties, as fully as it does to private corporations. It was held, in Cowles v. Mercer County, 7 Wall. 118, that "a municipal corporation created by one State within its own limits may be sued in the courts of the United States by the citizens of another State," and that "the statutes of a State limiting the jurisdiction of suits against counties to Circuit Courts held within such counties have no application to courts of the National Government." Chief Justice Chase said in this case : " The power to contract with citizens of other States implies liability to suit by citizens of other States, and no statute limitation of suability can defeat the juris- diction given by the Constitution." In McCoy v. Washington County, 3 Wall. Jr. C. C. 381, it was claimed that the county of Washington, being simply a sub- ordinate political division of the State of Pennsylvania, is not a citizen of the State within the meaning of the Constitution, or the acts of Congress, and therefore not suable in the Federal court. To this Mr. Justice Grier replied as follows : " Though the metaphysical entity called a corporation may not be physically a citizen, yet the law is well settled that it may sue and be sued 168 CONTROVERSIES BETWEEN CITIZENS. in the courts of the United States, because it is but the name under which a number of persons, corporators and citizens, may- sue and be sued. In deciding the question of jurisdiction the court look behind the name, to find who are the parties really in interest. In this case the parties to be affected by the judgment are the people of "Washington County. That the defendant is a municipal corporation, and not a private one, furnishes a stronger reason why a citizen of another State should have his remedy in this court, and not in a county where the parties, against whom the remedy is sought, would compose the court and jury to decide their own case. The point is therefore overruled." In The Railway Company v. Whitton, 13 Wall. 270, it was held that no statute of a State can limit the liability of a corpora- tion to suits, in the courts of the State, in any way that will affect the jurisdiction of the Federal courts as granted by the Constitu- tion and by the laws of Congress. The proper conditions as to citizenship being present, the jurisdiction operates, no matter what may be the laws of the State. » Corporations, especially such as construct continuous lines of railway through different States, may act and exercise their cor- porate powers under charters granted to them by two or more States. How does such a fact operate in the event that suits, on the ground of citizenship, are brought by or against such corpora- tions in the Federal courts ? The Supreme Court of the United States has had several occasions for answering this question. The case of The Ohio <& Mississippi Railroad Co. v. Wheeler, 1 Black, 286, came before the Supreme Court on the certificate of divided opinions in the Circuit Court. The company brought the suit in the Circuit Court, setting forth in its declaration that it is a corporation created by the laws of Indiana and Ohio, that it is a citizen of Ohio, having its principal place of business in that State, and that "Wheeler, the defendant, is a citizen of Indiana. "Wheeler denied the jurisdiction of the court on the ground that the company was a citizen of the same State with himself ; and on this question the opinions of the judges of the court were divided, and, hence, they certified the case to the Supreme Court. Chief Justice Taney, in stating the opinion of the court, referred to the fact that the company, according to the averments of the declaration, appears "to have been endued with the capacities and faculties it possesses by the co- operating legislation of the two THE CITIZENSHIP OF CORPORATIONS. 169 States, and to be one and the same legal being in both States," and then proceeded to say : " It is true that a corporation by the name and style of the plaintiffs appears to have been chartered by the States of Indiana and Ohio, clothed with the same capacities and powers, and in- tended to accomplish the same objects ; and it is spoken of in the laws of the States as one corporate body, exercising the same powers and fulfilling the same duties in both States. Yet it has no legal existence in either State, except by the law of the State. And neither State could confer on it a corporate existence in the other, nor add to or diminish the powers to be there exercised. It may, indeed, be composed of and represent, under the corpo- rate name, the same natural persons. But the legal entity or per- son, which exists by force of law, can have no existence beyond the limits of the State or sovereign which brings it into life and endues it with its faculties and powers. The President and Directors of the Ohio & Mississippi Railroad Company is, there- fore, a distinct and separate corporate body in Indiana from the corporate body of the same name in Ohio, and they cannot be joined in a suit as one and the same plaintiff, nor maintain a suit in that character against a citizen of Ohio or Indiana in a Circuit Court of the United States." The court hence certified to the Circuit Court that, on the showing of the facts as presented in the record, it had no juris- diction of the suit. Two distinct and separate corporate bodies, chartered by different States under the same name, one of which was a citizen of the same State with the defendant, were joined in the suit ; and this was fatal to the jurisdiction of the Circuit Court. These bodies thus joined could not maintain a suit in that court against a citizen of either State. The case of The Railway Company v. Whitton, 13 Wall. 270, originated in a suit brought by Whitton in a State court in Wis- consin against the Chicago and Northwestern Railway Company. Whitton, under the Act of March 2d, 1867, passed by Congress, petitioned to have the suit removed from the State court to the Circuit Court of the United States for that State, setting forth the fact that he was at the time and for three years had been a resident and citizen of the State of Illinois, and that the defendant is a corporation organized under the laws of Wisconsin. This petition was resisted by the company on the ground, among other reasons, that the defendant was a corporation organized under the laws of the States of Illinois, Wisconsin, and Michigan, of one of 170 CONTROVERSIES BETWEEN CITIZENS. which States the plaintiff was a citizen, and that, therefore, the Circuit Court could take no jurisdiction of the suit. The Circuit Court, however, held that, upon the showing of the record, it had jurisdiction, and proceeded with the case. The jury gave judg- ment against the company, and the company then carried the case by writ of error to the Supreme Court of the United States. One of the points before the Supreme Court related to the question of jurisdiction, as derived from the character of the parties to the suit. In respect to this point, Mr. Justice Field, in delivering the opinion of the court, said : " The plaintiff is a citizen of the State of Illinois, and the de- fendant is a corporation created under the laws of Wisconsin. * * * The defendant, therefore, must be regarded for the purposes of this action as a citizen of Wisconsin. But it is said, and here the objection to the jurisdiction arises, that the defend- ant is also a corporation under the laws of Illinois, and, therefore, is also a citizen of the same State with the plaintiff. The answer to this position is obvious. In Wisconsin the laws of Illinois have no operation. The defendant is a corporation, and as such a citizen of Wisconsin by the laws of that State. It is not there a corporation or a citizen of any other State. Being there sued, it can only be brought into court as a citizen of that State, whatever its status or citizenship may be elsewhere." The company was sued by Whitton simply as a citizen of Wisconsin ; and since it was such a citizen, and since Whitton was a citizen of Illinois, the requisite citizenship existed between the parties, which was not in Wisconsin affected by the fact that the company was incorporated under the laws of other States. It was enough for the purposes of the suit that the company had a real citizenship in Wisconsin, and that it was there sued by a citizen of Illinois. This made the suit a controversy "between citizens of different States." The same general doctrine was adopted by the Supreme Court in Muller v. Dows, 4 Otto, 444. It appeared in this case that two railway companies had been consolidated, and had become one company for business purposes, by the laws of Iowa and those of Missouri. It was, however, held in this case that this one corporation was in the State of Iowa " an Iowa corporation, exist- ing under the laws of that State alone," and that " the laws of Missouri had no operation in Iowa." Reference was made to the THE CITIZENSHIP OF CORPORATIONS. 171 decision of the court in The Railway Company v. Whitton, supra, with the remark by Mr. Justice Strong that, "in view of this decision, it must be held that the objection to the jurisdiction of the Circuit Court of Iowa is unsustainable/' In Vose v. Reed, 1 Woods, 647, it was held that " if persons who are incorporated under the laws of one State are subsequently incorporated under the laws of another State, a citizen of the former State may sue the latter corporation in the Circuit Court " of the United States. There are in fact two incorporations of the same persons, one in each State ; and in each State the corporate citizenship is, for the purposes of suit in that State, a distinct legal fact by itself. Consolidation of railway companies by charters granted by different States does not change or obliterate this fact. So also, in The Chicago cfe JV. W. R. R. Co. v. The Chicago & P. R. R. Co. 6 Biss. 219, it was held that " a corporation which is created under the laws of one State, may institute an action in a Circuit Court in another State, although it is associated with a corporation in the latter State." The doctrine, established by these cases, is that a railway com- pany extending its line of railroad through different States, and from these States receiving charters of incorporation, and con- solidated in this sense, is, nevertheless, for the purposes of juris- diction by the Circuit Courts of the United States, to be deemed a corporation and citizen in each State granting it a charter, and making it a body corporate in that State, and that if a corporation thus exists under the laws of two States, being a corporate body in each, then a citizen of one State may sue it in the Circuit Court of the United States held in another State, without refer- ence to its status or citizenship elsewhere. It would seem to be equally true that the company may in like manner bring a suit in the Circuit Court against a citizen of another State, since it is legally a corporation in each State granting it a charter. The difficulty in the case of The Ohio & Mississippi Railroad Co. v. Wheeler, 1 Black, 286, as stated by Chief Justice Taney, was that two such corporations under one name were joined as plaintiffs in bringing a suit against a citizen of a State of which the defendant was also a citizen with one of the plaintiffs. Such, then, are the general principles of law relating to con- troversies "between citizens of different States." These five 172 CONTROVERSIES BETWEEN CITIZENS. words, as found in the Constitution, have, in their use and applica- tion, proved to be pregnant with meaning. No inconsiderable portion of the business of the Circuit Courts of the United States has its origin in these words. Their jurisdiction in all contro- versies "between citizens of different States," when citizenship furnishes the basis of the jurisdiction, springs from this single source. CHAPTEE VIII. CONTROVERSIES BETWEEN CITIZENS OF THE SAME STATE. 1. Constitutional Provision. — The judicial power of the United States is, by the Constitution, extended to controversies " between citizens of the same State claiming lands under grants of different States." The terms " citizens " and " States " are, in this clause, used in the same sense as in other clauses of the Con- stitution making grants of judicial power. The jurisdiction de- pends in part upon the fact that the parties to the controversy are citizens of the same State, and in part upon the fact that the mat- ter in dispute between them relates to a claim of land under grants of different States. 2. Legislative Provisions.— The latter part of the twelfth section of the Judiciary Act of 1789 (1 U. S. Stat, at Large, 73), as reproduced and continued in section 647 of the Revised Statutes of the United States, provides as follows : " If, in any action commenced in a State court, where the title of land is concerned, and the parties are citizens of the same State, and the matter in dispute, exclusive of costs, exceeds tjie sum or value of five hundred dollars, the sum or value being made to ap- pear to the satisfaction of the court, either party before the trial states to the court, and makes affidavit if they require it, that he claims and shall rely upon a right or title to the land under a grant from a State other than that in which the suit is pending, and pro- duces the original grant, or an exemplification of it, except where the loss of public records shall put it out of his power, and moves that the adverse party inform the court whether he claims a right or title to the land under a grant from the State in which the suit is pending, the said adverse party shall give such information, or otherwise not be allowed to plead such grant, or give it in evidence upon the trial ; and if he gives information that he does claim un- der such grant, the party claiming under the grant first mentioned may, on motion, remove the cause for trial into the next Circuit Court to be holden in the district where such suit is pending. If the party so removing the cause is defendant, the removal shall be made under the regulations governing removals of a cause into 174 CONTROVERSIES BETWEEN CITIZENS OF SAME STATE. such court by an alien ; and neither party removing the cause shall be allowed to plead or give evidence of any other title than that stated by him as aforesaid as the ground of his claim." This legislation confers jurisdiction upon the Circuit Courts of the United States in these controversies only when the action was first commenced in a State court, and the cause has been removed therefrom to the proper Circuit Court, in the manner specified, and the matter in dispute, exclusive of costs, exceeds the sum or value of five hundred dollars. Neither the Judiciary Act of 1789 nor the Revised Statutes otherwise confer any jurisdiction upon the courts of the United States in these cases. The Act of March 3d, 1875 (18 U. S. Stat, at Large, 470), gives to the Circuit Courts of the United States original cognizance " of all suits of a civil nature, at common law or in equity, where the matter in dispute exceeds, exclusive of costs, the sum or value of five hundred dollars," and the suit is "between citizens of the same State claiming lands under grants of different States." The suit, under the provisions of this act, may be brought in the first instance in the Circuit Court of the United States. The same act also provides for the removal of such suits to the Circuit Courts, when first arising in State courts. 3. Legal Elements. — The legal elements involved in these cases are the following : (1.) The controversy must be "between citizens of the same State." These are the parties specified by the Constitution, and, of course, these parties and these only must appear on the record of the suit. (2.) The subject-matter of the controversy is an alleged right or title to given lands. Both parties claim the same lands, each by a different title from that of the other ; and the question to be de- termined relates to the validity of these respective and conflicting titles. (3.) These titles are based upon an alleged grant of the same lands to different persons by different States. Each of the parties sets up a claim to the lands under the grant of a State. This as- sumes that a State claimed to be the proprietor of the lands in question and to exercise jurisdiction over them. A land-grant gives a title that emanates from a government, and proceeds upon the supposition that the government claimed to be the owner of LEGAL ELEMENTS. 175 the lands thus granted. If there be two such grants of the same lands to different parties, then the grants are conflicting, and the point to be judicially determined is which of these grants conveys a good title to the lands in dispute. The framers of the Constitution anticipated the possibility that different States might claim proprietorship in and jurisdiction over the same lands, and might grant the same lands to different parties. They thought it expedient that controversies between citizens of the same State, growing out of and relating to such conflicting grants of land, should come within the judicial power of the United States, and not be left to be determined solely by State authority. The Federal court vested with power to consider and determine such controversies, is, of necessity, vested with power to determine all the questions involved in them. One of these questions may be this : Which of the States making the grants was the proprie- tor of the land and had jurisdiction over it ? Though the States themselves are not direct parties to the suit, the controversy be- tween the parties may spring from their conflicting claims as to jurisdiction and boundary. The Federal court, authorized to take cognizance of the controversy, would undoubtedly have power to decide all the questions, including those of boundary and jurisdic- tion, whose determination might be necessary in settling the issue before it. Mr. Justice Baldwin, in stating the opinion of the court in Rhode Island v. Massachusetts, 12 Pet. 657, 727, took the ground that, in controversies " between citizens of different States," the Circuit Courts, in the exercise of their original jurisdiction, and the Supreme Court, in the exercise of its appellate jurisdiction, have power to decide upon the boundary of States when this ques- tion is collaterally involved in suits between individuals pending before them, and must be determined in order to decide these suits. The jurisdiction of the Circuit Court in such a case was asserted by the Supreme Court in Fowler v. Miller, 3 Dall. 411. In Handles Lessee v. Anthony et at, 5 Wheat. 374, Chief Justice Marshall said : " This was an ejectment, brought in the Circuit Court of the United States for the district of Kentucky, to recover land which the plaintiff claims under a grant from the State of Kentucky, and which the defendants hold under a grant from the United States as being part of Indiana. The title de- 170 CONTROVERSIES BETWEEN CITIZENS OF SAME STATE. pends upon the question whether the lands lie in the State of Kentucky, or in the State of Indiana." " The opinions given by the court," he added, " must be considered in reference to the case in which they were given. The sole question in the cause re- spected the boundary of Kentucky and Indiana, and the title depended entirely upon that question." The judgment of the Cir- cuit Court, determining this question, was affirmed by the Supreme Court. {Harcourt v. Gaillard, 12 Wheat. 523.) If, then, the Circuit Courts of the United States can pass upon the question of boundary between States, when deciding contro- versies " between citizens of different States," they surely can do so in determining controversies "between citizens of the same State claiming lands under grants of different States." The ques- tion of boundary, and with it the question of State proprietorship and jurisdiction, may arise in the latter class of controversies. 4. Cases Decided. — Suits under this particular clause of the Constitution have rarely come before the Federal Courts. Only two cases, so far as I am aware, have ever reached the Supreme Court of the United States. The first was the case of The Town of Pawlet v. Clark et al., 9 Cranch, 292, which was certified to the Supreme Court from the Circuit Court for the district of Vermont. The plaintiffs claimed certain lands under a grant from the State of Yermont, and the defendants claimed the same lands under a grant from the State of New Hampshire, which grant was made before Yermont be- came a State, and when the whole of its territory was compre- hended in the State of New Hampshire. This raised the juris- dictional question whether the two grants were made by "different States," Yermont being included in the sovereignty of New Hamp- shire when the first grant was made. Mr. Justice Story, in stating the opinion of the Court as to the constitutional provision, said : " It had no reference whatsoever to the antecedent situation of the territory, whether included in one sovereignty or another. It simply regarded the fact whether grants arose under the same or under different States. Now, it is very clear that, although the territory of Yermont was once a part of New Hampshire, yet the State of Yermont, in its sovereign capacity, is not and never was the same as the State of New Hampshire. The grant of the plaint- iffs emanated purely and exclusively from the sovereignty of Yermont ; that of the defendants purely and exclusively from the CASES DECIDED. 177 sovereignty of New Hampshire. The sovereign power of New Hampshire remains the same, although it has lost a part of its ter- ritory ; that of Yermont never existed until its territory was sepa- rated from the jurisdiction of New Hampshire. The circumstance, that a part of the territory or population was once under a common sovereign, no more makes the States the same than the circum- stance that a part of the members of one corporation constitutes a component part of another corporation, makes the corporation the same." On this ground it was held that the controversy comes within Federal jurisdiction, whatever may have been the situation of Yermont when the first grant was made by New Hampshire. No question of boundary between States was involved in this case. The dispute related to the validity of the respective titles claimed Tinder grants of different States ; and on this point the opinion of the court was " that, upon the special statement of facts by the parties, judgment ought to pass for the plaintiffs." The other case was that of Colson v. Lewis, 2 Wheat. 377, which was removed from a State court into the Circuit Court for Kentucky, and from the latter court was certified to the Supreme Court of the United States. The specific question before the Su- preme Court was " whether the Circuit Court for the district of Kentucky can take jurisdiction of the cause, because the grants for the land in controversy, lying in Kentucky, were issued, the one by the State of Yirginia, and the other by the State of Kentucky, when both grants purport to be founded upon warrants and loca- tions made under the authority of the laws of Yirginia." Mr. Justice Washington, in stating the opinion of the court, referred to the case of The Town of Pawlet v. Clark et al., supra, and then proceeded to say : " The only difference between the two cases is that in the case referred to, Doth parties claimed immediately under grants, the one from the State of Yermont, and the other from the State of New Hampshire, before the separation, which grants were the in- ception of title ; and that, in this case, both parties claim under grants, the one issued by the State of Kentucky, and the pther by the State of Yirginia, but upon warrants issued by Yirginia, and locations founded thereon, prior to the separation of Kentucky from Yirginia. But where the controversy arises upon claims founded upon grants from different States, as the present case is understood to be, the principle decided in the case which has been cited, precisely governs this. The decision in that case is founded on the words of the Constitution, which extends the judicial 12 178 CONTROVERSIES BETWEEN CITIZENS OF SAME STATE. power of the United States to controversies between citizens of the same State, claiming lands under grants of different States. It is the grant which passes the legal title to the land, and if the controversy is founded upon the conflicting grants of different States, the judicial power of the courts of the United States ex- tends to the case, whatever may have been the equitable title of the parties prior to the grant." Controversies "between citizens of the same State claiming lands under grants of different States " have been so comparatively rare that the Federal courts have seldom had occasion to consider and apply this constitutional provision. The jurisdiction of the Circuit Courts of the United States in these controversies exists, ready to be exercised whenever the occasion calls for it. And it is only by this provision that Federal jurisdiction can reach a case arising from conflicting grants of land made by different States, when the parties to the suits are citizens of the same State. This, indeed, is the only case in which these courts have jurisdiction in controversies between such citizens, when citizenship is the basis of the jurisdiction. CHAPTER IX. CONTROVERSIES WITH FOREIGN STATES, CITIZENS, OR SUBJECTS. 1 . Constitutional Provision The last of the enumerated classes of controversies to which the Constitution extends the judi- cial power of the United States, embraces controversies "between a State or the citizens thereof and foreign States, citizens, or sub- jects." In regard to this provision Alexander Hamilton said : " The peace of the whole ought not to be left at the disposal of a part. The Union will undoubtedly be answerable to foreign powers for the conduct of its members. And the responsibibty for an injury ought ever to be accompanied with the faculty of preventing it. As the denial or perversion of justice by the sen- tences of courts is with reason classed among the just causes of war, it will follow that the Federal judiciary ought to have cognizance of all causes in which the citizens of other countries are con- cerned. This is not less essential to the preservation of the pub- He faith, than to the security of the public tranquillity. * * * So great a proportion of the controversies in which foreigners are parties involve national questions, that it is by far most safe and most expedient to refer all those in which they are concerned to the national tribunals." (The Federalist, No. 80.) This is a lucid statement of the general reason why the framers of the Constitution judged it expedient to extend the judicial power of the United States to this class of controversies. 2. Legislative Provisions. — The eleventh section of the Ju- diciary Act of 1789 (1 U. S. Stat, at Large, 73), gave to the Circuit Courts of the United States original cognizance " of all suits of a civil nature at common law or in equity, where the matter in dis- pute exceeds, exclusive of costs, the sum or value of five hundred dollars," and where " an alien is a party," whether as plaintiff or defendant. The thirteenth section of this act gave to the Su- preme Court original and exclusive cognizance " of all controver- sies of a civil nature where a State is a party," and a foreign State is the other party. These provisions of law are reproduced 180 CONTROVERSIES WITH FOREIGN STATES. and continued in sections 629 and 687 of the Revised Statutes of the United States. Congress, by the Act of March 3d, 1875 (18 U. S. Stat, at Large, 460), gave to the Circuit Courts of the United States orig- inal cognizance " of all suits at common law or in equity, where the matter in dispute exceeds, exclusive of costs, the sum or value of five hundred dollars," and the controversy is " between citizens of a State and foreign States, citizens, or subjects." A controversy between a State of the Union and a foreign State is not embraced in this grant of jurisdiction. Such a controversy belongs to the original and exclusive jurisdiction of the Supreme Court. Those who are simply citizens of the United States, domiciled in the District of Columbia, or who are merely citizens in a Terri- tory of the United States, do not come within these provisions of the Constitution and the law. The provisions have no application to such persons. They are not included in their terms. Nor do these provisions apply to the Indian tribes of this \Country. Though, for the purpose of making treaties with them, these tribes have been recognized as States, in the general political sense they are not foreign States, and not States of the Union, and, as tribes, not citizens or subjects of either class of States, and hence they do not come within the terms of these provisions. Their status is that of dependent nations within the general juris- diction of the United States. This is the view which has been taken by the Supreme Court. {The Cherokee Nation v. Georgia, 5 Pet. 1, and Worcester v. Georgia, 6 Pet. 515.) The possible controversies, either party being plaintiff or de- fendant, embraced within the terms of this clause of the Constitu- tion, and those of the law in pursuance thereof, may be arranged into four classes, as follows : (1.) A State and a Foreign State — The first class embraces those controversies which may arise between a State of the Union and a foreign State. Either may sue the other, and hence either may be plaintiff or defendant. In such suits the Supreme Court has original and exclusive jurisdiction. It should be remembered, however, that a foreign State cannot be compelled to submit to the jurisdiction of this court; and hence, if it were sued therein by a State of the Union, the question whether it should plead as a defendant would be entirely a mat- LEGISLATIVE PROVISIONS. 181 ter of its own choice. It could not be made a party, or be bound by the judgment or decree of the court, against its own pleasure. In regard to this point, Mr. Justice Story remarks : " In regard to controversies between an American and a foreign State, it is ob- vious that the suit must, on the one side at least, be wholly volun- tary. No foreign State can be compelled to become a party, plaintiff or defendant, in any of our tribunals. If, therefore, it chooses to consent to the institution of any suit, it is its consent alone which can give effect to the jurisdiction of the court. (Story's Const, sec. 1699 ; 2 Elliott's Debates, 391, 407 ; and Fos- ter v. Neilson, 2 Pet. 253, 307.) The case would be different with a State of the Union, if sued in the Supreme Court by a foreign State, since, according to the Constitution, which is binding upon every State, it is suable in this court by a foreign State, just as it is suable in the same court by another State of the Union. The judicial power of the United States extends to controversies between a State of the Union and a foreign State ; and in all cases in which a State is a party, the Supreme Court has original jurisdiction. This jurisdiction clearly applies to a case in which a foreign State brings a suit in this court against a State of the Union, or in which the former should consent to be sued therein by the latter, provided the subject-matter of the suit admits of judicial deter- mination. The Constitution operates as a " supreme law " upon every State in the Union ; and, if such a State were sued in the Supreme Court by a foreign State, it would be bound to submit to the process, and abide by the judgment or decree of the court. (2.) A State and an Alien. — The second class includes con- troversies between a State of the Union and a citizen or subject of a foreign State. As the Constitution originally stood, either party could bring a suit against the other in the Supreme Court of the United States. The Eleventh Amendment, however, provides 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 foreign State." Aliens cannot, since the adoption of this amendment, bring, in a Federal court, any suit in law or equity against a State of the Union. The right of such suit which previously existed is withdrawn. 182 CONTROVERSIES WITH FOREIGN STATES. The withdrawal is, in its terms, limited to suits " in law or equity." This does not include admiralty suits, and hence it would seem to follow that aliens may still bring, in the Supreme Court, this class of suits against States, just as they could have done if this amendment had never been adopted. There is noth- ing in the language of the amendment that affects this right. If the right ever existed, it still exists. So, also, the right of States to sue aliens in the courts of the United States remains just as it was before the adoption of the amendment ; and hence a suit by a State against an alien could be maintained in a Federal court, provided the alien could be reached by its process, or had property in this country upon which the ju- risdiction of the court could act. If, however, the alien were a non-resident, and had no property within the jurisdiction of the court, it is difficult to see how such a suit could be made effective, unless the alien Voluntarily chose to appear as a defendant. He would be beyond the reach of any coercive measures by the court. (3.) Citizens and Foreign States. — The third class embraces controversies between a citizen of a State of the Union and a foreign State. Either, according to the terms of the Constitution, may sue the other in the Supreme Court, and either, according to the Act of March 3d, 1875, may sue the other in the Circuit Courts of the United States. This act expressly gives jurisdiction to these courts over " a controversy between citizens of a State and foreign States, citizens, or subjects." A foreign State may, therefore, bring a suit in a Circuit Court of the United States against a citizen or citizens of any State of the Union. The latter may also, in the same court, bring suits against a foreign State. But whether the foreign State, if thus sued, shall submit to the jurisdiction of the court or not, must, in the nature of things, be dependent upon its own choice, just as would be the fact if it were sued in the Supreme Court by a State of the Union. There would be no power in the court to compel it to accept the position of a defendant, or to acquiesce in the judgment rendered. The court certainly could not carry its judgment into execution against the pleasure of a foreign State. (4.) Citizens and Aliens. — The fourth class embraces contro- versies between citizens of a State of the Union and aliens, or LEGISLATIVE PROVISIONS. 183 citizens or subjects of a foreign State. The Act of March 3d, 1875, gives jurisdiction to the Circuit Courts of the United States in such controversies, when the suit is one in law or equity, and the matter in dispute exceeds, exclusive of costs, the sum or value of five hundred dollars. The Judiciary Act of 1789 gave the same jurisdiction in controversies in which " an alien is a party." These are the controversies which, under this constitutional provision and the legislation of Congress for its execution, the Federal courts have most frequently had occasion to consider and determine. The general principles applicable to the question of State citi- zenship, in suits between citizens and aliens, are the same as those which apply in- cases in which citizens are the parties, and in which jurisdiction depends on the fact of the requisite citizenship. A citizen of a State is here, as in other cases, a citizen of the United States domiciled in a particular State, and in virtue of this fact, a citizen of that State. Being a party to the suit, either plaintiff or defendant, and the jurisdiction of the court being de- pendent in part upon his citizenship, the record must contain the proper averment as to such citizenship. So, also, the other party, the alien, must be a citizen or subject of some foreign State ; and this fact must be shown by the record. The Indians of this country, not being citizens, and not being citizens or subjects of any foreign State, cannot be parties to suits under this clause of the Constitution. (Karrahoo v. Adams, 1 Dill. 344.) The fact that an alien has filed a declaration of intention to become a citizen of the United States, and, consequently, of the State in which he resides, does not make him a citizen in either sense. His status of alienage remains a fact until the process of naturalization has been completed by a competent court ; and until this period he may, as an alien, sue or be sued in the Circuit Courts of the United States. {Baird v. Byrne, 3 "Wall. Jr. 1.) The Circuit Courts, under this provision of the Constitution, and the law for carrying it into effect, have no jurisdiction of con- troversies simply between aliens ; and hence, if an alien be a par- ty, the other party must, in order to give jurisdiction, be a citizen of some one of the States of the Union, which fact must be set forth in the record. It is not enough that one of the parties is an alien, unless the other is a citizen. (Montalet v. Murray, 4 Cranch, 46 ; Hodgson v. Bowerlanlt, 5 Cranch, 303 ; Mossman v. Eigginson, 4 Dall. 12; Jackson v. Twentyman, 2 Pet. 136; 184 CONTROVERSIES WITH FOREIGN STATES. Prentiss v. Brennan, 2 Blatch. 162 ; and Bateau v. Bernard, 3 Blatch. 244.) If the party on the record be an alien suing in his own right,, or as a trustee, having a substantial interest as a trustee, or if the nominal plaintiff, although a citizen of some State, sue for an alien who is the real party in interest, jurisdiction will attach to the case, provided the defendant party be a citizen of a State, and this- fact appears on the record. (Chappedelaine v. Dechenaux, 4 Oranch, 306 ; Browne v. Strode, 5 Cranch, 303 ; and Jackson v. Twentyman, 2 Pet. 136.) If the suit be between aliens and citizens, the latter being de- scribed simply as "citizens of the United States," the Circuit Court can exercise no jurisdiction in the case. (Picquet v. 8wan r 6. Mass. 35.) If the alien be a foreign sovereign, he may insti- tute a suit in the Circuit Court against a citizen of a State. {King v. Oliver, 2 Wash. 429.) The residence of the alien in the same State with the citizen whom he sues does not incapacitate him to bring a suit against him in the Circuit Court of the United States. (Breedlove v. Nicolet, 7 Pet. 413.) If a citizen and an alien join in a suit against defendants whom the citizen plaintiff is not competent to sue in the Circuit Court, and thereupon the citizen plaintiff's name is stricken out, the court then has jurisdiction, and may proceed to determine the case as between the alien and the citizen defendants. (Conolly v. Taylor, 2 Pet. 556.) The fact that an alien is a foreign consul does not exempt him from a suit in the Circuit Court against him as an alien, if the suit be brought by a citizen of the United States. (St. Zuke's Hospi- tal v. Barclay, 3 Blatch. 259 ; and Graham v. Stucken, 4 Blatch. 50.) A foreign corporation is deemed to be an alien for the pur- poses of bringing suits in the Circuit Courts of the United States,, against a citizen or citizens of a State, or of being sued by such citizen or citizens. This principle was recognized in The Society t &c. v. New Haven, 8 Wheat..464. This case was an action of ejectment brought by the plaintiffs, who were a foreign corpora- tion, against the town of New Haven, ih Yermont, in the Circuit Court for the district of that State, and was certified to the Su- preme Court upon a division of opinion between the judges of the LEGISLATIVE PROVISIONS. 185 Circuit Court. The right of the plaintiffs, as a foreign corpora- tion, to bring the suit, was fully recognized in both courts. Mr. Justice Harlan, in 1'he National Steamship Company v. Tugman, 15 Chicago Legal News, 105, referred to the doctrine established by the Supreme Court to the effect " that where a cor- poration is created by the laws of a State, the legal presumption is that its members are citizens of the State in which alone the cor- porate body has a legal existence ; and that a suit by or against a corporation, in its corporate name, must be presumed to be a suit by or against citizens of the State which created the corporate body ; and that no averment or evidence to the contrary is admis- sible for the purpose of withdrawing the suit from the jurisdiction of a court of the United States." This is a well-settled doctrine. Applying the same principle to a foreign corporation, Mr. Justice Harlan proceeded to say : " That if the individual members of a corporation, created by the laws of one of the United States, are, for the purposes of suit by or against it in the courts of the Union, conclusively presumed to be citizens of the State by whose laws that corporation is created and exists, it would seem to follow logically that the mem- bers of a corporation, created by the laws of a foreign State, should, for like purposes, be conclusively presumed to be citizens or subjects of such foreign State. Consequently, a corporation of a foreign State is, for the purpose^ of jurisdiction in the courts of the United States, to be deemed constructively a citizen or subject of such State." Such a corporation may hence sue or be sued in the Circuit Courts of the United States, and if it brings a siut in a State court against a citizen of a State, or if a suit is brought against it in a State court by such a citizen, then, in either event, it may, by compliance with the provisions of the Act of March 3d, 1875 (18 U. S. Stat, at Large, 470), remove the suit for trial to the proper Circuit Court of the United States. It has in this respect the same rights as an individual alien. In regard to the right of suit secured by the Constitution and the law to aliens, whether individual or corporate, Mr. Justice Story remarks: "In relation to aliens, however, it should be stated that they have a right to sue only while peace exists be- tween their country and our own, for if a war breaks out, and they thereby become alien enemies, their right to sue is suspended until the return of peace." (Story's Const, sec. 1700.) 186 CONTROVERSIES "WITH FOREIGN STATES. 3. Application of State Laws. — The thirty-fourth section of the Judiciary Act of 1789 (1 U. S. Stat, at Large, 73), which is continued as section 721 of the Revised Statutes of the United States, provides that " the laws of the several States, except where the Constitution, treaties, or statutes of the United States other- wise require or provide, shall be regarded as rules of decision in trials at common law in the courts of the United States, in cases where they apply." The rule here stated is as applicable to suits between citizens and aliens, as it is to suits in which both parties are citizens. The Federal courts are in such suits to administer State laws where they are applicable, and have not beeni superseded by the Consti- tution, laws, or treaties of the United States. If the suits be suits in equity, then the general principles, rules and usages which be- long to courts of equity, except as otherwise established by law or by courts in pursuance thereof, would be applicable to them. If the suits be suits at common law, then State laws, subject to the qualifications of the statute, are to be regarded as rules of decision. The fact that one of the parties is an alien would make no differ- ence in the procedure or the rules of decision, whether the suit be one in equity or one in law. It is the jurisdiction that depends on this fact, and not the method of exercising it or the rules govern- ing it, except as there may be special rules of law relating to con- troversies in which one of the parties is an alien. PART III. COURTS OF THE UNITED STATES. CHAPTER I. DISTRICT COURTS. 1. Judicial Agency. — The agency by which the judicial power of the United States, defined and in part vested in the third article of the Constitution, is administered, is that of courts. The Con- stitution provides that there shall be " one Supreme Court," and authorizes Congress, in its discretion, to establish "tribunals in- ferior to the Supreme Court." The organization of these "in- ferior " courts, their number, their relation to • each other, and their jurisdiction, whether original or appellate, are left wholly to the legislative wisdom of Congress, limited in its exercise to the cases and controversies specified in the Constitution. One of the courts which Congress has created, and in which lodged a portion of the judicial power granted in the Constitution, is the District Court of the United States. The Judiciary Act of 1789 (1 U. S. Stat, at Large, 73), by which the Judicial Department of the General Government was organized, divided the United States into thirteen judicial districts, with two additional districts — one for Kentucky and the other for Maine, which were then parts of Virginia and Massachusetts respectively. This act provided for a District Court in each of these districts, and to this court gave original jurisdiction in certain specified cases. Subsequent legislation, called for by the growth of the country, has, from time to time, added to the number of these districts, and, consequently, to the number of District Courts, and also greatly enlarged their jurisdiction beyond the limits originally fixed. The entire legislation of Congress with regard to these courts, in force on the 1st of December, 1873, is compiled, re- stated, and re-enacted in the Eevised Statutes of the United States, 188 DISTRICT COURTS. chiefly in the first four chapters of Title XIII. The purpose of this chapter is to present a summary of this legislation, together with such as has been since added, in respect to the District Courts of the United States. 2. Judicial Districts.— Chapter 1 of Title XIII divides the entire territory of the United States, embraced within the limits of the several States, into a series of judicial districts. (Sec. 530.) The States constituting one district, each, are California, Connecticut, Delaware, Indiana, Iowa, Kansas, Kentucky, Louisi- ana, Maine, Maryland, Massachusetts, Minnesota, Nebraska, Ne- vada, New Hampshire, New Jersey, Oregon, Khode Island, Vermont, and West Virginia. (Sec. 531.) To this list must be added the State of Colorado, admitted into the Union under the enabling Act of March 3d, 1875 (18 U. S. Stat, at Large, 474), and by the Act of June 26th, 1876 (19 U. S. Stat, at Large, 61), constituted into a judicial district when admitted. This makes twenty-one States, each of which forms a judicial district. The States of Arkansas, Florida, Georgia, Illinois, Michigan, Mississippi, Missouri, North Carolina, Ohio, Pennsylvania, South Carolina, Virginia, and Wisconsin — thirteen States in all — are divided each into two judicial districts. The States of Alabama, New York, Tennessee, and Texas are divided each into three judicial districts. Prior to the Act of February 24th, 1879, (20 U. S. Stat, at Large, 318), Texas was divided into two districts; but by this act these districts were changed, and a northern judicial district established in the State. Each of these districts embraces either the whole or a part of a State, and in no instance does a district include either two States or parts of two or more States. It thus appears that Congress, in arranging these districts, has adopted the State as the unit of terri- torial division, sometimes dividing a State into two or more dis- tricts, but never uniting two or more States or parts of two or more States in the same district. This was the original plan as to judicial districts adopted in the Judiciary Act of 1789, and it has been adhered to ever since. 3. Organization of District Conrts. — Chapter 2 of Title XIII, contains a series of provisions relating to the organization of these courts. It provides, as a general rule, that a district ORGANIZATION OF DISTRICT COURTS. 189 judge shall be appointed for each judicial district, and declares that he shall reside in the district for which he is appointed, making it a high misdemeanor for him to offend against this pro- vision. (Sec. 551.) Only one district judge is authorized to be appointed in each of the States of Alabama, Georgia, Mississippi, South Carolina, and Tennessee, and he is required to act as judge of the District Court in each judicial district included in the State for which he is appointed, and must reside in one of these districts, with the provision that the district judge for the Southern district of Florida shall reside at Key West. (Sees. 552, 553.) The Act of June 14th, 1878 (20 U. S. Stat, at Large, 132), provided that there should be two district judges for the State of Tennessee — one for the Western district, and the other for the other two districts into which the State is divided. This makes in all five judges, each of whom holds a District Court in more than one district. The judge of each district is required to appoint a clerk of the court, except in cases otherwise provided for by law. One or more deputy clerks may be appointed, on the application of the clerk, and may be removed at the pleasure of the court making the appointment. In case of the death of the clerk, his deputy or deputies, unless removed, continue in office, and perform the duties of the clerk in his name, until a clerk is appointed and qualified ; and for the default or misfeasances in office of any such deputy, whether in the lifetime of the clerk or after his death, the clerk and his estate and the sureties in his official bond are held liable ; and the executor or administrator has such remedy for any such default or misfeasances committed after his death as the clerk would be entitled to if the same had occurred in his life- time. The compensation of deputy clerks is to be paid by the clerks respectively, and allowed in the same manner as other expenses of the clerks' offices are paid and allowed. (Sees. 555, 558, 561.) In the Eastern district of Arkansas two clerks of the District Court thereof are to be appointed, one to reside and keep his office at Little Rock, and the other to reside and keep his office at Helena. In the district of Kentucky a clerk is to be appointed at each place of holding the court, in the same manner and subject to the same duties and responsibilities as are or may be provided 190 DISTRICT COURTS. concerning clerks in independent districts. In the district of Indiana the clerk of the District Court is required to appoint a deputy clerk for the court to be held at New Albany, and a deputy clerk for the court to be held at Evansville, who are to reside and keep their offices at these places respectively. Each of these deputies is required to keep in his office full records of all actions and proceedings in the District Court held in the same place, and has the same power to issue all process from the court that is or may be given to the clerks of other District Courts in like cases. In the district of Iowa a deputy clerk is required to be appointed at each place, in the four divisions of the district, where the District Court is held ; and each of these deputies, in the absence of the clerk, is authorized to exercise all the official powers of the clerk, at the place and within the division for which he is appointed. (Sees. 556, 557, 559, 560.) Congress, since the enactment of the Eevised Statutes, has made additional provisions relating to clerks and deputy clerks for the district of Indiana, the district of Kansas, the Western district of Michigan, the Western district of Missouri, and the Western district of Tennessee. (20 XL S. Stat, at Large, 399 ; 20 Id. 355 ; 20 Id. 176 ; 20 Id. 263 ; and 20 Id. 236.) The records of each District Court are required to be kept at the place where the court is held ; and when it is held at more than one place in any district, and the place of keeping the records is not specially provided by law, they are to be kept at either of the places of holding the court which may be designated by the district judge. (Sec. 562.) The annual compensation to the district judges is as follows : 1. To the judge of the district of California five thousand dollars. 2. To the judge of the district of Louisiana four thousand five hundred dollars. 3. To the judges of the districts of Massa- chusetts, of the Northern, Southern, and Eastern districts of New Tork, of the Eastern and Western districts of Pennsylvania, of the district of New Jersey, of the district of Maryland, of the Southern district of Ohio, and the Northern district of Illinois, four thousand dollars each. 4. To the judges of all the other dis- tricts three thousand five hundred dollars each. No other allow- ance is made for travel, expenses, or otherwise. (Sec. 554.) It is hardly necessary to say that this is a niggardly rate of compensation, whether we consider the ample ability of the Gov- JURISDICTION OF DISTRICT COURTS. 191 ernment to pay better salaries, or the amount and character of the service to be performed and the grade of legal attainments requi- site for the proper discharge of the duties of the office. It is quite true that the office is an honorable one, yet almost any lawyer who is fit for the position can earn more by the practice of his profes- sion. The low rate of compensation is calculated to repel from the office the best legal talent of the country. The Government, aside from the honor of the office, furnishes no motive for such talent to seek or accept an appointment in this branch of the pub- lic service. 4. District Judges. — District judges, like all the other judges of the courts of the United States, are appointed by the President, with the advice and consent of 'the Senate, and hold office during good behavior, being removable therefrom only by the process of impeachment. Before entering upon the duties of the office, they are required to take the oath prescribed, in section 712 of the Ee- vised Statutes, for justices of the Supreme Court, circuit judges, and district judges. When any judge of any court of the United States resigns his office, after having held his commission as such for at least ten years, and having attained the age of seventy years, he is entitled, during the residue of his natural life, to receive the same salary which was by law payable to him at the time of his resignation. (Sec. 714.) This provision applies to district as well as to other Federal judges. These judges, like all other Federal judges, are excluded from exercising the profession of counsel or attorney, or engaging in the practice of law, and any violation of this prohibition is de- clared to be a "high misdemeanor." (Sec. 713.) 5. Jurisdiction of District Courts Chapter 3 of Title XIII treats specially of the jurisdiction of the District Courts. Section 563 of this chapter enumerates the following subjects and matters to which this jurisdiction extends : (1.) Crimes and Offenses. — All crimes and offenses cognizable under the authority of the United States, committed within their respective districts, or upon the high seas, the punishment of which is not capital, except in the cases mentioned in section 5412, Title " Crimes." 192 DISTRICT COURTS. (2.) Piracy. — All cases arising under any act for the punish- ment of piracy, when no Circuit Court is held in the district of such court. (3.) Penalties and Forfeitures. — All suits for penalties and forfeitures incurred under any law of the United States. The phrase " suits for penalties and forfeitures " applies only to such penalties and forfeitures as may be enforced in a civil ac- tion. {The United States v. Mann, 1 Gallis. 3.) (4.) Suits by the United States. — All suits at common law brought by the United States, or by any officer thereof authorized by law to sue. In Cotton v. The United State§, 11 How. 229, it was said by the court that the United States, being a corporation or body poli- tic, possess the general right of bringing " suits to enforce then- contracts and protect their property, in the State courts, or in then- own tribunals administering the same laws. As an owner of prop- erty in almost every State in the Union, they have the same right to have it protected by local laws that other persons have." In Dugan v. The United States, 3 Wheat. 172, 181, it was said that " it would be strange to deny to them a right winch is secured to every citizen of the United States." {The United States v. The Bank of the Metropolis, 15 Pet. 392 ; and The United States v. Gear, 3 How. 120.) This paragraph of the section gives jurisdic- tion to the District Courts in all common law suits brought by the United States, or by any officer authorized to sue in their name. (5.) Equity Suits to Enforce Taxes. — All suits in equity to en- force the lien of the United States upon any real estate for any internal revenue tax, or to subject to the payment of any such tax any real estate owned by the delinquent, or in which he has any right, title, or interest. (See sec. 3207.) (6.) Suits for Frauds against the United States. — All suits for the recovery of any forfeiture or damages under section 3490, Title " Debts Due by ob to the United States," which suits may be tried and determined by any District Court within whose jurisdic- tional limits the defendant may be found. The section here referred to provides that " any person, not in the military or naval forces of the United States, or in the militia called into or actually employed in the service of the United States, JURISDICTION OF DISTRICT COURTS. 193 who shall do or commit any of the acts prohibited by any of the provisions of section 5438, Title < Crimes,' shall forfeit and pay to the United States the sum of two thousand dollars, and, in addi- tion, double the amount of damages which the United States may have sustained by reason of the doing or committing such act, together with the costs of suit, and such forfeiture and damages which shall be sued for in the same suit." The District Courts have jurisdiction in such cases. (7.) Suits under Postal Laws. — All causes of action arising under the postal laws of the United States. This jurisdiction is concurrent with that of Circuit Courts. (8.) Admiralty Causes and Seizures on Zand. — All civil causes of admiralty and maritime jurisdiction, saving to suitors in all cases the right of a common law remedy where the common law is com- petent to give it, and all seizures on land and waters not within admiralty and maritime jurisdiction. This jurisdiction is declared to be exclusive, except in the par- ticular cases where jurisdiction of such causes and seizures is given to the Circuit Courts. Congress, by the Act of February 18th, 1875 (18 U. S. Stat, at Large, 317), amended this paragraph of section 563, so as to give to the District Courts " original and ex- clusive cognizance of all prizes brought into the United States, except as provided in paragraph six of section 629." The paragraph here referred to gives to the Circuit Courts ju- risdiction " of all proceedings for the condemnation of property taken as prize in pursuance of section 5308, Title ' Insurrection.' " This section provides as follows : " Whenever, during any insurrection against the Government of the United States, after the President shall have declared by proclamation that the laws of the United States are opposed, and the execution thereof obstructed, by combinations too powerful to be suppressed by the ordinary course of judicial proceedings, or by the power vested in the marshals by law, any person, or his agent, attorney, or employe, purchases or acquires, sells or gives, any property of whatsoever kind or description, with intent to use or employ the same, or suffers the same to be used or employed, in aiding, abetting, or promoting such insurrection or resistance to the laws, or any person engaged therein, or, being the owner of any such property, knowingly uses or employs, or consents to such use or employment of the same, all such property shall be lawful subject of prize and capture wherever found ; and it shall be the 13 194 DISTRICT COURTS. duty of the President to cause the same to be seized, confiscated, and condemned." The next section (5309) provides that such prizes and capture shall be condemned in the District or Circuit Court of the United States having jurisdiction of the amount, or in admiralty in any district in which the same may be seized, or into which they may be taken and proceedings first instituted. The jurisdiction conferred on the District Courts by the eighth paragraph of section 563, as amended by the Act of February 18th, 1875, extends, then, to three classes of cases. The first embraces " all civil causes of admiralty and maritime jurisdiction," whether founded on the locality of the occurrences which constitute the cause, of action, or upon a contract, express or implied, which is essentially maritime in its nature. This jurisdiction is exclusive of State courts, and also of Circuit Courts except in the particular cases in which it is given to the latter courts. The second class embraces " all seizures on land and on waters not within admiralty and maritime jurisdiction." This also is exclusive of State courts, and of Circuit Courts, except in the cases in which the latter courts possess it. The third class embraces " all prizes brought into the United States," in which cases the jurisdiction is exclusive except as provided in paragraph six of section 629, giving to the Circuit Courts jurisdiction in a certain class of prize cases. (9.) Condemnation of Property as Prize. — All proceedings for the condemnation of property taken as prize in pursuance of section 5308, Title " Insurrection." This paragraph is identical with paragraph six of section 629, which gives precisely the same jurisdiction to the Circuit Courts of the United States. Both par- agraphs are founded on the Confiscation Act of August 6th, 1861. (12 U. S. Stat, at Large, 319.) This act confiscated property used in aid of insurrection, and authorized it to be seized as lawful prize, and gave the District and Circuit Courts jurisdiction of proceed- ings for its condemnation. [The Union Insurance Co. v. The United States, 6 Wall. 759 ; and Osborn v. The United States, 1 Otto, 474.) (10.) Suits on Debentures. — All suits by the assignee of any debenture for drawback of duties, issued under any law for the collection of duties, against the person to whom such debenture JURISDICTION OF DISTRICT COURTS. 195 was originally granted, or against any indorser thereof, to recover the amount of such debenture. (Sees. 8038-3040.) (11.) Suits in Oases of Conspiracy.— All suits authorized to be brought by any person for the recovery of damages on account of any injury to his person or property, or of the deprivation of any right or privilege of a citizen of the United States, by any act done in furtherance of any conspiracy mentioned in section 1980, Title "Civil Rights." The section here referred to specifies a series of acts done by two or more persons against any person, and then provides that the latter, being thereby injured or deprived of any right or privilege of a citizen of the United States, may have an action for the recovery of damages, occasioned by such injury or deprivation, against any one or more of the conspirators. The District Courts, concurrently with the Circuit Courts, have juris- diction of suits brought for such recovery. (12.) Suits for Deprivation of Rights. — All suits at law or in equity authorized by law to be brought by any person to redress the deprivation, under color of any law, ordinance, regulation, custom, or usage of any State, of any right, privilege, or immunity secured by the Constitution of the United States, or of any right secured by any law of the United States, to persons within the ju- risdiction thereof. Section 1979 provides that every person who, under color of any statute, ordinance, regulation, custom, or usage of any State or Territory, subjects or causes to be subjected any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. In such cases jurisdiction is given alike to the District and Circuit Courts. (Sec. 629.) (13.) Suits to Recover Offices. — All suits to recover possession of any office, except that of elector of President or Vice-President, Representative or Delegate in Congress, or member of a State leg- islature, authorized by law to be brought, wherein it appears that the sole question touching the title to such office arises out of the denial of the right to vote to any citizen offering to vote, on ac- count of race, color, or previous condition of servitude : Provided, That such jurisdiction shall extend only so far as to determine the 196 DISTRICT COURTS. rights of the parties to such office by reason of the denial of the right guaranteed by the Constitution of the United States, and se- cured by law to enforce the right of citizens of the United States to vote in all the States. Section 2010 gives to the person de- feated or deprived of any office, as here referred to, a remedy by an appropriate suit in the Circuit or District Court of the United States for the circuit or district in which he resides. (14.) Suits for the Removal of Officers.— All proceedings by writ of quo warranto, prosecuted by any district attorney, for the removal from office of any person holding office, except as a mem- ber of Congress or of a State legislature, contrary to the provisions of the third section of the fourteenth article of amendment of the Constitution of the United States. Section 1786 mates it the duty of the district attorney for the district in which such person holds office to proceed against him by writ of quo warranto, returnable to the Circuit or District Court of the United States in such dis- trict, and prosecute the same to the removal of such person from office. (15.) Suits by or against National Banks. — All suits by or against any association established under any law providing for national banking associations within the district for which the court is held. {Kennedy v. Gibson, 8 Wall. 498 ; and G'adle v. Tracy, 11 Blatch. 101.) (16.) Suits by Aliens for Torts. — All suits brought by any alien for a tort only, in violation of the law of nations, or of a treaty of the United States. This is not a general jurisdiction of suits by aliens, but simply of such as come within the description. (11.) Suits against Consuls. — All suits against consuls or vice- consuls, except for offenses above the description aforesaid. This includes civil suits against consuls or vice-consuls, and also crimi- nal prosecutions, with the exception stated. International law does not exempt consuls from the jurisdiction of courts at the place of their residence. This jurisdiction, however, in the United States, belongs exclusively to the Federal courts. (Laury v. Lou- sada, 1 Am. L. Eev. 92; Davis v. Packard, 7 Pet. 276; and St. Luke's Hospital v. Barclay, 3 Blatch. 259.) (18.) Proceedings in Bankruptcy. — All matters and proceed- ings in bankruptcy, in respect to which the District Courts are REGULATIONS IN REGARD TO JURISDICTION. 197 constituted courts of bankruptcy, having original jurisdiction in their respective districts. The repeal of the National Bankrupt Law since the enactment of the Kevised Statutes, renders this provision inoperative, except in application to cases pending in any court prior to the time when the act went into effect. (20 U. S. Stat, at Large, 99.) Such are the classes of cases to which section 563 of the Re- vised Statutes extends the jurisdiction of the District Courts. This, however, does not exhaust their jurisdiction as specified in these Statutes, or in the chapter of which this section forms a part. 6. Additional Regulations in Regard to Jurisdiction. — Chapter 3 of Title XIII contains the following regulations and provisions in addition to those of section 563 : (1.) Regulations in regard to Prize Causes and Certain Seiz- ures. — As to prize causes, it is provided that any District Court may, notwithstanding an appeal to the Supreme Court in any prize cause, make and execute all necessary orders for the custody and disposal of the prize property, and, in case of an appeal from a de- cree of condemnation, may proceed to make a decree of distribu- tion, so far as to determine what share of the prize shall go to the captors, and what vessels are entitled to participate therein. (Sec. 565.) As to certain specified seizures, it is provided that proceedings on seizure for forfeiture of any vessel or cargo entering any port of entry which has been closed by the President in pursuance of law, or of goods and chattels coming from a State or section de- clared by proclamation of the President to be in insurrection, into other parts of the United States, or of any vessel or vehicle con- veying such property, or conveying persons to or from such State or section, or of any vessel belonging, in whole or in part, to any inhabitant of such State or section, may be prosecuted in any District Court into which the property so seized may be taken, and proceedings instituted, and the District Court thereof shall have as full jurisdiction over such proceedings as if the seizure was made in that district. (Sec. 564 ) Sections 5301 and 5317 of the Revised Statutes provide for the forfeiture of property to the United States in the cases here specified. {The Venice, 2 Wall. 258; The Reform, 3 Wall. 617; The Hampton, 5 Wall. 372 ; The United States v. Ward, 5 Wall. 62; The Ouachita Cotton, 6 Wall. 521.) 198 DISTRICT COURTS. (2.) Trial of Issues of Fact. — The trial of issues of fact in the District Courts, in all causes except those in equity and cases of admiralty and maritime jurisdiction, and except as otherwise provided in proceedings in bankruptcy, is to be by jury ; Pro- vided, That in causes of admiralty and maritime jurisdiction, relat- ing to any matter of contract or tort arising upon or concerning any vessel of twenty tons burden or upward, enrolled and licensed for the coasting trade, and at the time employed in the business of commerce and navigation, between places in different States and Territories, upon the lakes and navigable waters connecting the lakes, the trial of issues of fact shall be by jury when either party requires it. (Sec. 566.) This proviso is founded on the Act of February 26th, 1845. (5 IT. S. Stat, at Large, 726.) (3.) Jurisdiction when a Territory becomes a State.— When any Territory is admitted as a State into the Union, and a District Court is established therein, it is made the duty of such court to take cognizance of all cases which were pending and undeter- mined in the Superior Court of such Territory, from the judg- ments or decrees to be rendered in which writs of error could have been sued out or appeals taken to the Supreme Court, and the District Court is required to hear and determine the same. (Sec. 569.) And, to this end, it is provided that all the records of the pro- ceedings in the several cases pending in the Court of Appeals of the Territory at the time of its admission as a State, and all rec- ords of the proceedings in the several cases in which judgments or decrees had been rendered in such court before that time, and from which writs of error could have been sued out or appeals could have been taken, or from which writs of error had been sued out or appeals had been taken and prosecuted to the Supreme Court, shall be transferred to and deposited in the District Court for the said State. (Sec. 567.) The judge of the District Court is authorized and required to demand of the clerk or other person having possession or custody of these records the delivery of the same, to be deposited in the District Court, and, in case of the refusal of such clerk or person to comply with the demand, the judge is then required to compel the delivery of the records, by attachment or otherwise, according to law. (Sec. 568.) JURISDICTION UNDER THE CIVIL RIGHTS ACT. 199 (4.) Commissioners to Administer Oaths to Appraisers. — The judge of any District Court is authorized to appoint commis- sioners, before whom appraisers of vessels, or goods and merchan- dise, seized for breaches of any law of the United States, may be sworn ; and such oaths, so taken, are declared to be as effectual as if taken before the judge in open court. (Sees. 570, 938.) (5.) Circuit Court Jurisdiction. — The District Courts for the Western district of Arkansas, the Eastern district of Arkansas at Helena, the Northern district of Mississippi, the "Western district of South Carolina, and the district of "West Virginia, in addition to the ordinary jurisdiction of District Courts, are invested with jurisdiction of all causes, except appeals and writs of error, which are cognizable in a Circuit Court, and are directed to proceed therein in the same manner as a Circuit Court. (Sec. 571.) Congress by the seventh section of the Act of February 15th, 1879 (20 U. S. Stat, at Large, 292), provided that, in addition to the ordinary jurisdiction and powers of a District Court of the United States, with which the District Court of Colorado has been invested, it be and is hereby invested within the limits of said Southern and "Western divisions of the same, with the exercise of concurrent jurisdiction and power, in all civil cases, now exercised by the Circuit Courts of the United States ; and that in all cases where said court shall exercise such jurisdiction, writs of error and appeals shall be allowed and taken from the judgment, orders or decrees of said court to the Supreme Court of the United States, in the same manner and upon the same conditions as appeals may be taken from the Circuit Courts. 7. Jurisdiction under the Civil Rights Act. — Congress, by the Act of March 1st, 1875 (18 U. S. Stat, at Large, 335), enti- tled "An Act to protect all citizens in their civil and legal rights," and designed to secure to them " the full and equal enjoyment of the accommodations, advantages, facilities, and privileges of inns, public conveyances on land and water, theaters and other places of public amusement, subject only to the conditions and limitations established by law, and made applicable to citizens of every race and color, regardless of any previous condition of servitude," and also to secure to them the right to sit as jurors as against any dis- qualification " on account of race, color, or previous condition of servitude," provided that the District Courts of the United States, 200 DISTRICT COURTS. concurrently with the Circuit Courts, but exclusively of the courts of the several States, shall have cognizance of all the crimes and offenses specified in the act, and of suits for the recovery of pen- alties in behalf of persons aggrieved by any violation of the pro- visions of the law. The first part of this jurisdiction comes within the terms of the first paragraph of section 563 of the Revised Statutes ; but the second part is dependent upon this enactment. So much of this act as relates to jurors was considered by the Supreme Court of the United States, in Ex parte Virginia, 10 Otto, 339, and its con- stitutionality was affirmed by the court. 8. Jurisdiction in Certain Summary Trials.— Chapter nine of Title XLVIII of the Revised Statutes provides " summary trials for certain offenses against navigation laws " in cases where the offense is " not capital or otherwise infamous." An indict- ment is not necessary in these cases. It is sufficient if the proper district attorney presents a case to the District Court by a state- ment in writing, verified by oath, and setting out the offense in such manner as clearly to apprise the accused of the character of the offense complained of, and to enable him to answer the com- plaint. The trial is to proceed in a summary manner, and the case is to be decided by the court simply, unless, at the time for pleading or answering, the accused shall demand a jury, in which case the trial is to be upon the complaint and plea of not guilty. If the trial be by jury, the United States and the accused are re- spectively entitled to three peremptory challenges ; and all chal- lenges for cause are to be tried by the court without the aid of triers. (Sees. 4300-4305.) 9. Naturalization of Aliens. — Title XXX of the Revised Statutes provides the method by which aliens may become citi- zens of the United States, and designates the classes of aliens to whom the provisions of this Title are applicable. The District Courts of the United States have jurisdiction to hear applications- and make decrees of naturalization upon the conditions specified by law. (Sec. 2165-2174.) 10. Power to Issue Writs. — The District Courts have power to issue writs of scire facias and habeas corpus, and also all writs not specifically provided for by statute, which may be necessary THE SESSIONS OF DISTRICT COURTS. 201 for the exercise of their jurisdiction, and agreeable to the usages and principles of law. (Sees. 716, 751.) 11. The Sessions of District Courts. — Chapter 4 of Title XIII of the Revised Statutes contains the regulations of law re- lating to the sessions of the District Courts, as follows : (1.) Regular Terms. — The regular terms of the District Courts in the several districts are fixed at specific times and places des- ignated by law ; and when any of the dates happens to fall on Sunday, the term of the court commences on the following day. (Sec. 572.) (2.) Special Terms. — A special term of any District Court may be held at the same place where any regular term is held, or at such other place in the district as the nature of the business may require, and at such time and place and upon such notice as may be ordered by the district judge ; and any business may be transacted at such special term which might be transacted at a regular term. (Sec. 581.) (3.) Adjourned Terms. — The District Courts are required to hold monthly adjournments of their regular terms, for the trial of criminal causes, when their business requires it to be done, in order to prevent undue expenses and delays in such cases. (Sec. 578.) The judge of any District Court in Indiana, Kentucky, Louisi- ana, Michigan, Ohio, Pennsylvania, and Texas may adjourn the same from time to time, to meet the necessities or convenience of the business. (Sec. 579.) In the district of Kentucky and Indiana the intervention of a term of the District Court at another place, or of a Circuit Court, does not preclude the power to adjourn over to a future day. (Sec. 580.) If the judge of any District Court is unable to attend at the commencement of any regular, adjourned, or special term, the court may be adjourned by the marshal, by virtue of a written order directed to him by the judge, to the next regular term, or to an earlier day, as the order may direct. (Sec. 583.) If the judge of any District Court in Alabama, California, Georgia, Indiana, Iowa, Kentucky, North Carolina, Tennessee, or West Virginia is not present at the time of opening the Court, the 202 DISTRICT COURTS. clerk may open and adjourn the court for four days ; and if the judge does not appear by two o'clock after noon of the fourth day, the clerk is directed to adjourn the court to the next regular term. This section, however, is subject to the provisions of sec- tions 5S3 and 585. (Sec. 5S4.) In the districts of Indiana and Kentucky, the district judge, in the case provided in section 584, may, by a written order to the clerk within the first three days of his term, adjourn the Dis- trict Court to a future day within thirty days of the first day. The court is directed to give notice of such adjournment by post- ing a copy of the order on the front door of the court house where the court is held. (Sec. 585.) (4.) Intermediate Terms. — Whenever the judge of any Dis- trict Court in the districts of California, Iowa, and Tennessee, fails to hold any regular term thereof, it is made his duty, if it appears that the business of the court requires it, to hold an intermediate term. Such term must be appointed by an order under his hand and seal, addressed to the clerk and marshal at least thirty days previous to the term fixed therein for holding it, and the order must be published the same length of time in the several news- papers published within such districts respectively ; and at such term the business of the court is to have reference to and be pro- ceeded with in the same manner as if it were a regular term. (Sec. 586.) (5.) Effect of Change of Terms. — No action, suit, proceeding or process in any District Court abates or is rendered invalid by reason of any act changing the time of holding such court ; but the same is to be deemed returnable to, pending, and triable in the terms established next after the return day thereof. (Sec. 573.) (6.) Continuance of Terms. — In the districts of Kentucky and Indiana the terms of the District Courts are not limited to any particular number of days, nor is it necessary to adjourn by reason of the intervention of a term of the court elsewhere ; but the court intervening may be adjourned over till the court in session is concluded. (Sec. 577.) (7.) The Courts always Open for Certain Purposes. — The Dis- trict courts, as courts of admiralty, and as courts of equity, so far THE SESSIONS OF DISTRICT COURTS. 203 as equity jurisdiction has been conferred upon them, are to be deemed always open for the purpose of filing any pleading, of issuing and returning mesne and final process, and of making and directing all interlocutory motions, orders, rules, and other pro- ceedings, preparatory to the hearing, upon their merits, of all causes pending therein. And any district judge may, upon reasonable notice to the parties, make and direct and award, at chambers, or in the clerk's office, and in vacation as well as in term, all such process, commissions, orders, rules, and other pro- ceedings, whenever the same are not grantable of course, accord- ing to the rules and practice of the court. (Sec. 574.) The District Court for the Southern district of Florida is to be at all times open for the purpose of hearing and deciding causes of admiralty and maritime jurisdiction. (Sec. 575). The District Courts of the districts of Wisconsin are to be at all times open for the purpose of hearing and deciding causes of admiralty and maritime jurisdiction, so far as the same can be done without a jury. (Sec. 576.) (8.) Disability of the District Judge. — "When satisfactory evi- dence is shown to the circuit judge of any circuit, or, in his absence, to the circuit justice allotted to the circuit, that the judge of any district therein is disabled to hold a District Court, and to perform the duties of his office, and an application accordingly is made in writing to such circuit judge or justice by the district attorney or marshal of the district, the said judge or justice, as the case may be, may issue his order in the nature of a certiorari, directed to the clerk of such District Court, requiring him forth- with to certify into the next Circuit Court, to be held in said dis- trict, all suits and processes, civil and criminal, depending in said District Court, and undetermined, with all the proceedings thereon, and all files and papers relating thereto. The said order is to be immediately published in one or more newspapers printed in said district, at least thirty days before the session of such Circuit Court, which is to be deemed sufficient notification to all con- cerned ; and thereupon the Circuit Court is directed to proceed to hear and determine the suits and processes so certified. And all bonds and recognizances taken for or returnable to such District Court, are to be deemed taken for and returnable to said Circuit Court, and to have the same effect therein as they could have had in the District Court to which they were taken. (Sec. 587.) 204 DISTRICT COURTS. When an order has been made as provided in the preceding section, the clerk of the District Court is required to continue, during the disability of the district judge, to certify, as aforesaid, all suits, pleas, and processes, civil and criminal, thereafter begun in said court, and to transmit them to the Circuit Court next to be held in that district ; and the said court is directed to proceed to hear and determine them as provided in said section : Provided, That when the disability of the district judge ceases or is removed, the Circuit Court shall order all such suits and proceedings then pending and undetermined therein, in which the District Courts have an exclusive original cognizance, to be remanded, and the clerk of such court shall transmit the same, with all matters relat- ing thereto, to the District Court next to be held in that district ; and the same proceedings are then to be had in the District Court as would have been had if such suits had originated or been con- tinued therein. (Sec. 588.) In the case provided in the two preceding sections the circuit judge, and, in his absence, the circuit justice, may exercise, during such disability, all the powers of every kind vested by law in such district judge. But this provision does not require them to hold any special court, or court of admiralty, at any other time than that fixed by law for holding the Circuit Court in said district. (Sec. 589.) When the business of a District Court is certified into the Circuit Court on account of the disability of the district judge, the district clerk must be authorized, by order of the circuit judge, or, in his absence, of the circuit justice within whose circuit such district is included, to take, during such disability, all examinations and depositions of witnesses, and make all necessary rules and orders, preparatory to the final hearing of all causes of admiralty and maritime jurisdiction. (Sec. 590.) When any district judge is prevented, by any disability, from holding any stated or appointed term of his District Court, or of the Circuit Court in his district in the absence of the other judges, and that fact is made to appear by the certificate of the clerk, under the seal of the court, to the circuit judge, or, in his absence, to the circuit justice of the circuit in which the district lies, such circuit judge or justice may, if in his judgment the public inter- ests so require, designate and appoint the judge of any other dis- trict in the same circuit to hold said courts, and to discharge all THE SESSIONS OF DISTRICT COURTS. 205 the judicial duties of the judge so disabled, during such disability. Such appointment is required to be filed in the clerk's office and entered on the minutes of the said District Court, and a certified copy thereof, under the seal of the court, is to be transmitted by the district clerk to the judge so designated and appointed. (Sec. 591.) When a certificate of the judge of either of the districts of Florida, stating that he is disabled to hold any regular, special, or adjourned term of the court of such district, and requesting the judge of the other district to hold the same, is filed in the clerk's office of the place where it is to be held, the judge of the other district is authorized to hold such courts, and to exercise all the powers of district judge in the district of the judge so certifying. (Sec. 598.) Whenever the judge of the Northern district of New York is disabled to perform the duties of his office, it is made the duty of the judge of the Southern district, upon receiving from him notice thereof, to hold the District Court, and to perform all the duties of district judge for such district. And whenever the judge of the Southern district is so disabled, it is made the duty of the judge of the Eastern district, upon like notice, to hold the District Court, and to perform all the duties of district judge for the Southern district. In such cases the said judges, respectively, have the same powers as are vested in the judge so disabled. (Sec. 599.) Whenever the judge of the Southern district of New York deems it desirable, on account of the pressure of public business or other cause, that the judge of the Eastern district shall perform the duties of a district judge in the Southern district, an order to that effect may be entered upon the records of the District Court thereof; and thereupon the judge of the Eastern district is authorized to hold the District Court, and to perform all the duties of district judge for the Southern district. (Sec. 600.) (9.) Circuit Judges acting as District Judges. — In the case of the non-attendance of the district judge of Tennessee at any term of the District Court in either' of the districts thereof, the circuit justice or circuit judge of the circuit to which the district belongs, may hold such terms, having and exercising the jurisdic- tion and powers given by law to a district judge. (Sec. 582.) 206 DISTRICT COURTS. (10.) When the District Judge is Interested m the Suit. — Whenever it appears that the judge of any District Court is in any way concerned in interest in any suit pending therein, or has been of counsel for either party, or is so related to or connected with either party, as to render it improper, in his opinion, for him to sit on the trial, it is made his duty, on application by either party, to cause the fact to be entered on the records of the court, and also an order that an authenticated copy thereof, with all the proceedings in the suit, shall be forthwith certified to the next Circuit Court for the district, and if there be no Circuit Court therein, to the next Circuit Court in the State, and if there be no Circuit Court in the State, to the next convenient Circuit Court in an adjoining State ; and the Circuit Court, upon the filing of such record with its clerk, is authorized and required to take cog- nizance of and proceed to hear the case, in like manner as if it had originally and rightfully been commenced therein. (Sec. 601.) (11.) Accumulation of Business. — When, from the accumu- lation or urgency of business in any District Court, the public in- terests require the designation and appointment hereinafter pro- vided, and the fact is made to appear by the certificate of the clerk, under the seal of the court, to the circuit judge, or, in his absence, to the circuit justice of the circuit in which the district lies, such circuit judge or justice may designate and appoint the judge of any other district in the same circuit to have and exercise within the district first named, the same powers as are vested in the judge thereof ; and each of the said district judges may, in case of such appointment, hold separately at the same time a Dis- trict or Circuit Court in such district, and discharge all the judi- cial duties of a district judge therein ; but no such judge shall hear appeals from the District Court. (Sec. 592.) If the circuit judge and circuit justice are absent from the circuit, or unable to execute the provisions of either of the two preceding sections (591 and 592), or if the district judge so desig- nated is disabled or neglects to hold the courts and transact the business for which he is designated, the district clerk is required to certify the fact to the Chief Justice of the United States, who may thereupon designate and appoint, in the manner aforesaid, tbe judge of any district within such circuit, or within any circuit next contiguous ; and said appointment shall be transmitted to the THE SESSIONS OF DISTRICT COURTS. 207 district clerk, and be acted upon by him as directed in the preced- ing section. (Sec. 593.) The circuit judge, or the circuit justice, or the Chief Justice, as the case may be, may, from time to time, if in his judgment the public interests so require, make a new designation and ap- pointment of any other district judge within the said circuits, for the duties, and with the powers mentioned in the three preceding sections (591, 592 and 593), and may revoke any previous designa- tion and appointment. (Sec. 594.) It is made the duty of the district judge who is designated and appointed under either of the four preceding sections (591, 592, 593, 594), to discharge all the judicial duties for which he is so appointed, during the continuance of such disability, or, in the case of an accumulation of business, during the time for which he is so appointed ; and all the acts and proceedings in the courts held by him, or by or before him, in pursuance of said provisions, have the same effect and validity as if done by or before the dis- trict judge of the said district. (Sec. 595.) It is the duty of every circuit judge, wherever in his judg- ment the public interest so requires, to designate and appoint, in the manner and with the powers provided in section 591, the dis- trict judge of any judicial district within his circuit, to hold a District or Circuit Court in the place or in aid of any other dis- trict judge within the same circuit ; and it is made the duty of the district judge so designated and appointed, to hold the District or Circuit Court as aforesaid, without any other compensation than his regular salary, as established by law, except in the case provided in the next section. (Sec. 596.) Whenever a district judge from another district holds a Dis- trict or Circuit Court in the Southern District of New York, in pursuance of the preceding section, his expenses, not exceeding ten dollars a day, certified by him, shall be paid by the marshal of said district, as a part of the expenses of the court, and shall be al- lowed in the marshal's account. (Sec. 597.) (12.) Vacancy in the Office. — "When the office of judge of any District Court is vacant, all process, pleadings, and proceedings pending before such court shall be continued of course until the next stated term after the appointment and qualification of his successor, except when such first mentioned term is held as pro- vided in the next section. (Sec. 602.) 208 DISTRICT COURTS. When the office of district judge is vacant in any district in a State containing two or more districts, the judge of the other or either of the other districts may hold the District Court, or the Circuit Court in case of the sickness or absence of the other judges thereof, in the district where the vacancy occurs, and dis- charge all the judicial duties of judge of such district, during such vacancy ; and all the acts and proceedings in said court, by or be- fore such judge of any adjoining district, shall have the same effect and validity as if done by or before a judge appointed for such district. (Sec. 603.) The above exhibit presents the outlines of the existing provis- ions of law in relation to the organization, number, powers, juris- diction and sessions of the District Courts of the United States. These courts have no appellate jurisdiction, yet, by reason of their number and the extent of their original jurisdiction, they hear and decide more cases than all the other courts of the United States put together. A comparison of the several dates at which Con- gress has conferred jurisdiction upon then, shows that their juris- diction, especially within the last twenty years, has been greatly enlarged beyond the limits established by the Judiciary Act of 1789. Events in the history and progress of the country have made this enlargement necessary. The courts are the same in the theory of the judicial system of the United States, yet their num- ber has been increased, and the cases to which their jurisdiction extends, cover a much wider field of subjects than at the outset. It ought to be added that, since the enactment of the Kevised Statutes, Congress has supplemented and somewhat modified the law, as therein contained, by special statutes relating to District Courts in particular States. These statutes, being local in their operation, do not apply to the District Courts generally, and hence do not change the general laws applicable to such courts, as set forth in this chapter. CHAPTER II. CIECUIT COURTS. Chapters five, six, seven, and eight of Title XIII of the Re- vised Statutes of the United States contain the chief parts of the law in force on the 1st of December, 1873, relating to the number, organization, jurisdiction, and powers of the Circuit Courts of the United States. Some additions and alterations have been made since the enactment of these statutes. The law, as it now is, will appear in the following Exhibit : SECTION" I. JUDICIAL CIECUTTS. The United States were, by the Judiciary Act of 1789 (1 U. S. Stat, at Large, 73), divided into three judicial circuits, and in each of these circuits a Circuit Court was established, consisting of two justices of the Supreme Court and a judge of a District Court. Now, however, the United States are divided into nine such cir- cuits, in each of which a Circuit Court is established. (Sec. 604.) These circuits are as follows : 1. The first circuit includes the districts of Rhode Island, Massachusetts, New Hampshire, and Maine. 2. The second circuit includes the districts of Vermont, Con- necticut, and New York. 3. The third circuit includes the districts of Pennsylvania, New Jersey, and Delaware. 4. The fourth circuit includes the districts of Maryland, Vir- ginia, West Virginia, North Carolina, and South Carolina. 5. The fifth circuit includes the districts of Georgia, Florida, Alabama, Mississippi, Louisiana, and Texas. 6. The sixth circuit includes the districts of Ohio, Michigan, Kentucky, and Tennessee. 7. The seventh circuit includes the districts of Indiana, Illinois, and Wisconsin. 14 210 CIRCUIT COURTS. 8. The eighth circuit includes the districts of Nebraska, Min- nesota, Iowa, Missouri, Kansas, and Arkansas. 9. The ninth circuit includes the districts of California, Ore- gon, and Nevada. Colorado has been admitted into the Union since the adoption of the Eevised Statutes, and by the Act of June 26th, 1876 (19 TJ. S. Stat, at Large, 61), was constituted into a judicial district and attached to and made a part of the eighth judicial circuit. SECTION II. ORGANIZATION OF CIRCUIT COURTS. 1. Circuit Courts— Where Established and How Held. — Cir- cuit Courts are established as follows : One for the three districts of Alabama, one for the Eastern district of Arkansas, one for the Southern district of Mississippi, and one for each district in the States not herein named. They are designated as the Circuit Courts for the districts for which they are established. (Sec. 608.) These courts are held by the circuit justice, or by the circuit judge of the circuit, or by the district judge of the district sitting alone, or by any two of the judges sitting together. (Sec. 609.) The district judge, when sitting alone and holding a Circuit Court, has the same powers as any other judge when holding the same court. {Robinson v. Satterlee, 3 Saw. 134 ; and In re Cir- cuit Court, 1 Dill. 1.) This is true when a district judge of a given district is, under the authority of law, deputed to hold a Dis- trict Court in another district. He, for the time being, possesses all the powers of the judge appointed for the latter district. {In re Alexis Nicolas, 8 Blatch. 102.) 2. Circuit Justices — The words "circuit justice" and "justice of a circuit," when used in Title XIII of the Revised Statutes, are understood to designate the justice of the Supreme Court who is allotted to any circuit ; and the word " judge," when applied generally to any circuit, is to be understood as including such jus- tice. (Sec. 605.) The Chief Justice and associate justices of the Supreme Court are required to be allotted among the circuits by an order of the court, and a new allotment to be made whenever it becomes neces- ORGANIZATION OF CIRCUIT COURTS. 211 sary or convenient by reason of the alteration of any circuit, or of the new appointment of a Chief Justice or associate justice, or oth- erwise. If a new allotment becomes necessary at any other time than during a term, it is to be made by the Chief Justice and to be binding until the next term and until a new allotment by the court. (Sec. 606.) In Stuart v. Laird, 1 Cranch, 299, it was held that a justice of the Supreme Court may hold a Circuit Court. Contemporaneous construction and practice had put the question at rest. It is made the duty of the Chief Justice, and of each associate 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 allotted during every period of two years. (Sec. 610.) Whenever, by reason of death or resignation, no justice is al- lotted to a circuit, the Chief Justice of the Supreme Court may in writing request the justice of another circuit to hold the Circuit Court in that circuit, and thereupon it is lawful for him to do so until a justice is allotted to such circuit. (Sec. 618.) Whenever a circuit justice deems it advisable, on account of his disability or absence, or of his having been of counsel, or being interested in any case pending in the Circuit Court for any district in his circuit, or of the accumulation of business therein, or for any other cause, that the said court shall be held by the justice of any other circuit, he may, in writing, request the justice of any other circuit to hold the same, during a time to be named in the request ; and such request is to be entered upon the journal of the Circuit Court so to be holden. Thereupon it becomes lawful for the justice so requested to hold such court, and to exercise within and for said district, during the time named in said request, all the powers of the justice of such circuit. (Sec. 617.) It was held, in The Supervisors v. Rogers, 7 Wall. 175, that the power here con- ferred is simply " permissive and discretionary," and that its exer- cise is left to the wisdom of the respective justices. Such are the provisions of the Kevised Statutes relating spec- ially to circuit justices, considered with reference to circuit courts. These provisions apply to them exclusively. 3. Circuit Judges. — The law provides that for each circuit there shall be appointed a circuit judge, who shall have the same power and jurisdiction therein as the justice of the Supreme Court, 212 CIRCUIT COURTS. allotted to the circuit, and shall be entitled to receive a salary at the rate of six thousand dollars a year, payable quarterly on the first days of January, April, July, and October, and that every cir- cuit judge shall reside in his circuit. (Sec. 607.) This section of the Revised Statutes, with the exception of the clause relating to salaries, is founded on the second section of the Act of April 10th, 1869 (16 TJ. S. Stat, at Large, 44), which cre- ated the office of a circuit judge in distinction from that of a cir- cuit justice, and provided for the appointment of such a judge in each judicial circuit. Previously to this act the Circuit Courts were held by the circuit justices and district judges, either sitting together or sitting alone. The act added a new judge, with the same powers as the circuit justice. 4. The Hearing of Cases. — Cases may be heard and tried by each of the judges holding a Circuit Court, sitting apart by direc- tion of the presiding justice or judge, who then designates the business to be done by each ; and Circuit Courts may be held at the same time in the different districts of the same circuit. (Sees. 611, 612.) Any one of the judges or any two of them sitting to- gether may hold the court. (Sec. 609.) These provisions increase the power of the court to dispose of the cases that arise for adjudi- cation. 5. Criminal Terms in the Southern District of New York. — The terms of the Circuit Court for the Southern district of New York, appointed exclusively for the trial and disposal of criminal business, may be held by the circuit judge of the second judicial circuit and the district judges for the Southern and Eastern districts of New York, or by any one of these three judges ; and provision is made that at every such term held by the judge of the Eastern district he shall receive the sum of three hundred dollars, the same to be paid in the manner now prescribed by law for the payment of another district judge while holding court in said district. (Sec. 613.) 6. District Judges in Cases of Appeal or Error. — The law declares that a district judge sitting in a Circuit Court shall not give a vote in any case of appeal or error from his own decision, but may assign the reasons for such decision : Provided, That such ORGANIZATION OF CIRCUIT COURTS. 213 a cause may, by consent of parties, be heard and disposed of by him when holding a Circuit Court sitting alone. When he holds a Circuit Court with either of the other judges, the judgment or decree in such cases shall be rendered in conformity with the opin- ion of the presiding justice or judge. (Sec. 614.) 7. The Transfer of Suits. — When it appears in any civil suit in any Circuit Court that all the judges thereof who are competent by law to try the case are in any way interested therein, or have been of counsel for either party, or are so related or connected with either party as to render it, in the opinion of the court, im- proper for them to sit in such trial, it is made the duty of the court, on the application of either party, to cause the fact to be entered on the records, and to make an order that an authenticated copy thereof, with all the proceedings in the case, shall be forth- with certified to the most convenient Circuit Court in the next adjoining State or in the next adjoining circuit ; and the said court, upon the filing of such record and order with its clerk, is required to take cognizance of and proceed to hear and determine the case, in the same manner as if it had been rightfully and originally commenced therein ; and the proper process for the due execution of the judgment or decree rendered in the cause runs into and may be executed in the district where such judgment or decree was rendered, and also into the district from which the cause was re- moved. (Sec. 615.) The circuit justice or the circuit judge of any circuit may order any civil cause, which is certified into any court of the circuit under the provisions of the preceding section, to be certified back to the court whence it came ; and then the latter court is required to proceed therein as if the cause had not been certified from it : Provided, That if, for any reason, it shall be improper for the judges of such court to try the cause so certified back, it shall be tried by some other judge holding such court, who, in pursuance of the provisions of section 617, is to be requested by the circuit justice to hold the court. (Sec. 616.) The cases of Richardson v. The City of Boston, 1 Curt. 250, of Sawyer v. Oakman, 11 Blatch. 65, and of The Supervisors v. Rogers, 7 Wall. 175, explain these provisions in regard to the transfer of suits. The design of Congress was to provide for the trial of a civil suit by its removal, on the application of either 214 CIRCUIT COURTS. party, to the Circuit Court of another circuit, when for any of the reasons assigned the trial could not properly be had in the circuit where the case arose. 8. Clerks.— A clerk shall be appointed for each Circuit Court by the circuit judge of the circuit, except in cases otherwise pro- vided for by law. (Sec. 619.) This section was, by the Act of June 19th, 1878 (20 U. S. Stat, at Large, 204), amended so as to read as follows : All the Circuit Courts of the United States, shall have the appointment of their own clerks, the circuit and district judges concurring ; and in case of a disagreement between the judges, the appointment shall be made by the associate justice of the Supreme Court allotted to such circuit, except in cases otherwise specially provided for by law. In the district of Kentucky, a clerk of the Circuit Court is required to be appointed at each place of holding the court, in the same manner and subject to tbe same duties and responsibilities which are or may be provided for clerks in independent districts. (Sec. 620.) In the "Western district of North Carolina the circuit and dis- trict judges are required to appoint three clerks, each of whom shall be clerks both of the Circuit and District Courts for the dis- trict, one of them residing and keeping his office at Statesville, another residing and keeping his office at Asheville, and the third residing and keeping his office at Greensborough. (Sec. 621.) In the "Western district of Virginia the circuit and district judges are required to appoint four clerks, each of whom shall be clerks both of the Circuit and District Courts for the district, one of them residing and keeping his office at Lynchburg, another at Abingdon, another at Danville, and a fourth at Harrisonburgh. (Sec. 622.) In the Western district of Wisconsin the circuit and district judges are required to appoint two clerks, each of whom shall be clerks both of the Circuit and District Courts for the district, one of them residing and keeping his office at Madison, and the other at La Crosse. (Sec. 623.) Congress, by the Act of June 4th, 1880 (21 IT. S. Stat, at Large, 155), provided that the clerk of the District Court for the district of Iowa shall be the clerk of the Circuit Court at all places where the same is held in said district, except at Des Moines. (Sec. 4.) ORGANIZATION OF CIRCUIT COURTS. 215 By the Act of June 22d, 1874 (18 U. S. Stat, at Large, 195), it was provided that there shall be appointed for each of the Circuit Courts for the Middle and Northern districts of Alabama, by the circuit judge of the circuit, a clerk who shall take the oath and give the bond required by law of clerks of Circuit Courts, and who shall discharge all the duties and be entitled to all the fees and emoluments prescribed by law for clerks of Circuit Courts. (Sec. 3.) 9. Deputy Clerks.— One or more deputies of any clerk of a Circuit Court may be appointed by such court, on the application of the clerk, and may be removed at the pleasure of judges authorized to make the appointment. In case of the death of the clerk, his deputy or deputies shall, unless removed, continue in office, and perform the duties of the clerk in his name until a clerk is appointed and qualified ; and for the defaults and mis- feasances in office of any such deputy, whether in the lifetime of the clerk or after his death, the clerk and his estate and the sure- ties in his official bond shall be liable ; and his executor or ad- ministrator shall have such remedy for any such defaults or misfeasances committed after his death as the clerk would be entitled to if the same had occurred in his lifetime. (Sec. 624.) In the district of Indiana a deputy clerk of the Circuit Court must be appointed for said court held at New Albany, and a deputy clerk for said court held at Evansville, who are required to reside and keep their offices at said places respectively. Each deputy must keep in his office full records of all actions and pro- ceedings in the court held at the same place, and has the same power to issue all process from the said court that is or may be given to the clerks of other Circuit Courts in like cases. (Sec. 625.) The compensations of deputies of clerks of the Circuit Courts are to be paid by the clerks, respectively, and allowed, in the same manner that other expenses of the clerks' offices are paid and allowed. (Sec. 626.) 10. Commissioners. — Each Circuit Court may appoint, in different parts of the district for which it is held, so many discreet persons as it may deem necessary, who are to be called " Com- missioners of the Circuit Courts," and to possess and exercise 216 CIRCUIT COURTS. the powers which are or may be expressly conferred by law upon Commissioners of Circuit Courts. (Sec. 627.) The law provides that no marshal or deputy marshal of any of the courts of the United States shall hold or exercise the duties of Commissioner of any of the said courts. (Sec. 628.) These Commissioners, though appointed by the Circuit Courts, are not officers of these courts; and the courts do not, by the mere fact of having made the. appointment, acquire any super- visory jurisdiction over them, or over their proceedings. {Ex parte Van Orden, 3 Blatch. 166.) SECTION III. THE JURISDICTION OF CIRCUIT COURTS. 1. Cases of Original Jurisdiction. — Section 629 of the Ke- vised Statutes gives to the Circuit Courts original jurisdiction as follows : (1.) Aliens and Citizens of different States. — Of all suits of a civil nature at common law or in equity, where the matter in dis- pute, exclusive of costs, exceeds the sum or value of five hundred dollars, and an alien is a party, or the suit is between a citizen of the State where it is brought and a citizen of another State : Provided, That no Circuit Court shall have cognizance of any 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 contents if no assign- ment had been made, except in cases of foreign bills of exchange. These provisions of law were considered and explained in chapters YII and IX of Part II, the former referring to contro- versies "between citizens of different States," and the latter to controversies " between a State or the citizens thereof and foreign States, citizens, or subjects." The jurisdiction here conferred enables the Circuit Court to take original cognizance of civil suits in law or equity between citizens of different States, provided that one of them is a citizen of the State in which the suit is brought, and also that the matter in dispute, exclusive of costs, exceeds the sum or value specified, and also of suits in which an alien is a party and the other party is not an alien, provided that the matter THE JURISDICTION OF CIRCUIT COURTS. 217 in dispute is of the requisite amount. The general principles reg- ulating this jurisdiction were set forth in the chapters referred to. (2.) Equity Suits by the United States. — Of all suits in equity, where the matter in dispute, exclusive of costs, exceeds the sum or value of five hundred dollars, and the United States are petitioners. Judge Blatchford, in The United States v. Stiner, 8 Blatch. 544, held that this provision gives jurisdiction to a Circuit Court of a creditor's bill brought by the United States, if the amount involved, exclusive of costs, exceeds the sum specified. (3.) Common Law Suits by the United States. — Of all suits at common law where the United States, or any officer thereof suing under the authority of any act of Congress, are the plaintiffs. In Dugan v. The United States, 3 Wheat. 172, it was held that the United States may sue on a bill of exchange indorsed to the Treasurer of the United States, and that, in all cases of con- tract with the United States, they have a right to sue in their own name, unless a different mode of proceeding is required by law. In The Postmaster- General v. Early, 12 "Wheat. 136, it was held that, under the Act of March 3d, 1815 (3 U. S. Stat, at Large, 245), the Circuit Courts of the United States have jurisdiction of suits by the Postmaster-General upon official bonds of postmasters. In Kohl v. The United States, 1 Otto, 367, it was held that the proper Circuit Court of the United States has jurisdiction of pro- ceedings brought by the United States for the condemnation of land for the use of the General Government. The jurisdiction of the Circuit Courts given by this paragraph of the section covers all suits at common law brought by the United States, either in their own name, or by officers thereof authorized by law to bring the suit. (4.) Suits under Import, Internal Revenue, and Postal Laws. — Of all suits at law or in equity, arising under any act providing for revenue from imports or tonnage, except civil causes of ad- miralty and maritime jurisdiction, and seizures on land or waters not within admiralty and maritime jurisdiction, and except suits for penalties and forfeitures, and of all causes arising under any law providing internal revenue, and of all causes arising under the postal laws. Chief Justice Waite, in Ex parte Smith, 4 Otto, 455, said : " The facts upon which the jurisdiction of the courts of the United 218 CIRCUIT COURTS. States rests, must, in some form, appear in the record of all suits prosecuted before them. * * * In this case * * * it was incumbent on the relators, therefore, to show, in their plead- ings or otherwise, that this action arose under the revenue laws of the United States. This they failed to do. * * * There are no presumptions in favor of the jurisdiction of the courts of the United States." The Circuit Court dismissed the suit, and the Supreme Court, for the reason stated, declined to issue a mandamus to compel it to take jurisdiction. (5.) Suits for Penalties in certain eases. — Of all suits and proceedings for the enforcement of any penalties provided by laws regulating the carriage of passengers in merchant vessels. Chapter six of Title XLYIII of the Revised Statutes of the United States contains a series of such regulations, enforced by penalties : and section 4270 of the chapter provides that the amount of the several penalties thus imposed shall be liens on the vessel violating the regulations specified, and that such vessel shall be libeled therefor in any Circuit or District Court of the United States where such vessel shall arrive. (6.) Proceedings for the condemnation of Property used for Insurrectionary Purposes. — Of all proceedings for the condemna- tion of property taken as prize, in pursuance of section 5308, Title " Insurrection." The section here referred to designates the circumstances under which it is made the duty of the President to cause the property to be seized, confiscated, and condemned ; and the next section gives jurisdiction to the Circuit Courts of the United States in proceedings instituted for this purpose. It was held, in The Union Insurance Company v. The United States, 6 Wall. 759, that this law applies to all property, real or personal, on land or on water, if used in aid of insurrection, with the owner's knowl- edge and consent. (7.) Suits under Slave Trade Laws.— Of all suits arising under any law relating to the slave trade. (The United States v. La Vengeance, 3 Dall. 297 ; The United States v. The Schooner Sally, 2 Cranch, 406 ; The United States v. The Schooner Betsey and Charlotte, 4 Cranch, 443 ; and The Sarah, 8 Wheat. 391.) (8.) Suits on Debentures. Of all suits by the assignee, of any THE JURISDICTION OF CIRCUIT COURTS. 219 debenture for drawback of duties, issued under any law for the collection of duties against the person to whom such debenture was originally granted, or against any indorser thereof, to recover the amount of such debenture. (Sec. 3039.) (9.) Patent and Copyright Suits. — Of all suits at law or in equity arising under the patent or copyright laws of the United States. Mr. Justice Nelson, in Allen v. Blunt, 1 Blatch. 480, held that, in suits arising under the patent laws, the jurisdiction of the Circuit Courts depends upon the subject-matter, and not upon the citizenship of the parties, and that, in such suits, it is not necessary that either the plaintiff or the defendant should be an inhabitant of the State where the suit is brought. If the suit be simply for a violation of contract in respect to a patent, then it does not arise under patent laws; and the requisite citizenship between the parties must be shown, in order to give the Circuit Court juris- diction. {Goodyear v. Day, 1 Blatch. 565.) The suitor is at liberty to seek his remedy in a Circuit Court, either as a court of law or a court of equity. {Perry v. Corning, 7 Blatch. 195, 203.) The general principles that are applicable in patent-right suits are equally so in those founded on copyrights. The jurisdiction of the Circuit Courts in both is co-extensive. (10.) Suits by or against National Banks. — Of all suits by or against any banking association established in the district for which the court is held, under any law providing for national banking associations. National banks, being organized under the laws of the United States, may sue or be sued in the proper Circuit Court, without reference to the parties or the amounts in dispute. {Kennedy v. Gibson, 8 Wall. 498 ; The Union National Bank v. Chicago, 3 Biss. 82 ; The First National Bank v. Douglas, 3 Dill. 298 ; The County of Wilson v. The National Bank, 13 Otto, 770.) The bank must be established in the district for which the court is held. (11.) Suits to Enjoin the Comptroller of the Currency. — Of all suits brought by any banking association, established in the dis- trict for which the court is held, under the provisions of Title "National Banks," to enjoin the Comptroller of the Currency, or any receiver acting under his direction, as provided by said title. 220 CIRCUIT COURTS. The jurisdiction here given is more fully stated in section 5237 of the Revised Statutes. In Van Antwerp v. Eulourd, 7 Blatch. 426, it was held by Judge "Woodruff that the Circuit Court has no jurisdiction to entertain a suit in equity, brought by a private person, to interfere with or control the administra- tion of the duties of the Comptroller of the Currency, and of the Treasurer of the United States, in respect to bonds de- posited with the Treasurer, to secure the redemption of the circulating notes of a national bank. The jurisdiction to en- join the Comptroller is given only when the suit is brought for this purpose by a national bank. (12.) Suits for Injuries Done under United States Laws. — Of all suits brought by any person to recover damages for any in- jury to his person or property on account of any act done by him, under any law of the TJnited States, for the protection or collec- tion of any of the revenues thereof, or to enforce the right of citi- zens of the United States to vote in the several States. (13.) Suits to Recover Offices. — Of all suits to recover posses- sion of any office, except that of elector of President or Vice- President, Representative or Delegate in Congress, or member of a State legislature, authorized by law to be brought, wherein it ap- pears that the sole question touching the title to such office arises out of the denial of the right to vote to any citizen offering to vote, on account of race, color, or previous condition of servitude ; Provided, That such jurisdiction shall extend only so far as to de- termine the rights of the parties to such office by reason of the denial of the right guaranteed by the Constitution of the United States, and secured by any law to enforce the right of citizens of the United States to vote in all the States. (Sec. 2010.) The twenty-third section of the Act of May 31st, 1870 (16 U. S. Stat, at Large, 140), authorized the bringing of such a suit or proceeding in the Circuit or District Court of the United States, of the circuit or district in which the suitor resides. This section is reproduced as section 2010 of the Revised Statutes. {Ex parte Warmouth, 17 "Wall. 64, and Johnson v. Jumel, 3 Woods, 69.) (14.) Suits for the Removal of Officers. — Of all proceedings by writ of quo warranto, prosecuted by any district attorney, for the removal from office of any person holding office, except as a member of Congress or of State legislature, contrary to the pro- THE JURISDICTION OF CIRCUIT COURTS. 221 vision of the third section of the fourteenth article of amendment to the Constitution of the United States. Section 1786 of the Kevised Statutes makes it the duty of the district attorney of the district in which such person holds the office, to institute the quo warranto proceeding for his removal therefrom, in either the Circuit or District Court of the United States for the district, and to prosecute the same to completion. (15.) Suits under Laws to Enforce the Elective Franchise. — Of all suits to recover pecuniary forfeitures under any act to en- force the right of citizens of the United States to vote in the sev- eral States. The acts of Congress relating to the subject here referred to, are the Acts of May 31st, 1870, and of February 28th, 1871 (16 U. S. Stat, at Large, 140, 433), particularly the fifteenth section of the latter act. In The United States v. .Reese, 2 Otto, 214, it was held that the Fifteenth Amendment to the Constitution, while not conferring the right of suffrage, invests citizens of the United States with the right of exemption from discrimination in the ex- ercise of the elective franchise on account of race, color, or previ- ous condition of servitude, and empowers Congress to enforce this right by "appropriate legislation." (Minor v. Happersett, 21 Wall. 162, and The United States v. CruiJcshank, 2 Otto, 542.) (16.) Suits for the Deprivation of Rights. — Of all suits au- thorized by law to be brought by any person to redress the depri- vation, under color of any law, statute, ordinance, regulation, custom, or usage of any State, of any right, privilege or immunity secured by the Constitution of the United States, or of any rights secured by any law providing for equal rights of citizens of the United States, or of all persons within the jurisdiction of the United States. Section 1979 of the Eevised Statutes provides that any person who shall deprive another of any of the rights above set forth, " shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress." Sections 1 977 and 1978 secure to citizens of the United States equal rights under the law, and also such rights in respect to real and personal property. (17.) Suits for Injuries ly Conspirators. — Of all suits author- ized by law to be brought by any person on account of any injury 222 CIRCUIT COURTS. to his person or property, or of the deprivation of any right or privilege of a citizen of the United States, by any act done in fur- therance of any conspiracy mentioned in section 1980, Title " Civil Rights." The section referred to provides that " the party so injured or deprived may have an action for the recovery of damages occa- sioned by such injury or deprivation, against any one or more of the conspirators." (18.) Suits against Persons having knowledge of Conspiracy, dec. — Of all suits authorized by law to be brought against any per- son who, having knowledge that any of the wrongs mentioned in section 1980 are about to be done, and having power to prevent or aid in preventing the same, neglects or refuses so to do, to re- cover damages for any such wrongful act. Section 1981 of the Revised Statutes specifies in detail the " wrongful act " here referred to, and gives the right to recover damages in an action on the case, provided that the suit is com- menced within one year after the cause of action has accrued. (19.) Suits against Officers and Owners of Vessels. — Of all suits and proceedings arising under section 5344, Title " Ckimes," for the punishment of officers and owners of vessels, through whose negligence or misconduct the life of any person is de- stroyed. • The section here mentioned provides that the person charge- able with the offense specified, " shall be deemed guilty of man- slaughter, and upon conviction thereof before any Circuit Court of the United States, shall be sentenced to confinement at hard labor for a period of not more than ten years." {The United States v. Farnham, 2 Blatch. 528 ; The United States v. Warren, 4 McLean, 463, and The United States v. Taylor, 5 McLean, 42.) (20.) Crimes and Offenses. — Exclusive cognizance of all crimes and offenses cognizable under the authority of the United States, except where it is or may be otherwise provided by law, and con- current jurisdiction with the District Courts, of crimes and offenses cognizable therein. This provision is founded on the eleventh section of the Judi- ciary Act of 1789. (1 U. S. Stat, at Large, 73.) Mr. Justice Mil- ler, in The United States v. Holliday, 3 Wall. 407, said : " This provision has distinct reference, in its first clause, to cases of which THE JURISDICTION OF CIRCUIT COURTS. 223 the Circuit Court shall have exclusive jurisdiction, and, in its lat- ter clause, to cases in which they shall have concurrent jurisdiction with the District Courts. The former include all crimes and of- fenses where some statute does not provide the contrary. The latter include all crimes and offenses cognizable in the District Courts." The Federal courts have no common law jurisdiction in crimi- nal cases. Crimes and offenses, cognizable under the authority of the United States, are such, and such only, as are expressly desig- nated by law. Congress must define these crimes, fix their pun- ishment, and confer the jurisdiction to try them. {The United States v. Hudson, 7 Cranch, 32 ; The United States v. Coolidge, 1 Wheat. 415 ; The United States v. Hall, 8 Otto, 343, 345 ; and The United States v. Barney, 5 Blatch. 294.) (21.) Bankruptcy Cases. — Section 630 provides that the Cir- cuit Courts shall have jurisdiction in matters of bankruptcy, to be exercised within the limits and in the manner provided by law. Congress, by the Act of June 7th, 1878 (20 TJ. S. Stat, at Large, 99), which took effect on the first of the following Septem- ber, repealed the National Bankrupt Law, with the provision that cases pending before the act went into effect, should be completed under the law, as if the repealing act had not been passed. Except as to these cases there is now no bankrupt law for the Federal courts to administer. 2. Cases Transferred from District Courts. — When any cause, civil or criminal, of whatever nature, is removed into a Circuit Court, as provided by law, from a District Court, wherein the same is cognizable, on account of the disability of the judge of such District Court, or by reason of his being concerned in inter- est therein, or having been of counsel for either party, or being so related to or connected with either party as to render it improper, in his opinion, for him to sit on the trial thereof, such Circuit Court shall have the same cognizance of such cause, and in like manner, as the said District Court might have, or as said Circuit Court might have, if the same had been originally and lawfully commenced therein, and shall proceed to hear and determine the same accordingly. (Sec. 637.) The provision of law for such transfers is found in sections 587 and 601 of the Revised Statutes. 224 CIRCUIT COURTS. 3. Circuit Courts always Open for Certain Purposes. — The Circuits, as Courts of Equity, shall be deemed always open for the purpose of filing any pleading, of issuing and returning mesne and final process, and of making and directing all interlocutory mo- tions, orders, rules, and other proceedings, preparatory to the hear- ing, upon their merits, of all causes pending therein. And any judge of a Circuit Court may, upon reasonable notice to the par- ties, make, and direct, and award, at chambers or in the clerk's office, and in vacation as well as in term, all such process, commis- sions, orders, rules, and other proceedings, whenever the same are not grantable of course, according to the rules and practice of the court. (Sec. 638.) 4. Removal of Causes from State Courts. — Sections 639-647 of the Revised Statutes contain a series of provisions relating to the removal of causes from State courts to the Circuit Courts of the United States, which will be considered in the second chapter of Part IY. 5. Trial of Issues of Fact. — The trial of issues of fact in the Circuit Courts shall be by jury, except in cases of equity and admiralty and maritime jurisdiction, and except as otherwise pro- vided in proceedings in bankruptcy, and by the next section. (Sec. 648.) The next section provides as follows : Issues of fact in civil cases in any Circuit Court may be tried and determined by the court, without the intervention of a jury, whenever the parties, or their attorneys of record, file with the clerk a stipulation in writ- ing waiving a jury. The finding of the court upon the facts, which may be either general or special, shall have the same effect as the verdict of a jury. (Sec. 649.) In Phillips v. Moore, 10 Otto, 208, it was held that the con- cluding clause of section third of the Act of March 3d, 1875 (18 IT. S. Stat, at Large, 470), does not repeal this provision in respect to trials without the intervention of a jury. It was held in Morgan's Executors v. Gay, 19 Wall. 81, that it is not competent for a Circuit Court to determine, without the intervention of a jury, an issue of fact in the absence of the coun- sel of the party and without a written agreement to waive a jury trial. ' THE JURISDICTION OF CIRCUIT COURTS. 225 In Kearney v. Case, 12 "Wall. 275, it was held that, prior to the Act of March 3d, 1865, parties to an action at law could sub- mit the issues of facts to be tried by the court without a j ury ; that, if they did so, they were bound by the judgment of the court, and could not have a review of that judgment on a writ of ■error in the Supreme Court ; that, to enable parties to have such a review and make a valid agreement to waive a jury trial, the Act of 1865 was passed ; and that, under this act, there can be no review of the ruling of the Circuit Court in such cases, unless the record shows that such an agreement was signed by the parties and filed with the clerk of the court. The fourth section of the act referred to is the basis of section 649 of the Eevised Statutes. (13 U. S. Stat, at Large, 500.) If the finding of facts by the court be general, then only such rulings of the court, in the progress of the trial, as are presented by a bill of exceptions, can be reversed by the Supreme Court. Such a bill, however, cannot be used to bring up the whole testi- mony for review, any more than in a trial by jury. If the finding be special, then it must be a finding of those ultimate facts on which the law determines the rights of the parties, and not a mere report of the evidence. In either case the finding is conclusive as to the facts found. (N 'orris v. Jackson, 9 Wall. 125 ; The Mining Company v. Taylor, 10 Otto, 37; The United States v. Dawson, 11 Otto, 569.) It was held, in The Insurance Company v. Boon, 5 Otto, 117, that, where issues of fact are tried by the court, the finding belongs to the record as fully as does the verdict of a jury, and that where the court omits to file such a finding at the time of entering its judgment, it may do so nunc pro tunc at a subsequent term. 6. Division of Opinion. — The Revised Statutes contain the following provisions in reference to cases in which the judges holding a Circuit Court are divided in opinion : (1.) Division in Civil Suits. — When a final judgment or decree is entered in any civil suit or proceeding before any Circuit Court held by a circuit justice and a circuit judge or a district judge, or by a circuit judge and a district judge, in the trial or hearing whereof any question has occurred upon which the opinions of the judges were opposed, the point upon which they 15 226 CIRCUIT COURTS. so disagreed shall, during the same term, be stated under the direction of the judges, and certified, and such certificate shall be entered of record. (Sec. 652.) Whenever, in any civil suit or proceeding in a Circuit Court held by a circuit justice and a circuit judge or a district judge, or by a circuit judge and a district judge, there occxirs any difference of opinion between the judges as to any matter or thing to be decided, ruled, or ordered by the court, the opinion of the presid- ing justice or judge shall prevail, and be considered the opinion of the court for the time being. (Sec. 650.) (2.) Division in Criminal Cases. — Whenever any question occurs on the trial or hearing of any criminal proceeding before a Circuit Court upon which the judges are divided in opinion, the point upon which they disagree shall, during the same term, upon the request of either party or of their counsel, be stated under the direction of the judges, and certified, under the seal of the court, to the Supreme Court at their next session ; but nothing herein contained shall prevent the cause from proceeding if, in the opinion of the court, further proceedings can be had without prej- udice to the merits. Imprisonment shall not be allowed nor punishment inflicted in any case where the judges of such court are divided in opinion upon the question touching the said im- prisonment or punishment. (Sec. 651.) The design of these provisions is to give the opportunity for a review and determination, by the Supreme Court, in respect to any points concerning which there was a division of opinion be- tween the judges holding a Circuit Court. The rule of law is that such points of disagreement must be distinctly stated and made a part of the record, and that it is not necessary or proper to embody in the statement the whole record of the case. {The United States v. Bailey, 9 Pet. 267 ; Adams v. Jones, 12 Pet. 207; White v. Turk, 12 Pet. 238 ; The United States v. Briggs, 5 How. 208 ; Bavemeyer v. Iowa City, 3 Wall. 294 ; and Nesmith v. Sheldon, 6 How. 41.) 7. The Circuit Court iu Missouri.— The following provisions relate specially to the Circuit Court in Missouri : (1.) Business transferred, how. — The Circuit Court for the Eastern district of Missouri is vested with full and complete juris- THE JURISDICTION OF CIRCUIT COURTS. 227 diction to hear, determine, and dispose of, according to the usual course of judicial proceedings, all suits, causes, and other matters which were pending in the Circuit Court of the United States in and for the districts of Missouri at the time the said Circuit Court for the Eastern district was created, on the 8th of June, 1872, and also all other matters which have since arisen that pertain to said suits or causes, and also to make all orders and issue all processes which said Circuit Court of the United States in and for the dis- tricts of Missouri might have done if it had not ceased to exist ; and said Circuit Court for said Eastern district of Missouri is vested with jurisdiction and authority to do all and singular that may, in the due course of judicial proceedings, pertain to any of said suits, causes, or unfinished business as fully as the said Circuit Court in and for the districts of Missouri might have done if said Circuit Court had not ceased to exist. (Sec. 653.) (2.) The Service of Process. — The service of process, mesne or final, issued out of said Circuit Court of the United States in and for the districts of Missouri, which service was had after the 8th of June, 18-72, and all levies, seizures, and sales made there- under, also all service, seizures, levies, and sales made under any process which issued as out of said court after the said 8th of June, 1872, are made valid, and all said processes are to be deemed returnable to said Circuit Court of the United States in and for the Eastern district of Missouri as of the return day thereof. (Sec. 654.) (3.) Transfer of Cases. — Either of the Circuit Courts for the Eastern or for the Western district of Missouri may order any suit, cause, or other matter pending therein, and commenced prior to the creation of said new court, to be transferred for trial or determination to the other of said Circuit Courts when, in the opinion of the court, said transfer ought to be made ; and the court to which said transfer is made shall have as full authority and jurisdiction over the same, from the date of the certified tran- script of the record is filed, as if the same had been originally pend- ing therein. (Sec. 655.) (4.) Custody of Books, Papers, <&c— The clerk of the Circuit Court for the Eastern district of Missouri, and his successors in office, shall have the custody of all records, books, papers, and property belonging or in any wise appertaining to said Circuit 228 CIRCUIT COURTS. Court of the United States in and for the districts of Missouri, and, as such custodians and the successors of the clerk of said last-named court, they are hereby invested with the same powers and authority with respect thereto as the clerk thereof had during the existence of said last-named Circuit Court. Said Circuit Court for the Eastern district of Missouri is hereby made the successor of said Circuit Court of the United States in and for the districts of Missouri as to all suits, causes, and unfinished busi- ness therein or in anywise pertaining thereto, except as herein- before provided. (Sec. 656.) These provisions are founded on the Act of February 25th, 1873 (17 U. S. Stat, at Large, 476), amendatory of the Act of June 8th, 1872. (17 U. S. Stat, at Large, 282.) 8. The Circuit Court for the Southern District of New York. — The original jurisdiction of the Circuit Court for the Southern district of New York shall not be construed to extend to causes of action arising within the Northern district of said State. (Sec. 657.) In Black v. Thome, 10 Blatch. 66, it was held that the point that a cause of action arose in the Northern district of New York, so as not to be cognizable by the Circuit Court for the Southern district, may be voluntarily waived by a defendant, and is waived where, in a suit in equity, it is not raised in the answer. 9. Writ Powers. — The Revised Statutes provide that the Circuit Courts shall have power to issue writs of scire facias ; that they shall have power to issue all writs not specifically pro- vided for by statute, which may be necessary for the exercise of their jurisdiction, and agreeable to the usages and principles of law ; that they shall have power to issue writs of habeas coitus ; and that the several judges of these courts shall have power to grant writs of habeas corpus for the purpose of inquiry into the cause of restraint of liberty. (Sees. 716, 751, and 752.) The same powers, and in the same terms, are given to the District Courts and to the Supreme Court. Two of these writs are expressly designated ; and power is given to issue all other writs which may be necessary for the exercise of their jurisdiction, and are agreeable to the usages and principles of law. THE JURISDICTION OF CIRCUIT COURTS. 229 10. Naturalization of Aliens.— Title XXX of the Eevised Statutes gives to the Circuit Courts, in common with the other courts mentioned, the power to naturalize aliens, and prescribes rules for the exercise of this power. 11. Appellate Jurisdiction. — The Circuit Courts are appellate courts, as well as courts of original jurisdiction ; and, in respect to their appellate powers, the Eevised Statutes provide as follows : (1.) Cases of Appeal. — From all final decrees of a District Court in causes of equity and of admiralty and maritime jurisdic- tion, except prize causes, where the matter in dispute exceeds the sum or value of fifty dollars, exclusive of costs, an appeal shall be allowed to the Circuit Court next to be held in such . district, and such Circuit Court is required to receive, hear, and determine such appeal. (Sec. 631.) The following cases are referred to as illustrating the judicial construction and application of this statute : The United States v. Nourse, 6 Pet. 470 ; Mordecai v. Lindsay, 19 How. 199 ; Mont- gomery v. Anderson, 21 How. 386 ; The United States v. Woon- son, 1 Gallis. 4 ; McLellan v. The United States, 1 Gallis. 226 ; The United States v. Thirty-seven Barrels, 1 Woods, 19 ; Davis v. The Seneca, Grilp. 34 ; The Lucille, 19 Wall. 73 ; Yeaton v. The United States, 5 Cranch, 281 ; The Roarer, 1 Blatch. 1 ; Harris v. Wheeler, 8 Blatch. 81 ; and The Lottawanna, 20 Wall. 201. (2.) Copies of Proofs and Entries. — In case of an appeal, as provided by the preceding section, copies of the proofs, and of such entries and papers on file as may be necessary on hearing of the appeal, may be certified up to the appellate court. (Sec. 632.) (3.) Writs of Error. — Final judgments of a District Court in civil actions, where the matter in dispute exceeds the sum or value of fifty dollars, exclusive of costs, may be re-examined and re- versed or affirmed in a Circuit Court holden in the same district, upon a writ of error. (Sec. 633.) The cases here provided for are civil actions at common law ; and the judgments rendered therein, if final and if the matter in dispute exceeds the sum specified, are reviewable by the proper Circuit Court upon a writ of error. {Patterson v. The United 230 CIRCUIT COURTS. States, 2 Wheat. 221 ; The Postmaster- General v. Cross, 4 "Wash. 326; The United States v. Fifteen Hogsheads of Brandy, 5 Blatch. 106 ; Wheaton v. The United States, 8 Blatch. 474 ; Tlie United States v. The Brilliants, 10 Blatch. 221 ; and Locke v. The United States, 2 Cliff. 574.) (4.) The Circuit Court in Alabama. — The Circuit Court in and for the three districts of Alabama shall exercise appellate and revisory jurisdiction of the decrees and judgments of the District Courts for the said districts under the laws conferring and regu- lating the jurisdiction, powers, and practice of Circuit Courts in cases removed into such courts by appeal or writ of error. (Sec. 634.) This section has been superseded and repealed by the Act of June 22d, 1874 (18 U. S. Stat, at Large, 195), entitled, "An Act relating to Circuit Courts of the United States for the districts of Alabama." (5.) Limitation of Time. — ~No judgment, decree, or order of a District Court shall be reviewed by a Circuit Court, on writ of error or appeal, unless the writ of error is sued out, or the appeal is taken, within one year after the entry of such judgment, decree, or order : Provided, That where the party entitled to prosecute a writ of error, or to take an appeal, is an infant, or non compos mentis, or imprisoned, such writ of error may be prosecuted, or 6uch appeal may be taken, within one year after the entry of the judgment, decree, or order, exclusive of the term of such disabil- ity. (Sec. 635.) (6.) The Revisory Judgment or Decree. — A Circuit Court may affirm, modify, or reverse any judgment, decree, or order of a District Court brought before it for review, or may direct such judgment, decree, or order to be rendered, or such further pro- ceedings to be had by the District Court, as the justice of the case may require. (Sec. 636. Semmes v. The United States, 1 Otto, 21, and The United States v. Sawyer, 1 Gallis. 86.) SESSIONS OF CIRCUIT COURTS. 231 SECTION IV. SESSIONS OF CIRCUIT COURTS. 1. Regular Terms.— The regular terms of the Circuit Courts are directed to be held each year, at specified times and places, with the provision that when any of the dates fixed happens to fall on Sunday, the term shall commence on the following day. The regulations of law on this subject are contained in section 658 of the Revised Statutes, which, in respect to some of these courts, has been amended by subsequent legislation. 2. Recognizances to a Certain Term in the Southern Dis- trict of New York. — All recognizances and bail-bonds taken in ■criminal cases for an appearance at a Circuit Court in the South- ern district of New York, conditioned upon an appearance at the next one of the terms appointed by the Act of February 7th, 1873, shall be valid. (Sec. 659, and sec. 2 of the act here referred to ; 17 U. S. Stat, at Large, 423.) 3. Change of Terms. — No action, suit, proceeding, or pro- cess in any Circuit Court shall abate or be rendered invalid, by reason of any act changing the time of holding such court ; but the same shall be deemed returnable to, pending, and triable in ■the terms established next after the return day thereof. (Sec. -660.) 4. Special Sessions. — Any Circuit Court may, at its own dis- cretion, or at the discretion of the Supreme Court, hold special sessions for the trial of criminal causes. (Sec. 661.) The Supreme Court, or, when that court is not sitting, a circuit justice or circuit judge, together with the judge of the proper district, may direct special sessions of a Circuit Court to be held, for the trial of criminal causes, at any convenient place within the district nearer to the place where the offenses are said to be committed than the place appointed by law for the stated sessions. The clerk of such court shall, at least thirty days before the com- mencement of such special session, cause the time and place for holding it to be notified, for at least three weeks consecutively, in one or more of the newspapers published nearest to the place 232 CIRCUIT COURTS. where it is to be held. All process, writs, and recognizances re- specting juries, witnesses, bail, or otherwise, which relate to the cases to be tried at such special sessions, shall be considered as be- longing to such sessions, in the same manner as if they had been issued or taken in reference thereto. Any such session may be ad- journed from time to time to any time previous to the next stated term of the court ; and all business depending for trial at any spec- ial session shall, at the close thereof, be considered as removed to the next stated term. (Sec. 662.) In the districts of California, Oregon, and Nevada, the circuit justice or circuit judge may appoint special sessions of the Circuit Courts, to be held at the places where the regular sessions are held, by an order under his hand and seal, directed to the marshal and clerk of such court, at least fifteen days before the time fixed for the commencement of such special sessions. Said order shall be published by the marshal in one or more of the newspapers within the district where such sessions are to be held. (Sec. 664.) 5. Adjourned Terms. — The Circuit Courts for the several districts of Missouri may, at any time, order adjourned terms- thereof. In the Eastern district a copy of the order shall be posted on the door of the court room, and shall be advertised in some newspaper printed in Saint Louis, and in the Western dis- trict a copy of the order shall be posted on the door of the court room, and 6hall be advertised in some newspaper printed in the city of Jefferson, at least twenty days before the adjourned term is held. At such adjourned term any business may be transacted which might be transacted at a regular term. (Sec. 663.) 6. Special Terms. — In the districts of Kentucky and In- diana, the district judge, and, in his absence, the circuit justice or circuit judge, may, by a written order to the clerk of the Circuit Court, appoint a special term of such court ; and by said order the judge may prescribe the duties of the officers of the court in sum- moning juries and in the performance of other acts necessary for the holding of such special term ; or the court may, by its order, after it is opened, prescribe the duties of its officers, and the mode of proceeding, and any of the details thereof. Notice of such special term shall be given by the clerk by posting a copy of said order on the front door of the court house where the court is to be held. SESSIONS OF CIRCUIT COURTS. 233 and by publishing the same in one or more newspapers in the same place. (See. 665.) In each of the districts of Tennessee, the judges of the Circuit Court may appoint special terms thereof, to be held at the place where the regular terms are held ; and notice of such special term shall be published, for four consecutive weeks, in at least one newspaper printed at the place where the court is to be held. (Sec. 666.) In each of the districts of North Carolina the Circuit Court may order special terms thereof to be held at such times and places in said district as the court may designate ; Provided, That no special term of the Circuit Court for either district shall be appointed, except by and with the concurrence and consent of the circuit judge. (Sec. 667.) In each of the districts of Yirginia and Wisconsin, the Circuit Court may order special terms, and direct a grand or petit jury, or both, to attend the same, by an order, to be entered of record twenty days before the day on which such special term is to con- vene ; Provided, That no special term of such Circuit Courts shall be appointed in any of the said districts, except by and with the concurrence and consent of the circuit judge. (Sec. 668.) In the districts not mentioned in the five preceding sections (sees. 664, 665, 666,, 667, and 668), the presiding judge of any Cir- cuit Court may appoint special sessions thereof, to be held at the places where the regular sessions are held. (Sec. 669.) 7. Business at Special Terms. — At any special term of a Circuit Court in any district in Indiana, Kentucky, Missouri, North Carolina, Yirginia and Wisconsin, any business may be transacted which might be transacted at any regular term of such court. At any special term of a Circuit Court in any other dis- trict, it shall be competent for the court to entertain jurisdiction of, and to hear and decide all cases in equity, cases in error or on appeal, issues of law, motions in arrest of judgment, motion for a new trial, and all other motions, and to award executions and other final process, and to do and transact all other business, and direct all other proceedings in all causes pending in the Circuit Court, except trying any cause by a jury, in the same way and with the same effect as the same might be done at any regular ses- sion of said court. (Sec. 670.) 234 CIRCUIT COURTS. 8. Adjournment in the Absence of the Judges. — If neither of the judges of a Circuit Court is present to open any session, the marshal may adjourn the court from day to day, until a judge is present ; Provided, That if neither of them attends before the close of the fourth day after the time appointed for the com- mencement of the session, the marshal may adjourn the court to the next regular term. (Sec. 671.) If neither of the judges of a Circuit Court be present to open and adjourn any regular, or adjourned, or special session, either of them may, by a written order, directed alternatively to the mar- shal, and, in his absence, to the clerk, adjourn the court from time to time, as the case may require, to any time before the next regu- lar term. (Sec. 672.) SECTION Y. SUPPLEMENTARY LEGISLATION. Congress, since the enactment of the Revised. Statutes, has passed several acts relating to the Circuit Courts of the United States. Some of these acts are general and apply to all the courts. Others are applicable only to Circuit Courts in particular States. Tho former class embraces the following acts : 1. The Act of March 3d, 1875 (18 U. S. Stat, at Large, 470). — This act, the most important of the whole series, relates to the jurisdiction of Circuit Courts, to the removal of causes from State courts, and to other purposes. That part of the act which relates to the removal of causes from State courts, will be consid- ered in the second chapter of Part 1Y. The other provisions of the act are as follows : (1.) Original Jurisdiction. — Section one of the act provides as follows: (a.) Civil Jurisdiction. — The Circuit Courts of the United States shall have original cognizance, concurrent with the courts of the several States, of all suits of a civil nature, at common law or in equity, where the matter in dispute exceeds, exclusive of costs, the sum or value of five hundred dollars, and arising under the Constitution or laws of the United States, or treaties made or SUPPLEMENTARY LEGISLATION. 235 which shall be made under their authority, or in which the United States shall be plaintiffs or petitioners, or in which there shall be a controversy between citizens of different States, or a controversy between citizens of the same State, claiming lands under grants of different States, or a controversy between citizens of a State and foreign States, citizens, or subjects. These recitals, as to the jurisdiction here conferred upon the Circuit Courts, follow, so far as they go, the language of the Con- stitution itself. They were considered in Part II, relating to the extent of the judicial power of the United States. They give no jurisdiction to Circuit Courts in controversies between two or more States, or between a State and citizens of another State, or between a State of the Union and a foreign State. But they do extend the jurisdiction of these courts, subject to the jurisdictional sum named, to all suits arising under the Constitution, laws, or treaties of the United States, and in this respect greatly enlarge that jurisdiction, while embracing a portion of the jurisdiction that had been previously granted. The jurisdiction is declared to be " concurrent with the courts of the several States ; " that is to say, Congress does not exclude the concurrent jurisdiction of State courts, but leaves the question to be determined by State laws. This section of the act appends to the jurisdiction two qualifi- cations : 1. That no person shall be arrested in one district for trial in another, in any civil action before a Circuit or District Court, and that no civil suit shall be brought before either of said courts against any person, by any original process or proceeding, in any other district than that whereof he is an inhabitant, or in which he shall be found at the time of serving such process or commencing such proceeding, except as hereinafter provided. 2. That no Circuit or District Court shall have cognizance 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 promissory notes negotiable by the law merchant, and bills of exchange. The reader is referred to Part II, chapter 7, for an explanation of this qualification in respect to assignees. The eighth section of the act relates to absent defendants in certain specified suits, and provides as follows : " That when in any suit, commenced in any Circuit Court of the United States, to enforce any legal or equitable lien upon, or claim 236 CIRCUIT COURTS. to, or to remove any incumbrance or lien or cloud upon the title to real or personal property within the district where such suit is brought, one or more of the defendants therein shall not be an inhabitant of, or found within, the said district, or shall not volun- tarily appear thereto, it shall be lawful for the court to make an order directing such absent defendant or defendants to appear, plead, answer, or demur, by a day certain to be designated, which order shall be served on such absent defendant or defendants, if practicable, wherever found, and also upon the person or persons in possession or charge of said property, if any there be ; " Or where such personal service upon such absent defendant or defendants is not practicable, such order shall be published in such manner as the court may direct, not less than once a week for six consecutive weeks ; " And in case such absent defendants shall not appear, plead, answer, or demur within the time so limited, or within some fur- ther time to be allowed by the court in its discretion, and upon proof of the service or publication of said order, and of the per- formance of the directions contained in the same, it shall be lawful for the court to entertain jurisdiction, and proaeed to the hearing and adjudication of such suit in the same manner as if such absent defendant had been served with process within the said district ; " But said adjudication shall, as regards said absent defendant or defendants without appearance, affect only the property which shall have been the subject of the suit and under the jurisdiction of the court, within such district ; " And when a part of said real or personal property against which such proceeding shall be taken shall be within another dis- trict, but within the same State, said suit may be brought in either district in said State ; " Provided, however, That any defendant or defendants, not actually personally notified as above provided, may, at any time within one year after final judgment in any suit mentioned in this section, enter his appearance in said suit in said Circuit Court, and thereupon the said court shall make an order setting aside the judgment therein, and permitting said defendant or defendants to plead therein on payment by him or them of such costs as the court shall deem just ; and thereupon said suit shall be proceeded with to final judgment according to law." The ninth section of the same act relates to the death of a party to a final judgment, and provides as follows : " That whenever either party to a final judgment or decree which has been or shall be rendered in any Circuit Court, has died or shall die before the time allowed for taking an appeal or bring- ing a writ of error has expired, it shall not be necessary to revive the suit by any formal proceedings aforesaid. The representative SUPPLEMENTARY LEGISLATION. 237 of such deceased party may file in the office of the clerk of such Circuit Court a duly certified copy of his appointment, and there- upon may enter an appeal or bring writ of error as the party he represents might have done. If the party in whose favor such judgment or decree is rendered has died before appeal taken or writ of error brought, notice to his representatives shall be given from the Supreme Court, as provided in case of the death of a party after appeal taken or writ of error brought." (b.) Criminal Jurisdiction. — The Circuit Courts shall have exclusive cognizance of all crimes and offenses cognizable under the authority of the United States, except as otherwise provided by law, and concurrent jurisdiction with the District Courts of all crimes and offenses cognizable therein. This is simply a re-enactment of the twentieth paragraph of section 629 of the Revised Statutes. The Constitution, in article 3, section 2, provides that the trial of crimes shall be in the State where the crimes were committed, and that if the crimes were not committed within any State, the trial shall then be in such place or places as Congress may by law have directed. The Revised Statutes contain the following provisions in re- spect to the trial of crimes : 1. That the trial of offenses punisha- ble with death shall be had in the county where the offense was committed, where that can be done without great inconvenience. 2. That the trial of all offenses committed upon the high seas or elsewhere, out of the jurisdiction of any particular State or dis- trict, shall be in the district where the offender is found, or into which he is first brought. 3. That when any offense against the United States is begun in one judicial circuit and completed in another, it shall be deemed to have been committed in either, and may be dealt with, inquired of, tried, determined, and punished in either district in the same manner as if it had been actually and wholly committed therein. (Sees. 729-731.) (2.) Appellate Jurisdiction. — The first section of the act declares that the Circuit Courts shall have appellate jurisdiction from the District Courts under the regulations and restrictions prescribed by law. This makes no change in the state of the law as to the appellate jurisdiction of these courts. 2. The Act of March 1st, 1875 (18 U. S. Stat, at Large, 335).— The first section of this act provides that all persons within the juris- 238 CIRCUIT COURTS. diction of the United States shall be entitled to the full and equal enjoyment of the accommodations, advantages, facilities, and priv- ileges of inns, public conveyances on land and water, theatres, and other places of public amusement, subject only to the conditions and limitations established by law, and applicable alike to citizens of every race and color, regardless of any previous condition of servitude. The second section declares that any person who violates any of the provisions of the first section shall, for every such offense, forfeit and pay the sum of five hundred dollars to the person ag : grieved thereby, to be recovered in an action of debt, with full costs, and also be deemed guilty of a misdemeanor, and, upon conviction, be fined not less than five hundred nor more than one thousand dollars, or be imprisoned not less than thirty days nor more than one year : Provided, That all persons may elect to sue for the penalty aforesaid or to proceed under their rights at com- mon law and by State statutes, and that, having so elected to pro- ceed in one mode or the other, their right to proceed in the other jurisdiction shall be barred, which proviso shall not apply to crim- inal proceedings, either under the act or the criminal law of any State : And provided further, That a judgment for the penalty in favor of the party aggrieved, or a judgment upon indictment, shall be a bar to either prosecution respectively. The third section gives to the District and Circuit Courts of the United States, exclusively of the courts of the several States, cognizance of all crimes and offenses against, and violations of, the provisions of the act, and declares that actions for the penalty given by the second section may be prosecuted in the Territorial, District, and Circuit Courts of the United States, wherever the defendant may be found, without regard to the other party. The fourth section provides that no citizen possessing all other qualifications which are or may be prescribed by law, shall be dis- qualified for service as grand or petit juror in any court of the United States, or of any State, on account of race, color, or pre- vious condition of servitude, and that any officer or other person charged with any duty in the selection or summoning of jurors who shall exclude or fail to summon any citizen for the cause aforesaid shall, on conviction thereof, be deemed guilty of a mis- demeanor, and be fined not more than five thousand dollars. Such are the provisions of this act, and by its express terms, SUPPLEMENTARY LEGISLATION. 239 the Circuit Courts of the United States have jurisdiction of all cases arising under it. 3. The Act of February 22d, 1875 (18 U. S. Stat, at Large, 333). — This act contains a series of provisions relating to clerks of courts, marshals, district attorneys, &c, and, in the fourth section, declares that the Circuit Courts of the United States, for the pur- poses of this act, shall have power to award the writ of mandamus, upon motion of the Attorney General or the District Attorney of the United States, to any officer thereof, to compel him to make the returns and perform the duties in this act required. 4. The Act of February 16th, 1875 (18 U. S. Stat, at Large, 315). — This act provides as follows : "Sec. 1. That the Circuit Courts of the United States, in deciding causes of admiralty and maritime jurisdiction on the instance-side of the court, shall hnd the facts and the conclusions of law upon which it renders its judgments or decrees, and shall state the facts and conclusions of law separately. And, in finding the facts as before provided, said court may, upon the consent of the parties who shall have appeared and put any matter of fact in issue, and subject to such general rules in the premises as shall be made and provided from time to time, impanel a jury of not less than five and not more than twelve persons, to whom shall be submitted the issues of fact in such cause, under the direction of the court, as in cases at common law. And the finding of such jury, unless set aside for lawful cause, shall be entered of record, and stand as the finding of the court, upon which judgment shall be entered according to law. The review of the judgments and decrees entered upon such findings by the Supreme Court, upon appeal, shall be limited to a determination of the questions of law arising upon the record, and to such rulings of the Circuit Court, excepted to at the time, as may be presented by a bill of excep- tions, prepared as in actions at law." " Sec. 2. That said courts, when sitting in equity for the trial of patent causes, may impanel a jury of not less than five and not more than twelve persons, subject to such general rules in the premises as may, from time to time, be made by the Supreme Court, and submit to them such questions of fact arising in such cause, as such Circuit Court shall deem expedient ; and the ver- dict of such jury shall be treated and proceeded upon in the same manner and with the same effect as in the case of issues sent from chancery to a court of law and returned with such findings." These two sections, in the cases specified, and subject to the conditions named, authorize the submission of issues of fact to a 240 CIRCUIT COURTS. jury. The third section increases the jurisdictional sum from two thousand to five thousand dollars, exclusive of costs, as the condi- tion of a review of the judgments and decrees of Circuit Courts by the Supreme Court, in all cases in which the former was the sum previously established by law. 5. The Act of March 3d, 1879 (20 U. S. Stat, at Large, 354). — This act contains a series of provisions, conferring appellate jurisdiction upon the Circuit Courts in certain criminal cases, as follows : " Sec. 1. The Circuit Court for each judicial district shall have jurisdiction of writs of error in all criminal cases tried before the District Court, where the sentence is imprisonment, or fine and imprisonment, or where, if a fine only, the fine shall exceed the sum of three hundred dollars ; and in such case a respondent, feel- ing himself aggrieved by a decision of a District Court, may ex- cept to the opinion of the court, and tender his bill of exceptions, which shall be settled and allowed according to the truth, and signed by the judge, and it shall be a part of the record of the case." " Sec. 2. Within one year next after the end of the term at which such sentence shall be pronounced, and not after, the re- spondent may petition for a writ of error from the judgment of the District Court in the cases named in the preceding section, which petition shall be presented to the circuit judge or circuit justice in term or vacation, who, on consideration of the impor- tance and difficulty of the questions presented in the record, may allow such writ of error, and may order that such writ shall oper- ate as a stay of proceedings under the sentence ; but the allowance of such writ shall not so operate without such order. The judge or justice allowing such writ of error shall take a bond with suffi- cient sureties that the same shall be prosecuted to effect, and that the respondent shall abide the judgment of the Circuit Court thereom And if the writ shall be allowed to operate as a stay of proceedings under the sentence, bail may in like manner be taken for the appearance of the respondent, at the term of the Circuit Court to which such writ of error shall be returnable, and that he will not depart without leave of court." " Sec. 3. Such writ of error so allowed shall be returnable to the next regular term of the Circuit Court for the district, and shall be served on the district attorney of the United States for such district. The Circuit Court may advance all such writs of error on its docket in order that speedy justice may be done. And in case of an affirmance of the judgment of the District Court, the Circuit Court shall proceed to pronounce final sentence, and SUPPLEMENTARY LEGISLATION. 241 to award execution thereon ; but if such judgment shall be re- versed, the Circuit Court may proceed with the trial of said cause de novo, or remand the same to the District Court for further pro- ceedings." This act modified the previous policy of Congress in respect to the judgments of District Courts in criminal cases. Such judg- ments, until after the passage of the act, were not reviewable in any case by Circuit Courts. The act gives to the latter courts the power of appellate review by writ of error, in the cases and in the manner specified. The five acts above stated constitute a body of legislation in re- spect to the powers and jurisdiction of Circuit Courts, general in its application, which Congress has added since the enactment of the Revised Statutes. There are many other acts passed by Con- gress since the adoption of these Statutes, relating to the organiza- tion, or powers, or both, of Circuit Courts in particular States, and hence not general in their application. The author has not thought it necessary or expedient to incorporate these acts into this volume. The reader will find them in the United States Stat- utes at Large, vols, 18, 19, 20, and 21, or more conveniently in The Supplement to the Revised Statutes, vol. 1, by Judge Rich- ardson, of the Court of Claims, giving the legislation of 1874-1881, by the 43d, 44th, 45th, and 46th Congresses. 16 CHAPTER III. THE SUPREME COURT. 1. Constitutional Proyision. — The Supreme Court of the United States is the only Federal court that is expressly desig- nated and established by the Constitution. This instrument hav- ing provided that " the judicial power of the United States shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish," and having also specified the cases and controversies, to which this power shall extend, proceeds to declare that " in all cases affecting ambassa- dors, other public ministers, and consuls, and those in which a State shall be party, the Supreme Court shall have original juris- diction," and that " in all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions and under such regulations as the Obngress shall make." 2. Meaning of Jurisdiction. — The word "jurisdiction," as here used, was, in Rhode Island v. Massachusetts, 12 Pet. 657, 718, construed to mean " the power to hear and determine the subject-matter in controversy between parties to a suit, to adjudi- cate or exercise any judicial power over them." This jurisdiction is the authority of the Supreme Court to take cognizance of and decide any of the cases or controversies enumerated in the Consti- tution, when presented to the court as subjects of litigation be- tween parties. The authority is limited to the cases and contro- versies specified. 3. Forms of Jurisdiction. — The jurisdiction is to be exer- cised, either in the form of original jurisdiction, which takes cog- nizance of and determines the case or controversy in the first in- stance, or in that of appellate jurisdiction, which reviews, and corrects, or affirms the decisions rendered by inferior courts. Both forms — the original in the cases specified, and the appellate in all THE ORGANIZATION OF THE COURT. 243 the other cases mentioned — are by the Constitution assigned to the Supreme Court. The result is that the jurisdiction of this court extends, in one or the other form, to all the cases and controversies enumerated in the third article of the Constitution, subject, in the appellate form, to such exceptions and regulations as Congress may see fit to establish. The Supreme Court is hence v the final authority in all the cases that come within the judicial cognizance of the United States. The decision of this court in a particular case is the end of litigation in respect to that case. 4. Laws of Congress. — Congress, beginning with the Judi- ciary Act of 1789, has, from time to time, passed laws for the purpose of carrying into effect the provisions of the Constitution in respect to the Supreme Court. These laws are mainly found in chapters nine, ten, and eleven, of Title XIII of the Revised Stat- utes of the United States, except as they have been supplemented and amended by other laws passed since the enactment of these Statutes. The design of this chapter is to set before the reader the Supreme Court as existing and acting under the Constitution and laws of the United States. SECTION I. THE OEGANIZATION OF THE COTJET. The organization of the Supreme Court is the special subject of chapter nine of Title XIII of the Revised Statutes of the United States. The following are the laws therein contained : 1. Number of Justices. — The Supreme Court of the United States shall consist of a Chief Justice of the United States, and eight associate justices, any six of whom shall constitute a quo- rum. (Sec. 673.) 2. Precedence of the Associate Justices.— The associate justices shall have precedence according to the dates of their com- missions, or, when the commissions of two or more of them bear the same date, according to their ages. (Sec. 674.) 244 THE SUPREME COURT. 3. Yacancy in the Office of Chief Justice. — 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 first in precedence, until such disabil- ity is removed, or another Chief Justice is appointed and duly qualified. This provision shall apply to every associate justice who succeeds to the office of Chief Justice. (Sec. 675.) 4. Salaries of Judges. — The Chief Justice of the Supreme Court of the United States shall receive the sum of ten thousand five hundred dollars a year, and the justices thereof shall receive the sum of ten thousand dollars a year each, to be paid monthly. (Sec. 676.) The judges of the Supreme Court, like the judges of all the other courts of the United States, are forbidden to exercise the profession or employment of counsel or attorney, or to be engaged in the practice of law, while holding their offices ; and if any of them resigns his office, after having held his commission as such for at least ten years, and having attained the age of seventy years, he is entitled, during the residue of his natural life, to receive the same salary which was by law payable to him at the time of his resignation. (Sees. 713, 714.) 5. Officers of the Court. — The Supreme Court shall have power to appoint a clerk and a marshal for said court, and a re- porter of its decisions. (Sec. 677.) One or more deputies of the clerk of the Supreme Court may be appointed by the court on the application of the clerk, and may be removed at the pleasure of the court. In case of the death of the clerk, his deputy or deputies shall, unless removed, continue in office and perform the duties of the clerk in his name, until a clerk is appointed and qualified ; and for the defaults or misfeas- ances in office of any such deputy, whether in the life-time of the clerk or after his death, the clerk, and his estate, and the sureties in his official bond, shall be liable ; and his executor or administra- tor shall have such remedy for any such defaults or misfeasances committed after his death as the clerk would be entitled to if the same had occurred in his life-time. (Sec. 678.) The records and proceedings of the Court of Appeals, appointed previous to the adoption of the present Constitution, shall oe kept THE ORGANIZATION OF THE COURT. 245 in the office of the clerk of the Supreme Court, who shall give copies thereof to any person requiring and paying for them in the manner provided by law for giving copies of the records and proceedings of the Supreme Court; and such copies shall have like faith and credit with all other proceedings of said court. (Sec. 679.) The marshal is entitled to receive a salary at the rate of three thousand five hundred dollars a year. He shall attend the court at its sessions ; shall serve and execute all process and orders issuing from it, or made by the Chief Justice or an associate justice in pursuance of law; and shall take charge of all property of the United States used by the court or its members. With the ap- proval of the Chief Justice he may appoint assistants and messen- gers to attend the court, with the compensation allowed to officers of the House of Kepresentatives of similar grade. (Sec. 680.) 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 ; and, within the same time, shall deliver three hundred copies of the volumes of said reports to the Secretary of the Interior. And he shall, in any year when he is so directed by the court, cause to be printed and published a sec- ond volume of said decisions, of which he shall deliver, in like manner and time, three hundred copies. (Sec. 681.) The reporter shall be entitled to receive from the Treasury an annual salary of twenty-five hundred dollars, when his report of said decisions constitutes one volume, and an additional sum of fifteen hundred dollars when, by direction of the court, he causes to be printed and published, in any year, a second volume. But said salary and compensation, respectively, shall be paid only when he causes such decisions to be printed, published, and delivered within the time and in the manner prescribed by law, and upon the condition that the volumes of said reports shall be sold by him to the public for a price not exceeding five dollars a volume. (Sec. 682.) Congress, by the Act of August 5th, 1882, changed this law, making the salary of the reporter four thousand five hundred dollars when he publishes a single volume in any year, adding to it twelve hundred dollars when a second volume is published in any year, and providing that the volumes of reports shall be fur- 246 THE SUPREME COURT. nished to the public by the reporter at a sum not exceeding two dollars per volume. Provision is made for the distribution of the three hundred copies of the reports of the decisions of the Supreme Court which the reporter is required to deliver to the Secretary of the Interior. (Sec. 683.) SECTION II. SESSIONS OF THE COURT. Chapter ten of Title XIII of the Eevised Statutes contains the following provisions relating to the sessions of the Supreme Court : 1. Terms of the Court. — The Supreme Court shall hold, at the seat of Government, one term annually, commencing on the second Monday in October, and such adjourned or special terms as it may find necessary for the dispatch of business ; and suits, pro- ceedings, recognizances, and processes pending in or returnable to said court shall be tried, heard, and proceeded with as if the time of holding said sessions had not been hereby altered. (Sec. 684.) 2. Adjournments for Want of a Quorum. — If, at any session of the Supreme Court, a quorum does not attend on the day ap- pointed for holding it, the justices who do attend may adjourn the court from day to day for twenty days after said appointed time, unless there be sooner a quorum. If a quorum does not attend within said twenty days, the business of the court shall be con- tinued over till the next appointed session ; and if, during a term, after a quorum has assembled, less than that number attend on any day, the justices attending may adjourn the court from day to day until there is a quorum, or may adjourn without day. (Sec. 685.) 3. Preparatory Orders made by Less than a Quorum. — The justices attending at any term when less than a quorum is present, may, within the twenty days mentioned in the preceding section, make all necessary orders touching any suit, proceeding, or process depending in or returned to the court, preparatory to the hearing, trial, or decision thereof. (Sec. 686.) ORIGINAL JURISDICTION OF THE COURT. 247 SECTION III. ORIGINAL JURISDICTION OF THE COURT. 1. The Constitutional Provision. — As already stated, the Constitution declares that, "in all cases affecting ambassadors, other public ministers, and consuls, and those in which a State shall be party, the Supreme Court shall have original jurisdiction." The main function of this court consists in its appellate jurisdic- tion; yet these cases were by the framers of the Constitution deemed of sufficient importance to be considered by the Supreme Court in the first instance. Congress has no power to abridge or exclude the original jurisdiction of the court in these cases, since it is a direct and express grant of the Constitution itself. The Constitution says that " the Supreme Court shall have " this juris- diction. The court cannot, of course, create itself, or provide for its own organization, without the legislation of Congress and the action of the President and Senate in the appointment of judges ; but, being created and organized under the authority of law, then it is ipso facto, independently of the will of Congress, and even against its will, invested with the original jurisdiction granted to it in the Constitution. Chief Justice Taney, having referred, in Kentucky v. Denni- wn, 24 How. 66, 98, to the Judiciary Act of 1789, and to the precedents established by the Supreme Court under this act, pro- ceeded to say : " The cases referred to leave no question open to controversy, as to the jurisdiction of the court. They show that it has been the established doctrine ever since the Act of 1789, that, in all cases where original jurisdiction is given by the Constitution, this court has authority to exercise it without any further act of Congress to regulate its process or confer jurisdiction, and that the court may regulate and mould the process it uses in such manner as in its judgment will best promote the purposes of justice." The Judiciary Act of 1789 did not prescribe any particular process or mode of proceeding for the exercise of original jurisdic- tion by the Supreme Court in the cases assigned to it by the Con- stitution; and the court hence established its own process and 248 THE SUPREME COURT. mode, assuming that it had the right to do so, as the means of securing the ends for which the jurisdiction was conferred. It did not deny the authority of Congress to prescribe a process and mode ; but, in the omission of such legislation by Congress, it claimed the right to exercise the jurisdiction in such manner as in its judgment would " best promote the purposes of justice." The jurisdiction was not defeated by the failure of Congress to legislate on the subject. {Georgia v. Brailsford, 2 Dall. 402 ; Chisholm v. Georgia, 2 Dall. 419 ; Grayson v. Virginia, 3 Dall. 320 ; Madrazo v. The Governor of Georgia, 1 Pet. 110 ; and New Jersey v. New York, 5 Pet. 284.) 2. Limitation of the Jurisdiction. — The question whether Congress can extend the original jurisdiction of the Supreme Court to other cases than those expressly specified in the Consti- tution, was, in Marbury v. Madison, 1 Cranch, 137, thoroughly considered by the Supreme Court, and answered in the negative. The application in that case was for a writ of mandamus, com- manding the Secretary of State to make delivery of a certain paper to the party claiming it. The court, regarding the writ asked for in this case as an exercise of original jurisdiction, not within the limits of such jurisdiction prescribed by the Constitu- tion, held that it had no authority to comply with the application, and also that the thirteenth section of the Judiciary Act of 1789 (1 U. S. Stat, at Large, 73) " is inoperative, so far as it attempts to grant to this court power to issue writs of mandamus in classes of cases of original jurisdiction not conferred by the Constitution on this court." The case was admitted to be in itself a proper one for a man- damus, and this remedy was authorized by law ; but the law itself was not warranted by the Constitution, and in such a case it was held to be the duty of the court to follow the latter rather than the former. The decision in this case settled the general principle, which has ever since been accepted, that Congress cannot confer upon the Supreme Court any original jurisdiction beyond that expressly designated and conferred in the Constitution itself. Chief Justice Chase, referring, in Ex parte Yerger, 8 "Walk 85, 98, to this case, and also to the case of Bollman c& Swartwout, 4 Cranch, 75, said that " the doctrine of the Constitution and the cases thus far " is that " the original jurisdiction of this court can- ORIGINAL JURISDICTION OF THE COURT. 249 not be extended by Congress to any other cases than those ex- pressly defined by the Constitution." {Cohens v. Virginia, 6 Wheat. 264 ; and Osborn v. The United States Bank, 9 Wheat. 738.) 3. Exclusiveness of the Jurisdiction. — The Constitution does not in express words make the original jurisdiction of the Supreme Court exclusive. It simply says that, in the cases mentioned, the Supreme Court " shall have original jurisdiction." Congress, in the Judiciary Act of 1789, assumed that this jurisdiction, as con- ferred by the Constitution, does not exclude its power to bestow the jurisdiction upon other courts of the United States created by its authority. This act made the jurisdiction of the Supreme Court original and exclusive in some cases, and original but not exclusive in others. The question whether this is a correct construction of the Con- stitution arose in The United States v. Ravara, 2 Dall. 297, before the Circuit Court of the United States for the district of Pennsyl- vania. The court was divided in opinion on this question ; yet the majority of the judges held that the word "original," as used in the Constitution, does not necessarily imply exclusive cognizance in the cases specified, and, hence, that Congress has power in these cases to vest a concurrent jurisdiction in other courts of the United States. This view was sustained by Judge Betts in St. Luke's Hospital v. Barclay, 3 Blatch. 259. Mr. Justice Nelson considered the same question in Graham v. Stucken, 4 Blatch. 50, and came to the same conclusion. The question came before the Supreme Court in The United States v. Ortega, 11 Wheat. 467, on a certificate of divided opinion of the judges of the Circuit Court for the Eastern district of Pennsylvania. The court, however, disposed of the case with- out passing upon this specific point, on the ground that the case presented was not one "affecting a public minister within the plain meaning of the Constitution." A portion of the reasoning in Marbury v. Madison, 1 Cranch, 137, implies that the original jurisdiction of the Supreme Court, in the cases enumerated in the Constitution, is exclusive ; and the same is true of the reasoning in Osborn v. The United States Bank, 9 Wheat. 738, 820, 821. In the latter of these cases Chief 250 THE SUPREME COURT. Justice Marshall said : " The Constitution establishes the Supreme Court and defines its jurisdiction. It enumerates cases in which its jurisdiction is original and exclusive, and then defines that which is appellate." He also said : " "With the exception of these cases in which original jurisdiction is given to this court, there is none to which the judicial power extends from which the original jurisdiction of the inferior courts is excluded by the Constitution." This is equivalent to saying that the original jurisdiction of the inferior courts is excluded by the Constitution in the cases in which such jurisdiction is granted to the Supreme Court, but not excluded in any of the other cases enumerated in the Constitution. Intimations to the same effect were given by the court in Rhode Island v. Massachusetts, 12 Pet. 657. Mr. Justice Story says : " It has been strongly intimated, indeed, by the highest tribunal, on more than one occasion, that the original jurisdiction of the Supreme Court in those cases is exclusive." (Story's Const, sec. 1705.) The Supreme Court, however, has never rendered a positive decision on this point, and, hence, the law as enacted by Congress, in 1789, was reproduced in the Revised Statutes of the United States as the statutory rule on this subject. i. Relation to Appellate Jurisdiction. — It is plain that the Supreme Court cannot, in the exercise of its appellate jurisdiction, review a judgment or decree which it has rendered in the exercise of its original jurisdiction. It might grant a re-hearing of the case, but this re-hearing would not be an exercise of appellate jurisdiction. There is no provision in the Constitution for any appellate jurisdiction in cases decided by the Supreme Court; and, in the nature of things, there can be none, without changing the character of the court. The question, however, arose, in the case of Cohens v. Virginia, 6 Wheat. 264, whether the Supreme Court could exercise appellate jurisdiction in a case originally brought in a State court to which a State was a party, and in which a right was claimed by the de- fendant under a law of the United States. The counsel, on one side, claimed that, a State being a party to the suit in the court below, and the Supreme Court having original jurisdiction in all cases to which a State is a party, the appellate jurisdiction of the Supreme Court in such a case is necessarily excluded. The principle assumed in this reasoning is that the Supreme ORIGINAL JURISDICTION OF THE COURT. 251 Court can exercise no appellate jurisdiction in any case, no matter where it arises, or what it involves, in which the Constitution clothes it with original jurisdiction. Chief Justice Marshall, in stating the opinion of court, presented an extended argument upon the point. His conclusion is in these words : — "When, then, the Constitution declares the jurisdiction, in cases where a State shall be a party, to be original, and, in all cases arising under the Constitution or a law, to be appellate, the con- clusion seems irresistible that its framers designed to include in the first class those cases in which jurisdiction is given because a State is a party, and to include in the second those in which juris- diction is given because the case arises under the Constitution or a law." The original jurisdiction of the court, founded entirely upon the party to a suit, without reference to the subject-matter, does not, according to the decision in this case, exclude its appellate jurisdiction in a case arising in another court, where the latter jurisdiction is founded upon the nature and character of the con- troversy, without regard to the party. The one being given solely with reference to the character of the party, and the other being given solely with reference to the character of the cause, the latter holds good in all cases assigned to it by the Constitution, no matter who may have been the parties in the court where the suit originated and was first determined. Such is the doctrine stated by Chief Justice Marshall in this memorable case. 5. Statutory Regulation. — Section 687 of the Eevised Statutes provides as follows : " The Supreme Court shall have exclusive jurisdiction of all controversies of a civil nature where a State is a party, except between a State and its citizens, or between a State and citizens of other States, or aliens, in which latter cases it shall have original but not exclusive jurisdiction. And it shall have exclusively all such jurisdiction of suits or proceedings against ambassadors, or other public ministers, or their domestics, or domestic servants, as a court of law can have consistently with the law of nations, and original but not exclusive jurisdiction of all suits brought by am- bassadors, or other public ministers, or in which a consul or vice- consul is a party." This section, being a reproduction of a part of the thirteenth section of the Judiciary Act of 1789 (1 U. S. Stat, at Large, 73), 252 THE SUPREME COURT. is a legislative construction of the Constitution in respect to the original jurisdiction of the Supreme Court. It presents two general classes of cases to which this jurisdiction is applicable. (1.) Oases where a State is a Party. — The controversies in all these cases must be " of a civil nature," which embraces such suits in law or equity. They must also be such controversies as are judicial in their character, and hence admit of determination by a court of justice. {Mississippi v. Johnson, 4 Wall. 475; and Georgia v. Stanton, 6 "Wall. 50.) These controversies are divided into two subordinate classes ; the first embracing those in which the jurisdiction of the Supreme Court is both original and exclusive ; the second embracing those in which the jurisdiction is original, but not exclusive. And, in order to give the jurisdiction in respect to either of these classes, the State must be a party on the record, and not merely consequentially interested in or affected by the suit. It must appear on the record that the State, as such, in its political character, is either suing or sued ; and one of the parties at least must be a State of the Union. {Fowler v. Lindsey, 3 Dall. 411 ; New York v. Connecticut, 4 Dall. 1 ; The United States v. Peters, 5 Cranch, 115, 139 ; The United States Bank v. The Planters' Bank of Georgia, 9 Wheat. 904; The Bank of Kentucky v. Wister, 2 Pet. 318 ; Osborn v. The United States Bank, 9 Wheat. 738, 857 ; The Cherokee Nation v. Georgia, 5 Pet. 1 ; The Gover- nor of Georgia v. Madrazo, 1 Pet. 110 ; and Kentucky v. Denni- son, 24 How. 66, 98.) The reader is referred to chapters five and six of Part II, for a statement of what must appear in the record where a State is a party to a suit. The controversies in which a State is a party, and in which the jurisdiction of the Supreme Court is both original and exclu- sive, are such as exist between two or more States of the Union, or between a State of the Union and a foreign State. These con- troversies are included in the judicial power of the United States as granted by the Constitution, and are not included in the excep- tions to the original and exclusive jurisdiction of the Supreme Court made by the statute. Hence, in these cases, the jurisdic- tion is both original and exclusive. No concurrent jurisdiction is given to any other court of the United States. ORIGINAL JURISDICTION OF THE COURT. 253 The controversies included in the exceptions of the statute, where a State is a party, in the latter two of which the jurisdic- tion of the Supreme Court is original but not exclusive, are the following : 1. Controversies between a State and its own citizens. 2. Controversies between a State and citizens of other States. 3. Controversies between a State and aliens, or citizens or subjects of a foreign State. Controversies between a State and its own citizens, which form the first exception made in the statute, are not among the enumerated cases and controversies to which the Constitution ex- tends the judicial power of the United States ; and hence, when the Constitution, having enumerated these cases and controversies, proceeds to declare that the Supreme Court shall have original jurisdiction in those cases " in which a State shall be party," the reference is evidently to those cases within the enumeration " in which a State shall be party," and not to cases beyond this enumeration. It is true that, if a State were to sue one of its own citizens, it would be a party to the suit, as it would be if sued by such a citizen ; yet, in neither case, would the controversy come within the cases mentioned in the Constitution as those to which the judicial power of the United States is extended. The inten- tion of the statute, by the first exception, is to exclude altogether, from the original jurisdiction of the Supreme Court, all contro- versies between a State and its own citizens. The Supreme Court, in Pennsylvania v. The Quicksilver Company, 10 Wall. 553, held that, while a State might bring an original suit in that court against a citizen of another State, it could not bring such a suit against its own citizens. The case was dismissed on the ground that the defendant company, being in- corporated by Pennsylvania, was a citizen of that State, and not of another State. The jurisdiction of the court did not, therefore, attach to the case. As to the other two classes of controversies — those between a State and citizens of another State, and those between a State and aliens, or citizens or subjects of foreign States — the statute de- clares that the Supreme Court shall have original but not exclusive jurisdiction. This jurisdiction, however, is qualified by the Eleventh Amendment to the Constitution, which provides that "the judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted 254 THE SUPREME COURT. against one of the United States by citizens of another State, or by citizens or subjects of any foreign State." A State of the Union may sue such citizens or subjects in the Supreme Court, but they cannot bring any suit in law or equity against a State in this court. The qualification of the amendment, in its express terms, relates to suits " in law or equity." This leaves the question open whether the Supreme Court might not entertain a suit in admiralty against a State, if brought by a citizen of another State, or by a citizen or subject of a foreign State. The amendment certainly does not, in express words, exclude such a suit. (2.) Ambassadorial and Consular Cases. — The second part of the statute extends the original jurisdiction of the Supreme Court to three classes of cases : 1. Suits or proceedings against ambassa- dors, or other public ministers, or their domestics, or domestic servants, in which cases the jurisdiction is declared to be such only as " a court of law can have consistently with the law of na- tions." 2. All suits brought by ambassadors or other public min- isters. 3. All suits in which a consul or a vice-consul is a party, whether as plaintiff or defendant. In the first of these classes, the jurisdiction is original and ex- clusive, and also limited by the law of nations in respect to the rights and immunities of public ministers and their servants. The limitation virtually excludes the jurisdiction altogether, since the law of nations exempts public ministers from liability to suits or prosecutions, and extends the exemption to their families and servants. In the other two classes the jurisdiction is original but not ex- clusive, and hence if Congress so provides, it may be concurrently exercised by other courts of the United States. There is no rea- son why, in the absence of any law of Congress forbidding it, public ministers and consuls resident in this country may not bring suits in State courts where it is allowable by State laws, though such courts have no jurisdiction of suits sought to be brought against these parties. Cases affecting public ministers and consuls were considered in chapter second of Part II ; and to this chapter the reader is re- ferred. 6. Issues Of Fact.— Section 689 of the Eevised Statutes CASES OF APPELLATE JURISDICTION. 255 provides that " the trial of issues of fact in the Supreme Court, in all actions at law against citizens of the United States, shall be by jury." This provision applies to the original jurisdiction of the court, and relates to suits at law brought in that court against the parties named, in distinction from suits in equity or suits in ad- miralty. The Supreme Court has original jurisdiction of suits brought by ambassadors or other public ministers, or in which a consul or vice-consul is a party. If a public minister or a consul should, in that court, bring an action at law against a citizen of the United States, then the trial, as to the issues of fact involved therein, must be by jury. This provision was made in the thirteenth sec- tion of the Judiciary Act of 1789, and is continued in the Revised Statutes, It is worthy of notice that the original jurisdiction of the Su- preme Court, when compared with its appellate jurisdiction, is very limited. It applies to cases that seldom arise, and hence it has been exercised but occasionally during the entire history of the Government. The cases affecting public ministers and con- suls, and those in which a State is a party, were for special reasons applicable to such cases, made cognizable by the Supreme Court in the first instance. The great mass of the business of this court was, however, intended to be revisory in respect to the judgments and decrees of other courts, and such has been the fact. SECTION IY. OASES OF APPELLATE, JURISDICTION. 1. Constitutional Provision. — The Constitution, having granted and defined the original jurisdiction of the Supreme Court, proceeds to declare that, " in all the other cases before men- tioned," — namely, all the cases and controversies specified in the immediately preceding paragraph, with the exception of those in which original jurisdiction is conferred upon the court, — "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. This fixes the limits within which the appellate jurisdiction of 256 THE SUPREME COURT. the Supreme Court is to be exercised, and beyond which it can- not pass, and at the same time leaves a broad margin for the inter- position and regulation of law. 2. Inferior Courts. — The Constitution gives to Congress power " to constitute tribunals inferior to the Supreme Court," and to pass all laws which may be necessary and proper to carry into effect the judicial power of the United States. The framers of this instrument assumed that Congress would exercise this power, and thereby ordain and establish "inferior" Federal courts, and vest in them a portion, or the whole, of the judicial power of the United States, with the exception of that which belongs exclu- sively to the Supreme Court. The existence of such courts, rendering judgments and decrees in the first instance, is necessary to the revisory power of the Su- preme Court. The Constitution leaves their establishment to Congress ; yet the plain intention was that they should exist under this authority, and that the Supreme Court should possess a revi- sory power over their judgments and decrees, with such exceptions and under such regulations as Congress should see fit to make. The purposes of the Constitution demand inferior Federal courts, as well as the Supreme Court ; and these courts, it is the prov- ince of Congress, in its discretion, to create and endow. Moreover, the revisory power of the Supreme Court, as granted in the Constitution, is not confined exclusively to subordi- nate Federal tribunals. This power, as interpreted by law, and also by the Supreme Court, extends, at the pleasure of Congress} to such judgments and decrees of State courts as, by reason of the subject-matter or the parties, come within the scope of the judicial power of the United States. The appellate jurisdiction of the court in such cases will be considered in the third chapter of Part IY. 3. legislative Regulation. — The general doctrine which has been adopted and applied by the Supreme Court, in respect to the relation of Congress to its appellate jurisdiction, may be thus stated : That, although the Constitution confers and defines this jurisdiction in general terms, it nevertheless declares that the court "shall have appellate jurisdiction" in the cases specified, "with such exceptions and under such regulations as the Congress CASES OF APPELLATE JURISDICTION". 257 shall make," and hence that Congress must legislate in order to enable the court to exercise the power conferred, and that when it has legislated upon the subject, either by making exceptions, or by furnishing regulations to guide the exercise of the jurisdiction, the court must follow the rule thus supplied. Congress, of course, cannot exceed the limits fixed in the Constitution ; but, within these limits, the will of Congress is the law for the court. Chief Justice Taney, in Barry v. Mercein, 5 How. 103, 119, said : " By the Constitution of the United States, the Supreme Court possesses no appellate power in any case, unless conferred upon it by an act of Congress ; nor can it, when conferred, be ex- ercised in any other form, or by any other mode of proceeding than that which the law prescribes." This is the settled doctrine of the court. {The United States v. More, 3 Craneh, 159, 173 ; Wiscart v. Dauchy, 3 Dall. 321 ; Durousseau v. The United States, 6 Craneh, 307, 314; and Ms parte Mc Cardie, 7 Wall. 506.) 4. The Jurisdictional Sum. — The jurisdictional sum, as originally established in the twenty-second section of the Judiciary Act of 1789, as a necessary condition of the power of the Supreme Court to review the final judgment or decree of a Circuit Court of the United States, and as re-stated in the Kevised Statutes, was two thousand dollars, exclusive of costs, or rather an amount in excess of this sum. The matter in dispute was required to exceed this amount, exclusive of costs, in order to give jurisdiction. Congress, by the Act of February 16th, 1875 (18 U. S. Stat, at Large, 315), passed since the enactment of the Kevised Statutes, changed this rule, and provided " that whenever, by the laws now in force, it is required that the matter in dispute shall exceed the sum or value of two thousand dollars, exclusive of costs, in order that the judgments and decrees of the Circuit Courts of the United States may be re-examined in the Supreme Court, such judgments and decrees hereafter rendered shall not be re-exam- ined in the Supreme Court, unless the matter in. dispute shall ex- ceed the sum or value of five thousand dollars, exclusive of costs." This is equivalent to an amendment of the Kevised Statutes, by substituting five thousand for two thousand dollars in the cases referred to, and will be so treated in the sequel. 5. The Courts subject to the Appellate Jurisdiction of the Supreme Court.— The Kevised Statutes, in chapter eleven 17 258 THE STJPBEME COURT. of Title XIII, designate the various courts over whose judgments and decrees the Supreme Court may exercise appellate jurisdiction, together with the character of the cases involved in these judg- ments and decrees. It is convenient to examine this jurisdiction as it applies to the several courts thus designated. The provisions of law on this subject are as follows : (I.) OiEcirrr Courts. 1. Final Judgments and Decrees, with a Jurisdictional Sum. — All final judgments of any Circuit Court, or of any Dis- trict Court acting as a Circuit Court, in civil actions brought there by original process, or removed there from courts of the several States, and all final judgments of any Circuit Court in civil actions removed there from any District Court by appeal or writ of error, where the matter in dispute, exclusive of costs, exceeds the sum or value of five thousand dollars, may be re-examined and reversed or affirmed in the Supreme Court, upon a writ of error ; and an appeal shall be allowed to the Supreme Court from all final de- crees of any Circuit Court, or of any District Court acting as a Circuit Court, in cases of equity and of admiralty and maritime jurisdiction, where the matter in dispute, exclusive of costs, ex- ceeds the sum or value of five thousand dollars, and the Supreme Court is required to receive, hear, and determine such appeals. (Sees. 691, 692.) These two sections are placed together for the purpose of the following comment as to what is peculiar to each, and what is common to both : (1.) Final Judgments. — The term " judgments," as here used, evidently means the decisions of Circuit Courts in suits at law, as distinguished from criminal prosecutions, and also from equity and admiralty suits. These suits or " civil actions " are described as coming before the Circuit Courts by original process, or by re- moval from State courts, or by removal from District Courts on appeal or writ of error. In the first two cases the jurisdiction pos- sessed by the Circuit Courts is original, in the mode of exercise ; and in the third the jurisdiction is appellate, and the function is that of review. (2.) Final Decrees. — The term " decrees," as used in the other section, applies to the decisions of Circuit Courts, rendered in CASES OF APPELLATE JURISDICTION. 259 cases of equity, and of admiralty and maritime jurisdiction, as dis- tinguished from cases at law. These decrees are usually rendered without the intervention of a jury. The court itself decides all the questions of both law and fact involved in the cases before it. (3.) Mode of Review. — The two sections, when compared to- gether, show very clearly that, in the intention of the law, there is a distinction between a writ of error and an appeal, as methods of review by the Supreme Court. Final judgments in civil ac- tions at law are to be reviewed upon a writ of error ; but final decrees in cases of equity, and of admiralty and maritime jurisdic- tion, are to be reviewed by an appeal. Chief Justice Ellsworth, in stating the opinion of the court, in Wiscart v. Dauchy, 3 Dall. 321, 327, said : " An appeal is a pro- cess of civil law origin, and removes a cause entirely, subjecting the fact as well as the law to a review and re-trial ; but a writ of error is a process of common law origin, and it removes nothing for re-examination but the law. Does the statute observe this ob- vious distinction ? I think it does." This view is approvingly referred to and adopted in The United States v. Goodwin, 7 Cranch, 108, 110. The settled rule of law is that civil actions at law in the Cir- cuit Courts, resulting in final judgments by these courts, are remov- able to the Supreme Court only by writ of error, and that when thus removed, the review of the latter court is confined to a re-ex- amination of questions of law as presented by the record. (Sar- chet v. The United States, 12 Pet. 143 ; Bayard v. Lombard, 9 How. 530 ; and Saltrnarsh v. Tuthill, 12 How. 387.) The twenty-second section of the Judiciary Act of 1789 (1 U. S. Stat, at Large, 73), made no provision for the removal of a suit in any case from a Circuit Court to the Supreme Court, ex- cept by writ of error. {Blame v. The Charles Carter, 4 Dall. 22.) The Act of March 3d, 1803 (2 U. S. Stat, at Large, 244), substituted appeals for writs of error in equity and admiralty cases. A writ of error in this case is simply an order issued under the authority of the Supreme Court, and addressed to the Circuit Court, commanding the latter to send, under its seal, to the for- mer, the record of the suit specified in the writ, that the court, in the light of the record, may examine the case with reference to 260 THE SUPREME COURT. the errors of law alleged by the plaintiff in error. The effect of the writ is to remove the record for this purpose into the supervis- ing tribunal. It does not act directly upon the parties to the suit in the court below. It acts only on the record, or rather the court having the record in custody. {Cohens v. Virginia, 6 "Wheat. 264, 410, and Suydam v. Williamson, 20 How. 427.) Final decrees rendered by Circuit Courts, in cases of equity or of admiralty and maritime jurisdiction, are removable to the Su- preme Court only by appeal, and, when there, are reviewable both as to law and fact. A writ of error is hence not the proper process in such cases. {The Baltimore, 8 "Wall. 377, 381 ; Oruner v. The United States, 11 How. 163 ; Merrill v. Petty, 16 "Wall. 338 ; The Alicia, 7 "Wall. 571 ; Walker v. Dreville, 12 "Wall. 440 ; McCol- lum v. Eager, 2 How. 61 ; and Sampson v. Welsh, 24 How. 207.) The intention of Congress is that the whole merits of the contro- versy, including the facts as well as the law, should in these cases be heard and determined by the Supreme Court on appeal. {The Baltimore, 8 "Wall. 377.) Congress, by the first section of the Act of February 16th, 1875 (18 IT. S. Stat, at Large, 315), provided that the Circuit Courts, in the trial of admiralty causes on the instance-side of the court, might, with the consent of the parties, submit issues of fact to a jury, and that the finding of the jury should stand as the finding of the Court, and that " the review of the judgments and decrees entered upon such findings by the Supreme Court, upon appeal, shall be limited to a determination of the questions of law arising Upon the record, and to such rulings of the Circuit Court, excepted to at the time, as may be presented by a bill of exceptions, pre- pared as in actions at law." In The Abhotsford, 8 Otto, 440, it was held that the finding of the facts in the' Circuit Court under this statute is conclusive, and that the only questions that can be determined by the Supreme Court in review are those of law. Matters which belong to the sound discretion of the Circuit Courts, and generally matters of mere practice in these courts, whether in actions at law, or in equity or admiralty suits, are not subject to review by the Supreme Court, either by writ of error or on appeal. Such matters are not deemed as coming within its revisory jurisdiction. {Connor v. Peugh, 18 How. 394 ; Early v. Rogers, 16 How. 599 ; Pomeroy v. The State Bank, 1 "Wall. 592 ; CASES OF APPELLATE JURISDICTION. 261 Parsons v. Bedford, 3 Pet. 433 ; Cook v. Burnley, 11 Wall. 659 ; and Hall v. Weare, 2 Otto, 728.) (4.) Finality of the Judgment or Decree. — It is only a final judgment or decree of a Circuit Court for whose review by the Supreme Court provision is made in these sections. What then is a final judgment or decree ? Chief Justice Marshall, in Weston v. The City Council of Charleston, 2 Pet. 449, said that the word " final" must be understood "as applying to all judgments and decrees which determine the particular cause." If this be the effect, then the judgment or decree is final ; but if not, then it is not final in the sense of the statute. Mr. Justice Wayne, in Behee v. Russell, 19 How. 2S3, 285, said : " When a decree finally decides and disposes of the whole merits of the cause, and reserves no further questions or directions for the future judgment of the court, so that it will not be neces- sary to bring the cause again before the court for its final decision, it is a final decree." Chief Justice Waite, in Bostwick v. Brinkerhoof, 16 Otto, 3, said : " The rule is well settled and of long standing that a judg- ment or decree to be final, within the meaning of that term as used in the acts of Congress giving this court jurisdiction on ap- peals and writs of error, must terminate the litigation between the parties on the merits of the case, so that if there should be an affirmance here, the court below would have nothing to do but to execute the judgment or decree it had already rendered." If the judgment or decree leaves open any questions yet to be deter- mined, then, according to this rule, it is not final, and is hence not reviewable by the Supreme Court. The reports of the Supreme Court show that the court has, during its whole history, as the occasion called for it, drawn the bine of distinction between judgments and decrees that were final and such as were not so, adhering to the principle that final judg- ments or decrees, whether in cases of common law, or of equity, or of admiralty and maritime jurisdiction, are those, and those only, in which the rights of the parties in the pending suits were fully determined by the courts below, so as to leave nothing fur- ther for these courts to do in ending the litigation, and refusing to take cognizance of a case, either on appeal or writ of error, when the record did not show this state of facts. The cases which set forth and illustrate this principle are ex- 262 THE SUPREME COURT. ceedingly numerous as well as various. Holcombe v. McKus- ick, 20 How. 552 ; Forgay v. Conrad, 6 How. 201 ; Thomson v. Dean, 7 Wall. 342; St. Clair County v. Livingston, 18 Wall. 628; Baker v. White, 2 Otto, 176; Sage v. The Rail- road Company, 6 Otto, 712 ; Montgomery v. Anderson, 21 How. 386 ; Boyle v. Zaeharie, 6 Pet. 648 ; Smith v. Trabue y 9 Pet. 4 ; Evans v. Gee, 14 Pet. 1 ; Tracy v. Holcombe, 24 How. 426 ; Lea v. Kelly, 15 Pet. 213 ; Perkins v. Fourniquet, 6 How. 206 ; Branson v. Jfte Railroad Company, 2 Black, 524 ; 7%e Railroad Company v. Bradleys, 7 Wall. 575 ; French v. Shoemaker, 12 Wall. 86 ; and 2%e Railroad Company v. Swasey, 23 Wall. 405. These are a few of the cases that present the rulings of the Supreme Court as to final judgments and decrees. (5.) The Matter in Dispute. — The rule laid down in these sections, as amended by the Act of February 1 6th, 1875 (18 U. S. Stat, at Large, 315), is that, in order to give appellate jurisdiction to the Supreme Court, the matter in dispute must exceed, exclusive of costs, the sum or value of five thousand dollars. This is a con- dition of jurisdiction, and if not shown to be present, the court cannot review the case. ( Winston v. The United States, 3 How. 771 ; Lee v. Watson, 1 Wall. 337 : Walker v. The United States, 4 Wall. 163 ; The Western Union Tel. Co. v. Rogers, 3 Otto, 565 ; and Gray v. Blanchard, 7 Otto, 564.) As to what is meant by the matter in dispute, Mr. Justice Field, in Lee v. Watson, 1 Wall. 337, said: "By the matter in dispute is meant the subject of litigation — the matter for which the suit is brought, and upon which the issue is joined, and in re- lation to which jurors are called and witnesses are examined." Chief Justice Taney, referring, in Barry v. Mercein, 5 How. 103, 120, to the words of the law, said : " They give the right of revision only where the rights of property are concerned, and where the matter in dispute has a known and certain value, which can be proved and calculated, in the ordinary mode of a business transaction. There are no words in the law which, by any just interpretation, can be held to extend the appellate jurisdiction beyond those limits, and authorize us to take cognizance of cases to which no test of money value can be applied." To the same effect is the case of Pratt v. Fitzhugh, 1 Black, 271. If the matter in dispute is not shown by the record, and is itself a subject of dispute between the parties, then, on the ques- tion of jurisdiction, the court will allow this point to be settled by CASES OF APPELLATE JURISDICTION. 263 affidavits, and give time for this purpose. ( Williamson v. Kin- oaid, 4 Dall. 20 ; Course v. Stead, 4 Dall. 22 ; and Hush v. Parker, 5 Cranch, 287.) The onus probandi as to the amount in controversy is upon the party seeking to obtain a revision of the case. He must show the amount necessary to sustain the jurisdiction, either by the record or by affidavits. (Hagan v. Poison, 10 Pet. 160.) After a case has been heard and dismissed for the want of jurisdiction, because it did not appear that the value in controversy was sufficient, it is then too late to show this value by affidavits. (Richmond v. Milwcmkie, 21 How. 391.) If jurisdiction has attached to the case in virtue of the requisite amount, it will not be ousted by a subsequent reduction below this amount. (Cooke v. The United States, 2 Wall. 218.) If the plaintiff in the court below claimed an amount sufficient to sustain the appellate jurisdiction of the Supreme Court, and obtained a judgment for a less sum than this amount, then, al- though the plaintiff may sue out a writ of error to have the case reviewed in the Supreme Court, the defendant cannot by such a writ give the court jurisdiction of the case, since the amount in controversy, as to him, is the judgment rendered in the court below, and this is not sufficient to give the right of appellate review. (Gordon v. Ogden, 3 Pet. 33 ; Clifton v. Sheldon, 23 How. 481 ; and Smith v. Honey, 3 Pet. 469.) In Troy v. Evans, 7 Otto, 1, it was held that the amount of a judgment below against a defendant in an action for money is prima facie the measure of the jurisdiction of the Supreme Court in his behalf, and that this prima faeie case continues until the contrary is shown ; and, if jurisdiction is invoked because of the collateral effect a judgment may have in another action, it must appear that the judgment conclusively settles the rights of the parties in a matter actually in dispute, the sum or value of which exceeds five thousand dollars, exclusive of interest and costs. 2. Judgments and Decrees without Regard to the Sum or Talue in Dispute. — A writ of error may be allowed to review any final judgment at law, and an appeal shall be allowed from any final decree in equity hereinafter mentioned, without regard to the sum or value in dispute : (Sec. 699.) (1.) Patent and Copyright Cases. — Any final judgment at law or any final decree in equity of any Circuit Court, or of any Dis- 264 THE SUPREME COURT. trict Court acting as a Circuit Court, or of the Supreme Court of the District of Columbia, or of any Territory, in any case touching patent rights or copyrights. This clause of the section is founded on sections 56 and 107 of the Act of July 8th, 1870. (16 IT. S. Stat, at Large, 198.) The provision applies only to controversies in law or equity that directly relate to patent rights or copyrights granted under the laws of the United States, and which may arise between a patentee or author and an alleged infringer, or between rival patentees. The subject-matter of such a controversy is the right thus secured. ( Wilson v. Sandford, 10 How. 99 ; Brown v. Shannon, 20 How. 55 ; and Philips. Nock, 13 Wall. 185.) (2.) Actions to enforce Revenue Laws. — Any final judgment of a Circuit Court, or of any District Court acting as a Circuit Court, in any civil action brought by the United States for the enforcement of any revenue law thereof. {The United States v. Carr, 8 How. 1 ; The United States v. Bromley, 12 How. 88 ; and Pettigrew v. The United States, 1 Otto, 385.) (3.) Actions against Revenue Officers.— Any final judgment of a Circuit Court, or of any District Court acting as a Circuit Court, in any civil action against any officer of the revenue for any act done by him in the performance of his official duty, or for the recovery of any money exacted by or paid to him which shall have been paid into the Treasury. {Cary v. Curtis, 3 How. 236 ; and Mason v. Gamble, 21 How. 390.) (4.) Cases for Deprivation of Citizen Rights. — Any final judgment at law or final decree in equity of any Circuit Court, or of any District Court acting as a Circuit Court, in any case brought on account of the deprivation of any right, privilege, or immunity secured by the Constitution of the United States, or of any right or privilege of a citizen of the United States. {Ex parte Warmouth, 17 Wall. 64.) (5.) Suits for Injuries by Conspirators against Civil Rights. — Any final judgment of a Circuit Court, or of any District Court acting as a Circuit Court, in any civil action brought by any per- son on account of injury to his person or property by any act done in furtherance of any conspiracy mentioned in section 1980, Title "Civil Eights." CASES OF APPELLATE JURISDICTION. 265 The final judgments or decrees of the courts below in all these cases may be reviewed by the Supreme Court, without regard to the sum or value in dispute. Congress, in the fifth section of the Act of March 1st, 1875 (18 U. S. Stat, at Large, 335), entitled " An Act to protect all citizens in their civil and legal rights," provided " that all cases arising under the provisions of this act in the courts of the United States shall be reviewable by the Supreme Court of the United States, without regard to the sum in contro- versy, under the same provisions and regulations as are now pro- vided by law for the review of other causes in said court." This applies only to civil suits brought under the provisions of the act. 3. Cases tried by a Circuit Court without a Jury. — When an issue of fact in any civil cause in a Circuit Court is tried and determined by the court without the intervention of a jury, accord- ing to section 649, the rulings of the court in the progress of the trial of the cause, if excepted to at the time, and duly presented by a hill of exceptions, may be reviewed by the Supreme Court upon a writ of error or upon appeal ; and when the finding is special the review may extend to the determination of the suffici- ency of the facts found to support the judgment. (Sec. 700.) This section is founded on section four of the Act of March 3d, 1865. (13 U. S. Stat, at Large, 500.) Section 649, to which reference is made and which is founded on the same act, provides that issues of fact in civil cases in any Circuit Court may be tried and determined by the court without a jury, when the parties or their attorneys of record file with the clerk a stipulation in writing waiving a jury, and that the finding of the court upon the facts, which may he either general or special, shall have the same effect as the verdict of a jury. Put these two sections together, and we have the following propositions of law : 1. That in civil cases, and upon the condition specified, Circuit Courts may try and determine issues of fact, without the intervention of a jury, finding either a general or a special verdict as to the facts. 2. That in these cases the Supreme Court may review the rulings of the Circuit Court in the progress of the trial of a cause, if excepted to at the time and duly pre- sented hy a bill of exceptions. 3. That if the finding of facts by the Circuit Court is special, the review may extend to the deter- 266 THE SUPREME COURT. ruination of the sufficiency of the facts found to support the judgment. 4. That the review may be upon a writ of error, or upon appeal. The following cases afford a general illustration of the con- struction and application of these legal propositions : In Flanders v. Tweed, 9 Wall. 425, the court expresses itself as disposed to hold parties who, under the Act of March 3d, 1865, waive a trial by jury, and substitute the court for the jury, to a reasonably strict conformity to the regulations of the act, if they desire to save to themselves all the rights and privileges which belong to them in trials by jury at common law. In this case the only evidence of filing an agreement to waive a jury trial was in the statement of facts made by the judge three months after the date of the judgment, which statement was regarded as a nullity. The judgment was reversed for mis-trial, and the case remanded for a new trial. In JVorris v. Jackson, 9 Wall. 125, it was held : 1. That the Act of March 3d, 1865, establishes the mode in which parties may submit cases to the court without a jury, and the manner in which a review of the law of such cases may be had in the Supreme Court. 2. That the special finding of the facts mentioned in the act is not a mere report of the evidence, but a finding of those ultimate facts on which the law must determine the rights of the parties. 3. That if the finding of the facts be general, only such rulings of the court, m the progress of the trial, can be reversed as are presented by a bill of exceptions. 4. That in such cases a bill of exceptions cannot be used to bring up the whole testimony for review, any more than in a trial by jury/ 5. That objections to the admission or rejection of evidence, or to such rulings or prop- ositions of law as may be submitted to the court, must be shown by a bill of exceptions. 6. That if the parties desire a review of the law of the case, they must ask the court to make a special finding which raises the question, or get the court to rule on the legal propositions which they present. In Coddvngton v. Richardson, 10 Wall. 516, it was held that the Supreme Court will not review a general finding upon a mass of evidence brought up, and that if the party desires to have the finding reviewed, he must have the court find the facts specially, so that the case may come here as on a special verdict or case stated. CASES OF APPELLATE JURISDICTION. 267 In Kearney v. Case, 12 Wall. 275, it was held : 1. That, prior to the Act of March 3d, 1865, parties to an action at law could submit the issues of fact to be tried by the court without a jury, but they were bound by the judgment of the court, and could not have a review on error of any ruling of the court on such trial. 2. That to enable the parties to have such a review, and to enable them to make a valid agreement to waive a jury, the above men- tioned act was passed, which, for that purpose, required the waiver to be in writing and filed with the clerk. 3. That there can, under this act, be no review of the ruling of the court in such cases, unless the record shows that such an agreement was signed and filed with the clerk. 4. That the existence of such a writing may be shown in the Supreme Court by a copy of the agreement, or by a statement in the finding of facts by the court that it was executed, or by such a statement in the record entry of the judg- ment, or by such a statement in the bill of exceptions. In Miller v. The Insurance Company, 12 Wall. 285, the general principles laid down in the above cases were re-affirmed. In Dirst v. Morris, 14 Wall. 484, it was held that the Supreme Court, under the Act of March 3d, 1865, sitting as a court of error, cannot pass, as it does in equity appeals, upon the weight or sufficiency of evidence. If the court chooses to find generally for one side or the other, instead of making a special finding of facts, the losing party has no redress on error except for the wrongful admission or rejection of evidence. In The Insurance Company v. Folsom, 18 Wall. 237, it was held that if the finding of facts be a general one, the Supreme Court will only review questions of law arising in the progress of the trial and duly presented by a bill of exceptions, or errors of law apparent on the face of the pleadings. In The Insurance Company v. Sea, 21 Wall. 158, the court re-stated the general rules which had been adopted in executing the provisions of the Act of March 3d, 1865, the fourth section of which forms the basis of sections 649 and 700 of the Kevised Statutes. Where a case is tried by the Circuit Court without a jury, the decision of the court upon the weight of evidence is conclusive ; and where there is a special finding of facts by the court, the Supreme Court will not examine the evidence to see whether the finding is correct or not, since its judgment is to be founded ex- 268 THE SUPREME COURT. clusively upon the finding of facts. {Bond v. Brown, 12 How. 254 ; Copelin v. The Insurance Company, 9 Wall. 461 ; and The United States v. Dawson, 11 Otto, 569.) In Tyng v. Grinnell, 2' Otto, 467, Mr. Justice Clifford, in stating the opinion of the court, said : " Whether the finding is general or special, the rulings of the court during the progress of the trial, if duly excepted to at the time and presented by a bill of exceptions, may be reviewed in this court ; and in a case where the finding is special, the review, even without a bill of exceptions, may extend to the question whether the facts found are sufficient to support the judgment." (Miller v. The Insurance Company, 12 Wall. 285.) These cases embody and illustrate the general principles adopted by the Supreme Court in construing and applying the law which provides for the trial of civil suits in Circuit Courts without the intervention of a jury. The suits are such as would require a jury trial, but for the waiver of the right to such trial by the parties themselves. 4. Certified Divisions of Opinion. — Any final judgment or decree, in any civil suit or proceeding before a Circuit Court which was held at the time by a circuit justice and a circuit judge or a district judge, or by the circuit judge and a district judge, wherein the said judges certify, as provided by law, that their opinions were opposed upon any question which occurred on the trial or hearing of the said suit or proceeding, may be reviewed, and affirmed, or reversed, or modified by the Supreme Court, on writ of error or appeal, according to the nature of the case, and subject to the provisions of law applicable to other writs of error, or appeals in regard to bail, and supersedeas; and when any ques- tion occurs in the hearing or trial of any criminal proceeding be- fore a Circuit Court, upon which the judges are divided in opinion, and the point upon which they disagree is certified to the Supreme Court according to law, such point shall be finally decided by the Supreme Court, and its decision and order in the premises shall be remitted to such Circuit Court, and be there entered of record, and shall have effect according to the nature of the said judgment and order. (Sees. 693 and 697.) The feature which is common to both of these sections is the fact that the cases for which they provide come before the Su- CASES OF APPELLATE JURISDICTION. 269 preme Court on a certified division of opinion between the judges who held the Circuit Court. These cases are either civil or crimi- nal, and exist only when the Circuit Court is held by two judges. (1.) Civil Cases. — Sections 650 and 652 of the Revised Stat- utes provide that when in civil cases such a division of opinion occurs, the opinion of the presiding justice or judge shall be con- sidered the opinion of the court for the time being, and that the point upon which the judges disagreed shall, during the same term, be stated under the direction of the judges, and certified, and that such certificate shall be entered of record. This certified statement is intended to be the legal evidence of such disagree- ment, and of the particular point or points to which it referred. The provision in section 693 is that the final judgment or de- cree which was rendered on the basis of the opinion of the presiding justice or judge of the Circuit Court, may be reviewed by the Supreme Court on writ of error or appeal, according to the nature of the case, if the judges, having been opposed in opin- ion upon any question which occurred on the trial or hearing of the suit or proceeding, have certified to this effect as required by law. Their certified statement in the record is the basis of the jurisdiction of the Supreme Court, and presents the point or points to be considered and determined by the court. The amount in controversy has nothing to do with the power of the Supreme Court to take jurisdiction in these cases. {Dow v. John- son, 10 Otto, 158.) The questions proper to be certified are questions of law, and not questions of fact or questions that belong to the discretion of the court. ( Wilson v. Barnum, 8 How. 258 ; Sillirnan v. The Hudson Rimer Bridge Co., 1 Black, 582 ; Daniels v. The Rail- road Company, 3 'Wall. 250 ; Wiggins v. Cray, 24 How. 303 ; and Davis v. Braden, 10 Pet. 286.) If the question about which the division of opinion occurred relates to some proceeding subsequent to the decision of the cause in the Circuit Court, the Supreme Court cannot take jurisdiction of the case. (Devereaux v. Marr, 12 Wheat. 212.) If the ques- tions are simply questions of practice of the Circuit Court, in equity causes, then they are not proper to be certified, since they rest in the sound discretion of the court. {Packer v. Nixon, 10 Pet. 408.) 270 THE SUPREME COURT. The intention of the law is not that the whole cause should be certified, but only the particular question or questions in regard to which the judges were opposed in opinion ; and this question or these questions should be distinctly stated. ( White v. Turk, 12 Pet. 238 ; Nesmith v. Sheldon, 6 How. 41 ; Sadler v. Hoover, 7 How. 6£6 ; Webster v. Cooper, 10 How. 54 ; Dennistovm, v. Stew- art, 18 How. 565 ; and Weeth v. New England Mortgage Co., 16 Otto, 605.) If the question certified rests upon a mere hypothesis, the Su- preme Court will decline to answer it. (Pelham v. -Ross, 9 "Wall. 103.) The power of the Supreme Court to revise the proceedings of a Circuit Court, in a case brought before it on a certificate of division, is confined strictly to the questions, set forth in the certif- icate. ( Ward v. Chaviberlain, 2 Black, 430.) (2.) Criminal Cases. — Section 651 of the Revised Statutes provides that if, on the trial or hearing of any criminal proceeding in a Circuit Court, the judges are divided in opinion, the question upon which they disagree shall, during the same term, upon the request of either party or of their counsel, be stated under the di- rection of the judges, and certified under the seal of the court to the Supreme Court at their next session ; that the cause may, nev- ertheless proceed, if in the opinion of the judges this can be done without prejudice to the merits ; and that no imprisonment shall be allowed or punishment inflicted where the division of opinion relates to such imprisonment or punishment. Section 697 of the same statutes provides that the question, being thus certified, shall be finally decided by the Supreme Court, and that its decision shall be remitted to the Circuit Court as the rule for its action in regard to the same. In The United States v. Daniel, 6 Wheat. 542, it was held that a division of the judges of the Circuit Court, on a motion for a new trial, is not one of those divisions of opinion which is to be certified to the Supreme Court for its decision. In The United States v. Bosenburgh, 7 Wall. 580, it was held that the Supreme Court can take no cognizance of a division of opinion between the judges of a Circuit Court upon a motion to quash an indictment. This view was affirmed in The United States v. Avery, 13 Wall. 251, even when the motion presents the question of the jurisdic- CASES OF APPELLATE JURISDICTION. 271 tion of the Circuit Court to try the offense charged. In The United States v. Tyler, 7 Cranch, 285, a certified division of opinion, on a motion in arrest of judgment, was entertained by the Supreme Court, and the point involved was decided. Chief Justice Marshall, in The United States v. Bailey, 9 Pet. 367, said : " A division on a point, in the progress of a cause on which the judges may be divided in opinion, not the whole cause, is to be certified to this court." It was held, in The United States v. Briggs, 5 How. 208, that the Supreme Court is not authorized to take jurisdiction upon a certificate that the judges of a Circuit Court were divided in opin- ion upon the question whether a demurrer was well taken, since this presented the whole case. The particular point on which the division occurred must be certified. Chief Justice Taney re- marked in this case : " We are bound to look to the certificate of the court alone for the questions which occurred, and for the point on which they differed, and as this does not appear, we have no jurisdiction in the case, and it must be remanded to the Circuit Court." Chief Justice Taney, in stating the opinion of the court, in Ex parte Gordon, 1 Black, 503, said : " The only case in which this court is authorized to express an opinion on the proceedings in a Circuit Court in a criminal case, is where the judges of the Circuit Court are opposed in opinion upon a question arising at the trial, and certify it to this court for its decision. But certainly the par- ty had no right to ask for such a certificate, nor could it have been granted consistently with the duty of the court, if the judges agreed in opinion, and did not think there was doubt enough to justify them in submitting the question to the judgment of this court." In Luther v. Borden, 7 How. 1, 47, it was held that the whole of a case cannot be broken up into points and sent to the Supreme Court on a certificate of division of opinion. 5. Removal Cases. — The fifth section of the Act of March 3d, 1875 (18 U. S. Stat, at Large, 470), provides that the order of a Circuit Court dismissing or remanding a cause to the State court, from which it was sought to be removed, shall be review- able by the Supreme Court on writ of error or appeal, as the case may be. 272 THE SUPREME COURT. In The Insurance Company v. Comstoak, 16 Wall. 258, and The Railroad Company v. Wiswall, 23 "Wall. 507, — cases which occurred before the Act of March 3d, 1875, — it was held that the order of the Circuit Court remanding a cause to a State court is not a final judgment in the case, but a refusal to hear and de- cide, and that the remedy in such a case is by mandamus to com- pel action, and not by a writ of error to review what was done. Congress subsequently passed the Act of March 3d, 1875, and the Supreme Court held that this modified the previous legislation on the subject, and that, under the fifth section of the act, it has power to review such orders of Circuit Courts. (Hoadley v. San Francisco, 4 Otto, 4, and Ayers v. Chicago, 11 Otto, 184.) 6. Appeals in Prize Causes. — An appeal shall be allowed to the Supreme Court, from all final decrees of any Circuit Court, in prize causes depending therein, on the 30th of June, 1864, in the same manner and subject to the same conditions as appeals in prize causes from the District Courts. (Sec. 696.) Congress, by the seventh section of the Act of March 3d, 1863 (12 U. S. Stat, at Large, 760), provided that appeals in prize causes from the Dis- trict Courts shall be made directly to the Supreme Court. Prior to this act the Supreme Court had no appellate jurisdiction in prize causes, except where the same were removed thereto by ap- peal from the Circuit Courts. {The Admiral, 3 Wall. 603.) The thirteenth section of the Act of June 30th, 1864 (13 U. S. Stat, at Large, 310), reproduces, in exact words, section seven of the Act of March 3d, 1863. Section 696 of the Eevised Statutes refers to this section, and provides that appeals shall be allowed to the Supreme Court from the final decrees of Circuit Courts in prize causes depending therein on the 30th of June, 1864. This makes an exception to the general rule that all prize causes shall be carried to the Supreme Court from the District Courts, and permits the cases specified to be carried to the Supreme Court from Circuit Courts. (II.) District Courts. 1. Appeals in Prize Causes.— An appeal shall be allowed to the Supreme Court from all final decrees of any District Court in prize causes, where the matter in dispute, exclusive of costs, ex- CASES OF APPELLATE JURISDICTION. 273 ceeds the sum or value of two thousand dollars, and shall be al- lowed, without reference to the value of the matter in dispute, on the certificate of the district judge that the adjudication involves a question of general importance. And the Supreme Court shall receive, bear, and determine such appeals, and shall be open for the entry thereof. (Sec. 695.) Section 1009 provides that appeals in prize causes shall be made within thirty days after the rendering of the decree appealed from, unless the court previously extends the time for cause shown in the particular case, and that the Supreme Court may, if in its judgment the purposes of justice require it, allow an appeal in any prize cause, if it appears that any notice of appeal or of inten- tion to appeal was filed with the clerk of the District Court within thirty days after the rendition of the final decree therein. The Supreme Court may, if in its judgment the purposes of justice require it, allow any amendments, either in form or substance, of any appeal in prize causes. (Sees. 1006, 4636). The jurisdiction in prize causes, whether exercised by the District Courts, or by the Supreme Court in the appellate form, is regarded as coming under the general head of admiralty and maritime powers as granted in the Constitution, and in the ninth section of the Judiciary Act of 1789 given to the District Courts. {The Admiral, 3 Wall. 603, 612.) In The Alicia, 7 Wall. 571, it was held that, a prize cause having been removed from a District to a Circuit Court by appeal, which latter court made an order transferring the cause to the Supreme Court, no jurisdiction in the case could be exercised by the Supreme Court, since there was no judgment or decree in the Circuit Court from which an appeal could be taken. In Wilhenbury v. The United States, 5 Wall. 819, it was held that a decree in a prize cause which, upon a claim filed by partic- ular parties, disposes of the whole matter in controversy, and is final as to these parties and their rights, and also final, so far as the claimants and their rights are concerned, as to the United States, and hence leaves nothing to be litigated between the parties, and awards execution in favor of the libellants against the claim- ants, is a final decree, and that an appeal may be taken therefrom to the Supreme Court. {The Palmyra, 10 Wheat. 502; Mont- gomery v. Anderson, 21 How. 386; and The United States v. Ames, 9 Otto, 35.) 18 274 THE SUPREME COURT. In The Nuestra Senora de Eegla, 17 Wall. 29, it was held that, in prize cases, wherever it appears that notice of appeal or of intention to appeal to the Supreme Court was filed with the clerk of the District Court within thirty days next after the final decree therein, an appeal will be allowed to the Supreme Court whenever the purposes of justice require it. If the facts show that a case which has been prosecuted as prize is not of this character, but simply a forfeiture under a statute of Congress, the Supreme Court will remand it for the proper proceedings in the District Court. {The United States v. Weed, 5 Wall. 62 ; and The Watchful, 6 Wall. 91.) Iu Jecker v. Montgomery, 18 How. 110, it was held that, while it is the rule in prize cases that proceedings should be conducted in the name of the United States, the decree will not be reversed when they have been conducted in the name of the captors, through a course of long litigation, without objection on that score until the case is argued in the Supreme Court. If the District Court in a prize case denies an order for further proof when it ought to be granted, or allows it when it ought to be denied, and the objection is taken by the party, and appears on the record, the Supreme Court can administer the proper relief. But, if evidence in the nature of further proof be introduced, and no formal order or objection appears on the record, it must be presumed to have been done by consent, and the irregularity is waived. {The Pizarro, 2 Wheat. 227.) 2. Transcripts on Appeals in Prize and other Cases. — Upon the appeal of any cause in equity, or of admiralty and mari- time jurisdiction, or of prize or no prize, a transcript of the record, as directed by law to be made, and copies of the proofs, and of such entries and papers on file as may be necessary on the hearing of the appeal, shall be transmitted to the Supreme Court : Pro- vided, That either the court below or the Supreme Court may order any original document or other evidence to be sent up, in addition to the copy of the record, or in lieu of a copy of a part thereof. And on such appeals no new evidence shall be received in the Supreme Court, except in admiralty and prize causes. (Sec. 698.) Section 750 provides that, in equity and admiralty causes, only the process, pleadings, and decree, and such orders and memorandums as may be necessary to show the jurisdiction CASES OF APPELLATE JURISDICTION. 275 of the court and the regularity of the proceedings, shall be entered upon the final record. The design of this legislation is to designate the documentary basis upon which the Supreme Court proceeds in the exercise of its appellate power in equity cases and in those of admiralty and maritime jurisdiction, including therein prize causes. For this purpose transcripts of the record and copies of other necessary papers on file in the court below must be sent to the Supreme Court ; and the Supreme Court or the court below may, in its discretion, order the transmission of any original document or other evidence, in addition to a copy of the record, or in lieu of a copy of a part thereof. The rule of law in equity cases is that such cases come before the Supreme Court from the Circuit Courts, or from District Courts acting as Circuit Courts, by appeal, and not by writ of error, and that they are to be heard and determined upon proofs sent up with the record from the court below, and that no new evidence can be received in the Supreme Court. (Boemer v. Simon, 1 Otto, 149 ; and Blease v. Garlington, 2 Otto, 1, 4.) In admiralty and prize causes the introduction of new evidence is admissible : but the Supreme Court hears the case, in the first instance, upon the evidence transmitted from the court below, and then decides upon that evidence whether it is proper to allow further proof. If further proof be allowed, the case may be continued to the next term of the court for this purpose. This proof will not be taken viva voce in the Supreme Court, but must be taken by a commission appointed by the court below and authorized to take the testimony of witnesses. The order to take such testimony must come from the Supreme Court. (The London Packet, 2 Wheat. 371 ; The Samuel, 1 "Wheat. 9 ; Hawthorne v. The United States, 7Cranch, 107; The Western Metropolis, 12 Wall. 389; The Juniata, 1 Otto, 366 ; and The Ocean Queen, 6 Blatch. 24.) A transcript of the record and proceedings in the court below is sufficiently authenticated if it bears the seal of the court, and is signed by the clerk or his deputy in the name of and for the clerk. (The Rio Grande, 19 Wall. 178 ; and Garneau v. Dozier, 10 Otto, 7.) Where the examination of original documents is material to the decision of a prize case, the Supreme Court will order these papers to be sent up from the court below; yet papers properly 276 THE SUPREME COURT. belonging to the files of a court should not be removed therefrom, except in cases of positive necessity. (The Elsineur, 1 Wheat. 439 ; and Craig v. Smith, 10 Otto, 226.) The general rule in cases of appeal is, that the transcript of the record must be filed and the case docketed at the term next succeed- ing the appeal ; and yet, where the appellant, without fault on his part, is prevented from seasonably obtaining the transcript by the fraud of the other party, or by the ill-founded order of the court below, or by the contumacy of its clerk, this rule will not apply. (The United States v. Gomez, 3 Wall. 752, and The United States v. Booth, 21 How. 506.) 3. Judgments and Decrees in Transferred Cases. —The judgments or decrees of any District Court, in case6 transferred to it from the Superior Court of any Territory, upon the admis- sion of such Territory as a State, under sections 567 and 568, may be reviewed, and reversed or affirmed, upon writs of error sued out of, or an appeal taken to, the Supreme Court, in the same manner as if such judgments or decrees had been rendered in said Superior Court of such Territory. And the mandates and all writs necessary to the exercise of the appellate jurisdiction of the Supreme Court in such cases shall be directed to such District Court, which shall cause the same to be duly executed and obeyed. (Sec. 704.) The sections here referred to provide that, when any Territory is admitted as a State, and a District Court is established therein, all the records of the proceedings in the several cases pending in the Court of Appeals of said Territory at "the time of such admis- sion, and all records of the proceedings in the several cases in which judgments or decrees had been rendered in said territorial court before that time, and from which writs of error could have been sued out, or appeals could have been taken, or from which writs of error had been sued out, or appeals had been taken and prosecuted to the Supreme Court, shall be transferred to and de- posited in the District Court for the said State, and that it shall be the duty of the district judge to demand these records, and, if necessary, to compel their delivery by attachment or otherwise, according to law. Section 569 makes it the duty of the District judge to take cognizance of all cases which were depending and undetermined in the Superior Court of such Territory, from the CASES OF APPELLATE JURISDICTION. 277 judgments or decrees to be rendered, in which writs of error could have been sued out, or appeals taken to the Supreme Court, and to hear and determine the same. These sections explain the appellate jurisdiction assigned to the Supreme Court in section 704. The latter section is founded on the Acts of February 22d, 1847, and February 22d, 1848. (9 TJ. S. Stat, at Large, 128, 211.) The object of the law is, in the •cases specified, to substitute the District Court for the Superior Court of a Territory that has become a State, and provide that the judgments or decrees of the District Court in these cases may be reviewed by the Supreme Court, just as they would have been thus reviewable if rendered by the Superior Territorial Court. The construction of the Acts of 1847 and 1848, for which these sections of the Revised Statutes seem to be the substitute, as given in The Express Company v. Kountze Brothers, 8 "Wall. 342, is that cases of a Federal character pending in the Superior Court of any Territory, at the time of its admission into the Union as a State, are to be transferred to the District Court in such State if one was established therein, and if, at the time of admis- sion, the State was not made part of a judicial circuit ; but that, if the State was at the time made part of such a circuit, then the cases are to be transferred to the Circuit Court, and that, upon such a transfer, the Circuit Court would have jurisdiction of the cases, and that the Supreme Court could review its judgments or decrees in the premises. This construction was held to be neces- sary to give effect to the intention of Congress. (III.) Territorial Courts. 1. Final Judgments and Decrees. — The final judgments and ■decrees of the Supreme Court of any Territory, except the Terri- tory of Washington, in cases where the value of the matter in dis- pute, exclusive of costs, to be ascertained by the oath of either party, or of other competent witnesses, exceeds one thousand dol- lars, may be reviewed, and reversed or affirmed, in the Supreme Court, upon writ of error or appeal, in the same manner and under the same regulations as the final judgments and decrees of a Cir- cuit Court. In the Territory of Washington, the value of the matter in dispute must exceed two thousand dollars, exclusive of costs. And any final judgment or decree of the Supreme Court 278 THE SUPREME COURT. of said Territory in any cause [when] the Constitution, or a stat- ute, or treaty of the United States is brought in question, may be reviewed in like manner. (Sec. 702.) A jurisdictional sum is specified in this section, which in all cases must exceed one thousand dollars, exclusive of costs, and, in the Territory of Washington, must exceed two thousand dollars, exclusive of costs. The same general rules of construction as to writs of error and appeals, and as to what are final judgments and decrees, which apply to Circuit Courts of the United States, are equally applicable to the Supreme Courts of Territories. If the laws of a Territory abolish the distinction between cases at law and cases in equity, and require all cases to be removed from an inferior to a higher court by writ of error, and not by appeal, such legislation has no effect in respect to the removal of cases to the Supreme Court of the United States. If the case be essentially one in equity, it can be removed to the Supreme Court only by appeal. {Brewster v. Wakefield, 22 How. 118.) The provision which authorizes the Supreme Court to review any final judgment or decree of the Supreme Court of the Terri- tory of Washington, has no application to a criminal case, unless it be true that the Constitution, or a statute or treaty of the United States, was brought in question. ( Watts v. The Territory of Washington, 1 Otto, 580.) It was on this ground that the writ of error was dismissed for the want of jurisdiction. 2. Cases where a Territory becomes a State after Judg- ment or Decree in the Territorial Court. — In all cases where the judgment or decree of any court of a Territory might be re- viewed by the Supreme Court on writ of error or appeal, such writ of error or appeal may be taken, within the time and in the man- ner prescribed by law, notwithstanding such Territory has, after such judgment or decree, been admitted as a State ; and the Su- preme Court shall direct the mandate to such court as the nature of the writ of error or appeal requires. (Sec. 703.) This section, founded on the eighteenth section of the Act of June 12th, 1858 (11 U. S. Stat, at Large, 328), is designed to sup- ply a rule for the guidance of the Supreme Court in the cases which it specifies. When Florida was admitted as a State, the records of the for- mer Territorial Court of Appeals were, by a law of the State, di- CASES OF APPELLATE JURISDICTION. 279 rected to be deposited for safe keeping with the clerk of the Su- preme Court of the State. In Hunt v. Palao, 4 How. 589, it was held that no writ of error could be issued by the Supreme Court to bring up a record thus situated, since Congress had made no provision for a case of this kind. The territorial court had ceased to exist ; and the Supreme Court of the State did not hold the records as a part of its own records, and had no judicial con- trol over them. There was no court to which the Supreme Court of the United States could address its mandate. Chief Justice Taney, in stating the opinion of the court, said : " We think, therefore, that no judgment or decree rendered by the late terri- torial court can be reviewed here by writ of error or appeal, unless some further provision on that subject shall be made by Congress. (Benner v. Porter, 9 How. 235.) In McNulty v. Batty, 10 How. 72, it was held that a writ of error to the Territorial Court of Wisconsin, pending in the Su- preme Court when the Territory was admitted into the Union as a State, must be dismissed because the court had ceased to exist, and no court had been empowered by Congress to execute the mandate of the Supreme Court in such a case. In Freeborn v. Smith, 2 Wall. 160, it was held that when Congress has passed an act admitting a Territory into the Union, as a State, but omitting to provide, by such act, for the disposal of cases pending in the Supreme Court on appeal or writ of error, it may constitutionally and properly pass a subsequent act, making such provision for them. < It was to meet the difficulty disclosed and considered in these cases that Congress passed the eighteenth section of the Act of June 12th, 1858, which forms the basis of section 703 of the Re- vised Statutes. This authorizes the Supreme Court to take juris- diction in the cases described, and to direct its mandate to such court as the nature of the writ of error or appeal requires. 3. Writs of Habeas Corpus. — Section 1909 of the Revised Statutes provides that a writ of error or appeal shall be allowed to the Supreme Court of the United States from any decision of the Supreme Courts created by this Title " The Territories," or of any judge thereof, or of the District Courts created by this Title, or of any judge thereof, upon writs of habeas corpus involving the question of personal freedom. 280 THE SUPREME COURT. 4. Criminal Cases. — Section 3 of the Act of June 23d, 1874 (18 TL S. Stat, at Large, 254), provides that a writ or error from the Supreme Court of the United States to the Supreme Court of the Territory of Utah, shall he in criminal cases, where the ac- cused shall have been sentenced to capital punishment, or con- victed of bigamy or polygamy. ( Wiggins v. The People, 3 Otto, 465 ; Smith v. The United States, 4 Otto, 97 ; Reynolds v. The United States, 8 Otto, 145 ; and Wilkerson v. Utah, 9 Otto, 130.) 5. Regulation of Appellate Jurisdiction. — The Act of April 7th, 1874 (18 U. S. Stat, at Large, 27), provides, in its second sec- tion, that the appellate jurisdiction of the Supreme Court of the United States over the judgments and decrees of territorial courts in cases of trial by jury, shall be exercised by writ of error, and in all other cases by appeal according to such rules and regulations as to form and modes of proceeding as the said Supreme Court has prescribed or may hereafter prescribe : Provided, That on appeal, instead of the evidence at large, a statement of the facts of the case in the nature of a special verdict, and also the rulings of the court on the admission or rejection of evidence when excepted to, shall be made and certified by the court below, and transmitted to the Supreme Court, together with the transcript of the pro- ceedings and judgment or decree ; but no appellate proceedings in said Supreme Court, heretofore taken upon any such judgment or decree, shall be invalidated by reason of being instituted by writ of error or by appeal: And* provided further, That the appellate court may make any order in any case heretofore appealed, which may be necessary to save the rights of the parties ; and that this act shall not apply to cases now pending in the Supreme Court of the United States, where the record has already been filed. It was held in Stringfellow v. Gain, 9 Otto, 610, that the ap- pellate jurisdiction of the Supreme Court over the judgment or decree rendered in a territorial court, in a case not tried by a jury, can, under the provisions of this act, be exercised only by appeal. {Cannon v. Pratt, 9 Otto, 619.) (1Y.) Supreme Court of the District of Columbia. The final judgment or decree of the Supreme Court of the District of Columbia, in any case where the matter in dispute, CASES OF APPELLATE JURISDICTION. 281 exclusive of costs, exceeds the value of one thousand dollars, may- be re-examined and reversed or affirmed in the Supreme Court of the United States, upon writ of error or appeal, in the same man- ner and under the same regulations as are provided in cases of writs of error on judgments or appeals from decrees rendered in a Circuit Court. (Sec. 705.) This section was, by the Act of Feb- ruary 25th, 1879 (20 U. S. Stat, at Large, 320), so amended as to make the jurisdictional sum twenty-five hundred dollars. The writ of error or appeal provided by the preceding section may be allowed in any case where the value of the matter in dis- pute, exclusive of costs, is less than one thousand dollars, but more than one hundred dollars, upon the petition in writing of either party, accompanied by a copy of the proceedings complained of, and an assignment of errors, exhibited to any justice of the Su- preme Court, if said justice is of opinion that such errors involve questions of law of such extensive operation as to render a decision of them by the Supreme Court desirable. The allowance in such case shall be, by the written order of said justice, directed to the clerk of the Supreme Court of said District, to allow the appeal or issue the writ of error. (Sec. 706.) The general rule here established is that the appellate jurisdic- tion of the Supreme Court, whether by writ of error or on appeal, is to be exercised over the judgments and decrees of the Supreme Court of the District of Columbia, in the same manner and under the same regulations as are provided by law with reference to the judgments and decrees of Circuit Courts. {Brown v. Wiley, 4 Wall. 165 ; and Stanton v. Emlrey, 3 Otto, 548.) Where a case has been tried in the District Court of the Dis- trict of Columbia, the judgment or decree must be reviewed by the Supreme Court of the District, before it can be carried to the Supreme Court of the United States for examination. (Garnett v. The United States, 11 Wall. 256.) In order to give the Supreme Court jurisdiction, the matter in dispute must be money, or some right the value of which can be calculated in money ; and this must exceed twenty-five hundred dollars, without adding interest or costs, or the case will be dis- missed for the want of jurisdiction. (Be Krafft v. Barney, 2 Black, 704 ; The Railroad Company v. Grant, 8 Otto, 398 ; and The Market Company v. Hoffman, 11 Otto, 112.) The Supreme Court has no jurisdiction, by appeal or writ of 282 THE SUPREME COURT. error, over the judgment of the Supreme Court of the District of Columbia in a criminal case. {The United States v. More, 3 Cranch, 159.) If no principle of law of " extensive operation " is involved in the case, the writ of error or appeal allowed by a justice of the Supreme Court under section 706 of the Eevised Statutes, will be dismissed. {Campbell v. Read, 2 Wall. 198.) (V.) The Couet of Claims. An appeal to the Supreme Court shall be allowed, on behalf of the United States, from all judgments of the Court of Claims ad- verse to the United States, and on behalf of the plaintiff in any case where the amount in controversy exceeds three thousand dol- lars, or where the claim is forfeited to the United States by the judgment of said Court, as provided in section 1086. All appeals., from the Court of Claims shall be taken within ninety days after the judgment is rendered, and shall be allowed under such regu- lations as the Supreme Court may direct. (Sees. 707, 708.) The Supreme Court, in the exercise of the power to prescribe regulations for appeals from the judgments of the Court of Claims, has adopted the following rules : Rule No. 1. — In all cases hereafter decided in the Court of Claims, in which, by the act of Congress, such appeals are allowa- ble, they shall be heard in the Supreme Court upon the following record, and none other : 1. A transcript of the pleadings in the case, of the final judgment or decree of the court, and of such interlocutory orders, rulings, judgments, and decrees as may be necessary to a proper review of the case. 2. A finding of the Court of Claims of the facts in the case established by the evi- dence in the nature of a special verdict, but not the evidence es- tablishing them ; and a separate statement of the conclusions of law upon said facts, upon which the court founds its judgment or decree. The finding of facts and conclusions of law to be certified to this court as a part of the record. Rule No. 2. — In all cases in which judgments or decrees have heretofore been rendered, where either party is by law entitled to an appeal, the party desiring it shall make application to the Court of Claims by petition for the allowance of such appeal. Said pe- tition shall contain a distinct specification of the errors alleged to have been committed in its rulings, judgment, or decree in the case. The court shall, if the specification of alleged error be cor- rectly and accurately stated, certify the same, or may certify such CASES OF APPELLATE JURISDICTION. 283 alterations and modifications of the points decided and alleged for error as, in the judgment of said court, shall distinctly, fully, and fairly present the points decided by the court. This, with the transcript mentioned in Eule 1 (except the statement of facts and law therein mentioned), shall constitute the record on which those cases shall be heard in the Supreme Court. Rule No. 3. — In all cases an order of allowance of appeal by the Court of Claims or the chief justice thereof in vacation, is es- sential, and the limitation of time for granting such appeal shall cease to run from the time an application is made for the allow- ance of appeal. Rule No. 4. — In all cases in which either party is entitled to appeal to the Supreme Court, the Court of Claims shall make and file their finding of facts, and their conclusions of law therein, in open court, before or at the time they enter their judgment in the case. Rule No. 5. — In every such case, each party, at such time be- fore trial, and in such form as the court may prescribe, shall sub- mit to it a request to find all the facts which the party considers proven and deems material to the due presentation of the case in the finding of facts. The right of appeal, in the cases specified, and in conformity with the rules prescribed by the Supreme Court, is secured by law, and hence does not depend on the discretion of the Court of Claims. Either party may exercise the right within the limits thus defined. (The United States v. Adams, 6 Wall. 101.) If the Court of Claims refuses to allow an appeal, it is competent for the petitioner to apply to the Supreme Court for a mandamus to compel the allowance, and upon a proper showing of facts a writ to this effect will be issued. (Ex parte Zellner, 9 Wall. 244.) The allowance of an appeal by the Court of Claims does not absolutely and of itself remove the case from its jurisdiction, so that it can make no order revoking such allowance for adequate reason. (Ex parte Roberts, 15 Wall. 384.) If the Court of Claims, after rendering judgment, and while an appeal is pending, grants a new trial, this vacates the judgment, and the court thereby resumes control of the case and of the parties. In such a case a writ of certiorari will not be granted to compel the court to send to the Supreme Court the proceedings subsequent to the appeal; but the appeal will be dismissed. After judgment shall have been finally rendered by the Court of Claims, the proceedings in which the new r trial was obtained may 284: THE SUPREME COURT. be brought to the Supreme Courtf for review. {The United States v. 'Young, 4 Otto, 258.) The decision of the Court of Claims awarding, on motion of the United States, a new trial, while a claim is pending before it, or on appeal from it, or within two years next after the final dis- position of such claim, cannot be reviewed by the Supreme Court. ( Young v. The United States, 5 Otto, 641.) The appellant has a right to have his appeal dismissed notwithstanding the opposi- tion of the other side. {Latham's ds Deming's Appeals, 9 Wall. 145.) In Ex parte Atocha, 17 Wall. 439, it was held that where a special act of Congress referred a claim to the Court of Claims to ascertain a particular fact for the guidance of the Government in the execution of a treaty, no appeal would lie from its decision to the Supreme Court. The finding of facts by the Court of Claims, which, according to the rules prescribed by the Supreme Court, must be " in the nature of a special verdict," is conclusive in the Supreme Court, unless impeached for some error of law appearing in the record. Such finding is like the verdict of a jury under similar circum- stances. {The United States v. Smith, 4 Otto, 214.) If, how- ever, the finding is a conclusion of law, rather than of fact, it may be reviewed by the Supreme Court on appeal. {Meade v. The United States, 9 Wall. 691.) The statement of facts sent up to the Supreme Court should be such as will enable the court to decide upon the propositions of law ruled by the court below ; and this statement is to be pre- sented in the shape of the facts found to be established by the evidence in such form as to raise the question of law decided by the court. It should not include the evidence in detail. {Be Groot v. The United States, 5 Wall. 419.) If the statement of facts found by the Court of Claims is not a sufficient compliance with the rules prescribed by the Supreme Court on that subject, the court will, of its own motion, while retaining jurisdiction in such cases, remand the records to the Court of Claims for a proper finding. {The United States v. Adams, 6 Wall. 101.) It is the province of the Supreme Court to apply the law to the facts as found, and not to decide upon the weight of the evidence, or look beyond the finding ; and hence if the finding fails to set forth the amount the party is entitled to REVISORY POWER OF THE COURT. 285 recover, the judgment of the Court of Claims will be reversed, and the cause remanded for such further proceedings as law and justice require. [The United States v. Clark, 4 Otto, 73.) When the Court of Claims, on a claim embracing several items, reject some but allow others, against which allowance the United States alone appeals, the Supreme Court will not give consideration to the items rejected, and against whose rejection the claimant has not appealed, except so far as may be necessary for a proper understanding of the item or items allowed. (The United States v. Hickey, 17 Wall. 9.) (YI.) State Cotjets. Section 709 of the Revised Statutes provides for a review, by the Supreme Court, of the judgments and decrees of State courts, in the cases and manner specified in the section. The considera- tion of this jurisdiction will be found in chapter 3 of Part IV. This completes the entire series of courts over whose judg- ments and decrees the Supreme Court is authorized to exercise appellate jurisdiction. And considering the number of these courts and the number and variety of cases which, originating therein, may, by writ of error or appeal, be carried to the Supreme Court, it is not at all surprising that the latter court should be overburdened with the amount of its judicial business, or that this fact should have led to grave inquiry as to the best method of relief. SECTION" Y. EEVISOEY POWEE OF THE COTJET. The previous section contains a synopsis of the law as to the courts and the judgments and decrees thereof which come within the scope of the appellate jurisdiction of the Supreme Court. What then are the revisory powers of this court in disposing of cases within its jurisdiction and properly before it ? This is the next question to be considered. 1. Statutory Regulation. — The twenty-second section of the Judiciary Act of 1789 (1 U. S. Stat, at Large, 73), authorized the 286 THE SUPREME COURT. Supreme Court, in the eases specified, to re-examine and reverse or affirm the judgments and decrees of the Circuit Courts of the United States, in civil actions and suits in equity. The twenty- fourth section of the same act provided as follows : " That when a judgment or decree shall be reversed in a Circuit Court, such court shall proceed to render such judgment or pass such decree as should have been rendered or passed ; and the Supreme Court shall do the same on reversals therein, except where the reversal is in favor of the plaintiff or petitioner in the original suit, and the damages to be assessed, or the matter to be decreed, are uncertain, in which case they shall remand the cause for a final decision. And the Supreme Court shall not issue execution in causes that are removed before them by writ of error, but shall send a special mandate to the Circuit Court to award execution thereupon."' These provisions defined the revisory power to be exercised by the Supreme Court over the judgments and decrees of Circuit Courts. The second section of the Act of June 1st, 1872 (IT U. S. Stat, at Large, 196), relating to the revisory power of the Supreme Court and also the Circuit Courts, provided that " the appellate court may affirm, modify, or reverse the judgment, decree, or order brought before it for review, or may direct such judgment, decree, or order to be rendered, or such further proceedings to be had by the inferior court, as the justice of the case may require." This provision, alike applicable to the Circuit Courts and the Supreme Court, did not, as was done in the twenty-fourth section of the Judiciary Act of 1789, require the Supreme Court, on reversals, to render such judgment or pass such decree as the Circuit Court should have rendered or passed, with the exception stated. While authorizing it to affirm, modify, or reverse the judgment, decree, or order of the lower court, it also authorized the court to direct what judgment, decree, or order should be rendered, or what further proceedings should be had, in the court below, and so far repealed the provision made in the Judiciary Act. The thirteenth section of the Act of June 30th, 1864 (13 U. S. Stat, at Large, 306), provided that " appeals from the District Courts of the United States in prize causes shall be directly to the Supreme Court," and not, as previously, to the Circuit Courts. The legislation contained in the acts, as above quoted, fur- REVISORY POWER OF THE COURT. 287 nished the materials out of which the revisers prepared section 701 of the Revised Statutes of the United States, which, being adopted by Congress, became the law on the subject. This sec- tion reads as follows : " The Supreme Court may affirm, modify, or reverse any judgment or decree, or order of a Circuit Court, or a District Court acting as a Circuit Court, or of a District Court in prize causes, lawfully brought before it for review, or may direct such judgment, decree, or order to be rendered, or such further pro- ceedings to be had, by the inferior court, as the justice of the case may require. The Supreme Court shall not issue execution in a cause removed before it from such courts, but shall send a special mandate to the inferior court to award execution thereupon." The last sentence of this section was taken from the Judiciary Act of 1789. The first sentence was taken from the Acts of 1872 and 1864. The whole section is to be regarded as a substitute for the prior provisions of law relating to the revisory power of the- Supreme Court over the judgments and decrees of Circuit Courts, or District Courts acting as Circuit Courts, and of District Courts in prize causes. It refers, in express terms, only to such courts. It is, however, provided in section 702 of the Revised Statutes that the final judgments and decrees of the Supreme Courts of the Territories of the United States may, in the cases specified, " be reviewed, and reversed or affirmed in the Supreme Court upon writ of error or appeal, in the same manner and under the same regulations as the final judgments and decrees of Circuit Courts." Section 705 of these Statutes contains a similar provision in re- gard to the final judgments and decrees of the Supreme Court of the District of Columbia, in civil cases. The revisory power of the Supreme Court over the judgments and decrees of these courts is consequently the same as that over the judgments and decrees of Circuit Courts. The Revised Statutes do not, in express terms, state what shall be the revisory power of the Supreme Court over the judgments of the Court of Claims in the cases specified, yet they clearly im- ply the authority of the court to exercise such power as may be necessary to give effect to its own judgment in the premises. (Sees. 707, 708.) This power, in application to the judgments and decrees of State courts, as provided for in section 709 of the Revised Stat- utes, will be considered in the third chapter of Part IY. 288 THE SUPREME COURT. No express provision is made by statute for the dismissal of a case not lawfully brought before the court for review, or not with- in its appellate jurisdiction, and none need be made. It is the inherent power of every court, as well as its duty, not to take cog- nizance of and determine such a case. Revisory power supposes jurisdiction according to law ; and if this fact does not exist, then a judgment of dismissal follows as a matter of course, without any determination of the controversy between the parties, or any judgment or decree affecting that controversy. The court, in dis- missing a case for the want of jurisdiction, may make an order in respect to costs incurred, but not in respect to the merits of the controversy. 2. Exercise of Revisory Power. — The provisions of law re- lating to the exercise of the revisory power of the Supreme Court are the following : (1.) Affirmance. — The court may, in the case specified, " af- firm " the judgment, decree, or order. Affirmance, if it be with- out qualification, ends the case, and leaves nothing to be done by the lower court but to carry the affirmed judgment or decree into effect, just as it would have done if there had been no review thereof by the Supreme Court. The judgment of affirmance follows, as a matter of course, in every case that is regularly brought before the court, when the record of the case shows jurisdiction, and shows no error com- mitted by the lower court. {Stockton v. Bishop, 4 How. 155 ; Taylor v. Morton, 2 Black. 481 ; Stevens v. Gladding & Pound, 19 How. 64 ; Suydam v. Williamson, 20 How. 427 ; and Pom- eroy v. The Bank of Indiana, 1 Wall. 592.) If the judges of the Supreme Court are equally divided upon a writ of error or appeal, and hence not able to determine the questions of law or fact involved in the case, the rule of the court is to enter a judgment of affirmance, which is as conclusive and binding upon the rights of the parties as if it had been rendered by the concurrence of all the judges. {Etting v. The Bank of the United States, 11 Wheat. 59 ; The Washington Bridge Co. v. Stewart, 3 How. 413 ; JDurant v. The Essex Company, 7 Wall. 107; and Durant v. The Essex Company, 11 Otto, 555.) (2.) Modification. — The Supreme Court may "modify" the judgment or decree of the lower court. Modification neither af- REVISORY POWER OF THE COURT. 289 firms nor reverses the entire judgment or decree, but simply changes it in some respects, so as to secure the ends of justice. In Penh-allow v. Doane, 3 Dall. 88, 107, 120, it was held that the damages awarded by the lower court were joint, whereas they ought to have been several, and that as the facts were spread on the record, and the case itself was one of equity rather than one of common law, it was in the power of the court so to modify the decree as to sever the damages, and so to apportion them as to ef- fectuate substantial justice. In Hills v. Boss, 3 Dall. 331, the court modified the decree of the lower court, in respect to a libel to recover the proceeds of certain prize cargoes, so as to reduce the amount, the record show- ing the necessary facts calling for such a change in the decree. In The Insurance Company v. Piaggio, 16 Wall. 378, the court held that the error which appears on the face of the record did not require a venire de novo, but was such that the court, under the Act of June 1st, 1872 (17 U. S. Stat, at Large, 197), could reverse the judgment and modify it by disallowing the $5,000, and remanding the case with directions to enter judgment for the residue found by the jury, with interest ; the case being one where all the facts were apparent in the record, though not by a special verdict in form. In The Insurance Companies v. Boyhin, 12 "Wall. 433, the court reversed the judgment and modified it by certifying a judg- ment to the Circuit Court for plaintiff against each of the defend- ants for the one-fourth of the amount of the plaintiff's damages, including interest, as ascertained by the verdict, and for a joint judgment against theni for all the costs in that court. The error of the judgment in this case, which did not extend to the verdict, consisted in the fact that it was against the defendants jointly and not severally for the full amount of the policy, with interest. This error the court corrected by certifying to the Circuit Court such a judgment as it should have rendered, without disturbing the verdict of the jury as to the amount of the damages to which the plaintiff in the court below was entitled. Mr. Justice Clifford, in The Camanche, 8 Wall. 448, 479, said : " Appellate courts are reluctant to disturb an award for salvage, on the ground that the subordinate court gave too large a sum to the salvors, unless they are clearly satisfied that the court below made an exorbitant estimate of their services." This implies that 19 290 THE SUPREME COURT. if the estimate appeared to be exorbitant, the court would modify the decree. (3.) Reversal. — The Supreme Court may " reverse " the judg- ment, decree, or order of the court below. The effect of simple reversal is to set aside or annul the judgment or decree, and make it inoperative, which is just the opposite of that of affirmance. The reversal is based on some error of the lower court, shown by the record ; and inasmuch as the object of the Supreme Court is to correct that error, the usual course of the court is to remand the case to the inferior court, with instructions. Mr. Justice Grier, in Simpson v. Baker, 2 Black, 581, said : " The judgment of the court below is assumed to be correct till the contrary is made to appear. It is not sufficient to produce a record from which it does not appear whether it is right or wrong." Inasmuch as the Supreme Court bases its judgment upon the record, that record must show error which calls for cor- rection, or there will be no judgment of reversal. Mr. Phillips, in his Practice (revised edition, 1878), pp. 305, 306, states as follows the character of the cases in which there will be a judgment of reversal : " Where the record shows a special verdict imperfect or am- biguous ; or where the evidence of facts, and not the facts, are presented ; or where but part of the facts put in issue are found ; or where a demurrer to evidence states the evidence, and not the facts established, and there is no joinder in demurrer, but judg- ment notwithstanding is rendered in favor of the demurrer ; or where it sufficiently appears that improper instructions have been given, or proper instructions have been refused ; or where, in a ease tried by a judge, without a jury, all th*e evidence is brought up by bill of exceptions ; in these and the like cases there is a mistrial, and there is a judgment of reversal, with an award of a venire de novo. {Livingston et al. v. Insurance Company, 6 Cr. 274; Fowle v. Alexandria, 11 Wheat. 320; Barnes Y.Williams, Id. 415; Mc Arthur Y.Porter, 1 Pet. 626; Farrar v. United States, 5 Id. 373 ; United States v. Hawkins, 10 Id. 125 : Pren- tice v. Zane, 8 How. 484 ; Graham v. Bayne, 18 Id. 60 ; Suydam v. Williamson, 20 Id. 427.)" In Garland v. Davis, 4 How. 131, the record showed a fatal defect in the pleadings, and the judgment was reversed, and the case remanded to the court below for further proceedings. In Barney v. The City of Baltimore, 6 Wall. 230, it was held REVISORY POWER OF THE COURT. 291 that " a decree in the Circuit Court dismissing a bill on the merits, will be reversed here if the Circuit Court had not jurisdiction, and a decree of dismissal without prejudice directed." In Mandelbaum v. The People, 8 Wall. 310, it was held to be " error, entitling the aggrieved party to a reversal, for a court, on motion of a plaintiff, to strike out of an answer that which consti- tutes a good defense, and on which the defendant may chiefly rely." In The United States et al. v. Huckabee, 16 Wall. 414, it was held that " where a subordinate court, which had no jurisdiction in the case, has given judgment for the plaintiff or defendant, or im- properly decreed affirmative relief to a claimant, an appellate court must reverse," and that " it is not enough to dismiss the suit." (4.) Direction. — The statute provides that, in addition to the power of affirmance, modification, or reversal, the Supreme Court " may direct such judgment, decree, or order to be rendered, or such further proceedings to be had, by the inferior court, as the justice of the case may require." This broad and comprehensive power enables the Supreme Court to give instructions to the lower court upon a reversal of the judgment or decree. These instructions may direct the court to render a particular judgment or decree, or specify some further proceeding to be had in the case. The further proceeding to be had, if ordered, may be a new trial of the whole case, or an amendment of the decree in some respect, or a new accounting, or any other proceeding known to law and deemed necessary to cor- rect the error of the inferior court. Any one who will examine the reports of the Supreme Court will, at a glance, see the various ways in which that court has exercised the power of giving in- structions to the lower courts, according to the facts in each par- ticular case, and the character of the error to be corrected. These instructions are authoritative and binding, and if not obeyed, may, if necessary, be enforced by a writ of mandamus. (5.) Execution and Special Mandate. — The statute further provides that " the Supreme Court shall not issue execution in a cause removed to it from such courts, but shall send a special mandate to the inferior court to award execution thereupon." This supposes that the Supreme Court has determined the case 292 THE SUPREME COURT. before it, and also determined that its judgment and decree should be carried into effect by the issue of execution. While the court has no power to issue the final process of execution in the cases contemplated, it is authorized and directed, by a special mandate, to require such issue to be made by the lower court. On this point Mr. Justice Baldwin, in Ex parte Siblald v. The United States, 12 Pet. 488, 492, remarked : " "When the Supreme Court have executed their power in a cause before them, and their judg- ment or decree requires some further act to be done, it cannot issue an execution, but shall send a special mandate to the court below, to award it. * * * The inferior court is bound by the decree as the law of the case, and must carry it into executioil, ac- cording to the mandate." A declinature to obey the mandate would, as he said, furnish an occasion for " a mandamus or other appropriate writ." In West v. Brashear, 14 Pet. 51, it was held that the " man- date of the Supreme Court to the Circuit Court must be its guide in executing the judgment or decree on which it is based." Chief Justice Taney said in this case that " it is the duty of the Circuit Court to carry it into execution, and not to look elsewhere for au- thority to change its meaning." It is proper, in order to understand the meaning of the decree and the mandate of the Supreme Court, that the decree of the court below and that of the Supreme Court should be compared, and for this purpose the evidence contained in the original record may be referred to. {Mitchel v. The United States, 15 Pet. 52.) A plea to the jurisdiction of the court below in the original suit is too late when the mandate has gone down to that court. {Whyte v. Gibbes, 20 How. 541, and The Washington Bridge Co. v. Stewart, 3 How. 413.) This general rule is, however, modified by some exceptions, as when the court by mistake or fraud was led to take jurisdiction when in fact it was without ju- risdiction. (Cochrane v. Deener, 5 Otto, 355.) Such, then, are the statutory powers of the Supreme Court in disposing of a case lawfully before it, as provided for in section 701 of the Revised Statutes. The court may affirm, modify, or reverse the judgment, decree, or order of the court below. It may direct what judgment, decree, or order shall be rendered by the inferior court, or it may direct such further proceedings to be had in that court as the justice of the case shall require. It can- LAW AND FACT. 293 not issue execution, but can send a special mandate to the inferior court, commanding it to award execution, and can enforce obedi- ence thereto. How these powers shall be exercised in each par- ticular case is a question for the court to determine in the light of the facts as presented by the record. SECTION VI. LAW AND FACT. 1. The Constitutional Provision. — The Constitution, in its third article, provides that the appellate jurisdiction of the Su- preme Court shall, in the cases specified, which include all the cases and controversies enumerated, except those in which the ju- risdiction of the court is declared to be original, be exercised, " ooih as to law and fact, with such exceptions and under such regulations as the Congress shall make." The phrase " law and fact," as here occurring in the Constitu- tion, extended the appellate jurisdiction of the Supreme Court, not only to questions of " law " involved in the review of a case, but also to questions of "fact" that might be involved in the same case, and thus enabled the court to review and decide both classes of questions, " with such exceptions and under such regula- tions as the Congress shall make." The framers of the Constitu- tion were not ignorant of the well-known distinction between "law and fact," and, in drafting the instrument, they left it to the pleasure of Congress to determine to what extent the appel- late jurisdiction of the Supreme Court should apply to both law and fact, without imposing any restraint upon that pleasure. 2. The Seventh Amendment. — The Seventh Amendment, however, after providing that, " in suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved," further provides, in a distinct and in- dependent clause, that " no fact tried by a jury shall be otherwise re-examined in any court of the United States, than according to the rules of the common law." This, upon its face, relates only to those cases in which a fact has been tried and determined by a jury, and consequently was 294 THE SUPREME COURT. not intended to apply to cases of equity, and of admiralty and maritime jurisdiction, tried and determined by the court without a jury. The rule laid down is that no fact tried by a jury shall, in any court of the United States, including the Supreme Court, be re-tried and determined, except "according to the rules of the common law." This is a qualification of judicial power that did not appear in the Constitution as originally adopted. It qualifies the words " both as to law and fact," with the proviso that a fact tried by a jury shall not "be otherwise re-examined in any court of the United States, than according to the rules " referred to, and, at the same time, as distinctly implies that such a fact may be thus re-examined. 3. Rule of the Common Law. — What then is the rule of the common law in respect to the re-examination of a fact that has been tried by a jury ? Mr. Justice Story, in Parsons v. Bedford, 3 Pet. 433, 448, referred to the prohibition contained in the Seventh Amendment, and then proceeded to say : " The only modes known to the common law to re-examine such facts are the granting of a new trial by the court where the issue was tried, or to which the record was properly returnable, or the award of a ve- nire facias de novo, by an appellate court, for some error of law which intervened in the proceedings." Referring to the Judiciary Act of 1789, he further said : " The appellate jurisdiction has also been amply given by the same act to this court, to redress errors of law, and, for such errors, to award a new trial in suits at law which have been tried by a jury." Such a re-examination of facts tried by a jury is according to the rules of the common law, and, therefore, not in conflict with the prohibition of the Seventh Amendment. The judge before whom the case was tried may set aside the verdict of the jury and grant a new trial, for reasons recognized by the common law, if the verdict was not one of acquittal in a criminal case. And so an appellate court, with the case properly before it, may, for the same reasons, with a view to correct errors of law that appear in the proceedings of the court below, order a new trial, subject to the same restriction as to acquittals in criminal cases. The Seventh Amendment, while forbidding the direct re-examination of any facts, by a Federal court, which have been tried by a jury, recog- LAW AND FACT. 295 nizes and sanctions that method of re-examining such facts which is " according to the rules of the common law." This simply sub- mits the same issues of fact, in a case at common law, to another jury, and in so doing cancels the verdict already rendered. 4. Power to Grant New Trials. — Section 726 of the Eevised Statutes of the United States, reproducing a part of the seven- teenth section of the Judiciary Act of 1789 (1 U. S. Stat, at Large, 73), provides as follows : " All of the said courts shall have power to grant new trials, in cases where there has been a trial by jury, for reasons for which new trials have usually been granted in courts of law." The Supreme Court, in the exercise of its appel- late jurisdiction, and for the purpose of redressing errors of law in cases which have been tried by a jury, possesses the power of granting or ordering new trials, in common with the other courts of the United States. The statutory qualification annexed to the exercise of the power is, that such trials are to be granted " for reasons for which new trials have usually been granted in courts of law." The general rule adopted by the Supreme Court, in the exercise of its appellate jurisdiction, is that to grant or refuse a new trial rests in the sound discretion of the court below to which the motion for such trial was addressed, and that the decision of that court upon such a motion cannot be made the subject of review by the Supreme Court upon a writ of error. ( Warner v. Norton, 20 How. 448, 461 ; and Newcomb v. Wood, 7 Otto, 581.) There is no doubt, however, that the Supreme Court, in dis- posing of a case which is properly before it, and has been tried by a jury, may, in the exercise of its appellate jurisdiction, redress errors of law which intervened in the progress of the trial, and may, if necessary to" this end, order a new trial. This is the doc- trine stated in Parsons v. Bedford, 3 Pet. 443, and frequently applied by the court. 296 THE SUPREME COURT. SECTION VII. PBOCEDUEE IN WEITS OF EBE0B AND APPEALS. 1. Removal of Causes by Writ of Error. — There shall be annexed to and returned with any writ of error for the removal of a cause, at the day and place therein mentioned, an authenticated transcript of the record, an assignment of errors, and a prayer for reversal, with a citation to the adverse party. (Sec. 997.) The rule here prescribed does not apply exclusively to writs of error issued from the Supreme Court, but extends also to such writs when issued from the Circuit Courts of the United States. As to the construction of this statute the following doctrine was laid down in Mussina v. Cavazos, 6 Wall. 355 : 1. That the writ of error by which a case is transferred from a Circuit Court to the Supreme Court, is the writ of the Supreme Court, although it may be issued by the clerk of the Circuit Court, and that the original writ should always be sent to the Supreme Court with the transcript of the record. 2. That the writ is served by depositing it with the clerk of the Circuit Court, and that if he makes return by sending to the Supreme Court a transcript of the record in due time, the court has jurisdiction to decide the case, although the original writ may be lost or destroyed before it reaches the Su- preme Court. 3. That it is not a fatal defect in a writ of error that it describes the parties as plaintiffs and defendants in error, as they appear in the Supreme Court, instead of describing them as plaintiffs and defendants, as they stood in the court below, if the names of all the parties are given correctly. 4. That where the bill of exceptions is neither signed nor sealed by the judge, so that there is nothing to show that it was submitted to him, or in any way received his sanction, the judgment below will be affirmed. No one can sue out a writ of error unless he is a party to the judgment in the court below ; and if the judgment be joint and several, then any one of the defendants may sue out the writ without joining the other defendants. But if the judgment be joint, then no one of the defendants can sue out the writ without joining all the other defendants. (Payne v. JViles, 20 How. 219 ; PROCEDURE IN WRITS OF ERROR AND APPEALS. 297 Cox v. The United States, 6 Pet. 172 ; Hampton v. Rouse, 13 Wall. 187; and Simpson v. Greeley, 20 Wall. 152.) It was, however, held in CDowd v. Russell, 14 Wall. 402, that a notice of one of three defendants to his co defendants of his intention to prosecute a writ of error, and refusal by them to co- operate, is equivalent to the old proceeding of summons and sever- ance, and that where the record shows this fact, the one defendant may take his writ accordingly. The same doctrine had been pre- viously adopted in Masterson v. Herndon, 10 Wall. 416. The allowance of a writ of error or appeal, together with an authenticated copy of the record and the citation, when a citation is required, must be returned to the next term of the Supreme Court after the allowance. (Castro v. The United States, 3 Wall. 46 ; and Blair v. Miller, 4 Dall. 21.) For the purpose of an appeal to, or a writ of error from, the Supreme Court, the transcript of the record is sufficiently authen- ticated, if it be sealed with the seal of the court below, and signed by the deputy clerk thereof in the name of and for his principal. (Garneau v. Dosier, 10 Otto, 7.) Usually the clerk authenticates the record, yet in this case it was held that this might be done by his deputy. The citation to the adverse party, with due return thereof, or a waiver by general appearance or otherwise, is indispensable to the jurisdiction of the Supreme Court ; and if this condition be not supplied, the case will be dismissed. ( Wilson v. Daniel, 3 Dall. 401 ; and Alviso v. The United States, 5 Wall. 824.) This citation is not the institution of a new suit, but simply a legal no- tice to the adverse party that the record has been transferred to the Supreme Court for review. (Cohens v. Virginia, 6 Wheat. 264.) The citation must correspond with the writ of error in the description of the persons who are the plaintiffs in error. (Kail v. Wetmore, G Wall. 451.) If there be no assignment of errors by a bill of exceptions, and nothing on which error can be assigned, the practice of the Su- preme Court is not to dismiss the writ if regularly brought, but to affirm the judgment of the court below. (James v. The Bank, 7 Wall. 692.) 2. Signing the Citation. — When the writ is issued by the Su- preme Court to a Circuit Court, the citation shall be signed by a 298 THE SUPREME COURT. judge of such Circuit Court, or by a justice of the Supreme Court, and the adverse party shall have at least thirty days notice. (Sec. 999.) The rule here laid down as to the signing of the citation is im- perative. The signature of the clerk of the Circuit Court will not be sufficient. {The United States v. Hodge, 3 How. 534; Chaffee v. Hayward, 20 How. 208 ; Villabolos v. The United States, 6 How. 81.) The citation may be signed by the district judge when sitting and acting as a member of the Circuit Court. {Sheppard v. Wilson, 5 How. 210, 212.) Chief Justice "Waite, in Sage v. The Railroad Company, 6 Otto, 712, 715, said that power to sign the citation " is not confined to the justice assigned to the particular circuit in which the court that rendered the decree is held." Chief Justice Taney, in The Insurance Company v. Mordecai, 21 How. 195, 202, said that the act of Congress requires the citation "to be issued by the judge or justice who allows the writ of error, and it cannot be legally issued by any other judge or court." The actual service of the citation upon the adverse party, or upon his attorney or counsel, is necessary to give the Supreme Court jurisdiction over the parties. (The United States v. Curry, 6 How. 106 ; Bacon v. Hart, 1 Black, 38 ; Bigler v. Waller, 12 "Wall. 142 ; and Dayton v. Lash, 4 Otto, 112.) The defendant in error is entitled to have at least thirty days notice before he can be compelled to go to a hearing before the Supreme Court. {The National Bank v. The Bank of Com- merce, 9 Otto, 608.) The Supreme Court may remedy a defect as to the time of serving the citation by fixing a new return day, and ordering a new citation to be issued and served. {The Rail/road Company v. Blair, 10 Otto, 661.) If an appeal be taken in open court during the term at which the decree complained of is actually entered, and the fact appears in some form on the record of the court, this renders the formal service of a citation unnecessary, since the adverse party is con- structively assumed to be present, and cognizant of the proceed- ings in the suit to which he is a party. It is his own fault if he does not take due notice of the appeal. {The Railroad Company v. Blair, 10 Otto, 661.) The appearance of the defendant in error in the Supreme Court cures any defect that may have existed in the citation or its service, if such appearance be without a motion at the first PROCEDURE IN WRITS OF ERROR AND APPEALS. 299 term, to dismiss the writ of error or appeal on the ground of such defect. He will be considered as having waived his right in this respect. {Buckingham v. McLean, 13 How. 150; Chaffee v. Hayward, 20 How. 208 ; The United States v. Yates, 6 How. 605 ; and Pierce v. Cox, 9 Wall. 786.) 3. The Bond in Error and on Appeal. — Every justice or judge, signing a citation on any writ of error, shall, except in cases brought up by the United States or by direction of any Department of the Government, take good and sufficient security that the plaintiff in error or the appellant shall prosecute his writ or appeal to effect, and, if he fail to make his plea good, shall answer all damages and costs where the writ is a supersedeas and stays execution, or all costs only where it is not a supersedeas as afore- said. (Sec. 1000.) This provision applies alike to writs of error from the Supreme Court to Circuit Courts, and from Circuit Courts to District Courts. The security prescribed must be taken and approved by the judge or justice who signs the citation ; and this duty cannot be delegated to the clerk of the court. {O' ' Reilly v. Edrington, 6 Otto, 724 ; and The National Bank v. Omaha, 6 Otto, 737.) The legal presumption, until the contrary is shown, is that every justice or judge who signs a citation has complied with the requirement of the law in respect to taking the requisite security. {Martin v. Hunter, 1 Wheat. 304.) As to what is good and sufficient security, the justice or judge who signs the citation is the judge in the first instance. {Black v. Zacharie, 3 How. 483.) If, however, after the security has been accepted, the circumstances of the case, or of the parties, or of the sureties upon the bond have so changed that the security which at the time of taking it was good and sufficient, does not continue to be so, the Supreme Court, on proper application, may so adjudge, and order as justice may require. But upon the facts as existing when the security was accepted, the action of the justice or judge, within the statute and the rules adopted for his guidance, is final. {The Rubber Company v. Goodyear, 6 Wall. 153 ; Jerome v. McCarter, 21 Wall. 17 ; and Martin v. The Hazard Powder Company, 3 Otto, 302.) No particular form of taking the security is prescribed by the statute. The usual form is that of a bond with proper sureties, 300 THE SUPREME COURT. in favor of the adverse party ; and if the condition of the bond be that the plaintiff in error or the appellant will prosecute the writ of error or the appeal to effect, and pay the amount of costs and damages rendered or to be rendered by the judgment or decree of the Supreme Court, this will meet all the requirements of the statute. {Gay v. Parpart, 11 Otto, 391.) "Where the writ of error operates as a supersedeas, and the judgment or decree is for the recovery of money, not otherwise secured, the bond must be for the whole amount of the judgment or decree, including just damages for delay and costs and interest on appeal. But in all suits where the property in controversy necessarily follows the event of the suit, as in real actions, re- plevin, and in suits on mortgages, the indemnity is only required in an amount sufficient to secure the sum recovered for the use or detention of the property. What is necessary is that the bond should be sufficient to cover the whole case when the writ of error or appeal operates as a supersedeas. (Gatlett v. Brodie, 9 Wheat. 553 ; and French v. Shoemaker, 12 Wall. 86, 99.) An omission by the justice or judge signing the citation to take the proper bond does not necessarily invalidate the writ of error or appeal. The Supreme Court may grant summary relief in such a case by imposing such terms as under the circumstances justice requires. {Martin v. Hunter, 1 Wheat. 304 ; Seymour v. Freer, 5 Wall. 822 ; Fx parte Milwaukee Railroad Co. 5 Wall. 188 ; and Fdmonson v. Bloomshire, 7 Wall. 306.) Neither writs of error nor appeals become a supersedeas and stay execution by virtue merely of the process issued by the Supreme Court ; but when they become such by compliance with the conditions prescribed by law, if the subordinate court proceeds thereafter to issue final process, it is competent for the Supreme Court, in the exercise of its appellate jurisdiction, to correct the error by a supersedeas, and this may be done though the applica- tion for the supersedeas is made before the return day of the writ. {The Slaughter Rouse Cases, 10 Wall. 273.) Everything being done which the law prescribes, a writ of error is a supersedeas, per se, without any special order of the court making it such. {Tieman v. Booth, 4 Fed. Rep. 620 ; and Arnold v. Frost, 9 Ben. 367.) If the approval of the supersedeas bond has been obtained by fraud, and this fact is shown, the Supreme Court will vacate the PROCEDURE IN WRITS OF ERROR AND APPEALS. 301 bond and order as justice may require. {The Railroad Company v. Schutte, 10 Otto, 644.) Rule No. 29 of the Supreme Court defines the character and requirements of the supersedeas bond when the writ of error is issued from that court. 4. No Bond required of the United States. — Whenever a writ of error, appeal, or other process in law, admiralty, or equity, issues from or is brought up to the Supreme Court, or a Circuit Court, either by the United States or by direction of any Depart- ment of the Government, no bond, obligation, or security shall be required from the United States or from any party acting under the direction aforesaid, either to prosecute said suit, or to answer in damages or costs. In case of an adverse decision, such costs as by law are taxable against the United States, or against the party acting by direction as aforesaid, shall be paid out of the contingent fund of the department under whose directions the proceedings were instituted. (Sec. 1001.) 5. Writs of Error from District Courts acting as Circuit Courts. — Writs of error shall be prosecuted from the final judg- ments of District Courts acting as Circuit Courts to the Supreme Court in the same manner as from the final judgments of Circuit Courts. (Sec. 1002.) 6. Manner of issuing Writs of Error. — Writs of error re- turnable to the Supreme Court may be issued as well by the clerks of the Circuit Courts, under the seals thereof , as by the clerk of the Supreme Court. When so issued they shall be, as nearly as each case may admit, agreeable to the form of a writ of error transmitted to the clerks of the several Circuit Courts by the clerk of the Supreme Court, in pursuance of section nine of the Act of May 8th, 1792, chapter thirty-six. (Sec. 1004.) Prior to the passage of the act referred to in this section, it was held, in West v. Barnes, 2 Dall. 401, that writs of error to remove causes from inferior courts to the Supreme Court could regularly issue only from the clerk's office of the latter court. Section nine of the Act of May 8th, 1792 (1 U. S. Stat, at Large, 276), authorized the clerks of Circuit Courts to issue writs of 302 THE SUPREME COURT. error, returnable to the Supreme Court, in the same manner as issued by the clerk of this court. Such writs of error are, however, writs of the Supreme Court, and not of the Circuit Courts whose clerks may issue them. {Mussina v. Cavazos, 6 Wall. 355.) It is not required that a writ of error to an inferior court of the United States should be allowed by a judge. It is enough that it is issued and served by copy lodged with the clerk of the court to which it is directed. (Davidson v. Lanier, 4 "Wall. 447.) 7. Amendment of a Writ of Error. — The Supreme Court may, at any time in its discretion, and upon such terms as it may deem just, allow an amendment of a writ of error, when there is a mistake in the teste of the writ, or a seal to the writ is wanting, or when the writ is made returnable on a day other than the day of the commencement of the term next ensuing the issue of the writ, or when the statement of the title of the action or parties thereto in the writ is defective, if the defect can be remedied by reference to the accompanying record, and in all other particulars of form ; Provided, The defect has not prejudiced, and the amendment will not injure, the defendant in error. (Sec. 1005.) This section is based on section three of the Act of June 1st, 1872. (17 U. S. Stat, at Large, 196.) Prior to the adoption of this act, writs of error could not be amended in the Supreme Court. (Hodge v. Williams, 22 How. 87, and The City of Wash- ington v. Dennison, 6 Wall. 495.) The right of a party, under this statute, to amend a writ of error, is not absolute, but is to be granted by the court in the ex- ercise of its discretion, subject to the provisions contained in the statute. (Pearson v. Yewdall, 5 Otto, 294.) It was held, in Atherton v. Fowler, 1 Otto, 143, that, under this section, a writ of error may be amended by inserting the proper return day. 8. Amendments in Prize Appeals.— The Supreme Court may, if in its judgment the purposes of justice require it, allow any amendment, either in form or substance, of any appeal in prize causes. (Sees. 1006, 4636.) In The JVuestra Senora de Pegla, 17 Wall. 29, it was held that " in prize cases, wherein it appears that notice of appeal, or of intention to appeal to " the Supreme Court " was filed with the PROCEDURE IN "WRITS OF ERROR AND APPEALS. 303 clerk of the District Court within thirty days next after the final decree therein, an appeal will be allowed to this court whenever the purposes of justice require it." 9. Supersedeas. — In any case where a writ of error may be a supersedeas, the defendant may obtain such supersedeas by serv- ing the writ of error, by lodging a copy thereof for the adverse party in the clerk's office where the record remains, within sixty days, Sundays exclusive, after the rendering of the judgment com- plained of, and giving the security required by law on the issuing of the citation. But if be desires to stay process on the judgment, be may, having served his writ of error as aforesaid, give the se- curity required by law within sixty days after the rendition of such judgment, or afterward, with the permission of a justice or judge of the appellate court. And in such cases where a writ of error may be a supersedeas, executions shall not issue until the ex- piration of ten days. (Sec. 1007, and 18 IT. S. Stat, at Large, 318.) The twenty-second section of the Judiciary Act of 1789 (1 U. S. Stat, at Large, 73), provided for the removal of causes from a Circuit Court to the Supreme Court by writ of error, and that in such a case the citation to the adverse party shall be signed by a judge of the Circuit Court from which the cause was removed, or by a justice of the Supreme Court, and that that such party shall have at least thirty days notice. The same section provided that " every justice or judge, signing a citation on any writ of error as aforesaid, shall take good and sufficient security that the plaintiff in error shall prosecute his writ to effect, and answer all damages and costs if he fails to make good his plea." The twenty-third section of the same act provided " that a writ of error as aforesaid shall be a supersedeas, and stay execu- tion in cases only where the writ of error is served, by a copy thereof being lodged for the adverse party in the clerk's office where the record remains, within ten days, Sundays exclusive, after rendering the judgment or passing the decree complained of," and that until the expiration of this term of ten days, "execu- tions shall not issue in any case where a writ of error may be a supersedeas." Congress, by the Act of December 12th, 1794 (1 U. S. Stat, at Large, 404), provided that the security to be required and 304 THE SUPREME COURT. taken on the signing of a citation on any writ of error, which shall not be a supersedeas and stay execution, shall be only to such an amount as in the opinion of the justice or judge taking the same, will be sufficient to answer all costs as, upon an affirmance of the judgment or decree, may be adjudged or decreed to the respond- ent in error. The second section of the Act of March 3d, 1803 (2 U. S. Stat, at Large, 244), provided for the removal of equity and admiralty causes from the Circuit Courts to the Supreme Court by the process of appeal, instead of the writ of error, as had hitherto been the practice, and made such appeals " subject to the same rules, regulations, and restrictions as are prescribed by law in cases of writs of error." Such was the state of the law on this subject until 1872. The established doctrine of the Supreme Court, in the construction of this law, was that where the writ of error did not operate as a super- sedeas, the security to be given by the plaintiff in error was to be only to such an amount as would be sufficient to cover the costs, in case the judgment was affirmed ; that where the writ of error operated as a supersedeas, the security given by the plaintiff in error must be sufficient to answer all damages and costs if he failed to make his plea good ; that when the judgment or decree was for the recovery of money, not otherwise secured, the security " must be for the whole amount of the judgment or decree, includ- ing just damages for delay and costs and interest on appeal ; " and that where the writ of error was meant to operate as a supersedeas, the security must be approved and filed within the ten days assigned for the service of the writ of error. (Rule No. 29 of the Supreme Court ; Adams v. Law, 16 How. 144 ; and Rudgins v. Kemp, 18 How. 530.) The law, as thus construed and applied, was found to work many practical inconveniences, and sometimes serious injury, owing to the narrow limit of time within which the security must be given, in order to make the writ of error operate as a super- sedeas. It was to remedy these inconveniences that Congress, in the eleventh section of the Act of June 1st, 1872 (17 IT. S. Stat, at Large, 196), provided as follows : " That any party or person desiring to have any judgment, decree, or order of any District or Circuit Court reviewed on writ of error or appeal, and to stay proceedings thereon during the PROCEDUEE m "WRITS OF ERROR AND APPEALS. 305 pendency of such writ of error or appeal, may give the security required by law therefor within sixty days after the rendition of such judgment, decree, or order, or afterward with the permission of a justice or judge of said appellate court." The construction of this section came before the Supreme Court in The Telegraph Company v. Eyser, 19 Wall. 419. Mr. Justice Swayne, in stating the opinion of the court, said : " These provisions are remedial, and, therefore, to be construed liberally. So far as there is any conflict with pre-existing rules, the latter must yield. The intention of the law-maker constitutes the law. What is clearly implied ' in a statute is as effectual as what is expressed. It is expressly declared that the supersedeas bond may be executed within sixty days after the rendition of the judgment, and later, with the permission of the designated judge. It is not said when the writ of error shall be served. Its issuance must, of course, precede the execution of the bond ; and, as the judge who signs the citation is still required to take the bond, we think it is sufficiently implied that it may be served at any time before, or simultaneously with, the filing of the bond. Indeed, the giving of the bond is made the condition of the stay. The section is silent as to the writ. A construction which requires the service to be still within ten days from the rendering of the judg- ment, is, we think, too narrow. It is sustained by no sufficient reason, and would largely defeat the salutary purposes of the statute." The Act of 1872, according to this explanation, changed the time within which a bond, in order to operate as a supersedeas, might be given by the plaintiff in error upon suing out a writ of error. It might be given at any time within sixty days, instead of ten, Sundays exclusive, after the rendition of the judgment, de- cree, or order, or afterward by the permission of the designated judge. And although nothing is expressly said as to when the writ of error must be served in the manner previously prescribed, the court was of opinion that, under the act, this service might be made at any time, either before or simultaneously with the filing of the bond, instead of being limited to ten days, Sundays exclu- sive, after the rendering of the judgment or passing the decree complained of, as prescribed by the twenty-third section of the Judiciary Act of 1789. In these respects the law was changed by the Act of 1872. The Supreme Court, in The Board of Commissioners v. Cor- 20 306 THE SUPREME COURT. man, 19 "Wall. 661, had occasion to consider the same subject again. The court in this case said : "In order that a writ of error may operate as a supersedeas, it is necessary that a copy of the writ should be lodged for the ad- verse party in the clerk's office where the record remains, and that the bond approved by the judge allowing the writ should also be filed there. Execution cannot issue upon the judgment until the expiration of ten days, exclusive of Sundays, from the entry there- of. If the writ of error and bond are filed before the expiration 6f ten days, no execution can issue so long as the case in error re- mains undisposed of. After the expiration of ten days an execu- tion may issue. Notwithstanding this, under the provisions of the Act of 1872, upon the filing of the bond within sixty days from the time of the entry of the judgment a supersedeas may be obtained. Such a supersedeas, however, stays proceedings only from the filing of the bond. It prevents further proceedmg under an exe- cution which has been issued, but does not interfere with what has already been done." In this case it was held that a writ of error or appeal, under the Act of 1872, operates as a supersedeas, when it is applied for and the bond is filed within sixty days from the rendition of the judgment or decree, and that the supersedeas under the act by filing the bond within sixty days, simply stays further proceedings, without interfering with what has already been done. But this does not prevent an execution from being issued after the lapse of ten days, as contemplated by the twenty-third section of the Ju- diciary Act, when, as in the case before the court," one has been ousted from office by virtue of a writ on a judgment on the 20th of January, and the writ was executed by ousting him on the 3d of February, and on the latter day a supersedeas bond was filed, but subsequently to the execution of the writ. The execution, after the lapse of ten days, carried into effect the judgment of the court below ; and the filing of the supersedeas bond, being subse- quent to the execution, was too late to stay the execution, or to interfere with what had already been done. Neither the writ of error nor the bond was filed within ten days after the entry of the judgment ; and when the judgment had been executed, after the lapse of this period, there was nothing in the act of 1872 author- izing the Supreme Court to interfere with such execution, as a legal consequence of the filing of the supersedeas bond thereafter. The case was hence dismissed. In Kitchen v. Randolph, 3 Otto, 86, the direct question before PROCEDURE IN WRITS OF ERROR AND APPEALS. 307 the court related to the power of a justice of the Supreme Court " to allow a supersedeas in cases where an appeal was not taken or a writ of error sued out and served within sixty days, Sundays ex- clusive, after the rendition of the decree or judgment complained of." Chief Justice Waite, in stating the opinion of the court, briefly reviewed the legislation of Congress on the subject down to the adoption of the Revised Statutes, including section 1007. This section, in the last sentence as originally adopted, pro- vided that in " cases where a writ of error may be a supersedeas, execution shall not issue until the expiration of the said term of sixty days." Congress, by the A.ct of February 18th, 1875 (18 U. S. Stat, at Large, 318), provided that the words " the said term of sixty " should be stricken out, and the word " ten " should be in- serted in their place, thus re-establishing the previously adopted period within which executions shall not issue in a case where a writ of error may be a supersedeas. Commenting on this section as it now stands, Chief Justice "Waite said : "If a supersedeas is asked for when the writ is obtained, the writ must be sued out and served within the sixty days, and the requisite bond executed when the citation is signed. The policy of the old law is thus restored, the only modification being in the extension of the time allowed for action. Sixty days are given instead of ten." "Had the section stopped here, a plaintiff in error or appellant would have been compelled to elect, when he sued out his writ of error or took his appeal, whether he would have a supersedeas or not, because it is made one of the conditions of the stay of pro- ceedings that the requisite security shall be given upon the issuing of the citation. Having once made his election, he would be con- cluded by what he had done. But Congress, foreseeing undoubt- edly that cases might arise in which serious loss would result from such a rule, went further, and in a subsequent part of the section, provided that if a writ of error had been served, as provided in the first paragraph, a stay might be had as a matter of right by giving the required security within sixty days, and afterwards, as a matter of favor, if permission could be obtained from the designated jus- tice or judge. Thus prompt action in respect to the writ was re- quired, and indulgence granted only as to the security." The answer to the question before the court was given in these words: " "We are, therefore, of the opinion that under the law as it now 308 THE SUPREME COURT. stands, the service of a writ of error, or the perfection of an ap- peal within sixty days, Sundays exclusive, after the rendition of the judgment or the passing of the decree complained of, is an in- dispensable prerequisite to a supersedeas, and that it is not within the power of a justice or judge of the appellate court to grant a stay of process on the judgment or decree, if this has not been done." In Sage v. The Central Railroad Co. 3 Otto, 412, Chief Jus- tice Waite, in stating the opinion of the court, said : " A supersedeas is a statutory remedy. It is only obtained by a strict compliance with all the required conditions, none of which can be dispensed with. (Hogan v. Ross, 11 How. 297; Railroad Co. v. Harris, 7 Wall. 575.) Time is an essential element in the proceeding, and one which neither the court nor the judges can disregard. If a delay beyond the limited time occurs, the right to the remedy is gone, and the successful party holds his judgment or decree freed and discharged from this means of staying pro- ceedings for its collection or enforcement. This is a right which he has acquired, and of which he cannot be deprived without due process of law. The court can no more give effect to a super- sedeas by ordering that the appeal shall relate back to a time with- in sixty days, than it can to an appeal taken after the expiration of two years by dating it back to a time within the limitation. To make a nunc pro tunc offer effectual for such purposes, it must appear that the delay was the act of the court, and not of the par- ties, and that injustice will not be done." In Ex parte Railroad Co., 5 Otto, 221, it was held that "a writ of mandamus may issue directing the circuit judge, or the Circuit Court of the United States for the Middle district of Alabama, to allow the appeal prayed for as of July 3d, 1 877, and upon the allowance of the appeal, to accept as of the same date good and sufficient security for a supersedeas if offered." It was so ordered in this case on the ground that the appeal had been improperly refused by the court below. These cases settle the general construction of the law in respect to a supersedeas in writs of error or appeal. The writ of error must be served in the manner prescribed, or the appeal perfected, within sixty days after the rendition of the judgment or the pass- ing of the decree complained of, in order to make the writ or the appeal a supersedeas, as a matter of right, by giving the requisite security. If the writ of error has been served or the appeal per- fected within this period, then, with the permission of the desig- PROCEDURE IN WRITS OF ERROR AND APPEALS. 309 nated justice or judge, a supersedeas may be obtained after the lapse of the period, as a matter of favor. And in cases where a writ of error may be a supersedeas, executions cannot issue until the expiration of ten days after the rendition of the judgment. 10. Damages and Costs on Affirmance in Error. — Where, upon a writ of error, judgment is affirmed in the Supreme Court or a Circuit Court, the court shall adjudge to the respondent in error just damages for his delay, and single or double costs, at its discretion. (Sec. 1010.) Rules 23 and 24 of the Supreme Court contain regulations adopted by the court in giving effect to this provision. 11. Limitation of Reversal on Error. — There shall be no reversal in the Supreme Court or in a Circuit Court upon a writ of error, for error in ruling any plea in abatement, other than a plea to the jurisdiction of the court, or for any error in fact. (Sec. 1011, and 18 IT. S. Stat, at Large, 318.) In Piquignot v. The Pennsylvania, R. P. Co., 16 How. 104, Mr. Justice Grier, in stating the opinion of the Court, said : " The question raised by the plea in abatement, in this case, is one of considerable impor- tance, and on which there is some conflict of opinion and decision, but the judgment of the court below on the plea is not subject to our revision on a writ of error." 12. Appeals to the Supreme Court. — Appeals from the Cir- cuit Courts and District Courts acting as Circuit Courts, and from District Courts in prize causes, shall be subject to the same rules, regulations, and restrictions as are or may be prescribed in law in cases of writs of error. (Sec. 1012.) In The San Pedro, 2 Wheat. 132, it was held that the rules, regulations, and restrictions of law respecting the time within which a writ of error shall be brought, and in what instances it shall operate as a supersedeas, the citation to the adverse party, the security to be given by the plaintiff in error for prosecuting his suit, and the restrictions upon the appellate court as to rever- sals in certain enumerated cases, are applicable to appeals under the Act of 1803, and are to be substantially observed, except that where the appeal is prayed at the same time when the decree or sentence is pronounced, a citation is not necessary. This ruling 310 THE SUPREME COURT. was founded on the second section of the Act of March 3d, 1803 (2 IT. S. Stat, at Large, 244), which furnished the basis of section 1012 of the Kevised Statutes. The right of appeal being given by law, the court cannot refuse it, and there is no necessity for a petition to the judge to grant an appeal. {The United States v. Curry, 6 How. 106, 112.) In Hudgins v. Kemp, 18 How. 530, it was held that an ap- peal may be allowed by a judge in vacation or by the court in term ; that the only difference in the effect of such allowance is, that notice will be presumed in the latter case, but that a citation must be served in the former case ; that the allowance of the ap- peal need not be a matter of record in the court below ; that the knowledge of the clerk that an appeal was actually allowed in open court is sufficient to justify him in certifying it to the Su- preme Court ; and that the party cannot be divested of his right by the failure of the clerk to make the proper entry of the allow- ance on his record book. No citation is necessary where the appeal is allowed in open court during the term at which the decree was rendered. (Brock- ett v. Brockett, 2 How. 238, and Milner v. Meek, 5 Otto, 252, 258.) When an appeal is asked for in open court, and the secu- rity is not taken until after the term, a citation must be issued to bring in the parties, unless they voluntarily appear. {The Na- tional Bank v. Omaha, 6 Otto, 737.) 13. Cases where Both Parties Appeal. — Where appeal is duly taken by both parties, from the judgment or decree of a Cir- cuit or District Court to the Supreme Court, a transcript of the record filed in the Supreme Court by either appellant may be used on both appeals, and both shall be heard thereon in the same man- ner as if records had been filed by the appellants in both cases. (Sec. 1013.) This makes one transcript of the record sufficient for the hearing of both appeals. LIMITATION OP TIME. 311 SECTION" VIII. LIMITATION OF TIME. 1. Writs of Error and Appeals. — No judgment, decree, or order of a Circuit or District Court, in any civil action, at law or in equity, shall be reviewed in the Supreme Court, on writ of error or appeal, unless the writ of error is brought or the appeal is taken, within two years after the entry of such judgment, decree, or or- der ; Provided, That where a party entitled to prosecute a writ of error or to take an appeal is an infant, insane person, or im- prisoned, such writ of error may be prosecuted, or such appeal may be taken, within two years after the judgment, decree, or order, exclusive of the term of such disability. (Sec. 1008.) This fixes the period within which, in the cases specified, writs of error may be brought or appeals may be taken to the Su- preme Court. The period, as established by the twenty-second section of the Judiciary Act of 1789 (1 U. S. Stat, at Large, 73), was five years. Congress, by the second section of the Act of June 1st, 1872 (14 U. S. Stat, at Large, 196), made the period two years after the entry of the judgment, decree, or order, with the exceptions specified. The time at which a writ of error is regarded as being " brought " within the meaning of the statute, is not when it is simply issued from the clerk's office, but when it is actually filed in the office of the clerk of the court which rendered the judg- ment complained of. It must hence be so filed within two years after the entry of the judgment, or be barred by the statute of limitation, except in the cases named. (Brooks v. Norris, 11 How. 204, and Thomas v. Broohenbrough, 10 Wheat. 146.) If, however, a writ of error or an appeal has been dismissed for some defect or inf ormality in prosecuting it, the party may sue out a second writ of error, or take a second appeal, if he does so within the time designated by the statute. ( Yeaton v. Lenox, 8 Pet. 123, and The Steamer Virginia, 19 How. 182.) In Hanger v. Abbott, 6 Wall. 532, it was held that statutes of limitation do not apply to a case in which a non-resident of one of the lately rebellious States was prevented, in consequence of the rebellion, from bringing suit against a resident thereof, for the re- 312 THE SUPREME COURT. covery of a debt. The time of such rebellion was not to be com- puted in the application of such statutes. This principle was, in The Protector, 9 "Wall. 6S7, held to apply to the limitation of time within which writs of error must be sued out or appeals ta- ken to the Supreme Court. In The United States v. Gomez, 1 Wall. 690, it was held that there is no final decree until the decree is filed, and that if a de- cree is amended by the substitution of another decree, the last is the final decree, and hence that the limitation of time runs from the filing of this decree. In The Dos Hermanos, 10 "Wheat. 306, it was held that if the security was not given within the time prescribed by law, the court may disallow the appeal and refuse the security, although the appeal was prayed within that time. But if the court accepts the security, this must be considered as a sufficient compliance with its order, and relates back to the time of the allowance of the appeal. " The mode of taking the security," said Chief Justice Marshall, " and the time for perfecting it, are matters of discre- tion, to be regulated by the court granting the appeal ; and when its order is complied with, the whole has relation back to the time when the appeal was prayed." It is worthy of notice that this statute of limitation applies only, in express terms, to " any civil action, at law or in equity," and does not expressly say anything about the review of final de- crees in cases of admiralty and maritime jurisdiction, for which provision is made in section 692 of the Revised Statutes. What then is the period within which an appeal must be taken in an admiralty case, which is not a prize cause elsewhere provided for, but is, for example, a case of marine contract, or marine tort ? The twenty-second section of the Judiciary Act of 1789 (1 U. S. Stat, at Large, 73) provided that the " final judgments and de- crees in civil actions and suits in equity in any Circuit Court " might be reviewed in the Supreme Court, provided the proper writs of error were brought within five years after rendering or passing the decree or judgment complained of. The writ of error was in all cases the method of review, until by the Act of March 3d, 1803 (2 TJ. S. Stat, at Large, 244), an appeal was substituted for the writ of error in " cases of equity, of admiralty and mari- time jurisdiction, and of prize or no prize," in which cases the appeal was declared to be " subject to the same rules, regulations LIMITATION OF TIME. 313 and restrictions as are prescribed in law in cases of writs of error." Cases of admiralty and maritime jurisdiction were, in the twen- ty-second section of the Judiciary Act, evidently included in the general title of " civil actions," as distinguished from " suits in equity," and were subject to the limitation of five years. "When, by the Act of 1803, an appeal was in these cases substituted for a writ of error, the same limitation of time was continued. And, under these two acts, the same limitation of time existed whether the case was removed to the Supreme Court by writ of error or appeal. The second section of the Act of June 1st, 1872 (17 IT. S. Stat, at Large, 196), which furnished the basis for section 1008 of. the Revised Statutes, substituted two instead of five years as the period within which writs of error must be brought or appeals be taken to the Supreme Court, in order to enable the court to review the judgments or decrees of any Circuit or District Court, " in any civil action at law or in equity." Mr. Phillips expresses the opinion that the phrase " civil action at law," as used in this stat- ute and transferred to section 1008 of the Revised Statutes, was intended to embrace cases of admiralty and maritime jurisdiction, and is equivalent to the phrase " civil actions," as employed in the twenty-second section of the Judiciary Act of 1789. (Phillips' Practice, revised ed. p. 111.) This is the reasonable view. Unless this view be adopted, there is no legal provision as to the time within which appeals in admiralty and maritime cases must be taken to the Supreme Court. The Revised Statutes do not, unless it be in section 1008, contain any limitation of time in such cases. 2. Appeals in Prize Causes. — Appeals in prize causes shall be made within thirty days after the rendering of the decree ap- pealed from, unless the court previously extends the time for cause shown in the particular case ; Provided, That the Supreme Court may, if in its judgment the purposes of justice require it, allow an appeal in any prize cause, if it appears that any notice of appeal or of intention to appeal was filed with the clerk of the District Court within thirty days next after the rendition of the final decree therein. (Sec. 1009.) This section is founded on section thirteen of the Act of June 314 THE SUPREME COURT. 30th, 1864 (13 U. S. Stat, at Large, 306), and section two of the Act of March 3d, 1873. (17 U. S. Stat, at Large, 556.) Con- gress, in enacting the Kevised Statutes, incorporated provisions in both of these sections into section 1009 of these Statutes. In The Nuestra Senora de Begla, 17 Wall. 29, Chief Justice Chase said : " In prize causes, whenever it appears that notice of appeal or of intention to appeal to this court was filed with the clerk of the District Court within thirty days next after the final decree therein, an appeal will be allowed to this court whenever the purposes of justice require it." SECTION" IX. WRIT POWERS OF THE COURT. The Kevised Statutes of the United States confer these powers upon the Supreme Court in the following provisions : 1. Writs of Scire Facias and other Writs. — The Supreme Court, and the Circuit and District Courts shall have power to issue writs of scire facias. They shall also have power to issue all writs not specifically provided for by statute, which may be neces- sary to the exercise of their respective jurisdictions, and agreeable to the usages and principles of law. (Sec. 716.) The powers here granted are equally bestowed on all these courts. The writ of scire facias is the only writ specifically designated in this section. This writ, with the proceedings thereon, is founded upon public records of some kind, either judicial or non- judicial. The judicial records are judgments in former suits and recognizances which are of the nature of judgments. The non-ju- dicial records are letters patent and corporate charters. (Bou- vier's Law Dictionary.) The writ may be resorted to for repealing letters patent, or for ascertaining and enforcing the forfeiture of corporate charters. It recites the judgment or other record involved in the case, and also the suggestions which the plaintiff must make to the court to entitle him to the proceeding by scire facias, and hence sets forth the plaintiff's whole case, and constitutes the declaration to which the defendant must plead. Mr. Justice G-rier, in Winder v. Caldwell, 14 How. 434, 443, WRIT POWERS OF THE COURT. 315 Baid : " A scire facias is a judicial writ to enforce the execution of some matter of record on which it is usually founded ; but though a judicial writ, or writ of execution, it is so far an original [process] that the defendant may plead to it. As it discloses the facts on which it is founded and requires an answer from the de- fendant, it is in the nature of a declaration, and the plea is prop- erly to the writ. In the present case the bill of particulars of the plaintiff's claim is filed of record under the statute which gives this remedy, and it is recited in the writ and thereby made part of it, so that any further pleading on his part, to set forth the na- ture of his demand, would be wholly superfluous." In Ex parte Wood, 9 Wheat. 603, the tenth section of the Pat- ent Act of February 21st, 1793 (1 U. S. Stat, at Large, 318), which provided for the repeal of patents that had been surreptitiously obtained, came under the consideration of the Supreme Court. It was held in this case that, under the provisions of the section, a writ, in the nature of a scire facias, to the patentee to show cause why the patent should not be repealed, with costs of suit. was the proper process to be adopted, and that a mandamus should be issued to the judge of the District Court, directing him thus to proceed. The other writs which the Supreme Court is, in this section, authorized to issue, are not designated except in general terms. These terms embrace " all writs " which are not elsewhere specifi- ■ cally provided for by statute, which may be necessary for the ex- ercise of the jurisdiction of the court, and which are agreeable to the usages and principles of law. One of the conditions specified in general terms is the neces- sity of the writ for the exercise of the jurisdiction of the court. This assumes that the jurisdiction already exists, and is to be exer- cised by the issue of the writ, and hence that it is not to be ac- quired by the means of the writ. The necessity of the writ to the exercise of such jurisdiction is the statutory condition precedent to the power of issuing it. It is to be issued as a proper method of exercising such jurisdiction ; and of this the court is to judge in each case. {The United States v. Plumer, 3 Cliff. 28.) The other condition is that the writ must be " agreeable to the usages and principles of law." Mr. Justice Clifford, in Biggs v. Johnson County, 6 Wall. 166, 190, said: "Usages of law, and not of the common law, it will be observed, are the words of the 316 THE SUPREME COURT. provision, which doubtless refers to the principles and usages of law as known and understood in the State courts, at the date of that enactment." The date of the original enactment was in 1789. (1 U. S. Stat, at Large, 73, 81.) Mr. Justice Thompson, in The Bank of the United States v. Halsted, 10 "Wheat. 51, 56, having referred to the fourteenth sec- tion of the Judiciary Act of 1789, proceeded to say: "The pre- cise limitations and qualifications of this power, under the terms, ' agreeable to the principles and usages of law,' is not, perhaps, so obvious. It doubtless embraces writs sanctioned by the principles and usages of the common law. But it would be too limited a construction, as it respects writs of execution, to restrict it to such only as were authorized by the common law. It was well known to Congress that there were in use in the State courts writs of ex- ecution other than such as were conformable to the usages of the common law. And it is reasonable to conclude that such were in- tended to be included under the general description of writs agree- able to the principles and usages of law." " The usages and principles of law, as referred to in the section, then mean not only those found in the common law, but also those that existed in the practice of State courts. It is enough that the writ is agreeable to these usages and principles in either sense. Writs of mandamus, of certiorari, of injunction, of supersedeas, of subpoena, of subpwna duds tecum, of attachment, of execu- tion, of inhibition, and of assistance, are agreeable to the usages, and principles of law, and, when necessary for the exercise of the jurisdiction of the Supreme Court, may be issued by that court, and may under like circumstances, be issued by the District and Circuit Courts of the United States. The power to issue writs is not simply that which respects pro- ceedings prior to judgments or decrees, but extends to all proceed- ings necessary to carry those judgments or decrees into effect. The power is equally applicable in both cases, and in both equally necessary for the exercise of the jurisdiction of the court. ( Way- man v. Southard, 10 Wheat. 1, and The Bank of the United States v. Halsted, 10 Wheat. 51.) 2. Writs of Ne Exeat.— Writs of ne exeat may be granted by any justice of the Supreme Court, in cases where they might be granted by the Supreme Court ; and by any circuit justice or WRIT POWERS OF THE COURT. 317 circuit judge in cases where they might be granted by the Circuit Court of which he is a judge. But no writ of ne exeat shall be granted unless a suit in equity is commenced, and satisfactory proof is made to the court or judge granting the same, that the defendant designs quickly to depart from the United States. (Sec 717.) This writ is a chancery writ, issued upon the motion of the complainant, setting forth that the defendant is about to depart beyond the jurisdiction of the court, and directing that he be re- quired to give bail in a certain sum that he will not depart with- out the permission of the court, and in a failure to furnish such bail, ordering his commitment to prison. The design of the writ is to prevent debtors from escaping from their creditors. It is assumed, in this section, that the Supreme Court and also the Circuit Courts, upon the showing of the requisite facts, have the power to issue the writ. The exercise of the power is neces- sary to their jurisdiction, and agreeable to the usages and princi- ples of law, in cases to which the writ is applicable. The direct provision of the section is, that the writ may be is- sued by any justice of the Supreme Court, in any case in which the court could issue it, or by any circuit justice or judge in any case in which the Circuit Court of which he is a judge could issue the writ. The qualification of the power granted is that no writ of ne exeat shall be issued unless a suit in equity is commenced, and satisfactory proof is made to the court or judge granting the same that the defendant designs quickly to depart from the United States. No power is here given to district judges of the United States to issue writs of ne exeat. (Gernon v. Boccaline, 2 Wash. 130.) Mr. Justice Nelson, in Graham v. Stucken, 4 Blatch. 50, held that, in order to the issue of the writ, the demand must be an equitable debt or pecuniary claim, and be certain or capable of be- ing reduced to certainty, and that a general unliquidated demand, or one in the nature of a claim for damages, which cannot be re- garded as a debt until the decree, will not lay a foundation for the writ. He held that the case before the court did not come within this principle, and on this ground dismissed the application for the writ. 318 THE SUPREME COURT. 3. Writs of Injunction. — "Writs of injunction may be granted by any justice of the Supreme Court in cases where they might be granted by the Supreme Court, and by any judge of a Circuit Court in cases where they might be granted by such court. But no justice of the Supreme Court shall hear or allow any applica- tion for an injunction or restraining order in any cause pending in the circuit to which he is allotted, elsewhere than within such cir- cuit, or at such place outside of the same as the parties may stipu- late in writing, except when it cannot be heard by the circuit judge of the circuit or the district judge of the district. And an injunction shall not be issued by a district judge, as one of the judges of a Circuit Court, in any case where a party has had rea- sonable time to apply to the Circuit Court for the writ ; nor shall any injunction so issued by a district judge continue longer than to the Circuit Court next ensuing, unless so ordered by the Cir- cuit Court. (Sec. 719.) An injunction is a prohibitory writ issued by the authority of, and generally under the seal of, a court of equity, to restrain one or more of the defendant parties or quasi parties to a suit or pro- ceeding in equity from doing, or from permitting his servants or others who are under his control to do, an act which is deemed to be unjust or inequitable so far as regards the rights of some other party to such suit or proceedings in equity. (Bouvier's Law Dic- tionary.) Only a part of the above section applies exclusively to the jus- tices of the Supreme Court, in their character as such justices ; and this part expressly declares that any such justice may grant writs of injunction in cases where the court could grant them. The cases in which the court may issue these writs are those in which they are necessary for the exercise of its jurisdiction, and agree- able to the usages and principles of law. A justice of the court in any such case may issue the writ. His powers in this respect are the same as those of the court. The Supreme Court, in Georgia v. Brailsford, 2 Dall. 402, was asked to grant and did grant a writ of injunction staying cer- tain funds in the hands of the marshal until the title of the State could be tried. The court here bad jurisdiction of the ease be- cause a State was a party to the suit, and issued the writ as a means of exercising that jurisdiction. In New York v. Connecticut, 4 Dall. 1, it was held that nei- WRIT POWERS OF THE COURT. 319 ther the Supreme Court nor any single justice thereof can grant a writ of injunction without reasonable notice to the adverse party ; that what is reasonable notice depends on the circumstances of the case ; and that an injunction to stay proceedings at law will not be granted at the instance of one not a party to or interested in those proceedings. The Supreme Court, in The Cherokee Nation v. Georgia, 5 Pet. 1, declined to grant a temporary injunction to restrain the State from enforcing the laws of Georgia within the territory al- leged to belong exclusively to the Cherokee Nation, on the ground that it had no jurisdiction, since the Cherokee Nation, not being a foreign State and not a State of the Union, was not entitled to bring the suit. Chief Justice Marshall, in stating the opinion of the court, said that what the bill of complaint asked the court to do, " savors too much of political power, to be within the proper province of the judicial department." In Mississippi v. Johnson, 4 Wall. 475, it was held that the President of the United States cannot be restrained by an injunc- tion from carrying into effect an act of Congress alleged to be un- constitutional, and that a bill having such a purpose will not be allowed to be filed. In Georgia v. Stanton, 6 "Wall. 50, it was held that a bill in equity filed by one of the United States to enjoin the Secretary of War and other officers who represent the executive authority of the United States from carrying into execution certain acts of Congress, on the ground that such execution would annul and to- tally abolish the existing State government of the State and estab- lish another and different one in its place, calls for a judgment upon a political question, and will not therefore be entertained by the Supreme Court. The Supreme Court, in Hill v. The United States, 9 How. 386, laid down the broad principle that a bill in equity to enjoin the Government of the United States cannot be entertained by any Federal court. The same principle had been previously as- serted in The United States v. MoLemore, 4 How. 286. No justice of the Supreme Court, acting as such, and not as a circuit justice allotted to a particular circuit, has any power to grant writs of injunction in cases where the court is without the power. It is only in cases where the court has the power to grant such writs, that he can grant them. 320 THE SUPREME COURT. 4. Injunctions to Stay Proceedings in State Courts.— The writ of injunction shall not be granted by any court of the United States to stay proceedings in any court of a State, except in cases where such injunction may be authorized by any law relating to proceedings in bankruptcy. (Sec. 720.) This prohibition applies alike to all the courts of the United States. The only exception is that which is authorized by any law relating to proceedings in bankruptcy. Section 5106 of the Eevised Statutes, founded on the twenty-first section of the Act of March 2d, 1867 (14 U. S. Stat, at Large, 526), authorizes an in- junction in such cases to stay proceedings in a State court. The subsequent repeal of the National Bankrupt Law by Congress makes this section inoperative, and leaves the general provision of section 720 without any exception. The basis of this provision is found in the fifth section of the Act of March 2d, 1793 (1 U. S. Stat, at Large, 333.) The Supreme Court has repeatedly affirmed the doctrine that no court of the United States can enjoin proceedings in a State court, with the single exception made by a national Bankrupt Law when such law is in operation. (Diggs v. Wolcott, 4 Cranch, 179 ; Peck v. Jenness, 7 How. 612 ; Watson v. Jones, 13 "Wall. 679 ; and Haines v. Carpenter, 1 Otto, 254.) In The Slaughter 'Souse Cases, 10 "Wall. 273, 298, it was held that the provision of the statute applies to the Supreme Court, as well as to the Circuit Courts of the United States, and that the former cannot by injunction stay proceedings in a subordinate State court, even when a writ of error to the appellate State court has been allowed. Mr. Justice Clifford said in these cases " that there is no appellate relation between a subordinate State court and the Supreme Court of the United States, and where no such relation is established by law the prohibition " of the statute " ap- plies to the Supreme Court as well as to the Circuit Court." In French v. Hay, 22 "Wall. 250, it was held that when, in a case which is properly removed from a State court, under one of the acts of Congress relating to removals, into the Circuit Court of the United States, a complainant getting a decree in the State court and sending a transcript of it into another State, sues the defendant on it there, the Circuit Court into which the case was removed may enjoin the complainant from proceedings in any such or other distant court until it hears the case ; and if, after hearing, WRIT POWERS OF THE COURT. 321 it annuls the decree in the State court, and dismisses, as wanting in equity, the bill on which the decree was made, may make the injunction perpetual. Mr. Justice Swayne said in this case : " The prohibition in the Judiciary Act against the granting of injunc- tions by the courts of the United States touching proceedings in State courts has no application here. The prior jurisdiction of the court below took the case out of the operation of that provision." Judge Blatchford, in Fisfc v. The Union Pacific B. B. Co., 10 Blatch. 518, held that the prohibition of the statute has appli- cation only to proceedings commenced in a State court before proceedings are commenced in a Federal court, and that where proceedings have already been instituted in a Federal court against a defendant company, the court, in order to continue its jurisdic- tion over the company, may, if necessary, restrain it by injunction from taking steps in a State court to put itself out of existence. In construing the statute in Fish v. The Union Pacific R. B. Co., 6 Blatch. 362, 399, Judge Blatchford said: "The statute uses, indeed, the words ' a writ of injunction ; ' but the spirit of it is that this court shall not in any manner stay a proceeding in a court of a State. It is not an inhibition merely against issuing an injunction in the shape of a writ of injunction, mandamus, or prohibition, directed to the State court itself, but it has been con- strued always as an inhibition against staying a party from con- ducting such proceedings in a State court." (The City Bank of New York v. SJcelton, 2 Blatch. 14, 18.) Judge Hall, in The United States v. Collins, 4 Blatch. 142, 156, expressed the opinion that the term "proceedings," as occur- ring in the statute of prohibition, "must necessarily include all steps taken by the court, or by its officers under its process, from the institution of the suit until the close of the final process of ex- ecution which may issue therein." ( Cropper v. Coburn, 2 Curt. 465, 468, 469.) These cases illustrate the construction which has been placed upon this statute by the courts of the United States. The statute is one of restraint ; and the design of Congress in enacting it was to prevent the Federal courts from interference by writs of injunc- tion with proceedings in State courts, alike in respect to the courts themselves and the parties to such proceedings in these courts. The same principle equally applies to the power of a State court 31 322 THE SUPREME COURT. to stay proceedings in a Federal court. (McKim v. Voorhies, 7 Cranch, 279.) 5. Writs of Habeas Corpus. — The Supreme Court and the Circuit and District Courts shall have power to issue writs of ha- beas corpus. (Sec. 151.) The several justices and judges of the said courts, within their respective jurisdictions, shall have power to grant writs of habeas corpus for the purpose of an inquiry into the cause of restraint of liberty. (Sec. 752.) The writ of habeas corpus shall in no case extend to a prisoner in jail, unless where he is in custody under or by color of the au- thority of the United States, or is committed for trial before some court thereof ; or is in custody for an act done or omitted in pur- suance of a law of the United States, or of an order, process, or decree of a court or judge thereof ; or is in custody in violation of the Constitution or of a law or treaty of the United States ; or, being' a subject or citizen of a foreign State, and domiciled therein, is in custody for an act done or omitted under any alleged right, title, authority, privilege, protection, or exemption claimed under the commission, or order, or sanction of any foreign State, or un- der color thereof ; or unless it is necessary to bring the prisoner into court to testify. (Sec. 753.) The first two of the above sections grant the power to issue writs of habeas corpus j and the third provides that the writ shall not extend to any prisoner in jail, except in the cases specified, and implies that in these cases it may be issued. The words " writs of habeas corpus," as used in the statute, evidently embrace all kinds or forms of this writ, as known to the common law ; and hence the common law may be referred to in ascertaining their meaning. Chief Justice Marshall, in Ex parte Bellman and Ex parte Swartwout, 4 Cranch, 75, said " that, for the meaning of the term habeas corpus, resort may unquestionably be had to the common law ; but the power to award the writ by any of the courts of the United States must be given by written law." The Chief Justice further said in this case : " The decision that the individual shall be imprisoned must always precede the appli- cation for a writ of habeas corpus, and this writ must always be for the purpose of revising that decision, and, therefore, appellate WRIT POWERS OF THE COURT. 323 in its nature." This view was taken in The United States v. Hamilton, 3 Dall. 17, and in Ex parte Burford, 3 Cranch, 448. The general object of the writ of habeas corpus, as conferred by the statute, with the single exception of those cases in which prisoners are wanted as witnesses, is to afford prompt relief to persons who may be illegally restrained of their liberty. These persons are described as prisoners, and as being " in jail," or " in custody." The inquiry instituted in each case is into the cause of the restraint ; and if the restraint be without legal authority, the court or judge issuing the writ, and for the time being taking judicial custody of the party, discharges him therefrom, and at once restores him to his liberty. If, on the other hand, the custo- dy be according to due legal authority, the writ is dismissed and the party remanded thereto. It is not the purpose of the writ to release those who are imprisoned under the proper exercise of le- gal authority, or to pass upon the question of their guilt or inno- cence. The power to issue this writ is given to the Supreme Court, and to the several justices thereof who may issue the writ when the court is not in session. This power includes the power of de- termining the points involved in a habeas corpus proceeding. Mr. Justice Story, after stating the case in Ex parte Barry, 2 How. 65, proceeded to say : " It is plain, therefore, that this court has no original jurisdiction to entertain the present petition ; and we cannot issue any writ of habeas corpus, except when it is nec- essary for the exercise of the jurisdiction, original or appellatej given to it by the Constitution or laws of the United States." The Supreme Court, if having no jurisdiction, either original or appel- late, of the case, must, of course, dismiss the application for a writ of habeas corpus. In The Matter of Metzger, 5 How. 176, it was held that the court was without jurisdiction to issue a writ of habeas corpus. Metzger was imprisoned as a fugitive from justice, under a war- rant from a district judge of the United States, to abide the order of the President for his delivery to the Government of France. The case was considered and decided by the judge at chambers, and not in court ; and the question before the Supreme Court was whether, in such a state of facts, it had any jurisdiction to inquire into the cause of the imprisonment. This question was answered in the negative. 324 THE SUPREME COURT. Mr. Justice McLean, in stating the opinion of the court, said : " There is no form in which an appellate power can be exercised by this court over the proceedings of a district judge at his chambers. He exercises a special authority, and the law has made no provision for the revision of his judgment. It cannot be brought before the District or Circuit Court; consequently, it cannot, in the nature of an appeal, be brought before this court. The exercise of an original jurisdiction only could reach such a proceeding, and this has not been given by Congress, if they have the power to confer it." Reference was made to the case of Bollman dc Swartwout, 4 Cranch, 75, of Ex parte Kearney, 7 Wheat. 38, and of Ex parte Watkins, 3 Pet. 193, as cases in which the court had based the power of issuing the writ on its appellate jurisdiction, which did not apply in the case of Metzger. In Ex parte Tobias Watkins, 7 Pet. 568, it was held that the court had power to issue a writ of habeas corpus to inquire into the legality of imprisonment under a writ of capias ad satisfacien- dum issued by the Circuit Court of the District of Columbia, since it was a case for the exercise of appellate jurisdiction. Mr. Justice Story remarked in this case: "The question turns upon this, whether it is an exercise of original or appellate jurisdiction. If it be the former, then, as the present is not one of the cases in which the Constitution allows this court to exercise original juris- diction, the writ must be denied." He, however, held that the appellate jurisdiction of the court applied to the case. On this ground the writ was issued, and the prisoner was discharged. In Ex parte Yerger, 8 Wall. 85, it was held that, in all cases where a Circuit Court of the United States has, in the exercise of its original jurisdiction, caused a prisoner to be brought before it, and has, after inquiring into the cause of detention, remanded him to the custody from which he was taken, the Supreme Court, in the exercise of its appellate jurisdiction) may, by the writ of habeas corpus, aided by the writ of certiorari, revise the decision of the Circuit Court, and, if it be found unwarranted by law, relieve the prisoner from the unlawful restraint to which he has been re- manded. The case of Ex parte Milligan, 4 Wall. 2, came before the Supreme Court upon -a certificate of division from the judges of the Circuit Court for Indiana, on a petition of Milligan for a writ of habeas corpus to discharge him from unlawful imprisonment. WRIT POWERS OF THE COURT. 325 The Supreme Court held that where a Circuit Court renders a final judgment refusing to discharge the prisoner on habeas corpus, he may bring the case to the Supreme Court by writ of error, and that if the judges of the Circuit Court, being opposed in opinion, can render no judgment, he may have the point upon which the disagreement happens certified to # the Supreme Court. The Supreme Court answered the questions certified to it in this case as follows : 1. That a writ of habeas corpus ought to be issued by the Circuit Court. 2. That Milligan ought to be discharged according to the prayer in his petition. 3. That the military commission by which he was tried and sentenced to death, had no jurisdiction of the case, and hence that the whole proceeding was null and void. In Ex parte Lange, 18 Wall. 163, the doctrine was laid down that, where a prisoner shows that he is held under a judgment of a Federal court, made without authority of law, the Supreme Court will, by writs of habeas corpus and certiorari, look into the record, so far as to ascertain that fact, and, if it is found to be so, will discharge the prisoner. In Ex parte Parks, 3 Otto, 18, it was held : 1. That where an inferior court has jurisdiction of the cause and the person in a criminal suit, and no writ of error lies from the Supreme Court, it will not on habeas corpus review the legality of the proceedings. 2. That it is only where the proceedings below are entirely void, either for want of jurisdiction or other cause, that such relief will be given. 3. That whether a matter for which a party is indicted in the District Court is, or is not, a crime against the laws of the United States, is a question within the jurisdiction of that court which it must decide, and that its decision will not be reviewed by the Supreme Court on habeas corpus. In Ex parte Virginia, 10 Otto, 339, it was held that while a writ of habeas corpus cannot generally be made to subserve the purposes of a writ of error, yet when a prisoner is held without any lawful authority, and by an order which an inferior court of the United States had no jurisdiction to make, the Supreme Court will, in favor of liberty, grant the writ, not to review the whole case, but to examine the authority of the court below to act at all. In Ex parte Siebold, 10 Otto, 371, the following principles were laid down : 1. That the appellate jurisdiction of the Supreme Court, exercisible by the writ of habeas corpus, extends to a case 326 THE SUPREME COURT. of imprisonment upon conviction and sentence of a party by an inferior conrt of the United States, under aud by virtue of an unconstitutional act of Congress, whether the Supreme Court has jurisdiction to review the judgment of conviction by writ of error or not. 2. That the jurisdiction of the Supreme Court by habeas corpus, when not restrained by some special law, extends gener- ally to imprisonment pursuant to the judgment of an inferior tribunal of the United States which has no jurisdiction of the cause, or whose proceedings are otherwise void and not merely erroneous, and that such a case occurs when the proceedings are had under an unconstitutional act. 3. That when the court below has jurisdiction of the cause, and the matter charged is indictable under a constitutional law, any errors committed by the inferior court can only be reviewed by writ of error, and cannot be re- viewed at all if no writ of error lies. 4. That where personal liberty is concerned, the judgment of an inferior court affecting it is not so conclusive but that the question of its authority to try and imprison the party may be reviewed on habeas corpus by a superior court or judge having power to award the writ. These cases embody the general principles which have been adopted by the Supreme Court in respect to the writ of habeas corpus as an exercise of its appellate power. Chief Justice Chase, in Ex parte Terger, 8 Wall. 85, 99, said : " We regard as estab- lished upon principle and authority, that the appellate jurisdiction by habeas corpus extends to all cases of commitment by the judi- cial authority of the United States, not within any exception made by Congress." This is a broader proposition, and in the light of all the cases a truer one, than that adopted in Metsger's Case, 5 How. 176. The general doctrine which seems to be established is that, if a party is imprisoned under the authority or the color of the authority of the United States, the Supreme Court may by writ of habeas corpus inquire into the lawfulness of that imprisonment, and afford relief if such imprisonment be without due legal authority. The writ of habeas corpus may also be issued by any justice of the Supreme Court, as well as by the court itself; and, in regard to it when so issued, Mr. Justice Bradley, in stating the opinion of the court in Ex parte Clarice, 10 Otto, 399, said : 'I This appellate character of the proceeding attaches to a large portion of the cases on habeas corpus, whether issued by a single WRIT POWERS OF THE COURT. 327 judge or by a court. The presence of this feature in the case was no objection to the issue of the writ by the associate justice, and is essential to the jurisdiction of this court. The justice who issued it could undoubtedly have disposed of the case himself, though not, at the time, within his own circuit. A justice of this court can exercise the power of issuing the writ of habeas corpus in any part of the United States where he happens to be. But as the case is one of which this court also has jurisdiction, if the ' justice who issued the writ found the questions involved to be of great moment and difficulty, and could postpone the case here for the consideration of the whole court without injury to the petitioner, we see no good reason why he should not have taken "this course, as he did. It had merely the effect of making the application for a discharge one addressed to the court, instead of one addressed to a single justice. This has always been the prac- tice of English judges in cases of great consequence and difficulty, and we do not see why it may not be done here." The writ of habeas corpus in this case was granted by Mr. Justice Strong, who admitted the petitioner to bail, and made an order for the hearing of the case before the whole court. This raised the question whether the Supreme Court could proceed upon a writ of habeas corpus which was originally issued by a justice thereof, and was postponed and referred by him to the whole court for determination. This question was answered in the affirmative, and the remarks of Mr. Justice Bradley, above quoted, were designed to give a reason for the answer. Referring to Kaine's Case, 14 How. 103, in which the Supreme Court held that it could not act upon a writ thus referred to it by Mr. Justice Nelson, he said : "But the ground taken there was, that the writ had been issued by him in virtue of his original jurisdiction, though the court was of opinion that it could issue a new writ upon the papers before it in virtue of its own appellate jurisdiction, and would do so if the case required it ; but, being of opinion that there was no case on the merits, the application was discharged. But in this case, however it may have been in that, it is clear that the writ, whether acted upon by the justice who issued it, or by this court, would in fact require a revision of the action of the Circuit Court by which the petitioner was committed, and such revision would necessarily be appellate in its character." The doctrine established by this case is, that any justice of the Supreme Court may, in vacation, issue a writ of habeas corpus in any case in which the Supreme Court could do so, and, the case 328 THE SUPREME COURT. being one which contemplates a revision of the action of an infe- rior court, the justice issuing the writ may dispose of the case himself, or may remit it to the whole court for determination. The provisions of the statute, regulating proceedings under the writ, imply that a justice of the Supreme Court, if issuing the writ, may exercise all the powers of the court in disposing of the case. * 6. Writs of Prohibition and Mandamus. — The Supreme Court shall have power to issue writs of prohibition to the District Courts when proceeding as courts of admiralty and maritime juris- diction, and writs of mandamus, in cases warranted by the princi- ples and usages of law, to any courts appointed under the author- ity of the United States, or to persons holding office under the au- thority of the United States, where a State, or an ambassador or other public minister, or consul or vice-consul is a party. (Sec. 688.) (1.) Prohibition. — The power of the Supreme Court to issue a writ of prohibition, as here given, is qualified by two conditions. The first is that the writ must be issued to a District Court of the United States ; and the second is that it is to be issued to this court only when proceeding as a court of admiralty and maritime jurisdiction. The power, as thus qualified, is not a general power of issuing writs of prohibition, whenever necessary to the juris- diction of the Supreme Court, but only a specific power, to be ex- ercised subject to the conditions stated. Mr. Justice Miller, in The United States v. Hoffman, 4 Wall. 158, said : " The writ of prohibition, as its name imports, is one which commands the person to whom it is directed not to do some- thing which, by the suggestion of the relator, the court is informed he is about to do. If the thing be already done, it is manifest the writ of prohibition cannot undo it, for that would require an affirma- tive act ; and the only effect of a writ of prohibition is to suspend all action, and to prevent any further proceeding in the prohibited direction. In the case before us the writ, from its very nature, could do no more than forbid the judge of the District Court from proceeding any further in the case in admiralty." The case had been disposed of by the court below, and hence was not one to which the writ of prohibition was applicable, since it could not undo what had already been done. Nor would the WRIT POWERS OF THE COURT. 329 writ be issued, though the final disposition of the case in the court below was made by the judge after the service on him of a rule to show cause why the writ should not be issued, and though other cases of the same character might be pending in the same court. On this point Mr. Justice Miller said : " We are not prepared to adopt the rule that we will issue a writ in a case where its issue is not justified, for the sole purpose of establishing a principle to govern other cases." In Ex parte Eaton, 5 Otto, 68, 77, it was held that whether a writ of prohibition should be issued to a District Court, when proceeding as a court of admiralty and maritime jurisdiction, de- pends upon the facts stated in the record upon which the court is called to act. Matters, dehors that record, which are set forth in the petition for the writ, will not be considered by the Supreme Court. In Ex parte Christy, 3 How. 292, it was held that the Su- preme Court has no power, by a writ of prohibition, to , revise the proceedings of a District Court when sitting in bankruptcy, and that it could not issue the writ to the court except when the pro- ceeding was one of admiralty and maritime jurisdiction. In Ex parte Gordon, 1 Black, 503, the Supreme Court held that it has no power to issue a writ of prohibition in a case where it has no appellate jurisdiction over the court to which the writ must go, nor any special authority by statute. The doctrine laid down in Exparte Christy, supra, was re-affirmed in this case. Proceedings to confiscate real estate under the Act of July 17th, 1862, entitled " An Act to suppress insurrection, to punish trea- son and rebellion, to seize and confiscate the property of rebels," &c, are not proceedings in admiralty, although the act declares that " they shall be in rem, and conform as near as may be to pro- ceedings in admiralty and revenue cases," and in such proceed- ings the Supreme Court will not issue a writ of prohibition to a District Court, since the writ is confined to cases in which the District Courts are proceeding as courts of admiralty. {Exparte Graham, 10 Wall. 541.) In Exparte Warmouth, 17 Wall. 64, an application was made for a writ of prohibition to the Circuit Court for the district of Louisiana, on the ground that the court was proceeding without authority of law. The application was dismissed. Chief Justice Chase said ; " We are all of opinion that when a final decree shall 330 THE SUPREME COURT. be rendered in the Circuit Court in this case, an appeal will lie to this court. We are also of opinion that this court has no juris- diction in this case to issue a writ of prohibition until an appeal is taken." (2.) Mandamus. — The provision for writs of mandamus, as made in the thirteenth section of the Judiciary Act of 1789 (1 U. S. Stat, at Large, 73), was that the Supreme Court shall have power to issue " writs of mandam.us, in cases warranted by the principles and usages of law, to any court appointed, or persons holding office, under the authority of the United States." This provision, as reproduced in section 688 of the Revised Statutes, declares that the Supreme Court shall have power to issue " writs of mandamus in cases warranted by the principles and usages of law, to any courts appointed under the authority of the United States, or to persons holding office under the authority of the United States, where a State, or an ambassador, or other public minister, or a consul or vice-consul is a party.'" The words in italics are, in the Revised Statutes, added to the original provision as it stood in the Judiciary Act of 1789. The writ of mandamus, according to these provisions, may be issued by the Supreme Court, either to the courts or to the public officers designated. (a.) Mandamus to Courts. — The Circuit and District Courts of the United States, the Court of Claims, the courts of the Dis- trict of Columbia, and the courts of the several Territories, are appointed and exist under the authority of the United States, and hence come within the description of the statute, as courts to which the Supreme Court may, in cases warranted by the princi- ples and usages of law, issue writs of mandamus. Mr. Justice Blackstone defines the writ of mandamus to be "a command issuing in the King's name, from the Court of King's Bench, and directed to any person, corporation, or inferior court of judicature within the King's dominions, requiring them to do some particular thing therein specified, which appertains to their office and duty, and which the Court of King's Bench has previ- ously determined, or at least supposes to be consonant to right and justice." He also says : " It issues to the judges of any inferior courts, commanding them to do justice according to the powers of their office, whenever the same is delayed. For it is the peculiar "WRIT POWERS OF THE COURT. 331 business of the Court of King's Bench to superintend all other inferior tribunals, and therein to enforce the exercise of those ju- dicial or ministerial powers with which the Crown or legislature have invested them, and this not only by restraining their excesses, but also by quickening their negligence and obviating their denial of justice." (3 Bl. Comm. 110.) Lord Mansfield, in The King v. Barker et al., 3 Burrow, 1266, said ; " Whenever there is 'a right to execute an office, per- form a service, or exercise a franchise (more especially if it be a matter of public concern or attendant with profit), and a person is kept out of possession, or dispossessed of such right, and has no other specific legal remedy, this court ought to assist by manda- mus, upon reasons of justice, as the writ expresses, and upon rea- sons of public policy, to preserve peace, order, and good govern- ment." He added that "this writ ought to be used upon all occasions where the law has established no specific remedy, and where in justice and good government there ought to be one." This writ, when issued by the Supreme Court to inferior courts, is so issued in the exercise of its appellate jurisdiction, or in aid thereof. Chief Justice Marshall, in Ex parte Crane, 5 Pet. 190, 193, said; " A mandamus to an inferior court of the United States is in the nature of appellate jurisdiction." In re- gard to the term ' ' appellate," as used in the Constitution, Mr. Justice Field, in Virginia v. Rives, 10 Otto, 327, said ; " The term ' appellate,' in the Constitution, is not used in a restricted sense, but in the broadest sense, as embracing the power to review and correct the proceedings of subordinate tribunals, brought be- fore it [the Supreme Court] for examination in the modes pro- vided by law." Congress, being by the Constitution invested with the requi- site authority, has prescribed the various modes in which the Su- preme Court may exercise its appellate jurisdiction over the pro- ceedings of inferior courts. One of these modes is by the issue of a writ of mandamus to " any court appointed under the authority of the United States." The power to issue the writ does not extend to State courts. The restriction placed by Congress upon the exercise of this power consists in the fact that the writ is authorized to be issued only " in cases warranted by the principles and usages of law." The power is not an arbitrary and unregulated power, to be exer- 332 THE SUPREME COURT. cised at the mere pleasure of the court, without any reference to established rules. Congress, in giving the power, refers to " the principles and usages of law " as a guide to its proper exercise. The Supreme Court has, from time to time, exercised this power, and not infrequently refused to do so, and has thus, by a series of precedents in its own practice, settled the character of the cases in which the power should be exercised, as distinguished from those in which it should not be exercised. These precedents constitute its exposition of the principles and usages of law, as referred to in the statute. Mr. Justice Nelson, in Ex parte Bradley, 7 "Wall. 364, 376, laid down the following general principle on this subject : " This writ is applicable only in the supervision of the proceedings of inferior courts, in cases where there is a legal right without an existing legal remedy. It is upon this ground that the remedy has been applied from an early day, indeed, since the organization of courts and the admission of attorneys to practice therein down to the present time, to correct the abuses of the inferior courts in summary proceedings against their officers, and especially against the attorneys and counselors of the courts." He remarks that, in such cases, the wrong, however, flagrant, would, without this remedy, be incapable of any redress. Mr. Justice McLean, in Crawford v. Addison, 22 How. 174, 183, remarked that " a mandamus is a remedy where there is no other appropriate relief, and it is only resorted to on extraordinary occasions." Chief Justice Waite, in Ex parte Cutting, 4 Otto, 14, 20, said : " The office of a mandamus is to compel the performance of a plain and positive duty. It is issued upon the application of one who has a clear right to such a performance, and who has no other adequate remedy. It is never granted in anticipation of an omission of duty, but only after actual default." Mr. Justice Strong, in Virginia v. Hives, 10 Otto, 313, 323, said that the writ of mandamus is "an established remedy to oblige inferior courts and magistrates to do that justice which they are in duty, and by virtue of their office, bound to do." Mr. Justice Clifford, in Ex parte Newman, 14 Wall. 152, 165, said : " The principles and usages of law do not warrant the use of the writ to re-examine a judgment or decree of a subordinate court in any case, nor will the writ be issued to direct what judg- WRIT POWERS OF THE COURT. 333 ment or decree such a court shall render in any pending case, nor will the writ be issued in any case if the party aggrieved may have a remedy by writ of error or appeal, as the only office of the writ when issued to a subordinate court is to direct the perform- ance of a ministerial act or to command the court to act in a case where the court has jurisdiction and refuses to act, but the super- visory court will never prescribe what the decision of the sub- ordinate court shall be, nor will the supervisory court interfere in any way to control the judgment or discretion of the subordinate court in disposing of the controversy. {The Insurance Co. v. Wil- son, 8 Pet. 302 ; The United States v. Peters, 5 Cranch, 135 ; Ex parte Brad street, 7 Pet. 648 ; Ex parte, Many, 14 How. 24 ; The United States v. Lawrence, 3 Dall. 42; The Commissioner v. Whiteley, 4 Wall. 522 ; and The Insurance Co. v. Adams, 9 Pet. 602.) Mr. Justice Harlan, in Ex parte Railway Company, 11 Otto, 711, 720, said : "We recognize, in its fullest extent, the power of this court by mandamus to enforce prompt compliance with its mandates ; but it is not consistent with the principles and usages of law that we should, in that summary mode, revise the action of inferior courts, as to any matters about which they must or may exercise judicial discretion. The writ has never been ex- tended so far, nor ever used to control the discretion and judg- ment of an inferior court of record acting within the scope of its judicial authority." These deliverances set forth the general principles and usages of law, as adopted by the Supreme Court, with reference to the issuing of a writ of mandamus. Whether the court will or will not issue the writ in a specific case depends upon the character of the case, considered with reference to the principles and usages of law. In Ex parte Robinson, 19 Wall. 505, it was held that a man- damus is an appropriate remedy to restore an attorney disbarred, where the court below has exceeded its jurisdiction in the mat- ter ; and accordingly a peremptory mandamus was issued in this case, requiring the judge of the court below to vacate the order disbarring the petitioner, and to restore him to his office. The same ground was taken in Ex parte Bradley, 7 Wall, 364. If an inferior court refuses to act upon a subject properly be- fore it and requiring its action, or if it refuses to sign a bill of ex- ceptions, then a writ of mandamus may be issued, in the one case, 384 THE SUPREME COURT. not to direct in what manner the court shall act, but to compel ac- tion, and, in the other case, to sign a bill of exceptions, without prescribing the particular bill which it shall sign. {Life dc Fire Ins. Co. v. Wilson, 8 Pet. 291, 304; Ex parte Crane, 5 Pet. 190; and Bradstreet v. Thomas, 4 Pet. 102.) The refusal of a Circuit Court to allow an appeal is a proper case for a mandamus to compel the allowance, provided the peti- tioner shows that he has a right to such allowance. {Ex parte Jordan, 5 Otto, 248 ; and Ex parte Cutting, 4 Otto, 14.) If a Circuit Court, without authority of law, takes jurisdiction over a case removed thereto from a State court, a writ of man- damus is a proper remedy to compel it to remand the case to the court from which it was improperly removed. ( Virginia v. Hives, 10 Otto, 313.) "Where a Circuit Court dismisses a case on the ground that it has no jurisdiction, the proper remedy is not a writ of error, but a mandamus from the Supreme Court, directing it to proceed with the case. {The Insurance Co. v. Comstook, 16 Wall. 258, 270 ; and The Railroad Company v. Wiswall, 23 Wall. 507.) On the other hand, a motion for a new trial is always ad- dressed to the discretion of the court, and the Supreme Court will not, by a mandamus, control its exercise by the court below* {Life & Fire Ins. Co. v. Wilson, 8 Pet. 291, 303.) The Supreme Court will not, by mandamus, compel an in- ferior court to reverse a decision made in the exercise of its juris- diction. {Ex parte Perry, 12 Otto, 183.) Nor will the Supreme Court use the writ in cases for which the proper remedy is a writ of error or. an appeal. {Ex parte Eoyt, 13 Pet. 279 ; Ex parte Whitney, 13 Pet. 404 ; The Com- missioner v. Whiteley, 4 Wall. 522 ; and Ex parte Schwab, 8 Otto, 240.) Hence a mandamus will not be issued to compel an inferior court to grant a motion to vacate an order setting aside a judgment of nonsuit, since a writ of error is the proper remedy in 6uch a case. {Ex parte Loring, 4 Otto, 418.) The allowance of double pleading is not a matter of absolute right, and hence a mandamus will not be issued to compel an in- ferior court to permit more than one plea to be filed. {Ex parte Davenport, 6 Pet. 661.) A mandamus cannot be used to control the discretion of an in- ferior court as to the proceedings intermediate between the insti- "WRIT POWERS OF THE COURT. 335 tution of a suit and its trial, and if the judge acts oppressively, the Supreme Court is not the tribunal to which to apply. {Ex parte Bradstreet, 8 Pet. 588.) Nor will the Supreme Court in- terfere by mandamus with the discretion of an inferior court in approving or rejecting a bond offered for its approval. {Ex parte Milwaukee Railroad Co. 5 Wall. 188.) Where an inferior court has issued a writ of execution, and re- fuses to grant a motion for quashing it, a mandamus cannot be issued to compel it to grant the motion, since it is not the proper remedy. {Ex parte Flij)pin, i Otto, 848.) Such are some of the cases, among the many, in which the Supreme Court has construed its power to issue the writ of man- damus " in cases warranted by the principles and usages of law." It has exercised the power in the way of general supervision so far, and so far only, as was necessary to correct abuses and misuses of power by inferior courts when there was no other remedy, and carefully abstained from all interference with these courts when proceeding in the proper exercise of their own powers. The ap- plications for this writ have been numerous, and have been more often rejected than granted. {b.) Mandamus to Public Officers. — Section 688 of the Re- vised Statutes provides that the Supreme Court shall have power to issue writs of mandamus " to persons holding office under the authority of the United States, where a State, or an ambassador, or other public minister, or a consul or vice-consul is a party." The words in italics, as already remarked, are not in the original provision as found in the thirteenth section of the Judiciary Act of 1789. The effect of adding these words is to give the power of issu- ing the writ, when it acts upon the persons described, in those cases in which a State, or an ambassador or other public minister, or a consul or vice-consul is a party. These are the cases in which the Supreme Court has original jurisdiction. The meaning of the statute then is, that the court may, in the exercise of its original jurisdiction or in aid thereof, issue the writ to the officers named. Chief Justice Marshall, in Ex parte Crane, 5 Pet. 190, 193, said ; "A mandamus to an officer is held to be an exercise of orig- inal jurisdiction, but a mandamus to an inferior court of the United States, is in the nature of appellate jurisdiction." The 336 THE SUPREME COURT. provision of the statute now under consideration is not for a man- damus to courts, which is an exercise of appellate jurisdiction, but for a mandamus to officers of the United States, in the cases specified, which is an exercise of original jurisdiction, or in aid thereof. The case of Marhury v. Madison, 1 Cranch, 137, which came before the Supreme Court in 1803, was an application to the court for a writ of mandamus to compel Mr. Madison, who was Secre- tary of State, to deliver to Mr. Marbury, as a justice of the peace in the District of Columbia duly appointed by President Adams, a commission which had been signed by the President and was in the office of the Secretary, but which he refused to deliver. One of the questions considered was whether the case itself was a proper one for a mandamus if the court had power to award the writ. This question was answered in the affirmative. Mar- bury, as the court held, was entitled to the paper withheld from him, and Mr. Madison was a person holding office under the au- thorityjbf the United States. Moreover, Marbury was " without any other specific and legal remedy ; " and Mr. Madison, in such a case as was presented, was an officer of the United States to whom the writ of mandamus could be directed. He came within the letter of the law, and the duty which he was required to perform was simply ministerial, and not one of executive discretion. These points Chief Justice Marshall, in stating the opinion of the court, argued elaborately, and finally came to the question whether the court had power to issue the writ sought in this case. This question was answered in the negative, not on the ground that the thirteenth section of the Judiciary Act of 1789 did not confer the power, but because the section itself, so far as it con- ferred such a power, was unconstitutional, and "therefore abso- lutely incapable of conferring the authority." On this point Chief Justice Marshall said that, although " a mandamus may be directed to courts," as an exercise of appellate jurisdiction, " yet to issue such a writ to an officer for the deHvery of a paper is, in effect, the same as to sustain an original action for that paper, and therefore seems not to belong to appellate but to original jurisdic- tion." The action asked for in this case was not for the exercise of appellate jurisdiction, since this was applicable only to courts ; and the Chief Justice correctly argued that it did not come within the limits of the original jurisdiction of the Supreme Court, a$ WRIT POWERS OF THE COURT. 337 defined in the Constitution, to which Congress could not by stat- ute make any additions. The language of Chief Justice Marshall, in this case, should be construed with reference to the facts of the case before the court. It does not by any means imply that, in a case which is in fact one of original jurisdiction under the provisions of the Constitution, Congress could not give to the Supreme Court the power, in the exercise of such jurisdiction or in aid thereof, to issue a mandamus to persons holding office under the authority of the United States. The difficulty with the provision, as made in the Judiciary Act of 1789, was that it embraced cases that clearly did not come within the appellate authority of the Supreme Court, of which the case of Marbury v. Madison was an example, and just as clearly did not come within the original jurisdiction of this court as defined in the Constitution, of which the same case was an example. Congress, in enacting the Revised Statutes, sought to remedy this difficulty, not by withdrawing all power to issue writs of man- damus to public officers, but by giving the power in those cases in which " a State, or an ambassador, or other public minister, or a consul or a vice-consul is a party," and which are the very cases specified in the Constitution as those in which the Supreme Court shall have original jurisdiction. Under the statute, as it now reads, the Supreme Court cannot issue a mandamus in such a case as that of Marbury v. Madison, since it would not come within the letter or intent of the law. But, under this statute, the court can, in the exercise of its original jurisdiction or in aid thereof, issue a mandamus to any person holding office under the authority of the United States, in any case " where a State, or an ambassa- dor, or other public minister, or a consul or vice-consul is a party." The statute gives express authority to this effect, and is not in conflict with the ruling of the Supreme Court in Marbury v. Madison. Chief Justice Marshall, in Marbury v. Madison, supra, said that "to render the mandamus a proper remedy, the officer to whom it is to be directed must be one to whom, on legal principles, such writ may be directed." On this point he further said : " Where the heads of Departments are the political and confiden- tial agents of the Executive, merely to execute the will of the President, or rather to act in cases in which the Executive pos- sesses a constitutional or legal discretion, nothing can be more per- 22 338 THE SUPREME COURT. fectly clear than that their acts are only politically examinable. But where a specific duty is assigned by law, and individual rights depend upon the performance of that duty, it seems equally clear that the individual who considers himself injured, has a right to resort to the laws of his country for a remedy." The principle here laid down is that an officer of the United States, even though he should be a member of the President's Cabinet, is not exempt from the writ of mandamus in respect to a duty imposed by law, the performance of which is not a matter of executive discretion, and concerns individual rights secured by law. In such a case a mandamus is a proper remedy, especially when the person applying is " without any other specific and legal remedy." The case of Kentucky v. Dermison, 24 How. 66, which came before the Supreme Court in 1860, was an application to the court for a mandamus to compel the Governor of Ohio to deliver up a fugitive from justice to the authorities of Kentucky. This was prior to the adoption of the Revised Statutes, and hence prior to the modification of the thirteenth section of the Judiciary Act of 1789 by these Statutes. Chief Justice Taney, in delivering the opinion of the court, took the ground that, in the light of previous decisions, the parties were properly before the court. Coming to the question of the writ sought by Kentucky, he proceeded to say: " It is equally well settled, that a mandamits in modern prac- tice is npthing more than an action at law between the parties, and is not now regarded as a prerogative writ. It undoubtedly came into use by virtue of the prerogative power of the English Crown, and was subject to regulations and rules which have long since been disused. But the right to the writ, and the power to issue it, has ceased to depend upon any prerogative power, and it is now regarded as an ordinary process in cases to which it is applicable. It was so held by this court in the cases of Kendall v. United States, 12 Pet. 615 ; Kendall v. Stokes and others, 3 How. 100." Kentucky, in this case, invoked the original jurisdiction of the Supreme Court; and Chief Justice Taney, after explaining the nature of the writ of mandamus in modern practice, and saying that it is " an ordinary process of a court of justice to which every one is entitled, where it is the appropriate process for asserting the right he claims," added: "We may therefore dismiss the question of jurisdiction without further comment, as it is clear WRIT POWERS OF THE COURT. 339 that if the right claimed by Kentucky can be enforced by judicial process, the proceeding by mandamus is the only mode in which the object can be accomplished." Having thus disposed of the question of jurisdiction, the Chief Justice proceeded to show that, under the Constitution and the Act of February 12th, 1793, for giving effect to the constitutional provision, it was the duty of the Governor of Ohio to deliver up the fugitive from justice claimed by the State of Kentucky. As to the question whether the Court could by mandamus compel the Governor of Ohio to perform this duty, Chief Justice Taney said : " But looking to the subject-matter of this law, and the rela- tions which the United States and the several States bear to each other, the court is of opinion, the words ' it shall be the duty ' were not used as mandatory and compulsory, but as declaratory of the moral duty wliich this compact created, when Congress had pro- vided the mode of carrying it into execution. The act does not provide any means to compel the execution of this duty, nor inflict any punishment for neglect or refusal on the part of the executive of the State ; nor is there any clause or provision in the Constitu- tion which arms the Government of the United States with this power. Indeed, such a power would place every State under the control and dominion of the General Government, even in the administration of its internal concerns and reserved rights. And we think it clear that the Federal Government, under the Consti- tution, has no power to impose on a State officer, as such, any. duty whatever, and compel him to perform it." On this ground the court declined to issue the writ, holding that it had no power, by mandamus, to compel the Governor of Ohio, or any other State officer, as such, to perform any duty whatever. This declinature was clearly according to the letter of the statute, which, as it then read, provided for the issue of " writs of mandamus, in cases warranted by the principles and usages of law, to any courts appointed, or persons holding office, under the authority of the United States." The Governor of Ohio was nei- ther a court, nor a person holding office, under the authority of the United States, and hence did not come within the description of the statute. The requisite condition for the exercise of original jurisdiction was in this case supplied by the fact that a State was a party, and in this respect it differed from the case of Marl wry v. Madison, supra ; but the requisite condition for issuing a writ of mandar- 34:0 THE SUPREME COURT. mus, as defined in the statute, was not supplied. Chief Justice Taney said nothing to imply that the writ could not be issued in the exercise of the original jurisdiction of the court. "What he said was that it could not be issued in such a case as the one pre- sented. The case of Virginia v. Rives, 10 Otto, 313, was an applica- tion of Virginia to the Supreme Court for a mandamus to compel Judge Rives, a district judge of the United States, to restore to the custody of that State two prisoners who, as alleged in the application, had been unlawfully taken from that custody by his order. It was claimed, in opposition to this application, that the court could issue the writ only in the exercise or in aid of its appel- late jurisdiction, and that the writ sought in this case was prayed for in a proceeding which was not appellate but original, because it had its commencement in the petition of the State of Virginia. Mr. Justice Field delivered a separate opinion, with which Mr. Justice Clifford concurred, and in which he concurred with the judgment of the court as to jurisdiction, and also the merits of the case, but not with all the views of Mr. Justice Strong, in stating the opinion of the court. In this opinion he refers to the question of jurisdiction as a point which Mr. Justice Strong had not treated in detail. On this point he said : "It is undoubtedly true that, except in cases where, under the Constitution, this court has original jurisdiction, the writ can be issued only in the exercise or in aid of its appellate authority. This was held as long ago as the case of Marbury v. Madison, de- cided in 1803, and the doctrine has been adhered to ever since, for the obvious reason that, the jurisdiction of the court being original in only a few enumerated cases, all exercise of power in other cases must be in virtue of its appellate jurisdiction." Referring to the language of Chief Justice Marshall, in Mar- bury v. Madison, supra, he further said : " It was not intended to deny the authority of this court to is- sue the writ to public officers, when the case is one in which it can exercise original jurisdiction ; and probably to avoid such an inference, the addition was made to the clause we have cited, which now appears in the Revised Statutes, so as to allow the writ to issue to public officers only ' when a State, or an ambassador, or other public minister, or a consul or vice-consul is a party ' — that is, in cases where the court has original jurisdiction. Indeed, it is only by such writ that the original jurisdiction of this couit can WRIT POWERS OF THE COURT. 341 in many cases be exercised. {Kentucky v. Dennison, 24 How. 66.) Nor was the language intended to deny that this court can issue the writ to judicial officers, where the object is to revise and correct their action in legal proceedings pending in the courts held by them. Though the writ to a subordinate or inferior court may be addressed to the court as. such, it is usually directed to the judge thereof, or, if the court is composed of several judges, to such one or more of them as may be authorized to hold its ses- sions or participate in holding them. The reason assigned is that, in case of disobedience to the writ, the authority to enforce it is exercised over the judges personally who are vested with the power of exercising the functions of the court. (High's Extraordinary Legal Remedies, sec. 275.) In the present case the remedy is asked against the district judge, who, while holding the Circuit Court of the Western district of Virginia, made the order which is the subject of complaint, and who, if the writ be granted, will be able to hold that court and carry out its command. There is no sound objection to its issue in this form." When the statute speaks of " persons holding office under the authority of the United States," and authorizes the Supreme Court to issue writs of mandamus to such persons "where a State, or an ambassador, or other public minister, or a consul or vice-consul is a party," in distinction from " courts appointed under the authority of the United States," it evidently does not mean judicial officers, but does mean other officers of the United States than such as are judicial. Writs of mandamus to judicial officers are provided for in the power to issue them to the courts of the United States, since they hold these courts ; and they may be addressed either to the courts as such or to the judicial officers by whom they are held, and in either case they are so addressed in the exercise of appellate jurisdiction. When, however, they are addressed to other Federal officers, the jurisdiction is not ap- pellate but original, and is to be exercised in cases "where a State, or an ambassador or other public minister, or a consul or vice-consul is a party." In the case of Virginia v. Rives, supra, the writ was asked for to Judge Rives, who was a judicial officer, and whose action as such was complained of ; and although the petition came from a State, the Supreme Court treated the case as one appropriate for the exercise of its appellate jurisdiction. It manifestly could not re- view the proceedings of Judge Rives, when holding the Circuit Court of the Western district of Virginia, in the exercise of its 34:2 THE SUPREME COURT. original jurisdiction. The fact that it did award a mandamus to Judge Rives, at the petition of a State, shows that the court will not decline to exercise its appellate jurisdiction in such a case, be- cause a State happens to be the party asking for a writ. 7. Summary Writs or Orders for Contempts of Court.— The said courts [of the United States] shall have power to impose and administer all necessary oaths, and to punish by fine and impris- onment, at the discretion of the court, contempts of their author- ity ; Provided, That such power to punish contempts shall not be construed to extend to any cases except the misbehavior of any person in their presence, or so near thereto as to obstruct the ad- ministration of justice, the misbehavior of any of the officers of said courts in their official transactions, and the disobedience or resistance by any such officer, or by any party, juror, witness, or other person, to any lawful writ, process, order, rule, decree, or command of said courts. (Sec. 725.) The Supreme Court is not here expressly mentioned, yet it iB one of the courts included in the words, " the said courts." The words refer to the courts of the United States, and the power granted is bestowed upon them all alike, and is hence common to them all. The power to punish for contempts is summarily exercised by the court itself without the intervention of a jury, and is inherent in all courts as a necessity for the exercise of their other powers. Mr. Justice Johnson, in delivering the opinion of the court, in The United States v. Hudson <& Goodwin, 7 Cranch, 32, said : " To fine for contempt, imprison for contumacy, enforce the ob- servance of order, &c, are powers which cannot be dispensed with in a court, because they are necessary to the exercise of all others, and so far our courts no doubt possess powers not immediately derived from statute." The mode of punishment, as provided in this section, is by " fine or imprisonment." This enactment was, in Ex parte Rob- inson, 19 Wall. 505, 512, held to be a limitation upon the man- ner in which the power shall be exercised, and hence a negation of all other modes of punishment. In this case it was decided that a court of the United States has no power to disbar an attor- ney for contempt. He is an officer of the court, and can be dis- barred only for conduct showing him to be unfit to be a member WRIT POWERS OF THE COURT. 343 of the legal profession, and in such a proceeding is entitled to due notice of the grounds of complaint, and to an ample opportunity for explanation and defense. The proviso of the section limits the power of punishment for contempt to three classes of cases: 1, Cases in which there has been a misbehavior of any person in the presence of the court, or so near thereto as to obstruct the administration of justice ; 2, Cases in which there has been a misbehavior of any of the officers of the court, in their official transactions ; 3, Cases in which there has been any disobedience or resistance by any officer of the court, or by any party, juror, witness, or other person, to any lawful writ, process, order, rule, decree, or command of the court. {Ex parte Robinson, 19 Wall. 505, 511.) A punishable contempt must come within one or the other of these categories. As to what is a misbehavior, or a disobedience, or resistance, within the meaning of the statute, so as to constitute the offense of contempt, the court is the sole judge. And the same is true as to the degree of punishment, whether by "fine or imprisonment." This point is left with " the discretion of the court." Mr. Justice Miller, in commenting on this section, in In re Chiles, 22 Wall. 157, 168, said : " The exercise of this power has a two-fold aspect, namely: first, the proper punishment of the guilty party for his disrespect to the court or its order ; and the second, to compel his performance of some act or duty required of him by the court, which he refuses to perform. In the former case the court must judge for itself the nature and extent of the punishment with reference to the gravity of the offense. In the latter case the party refusing to obey should be fined and impris- oned until he performs the act required of him, or shows that it is not in his power to do it. {Stimpson v. Putnam, 41 Yermont, 238.) The proviso of this section is taken from the first section of the Act of March 2d, 1831 (4 U. S. Stat, at Large, 487), in refer- ence to which Mr. Justice Field, in Ex parte Robinson, 19 Wall. 505, 510, said : " The act, in terms, applies to all courts, but whether it can be held to limit the authority of the Supreme Court, which derives its existence and powers from the Constitu- tion, may perhaps be a matter of doubt." Be this as it may, it limits the authority of the other courts of the United States. The plain intention of Congress was to define the cases in which 344 THE SUPREME COURT. the Federal courts, including the Supreme Court, may summarily punish contempts of their authority by fine or imprisonment. SECTION X. KTTLEB OF THE SUPREME COUET. The Supieme Court has adopted a series of rules for the regu- lation of its own proceedings, and of practice therein. These rules are as follows : Kuxe No. 1. CLEBK. 1. Place of Office and Residence. — The clerk of this court shall reside and keep the office at the seat of the National Gov- ernment, and he shall not practice, either as an attorney or counselor, in this court or in any other court, while he shall con- tinue to be clerk of this court. 2. Duties. — The clerk shall not permit any original record or paper to be taken from the court room, or from the office, with- out an order from the court, but records on appeal and writs of error, exclusive of original papers sent up therewith, may be taken to a printer to be printed under the requirements of rule 10. Kuxe No. 2. ATTORNEYS. 1. Admission. — It shall be requisite to the admission of at- torneys or counselors to practice in this court, that they shall have been such for three years past in the Supreme Courts of the States to which they respectively belong, and that their private and pro- fessional character shall appear to be fair. 2. Oath. — They shall respectively take and subscribe the fol- lowing oath or affirmation, viz. : I, , do solemnly swear (or affirm, as the case may be) that I will demean myself, as an attorney and counselor of this court, uprightly and according to law, and that I will support the Constitution of the United States. RULES OF THE SUPREME COURT. 345 3. Admission of Women. — Congress, by the Act of Febru- ary 15th, 1879 (20 U. S. Stat, at Large, 292), added the following provision to these rules : That any woman who shall have been a member of the bar of the highest court of any State or Territory, or of the Supreme Court of the District of Columbia, for the space of three years, and shall have maintained a good standing before such court, and who shall be a person of good moral char- acter shall, on motion and the production of such record, be ad- mitted to practice before the Supreme Court of the United States. Eule No. 3. PRACTICE. Regulation. — This court consider the practice of the Courts of King's Bench and of Chancery, in England, as affording out- lines for the practice of this court ; and they will, from time to time, make such alterations therein as circumstances may render necessary. Rule No. &. bill of exceptions. Allowance. — Hereafter the judges of the Circuit and District Courts shall not allow any bill of exceptions which shall contain the charge of the court at large to the jury in trials at common law, upon any general exception to the whole of such charge. But the party excepting shall be required to state distinctly the several matters of law in such charge, to which he excepts ; and such matters of law, and those only shall be inserted in the bill of exceptions, and allowed by the court. Rule No. 5. PROCESS. 1. In name of the President. — All process of this court shall be in the name of the President of the United States. 2. Process against a State. — "When process at common law or in equity shall issue against a State, the same shall be served on the governor or chief executive magistrate, and attorney-general of such State. 3. Service of Subpoena. — Process of subpoena, issuing out of this court, in any suit in equity, shall be served on the defendant sixty days before the return day of the said process ; and if the de- fendant, on such service of the subpoena, shall not appear at the 34:6 THE SUPREME COURT. return day contained therein, the complainant shall be at liberty to proceed ex parte. Rule No. 6. , MOTIONS. 1. In Writing.— All motions hereafter made to the court shall be reduced to writing, and shall contain a brief statement of the facts and objects of the motion. 2. Argument thereon. — One hour on each side shall be allowed to the argument of a motion, and no more, without special leave of the court granted before the argument begins. 3. Previous Notice. — No motion to dismiss, except on special assignment by the court, shall be heard, unless previous notice has been given to the adverse party, or the counsel or attorney of such party. 4. Submission of Motions. — All motions to dismiss appeals and writs of error, except motions to docket and dismiss under the ninth rule, must be submitted in the first instance on printed briefs or arguments. If the court desires further argument on that subject it will be ordered in connection with the hearing on the merits. The party moving to dismiss shall serve notice of the motion, with a copy of his brief or argument, on the counsel for plaintiff in error or appellant of record in this court, at least three weeks before the time fixed for submitting the motion, in all cases except where the counsel to be notified resides west of the Rocky Mountains, in which case the notice shall be at least thirty days. 5. Notice by Mail. — Affidavit of the deposit in the mail of the notice and brief to the proper address of the counsel to be served, duly post-paid, at such time as to reach him by due course of mail the three weeks or thirty days before the time fixed by the notice, will be regarded as prima facie evidence of service on counsel who reside without the District of Columbia. On proof of such service, the motion will be considered, unless, for satisfac- tory reasons, further time be given by the court to either party. 6. Motion to Affirm. — There may be united, with a motion to dismiss a writ of error or appeal, a motion to affirm on the ground that although the record may show that this court has jurisdiction, it is manifest the appeal or writ was taken for delay only, or that the question on which the jurisdiction depends is so frivolous as not to need further argument. RULES OP THE SUPREME COURT. 347 7. Motion Day. — The court will not hear arguments on Saturday (unless for special cause it shall order to the contrary), but will devote that day to the other business of the court. The motion day shall be Monday of each week in lieu of Friday ; and motions not required by the rules of the court to be put on the docket shall be entitled to preference immediately after the read- ing of opinions, if such motions shall be made before the court shall have entered upon the hearing of a cause upon the docket. Eule No. 7. Law Libraky. 1. Use of Books. — During the session of the court, any gentleman of the bar having a cause on the docket, and wishing to use any book or books in the law library, shall be at liberty, upon application to the clerk of the court, to receive an order to take the same (not exceeding at one time three) from the library, he being thereby responsible for the due return of the same within a reasonable time, or when required by the clerk. And it shall be the duty of the clerk to keep, in a book for that purpose, a record of all books so delivered, which are to be charged against the party receiving the same. And in case the same shall not be so returned, the party receiving the same shall be responsible for and forfeit and pay twice the value thereof, as also one dollar per day for each day's detention beyond the limited time. 2. Conference-Room. — The clerk shall take charge of the books of the court, together with such of the duplicate law books as Congress may direct to be transferred to the court, and arrange them in the conference-room, which he shall have fitted up in a proper manner ; and he shall not permit such books tO'be taken therefrom by any one except the judges of the court. 3. Deposit of the Printed Record.— The clerk shall deposit in the law library, to be there carefully preserved, one copy of the printed record in every ease submitted to the court for its consideration, and of all printed motions, briefs, or arguments filed therein. Eule No. 8. RETUKN TO WRIT OF ERROR AND RETURN-DAY. 1. Mode of Return. — The clerk of the court to which any writ of error shall be directed may make return of the same by transmitting a true copy of the record, and of all proceedings in the cause under his hand and the seal of the court. 348 THE SUPREME COURT. 2. A Copy of the Opinion.— In all cases brought to this court, by writ of error or appeal, to review any judgment or decree, the clerk of the court by which such iudgment or decree was rendered shall annex to and transmit with the record a copy of the opinion or opinions filed in the case. 3. A Complete Record.— No cause will hereafter be heard until a complete record containing in itself, without references aliunde, all the papers, exhibits, depositions, and other proceed- ings which are necessary to the hearing in this court, shall be filed. 4. Original Papers. — Whenever it shall be necessary or proper, in the opinion of the presiding judge in any Circuit Court or Dis- trict Court, exercising Circuit Court jurisdiction, that original papers of any kind should be inspected in this court upon appeal or writ of error, such presiding judge may make such rule or order for the safe-keeping, transporting, and return of such original papers as to him may seem proper ; and this court will receive and consider such original papers in connection with the transcript of the proceedings. 5. Keturn-Day. — In cases where final judgment is rendered more than thirty days before the first day of the next term of this court, the writ of error and citation, if taken before, must be returnable on the first day of said term, and be served before that day ; but in cases where the .judgment is rendered less than thirty days before the first day, the writ of error and citation may be made returnable on the third Monday of the said term, and be served before that day. 6. Record in Admiralty Cases. — The record in causes of admiralty and maritime jurisdiction, when, under the requirements of law, the facts have been found in the court below, and our power of review is limited to the determination of questions of law arising on the record, shall be confined to the pleadings, the findings of fact and conclusions of law thereon, the bills of excep- tions, the final judgment or decree, and such interlocutory orders and decrees as may be necessary to a proper review of the case. (Promulgated May 2d, 1881.) Kule No. 9. DOCKETING CASES. 1. Dnty of Appellant. — In all cases where a writ of error or an appeal shall be brought to this court from any judgment or decree rendered thirty days before the commencement of the term, RULES OF THE SUPREME COURT. 349 it shall be the duty of the plaintiff in error or appellant, as the case may be, to docket the cause and file the record thereof with the clerk of this court within the first six days of the term ; and if the writ of error or appeal shall be brought from a judgment or decree rendered less than thirty days before the commencement of the term, it shall be the duty of the plaintiff in error or appel- lant to docket the cause and file the record thereof with the clerk of this court within the first thirty days of the term ; and if the plaintiff in error or appellant shall fail to comply with this rule, the defendant in error or appellee may have the case docketed and dismissed, upon producing a certificate from the clerk of the court wherein the judgment or decree was rendered stating the cause, and certifying that such writ of error or appeal has been duly sued out and allowed. And in no case shall the plaintiff in error or appellant be entitled to docket the cause and file the record after the same shall have been docketed and dismissed under this rule, unless by order of the court. 2. Right of Appellee. — But the defendant in error or appellee may, at his option, docket the cause and file a copy of the record with the clerk of the court ; and if the case is docketed and a copy of the record filed with the clerk of this court by the plaint- iff in error or appellant, within the periods of time above limited and prescribed by this rule, or by the defendant in error or appellee, at any time thereafter during the term, the case shall stand for argument at the term. 3. Appearance for Appellant. — Upon the filing of the transcript of a record, brought up by writ of error or appeal, the appearance of the counsel for the plaintiff in error or appellant shall be entered. 4. Extension of Time. — In all cases where the period of thirty days is mentioned in this rule it shall be extended to sixty days in writs of error and appeals from California, Oregon, Wash- ington, New Mexico, Utah, Nevada, Arizona, Montana, and Idaho. Kdle No. 10. SECURITY FOE COSTS. 1. The Bond for Costs.— In all cases the plaintiff in error or appellant, on docketing a cause and filing the record, shall enter into an undertaking to the clerk with surety to his satisfac- tion for the payment of his fees, or otherwise satisfy him in that behalf. 350 THE SUPREME COURT. FEINTING BECORDS. 2. Costs of Printing. — In all cases the clerk shall have twenty copies of the records printed for the court, and the costs of printing shall be charged to the Government in the expenses of the court. 3. The Clerk's Duty. — The clerk shall take to the printer the original record in the office except in cases prohibited by the rules. When the original copy cannot be taken, he shall furnish the printer with a manuscript copy. He shall supervise the print- ing, and see that the printed copy is properly indexed. He shall take care of and distribute the printed copies to the judges, the reporter, and the parties, from time to time, as required. 4. Manuscript — Costs. — In cases where a manuscript copy of the record is not furnished the printer, the fee of the clerk for his service under the last preceding paragraph shall be one-half the rates now allowed by law for making a manuscript copy, and that shall be charged to the party bringing the cause into court, unless the court shall otherwise direct. When a manuscript copy is re- quired to be made full fees for a copy may be charged, but noth- ing in addition for the other services required. 5. Copy to Each Party. — In all cases the clerk shall deliver a copy of the printed record to each party without extra charge. In cases of dismissal, reversal, or affirmance, with costs, the fee al- lowed in the last paragraph shall be taxed against the party against whom the costs are given. In cases of dismissal for want of juris- diction, such fees shall be taxed against the party bringing the cause into court, unless the court shall otherwise direct. ATTACHMENT FOE COSTS. 6. When to Issue. — Upon the clerk of this court producing satisfactory evidence, by affidavit or the acknowledgment of the parties or their sureties, of having served a copy of the bill of fees due by them, respectively, in this court, on such parties or their sureties, an attachment shall issue against such parties or sureties, respectively, to compel payment of the said fees. Eule ISTo. 11. TRANSLATIONS . Whenever any record transmitted to this court upon a writ of error or appeal shall contain any document, paper, testimony, or other proceeding in a foreign language, and the record does not RULES OF THE SUPREME COURT. 351 also contain a translation of such document, paper, testimony, or other proceeding, made under the authority of the inferior court, or admitted to be correct, the record shall not he printed ; but the case shall be reported to this court by the clerk, and the court will thereupon remand it to the inferior court, in order that a transla- tion may be there supplied and inserted in the record. Eule No. 12. EVIDENCE. 1. Further Proof. — In all cases where further proof is or- dered by the court, the depositions which shall be taken shall be by a commission, to be issued from this court, or from any Circuit Court of the United States. 2. In Admiralty Cases. — In all cases of admiralty and mari- time jurisdiction, where new evidence shall be admissible in this court, the evidence by testimony of witnesses shall be taken under a commission to be issued from this court, or from any Circuit Court of the United States, under the direction of any judge thereof ; and no such commission shall issue but upon interrogato- ries, to be filed by the party applying for the commission, and no- tice to the opposite party or his agent or attorney, accompanied with a copy of the interrogatories so filed, to file cross-interrogato- ries within twenty days from the service of such notice : Pro- vided, however, That nothing in this rule shall prevent any party from giving oral testimony in open court in cases where, by law, it is admissible. Rule No. 13. deeds, &c, not objected to, &c, admitted, &c. In all cases of equity and admiralty jurisdiction, heard in this court, no objection shall hereafter be allowed to be taken to the admissibility of any deposition, deed, grant, or other exhibit found in the record as evidence, unless objection was taken thereto in the court below and entered of record ; but the same shall otherwise be deemed to have been admitted by consent. Eule No. 14. CEETIOEABI. No certiorari for diminution of the record shall be hereafter awarded in any cause, unless a motion therefor shall be made in writing, and the facts on which the same is founded shall, if not 352 THE SUPREME COURT. admitted by the other party, be verified by affidavit. And all motions for such certiorari shall be made at the first term of the entry of the cause, otherwise the same shall not be granted, unless upon special cause shown to the court, accounting satisfactorily for the delay. Rule No. 15. DEATH OF A PABTY. 1. Abatement and Revivor. — Whenever, pending a writ of error or appeal in this court, either party shall die, the proper representatives in the personalty or realty of the deceased party, according to the nature of the case, may voluntarily come in and be admitted parties to the suit, and thereupon the cause shall be heard and determined as in other cases ; and if such representatives shall not voluntarily become parties, then the other party may suggest the death on the record, and thereupon, on motion, obtain an order that unless such representatives shall become parties with- in the first ten days of the ensuing term, the party moving for such order, if defendant in error, shall be entitled to have the writ of error or appeal dismissed ; and if the party so moving shall be plaintiff in error, he shall be entitled to open the record, and on hearing have the .same reversed if it be erroneous : provided, how- ever, that a copy of every such order shall be printed in some newspaper at the seat of Government, of general circulation, for three successive weeks, at least sixty days before the beginning of the term of the Supreme Court then next ensuing. 2. Abatement— When. — When the death of a party is sug- gested, and the representatives of the deceased do not appear by the tenth day of the second term next succeeding the suggestion, and no measures are taken by the opposite party within that time to compel their appearance, the case shall abate. 3. Appeal when Appellee is Dead. — When either party to a suit in the Circuit Courts of the United States shall desire to pros- ecute a writ of error or appeal to the Supreme Court of the United States, from any final judgment or decree rendered in said Circuit Courts, and at the time of suing out such writ of error or appeal the other party to the suit shall be dead, and have no proper rep- resentative within the jurisdiction of the court which rendered such final judgment or decree, so that the suit cannot be revived in that court, but shall have a proper representative in some State or Territory of the United States, the party desiring such writ of error or appeal may procure the same, and may supersede or stay proceedings on such judgment or decree in the same manner as is now allowed by law in other cases, and shall thereupon proceed RULES OF THE SUPREME COURT. 353. with such writ of error or appeal as in other cases. And within thirty days after the commencement of the court to which such writ of error or appeal is returnable, the plaintiff in error or appel- lant shall make a suggestion to the court, supported by affidavit, that the said party was dead when the writ of error or appeal was taken or sued out, and had no proper representative within the jurisdiction of the court which rendered said judgment or decree, so that the suit could not be revived in that court, and that said party had a proper representative in some State or Territory of the United States, and stating therein the name and character of such representative, and the State or Territory in which such represent- ative resides ; and, upon such suggestion, he may, on motion, ob- tain an order that, unless such representative shall make himself a party within the first ten days of the ensuing term of the court, the plaintiff in error or appellant shall be entitled to open the record, and, on hearing, have the judgment or decree reversed, if the same be erroneous ; provided, however, that a proper citation reciting the substance of such order shall be served upon such representative, either personally or by being left at his residence, at least sixty days before the beginning of the term of the Su- preme Court then next ensuing ; and provided also that in every such case, if the representative of the deceased party does not ap- pear by the tenth day of the term next succeeding said suggestion, and the measures above provided to compel the appearance of such representative have not been taken within the time as above re- quired, by the opposite party, the case shall abate ; and provided also that the said representative may at any time before or after said suggestion come in and be made a party to the suit, and there- upon the cause shall proceed, and be heard and determined as in other cases. Utile No. 16. NO APPEAEANCE OF PLAINTIFF. Where there is no appearance for the plaintiff when the case is called for trial, the defendant may have the plaintiff called and dismiss the writ of error, or may open the record and pray for an affirmance. Exile No. 17. NO APPEAEANOE OF DEFENDANT. Where the defendant fails to appear when the cause shall be called for trial, the court may proceed to hear an argument on the part of the plaintiff, and to give judgment according to the right of the cause. 23 354 THE SUPREME COURT. Etjle No. 18. NO APPEABANCE OP EITHEE PAETY. When a case is reached in the regular call of the docket, and no appearance is entered for either party, the case shall be dis- missed at the cost of the plaintiff. Eule No. 19. neithee paett beady at second teem. When a case is called for argument at two successive terms, and upon the call at the second term, neither party is prepared to argue it, it shall be dismissed at the cost of the plaintiff, unless sufficient cause is shown for further postponement. Exile No. 20. PEINTED AEGTJMENTS. 1. Distribution of Copies. — In all cases brought here on ap- peal, writ of error, or otherwise, the court will receive printed arguments without regard to number of the case on the docket, if the counsel on both sides shall choose so to submit the same, with- in the first ninety days of the term ; but twenty copies of the ar- fuments, signed by attorneys or counselors of this court, must be rst filed ; ten of these copies for the court, two for the reporter, three to be retained by the clerk, and the residue for counsel. 2. Effect of Filing. — When a case is reached in the regular call of the docket, and a printed argument shall be filed for one or both parties, the case shall stand on the same footing as if there were an appearance by counsel. 3. Oral Arguments. — When a case is taken up for trial upon the regular call of the docket, and argued orally in behalf of only one of the parties, no printed argument will be received, unless it is filed before the oral argument begins, and the court will pro- ceed to consider and decide the case upon the ex parte argument. 4. Briefs after Arguments. — No brief or argument will be received, either through the clerk or otherwise, after a case has been argued or submitted, except upon leave granted in open court, after notice to opposing counsel. RULES OF THE SUPREME COURT. 355 Ktjle No. 21. argument briefs. 1. Two Counsel. — Only two counsel shall be heard for each party on the argument of a cause. 2. Two Hours. — Two hours on each side shall be allowed to the argument, and no more without special leave of the court, granted before the argument begins. The time thus allowed may be apportioned between the counsel on the same side, at their dis- cretion ; provided always that a fair opening of the case shall be made by the party having the opening and closing arguments. 3. Brief by Plaintiff. — The counsel for the plaintiff in error or appellant shall file with the clerk of the court, at least six days before the ease is called for argument, twenty copies of a printed brief, one of which shall, on application, be furnished to each of the counsel engaged upon the opposite side. 4. Contents. — This brief shall contain, in the order here stated, — (1.) Statement. — A concise abstract or statement of the case, presenting succinctly the questions involved, and the manner in which they are raised. (2.) Assignment of Errors. — An assignment of the errors re- lied upon, which, in cases brought up by writ of error, shall set out separately and specifically each error asserted and intended to be urged ; and in cas33 brought up by appeal, the assignment shall state, as specifically as may be, in what the decree is alleged to be erroneous. If error is assigned to a ruling upon the report of a master, the specification shall state the exception to the report and the action of the court upon it. (3.) Statement of Points. — A brief of the argument, exhibit- ing a clear statement of the points of law or fact to be discussed, with a reference to the pages of the record, and the authorities re- lied upon in support of each point. When a statute of a State is cited, so much thereof as may be deemed necessary to the decision of the case shall be printed at length. 5. Charge of the Court. — When the error alleged is to the charge of the court, the specification shall set out the part referred to totidem verbis, whether it be instructions given or instructions refused. 6. Errors. — When the error alleged is to the admission or to 356 THE SUPREME COURT. the rejection of evidence, the specification shall quote the full sub- stance of the evidence admitted or rejected. 7. Appellee's Argument and Brief. — Counsel for a defend- ant in error, or an appellee, shall file with the clerk twenty printed copies of his argument, at least three days before the cause is called for hearing. His brief shall be of a like character with that required of the plaintiff or appellant, except that no as- signment of errors is required, and no statement of the case, un- less that presented by the plaintiff or appellant is controverted. 8. Errors not Assigned. — Without such assignment of errors, counsel will not be heard, except at the request of the court, and errors not assigned according to this rule will be disregarded, though the court, at its option, may notice a plain error not assigned. 9. Default. — When, according to this rule, a plaintiff in error or an appellant is in default, the case may be dismissed on motion, and when a defendant in error or an appellee is in default, he will not be heard, except on consent of his adversary, and with re- quest of the court. 10. Default on Argument. — When no counsel appears for one of the parties, and no printed brief or argument is filed, only one counsel will be heard for the adverse party ; but if a printed brief or argument is filed, the adverse party will be entitled to be heard by two counsel. Ktji,e No. 22. ORDER OF ARGUMENT. The plaintiff or appellant in this court shall be entitled to open and conclude the case. But when there are cross appeals, they shall be argued together as one case, and the plaintiff in the court below shall be entitled to open and conclude the argument. Ettle No. 23. INTEREST. 1. On Affirmance. — In cases where a writ of error is prose- cuted to this court, and the judgment of the inferior court is af- firmed, the interest shall be calculated and levied from the date of the judgment below, until the same is paid, at the same rate that similar judgments bear interest in the courts of the State where such judgment is rendered. RULES OF THE SUPREME COURT. 357 2. Damages for Delay. — In all cases where a writ of error shall delay the proceedings on the judgment of the inferior court, and shall appear to have been sued out merely for delay, damages at the rate of ten per cent, in addition to interest, shall be awarded upon the amount of the judgment. 3. Same Rule. — The same rule shall be applied to decrees for the payment of money in cases of chancery, unless otherwise ordered by this court. Rule No. 24. COSTS. 1. On Dismissal. — In all cases where any suit shall be dis- missed in this court, except where the dismissal shall be for want of jurisdiction, costs shall be allowed to the defendant in error or appellee, as the case may be, unless otherwise agreed by the parties. 2. On Affirmance. — In all cases of affirmance of any judg- ment or decree in this court, costs shall be allowed to the defend- ant in error or appellee, as the case may be, unless otherwise ordered by the court. 3. On Reversal. — In cases of reversal of any judgment or decree in this court, costs shall be allowed to the plaintiff in error or appellant, as the case may be, unless otherwise ordered by the court. The cost pf the transcript of the record from the court below shall be a part of such costs, and be taxable in that court as costs in the case. 4. The United States a Party. — Neither of the foregoing rules shall apply to cases where the United States are a party ; but in such cases no costs shall be allowed in this court for or against the United States. 5. Process of Procedendo. — In all cases of the dismissal of any suit in this court, it shall be the duty of the clerk to issue a mandate, or other proper process, in the nature of a procedendo, to the court below, for the purpose of informing such court of the proceedings in this court, so that further proceedings may be had in such court as to law and justice may appertain. 6. Insertion of Costs. — "When costs are allowed in this court, it shall be the duty of the clerk to insert the amount thereof in the body of the mandate, or other proper process, sent to the_ court below, and annex to the same the bill of items taxed in detail. 358 THE SUPREME COURT. Kule No. 25. OPINIONS OF THE COURT. 1. Record of. — All opinions delivered by the court shall, im- mediately upon the delivery thereof, be delivered over to the clerk to be recorded. And it shall be the duty of the clerk to cause the same to be forthwith recorded, and to deliver a copy to the re- porter as soon as the same shall be recorded. 2. When Becorded. — The opinions of the court, as far as practicable, shall be recorded during the term, so that the publica- tion of the reports shall not be delayed thereby. 3. Filing of Opinions. — The original opinions of the court shall be filed with the clerk of this court for preservation. 4. Printing of Opinions. — Opinions printed under the super- vision of the justices delivering the same need not be copied by the clerk into a book of records, but at the end of each term the clerk shall cause such printed opinions to be bound in a substantial manner into one or more volumes, and when so bound they shall be deemed to have been recorded within the meaning of this rule. Kule No. 26. call of the docket. 1 . When to Begin. — The court on the second day in each term, will commence calling the cases for argument, in the order in which they stand on the docket, and proceed from day to day during the term in the same order (except as hereinafter pro- vided) f and if the parties, or either of them, shall be ready when the case is called, the same will be heard ; and if neither party shall be ready to proceed in the argument, the cause shall go down to the foot of the docket, unless some good and satisfactory reason to the contrary shall be shown to the court. 2. The Number a Day. — Ten causes only shall be consid- ered as liable to be called on each day during the term, including the one under argument. 3. Criminal Causes. — Criminal cases may be advanced, by leave of the court, on motion of either party. 4. Civil Cases Advanced. — Revenue cases and cases in which the United States are concerned, which also involve or affect some matter of general public interest, may also, by leave of the court, be advanced on motion of the Attorney-General. All motions to advance cases must be printed, and must contain a brief statement of the matter involved, with the reasons for the application. RULES OF THE SUPREME COURT. 359 5. Order of Hearing.— No other cause shall be taken up out of the order on the docket, or be set down for any particular day, except under special and peculiar circumstances, to be shown to the court. Every cause which shall have been called in its order and passed, and put at the foot of the docket, shall, if not again reached during the term it was called, be continued to the next term of the court. 6. Hearing Causes together. — Two or more cases, also in- volving the same question, may, by the leave of the court, be heard together ; but they must be argued as one case. 1. Ee-instatement of a Cause. — If, after a cause has been passed under circumstances which do not place it at the foot of the docket, the parties shall desire to have it heard, they may file "with the clerk their joint request to that effect, and the cause shall then be by him re instated for call ten cases after that under argument, or next to be called at the end of the day the request is filed. If the parties will not unite in such a request, either may move to take up the cause, and it shall then be assigned to such a place upon the docket as the court may direct. No stipulation to pass a cause without placing it at the foot of the docket will be recognized as binding upon the court. A cause can only be so passed upon application made and leave granted in open court. Eule No. 27. ADJOURNMENT. The court will, at every session, announce on what day it will adjourn, at least ten days before the time which shall be fixed upon, and the court will take up no case for argument, nor receive any case upon printed briefs, within three days next before the day fixed upon for adjournment. Kule No. 28. DISMISSING CASES IN VACATION. Whenever the plaintiff and defendant in a writ of error pend- ing in this court, or the appellant and appellee in any appeal, shall at any time hereafter, in vacation and out of term time, by their respective attorneys, who are entered as such on the record, sign and file with the clerk an agreement in writing directing the case to be dismissed, and specifying the terms on which it is to be dismissed as to costs, and also paying to the clerk any fees that may be due to him, it shall be the duty of the clerk to enter the ease dismissed, and to give to either party which may request it a copy of the agreement filed ; but no mandate or other process is to issue without an order by the court. 360 THE SUPREME COURT. Rule No. 29. supersedeas. Supersedeas bonds in the Circuit Courts must be taken, with good and sufficient security, that the plaintiff in error or appellant shall prosecute his writ or appeal to effect, and answer all dam- ages and costs if he fail to make his plea good. Such indemnity, where the judgment or decree is for the recovery of money not otherwise secured, must be for the whole amount of the judgment or decree, including "just damages for delay," and costs and interest on the appeal ; but in all suits where the property in controversy necessarily follows the event of the suit, as in real actions, replevin, and in suits on mortgages, or where the prop- erty is in the custody of the m'arshal, under admiralty process, as in case of capture or seizure, or where the proceeds thereof, or a bond for the value thereof, is in the custody or control of the court, indemnity in all such cases is only required in an amount sufficient to secure the sum recovered for the use and detention of the property, and the costs of the suit, and " just damages for de- lay," and costs and interest on the appeal. Rule No. 30. injunctions. In cases where appeals of the character mentioned in rule 93, regulating equity practice, have already been taken, this court will, after the cause has been docketed, entertain an application for a suspension or modification of the injunction, based upon a state- ment of the facts affecting the application, by a justice or judge who took part in the decision. All such applications must be printed and submitted on briefs. No oral arguments will be heard unless specially ordered. Rule No. 31. FORM OF PRINTED RECORDS AND BRIEFS. All records and arguments printed for the use of the court must be in such form and size that they can be conveniently cut and bound so as to make an ordinary octavo volume. Rule No. 32. writs of error and appeals under section five of the act OF MARCH 3d, 1875. 1. When returnable. — Writs of error and citations, under section 5 of the Act of March 3d, 1875, " to determine the juris- diction of the Circuit Courts of the United States, and to regulate the removal of causes from the State courts, and for other pur- RULES OF THE SUPREME COURT. 361 poses, : ' for the review of orders of Circuit Courts dismissing suits or remanding suits to a State court, must be made returnable within thirty days after date, and be served before the return day. 2. Time of Docketing the Cause. — In all cases where a writ of error or an appeal is brought to this court under the provisions of such act, it shall be the duty of the plaintiff in error or the appel- lant to docket the cause and file the record in this court within thirty-six days after the date of the writ, or the taking of the appeal, if there shall be a term of the court pending at that time ; and if not, then during the first six days of the next term. If default be made in this particular, proceedings to docket and dismiss may be had as in other cases. 3. Printing of the Record. — As soon as such a case is dock- eted, the record shall be printed, unless the parties stipulate to the contrary, and file their stipulation with the clerk. 4. Advance of such Cases. — All such cases will be advanced on motion, and heard under the rules applicable to motions to dismiss. 5. Cases Brought before the Rule. — When a writ of error or appeal has already been brought, or may hereafter be brought before this rule takes effect, the defendant in error or the appellee may docket the cause and file the record without waiting for the return day, and move under this rule. 6. Extension of the Time. — In all cases where a period of thirty days is included in the times fixed by this rule, it shall be ex- tended to sixty days in writs of error and appeals from California, Oregon, and Nevada. 7. Time of taking Effect. — This rule shall take effect from and after the first day of May next. (Promulgated January 16th, 1882.) Kttle No. 33. Models, Diagrams, and Exhibits. — All models, diagrams, and exhibits of material placed in the custody of the marshal, for the inspection of the court on the hearing of a cause, must be taken away by the parties within one month after the cause is decided. When this is not done, it shall be the duty of the marshal to no- tify the counsel in the cause, by mail or otherwise, of the require- ments of this rule, and, if the articles are not removed within a reasonable time after the notice is given, he shall destroy them, or make such other disposition of them as to him may seem best. (Promulgated November 13th, 1882.) CHAPTER IV. THE COURT OF CLAIMS. 1. Creation of the Court.— Congress, by the Act of February 24th, 1855 (10 U. S. Stat, at Large, 612), entitled "An Act to es- tablish a Court for the Investigation of Claims against the United States," and by subsequent acts amendatory thereof, provided for the organization of a court, to be called " the Court of Claims," in which parties might, within the limits of the jurisdiction granted to this court, bring suits against the United States. This legisla- tion gives the consent of Congress that the Government of the United States may, in the cases specified, be sued by claimants against it, and establishes a special court to hear and determine such claims. The Constitution extends the judicial power of the United States to "controversies to which the United States shall be a party." The Judiciary Act of 1789, and other acts of Congress prior to 1855, had made provision for suits in which the United States shall be a party in the sense of being the plaintiff or peti- tioner. But no provision had been made for bringing suits against the United States. Congress was the only body that had power to consider and determine claims against the Government. Mr. Justice Story, in his Commentaries on the Constitution, alludes to this fact as a defect in the state of the law, and often a serious in- justice which it was the duty of Congress to correct. The Act of February 24th, 1855, and subsequent acts having in view the same purpose, establishing a Court of Claims, and de- fining its jurisdiction, were designed to furnish a judicial remedy for parties who had claims against the United States. To this ex- tent the Government relinquished its immunity from suits on the ground of its sovereignty, and consented to be sued in a court of its own creation. There has never been any doubt as to the power of Congress to give this consent. The substance of the legislation on this subject, in force on the 1st of December, 1S73, with amendments made by Congress, and ORGANIZATION AND SESSIONS OF THE COURT. 363 approved on the 2d of March, 18 77, as compiled and re-stated in the second edition of the Revised Statutes of the United States, may be found in chapters twenty and twenty-one of Title XIII of these Statutes. The purpose of this chapter is to present an out- line of this legislation. 2. Organization and Sessions of the Court. — The court con- sists of a chief justice and four associate judges, appointed by the President with the advice and consent of the Senate, and holding office during good behavior, each of whom is entitled to receive an annual salary of four thousand five hundred dollars. (Sec. 1049.) It is authorized and directed to devise a seal, and appoint a chief clerk, an assistant clerk if necessary, a bailiff, and a messenger. The clerks are required to take an oath for the faithful perform- ance of their duties under the direction of the court, and may by the court at any time be removed for misconduct or incapacity ; and, if removed, the fact of such removal, with the cause, is to be reported to Congress. The bailiff holds office for the term of four years, unless sooner removed by the court for cause. (Sees. 1050, 1053.) The court is required to hold one annual session at the city of Washington, beginning on the first Monday in December in each year, and continuing as long as may be necessary for the prompt discharge of the business before it. (Sec. 1052.) Congress, by the Act of June 23d, 1874 (18 IT. S. Stat, at Large, 252), provided that three judges shall be necessary to constitute a quorum, and that the same number must concur in order to render a decision. It is not permitted to the members of either house of Congress to practice in this court. (Sec. 1058.) The clerk of the court, who must give a bond to the United States, and has the custody of the contingent fund which may be appropriated for the use of the court, is required, on the first day of every December session of Congress, to transmit to Congress, a full and complete statement of all the judgments rendered by the court during the previous year, stating the amounts and the parties in whose favor they were rendered, and giving a brief synopsis of the claims upon which they were rendered. The clerk must also, at the end of every term, transmit a copy of the decisions of the court to the heads of Departments, to the Solicitor, the Comptrol- lers, and Auditors of the Treasury, to the Commissioners of the 364 THE COURT OF CLAIMS. General Land Office and of Indian Affairs, to the Chiefs of Bu- reaus, and to other officers charged with the adjustment of claims against the United States. (Sees. 1055, 1056, and 1057.) This court is created for the whole United States, and not for any particular part or district thereof, and, hence, it has power to issue and enforce writs throughout the entire country. {Jones v. The United States, 1 Ct. CI. 383.) It also takes judicial notice of the laws of the several States, so far as may be necessary in the exercise of its powers. (Sykes v. The United States, 8 Ct. CI. 330.) The rules of evidence, as found in the common law, govern the action of the court where Congress has not otherwise provided and no reason demands the application of different rules. {Moore v. The United States, 1 Otto, 270.) 3. General Jurisdiction of the Court. — Section 1059 of the Eevised Statutes gives the court jurisdiction to hear and determine the following matters : First. All claims founded upon any law of Congress, or upon any regulation of an Executive Department, or upon any contract, expressed or implied, with the Government of the United States, and all claims which may be referred to it by either house of Con- gress. Second. All set-offs, counter-claims, claims for damages, wheth- er liquidated or unliquidated, or other demands whatsoever, on the part of the Government of the United States against any person making claim against the Government in said court. Third. The claim of any paymaster, quartermaster, commis- sary 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. Fourth. Of all claims for the proceeds of captured or aban- doned property, as provided by the Act of March 12th, 1863, chapter 120, or by the Act of July 2d, 1864, chapter 225, being an act in addition thereto : Provided, That the remedy given in cases of seizure under the said acts, by preferring claim in the Court of Claims, shall be exclusive, precluding the owner of any property taken by agents of the Treasury Department as aban- doned or captured property in virtue or under color of said acts from suit at common law, or any other mode of redress whatever, before any court other than said Court of Claims: Provided, also, That the jurisdiction of the Court of Claims shall not extend to GENERAL JURISDICTION OF THE COURT. 365 any claim against the United States growing out of the destruction or appropriation of, or damage to, property by the Army or Navy engaged in the suppression of the Rebellion. It was not the intention of Congress, in the establishment of a Court of Claims, to confer upon it equitable jurisdiction. On this point Mr. Justice Davis, in stating the opinion of the court in Bonner v. The United States, 9 Wall. 156, 159, said: "The Court of Claims has no equitable jurisdiction given it, and was not cre- ated to inquire into rights in equity set up by claimants against the United States. Congress did not think proper to part with the consideration of such questions, but wisely reserved to itself the power to dispose of them." In Nichols v. The United States, 7 Wall. 122, it was held that " cases under the revenue laws are not within the jurisdiction of the Court of Claims." The same doctrine was stated in Dorshei- mer v. The United States, 7 Wall. 166. It was held, in The United States v. Russell, 13 Wall. 623, 628, that " where the Government, in emergencies, takes private prop- erty into its own use, a contract to reimburse the owner is implied." Mr. Justice Clifford said in this case : " The rule is well settled that the officer taking private property for such a purpose, if the emergency is fully proved, is not a trespasser, and that the Gov- ernment is bound to make full compensation to the owner." {Mitchell v. Harmony, 13 How. 115, 134.) The Court of Claims, in such a case, would have jurisdiction on the basis of an implied contract. In The United States v. Alire, 6 Wall, 573, the court held that the only judgment which the Court of Claims has power to render against the United States is a judgment for money found due from the Government to the claimant. {Gordon v. The United States, 2 Wall. 561.) The court has no jurisdiction in cases of merely nominal dam- ages. {Grant v. The United States, 7 Wall. 331.) Nor has the court jurisdiction in cases founded on alleged tort by the United States. {Gibbons v. The United States, 8 Wall. 269.) The general principle which the Supreme Court has adopted, in construing the powers of the Court of Claims, is that it is a court of limited jurisdiction, and, consequently, that it has no juris- diction whatever, except in the classes of cases expressly assigned to it by Congress. 366 THE COURT OF CLAIMS. 4. Special Regulations. — Congress has provided a series of regulations relating to the powers and functions of the Court of Claims, of which the following is a statement : (1.) All petitions and bills praying or providing for the satis- faction of private claims against the Government, founded upon any law of Congress, or upon any regulation of an Executive De- partment, or upon any contract, expressed or implied, with the Government of the United States, shall, unless otherwise ordered by the House in which they were introduced, be transmitted by the Secretary of the Senate or the Clerk of the House of Repre- sentatives, with all the accompanying documents, to the Court of Claims. (Sec. 1060.) (2.) In the trial of any cause in which any set-off, counter- claim, claim for damages, or other demand is set up on the part of the Government against any person making claim against the Government, the court is to hear and determine such claim or de- mand both for and against the Government and claimant ; and if upon the whole case it finds that the claimant is indebted to the Government, it must render judgment to that effect, which judg- ment is final, with the right of appeal, as in other cases provided for by law. Any transcript of such judgment, filed in the clerk's office of any District or Circuit Court, is to be entered upon the records thereof, anS becomes a judgment of such court, and is to be enforced as other judgments in such courts are enforced. (Sec. 1061.) This section, in M' ' Elratk v. The United States, 12 Ct. CI. 312, was held to be constitutional, although it does not provide for trial by jury. (3.) Whenever the Court of Claims ascertains the facts of any loss by any paymaster, quarter-master, commissary of subsistence, or other disbursing officer, in the cases previously specified, to have been without fault or negligence of such officer, it is to make a decree setting forth the amount thereof, and upon such decree the proper accounting officers of the Treasury are required to allow to such officer the amount so decreed, as a credit in the settlement of his accounts. (Sec. 1062.) The terms "fault or negligence," as here used, are to be taken in their popular acceptation, the one as importing error or mistake, and the other as importing omission. (Malone v. The United States, 5 Ct. CI. 486.) (4.) Whenever any claim is made against any Executive De- partment, involving disputed facts or controverted questions of SPECIAL REGULATIONS. 367 law, where the amount in controversy exceeds three thousand dol- lars, or where the decision will affect a class of cases, or furnish a precedent for the future action of any Executive Department, in the adjustment of a class of cases, without regard to the amount involved in the particular case, or where any authority, right, priv- ilege, or exemption is claimed or denied under the Constitution of the United States, the head of such Department may cause such claim, with all the vouchers, papers, proofs, and documents per- taining thereto, to be transmitted to the Court of Claims, and the same is there to proceed as if originally commenced by the volun- tary action of the claimant ; and the Secretary of the Treasury may, upon the certificate of any Auditor or Comptroller of the Treasury, direct any account, matter, or claim of the character, amount, or class described in this section, to be transmitted, with all the vouchers, papers, documents, and proofs pertaining thereto, to the Court of Claims, for trial and adjudication : Provided, That no case shall be referred by any head of a Department unless it belongs to one of the several classes of cases which, by reason of the subject-matter and character, the court might, under exist- ing laws, take jurisdiction of on such voluntary action of the claimant. (Sec. 1063.) All cases transmitted by the head of any Department, or upon the certificate of any Auditor or Comptroller, according to the provisions of the preceding section, are to be proceeded in as other cases pending in the Court of Claims, and, in all respects, to be subject to the same rules and regulations. (Sec. 1064.) The amount of any final judgment or decree rendered in favor of the claimant, in any case transmitted to the Court of Claims under the two preceding sections, is to be paid out of any specific appropriation applicable to the case, if any such there be ; and where no such appropriation exists, the judgment or decree is to be paid in the same manner as other judgments of the Court of Claims. (Sec. 1065.) (5.) The jurisdiction of the Court of Claims does not extend to any claim against the Government not pending therein on December 1st, 1862, growing out of or dependent on any treaty stipulation entered into with foreign nations or with the Indian tribes. (Sec. 1066.) Congress may, however, make such a claim thus cognizable by a special act ; and this is what it did by the Act of March 3d, 1881 (21 U. S. Stat, at Large, 504), in respect 368 THE COURT OF CLAIMS. to certain claims of the Choctaw Nation, giving to either party the right of appeal to the Supreme Court. (6.) No person can file or prosecute in the Court of Claims, or in the Supreme Court on appeal therefrom, any claim for or in respect to which he or any assignee of his has pending in any other court any suit or process against any person who, at the time when the cause of action alleged in such suit or process arose, was, in respect thereto, acting or professing to act, mediately or immediately, under the authority of the United States. (Sec. 1067.) The design of this section is to exclude from the Court of Claims cases pending in other courts. (7.) Aliens, who are citizens or subjects of any government which accords to citizens of the United States the right to prose- cute claims against such government in its courts, are granted the privilege of prosecuting claims against the United States in the Court of Claims, whereof such court, by reason of their sub- ject-matter and character, might take jurisdiction. (Sec. 1068 ; The United States v. O'Keefe, 11 Wall. 178; Carlisle v. The United States, 16 "Wall. 147 ; and Fichera's Case, 9 Ct. CI. 254.) (8.) Every claim against the United States, cognizable in the Court of Claims, is forever barred unless the petition setting forth the claim is filed in the court, or transmitted to it by the Secretary of the Senate or the Clerk of the House of Representatives as provided by law, within six years after the claim first accrues : Provided, That the claims of married women first accrued during marriage, of persons under the age of twenty-one years first accrued during minority, and of idiots, lunatics, and insane per- sons, and persons beyond the seas at the time the claim accrued, entitled to the claim, shall not be barred if the petition be filed in the court or transmitted, as aforesaid, within three years after the disability has ceased ; but no other disability than those enumerated shall prevent any claim from being barred, nor shall any of these disabilities operate cumulatively. (Sec. 1069.) This fixes the limitation of time within which the claim must be pre- sented, in order that the court may take jurisdiction of the same. ' In The United States v. Zippitt, 1 Otto, 663, it was held that this limitation does not bar claims referred to the Court of Claims for determination by the head of an Executive Department, pro- vided they were presented for settlement at the proper depart- ment within six years after they had first accrued. In Clark v. PROCEDURE. 369 The United States, 9 Otto, 493, it was held that where money is paid into the Treasury of the United States, the claim for the same "first accrues" at the time of such payment, and that the suit must be brought within six years from that time, unless the case falls under one of the exceptions named in the proviso of the statute. In Fulenweider v. The United States, 9 Ct. 01. 403, it was held that if the claimant dies before the claim becomes due, the limitation does not begin to run until the appointment of some person qualified to sue upon it. (9.) The Court of Claims has power to establish rules for its government and for the regulation of practice therein, and may punish for contempt in the manner prescribed by the common law, may appoint commissioners, and may exercise such powers as are necessary to carry into effect the powers granted to it by law. (Sec. 1070.) The judges and clerks of the court are author- ized to administer oaths and affirmations, take acknowledgments of instruments in writing, and give certificates of the same. (Sec. 1071.) 5. Procedure. — Cases may arise in the Court of Claims for determination in either of two ways. The first is where private claims against the Oovernment have been presented to either house of Congress and transmitted to the court for judicial deter- mination, or where, being presented to any Executive Department, they are transmitted to the court by the head thereof for trial and adjudication. The court is to hear and determine such cases as if they had been directly brought there by the claimants. (Sees. 1060, 1063-1065.) The other method is by that of petition to the court itself by the claimant. The petitioner must in all cases fully set forth the claim, the action thereon in Congress, or by any of the Depart- ments, if such action has been had ; what persons ,are owners thereof or interested therein, when and upon what consideration such persons became so interested ; that no assignment or transfer of said claim, or of any part thereof or interest therein, has been made, except as stated in the petition ; that said claimant is justly entitled to the amount therein claimed from the United States, after allowing all just credits and set-offs ; that the claimant, and, where the claim has been assigned, the original and every prior owner thereof, if a citizen, has at all times borne true allegiance 24 370 jTHE COURT OF CLAIMS. to the Government of the United States, and, whether a citizen or not, has not in any way voluntarily aided, abetted, or given encouragement to rebellion against the Government, and that he believes the facts as stated in the petition to be true. The peti- tion must be verified by the affidavit of the claimant, his agent or attorney. (Sec. 1072.) In The United States v. The Insurance Companies, 22 Wall. 99, it was held that corporations created by a rebel State while in armed rebellion against the Government of the United States,, may, nevertheless, bring suits in the Court of Claims under the " Captured and Abandoned Property Act," if the acts of incor- poration had no relation to anything else than the domestic con- cerns of the State, and were neither in their apparent purpose nor in their operation hostile to the Union, or in conflict with the Constitution, but were mere ordinary legislation, such as might have been, had there been no war or no attempted secession, and such as is of yearly occurrence in all the States. The petition must, with precision and without ambiguity, set forth all the facts upon which the right of the claimant rests. {Merchants? Exchange Co. v. The United States, 1 Ct. CI. 332.) If the petition be defective, it may be amended with the permis- sion of the court. (Jones v. The United States, 1 Ct. CI. 383, and Shaw v. The United States, 9 Ct. CI. 301.) All the allegations of the petition as to true allegiance and voluntary aiding, abetting, or giving encouragement to rebellion against the Government, may be traversed by the Government ; and if on the trial such issues shall be decided against the claimant, his petition is to be at once dismissed. (Sec. 1073.) If it be material in any claim to ascertain whether any person did or did not give any aid or comfort to the late rebellion, the claimant asserting the loyalty of any such person to the United States during such rebellion must affirmatively prove that such person did, during said rebellion, consistently adhere to the United States, and did give no aid or comfort to persons engaged in said rebellion. The voluntary residence of any such person in any place where, at any time during such residence, the rebel force or organization held sway, is to be deemed prima facie evidence that such person did give aid and comfort to said rebellion and to the persons engaged therein. (Sec. 1074.) Any person who corruptly practices or attempts to practice PROCEDURE. 371 any fraud against the United States in the proof, statement, estab- lishment, or allowance of any claim or of any part of any claim against the United States, forfeits ipso facto the same to the Government ; and it is made the duty of the Court of Claims, in such cases, to find specifically that such fraud was practiced or attempted to be practiced, and thereupon to give judgment that such claim is forfeited to the Government, and that the claimant, is forever barred from prosecuting the same. (Sec. 1086.) In regard to testimony the law provides as follows : (1.) Authority is given to the court to appoint commissioners to take testimony to be used in the investigation of claims which come before it, to prescribe the fees for their services, and to issue com- missions for the taking of such testimony, whether taken at the instance of the claimant or of the United States. (Sec. 1075.) (2.) The court has power to call upon any of the Departments for any information or papers it may deem necessary, and has the right to use all recorded and printed reports made by the com- mittees of each house of Congress, when deemed necessary in the prosecution of its business. The head of any Department may, however, refuse and omit to comply with any call for information or papers when, in his opinion, such compliance would be injuri- ous to the public interest. (Sec. 1076.) (3.) When it appears to the court in any case that the facts set forth in the petition of the claimant do not furnish any ground for relief, it is not the duty of the court to authorize the taking of any testimony therein. (Sec. 1077.) (±.) No witness can be excluded in any suit in this court on account of color ; and no claimant, nor any person from or through whom any such claimant derives his alleged title, claim, or right against the United States, nor any person interested in any such title, claim, or right, is a competent witness in the Court of Claims in supporting the same, and no testimony given by such claimant or person is to be used, except as provided in section 1080. (Sees. 1078, 1079.) The intention of Congress, in the latter of these sections, was simply to restore the common law rule of excluding parties as wit- nesses, which had been abolished by the Act of July 2d, 1864. {The United States v. Clark, 6 Otto, 37.) (5.) The court may, at the instance of the attorney or solicitor appearing in behalf of the United States, make an order in any 372 THE COURT OF CLAIMS. case pending therein, directing any claimant in such case to appear, upon reasonable notice, before any commissioner of the court, and be examined on oath touching any or all matters pertaining to said claim. Such examination is to be reduced to writing by the commissioner, and to be returned to and filed in the court, and may, at the discretion of the attorney or solicitor of the United States appearing in the case, be read and used as evidence in the trial thereof. And if any claimant, after such order is made, and due and reasonable notice thereof is given to him, fails to appear, or refuses to testify or answer fully as to all matters within his knowledge material to the issue, the court may, in its discretion, order that the said cause shall not be brought forward for trial until he shall have fully complied with the order of the court in the premises. (Sec. 1080). The examination here provided for applies only to the claimant, and can be extended to no other per- son. (Macauley v. The United States, 11 Ct. CI. 575.) (6.) The testimony in cases pending before the Court of Claims is required to be takeD in the county where the witness re- sides, when the same can be conveniently done. (Sec. 1081.) (7.) The court is authorized to issue subpoenas requiring the attendance of witnesses in order to be examined before any person commissioned to take testimony therein, and such subpoenas have the same force as if issued from a District Court, and compliance therewith is to be compelled under such rules and orders as the court shall establish. (Sec. 1082.) (8.) In taking testimony to be used in support of any claim, opportunity is to be given to the United States to file interroga- tories, or by attorney to examine witnesses, under such regulations as the court shall prescribe, and like opportunity is to be afforded to the claimant, in cases where testimony is taken in behalf of the United States, under like regulations. (Sec. 1083.) (9.) The commissioner, taking testimony to be used in the Court of Claims, is required to administer an oath or affirmation to the witnesses brought before him for examination. (Sec. 1084.) (10.) "When testimony is taken for the claimant, .the fees of the commissioner before whom it is taken, and the cost of the commission and notice, are to be paid by such claimant ; and when it is taken at the instance of the Government, such fees, together with all postage incurred by the Assistant Attorney-General, are NEW TRIALS. 373 to be paid out of the contingent fund provided for the Court of Claims, or of other appropriation made by Congress for that pur- pose. (Sec. 1085.) 6. New Trials. — The law specifies two cases in which a new trial may be granted. The first is as follows : When judgment is rendered against any claimant, the court may grant a new trial for any reason which, by the rules of common law or chancery, in suits between individuals, would furnish sufficient ground for granting a new trial. (Sec. 1087.) The fact that an appeal has been allowed does not exclude the motion for a new trial, if the record is still in the possession of the court. {Ex parte Roberts, 15 Wall. 384.) A new trial will not be granted on the ground of newly-discovered evidence if the evidence could have been discov- ered by the exercise of proper diligence, nor will it be granted unless it appears that a different result would probably be reached. {Armstrong v. The United States, 6 Ct. CI. 226, and Bramhall v. The United States, 6 Ct. CI. 238.) The other case for granting a new trial is the following : The Court of Claims, at any time while any claim is pending before it, or on an appeal from it, or within two years next after the final disposition of such claim, may, on motion on behalf of the United States, grant a new trial and stay the payment of any judgment therein, upon such evidence, cumulative or otherwise, as shall satis- fy the court that any fraud, wrong, or injustice in the premises has been done to the United States ; but until an order is made staying the payment of a judgment, the same shall be payable and paid as now provided by law. (Sec. 1088.) The wrong or injustice here referred to is not that of mere ju- dicial error. {Child v. The United States, 6 Ct. CI. 44.) In Ex parte Russell, 13 Wall. 664, it was held that the words "final dis- position," as used in this section, "mean the final determination of the suit on appeal, if an appeal is taken, or, if none is taken, then its final determination* in the Court of Claims," and that the court has " power to grant a new trial, if the same is done within two years next after the final disposition, although the case may have been decided on appeal in ' ; the Supreme Court, " and its mandate have been issued." In Young v. The United States, 5 Otto, 641, it was held that " the decision of the Court of Claims awarding, on motion of the 374 THE COURT OF CLAIMS. United States, a new trial, while a claim is pending before it, or on an appeal from it, or within two years next after the final dis- position of such claim, cannot be reviewed" by the Supreme Court. In The United States v. Ayres, 9 Wall. 608, it was held that if a new trial is granted while an appeal is pending in the Supreme Court, this vacates the judgment appealed from, and the appeal will be dismissed. {The United States v. Young, 4 Otto, 258.) 7. Payment of Judgments. — In all cases of final judgments by the Court of Claims, or, on appeal, by the Supreme Court, where the same are affirmed in favor of the claimant, the sum due thereby is to be paid out of any general appropriation made by law for the payment and satisfaction of private claims, on presen- tation to the Secretary of the Treasury of a copy of said judgment, certified by the clerk of the Court of Claims, and signed by the Chief Justice, or, in his absence, by the presiding judge of the court. (Sec. 1089.) In cases where the judgment appealed from is in favor of the claimant, and the same is affirmed by the Supreme Court, interest thereon at the rate of five per centum, is to be allowed from the date of its presentation to the Secretary of the Treasury for pay- ment as aforesaid, but no interest is to be allowed subsequent to the affirmance, unless presented for payment to the Secretary of the Treasury as aforesaid. (Sec. 1090.) And no interest is to be allowed on any claim up to the time of the rendition of judgment thereon by the Court of Claims, unless upon a contract expressly stipulating for the payment of interest. (Sec. 1091.) The payment of the amount due by any judgment of the Court of Claims, and of any interest thereon allowed by law, as herein- before provided, is a full discharge to the United States of all claim and demand touching any of the matters involved in the controversy. (Sec. 1092.) And any final judgment against the claimant, on any claim prosecuted as provided for by law, for- ever bars any further claim or demand against the United States* arising out of the matters involved in the controversy. (Sec. 1093.) Congress, by the act of March 3d, 1875 (18 U. S. Stat, at Large, 481), provided as follows : PAYMENT OF JUDGMENTS. 3T5 " That when any final judgment recovered against the United States, or other claim duly allowed by legal authority, shall be pre- sented to the Secretary of the Treasury for payment, and the plaintiff or claimant therein shall be indebted to the United States in any manner, whether as principal or surety, it shall be the duty of the Secretary to withhold payment of an amount of such judgment or claim equal to the debt thus due to the United States ; and if such plaintiff or claimant assents to such set-off, and dis- charges his judgment, or an amount thereof equal to said debt or claim, the Secretary shall execute a discharge of the debt due from the plaintiff to the United States. But if such plaintiff or claim- ant denies his indebtedness to the United States, or refuses to con- sent to the set-off, then the Secretary shall withhold payment of such further amount of such judgment or claim, as in his opinion will be sufficient to cover all legal charges and costs in prosecut- ing the debt of the United States to final judgment. And if such debt is not already in suit, it shall be the duty of the Secretary to cause legal proceedings to be immediately commenced to enforce the same, and to cause the same to be prosecuted to final judg- ment with all reasonable dispatch. And if in such action judg- ment shall be rendered against the United States, or the amount recovered for debts and costs shall be less than the amount so with- held as before provided, the balance shall then be paid over to such plaintiff by such Secretary, with six per cent, interest thereon for the time it has been withheld from the plaintiff." Such are the provisions of law in conformity with which claimants may, in the first instance, prosecute their claims against the United States. The Government of the United States pro- vides a court in which suits may be brought against it, and thus waives the immunity from suits which is incidental to sover- eignty. And, as shown in a previous chapter, it provides that either party, subject to the conditions specified, may, by an ap- peal, bring the judgments of this court before the Supreme Court for review. CHAPTEK V. COMMISSIONERS OF CIRCUIT COURTS. 1. Creation of the Office. — Congress, at an early period, cre- ated the office of " Commissioners of Circuit Courts " for the con- venience of the people, and gave to these Commissioners certain powers, as a sort of supplement to the Circuit and District Courts of the United States. The first legislation on the subject is found in the fourth section of the Act of March 2d, 1793 (1 U. S. Stat, at Large, 333), which authorized any Circuit Court, where, from the extent of the district, it might, in the opinion of the court, be necessary, to appoint one or more discreet persons learned in the law in any district for which the court is held, with authority to take bail for appearance in any court of the United States in any criminal cause in which bail is by law allowed. This is the only duty assigned to the office by the statute which originally cre- ated it. The first section of the Act of February 20th, 1812 (2 U. S. Stat, at Large, 679), provided that the Circuit Court of the United States, to be held in any district in which the then provis- ion of law for taking bail and affidavits in civil causes was inade- quate, or, on account of the extent of the district, was inconven- ient, might appoint such and so many discreet persons in differ- ent parts of the district as the court should judge necessary for the taking of acknowledgments of bail and affidavits. Such acknowl- edgments were to have the same force and effect as if taken be- fore any judge of the court. Subsequent legislation has not only continued the office, but, as new exigencies have arisen from time to time, largely added to its powers and duties, until the law on this subject has reached its present shape. These Commissioners, as the law now stands, ren- der a very important aid to the Circuit and District Courts, espe- cially in criminal cases, while they perform other duties, not judi- cial, which have been assigned to them by Congress. The law relating to them, in force on the 1st of December, 1873, is scat- GENERAL JUDICIAL POWERS. 377 tered through different parts of the Revised Statutes of the United States, and the purpose of this chapter is to present an out- line of this law. 2. Appointment. — Each Circuit Court is authorized to ap- point, in different parts of the district for which it is held, so many- discreet persons as it may deem necessary, who are to be called " Commissioners of the Circuit Courts," and to exercise the powers which are or may be expressly conferred on them by law, with the provision that no marshal or deputy marshal of any of the courts of the United States shall hold or exercise the duties of any such Commissioner of these courts. (Sees. 627, 628.) The mere fact that Commissioners are appointed by Circuit Courts does not make them officers of these courts, or subject them to their supervisory control. The courts simply exercise, in their discretion, the power conferred by Congress to make the ap- pointment. The powers of a Commissioner, when appointed, are expressly conferred by law. On this point, Judge Betts, in Ms parte Van Orden, 3 Blatch. 166, said : " The court, in making the appointment of Commissioners, fulfils an agency imposed on it by Congress, and no more acquires thereby a supervisory author- ity over him, or his proceedings in the office, than the President or the Senate has over judges appointed by them. He is not an officer of the court." The law prescribes a schedule of fees for the different services and duties which these Commissioners are authorized to perform, and also directs that their accounts, before presentation to the ac- counting officers of the Treasury Department, shall be examined and certified by the district judge of the district for which they are appointed, and shall be subject to revision by these officers, as other public accounts. (Sees. 846, 847.) 3. General Judicial Powers. — The general judicial powers of these Commissioners are the following : (1.) For any crime or offense against the United States, the offender may, by any Commissioner of a Circuit Co art to take bail, in any State where he may be found, and agreeably to the usual mode of process against offenders in such State, and at the expense of the United States, be arrested and imprisoned, or bailed, as the case may be, for trial before such court of the 378 COMMISSIONERS OF CIRCUIT COURTS. United States as by law has cognizance of the offense. The rule in regard to bail is that bail must be admitted upon all arrests in criminal cases, where the offense is not punishable by death. (Sees. 1014, 1015.) In Ex parte Thomas Kaine, 10 K Y. Leg. Obs. 257, it was held that a Commissioner has all the powers of a justice of the peace or State magistrate in the arrest and commitment of offen- ders under the laws of the United States, and by such functions becomes a magistrate. Mr. Justice Nelson, in The United States v. Worms, 4 iBlatch. 332, held that any commitment, while a pre- liminary hearing of the case before the Commissioner is pending, should be for only a short and definite period, not exceeding twenty-four hours, except for special causes shown, unless at the request of the prisoner. The order for imprisonment or bail should never be made without a preliminary examination into the prob- able guilt of the prisoner, unless he himself voluntarily waives such examination, and should not be made at all except upon probable proof of guilt. {Anon. 1 Wool. 422, and In re Robert M. Martin, 5 Blatch. 303.) In The United States v. Case, 8 Blatch. 250, it was held that the Commissioner acts simply " as an arresting, examining and committing magistrate," and that he has " no power to take recog- nizance for the appearance before himself, at a future day, of a person charged with a criminal offense against the laws of the United States," if State magistrates in the State of the arrest have no such power. (2.) These Commissioners have the same authority to hold to security of the peace, and for good behavior, in cases arising under the Constitution and laws of the United States, as may be law- fully exercised by any judge or justice of the peace of the respect- ive States in cases cognizable before them. (Sec. 727.) (3.) Bail and affidavits, when required or allowed in any civil cause in any Circuit or District Court, may be taken by a Commis- sioner of the Circuit Court for the district ; and such acknowledg- ments of bail and affidavits have the same effect as if taken before any judge of such courts. (Sec. 945.) (4.) In all cases in which, under the laws of the United States, oaths or acknowledgments may now be taken or made before any justice of the peace of any State or Territory, or in the District of Columbia, they may be also taken or made by or before any of the CIVIL RIGHTS CASES. 379 Commissioners of Circuit Courts, and when certified under the hand and official seal of such Commissioner, they have the same force and effect as if taken or made by or before such justice of the peace. (Sec. 1778.) (5.) Power is given to these Commissioners to discharge poor convicts, after a confinement in prison for thirty days under a sen- tence of any court of the United States solely for the non-payment of fines or fines and cost, and after proper notice to the district at- torney of the United States, if upon examination into the facts the Commissioner to whom an application has been made in a given case is satisfied that the convict is not able to pay the fine or the fine and cost, and if he shall take the oath prescribed in relation to the question of his ability. (Sees. 1042, 5296.) (6.) These Commissioners may, within their respective jurisdic- tions, issue search-warrants, authorizing any internal revenue officer to search any premises within the same, if such officer makes oath in writing that he has reason to believe, and does believe, that a fraud upon the revenue has been or is being committed upon or by the use of such premises. (Sec. 3462.) Such warrants must of course conform to the conditions prescribed in the Fourth Amendment to the Constitution. These are the general judicial powers which Congress has as- signed to the Commissioners of Circuit Courts, not by any means exclusively, but concurrently, with other judicial officers, some of whom in some cases are State magistrates. 4. Civil Bights Cases. — Title XXIY of the Kevised Statutes, " Civil Eights," imposes the following duties and confers the fol- lowing powers upon Commissioners of Circuit Courts : (1.) They are authorized and required, at the expense of the United States, to institute prosecutions against all persons violating any of the provisions of chapter seven of Title " Chimes," relating to " crimes against the elective franchise and the civil rights of citizens," and to cause such persons to be arrested and imprisoned or bailed for trial before the court of the United States having cognizance of the offense. (Sec. 1982.) (2.) The Circuit Courts are required to increase the number of these Commissioners from time to time, so as to afford a speedy and convenient means for the arrest and examination of persons charged with the crimes referred to in the preceding section ; and 380 COMMISSIONERS OF CIRCUIT COURTS. such Commissioners are authorized and required to exercise all the powers and duties conferred on them with regard to such offenses in like manner as they are authorized by law to exercise with re- gard to other offenses against the laws of the United States. (Sec. 1983.) (3.) The Commissioners authorized to be appointed by the pre- ceding section are empowered, within their respective counties, to appoint one or more suitable persons, from time to time, who are to execute all such warrants or other process as the Commissioners may issue in the lawful performance of their duties, with authority to summon to their aid the bystanders or posse comitatus of the proper county, or such portion of the land and naval forces of the United States, or of the militia, as may be necessary to the per- formance of the duty with which they are charged ; and all such warrants run and may be executed anywhere in the State within which they are issued. (Sec. 1984.) These provisions were originally made by laws enacted in 1866 and 1870 ; and their special object was to give protection to the civil and political rights of the freedman as guaranteed by the re- cent amendments to the Constitution, and by law in pursuance thereof. Congress, by the Act of March 1st, 1875 (18 U. S. Stat, at Large, 335), entitled " An A_ct to protect all citizens in their civil and legal rights," provided that Commissioners of Circuit Courts, with powers of arresting and imprisoning or bailing offenders against the laws of the United States, shall be specially authorized and required to institute proceedings against every person who shall violate the provisions of this act, and cause him to be ar- rested and imprisoned or bailed, as the case may be, for trial be- fore such court of the United States as by law has cognizance of the offense, except in respect of the right of action accruing to the person aggrieved. This act was passed subsequently to the enact- ment of the Revised Statutes. 5. Extradition Cases — Commissioners of Circuit Courts, when empowered so to do by any of the courts of the United States, have authority, upon complaint made under oath and charging any person found within the limits of any State, district, or Territory of the United States, with having committed within the jurisdiction of a foreign government any of the crimes for EXTRADITION CASES. 381 which extradition may be had according to the terms of a treaty between the United States and such government, to issue a war- rant for the apprehension of the person so charged, that he may be brought before the Commissioner issuing the warrant, in order that the evidence of his criminality may be heard and considered. If the Commissioner, upon such hearing, deems the evidence suf- ficient to sustain the charge under the provisions of the treaty ap- plicable to the case, he is then to certify the same, together with a copy of all the testimony taken before him, to the Secretary of State, and to issue his warrant for the commitment of the person so charged to the proper jail, there to await the action of the Ex- ecutive authority at Washington. (Sec. 5270.) These Commissioners in such cases, when properly authorized by any of the courts of the United States, have the same judicial power to order the arrest of alleged fugitives from justice, to con- duct their examination, and, if deeming the evidence sufficient under the proper treaty, to commit them to prison, that is pos- sessed by any justice of the Supreme Court, or any judge of a District or Circuit Court. Judge JBlatchford, In re Francois Farez, 7 Blatch. 315, held that it is not necessary that the warrant of the Commissioner should show that he was authorized to issue a warrant of arrest in that particular case, and that it is sufficient if it shows that he was authorized to issue warrants in extradition cases, embracing the one covered by the warrant. Judge Shipman held, in H 'enrich 's Case, 5 Blatch. 414, that the warrant of arrest runs throughout the United States, and that it may, by any justice of the Supreme Court, or judge of a Circuit or District Court, or any authorized Commissioner, be issued to arrest the fugitive anywhere within the territory of the United States, and may be executed by any marshal or deputy marshal to whom the duty is assigned. Henrich was arrested in Wisconsin by a deputy marshal of the Southern district of New York ; and Judge Shipman held the arrest to be legal. The commitment of the fugitive to prison for extradition, after his examination by the Commissioner, is the end of the case, so far as judicial action is concerned, unless he sues out a writ of habeas corpus to test the legality of the imprisonment ; and, in this event, the court granting the writ will not review the Commissioner's decision as to the weight and sufficiency of the evidence on which it was based, if, having jurisdiction of the case, he had before 382 COMMISSIONERS OF CIRCUIT COURTS. him legal and competent evidence of criminality. {In re Joseph Stupp, 12 Blatch. 501 ; In re Vandervelpen, 14 Blatch. 137; and In re Wahl, 15 Blatch. 334.) So, also, on application of a consul or vice-consul of any foreign government, having a treaty with the "United States for the resto- ration of deserting seamen, made in writing and stating that the person named therein has deserted from a vessel of any such gov- ernment, while in a port of the United States, accompanied with the proof specified that the person belonged at the time of the de- sertion to the crew of such vessel, the Commissioner of any Cir- cuit Court to whom such application is made, is required to issue his warrant for the apprehension and examination of such person. If, on examination, the facts stated are found to be true, the per- son arrested, not being a citizen of the United States, is to be de- livered up to the consul or vice-consul, to be sent back to the dominions of any such government, or, on the request and at the expense of the consul or vice-consul, to be detained until the con- sul or vice-consul finds an opportunity to send him back to the do- minions of any such government. The detention after the arrest cannot, however, be continued for more than two months ; and the party being set at liberty at the end of this period, cannot be again molested for the same cause. If any such deserter shall be found to have committed any crime or offense, his surrender may be de- layed until the tribunal before which the case may be depending, or be cognizable, shall have pronounced its sentence, and such sen- tence shall have been carried into effect. (Sec. 5280.) 6. Consular Awards and Decrees. — Authority is given to these Commissioners to carry into effect, according to the true intent and meaning thereof, the award, or arbitration, or decree of any consul, vice-consul, or commercial agent of any foreign nation, made or rendered by virtue of authority conferred on him as such consul, vice-consul, or commercial agent, to sit as judge or arbitrator in such differences as may arise between the captains and crews of vessels belonging to the nation whose interests are committed to his charge. Application for the exercise of this power must first be made to the Commissioner by petition of such consul, vice-consul, or commercial agent. And, for the purpose in question, the Commissioner is author- ized to issue all proper remedial process, mesne and final, to carry FOREIGN SEAMEN. 383 into full effect such award, arbitration, or decree, and to enforce obedience thereto, by imprisonment in the jail or other place of confinement in the district in which the United States may law- fully imprison any person arrested under the authority of the United States, until such award, arbitration, or decree is complied with, or the parties are otherwise discharged therefrom by the consent in writing of such consul, vice-consul, or commercial agent, or his successor in office, or by the authority of the foreign government appointing such consul, vice-consul, or commercial agent. The expenses of the imprisonment and maintenance of the prisoners and the cost of the proceedings are to be borne by the foreign government or by its consul, vice-consul, or commercial agent requiring the imprisonment. The marshals of the United States are commanded to serve all processes and do all other acts necessary and proper to carry into effect the premises, under the authority of the Commissioners. (Sec. 728.) The powers granted to these Commissioners in this section are possessed by them con- currently with the District and Circuit Courts of the United States. 7. Foreign Seamen. — Whenever it is stipulated by treaty or convention between the United States and any foreign nation that the consul-general, consuls, vice-consuls, or consular or com- mercial agents of each nation shall have exclusive jurisdiction of controversies, difficulties, or disorders arising at sea or in the waters or ports of the other nation, between the master or officers and any of the crew, or between any of the crew themselves, of any vessel belonging to the nation represented by such consular officer, such stipulations shall be executed and enforced within the' jurisdiction of the United States as hereinafter declared. But before this section shall take effect as to the vessels of any par- ticular nation having such treaty with the United States, the President shall be satisfied that similar provisions have been made for the execution of such treaty by the other contracting party, and shall issue his proclamation to that effect, declaring this sec- tion to be in force as to such nation. (Sec. 4079.) In all cases within the purview of the preceding section the consul-general, consul, or other consular or commercial authority of such foreign nation, charged with the appropriate duty in the 384 COMMISSIONERS OF CIRCUIT COURTS. particular case, may make application to * * * any Com- missioner of a Circuit Court, setting forth that such controversy, difficulty, or disorder has arisen, briefly stating the nature thereof, and when and where the same occurred, and exhibiting a certified copy or extract of the shipping articles, roll, or other proper paper of the vessel, to the effect that the person is of the crew or ship's company of such vessel ; and further stating and certifying that such person has withdrawn himself, or is believed to be about to withdraw himself, from the control and discipline of the master and officers of the vessel, or that he has refused, or is about to refuse, to submit to and obey the lawful jurisdiction of such con- sular or commercial authority in the premises ; and further stating and certifying that, to the best of the knowledge and belief of the officer certifying, such person is not a citizen of the United States. This application must be in writing and duly authenticated by the consular or other sufficient official seal. Thereupon the Com- missioner to whom the application has been made, is required to issue his warrant for the arrest of the person so complained of, directed to the marshal of the United States for the appropriate district, or in his discretion to any person, being a citizen of the United States, whom he may specially depute for the purpose, requiring such person to be brought before him for examination at a certain time and place. (Sec. 4080.) If on such examination, it appears that the person so arrested is a citizen of the United States, he is to be forthwith discharged, and to be left to the. ordinary course of law. But if this does not appear, and the Commissioner finds upon the papers, before re- ferred to, a sufficient prima facie case that the matter concerns only the internal order and discipline of such foreign vessel, or, whether in its nature civil or criminal, does not affect directly the execution of the laws of the United States, or the rights and duties of any citizen of the United States, he is required forthwith, by his warrant, to commit such person to prison, where persons under sentence of a court of the United States may be lawfully committed, or, in his discretion, to the master or chief officer of such foreign vessel, to be subject to the lawful orders, control, and discipline of such master or chief officer, and to the jurisdiction of the consular or commercial authority of the nation to which such vessel belongs, to the exclusion of any authority or jurisdic- tion in the premises of the United States or any State thereof. FEDERAL ELECTIONS. 385 No person can be detained more than two months after his arrest, but at the end of this time must be set at liberty, and not be again arrested for the same cause. The expenses of the arrest and the detention of the person so arrested are to be paid by the consular officer making the application. (Sec. 4081.) The powers, in these sections granted to Commissioners, are also given to any court of record of the United States, or to any judge thereof. 8. The Wages of Seamen. — "Whenever the wages of any seaman are not paid within ten days after the time when the same ought to be paid according to the provisions of law regulating this subject, or any dispute arises between the master and seamen touching wages, any Commissioner of a Circuit Court, if the dis- trict judge of the district where the vessel is, resides more than three miles from the place, or is absent from the place of his resi- dence, may summon the master of such vessel to appear before him, to show cause why process should not issue against such vessel, her tackel, apparel, and furniture, according to the course of admiralty courts, to answer for the wages. (Sec. 4546.) If the master against whom such summons is issued neglects to appear, or, appearing, does not show that the wages are paid, or otherwise satisfied or forfeited, and if the matter in dispute is not forthwith settled, the Commissioner is directed to certify to the clerk of the District Court that there is sufficient cause of com- plaint whereon to found admiralty process, and thereupon the clerk is required to issue process against the vessel, and the suit is to proceed in the court, and judgment is to be given according to the usual course of admiralty courts in such cases. (Sec. 4547.) The powers here granted to Commissioners are also granted to the judge of the judicial district where the vessel is, and to any judge or justice of the peace. Their exercise is preliminary to the issue of a libel against the vessel in the case spscified. 9. Federal Elections.— Title XXVI of the Revised Statutes, " The Elective Franchise," contains the following provisions relating to elections at which Representatives in Congress are to be chosen, and giving certain powers to and imposing certain duties upon Commissioners of Circuit Courts : (1.) The Circuit Courts of the United States for each judicial 35 386 COMMISSIONERS OF CIRCUIT COURTS. district are directed to appoint, from among the Circuit Conrt Commissioners for each judicial district in each judicial circuit, one of such officers, who in respect to the duties required of him in this Title is to be known as the Chief Supervisor of elections, of the judicial district for which he is a Commissioner, and, so- long as faithful and capable, to discharge the duties imposed on him in the Title. When any vacancies occur from any cause they are to be filled by new appointments. (Sec. 2025.) (2.) The Chief Supervisor of elections in each judicial district is charged with a series of duties in relation to the supervisors of election in the same district, and in relation to elections therein, for the purpose of securing a correct registration of voters and preventing and detecting election frauds. (Sec. 2026.) (3.) Upon the reception of certain specified reports from any supervisor of elections, the Chief Supervisor, acting both in such capacity and officially as a Commissioner of the Circuit Court, is required forthwith to examine into all the facts ; and for this pur- pose he has power to subpoena and. compel the attendance before him of any witness, and administer oaths and take testimony in respect to the charges made; and, before the assembling of the Congress for which any Representative was voted for, he is re- quired to file with the clerk of the House of Representatives all the evidence by him taken, all information by him obtained, and all reports to him made. (Sec. 2020.) (4.) United States marshals and commissioners, who perform any of the duties provided for in the Title, are directed to forward to the Chief Supervisor of elections, in and for their judicial dis- trict, all complaints, examinations, and records pertaining thereto, and all oaths of office by them administered to any supervisor of election or special deputy marshal, in order that the same may be properly preserved and filed. (Sec. 2027.) (5.; Whenever any arrest is made under any provision of this Title, the person so arrested is to be forthwith brought before a commissioner, judge, or court of the United States for examina- tion of the offenses alleged against him ; and such commissioner, judge, or court is to proceed in respect thereto as authorized by law in case of crimes against the United States. (Sec. 2023.) These provisions, with others contained in the same Title, were designed by Congress to interpose the power of the General Government for the protection and regulation of the elective BANKRUPTCY CASES. 387 franchise at elections in which Representatives in Congress are chosen. Their authority rests upon article 1, section 4, of the Constitution, which provides as follows : " The times, places, and manner of holding elections for Senators and Representatives shall be prescribed in each State by the legislature thereof ; but the Congress may at any time by law make or alter such regulations, except as to the places of choosing Senators." Circumstances, growing out of the war of the rebellion, led Congress to this exer- cise of the power conferred in the latter clause of the section. The Supreme Court of the United States had occasion, in Ex parte Sieboid, 10 Otto, 371, to consider this clause of the Consti- tution, and so much of the legislation under it as was involved in the case before the court, and held the legislation to be constitu- tional. 10. Bankruptcy Cases. — The Revised Statutes give to the Commissioners of Circuit Courts authority to take evidence in bankruptcy proceedings; and in such proceedings creditors are privileged to prove their debts before them. (Sees. 5003, 5076.) The repeal of the National Bankrupt Law by the Act of June 7th, 1878 (20 U. S. Stat, at Large, 99), renders these provisions inoperative. Such, then, is the outline of existing law in relation to the powers and duties of Commissioners of Circuit Courts. Congress, beginning originally with a single duty, has from time to time util- ized the office for a great variety of legal purposes, some of them being strictly judicial in their nature, and others being ministerial and executive. The office itself, considered in its purely judicial character as an appendage to the Federal courts, is one of very considerable importance in the judicial system of the United States. CHAPTER VI. OFFICERS OF FEDERAL COURTS. It is a universal principle of judicial practice that courts them- selves do not originate the suits and prosecutions which they con- sider and decide, and that they do not directly execute their own orders, judgments, and decrees. They are not parties or the rep- resentatives of parties in the suits of which they take cognizance, and do not perform the ministerial function of giving effect to their own decisions. They judge and determine as between par- ties, hearing them in the first place, and then, in the light of law and evidence, disposing of the cases presented to them. Their judgments or decrees, when made, are carried into effect by officers who in this respect are subject to their order. It necessarily follows that causes, in order to be considered and determined by courts, must, in the way prescribed by law, be pre- sented to them. This may be done, either by the parties them- selves, if the law so permits, or by those who are authorized to appear in courts, to bring suits therein, and try causes in behalf of their clients. So, also, ministerial officers are needed, having the power and charged with the duty of giving effect to the orders and decisions made by courts. 1. Attorneys and Counselors. — Attorneys and counselors at law form a class of persons who are specially educated for the practice of law, and who make it a business to pursue this practice in the courts of the country. Being thus educated in the prin- ciples and practice of law, and having, by a proper examination, been tested as to their legal knowledge and proficiency, they have been formally admitted to the bar of courts, for the ex- press purpose of bringing suits therein as the representatives of others, examining witnesses, making arguments, and, in general, conducting legal trials. Parties having cases which they wish to bring before courts, or parties sued or prosecuted by others, may ATTORNEYS AND COUNSELORS. 389 avail themselves of the services of these legal experts, and be heard through them. Section 747 of the Eevised Statutes of the United States, re- producing the first clause of the thirty-fifth section of the Judicia- ry Act of 1789 (I U. S. Stat, at Large, 73), provides, that "in all the courts of the United States the parties may plead and manage their own causes personally, or by the assistance of such counsel or attorneys at law as, by the rules of the said courts, respectively, are permitted to manage and conduct causes therein." Section 748 of the same statutes declares that "no clerk, assist- ant or deputy clerk, of any Territorial, District, or Circuit Court, or of the Court of Claims, or the Supreme Court of the United States, or marshal or deputy marshal of the United States within the district for which he is appointed, shall act as a solicitor, proc- tor, attorney, or counsel in any cause depending in either of said courts, or in any district for which he is acting as such officer." The immediately following section also declares that "whoever violates the preceding section shall be stricken from the roll of attorneys by the court upon complaint, upon which the respondent shall have due notice, and be heard in his defense, and, in the case of a marshal or deputy marshal, so acting, he shall be recommend- ed by the court for dismissal from office." This legislation gives the right of pleading and the manage- ment of causes in the Federal courts to the parties themselves ; yet as they are not generally learned in the law, their nearly uni- versal practice, whether as plaintiffs or defendants, is to employ some person who, in the character of an attorney and counselor, is permitted to practice his profession in the courts of the United States. Rule No. 2 of the Supreme Court provides that " it shall be requisite to the admission of attorneys and counselors to practice in this court, that they shall have been such for three years past in the Supreme Courts of the States to which they respectively be- long, and that their private and professional character shall appear • to be fair," and that they shall take and subscribe the oath pre- scribed by the court. The court having construed this rule as having no application to women, Congress, by the Act of February 15th, 1879 (20 U. S. Stat, at Large, 292), provided that " any woman who shall have , been a member of the l»ar of the highest court of any State or 390 OFFICERS OF FEDERAL COURTS. Territory, or of the Supreme Court of the District of Columbia, for the space of three years, and shall have maintained a good standing before such court, and who shall be a person of good moral character, shall, on motion and the production of such rec- ord, be admitted to practice before the Supreme Court of the United States/' The method of such admission is by an applica- tion with the proper evidence as to the necessary facts, and an order of the court admitting the applicant, upon his or her taking the oath prescribed. The Supreme Court, in Ex parte Tillinghast, 4 Pet. 108, de- cided that it would not exclude an applicant, if coming within its rule on this subject, because his name had for contempt of court 'been stricken from the roll of attorneys and counselors of a Dis- trict Court of the United States. Chief Justice Marshall said in this case: "This court does not consider itself authorized to pun- ish here for contempts which may have been committed in that court." The Circuit and District Courts of the United States have the same authority as that possessed by the Supreme Court, to estab- lish the rule for the admission of attorneys and counselors, solicit- ors and counselors, and proctors and advocates to practice therein ; and, as a general principle, they regulate the admission by the requisites adopted by the Supreme Court. Attorneys and counselors, thus admitted to practice their pro- fession in Federal courts, are members of the bar of these courts, and in this sense officers of the courts. Their admission is by the authority of the courts, and remains a permanent fact unless the same authority shall disbar or exclude them, as it may do for con- duct showing them unfit to be members of the bar. They hold the office during good behavior, and are always subject to the direct and summary jurisdiction of the court for what are deemed offenses against its dignity and authority, or against the ethics of the legal profession. For this purpose, when the offense is not committed in open court, they may be charged by complaint and affidavit ; and, in such cases, the court, after giving them notice to appear and answer to the charge, may proceed to examine into the facts, and, if justice so requires, disbar them. {Bradley v. Fisher, 13 Wall. 335.) The power of a court of the United States to disbar an attor- ney, by a summary process, for the commission of an indictable ATTORNEYS AND COUNSELORS. 391 ■offense, was recently considered by the Supreme Court in the case of Em parte Wall, 2 Supreme Ct. Rep. 569. In this case the court held : 1. That although not strictly regular to grant a rule to show cause why an attorney should not be struck off the roll, without an affidavit making charges against him, yet that, under the special circumstances of this case, the want of such affidavit did not ren- der the proceeding void as coram non jadice. 2. That the acts charged against the attorney constituted a sufficient ground for striking his name from the roll. 3. Ihat although in ordinary cases, where an attorney commits an indictable offense, not in his character of attorney, and does not admit the charge, the courts will not strike his name from the roll until he has been regularly indicted and convicted, yet this rule is not inflexible ; that there may be cases in which it is proper for the court to proceed without such previous conviction ; and that the present case, in view of its special circumstances, the evasive de- nial of the charge, the clearness of the proof, and the failure to offer any counter-proof, was one in which the court might lawfully exercise its summary powers. Judge Locke, ascertaining, upon what he regarded as reliable information, that Mr. "Wall had joined with others in an act of murderous lynching, ordered him to show cause why he should not be disbarred, and, upon proof of the offense, proceeded to dis- bar him. Wall applied, to the Supreme Court for a mandamus to compel the judge to vacate the order, and the court declined, to issue the writ. The mere admission of certain persons to practice, as attorneys and counselors in the Federal courts, does not make them officers of the United States. It simply secures to them the right or privilege of appearing in these courts in behalf of their clients, either to bring suits or to make a defense against suits. They do not represent the Government, and, unless specially appointed for the purpose, have no authority to act for it. The General Government has frequent occasion to resort to its own courts, in the character of plaintiff or petitioner ; and since the establishment of the Court of Claims, it may, in the cases specified, be sued in that court. It needs the services of attorneys and counselors to conduct suits and prosecutions in its name and by its authority, and also defend it against suits in the Court of 392 OFFICERS OF FEDERAL COURTS. Claims ; and, to perform these services, Congress has provided by law for the appointment of a designated class of officers. 2. The Attorney-General.— At the head of this list of offi- cers, and highest in rank, stands the Attorney-General of the United States. The Judiciary Act of 1789 (1 U. S. Stat, at Large, 73), provided for the appointment of " a meet person, learned in the law, to act as Attorney-General of the United States," and made it his duty " to prosecute and conduct all suits in the Supreme Court in which the United States shall be con- cerned." Congress, by the Act of June 22d, 1870 (16 U. S. Stat, at Large, 1C2), created a Department of Justice, and made the Attorney-General the head of the same. Provision is made, in the organization of this department, for the appointment of a Solicitor-General, who performs the duties of Attorney- General in case of vacancy in the office, or his absence or ina- bility, and also of three Assistant Attorney-Generals, who are to assist the Attorney-General or Solicitor-General in the performance of their duties. (Rev. Stat. 347, 348.) The duties and powers assigned to the Attorney-General and his official subordinates, that relate specially to courts and the trial of causes therein, as stated in the Revised Statutes, are the following : (1.) Except when the Attorney-General in particular cases shall otherwise direct, it is his duty and that of the Solicitor-General to conduct and argue suits and writs of error and appeals in the Su- preme Court and suits in the Court of Claims in which the United States are interested ; and, whenever the Attorney-General deems it for the interest of the United States, he may either in person conduct and argue any case in any court of the United States in which the United States are interested, or may direct the Solicitor- General or any officer of the Department of Justice to do so. (Sec. 359.) (2.) The officers of the Department of Justice are required, under the direction of the Attorney-General, and on behalf of the United States, to procure the proper evidence for, and conduct, prosecute or defend, all suits and proceedings in the Supreme Court and in the Court of Claims, in which the United States, or any officer thereof, as such, is a party or may be interested. (Sec. 301.) DISTRICT ATTORNEYS. 393 (3.) The Attorney-General is authorized and required to exer- cise a general superintendence and direction over the attorneys and marshals of all the districts in the United States and Territories, as to the manner of discharging their respective duties ; and these attorneys and marshals are required to report to the Attorney- General an account of their official proceedings, and of the state and condition of their respective offices, in such time and manner as he may direct. (Sec. 362.) (4.) The Attorney-General is authorized, whenever in his judgment the public interest requires it, to employ and retain, in the name of the United States, such attorneys and counselors at law as he may think necessary to assist the district attorneys in the discharge of their duties, to stipulate with such assistants as to the amount of their compensation, and take supervision of their conduct and proceedings. (Sec. 3t>3.) (5.) The Solicitor-General or any officer of the Department of Justice may be sent by the Attorney-General, to any State or dis- trict in the United States, to attend to the interests of the United States in any suit pending in any of the courts of the United States, or in the courts of any State. (Sec. 367.) (6.) The Attorney-General is required to exercise general su- pervisory powers over the accounts of district attorneys, marshals, clerks, and other officers of the courts of the United States. (Sec. 368.) Many other duties are assigned to the Attorney-General, or his subordinates acting under his direction ; yet, the above statement gives the duties which specially relate to judicial proceedings in the courts of the United States, and also in State courts, in cases which involve the interests of the United States. The Attorney- General is, in this respect, the head of the law officers of the Gov- ernment, and exercises a supervisory control over themj all. 3. District Attorneys.— The* Kevised Statutes provide that, with certain exceptions in which district attorneys are required to perform their duties in more than one district, there shall be ap- pointed in each district a person learned in the law to act as an at- torney for the United States in such district, (t-'ec. 767.) The appointment of district attorneys is for the term of four years, and their commissions cease at the expiration of four years from their respective dates. (Sec. 769.) 394 OFFICERS OF FEDERAL COURTS. The general duties of these officers are thus described in the Bevised Statutes : " It shall be the duty of any district attorney to prosecute, in his district, all delinquents for crimes and offenses cognizable under the authority of the United States, and all civil actions in which the United States are concerned, and, unless otherwise instructed by the Secretary of the Treasury, to appear in behalf of the defendants in all suits or proceedings pending in his district against collectors, or other officers of the revenue, for any acts done by them, or for the recovery of any money exacted by or paid to such officers and by them paid into the Treasury." (Sec. 771.) This statute makes each district attorney the regular prosecut- ing officer of the United States in the district for which he was appointed, alike in respect to civil and criminal proceedings, sub- ject only to the general direction and supervision of the Attorney- General, as elsewhere provided for. It is his business to prosecute the crimes and offenses and the civil actions referred to in the statute. The Federal court, sitting in his district, whether it be the District Court or the Circuit Court, can take no cognizance of a suit, civil or criminal, as legally before it for adjudication in the name of the United States, unless it is instituted and prosecuted by the district attorney. He is the law officer of the Government for the purpose of bringing and prosecuting suits, and must be so recognized by the court. The matter is under his exclusive charge until by his action it comes within the cognizance and under the control of the court. {The Pueblo Case, 4 Saw. 553 ; The United States v. McAvoy, 4 Blatch. 418 ; The United States v. Doughty, 7 Blatch. 424 ; The United States v. Corrie, 23 Law Bep. 145 ; The Anna, Blatch. Prize Cas. 337 ; and The Peter- hoff, Blatch. Prize Cas. 463.) The locality of the district attorney's action and power is the district for which he was appointed. He is there, and not else- where, the law officer of the Government before the courts of the United States held in that district. If he there appears in behalf of collectors or other revenue officers in suits brought against them, these suits or proceedings must arise in his district. The crimes and offenses which are to be prosecuted by the dis- trict attorney are such as are cognizable in his district under the authority of the United States. If committed in that district, then they are there cognizable. But if committed upon the high seas DISTRICT ATTORNEYS. 395 or elsewhere, out of the jurisdiction of any particular State or district, then the trial and of course the prosecution must be in the district where the offenders are found, or into which they are first brought. (Rev. Stat. sec. 730.) If committed partly in one dis- trict and partly in another district, the trial and prosecution may be in either. (Sec. 731). If the offense be punishable with death, the trial must be in the county where it was committed, if this can be done without great inconvenience. (Sec. 729.) The term " prosecute," as used in the statute, means that the district attorney shall perform all the duties belonging to his office, and necessary to be performed, in order to bring offenses and civil actions properly before the court, and give effect to its orders, judgments or decrees. He is to aid the grand jury in framing indictments in criminal cases ; to procure and examine witnesses ; to submit arguments to the court ; to provide the mar- shal with all necessary process to carry into execution the judg- ment of the court ; in short, to manage and conduct civil and criminal trials and proceedings in the name, and as the representa- tive, of the United States. His appointment and acceptance of the office make him an attorney for as well as of the United States. {The United States v. Shumann, 2 Abb. 0. C. 523 ; and Levy Court v. Ringgold, 5 Pet. 451.) If the district attorney moves for the trial of a party, the fact that he has received different instructions from the Attorney- General will be no reason for denying the motion, since these in- structions are for him alone and cannot be considered by the court. {The United States v. Davis, 6 Blatch. 464.) The district attorney is in his district the recognized officer of the Govern- ment, and it is through him, and him alone, that the court can have communication with the executive thereof. ( The United States v. Blaisdell, 3 Ben. 132.) He has the general power, with the consent of the court, to enter a nolle prosequi at any time be- fore a jury is impanelled. {The United States v. Stowell, 2 Curt. 153.) His signature, while no part of an indictment, is, never- theless, necessary as evidence to the court that he is prosecuting the party charged with an offense in conformity with his duty. < The United States v. McAvoy, 4 Blatch. 418.) The district attorney in performing the duties and exercising the powers of his office, is not regarded as having a general au- thority, except in extraordinary cases that do not admit of delay, 396 OFFICERS OF FEDERAL COURTS. to commence suits in the name of the United States, upon his own motion. He is ordinarily to await the orders of the President, or of some proper authority at the seat of Government. (Abb. Q. S. Pr. vol. I, p. 121.) Being the attorney for and of the Govern- ment, he is of course subject to its control. The Revised Statutes impose upon each district attorney the duty of making detailed statements and returns, in respect to suits in his district, to the designated officers of the Government. (Sees. 772-775.) The Act of June 20th, 1874 (18 U. S. Stat, at Large, 109), makes it his duty to reside permanently in the district where his official duties are to be performed, and in case of his removal therefrom his office is declared to be vacant : Provided, That in the Southern District of New York he may reside within twenty miles of the district. 4. Marshals. — The Revised Statutes (sees. 776-792) contain the general provisions of law in respect to the appointment, pow- ers, and duties of marshals of the United States. A marshal is to be appointed in each judicial district, except in the middle district of Alabama, the Northern district of Georgia, and the Western district of South Carolina. (Sec. 776.) His ap- pointment is for the term of four years. (Sec. 779.) He has the power to appoint one or more deputies, who are removable from office by the judge of the District Court, or by the Circuit Court for the district, at the pleasure of either. (Sec. 780.) Every mar- shal is required to take the oath prescribed and give a sufficient bond for the faithful performance of the duties of his office by himself and his deputies. (Sees. 782, 783.) Any person, who may have been injured by the breuch of the condition of a marshal's bond, may institute a suit in his own name and for his sole use on the bond, and thereupon recover such damages as shall be legally assessed, with costs of suit, for which execution may issue for him in due form. If such party fails to recover in the suit, then the judgment is to be rendered, and the execution to issue, against him for costs in favor of the defendant ; and in no case are the United States liable for the same. (Sec. 784.) The bond is to remain, after any judgment rendered thereon, as a security for the benefit of any person injured by the breach of the same, until the whole penalty is recovered. (Sec. 785.) No suit on such a bond can be maintained unless commenced within six years after the MARSHALS. 397 right of action accrues, saving the rights of infants, married women and insane persons, if they sue within three years after their disabilities are removed. (Sec. 786.) The general duties of a marshal are thus specified : '■' It shall be the duty of the marshal of each district to attend the District and Circuit Courts when sitting therein, and to execute throughout the district all lawful precepts directed to him, and issued under the authority of the United States, and he shall have power to command all necessary assistance in the execution of his duty." (Sec. 787.) Marshals, in their relation to courts, are ministerial officers, and are bound to execute the process issued to them and make due returns thereon. If resisted by unlawful combinations in the performance of their duty, they have authority to summon the entire able-bodied force of their respective precincts as a, posse comit'itus, including the militia and the officers, soldiers and ma- rines of the United States. (3 Op. Att.-Gen. 496, and 6 Id. iG6.) Marshals and their deputies possess, in each State, the same powers, in executing the laws of the United States, as the sheriffs and their deputies in such State have by law in executing the laws thereof. (Sec. 788.) This is not necessarily the limit of their powers, but simply a reference to the powers of a sheriff or his deputies, as one means of determining what powers they may lawfully exercise. They have all the powers which Congress has conferred upon them, and every duty imposed upon them by law implies the rightful power to perform it. In case of the death of a marshal, his deputy or deputies continue in office, unless other- wise specially removed, and execute the same until another mar- shal is appointed and duly qualified. (Sec. 7S9.) The circuit jus- tice of any circuit may temporarily appoint a marshal in case of a vacancy in the office within such circuit, who is authorized to serve until an appointment is made by the President and the ap- pointee is duly qualified. (Sec. 793.) Marshals and deputy mar- shals, when removed from office, or when the term of office ex- pires, have the authority to execute whatever process may at the time be in their hands. (Sec. 790.) Each marshal is required, within thirty days before the com- mencement of each term of the Circuit and District Court in his district, to make returns, to the Solicitor of the Treasury, of the proceedings had upon all writs of execution or other process, which have been placed in his hands, for the collec- 398 OFFICERS OF FEDERAL COURTS. tion of moneys adjudged and decreed to the United States in either of these courts respectively. (Sec. 791.) So also every marshal, to whom any execution upon a judgment in a suit for moneys due on account of the Post Office Department has been directed, is required to make returns to the Sixth Auditor, at such times as he may direct, of the proceedings which have taken place upon the process of execution. (Sec. 792.) Congress, by the Act of June 20th, 1874 (18 U. S. Stat, at Large, 109), provided that every United States marshal shall reside permanently in the district where his official duties are to be performed, and that, in case of removal therefrom, his office shall be deemed vacant, with the qualification that in the Southern district of New York he may reside within twenty miles of the district. The Supreme Court of the United States is authorized to ap- point a special marshal for that court, to attend the court at its sessions ; to serve and execute all process and orders issuing from it, or made by the Chief Justice or an assistant justice in pursu- ance of law ; and to take charge of all property of the United States used by the court or its members. With the consent of the Chief Justice he may appoint assistants and messengers to attend the court. (Sees. C77, €180.) Such is the general outline of the provisions of law relating to marshals, as found in the Revised Statutes of the United States. The office is attached to courts as a ministerial office for the exe- cution of the process, orders, judgments and decrees thereof. 5. Clerks. — The Supreme Court, the District and Circuit Courts, and the Court of Claims, are courts of record, and, conse- quently, need the services of clerks. The provisions of the Re- vised Statutes of the United States in relation to these officers are as follows : The Supreme Court is authorized to appoint a clerk, and, on application of the clerk, one or more deputies who may be re- moved at the pleasure of the court, and who, in case of the death of the clerk, unless removed, continue in office and perform the duties of the clerk in his name until a clerk is appointed and qualified. (Sees. 677, 678.) It is made the duty of the judge of each District Court to appoint a clerk, except in cases otherwise provided for by law ; and power is given to the court, on applica- CRIERS. 399 tion of the clerk, to appoint one or more deputies, who are subject to provisions similar to those that apply to deputy clerks of the Supreme Court. (Sees. 555, 558.) The circuit judge of each Circuit Court is directed to appoint a clerk, except in cases other- wise provided for by law ; and, as to deputy clerks, the provision of law is similar to that made in respect to District Courts. (Sees. 619, 624.) The Court of Claims is required to appoint a chief clerk and an assistant clerk, who perform their duties under the direction of the court. (Sec. 1053.) The clerks of these courts are required to take an oath and give bonds for the faithful performance of their duties. (Sees. T94, 795, 1053, 1055.) The primary duty of each clerk is to make a true and faithful record of all the orders, judgments, de- crees and proceedings of the court. The clerks of the District and Circuit Courts are directed to render semi-annual accounts to the Attorney-General in such form as he may prescribe, and, within thirty days after every term of each court, to report to the Solicitor of the Treasury all judg- ments or decrees to which the United States are a party. (Sees. 833, 797.) These clerks may, in the absence or disability of the judges, take recognizances of special bail de hene esse, in any action depending in either of the courts, where special bail is demanda- ble, and may, in the absence or disability of the judges, administer oaths to all persons identifying papers found on board of vessels or elsewhere to be used on trials in admiralty causes. (Sees. 947, 799.) At each regular session of any court of the United States, the clerk is required to present to the court an account of all moneys remaining therein, or subject to its order, stating in detail in what causes they are deposited, and in what causes payments have been made ; and these accounts and the vouchers thereof are to be filed in the court. (Sec. 798.) It is the duty of every clerk of a District or Circuit Court to reside permanently in the district where "his official duties are to be performed ; and if he removes therefrom, his office is to be deemed vacant, except that in the Southern district of New York he may reside within twenty miles of the district. (18 U. S. Stat, at Large, 109.) 6. Criers. — The Circuit and District Courts are authorized to 400 OFFICERS OF FEDERAL COURTS. appoint criers for their courts, to be allowed the sum of two dol- lars per day ; and the marshals may appoint such a number of persons, not exceeding five, as the judges of their respective courts may determine, to attend upon the grand and other juries, and for other purposes, who are to be allowed for their services the sum of two dollars per day, to be paid by and included in the ac- counts of the marshal, out of any money of the United States in his hands. Such compensation is to be paid only for actual attendance, and, when both courts are in session at the same time, only for attendance on one court. (Sec. 715.) 7. Commissioners to take Testimony. — The Act of August 15th, 1876 (19 U. S. Stat, at Large, £06), provides as follows : " That notaries public of the several States, Territories, and the District of Columbia be, and they are hereby authorized to take depositions, and do all other acts in relation to taking testimony to be used in the courts of the United States, take acknowledgments and affidavits, in tlie same manner and with the same effect as Commissioners of the United States Circuit Court may now law- fully take or do." 8. Registers in Bankrnptcy. — The Revised Statutes provide for the appointment of Registers to assist the District Courts in the administration of bankrupt estates, and define their powers and duties. (Sees. 4993-4997.) The repeal of the National Bankrupt Law by the Act of June 7th, 1878 (20 U. S. Stat, at Large, 99), renders this office obsolete, at least for the present, except as to cases pending before the law took effect. CHAPTEE VII. THE FEDERAL JURY. SECTION I. » CONSTITUTIONAL PROVISIONS. The Constitution of the United States contains four provisions relating to the jury system, including in this phrase the petit or trial jury and the grand jury. These provisions are the follow- ing: 1. Criminal Trials. — Article 3, section 2, and sub-section 3 of this Constitution reads as follows : " The trial of all crimes, except in cases of impeachment, shall be by jury ; and such trial shall be held in the State where the said crimes shall have been committed ; but when not com- mitted within any State, the trial shall be at such place or places as the Congress may by law have directed." The exception to the rule here prescribed is furnished by cases of impeachments. The Constitution in these cases provides a special mode of trial. The persons subject to impeachment are " the President, Yice-President, and all civil officers of the United States," who are to be "removed from office on impeachment for, and conviction of, treason, bribery, and other high crimes and misdemeanors." (Art. 2, sec. 4.) The power of framing and adopting articles of impeachment belongs exclusively to the House of Representatives. (Art. 1, sec. 2, sub-sec. 5.) The power of trying impeachments is given to the Senate, with the provision that "no person shall be convicted without the concurrence of two- thirds of the members present," and also that the judgment shall extend only to " removal from office and disqualification to hold and enjoy any office of honor, trust, or profit under the United States," and with the further provision that " the party convicted shall nevertheless be liable and subject to indictment, trial, judg- ment, and punishment, according to law." (Art. 1, sec. 3, sub- 26 402 THE FEDERAL JURY. sees. 6, 7.) To these cases trial by jury has no application, since they are expressly excepted and specially provided for. The jury, here referred to, is evidently the petit or trial jury, which was known to the common law of England long before the adoption of the Constitution, and which our English ancestors brought with them when they came to this country. The framers of the Constitution did not invent it. They found it already here, established in the laws and practice of the people ; and what they did was to incorporate it into the judicial system of the United States. A jury, in itself considered, is not a court, and is not in all cases essential to a judicial trial. It is rather an appendage to courts, and, in certain denned cases, so indispensable that they cannot determine a controversy between parties, or render a judg- ment, without a jury. The trial jury of the common law, adopted by the Constitu- tion as a part of its judicial system, meant then, as it means now, a body of twelve men, legally competent to act as jurors, legally impanelled, sitting together in the jural capacity, and rendering a verdict only by the concurrence of the whole number. The es- sential attributes of such a jury are the number of jurors, which must be neither more nor less than twelve, and the necessity of unanimity in rendering a verdict. These attributes the Constitu- tion transfers to the Federal jury; and any law of Congress changing either would be unconstitutional. Congress may pre- scribe the qualifications of jurors, and regulate the procedure of their selection ; but it cannot alter the essential nature of the in- stitution itself, as understood when the Constitution was adopted and established by this instrument. The institution itself is a' part of the fundamental law of the land. ( Work v. The State, 2 Ohio St. E. 290 ; The State v. Cox, 3 English, 438 ; The Peo]de v. Johnson, 2 Parker's C. C. 322, 329, 363, 402 ; and 2 Leading Criminal Cases, 327.) The specific function of such a jury in a criminal trial is to decide whether the crime legally charged against an accused party is by the evidence proved to have been committed by that party ; and this question of fact it must determine, if at all, by a verdict of acquittal or conviction. The plea of not guilty, which the ac- cused is always entitled to make, raises an issue of fact ; and of CONSTITUTIONAL PROVISIONS. '403 this issue the jury, after having heard the evidence, is the sole judge. The prerogative of the court is to decide all mere questions of law ; and it is the duty of the jury to receive the law at its hands. {The United States v. Battiste, 2 Sum. 240 ; Stittimus v. The United States, 5 Cranch's C. C. 573 ; The United States v. Gilbert, 2 Sum. 19 ; The United States v. Morris, 1 Curt. C. 0. 53 ; and The United States v. Riley, 5 Blatch. 206.) Mr. Justice Curtis, in an elaborate argument on this point, in The United States v. Morris, supra, showed that, when the Con- stitution was adopted, the settled rule of English common law was that, in criminal cases, the court decides the law, while the jury decides the facts. He said: "My firm conviction is that, under the Constitution of the United States, juries in criminal trials have not the right to decide any questions of law ; and if they render a general verdict, their duty and their oath require them to apply to the facts, as they find them, the law given them by the court." This conclusion is referred to approvingly and adopted by Judge Shipman in The United States v. Riley, supra. It is certainly the sensible view of the subject, as it is the one most likely to promote the ends of public justice. Ordinarily, jurors are not competent, independently of the instructions of the court, to decide questions of law. The jury meant by this constitutional clause is a Federal jury, summoned and impanelled under the laws of the United States, and rendering its service in connection with and under the direction of a Federal court. The clause has no reference to juries constituted and rendering verdicts under State laws. {Murphy v. The Peo- ple, 2 Cow. 815 ; and Barron v. The Mayor of Baltimore, 7 Pet. 243.) And so the crimes here mentioned are offenses against the United States, and cognizable by courts appointed and acting un- der the authority thereof. The people of the United States adopted this clause for the government of their own courts, and not for the government of State courts. The Supreme Court of the United States, in Ex parte Milli- gan, 4 Wall. 2, held that this and other provisions of the Consti- tution, relating to trial by jury in criminal cases, were " intended for a state of war as well as for a state of peace ;" and, consequently, that where the Federal courts are '• open for the trial of offenses and the redress of grievances, the usages of war could not, under 404 THE FEDERAL JURY. the Constitution, afford any sanction for the trial of a citizen in civil life, not connected with the military or naval power, by a military tribunal, for any offense whatever." Milligan, who was a citizen of Indiana, in civil life, having no connection with the army, was, in October, 1864, brought before a military commis- sioner created by the order of General Hovey; and, having been tried by the commission on certain charges and specifications, he was found guilty and sentenced to be hanged. The Supreme Court of the United States held this proceeding to be unconstitu- tional, and therefore void. The clause under consideration not only provides for trial by jury in criminal cases, with the exceptions stated, but also deter- mines where the trial shall be had. If the crime was committed in any State, then the trial must be in that State. The design of this provision is to protect the accused, charged with com- mitting an offense in a given State, against being transported for trial to another and perhaps a distant State, which might seriously impair his means of making a defense. A crime against the United States committed out of the limits of any State, is not local in respect to any State ; and in such a case the trial may be had at such place as Congress has designated by law. {The United States v. Dawson, 15 How. 467, 488.) The language implies that such designation must be made before and not after the commission of the crime. 2. Criminal Indictments. — The Fifth Amendment to the Constitution provides as follows : " No person shall be held to answer for a capital or otherwise infamous crime, unless on a presentment or indictment of a grand jury,_except in cases arising in the land or naval forces, or in the militia when in actual service in time of war or public danger • nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb ; nor shall he be compelled in any criminal case to be a witness against himself." This provision, like the one just considered and found in the body of the Constitution, is simply a limitation upon the Govern- ment of the United States, and has no relation to the constitu- tions and laws of the several States, or to criminal proceedings nnder them. {Barron v. The Mayor of Baltimore, 7 Pet. 243 ; CONSTITUTIONAL PROVISIONS. 405 Livingston v. The Mayor, 8 Wend. 85 ; Murphy v. The People, 2 Cow. 815 ; Withers v. Buckley, 20 How. 84 ; Clark v. Dick, 1 Dill. 8 ; and Prescott v. The State, 19 Ohio St. 184.) " Cases arising in the land or naval forces, or in the militia when in actual service in time of war or public danger," are ex- pressly excepted from the application of the rule here stated. Congress, in article 1, section 8, of the Constitution, is authorized "to raise and support armies," "to provide and maintain a navy," and " to make rules for the government and regulation of the land and naval forces," and may, under this authority, provide for the trial and punishment of offenses in the army and navy, and in the militia when in actual service in time of war or public danger, by military tribunals, without a jury. The judicial power granted in the third article of the Constitution does not apply to these cases ; and civil courts have no jurisdiction in respect to them, unless it be to inquire in a given case whether the military tribunal had jurisdiction over the subject-matter, or has inflicted a punishment forbidden by the law, and to afford the proper redress if the law aDd the facts call for it. {Dynes v. Hoover, 20 How. 65 ; Earman v. Tappenden, East, 555 ; Marshall's Case, 10 Cr. 76 ; Morrison v. Slopper, Wells, 30 ; and Parton v. Williams, B. & A. 330.) So also crimes that are not " capital or otherwise infamous," are not included in the rule that " no person shall be held to answer for" a crime, "unless on a presentment or indictment of a grand jury." The rule does not exclude indictments for such crimes, and does not make them absolutely necessary as a preliminary to their tiral. It simply provides that crimes, coming within the description of " capital or otherwise infamous " crimes, shall be prosecuted by the indictment of a grand jury. This implies that other offenses, not coming within this description, may be prosecuted otherwise than by the intervention of a grand jury. Congress may provide that other offenses shall be brought to trial upon an information by the proper district attorney, which, being an accusation pre- sented to the court by the prosecuting officer of the Government, would, so far as trial is concerned, have the same effect as the in- dictment of a grand jury in cases of " capital or otherwise infa- mous" crimes. (The United States v. Maxwell, 3 Dill. 275.) The term " capital " is, by established usage, applied only to crimes punishable with death ; and all such crimes must be prose- 406 THE FEDERAL JURY. cuted by indictment. The Constitution characterizes them by re- ferring to their punishment. The term " otherwise," as here used to qualify the word " in- famous," contains two implications. One is that a capital crime is " infamous " in the legal sense ; and the other is that there are crimes which are not " capital," but which in law are deemed to be "infamous." "What, then, are the crimes, not " capital," but " infamous " in the legal sense, for which no person can be held to answer, " unless on a presentment or indictment of a grand jury ? " The answer generally given to this question is that, although the mere fact that a crime is punishable by imprisonment in the penitentiary does not of itself necessarily make the crime '•infamous" in the legal sense, still the phrase " infamous crime " is used to describe an offense which subjects the offender to infamous punishment, or incapacitates him to be a witness. ( The United States v. Max- well, 3 Dill. 275 ; The United States v. Sheppard, 1 Abb. C. C. 431 ; and The United States v. Waller, 1 Saw. 701.) Mx. Wharton, in his Criminal Pleading and Practice (8th ed.), sec. 89, says : " In the United States courts the conclusion is that, for misdemeanors which do not preclude the person convicted from being a witness, there can be a proceeding by information, and hence a person may be prosecuted by information for a viola- tion of the revenue laws. Severity of imprisonment does not by itself make a crime infamous." {The United States v. Mann, 1 Gall. C. C. 3 ; The United States v. Isham, 17 Wall. 496 ; The United States v. Bozzo, 18 Wall. 125 ; The United States v. Wal- ler, 1 Saw. 701 ; The United States v. Ebert, 1 Cent. L. J. 205 ; Stockwell v. The United States, 13 Wall. 531 ; The United States v. Maxwell, 3 Dill. 275 ; and The United States v. Block, 15 Bank. Reg. 325.) The inference from this statement is that a misdemeanor which does not, on conviction thereof, incapacitate the party to be a wit- ness, is not to be deemed an " infamous crime ; " and for this rea- son it may, in the absence of any statutory regulation to the con- trary, be prosecuted by an information, without the indictment of a grand jury. If, on the other hand, the misdemeanor does thus incapacitate the party, it would be " infamous," and could be pros- ecuted only by such indictment. Professor Greenleaf, in his Law of Evidence, vol. I, sec. 373 CONSTITUTIONAL PROVISIONS. 407 (13th ed.), refers to " treason, felony, and the crimen falsi,' 1 ' 1 as "infamous" crimes. In regard to treason and felony he observes: "As all treasons and almost all felonies were punishable with death, it was very natural that crimes deemed of so grave a char- acter as to render the offender unworthy to live, should be consid- ered as rendering him unworthy of belief in a court of justice." In regard to the crimen falsi he says: "But the extent and mean- ing of the term crimen, falsi, in our law, is nowhere laid down with precision." Further on in the same section, he says : " It has been adjudged that persons are rendered infamous, and therefore incom- petent to testify, by having been convicted of forgery, perjury, subornation of perjury, suppression of testimony by bribery, or con- spiracy to procure the absence of a witness, or other conspiracy to accuse one of a crime, and barratry. And from these decisions it may be deduced, that the crimen falsi of the common law not only involves the charge of falsehood, but also is one which may injuriously affect the administration of justice by the introduction of falsehood and fraud." (Wharton's Criminal Evidence, sec. 363, 8th ed.) Judge Benedict, in The United States v. Yates, 6 Fed. Eep. 861, decided that the crime of passing counterfeit trade dollars is not an " infamous " crime within the meaning of the Fifth Amend- ment to the Constitution, and that a prosecution for such an offense, upon information filed by the District Attorney, does not, there- fore, violate the Constitution of the United States. In his deliv- erance upon the subject, the Judge said : " In early times the character of the crime was determined by the punishment inflicted, but in modern times the act itself, its purpose, nature, and effect are looked at for the purpose of deter- mining whether it be infamous or not. {The People v. Whipple, 9 Cow. 708; and Starkie on Ev. part 4, p. 715.) And while, under our Constitution, the legality of an information may be affected by the nature of the punishment to this extent, that by virtue of the Fifth Amendment an information is not legal in any case where the punishment is death, * * * in all other cases, the legality of a prosecution by information, not prohibited by positive statute, must, as I conceive, depend upon the judicial question whether the nature, purpose, and effect of the act made criminal are such as to bring it within the term ' infamous crime,' as that term was understood at common law, and cannot be deter- mined by a reference to any declaration on the subject contained 408 THE FEDERAL JURY. in the statute, or by the nature of the punishment which the stat- ute prescribes." The conclusion from these authorities is that the nature and character of the crime, rather than its punishment in itself con- sidered, determine whether an offense is an " infamous crime " in the sense of the Fifth Amendment, with the exception of a " cap- ital " crime. The punishment inflicted, so far as it enters into the question at all, is regarded as indicating the nature and character of the crime, rather than as constituting it "infamous" in the legal sense. Excluding, then, all offenses in the army and navy of the United States, and in the militia when in actual service in time of war or public danger, and also crimes not " capital or otherwise infamous," we have the constitutional rule for the courts of the United States, that "no person shall be held to answer for" a crime, " unless on a presentment or indictment of a grand jury." The rule, with these exceptions, is mandatory and absolute, and must be observed in all criminal trials to which it applies. The grand jury, here referred to, is the grand jury of the com- mon law, and may consist of any number of qualified persons, duly impanelled, not less than twelve and not more than twenty- three, twelve of whom, at least, must concur in any accusation made by it. The special business of a Federal grand jury is to make inquiry and present offenses against the authority of the United States, committed within, or cognizable in, the district for which the jury is impanelled. This may be done in what is called a " presentment," without an indictment, or it may be done in a formal indictment of particular persons, which is a written accu- sation making the charge of crime against them, and clearly speci- fying the time, place, nature, and circumstances of the crime so charged, in order that the accused party may have adequate notice beforehand of the offense to which he is called to plead. ( The United States v. CruiJc&hank, 2 Otto, 542 ; Wharton's Criminal Pleading and Practice (8th ed.), sec. 86 ; and Story's Const, sees. 1784, 1785.) The action of a grand jury in finding a bill of indictment de- termines nothing in respect to the guilt or innocence of the party accused. It simply supplies the condition without which, in the case of " capital or otherwise infamous " crimes, no person can be CONSTITUTIONAL PROVISIONS. 409 held to answer in a Federal court. A Federal grand jury must charge such a crime before it can be tried by a petit jury. That part of the constitutional provision which declares that no person shall "be subject, for the same offense, to be twice put in jeopardy of life and limb," simply means that no one shall be tried a second time for the same offense, after he has been once acquitted or convicted of the offense by the verdict of a jury, and judgment has passed thereon for or against him. This does not preclude a second trial if no verdict was rendered by the jury, or if, a verdict being rendered, judgment was arrested, and a new trial was granted in his favor. (Story's Const, sec. 1787; The People v. Goodwin,.18 Johns. 187; The United States v. Perez, 9 Wheat. 529 ; The United States v. Haskell, 4 Wash. 402 ; and Ex parte La,nge, 18 "Wall. 163.) The design of the provision is to afford protection against re- peated trials for the same offense. A trial for an offense that has proceeded to conviction or acquittal, and to a judgment, thereon, ends the case, so far as another trial is concerned, unless the party himself waives the protection and asks for a new trial, which he has a right to do. ( The United States v. Williams, 1 Cliff. 5 ; and *The United States v. Conner, 3 McLean, 573.) The remaining part of the provision declares that no person " shall be compelled in any criminal case to be a witness against himself." This applies only to criminal cases, and was designed to protect the accused against any process of compulsion or extor- tion in order to procure a confession of guilt. It does not, how- ever, exclude the accused from testifying in his own behalf if the law so provides. Whether he shall do so or not, even with the provision, is a matter of his own choice. {Ex parte Meador, 1 Abb. C. C. 317 ; The United States v. Collins, 1 Woods, 499 ; Story's Const. 1788 ; and 3 Wilson's Law Lect. sees. 154-159.) 3. Eights of the Accused. — The Sixth Amendment provides as follows : " In all criminal prosecutions the accused shall enjoy the right to a speedy and public trial by an impartial jury of the State and district wherein the crime shall have been committed, which dis- trict shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation, to be con- fronted by the witnesses against him, to have compulsory process 410 THE FEDERAL JURY. for obtaining witnesses in his favor, and to have the assistance of counsel for his defense." This amendment was evidently intended to be supplement- ary to the clause in the body of the Constitution, relating to jury trials, and already considered. Like that clause, it applies only to criminal prosecutions under the authority of the United States, and hence has no relation to such prosecutions in State courts. {Barron v. The Mayor of Baltimore, T Pet. 243 ; Fox v. Ohio, 5 How. 410 ; Twitchell v. The Commonwealth, 1 "Wall. 321 ; and Jackson v. Wood, 2 Cow. 819.) The following propositions are contained in this amendment : (1.) That "the accused" — namely, the #arty indicted by a grand jury or prosecuted upon information in cases of crimes not "capital or otherwise infamous" — shall, in all prosecutions for offenses in respect to which the right of trial by jury is guaranteed, enjoy the right of " a speedy and public trial." This require- ment has no application to cases arising in the land or naval forces, or in the militia when in actual service in time of war or public danger. It applies only to criminal prosecutions, whether by indictment or by information, in which the trial is by jury. It was designed to secure promptitude and publicity in the trial, as against undue delay after the arrest of the party and secrecy in the judicial proceeding. It guarantees to the accused the right to " a speedy and public trial." (2.) That the trial shall be "by an impartial jury," which means that the law shall so regulate the process of selecting jurors, and that the courts shall so administer the law, as to secure the greatest possible certainty of their impartiality as respects the accused. (3.) That the jury shall be composed of persons resident in the State and district in which the crime was committed, if committed in any State and district, which district must have been previously established by law. If the crime was not committed in any State and district, then this provision has no application to the case. (The United States v. Dawson, 15 How. 467.) Mr. Justice Nelson, in The United States v. Maxon, 5 Blatch. 360, held that the district here referred to is the one in which the crime was committed, and that it must by law be established before the commission of the offense. CONSTITUTIONAL PROVISIONS. 411 (4.) That the accused shall be informed of the nature and cause of the accusation. This means that he shall have the oppor- tunity of understanding, before the trial, for what he is to be tried, whether the trial is upon an indictment or an information. (5.) That the accused shall be confronted with the witnesses against him. This means that he shall have the right of being present in court at the time of his trial, and of seeing, hearing, and confronting the witnesses against him. The court has no right to exclude him from the place of trial, and then proceed with the case in his absence. Judge Benedict, in The United States v. Davis, 6 Blatch. 464, said : " The right of a prisoner to be present at his trial does not include the right to prevent a trial by unseemly disturbance." The prisoner's conduct in this case was so violent that the court ordered his removal for the time being to an adjacent room, with liberty of access to his counsel, and then proceeded with the case in his absence, and afterward, on a motion for arrest of judgment and a new trial on the ground of such absence, held that no error was committed, and hence denied the motion. It is conceivable that a prisoner's conduct in the court room may be so disorderly as to make it physically impossible to proceed with the trial in his presence ; and, in such a case, it is not unreasonable that he should forfeit the right of being present until he will consent to behave himself. Any other rule would enable him to prevent his trial altogether. (6.) That the accused shall have the right to compulsory pro- cess for obtaining witnesses in his favor. This makes it the duty of the court to issue subpoenas for the summoning of such wit- nesses as the accused may desire and name for the purposes of his defense, and to exercise, if necessary, its power to compel their attendance. The design of the provision is to give the accused party an ample opportunity to respond by proof to the charge made against him. This important right was not always secured by the common law in the earlier days of English history. (7.) That the accused shall have the right to the assistance of counsel for his defense. This important right was not always secured by the laws of England. It was not until after the Revolution of 1688 that a full defense was permitted in trials for treason, and not until 1836 that the same privilege was conceded to persons charged with other felonies. (Statute 6 and 7 William 412 THE FEDERAL JURY. IY, ch. 114.) The Sixth Amendment guarantees this right to every accused person, no matter what may be the grade of the crime with which he is charged. The right includes the right of the accused to employ counsel, and the right of such counsel to conduct his defense in the examination of witnesses, and in sub- mitting arguments to the court and jury in his behalf. It carries with it all the legally recognized incidents of the relation subsist- ing between a client and his counsel. Moreover, the usual practice of the Federal courts is to assign counsel for the defense of the accused when he himself is unable to employ counsel ; and the members of the legal profession, un- less excused from the service, recognize the obligation imposed by such an appointment. The right to counsel, and to all the privi- leges which it involves, is a thoroughly established principle of American jurisprudence. (Cooley's Const. Limitations, 4th ed. 408-418.) Such, then, are the rights which the Sixth Amendment to the Constitution guarantees to all accused persons in reference to criminal proceedings against them in the Federal courts. The guaranty, by its own terms, applies only to " criminal prosecu- tions." 4. Suits at Common Law." — The Seventh Amendment to the Constitution 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 ; and no fact tried by a jury shall be otherwise re-examined in any court of the United States, than according to the rules of the common law." This amendment has no relation or application to suits in State courts, but is confined exclusively to courts of the United States. {Livingston's Lessee v. Moore, 7 Pet. 4 69 ; The Justices v. Murray, 9 "Wall. 274; Edwards v. Elliott, 21 Wall. 532; and Walker v. Sauvinet, 2 Otto, 90.) " Suits at common law," as here referred to, include all suits of a civil nature, not belonging to equity or admiralty jurisdiction, in which legal rights are considered and determined. The phrase "common law" is used in contradistinction from equity and admiralty proceedings and remedies which do not embrace trial by jury. The distinction between common law, on the one hand, CONSTITUTIONAL PROVISIONS. 413 and equity and admiralty on the other, and the difference in their respective methods of administering remedial justice, were well known to the Congress that framed and proposed this amend- ment. The intention was to confine its application to common law suits of a civil nature, in which a jury by the rules of the common law constitutes an element of the trial. {Parsons v. Bedford, 3 Pet. 433 ; Waring v. Clarke, 5 How. 441 ; Shields v. Thomas, 18 How. 253 ; The Insurance Company v. Comstock, 16 "Wall. 258 ; and Story's Const, sec. 1769.) The first clause of this amendment declares that, if the value in controversy in a suit at common law exceeds twenty dollars, " the right of trial by jury shall be preserved." The language is not that the trial shall be by jury in every such suit, but that the right of such trial shall be preserved, which means that it shall not be denied to either party by law or by the court. The provision is for the benefit of the parties in litigation, and secures to either or both the right to claim that the issue of fact shall be determined by a jury. This, however, does not preclude their right by mutual consent to waive a jury trial. {The Bank of Columbia v. Okley, 4 Wheat. 235 ; Parsons v. Armor, 3 Pet. 413.) The second clause of the amendment declares that no fact which has been tried and determined by a jury in a suit at com- mon law, "shall be otherwise re-examined in any court of the United States, than according to the rules of the common law." This, by the Supreme Court of the United States, has been held to be an independent clause, applicable not only to suits arising in a Federal court and transferred to a higher court, but also to suits arising in a State court and transferred to a Federal court for a review of the judgment. {The Justices v. Murray, 9 "Wall. 274.) There are only two modes known to the common law for the reexamination of facts that have been ascertained and determined by a jury. One is the granting of a new trial by the court be- fore which the issue was tried, or to which the record was return- able. The other is by awarding a venire facias de novo by an appellate court for some error of law which intervened in the proceedings. {Parsons v. Bedford, 3 Pet. 433 ; and The Insur- ance Company v. Comstock, 16 Wall. 258, 269.) The design of this provision is to deny to the Federal courts, in the exercise of their jurisdiction, the power directly to re- 414 THE FEDERAL JURY. examine the facts ascertained by a jury in a suit at common la-w, or reverse or change the verdict thus rendered. These courts have the power to grant new trials for reasons agreeable to the princi- ples and usages of law, and in this way secure a re-examination of the facts that have been ascertained and determined by a jury ; but they have no power directly to modify or change the verdict of a jury, and thus virtually perform the function of a jury. " The rules of the common law " — that is to say, the common law of England, when this amendment was adopted — exclude this power; and these rales are by the amendment made the law for the Federal courts in reference to the re-examination of facts that have been ascertained by a jury. These four provisions of the Constitution — one of them found in the body of the instrument, and the other three in amendments thereto — establish the Federal jury in the judicial system of the United States, and, while furnishing a series of regulations in re- gard to it, lay the foundation for the legislation of Congress on this subject. It is well known that one of the objections to the Constitution, as originally proposed and adopted, was that it did not sufficiently provide for the cherished right of trial by jury. A leading object of Congress, in proposing at an early period to amend it, was to obviate this objection. Twelve amendments were proposed, and ten of them were adopted, and, among these, the three that relate to the Federal jury. (1 U. S. Stat, at Large, 97.) The jury system was regarded by the people as the great bulwark of liberty and justice; and they were anxious that it should be fully recognized and established in the government pro- vided for by the Constitution. SECTION II. STATUTOET REGULATIONS. The provisions of the Constitution, relating to juries as an ap- pendage to the courts of the United States, not being self- executing, need, in order to be carried into effect, to be supple- mented by legislative action. Congress has accordingly, at different times, legislated upon this subject ; and what is proposed STATUTORY REGULATIONS. 415 in this section is to present a general outline of this legisla- tion. 1. The Qualifications of Jurors. — The Kevised Statutes of the United States contain the following provisions on this subject : (1.) Jurors to 6erve in the courts of the Uuited States, in each State respectively, shall have the same qualifications, subject to provisions hereinafter stated, and be entitled to the same exemp- tions as jurors of the highest court of law in such State may have and be entitled to at the time when such jurors for service in the courts of the United States are summoned. (Sec. 800.) The design of this provision is to assimilate the Federal to the State jury in the State in which the Federal court is held. The qualifi- cations established by State law are adopted by Congress. The term " qualifications " relates to such circumstances as age, citizenship, the possession of property, or anything else belonging to the personal standing of the juror, and not to special reasons that may exclude him from sitting as a juror in a particular case. {The United States v. Collins, 1 "Woods, 499 ; The United States v. Williams, 1 Dill. 485 ; and The United States v. Wilson, 6 McLean, 604.) State laws regulating challenges to jurors, whether to favor or to the array, relate to their qualifications, and are to be observed by Federal courts. {The United States v. Heed, 2 Blatch. 435 ; The United States v. Douglas, 2 Blatch. 207 ; The United States v. Tollman, 10 Blatch. 21 ; and The United States v. Tuska, 14 Blatch. 5.) (2.) No person shall be a grand or petit juror in any court of the United States, upon any inquiry, hearing, or trial of any suit, proceeding, or prosecution based upon or arising under the pro- visions of Title "Civil Bights" and of Title ." Ceimes," for en- forcing the provisions of the Fourteenth Amendment to the Constitution, who is, in the judgment of the court, in complicity with any combination or conspiracy in said Titles set forth ; and every grand and petit juror shall, before entering upon any such inquiry, hearing, or trial, take and subscribe an oath, in open court, that he has never, directly or indirectly, counseled, advised, or vol- untarily aided any such combination or conspiracy. (Sec. 822.) This section relates to the qualifications of jurors, and, in the cases specified and for the reasons stated, excludes persons, who may be otherwise qualified, from serving as jurors in the courts of the United States. 416 THE FEDERAL JURY. (3.) Congress, by the fourth section of the Act of March 1st, 1875 (18 U. S. Stat, at Large, 335), passed since the enactment of the Revised Statutes, provided as follows : " That no citizen possessing all other qualifications which are or may be prescribed by law, shall be disqualified for service as a grand or petit juror in any court of the United States, or of any State, on account of race, color, or previous condition of servitude : and any officer or other person charged with any duty in the selection or summoning of jurors who shall exclude or fail to summon ■ any citizen for trie cause aforesaid, shall, on conviction thereof, be deemed guilty of a misdemeanor, and be fined not more than five thousand dollars." The first clause of this act was, in the second section of the Act of June 30th, 1879 (21 U. S. Stat, at Large, 43), re-enacted, with the exception of that part which relates to jurors in State courts. The Supreme Court of the United States, in Ex parte Virginia, 10 Otto, 339, 347, considered and affirmed the constitutionality of the fourth section of the Act of 1875. The ground of the decision was that the act is appropriate legislation for the enforcement of the Fourteenth Amendment, which, as the court held, protects all citizens of the United States from being excluded by law from serving on juries, on account of race, color, or previous condition of servitude. Such exclusion was held to be incompatible with " the equal protection of the laws " guaranteed by the amendment. 2. Selection of Jurors. — The following are the provisions of the Revised Statutes in relation to this point : (1.) Jurors shall be designated by ballot, lot, or otherwise, according to the mode of forming such juries then practiced in the highest court in the State where the Federal court is held, so far as such mode may be practicable by the courts of the United States or the officers thereof. And for this purpose the said courts may, by rule or order, conform the designation and impan- elling of juries, in substance, to the laws and usages relating to jurors in State courts, from time to time in force in such State. (Sec. 800.) The object of this provision is to conform the selec- tion of Federal jurors, as nearly as may be, to the practice pursued in the respective States in which the Federal courts are held ; and these courts are authorized to make rules for the attainment of this end. (The United States v. Collins, 1 Woods, 499 ; and The United States v. Wilson, 6 McLean, 604.) STATUTORY REGULATIONS. 417 (2.) Jurors shall be returned from such parts of the district, from time to time, as the court shall direct, so as to be most favor- able to an impartial trial, and so as not to incur an unnecessary expense, or unduly burden the citizens of any part of the district with such services. (Sec. 802.) The court is clothed with discre- tion as to the part of the district from which jurors shall be summoned. {The United States v. Stowell, 2 Curt. 153.) (3.) Writs of venire facias, when directed by the court, shall issue from the clerk's office, and shall be served and returned by the marshal in person or by his deputy, or in case the marshal or his deputy is not an indifferent person, or is interested in the event of the cause, by such fit person as may be specially appointed for that purpose by the court, who shall administer to him an oath that he will truly and impartially serve and return the writ. (Sec. 803.) (4.) When, from challenges or otherwise, there is not a petit jury to determine any civil or criminal cause, the marshal or his deputy shall, by order of the court in which such defect of jurors happens, return jurymen from the bystanders sufficient to com- plete the panel ; and when the marshal or his deputy is disqualified as aforesaid, jurors may be so returned by such disinterested person as the court may appoint, and such person shall be sworn, as provided in the preceding section. (Sec. 804.) Judge Bene- dict, in The United States v. Loughery, 13 Blatch. 267, held that if the persons returned by the marshal were present in court when they were returned, and their names were placed on the panel and their ballots placed in the wheel, they are to be deemed bystanders within the meaning of this statute, whether they were present or not when they were summoned by the marshal. (5.) When special juries are ordered in any Circuit Court, they shall be returned by the marshal in the same manner and form as is required in such cases by the laws of the several States. (Sec. 805.) (6.) No person shall be summoned as a juror in any Circuit or District Court more than once in two years, and it shall be suffi- cient cause of challenge to any juror called to be sworn in any cause that he has been summoned and attended said court as a juror at any term of said court held within two years prior to the time of such challenge. (Sec. 812.) In The United States v. Beeves, 3 Woods, 199, it was held that the fact that a grand juror 27 418 THE FEDERAL JURY. has served within two years as a juror is not a sufficient reason for quashing an indictment in which he participated. Congress, by the Act of June 30th, 1879 (21 U. S. Stat, at Large, 43), passed since the enactment of the Revised Statutes, provided as follows in respect to the selection of jurors : " That all such jurors, grand and petit, including those sum- moned during the session of the court, shall be publicly drawn from a box containing, at the time of each drawing, the names of not less than three hundred persons, possessing the qualifications prescribed in section 800 of the Revised Statutes, which names shall have been placed therein by the clerk of such court and a commissioner to be appointed by the judge thereof, which com- missioner shall be a citizen of good standing, residing in the dis- trict in which such court is held, and a well-known member of the principal political party in the district in which the court is held opposing that to which the clerk may belong, the clerk and said commissioner each to place one name in said box alternately, without reference to party affiliations, until the whole number re- quired shall be placed therein. But nothing herein contained shall be construed to prevent any judge from ordering the names of jurors to be drawn from the boxes used by the State authorities in selecting jurors in the highest courts of the State ; and no person shall serve as a petit juror more than one term in any one year, and all juries to serve in courts after the passage of this act shall be drawn in conformity herewith." This act supersedes and repeals so much of section 800 of the Revised Statutes as relates to the manner of selecting jurors, with the exception that the boxes used by the State authorities may, by the order of the Federal judge, be used for the purpose. The act is mandatory, and must be complied with in good faith. [The United States v. Ambrose, 3 Fed. Rep. 283.) The ostensible pur- pose of the act is to secure impartial jurors; but it is a grave question whether it is not adapted to promote the very end which it seeks to avoid. It introduces the element of partisanship in the persons who select the names to be placed in the box from which jurors are to be drawn. They must be of opposite political par- ties ; and standing opposed to each other in this respect, they are likely to carry out the opposition in their selection of jurors. 3. Compensation of Jurors. — The Act of June 30th, 1879, above referred to, provides that the per diem pay of each juror, grand or petit, in any court of the United States shall be two dollars. STATUTORY REGULATIONS. 419 4. Grand Jurors. — The following are the provisions of the Revised Statutes in respect to grand juries : (1.) Every grand jury impanelled before any District or Cir- cuit Court, shall consist of not less than sixteen nor more than twenty-three persons. If of the persons summoned less than six- teen attend, they shall be placed on the grand jury, and the court shall order the marshal to summon, either immediately or for a day fixed, from the body of the district, and not from the by- standers, a sufficient number of persons to complete the grand jury. And whenever a challenge to a grand juror is allowed, and there are not in attendance other jurors sufficient to complete the grand jury, the court shall make a like order to the marshal to sum- mon a sufficient number of persons for that purpose. (Sec. 808.) (2.) From the persons summoned and accepted as grand jurors the court shall appoint the foreman, who shall have power to ad- minister oaths and affirmations to witnesses appearing before the grand jury. (Sec. 809.) (3.) No grand jury shall be summoned to attend any Circuit or District Court unless one of the judges of such Circuit Court, or the judge of such district, in his own discretion, or upon a noti- fication by the district attorney that such jury will be needed, orders a venvre to issue therefor. And either of the said courts may in term order a grand jury to be summoned at such time, and to serve such time as it may direct, whenever, in its judgment, it may be proper to do so. But nothing herein shall operate to ex- tend beyond the time permitted by law the imprisonment before indictment found of a person accused of a crime or offense, or the time during which a person so accused may be held under recog- nizance before indictment found, (Se.c. 810.) (4.) The Circuit and District Courts, the District Courts of the Territories, and the Supreme Court of the District of Co- lumbia, may discharge their grand juries whenever they deem a continuance of the sessions of such juries unnecessary. (Sec. 811.) (5.) The grand jury impanelled and sworn in any District Court may take cognizance of all crimes and offenses within the jurisdiction of the Circuit Court for said district as well as of said District Court. (Sec. 813.) 420 THE FEDERAL JUKY. 5. Challenges.— The following are the provisions of the Ke- vised Statutes in relation to the challenge of the jurors : (1.) When the offense charged is treason or a capital offense r the defendant shall be entitled to twenty and the United States- to five peremptory challenges. On the trial of any other felony the defendant shall be entitled to ten and the United States to three peremptory challenges; and in all other cases, civil and criminal, each party shall be entitled to three peremptory chal- lenges ; and in all cases where there are several defendants or several plaintiffs, the parties on each side shall be deemed a single party for the purposes of all challenges under this section. All challenges, whether to the array or panel, or to individual jurors,, for cause or favor, shall be tried by the court without the aid of triers. (Sec. 819.) This section regulates the number of peremptory challenges in the cases specified ; and, in Georgia v. 0' Grady, 3 "Woods, 496, it was held to be the rule of such number, rather than a State law, in cases where a criminal cause is removed from a State to a Fed- eral court. (2.) If, in the trial of a capital offense, the party indicted peremptorily challenges jurors above the number allowed him by law, such excess of challenges shall be disallowed by the court, and the cause shall proceed for trial in the same manner as if they had not been made. (Sec. 1031.) (3.) At the trial in summary cases, if by jury, the United States and the accused shall each be entitled to three peremptory challenges. Challenges for cause, in such cases, shall be tried by the court without the aid of triers. (Sec. 4303.) 6. Special Provisions.— Sections 807, 814, 815, 816, 817 and 818 of the Eevised Statutes, contain a series of special provisions, in regard to juries that relate to particular States, and hence are not general in their operation. So, also, Congress, by the Act of June 8th, 1878 (20 U. S. Stat, at Large, 102), by the Act of Jan- uary 29th, 1880 (21 Id. 63), by the Act of February 4th, 1880 (21 Id. 64), by the Act of April 20th, 1880 (21 Id. 76), and by the Act of June 11th, 1880 (21 Id. 176), has added other special pro- visions in relation to particular States. These provisions, being purely local in their operation, need not be here stated. STATUTORY REGULATIONS. 421 7. The Function of Juries. — The function of the Federal grand jury is to institute inquiry, by the examination of witnesses, in respect to crimes and offenses against the laws of the United States, to find indictments upon ex p irte and probable proof of guilt, and make presentments to the court by whose authority the jurors have been summoned and constituted a grand jury. The rule of the Revised Statutes is that no indictment shall be found, nor shall any presentment be made, without the concurrence of at least twelve grand jurors. (Sec. 1021.) The same Statutes also provide that all crimes and offenses committed against the provisions of chapter seven, Title " Crimes," which are not infamous, may be prosecuted, either by indictment or by information filed by a district attorney. (Sec. 1022.) The general principle is that either method of prosecution for crimes not " infamous " is legal ; and this principle Congress applies to the crimes specified in chapter seven, Title " Crimes," of the Revised Statutes, leaving the method to the discretion of the •court. {The United States v. Maxwell, 3 Dill. 275.) The petit or trial jury, alike in civil and criminal cases, per- forms the judicial function of deciding issues of fact submitted to it. under the regulations of law. Congress has provided the fol- lowing regulations on this subject : (1.) District Courts. — Section 566 of the Revised Statutes provides as follows : " The trial of issues of fact in the District Courts, in all causes except cases in equity and cases in admiralty and maritime jurisdiction, and except as otherwise provided in proceeding in bankruptcy, shall be by jury. In cases of admiralty and maritime jurisdiction relating to any matter of contract or tort arising upon or concerning any vessel of twenty tons burden or upward, enrolled and licensed for the coasting trade, and at the time employed in the business of commerce and navigation be- tween places in different States and Territories upon the lakes and navigable waters connecting the lakes, the trial of issues of fact shall be by jury when either party requires it." The issues of fact, referred to in the first clause of this section, embrace all issues of fact whether civil or criminal, with the ex- ception stated. The second clause is a reproduction of the Act of February 26th, 1845 (5 TT. S. Stat, at Large, 726), providing for & trial of issues of fact by jury, upon the requirement of either 422 THE FEDERAL JURY. party, in the specified class of admiralty cases. Such trial in ad- miralty cases is confined exclusively to the class specified. {Hine v. Trevor, 4 Wall. 555.) (2.) Circuit Courts. — Sections 648 and 649 of the Revised Statutes provide that the trial of issues of fact in the Circuit Courts shall be by jury, except in cases of equity and of admiralty and maritime jurisdiction, and except as otherwise provided in proceedings in bankruptcy, and with the further exception that issues of fact in civil cases may be tried and determined by the court, without the intervention of a jury, whenever the parties or their attorneys of record file with the clerk a stipulation in writing- waiving a jury, in which event the finding of the court upon the facts, which may be either general or special, has the same effect as the verdict of a jury. Congress, by the third section of the Act of March 3d, 1875 (18 U. S. Stat, at Large, 470), provided that "the trial of issues of fact in the Circuit Courts shall, in all suits except those of equity and of admiralty and maritime jurisdiction, be by jury." This provision was, in Phillips v. Moore, 10 Otto, 208, held not to repeal the previous law contained in the Revised Statutes, and authorizing a trial of issues of fact by the court, without the inter- vention of a jury, upon the written stipulation of the parties waiving a jury trial. The provision was only intended, as the court held, to conserve to parties in the cases removed to the Circuit Courts the same right of jury trial which parties possess in cases brought originally in these courts, not to prevent the waiver of a jury by consent. So also Congress, by the Act of February 16th, 1875 (18 [L S. Stat, at Large, 315), provided that the Circuit Courts, in decid- ing causes of admiralty and maritime jurisdiction on the instance- side of the court, shall find the facts and the conclusions of law upon which judgments or decrees are rendered, and shall state the facts and conclusions of law separately, and that, in finding the facts, as before provided, the court may, upon the consent of the parties who shall have appeared and put any matter of fact in issue, and subject to such general rules in the premises as shall be made and provided from time to time, impanel a jury of not less than five and not more than twelve persons, to whom shall be submitted the issues of fact in such cause, under the direction of » STATUTORY REGULATIONS. 423 the court, as in cases at common law, with the provision that the finding of such pry, unless set aside for lawful cause, shall be entered as of record, and stand as the finding of the court, upon which judgment shall be entered according to law. The same act provided that a Circuit Court, when sitting in equity for the trial of patent causes, may impanel a jury of not less than five and not more than twelve persons, subject to such general rules in the premises as may, from time to time, be made by the Supreme Court, and submit to them such questions of fact arising in such cause as such Circuit Court shall deem expedient, and that the verdict of such jury shall be treated and proceeded upon in the same manner and with the same effect as in the case of issues sent from chancery to a court of law and returned with such findings. (3.) The Supreme Court. — Section 689 of the Kevised Statutes provides that the trial of issues of fact in the Supreme Court, in all actions at law against citizens of the United States, shall be by These statutory provisions, relating to juries and trials by jury, contain the existing law as to the qualifications, selection, and organization of juries, and to the cases in which jury trials must be had in the courts of the United States. The jury trial applies to all criminal cases, with the exception of cases of impeachment, and with the further exception of certain specified offenses against navigation laws, as set forth in chapter nine of Title XL VIII of the Revised Statutes of the United States, in which the trial is to be summary by a District Court, without indictment, but upon complaint by the proper district attorney, and in which the issues of fact are to be determined by the court, unless at the time for pleading and answering the accused shall demand a jury, in which event the trial is to be upon the complaint and plea of not guilty. (Eev. Stat. 4300-4305.) So also the jury trial applies to all suits at law of a civil nature, except where in the Circuit Courts the parties waive the right, and is made applicable by Congress in admiralty and maritime cases of the character and upon the conditions specified, and also in equity patent cases. The Constitution itself not only ordains the existence of the Federal jury, but jealously guards the right of trial by jury. It 424 THE FEDERAL JURY. expressly declares that " the trial of all crimes, except in cases of impeachment, shall be by jury," and that "in suits at common law, where the value in controversy exceeds twenty dollars, the right of trial by jury shall be preserved." The statutory provisions of Congress, in regard to the Federal jury, are designed to give effect to the provisions on this subject found in the fundamental law of the land. CHAPTER VIII. THE FEDERAL LAW OF EVIDENCE. Every case litigated before a court involves questions of fact ; and if the parties are not agreed as to the facts in a given case, then it is by evidence that the truth must be juridically ascertained and established, with sufficient certainty to be the basis for a judg- ment or decree. Professor Greenleaf defines the term evidence as follows : " The word evidence, in legal acceptation, includes all the means by which any alleged matter of fact, the truth of which is submitted to investigation, is established or disproved." (Green, on Ev. 13th ed. vol. I, p. 2.) The case before a court, as to its facts, is made what it is by this process, where the parties themselves do not agree as to these facts. The law of evidence in any country consists in those general principles relating to the introduction and use of evidence which, in application to specific issues of fact, are deemed best adapted to bring before courts the truth, with the least admixture of error. In the United States, as also in England, these principles are very largely a matter of judicial usage and adoption. Courts, by a series of precedents, make the law of evidence, except where it rests upon express statutes. The great mass of . it is of judicial origin. Treatises upon this law are mainly mere compilations of the rules and principles which courts have established for their own guidance in the hearing of cases, especially when juries are used to determine questions of fact. These principles represent their best aggregate wisdom on the subject ; and although there is some diversity among courts as to what this wisdom is, especially when it is to be applied to particular cases, still there is sufficient uniformity and agreement to establish a general law of evidence which courts usually apply. The Federal law of evidence consists in the general principles which the Federal courts have adopted and established, together with such statutory regulations as Congress has seen fit to enact 426 THE FEDERAL LAW OF EVIDENCE. for their guidance. The first part of this law is to be found in the reported decisions and deliverances of the Federal courts, which is substantially analogous to the law as established and ap- plied by the State courts of this country ; and the second part is found in the statutes of Congress. The special object of this- chapter will be to state the Federal law of evidence as contained in Title XIII, chapter 17, of the Eevised Statutes of the United States. The following are the provisions of Congress on this subject : 1. Prohibitions as to the Exclusion of Witnesses. (Sec. 858.) — In the courts of the United States no witness shall be excluded in any action on account of color, or in any civil action because he is a party to or interested in the issue tried : Provided, That in actions by or against executors, administrators, or guardians, in which judgment may be rendered for or against them, neither party shall be allowed to testify against the other, as to any trans- action with or statement by the testator, intestate, or ward, unless called to testify thereto by the opposite party, or required to testify thereto by the court. In all other respects 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 admiralty. ( TJ. &'. v. Murphy, 16 Pet. 203 ; Smyth v. Strader, 4 How. 420 ; TJ. 8. v. Eeed, 12 How. 331 ; Wright v. Bales, 2 Bl. 535 ; Green v. TJ. S. 9 Wall. 655 ; Lucas v. Brooks, 18 Wall. 436 ; Cornett v. Williams, 20 Wall. 226 ; Packet Company v. dough, 20 Wall. 528 ; Texas v. Chiles, 21 Wall. 488 ; Railroad Company v. Pollard, 22 Wall. 321 ; Johnson v. Owens, 2 Dill. 475 ; Eslava v. Magange's Administrator, 1 Woods, 623.) The provisions of this section were supplemented by the Act of March 16th, 1878 (20 U. S. Stat, at Large, 30), providing as follows : " That in the trial of all indictments, informations, com- plaints, and other proceedings against persons charged with the commission of crimes, offenses, and misdemeanors, in the United States courts, Territorial courts, and courts-martial, and courts of inquiry, in any State or Territory, including the District of Columbia, the person so charged shall, at his own request but not otherwise, be a competent witness. And his failure to make such request shall not create any presumption against him." DEPOSITIONS DE BENE ESSE. 427 2. Testimony before Congress. (Sec. 859.) — No testimony given by a witness before either House, or before any committee of either House of Congress, shall be used as evidence in any criminal proceeding against him in any court, except in a prosecu- tion for perjury committed in giving such testimony. But an official paper or record produced by him is not within the said privilege. 3. Pleadings, Disclosures, &c. (Sec. 860.) — No pleading of a party, nor any discovery or evidence obtained from a party or witness by means of a judicial proceeding in this or any foreign coimtry, shall be given in evidence, or in any manner used against him or his property or estate, in any court of the United States, in any criminal proceeding, or for the enforcement of any penalty or forfeiture : Provided, That this section shall not exempt any party or witness from prosecution and punishment for perjury committed in discovering or testifying as aforesaid. ( JJ. 8. v. Hughes, 12 Blatch. 553 ; U. 8. v. Three Tons Goal, 6 Biss. 379 ; U. 8. v. Distillery, 6 Biss. 483 ; Johnson v. Donaldson, 3 Fed. Eep. 22.) 4. Proof in Common Law Actions. (Sec. 861.)— The mode of proof in the trial of actions at common law shall be by oral testimony and examination of witnesses in open court, except as hereinafter provided. (Beardsley v. Littell, 14 Blatch. 102.) 5. Proof in Equity and Admiralty Cases. (Sec. 862.) — The mode of proof in causes of equity and of admiralty and mari- time jurisdiction shall be according to rules now or hereafter prescribed by the Supreme Court, except as herein specially pro- vided. {Blease v. Oarlington, 2 Otto, 1.) 6. Depositions de bene esse. (Sec. 863.) — The testimony of any witness may be taken in any civil cause, depending in a Dis- trict or Circuit Court, by deposition de hene esse, when the witness lives at a greater distance from the place of trial than one hundred miles, or is bound on a voyage to sea, or is about to go out of the United States, or out of the district in which the case is to be tried, and to a greater distance than one hundred miles from the place of trial, before the time of trial, or when he is ancient and "428 THE FEDERAL LAW OF EVIDENCE. infirm. The deposition may be taken before any judge of any court of the United States, or any commissioner of a Circuit Court, or any clerk of a District or Circuit Court, or any chancellor, justice, or judge of a Supreme or Superior Court, mayor or chief magistrate of a city, judge of a County Court or Court of Common Pleas of any of the United States, or any notary public, not being of counsel or attorney to either of the parties, nor interested in the event of the cause. Reasonable notice must first be given in writing, by the party or his attorney proposing to take such dep- osition, to the opposite party or his attorney of record, as either may be nearest, which notice shall state the name of the witness •and the time and place of the taking of his deposition ; and in all cases in rem, the person having the agency or possession of the property at the time of seizure shall be deemed the adverse party, until a claim shall have been put in ; and whenever, by reason of the absence from the district and want of an attorney of record or -other reason, the giving of the notice herein required shall be impracticable, it shall be lawful to take such depositions as there shall be urgent necessity for taking, upon such notice as any judge authorized to hold courts in such circuit or district shall think reasonable and direct. Any person may be compelled to appear and depose as provided by this section, in the same manner as witnesses may be compelled to appear and testify in court. This statute specifies the circumstances in which, the magistrates before whom, and the conditions upon which, depositions de bene esse may be taken ; and, in order that such depositions may be used as testimony, all the specifications must be complied with. (The Samuel, 1 Wheat. 16 ; The Argo, 2 Wheat. 287 ; The Lon- don Packet, 2 Wheat. 371 ; Mechanics' Bank v. Seaton, 1 Pet. 299 ; Bell v. Morrison, 1 Pet. 355 ; Patapsco Ins. Go. v. South- gate, 5 Pet. 616; Pick v. Runnels, 5 How. 7; Harris v. Wall, 7 How. 693 ; Fowler v. Merrill, 11 How. 375 ; Walsh v. Rogers, 13 How. 283; Hoyt v. Hammekin, 14 How. 350; Nelson v. Woodruff, 1 Bl. 156; The Ottawa, 3 Wall. 271; Tappan v. Beardsley, 10 Wall. 427 ; Shutte v. Thompson, 15 Wall. 151.) 7. Mode of taking Depositions de bene esse. (Sec. 864.)— Every person deposing as provided in the preceding section, shall be cautioned and sworn to testify the whole truth, and carefully examined. His testimony shall be reduced to writing by the DEPOSITIONS IN PEKPETUAM, &c. 429 magistrate taking the deposition, or by himself in the magistrate's presence, and by no other person, and shall, after it has been re- duced to writing, be subscribed by the deponent. {Bell v. Morri- son, 1 Pet. 351 ; Patapsco Ins. Co. v. Southgate, 5 Pet. 604 ;. Cook v. Burnley, 11 Wall. 659; Shutte v. Thompson, 15 Wall. 151.) 8. Transmission to the Court of Depositions de bene esse. (Sec. 865.) — Every deposition taken under the two preceding sections shall be retained by the magistrate taking it, until he delivers it with his own hand into the court for which it is taken ; or it shall, together with a certificate of the reasons as aforesaid of taking it and of the notice, if any, given to the adverse party, be by him sealed up and directed to such court, and remain under his seal until opened in court. But unless it appears to the satis- faction of the court that the witness is then dead, or gone out of the United States, or to a greater distance than one hundred miles from the place where the court is sitting, or that by reason of age, sickness, bodily infirmity, or imprisonment, he is unable to travel and appear at court, such deposition shall not be used in the cause. (Beale v. Thompson, 8 Cr. 70 ; Evans v. Hettich, 7 Wheat. 453 ; Stein v. Bowman, 13 Pet. 209 ; Harris v. Wall, 7 How. 693.) 9. Depositions under a dedimus potestatem and in per- petuam, &c. (Sec. 866.) — In any case where it is necessary, in order to prevent a failure or delay of justice, any of the courts of the United States may grant a dedimus potestatem to take deposi- tions according to common usage ; and any Circuit Court, upon application to it as a court of equity, may, according to the usages of chancery, direct depositions to be taken in perpetuam rei memoriam, if they relate to any matters that may be cognizable in any court of the United States. And the provisions of sections 863, 864, and 865 shall not apply to any deposition to be taken under the authority of this section. (Guppy v. Brown, 4 Dall. 410 ; Buddecum v. Kirk, 3 Cr. 293 ; Sergeant v. Biddle, 4 Wheat. 508 ; Evans v. Hettich, 7 Wheat. 453.) 10. Depositions in perpetuam, &c, admissible at the dis- cretion of the Court. (Sec. 867.) — Any court of the United States may, in its discretion, admit in evidence in any cause before it any deposition taken in perpetuam rei memoriam, which would 430 THE FEDERAL LAW OF EVIDENCE. be so admissible in a court of the State wherein such cause is pending, according to the laws thereof. {Gould v. Gould, 3 Story, 516.) 11. Deposition under a dedimus potestatem, how taken. (Sec. 868.) — When a commission is issued by any court of the United States for taking the testimony of a witness named therein, at any place within any district or Territory, the clerk of any court of the United States for such district or Territory shall, on the application of either party to the suit, or of his agent, issue a subpoena for such witness, commanding him to appear and testify before the commissioner named in the commission, at a time and place stated in the subpoena ; and if any witness, after being duly served with such subpoena, refuses or neglects to appear, or, after appearing, refuses to testify, not being privileged from giving testimony, and such refusal or neglect is proven to the satisfaction of any judge of the court whose clerk issues such subpoena, such judge may proceed to enforce obedience to the process, or punish the disobedience, as any court of the United States may proceed in case of disobedience to process of subpoena to testify issued by such court. 12. Subpoena ducis tecum under a dedimus potestatem. (Sec. 869.) — When either party in such suit applies to any judge of a United States court in such district or Territory for a sub- poena commanding the witness, therein to be named, to appear and testify before said commissioner, at the time and place to be atated in the subpoena, and to bring with him and produce to such commissioner any paper or writing or written instrument or book or other document, supposed to be in the possession or power of such witness, and to be described in the subpoena, such judge, on being satisfied by the affidavit of the person applying or other- wise, that there is reason to believe that such paper, writing, written instrument, book, or other document is in the possession or power of the witness, and that the same, if produced, would be competent and material evidence for the party applying therefor, may order the clerk of said court to issue such subpoena accord- ingly. And if the witness, after being served with such subpoena, fails to produce to the commissioner, at the time and place stated in the subpoena, any such paper, writing, written instrument, DEPOSITIONS IN DISTRICT OF COLUMBIA. 431 book, or other document, being in his possession or power, and described in the subpoena, and such failure is proved to the satis- faction of said judge, he may proceed to enforce obedience to said process of subpoena, or punish the disobedience in like manner as any court of the United States may proceed in case of disobedience to like process issued by such court. When any such paper, writing, written instrument, book, or other document is produced to such commissioner, he shall, at the cost of the party requiring the same, cause to be made a correct copy thereof, or of so much thereof as shall be required by either of the parties. 13. Witness under a dedimus potestatem, when required to attend. (Sec. 870.) — No witness shall be required, under the provisions of either of the two preceding sections, to attend at any place out of the county where he resides, nor more than forty miles from the place of his residence, to give his deposition ; nor shall any witness be deemed guilty of contempt for disobeying any subpoena directed to him by virtue of either of the said sec- tions, unless his fee for going to, returning from, and one day's attendance at, the place of examination, are paid or tendered to him at the time of the service of the subpoena. 14. Depositions in the District of Columbia in suits pending elsewhere. (Sec. 871.) — "When a commission to take the testi- mony of any witness found within the District of Columbia, to be used in a suit depending in any State or territorial or foreign court, is issued from such court, or a notice to the same effect is given according to its rules of practice, and such commission or notice is produced to a justice of the Supreme Court of said District, and due proof is made to him that the testimony of such witness is material to the party desiring the same, the said justice shall issue a summons to the witness, requir- ing him to appear before the commissioners named in the commis- sion or notice, to testify in such suit, at a time and at a place within said District therein specified. 15. The same subject— when no Commission nor Notice. (Sec. 872.) — When it satisfactorily appears by affidavit to any jus- tice of the Supreme Court of the District of Columbia, or to any commissioner for taking depositions appointed by said court — First. That any person within said District is a material wit- 432 THE FEDERAL LAW OF EVIDENCE. ness for either party in a suit pending in any State or territorial or foreign court ; Second. That no commission nor notice to take the testimony of such witness has been issued or given ; and Third. That, according to the practice of the court in which the suit is pending, the deposition of a witness taken without the presence and consent of both parties will be received on the trial or hearing thereof, such officer shall issue his summons, requiring the witness to appear before him at a place within the District, at some reasonable time, to be stated therein, to testify in such suit. 16. The same subject— manner of taking and transmitting the Deposition. (Sec. 873.) — Testimony obtained under the two- preceding sections shall be taken down in writing by the officer before whom the witness appears, and shall be certified and trans- mitted by him to the court in which the suit is pending, in such manner as the practice of that court may require. If any person, refuses or neglects to appear at the time and place mentioned in the summons, or, on his appearance, refuses to testify, he shall be liable to the same penalties as would be incurred for a like offense on the trial of the suit. 17. The same subject— Witness Fees. (Sec. 874.)— Every witness appearing and testifying under the said provisions relating to the District of Columbia, shall be entitled to receive for each day's attendance, from the party at whose instance he is sum- moned, the fees now provided by law for each day he shall give attendance. 18. Letters rogatory from United States Courts. (Sec. 875.) — When any commission or letter rogatory issued to take the testimony of any witness in a foreign country, in any suit in which the United States are parties or have an interest, is exe- cuted by the court or the commissioner to whom it is directed, it shall be returned by such court or commissioner to the minister or consul of the United States nearest the place where it is executed. On receiving the same, the said minister or consul shall indorse thereon a certificate, stating when and where the same was re- ceived, and that the said deposition is in the same condition as when he received it ; and he shall thereupon transmit the said letter or commission, so executed and certified, by mail, to the WITNESSES FOR INDIGENT DEFENDANTS. 433 clerk of the court from which the same issued, in the manner in which his official dispatches are transmitted to the Government. And the testimony of witnesses so taken and returned shall be read as evidence on the trial of the suit in which it was taken, without objection as to the method of returning the same. When letters rogatory are addressed from any court of a foreign country to any Circuit Court of the United States, a commissioner of such •Circuit Court designated by such court to make the examination of the witnesses mentioned in said letters, shall have power to compel the witnesses to appear and depose in the same manner as witnesses may be compelled to appear and testify in courts. (19 II. S. Stat, at Large, 241.) 19. Subpoenas for Witnesses to run into another District. (Sec. 876.) — Subpoenas for witnesses who are required to attend a court of the United States, in any district, may run into any other district : Provided, that in civil causes the witnesses living out ■of the district in which the court is held do not live at a greater distance than one hundred miles from the place of holding the same. (Patapsco Ins. Co. v. Southgate, 5 Pet. 616.) 20. Witnesses, the form of Subpoena, attendance under. (Sec. 877.) — Witnesses who are required to attend any term of a Circuit or District Court on the part of the United States, shall be subpoenaed to attend to testify generally on their behalf, and not to depart the court without leave thereof, or of the district attor- ney ; and under such process they shall appear before the grand or petit jury, or both, as they may be required by the court or district attorney. 21. Witnesses in behalf of Indigent Defendants in Criminal Cases. (Sec. 878.) — Whenever any person indicted in a court of the United States makes affidavit, setting forth that there are witnesses whose evidence is material to his defense ; that he can- not safely go to trial without them ; what he expects to prove by each of them ; that they are within the district in which the court is held, or within one hundred miles of the place of trial ; and that he is not possessed of sufficient means, and is actually unable to pay the fees of such witnesses, the court in term, or any judge thereof in vacation, may order that such witnesses be subpoenaed, if found within the limits aforesaid. In such ease the costs in- 28 434 THE FEDERAL LAW OF EVIDENCE. curred by the process and the fees of the witnesses shall be paid in the same manner that similar costs and fees are paid in case of witnesses subpoenaed in behalf of the United States. 22. Recognizance of Witnesses at the hearing of charge* in Criminal Cases. (Sec. 879.) — Any judge or other officer who may be authorized to arrest and imprison or bail persons charged with any crime or offense against the United States may, at the hearing of any such charge, require of any witness produced against the prisoner, on pain of imprisonment, a recognizance,, with or without sureties, in his discretion, for his appearance to testify in the case. And where the crime or offense is charged to have been committed on the high seas or elsewhere within the ad- miralty and maritime jurisdiction of the United States, he may, in his discretion, require a like recognizance, with such sureties as he may deem necessary, of any witness produced in behalf of the accused, whose testimony in his opinion is important, and is in danger of being otherwise lost. 23. Termont, Recognizance of Witnesses, how taken. (Sec. 880.) — In the district of Vermont, all recognizances of witnesses, taken by any magistrate in said district, for their appearance to testify in any case cognizable either in the District or Circuit Court thereof, shall be to the Circuit Court next thereafter to be held in the said district. 24. Recognizance of Witnesses required at any time on ap- plication of District Attorney. (Sec. 881.)— Any judge of the United States, on the application of a district attorney, and on being satisfied by proof that the testimony of any person is com- petent and will be necessary on the trial of any criminal proceed- ing in which the United States are parties or are interested, may com- pel such person to give recognizance, with or without sureties, at his discretion, to appear to testify therein ; and, for that purpose, may issue a warrant against such person, under his hand, with or with- out seal, directed to the marshal or other officer authorized to exe- cute process in behalf of the United States, to arrest and bring before him such person. If the person so arrested neglects or refuses to give recognizance in the manner required, the judge may issue a warrant of commitment against him, and the officer shall convey him to the prison mentioned therein. And the said IN SUITS AGAINST DELINQUENTS. 435 person shall remain in confinement until he is removed to the court for the purpose of giving his testimony, or until he gives the recognizance required by said judge. 25. Copies of Department Records and Papers. (Sec. 882.) — Copies of any books, records, papers, or documents in any of the Executive Departments, authenticated under the seals of such Departments, respectively, shall be admitted in evidence equally with the originals thereof. 26. Copies of Records, &c, in the Office of the Solicitor of the Treasury. (Sec. 883.)— Copies of any documents, records, books or papers in the office of the Solicitor of the Treasury, cer- tified by him under the seal of his office, or, when his office is vacant, by the officer acting as Solicitor for the time, shall be evi- dence equally with the originals. 27. Instruments and Papers of the Comptroller of the Cur- rency. (Sec. 884.) — Every certificate, assignment and convey- ance executed by the Comptroller of the Currency, in pursuance of law, and sealed with his seal of office, shall be received in evi- dence in all places and courts ; and all copies of papers in his office, certified by him and authenticated by the said seal, shall in all cases be evidence equally with the originals. An impression of such seal directly on the paper shall be as valid as if made on wax or wafer. 28. Organization Certificate of National Banks. (Sec. 885.) — Copies of the organization certificate of any national banking association, duly certified by the Comptroller of the Currency, and authenticated by his seal of office, shall be evidence, in all courts and places within the jurisdiction of the United States, of the ex- istence of the association, and of every matter which could be proved by the production of the original certificate. 29. Transcripts from Boots, &c, of the Treasury in Suits against Delinquents. (Sec. 886.) — When suit is brought in any case of delinquency of a revenue officer, or other person account- able for public money, a transcript from the books and proceed- ings of the Treasury Department, certified by the Eegister and authenticated under the seal of the Department, or, when the suit involves the accounts of the War or Navy Departments, certified 436 THE FEDERAL LAW OF EVIDENCE. by the Auditors respectively charged with the examination of those accounts, and authenticated under the seal of the Treasury Department, shall be admitted as evidence, and the court trying the cause shall be authorized to grant judgment and award execu- tion accordingly. And all copies of bonds, contracts, or other papers relating to, or connected with, the settlement of any account between the United States and an • individual, when certified by the Register, or by such Auditor, as the case may be, to be true copies of the originals on file, and authenticated under the seal of the Department, may be annexed to such transcripts, and shall have equal validity, and be entitled to the same degree of credit which would be due to the original papers if produced and authen- ticated in court : Provided, That where suit is brought upon a bond, or other sealed instrument, and the defendant pleads " non est factum" or makes his motion to the court, verifying such plea or motion by his oath, the court may take the same into consider- ation,, and, if it appears to be necessary for the attainment of jus- tice, may require the production of the original bond, contract, or other paper specified in such affidavit. The following cases illustrate the construction and application of this statute : Walton v. U. S. 9 Wheat. 651 ; U. S. v. JBuford, 3 Pet. 12 ; Smith v. IT. S. 5 Pet. 292 ; Cox v. U. S. 6 Pet. 172 ; U. S. v. Jones, 8 Pet. 375 ; Gratiot v. U. S. 15 Pet. 336 ; U. S. v. Irving, 1 How, 250; Hoyt v. U. S. 10 How. 109; Bruce v. U.S. 11 How. 437. 30. Transcripts from Books of the Treasury in Indictments for Embezzlement of the Public Moneys. (Sec. 887.)— Upon the trial of any indictment against any person for embezzling pub- lic moneys, it shall be sufficient evidence, for the purpose of show- ing a balance against such person, to produce a transcript from the books and proceedings of the Treasury Department, as provided by the preceding section. (U. S. v. Gaussen, 19 "Wall. 198.) 31. Copies of Returns in Returns-Office. (Sec. 888.) — A copy of any return of a contract returned and filed in the returns- office of the Department of the Interior, as provided by law, when certified by the clerk of the said office to be full and complete, and when authenticated by the seal of the Department, shall be evi- dence in any prosecution against any officer for falsely and cor- COPIES OF RECORD, be certified by a minister or consul of the United States in such country, under his official seal. 46. The same subject. (Sec. 903.) — This section was also^ amended by the same act so -as to read as follows : A certified copy of the official return, or any other official paper of the United States attorney, marshal, or clerk, or other certifying or recording officer of any court of the United States, made in pursu- ance of law, and on file in any department of the Government, re- lating to any cause or matter to which the United States was a party in any such court, the record of which has been or may be lost or destroyed, may be filed in the court to which it appertains, and shall have the same force and effect as if it were an original report, return, paper, or other document made to or filed in such court ; and in any case in which the names of the parties and the date and amount of judgment or decree shall appear from such return, paper, or document, it shall be lawful for the court in which they are filed to issue the proper process to enforce such decree or judgment, in the same manner as if the original record remained in said court. And in all cases where any of the files, papers, or records of any court of the United States have been or shall be lost or destroyed, the files, records, and papers which, pursuant to law, may have been or may be restored or supplied in place of such records, files, and papers, shall have the same force and effect, to all intents and purposes, as the originals thereof would be entitled to. 47. The same subject. (Sec. 904.)— This section was also amended by the same act so as to read as follows : That whenever 442 THE FEDERAL LAW OF EVIDENCE. any of the records or files in which the United States are inter- ested, of any court of the United States, have been or may be lost or destroyed, it shall be the duty of the attorney of the United States for the district or court to which such files and records belong, so far as the judges of such courts respectively shall deem it essential to the interests of the United States that such records and files be restored or supplied, to take such steps, under the direction of said judges, as may be necessary to effect such restora- tion or substitution, including such dockets, indices, and other books and papers as said judges shall think proper. Said judges may direct the performance, by the clerks of said courts respect- ively and by the United States attorneys, of any duties incident thereto ; and said clerks and attorneys shall be allowed such com- pensation for services in the matter and for lawful disbursements as may be approved by the Attorney-General of the United States, upon a certificate by the judges of said courts stating that such «laim for services and disbursements is just and reasonable ; and the sum so allowed shall be paid out of the judiciary fund. 48. Authentication of Legislative Acts and Proof of Judi- cial Proceedings of States, &c. (Sec. 905.) — The acts of the legislature of any State or Territory, or of any country subject to the jurisdiction of the United States, shall be authenticated by having the seals of such State, Territory, or country affixed thereto. The records and judicial proceedings of the courts of any State or Territory, or of any such country, shall be proved or admitted in any other court within the United States, by the attestation of the clerk, and the seal of the court annexed, if there be a seal, together with a certificate of the judge, chief justice, or presiding magistrate that the said attestation is in due form. And the said records and judicial proceedings, so authenticated, shall have such faith and credit given to them in every court within the United States as they have by law or usage in the courts of the State from which they are taken. The following cases may be consulted as to the construction of this section : Ferguson v. Earwood, 1 Cr. 408 ; Mills v. Duryee, 7 Cr. 481 ; TJ. S. v. Amedy, 11 Wheat. 392 ; Buckner v. Finley, 2 Pet. 592; Owings v. Hull, 9 Pet. 627; Urtetiqui v. V Ariel, 9 Pet. 700 ; McElmoyle v. Cohen, 13 Pet. 312 ; Stacey v. Thrasher, 6 How. 44 ; Bank of Alabama v. Dalton, 9 How. 522 ; D'Arcy COPIES OF FOREIGN RECORDS, ' Wolf v. Rabaud, 1 Pet. 476 ; Evans v. Gee, 11 Pet. 80 ; 504 REMOVAL OF CAUSES TO CIRCUIT COURTS. Sims v. Hundley, 6 How. 1 ; Sheppard v. Graves, 14 How. 505 ; and Be Sdbry v. Nicholson, 3 Wall. 420.) Chief Justice Waite, in The Railway Company v. Ramsey, 22 Wall. 322, remarked : " Consent of parties cannot give the courts of the United States jurisdiction, but the parties may admit the existence of facts which show jurisdiction, and the courts may act judicially upon such admission." (6.) Assignees. — The first section of the Act of March 3d, 1875, provides that no Circuit Court of the United States shall " have cognizance of any suit, founded on contract, in favor of an assignee, unless a suit might have been prosecuted in such court if no assignment had been made, except in cases of promissory notes negotiable by the law merchant and bills of exchange." The second section of the same act designates the cases in which suits may be removed from State courts to the Circuit Courts of the United States, without expressly stating this qualification as to the jurisdiction of the latter courts. Judge McCrary, in Berger v. The County Commissioners of Douglass County, 5 Fed. Rep. 23, held that the two sections of this act should be construed together as in pari materia. " It is impossible," he observes, " to imagine a case in which a suit in this court, by an assignee, is prohibited by the first section of the Act of March 3d, 1875, and in which the same suit may not be indirectly brought here, if the two sections are not construed together, or if it be held that a non-resident assignee may, in all cases of suits founded on contract, remove the cause on the ground of his citizenship. By this construction of the Act of 1875 we would point out the mode whereby one citizen of Nebraska, hold- ing a claim against another citizen of that State for more than five hundred dollars, may assign his claim to a citizen of a neighboring State, who can bring his suit thereon into this court provided only he comes through a State court." Such was the fact in this case; and, on motion, Judge McCrary remanded the suit to the State court, holding that when the first and second sections of the Act of March 3d, 1875, are construed together, as they should be on the question involved, " the right of removal should not be allowed in a case where the plaintiff is an assignee, unless his assignor might have sued in this court." The same ruling was adopted in Hardin v. Olson, 14 Fed. Rep. 705. THE ACT OF MARCH 3d, 18T5. 505 There is force in the reasoning of Judge McOrary ; yet the ruling does not accord with the doctrine laid down by the Supreme Court. {Green v. Custard, 23 How. 484; Bushnell v. Kennedy, 9 Wall. 387 ; and The City of Lexington v. Butler, 14 "Wall. 282.) Mr. Justice Clifford, in the last of these cases, alluded to the decision in Bushnell v. Kennedy, and then pro- ceeded to say : " All doubt upon the subject is removed, as it is here expressly determined that the restriction incorporated in the eleventh section of the Judiciary Act has no application to cases removed into the Circuit Court from a State court, and it is quite clear that the same rule must be applied in the construction of the subsequent acts of Congress extending that privilege to other suitors not embraced in the twelfth section of the Judiciary Act." The restriction in the Judiciary Act, here referred to, is the one that provided that, with the exception of foreign bills of exchange, the Circuit and District Courts of the United States shall not " have cognizance of any 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 contents if no assignment had been made." In Bushnell v. Kennedy, 9 Wall. 387, it was held that this re- striction upon suits when sought to be brought in a Circuit Court, as contained in the eleventh section of the Judiciary Act, not being found in the twelfth section of the act which provides for the removal of suits, has no application to suits transferred, under the latter section, from State courts to Circuit Courts. The same view was adopted in The City of Lexington v. Butler, supra. The language of Mr. Justice Clifford, as above quoted, though uttered before the enactment of the removal Act of 1875, is equally applicable to that act, and is not consistent with the view taken by Judge McCrary. 2. The Mode of Removal. (Sec. 3.) — This section provides as follows : "That whenever either party, or any one or more of the plaintiffs or defendants entitled to remove any suit men- tioned in the next preceding section, shall desire to remove such suit from a State court to the Circuit Court of the United States, he or they may make and file a petition in such suit in such State court before or at the term at which said cause could 506 REMOVAL OF CAUSES TO CIRCUIT COURTS. be first tried and before the trial thereof for the removal of such suit into the Circuit Court to be held in the district where such suit is pending, and shall make and file therewith a bond, with good and sufficient surety, for his or their entering in such Circuit Court, on the first day of its then next session, a copy of the record in such suit, and for paying all costs that may be awarded by the said Circuit Court, if said court shall hold that such suit was wrongfully or improperly removed thereto, and also for there appearing and entering special bail in such suit, if special bail was originally requisite therein, it shall then be the duty of the State court to accept said petition and bond, and proceed no further in such suit, and any bail that may have been originally taken shall be discharged ; and the said copy being entered as aforesaid in said Circuit Court of the United States, the cause shall then pro- ceed in the same manner as if it had been originally commenced in the said Circuit Court." These are the general provisions of the section, the remainder of it being specially devoted to the removal of suits from State courts where citizens of the same State claim lands under grants of different States. These general provisions are as follows : (1.) The Petition. — The party or parties, whether plaintiffs or defendants, desiring to remove a suit, must file a petition to this effect in the State court where the suit is pending. If the re- moval is sought under the first clause of the preceding section, then all the plaintiffs on the one side or all the defendants on the other side must unite in the petition. If the removal be sought under the second clause, then it is enough if one or more of the plaintiffs or defendants file the petition. Chief Justice Waite, in The Gold W. & W. Co. v. Keyes, 6 Otto, 199, said : " For the purposes of the transfer of a cause, the petition for removal, which the statute requires, performs the office of pleading. Upon its statements, in connection with the other parts of the record, the courts must act in declaring the law upon the question it presents. It should, therefore, set forth the essential facts, not otherwise appearing in the case, which the law has made conditions precedent to the change of jurisdiction. If it fails in this, it is defective in substance, and must be treated accordingly." The record in the State court, including therein the petition for removal, must be in such a condition when the removal is effected as to show jurisdiction in the court to which it goes. If THE ACT OF MARCH 3d, 1816. 507 it is not, and the omission is not afterward supplied, no right of removal exists, and the suit, if removed, must be remanded. The right is statutory, and hence it is only by compliance with the statute that it can be secured. ( The Insurance Co. v. Pechner, 5 Otto, 183.) In Amory v. Amory, 5 Otto, 186, Chief Justice Waite said: " Holding, as we do, that a State court is not bound to surrender its jurisdiction upon a petition for removal until at least a peti- tion is filed, which, upon its face, shows the right of the petitioner to the transfer, it was not error of the court to retain these causes." (2.) The time of Filing the Petition. — The statute provides that the petition must be filed in the State court " before or at the term at which said cause could be first tried and before the trial thereof." Judge Johnson held, in The Merch. & Manuf. Nat. Bank v. Wheeler, 13 Blatch. 218, that this relates to " a term oc- curring after the passage of the act, and not to a term before such passage." The same view was taken in The Removal Cases, 10 Otto, 457, 473. {Baker v. Peterson, 4 Dill. 562 ; Hoadley v. San Francisco, 3 Saw. 353 ; Andrews v. Garrett, 2 Cent. Law Jour. 797 ; and Crane v. Beeder, 28 Mich. 527.) The petition must be filed " before the trial " of the suit in the State court. In regard to this specific limitation Chief Justice "Waite, in Tlie Removal Cases, 10 Otto, 457, 473, remarked : " We agree that, as a general rule, the petition must be filed in a way that it may be said to have been in law presented to the court before the trial is in good faith entered upon. There may be exceptions to this rule ; but we think it clear that Congress did not intend by the expression ' before trial,' to allow a party to experiment on his case in the State court, and, if he met with unexpected difficulties, stop the proceedings, and take his suit to another tribunal. But, to bar the right of removal, it must appear that the trial had actually begun and was in progress in the orderly course of proceeding when the application was made. No mere attempt of one party to get himself on the record as having begun the trial will be enough. The case must be actually on trial by the court, all parties acting in good faith, before the right of removal is gone." This settles the proper construction of the phrase "before the trial thereof," as occurring in the statute. The plain intention of Congress is that, after the issue has been made up between the 508 REMOVAL OF CAUSES TO CIRCUIT COURTS. parties and the trial of the suit has actually been entered upon in the State court, there shall be no removal of the suit to a Circuit Court. A petition for removal then will be too late to oust the jurisdiction of the State court. This is not the only limitation fixed by the statute, since it also provides that the petition must be filed in the State court "before or at the term at which said cause could be first tried" in the State court. The filing of the petition may precede the commencement of this term, or it may be at this term, if " before the trial " of the suit is entered upon. The trying or " trial " of a suit, whether in actions at law or those in equity, as referred to in the statute, evidently does not relate to the consideration and determination of merely prelimi- nary questions in getting the suit ready for an examination and the settlement of the facts put in issue. " The most that can be said " of such proceedings " is that preparations were being made for a trial." There can be no actual trial of a suit until an issue in some form is made up for this purpose ; and then the suit can be tried. It is in a condition for trial. {Lewis v. Smythe, 2 Woods, 117 ; The Removal Cases, 10 Otto, 457, 474 ; Tulee v. Vose, 9 Otto, 539, 545 ; The Phoenix Life Ins. Co. v. Saetter, 33 Ohio St. 278 ; and Oreene v. Kingler, 10 Cent. Law Jour. 47.) "What, then, is "the term at _ which said suit could be first tried ? " This is a question of fact in part, and, in part, of the practice of the court. Ex- Judge Dillon, in his "Bemoval of Causes," 3d ed. p. 78, answers the question as follows : " The word ' term,' as here used, means, according to the con- struction which it has received in the eighth judicial circuit, the term at which, under the legislation of the State and the rules of practice pursuant thereto, the cause is first triable, *. e., subject to be tried on its merits ; not necessarily the term when, owing to press of business or arrearages, it may be reached, in its order, for actual trial. The act gives the right of removal to either party— the resident as well as the non-resident party — and no affidavit of • prejudice is required ; and it was the obvious purpose of Congress, by the use of the words ' before or at, &c, the term at which the cause could be first tried,' &c, to require the election to be taken at the first term at which, under the law, the cause was triable on its merits. The judicial construction elsewhere of the Act of 1875 is in accordance with these views." In Stough v. Hatch, 16 Blatch. 233, Judge Benedict held that THE ACT OF MARCH 3d, 1875. 509 the application for removal, though granted by the State court was not in time ; and hence the cause was remanded to the State court. The cause was at issue, duly noticed for trial in the State court, and subject to be tried at the January term, 1879, but by agreement of the parties went off the calendar for that term. The defendant, after the expiration of the term, applied for the removal of the cause to the Circuit Court, but, as Judge Benedict held, too late to come within the provision of the Act of 1875. The consent of the parties to postponement did not affect the op- eration of the law. Mr. Justice Blatchford, in Forrest v. Eeeler, 17 Blatch. 522, said : " Although the plaintiff in the present case did not notice the case for trial at an earlier term, the defendant could have done so. The plaintiff had a right to regard the defendant as having waived his right to remove the cause, when, in the absence of any stay, the defendant did not remove the cause before or at the first term at which, the cause being at issue and triable on the merits, the defendant might have noticed it for trial. The proper construction of the statute is such as to make it necessary to hold that the removal in this case was too late." " In Enowlton v. The Congress dc Empire Spring Co. 13 Blatch. 170, Judge Benedict remanded the cause, because, after one trial had been had in the State court and a judgment entered which was thereafter set aside, the cause, after the reversal of the judg- ment, could have been again brought to trial in the State court before the filing of the petition for its removal. Chief Justice Waite, in Gurnee v. The County of Brunswick, 1 Hughes, 270, 277, said : " A cause cannot be tried until in some form an issue is made up for trial. The pleadings or statements necessary to make the issue are regulated by the practice in the court where the trial is to be had. As soon as the issue is made up the cause is ready for trial. The parties and the court may not be ready, but the cause is. The first term, therefore, at which a case can be tried is the first term at which there is an issue for trial. An application for removal, to be in time, must be made before or at this term." In Ames v. The Colorado Cent. R. R. Co. 4 Dill. 280, 263, it was said that the term referred to in the Act of 1875, " appears to be that at which the cause may be heard or tried on the merits, according to the practice of the court, without regard to the special 510 REMOVAL OF CAUSES TO CIRCUIT COURTS. circumstances of the case, as whether the parties are ready for trial and the like." Judge McCrary, in Murray v. Holden, 2 Fed. Eep. 740, said : " If the local law makes the first term after suit is brought an appearance term merely, and declares that the second term is the one at which the case may be brought to trial, then the latter is the term, at or before which the petition for removal must be filed. But where the first term after service of process is the term at which by law a case is triable, then that is the term to which the act of Congress refers. In other words, the term at which a case can ' first be tried,' is the first term at which it may by law be tried." Judge Wallace, in Cramer v. Mack, 12 Fed. Eep. 803, said : " It was obviously the intention of the removal act [of 1875] to preclude a party from resorting to the expedient of a removal in order to deprive his adversary of the opportunity to try the cause, and the decisions in the construction of the act are to the effect that a party loses his right to remove if he permits the term to pass at which he could have placed the cause in a position to be tried upon the merits if he had conformed to the rule of practice of the State court. When there is an issue which, by the practice of the court, can be brought to trial, the cause is triable ; and if noticed for trial the court can entertain it, and it matters not whether the parties are otherwise ready for trial or not, or whether the court shall see fit to entertain the trial or not." Judge Brown, in Johnson v. Johnson, 13 Fed. Bep. 193, said : " When a cause is removed on account of the citizenship of the parties, it must, under the Act of 1875, be removed at the first term during which the cause might have been tried in the State court. This means the first term when the cause was legally tria- ble, not a subsequent term to which it may have been legally postponed by agreement or by order of the court ; and it has no reference to the presence or absence of witnesses, or to the crowd- ed state of the docket." In Warner v. The Pennsylvania B. B. Co. 13 Blatch. 231, it was held that "if the term at which the cause could otherwise be first tried is one which occurs during the time a trial of the cause is stayed by an order of the State court, it is not such a term as is meant by the statute." In The Bible Society v. Grove, 11 Otto, 610, Chief Justice THE ACT OF MARCH 3d, 1875. 5H Waite said : " The act took effect from the time of its approval, March 3d. The case was actually tried once in the State court, on the 14th of April following. The jury disagreeing, it was con- tinued at that term and also at the May term. The petition for removal was not filed until September afterward. Clearly this was too late." In The Public Grain and Stock Exchange v. The Western Union Tel. Co. 16 Fed. Kep. 289, it was held by Judge Drum- mond that " when, in consequence of the want of diligence on the part of an applicant for the removal of a cause from a State court, the issue has not been made up, or where the right exists to have the cause heard, or set down for hearing at the first term, and he does not ask for it, he cannot afterwards be permitted to apply to the State court for the removal of the cause." {Kerting v. The Amer. Oleograph Co. 10 Fed. Eep. 17; Aldrich v. Crouch, Id. 305 ; Murray v. Holder), 2 Fed. Kep. 740 ; and Scott v. The Clin- ton & S. R. Co. 6 Biss. 529.) These judicial constructions of the statute, though somewhat different in phraseology, are essentially identical in import. The petition for removal must always be filed before trial. It may be filed at any time before the term at which the suit could be first tried. If not so filed, then it may be filed at any time during that term, provided it be before the actual trial of the suit is entered upon. The term at which the suit can be first tried is the one at which, by the law and practice of the court, it is triable upon the merits at issue in the case. (3.) The Bond. — The statute provides that the party who files a petition for the removal of a cause, " shall make and file there- with a bond." The petition is to be filed "before or at the term at which said suit could be first tried and before trial " in the State court ; and the requirement is that the petitioner " shall make and file therewith a bond." The obvious implication is that he shall do so at the time of filing the petition, or, at least, within the time limited for the filing of the petition. The petition, without the bond, has no legal force. Both are conditions precedent to removal, and if either be absent, the right of removal does not exist. {Bur- dick v. Hale, 7 Biss. 96.) In Stevens v. Bichardsan, 9 Fed. Eep. 191, it was held that the bond need not be executed by the petitioners, but that it is 512 REMOVAL OF CAUSES TO CIRCUIT COURTS. sufficient if executed by others who are named in it as obligors, and if conditioned that the petitioners shall comply with the pro- visions of the statute, and if it recites that the petitioners have pe- titioned for the removal, although the obligors are not otherwise called sureties for the petitioners. " The statute is satisfied," said Judge Blatchf ord, " if a bond with sufficient surety is filed. The petitioner for removal makes the bond, in the sense of the statute, if he offers it to the court as the bond required. By section 639 of the Kevised Statutes he was required to offer good and sufficient surety. The Act of 1875 means no more." In Hervey v. The Illinois M. E. E. Co. 3 Fed. Eep. 707, it was held that " an irregularity or defect in the form of the removal bond will be deemed waived after the expiration of eighteen months, where the cause was removed with the consent of all parties." If the place where the penal sum should be inserted is left blank, the bond is deemed insufficient. {Burdick, v. Hale, 7 Biss. 96.) If the bond is defective, it can be perfected only during the term at which the suit could be first tried. {Wilcox & Gibbs S. M. Go. v. Follett, 3 0. L. B. 49.) If it lacks a seal, the State court may allow the seal to be affixed. {Chamberlain v. The Amer. JST. L. & T. Co. 18 N. Y. Supr. 370.) If executed by a corporation, it may be so executed with the corporate name by the attorney of record. {Swan v. The M. C. & L. M. E. E. Co. 4 C. L. B. 898.) (4.) The Surety of the Bond. — The statute requires that the bond filed shall be accompanied " with good and sufficient surety," which means sufficient to guarantee the fulfillment of the condi- tions specified in the statute. It is not necessary that two persons should sign the bond as sureties. " G-ood and sufficient" is all that is required ; and this is satisfied if there is one surety able to respond to the condition. The surety being " good and sufficient" in law, the State court has no discretion in the matter, but is bound to accept it. {The Eemoval Cases, 10 Otto, 457, 472.) No objection being made to the surety, the State court will presume it to be sufficient ; and if the point was not raised in the State court, the Circut Court to which the cause is removed will assume the same thing. {The Empire Trans. Co. v. Eichards, 88 111. 404 ; and Fulton v. Golden, 20 A. L. J. 229.) In Van Allen v. The A. C. & P. E. Co. 3 Fed. Eep. 545, THE ACT OF MARCH 3d, 1876. 513 Judge McCrary said : " There appears in the record a bond con- ditioned as required by the removal Act, and approved by the State court. This court will not, upon a motion to remand, enter upon any inquiry as to the sufficiency of the sureties on said bond. That was a question for the State court." The State court having accepted the sureties, the Circuit Court will not inquire into the correctness of its action. (5.) Stipulations of the Bond.^The statute requires that the party filing the bond shall therein stipulate to do the following things : (a.) The first is that he will enter in the Circuit Court to be held in the district where the suit is pending, on the first day of its then next session, a copy of the record of the suit in the State Court. The law makes it his duty to furnish such a copy of the case up to the time of its removal ; and this duty in the bond he pledges himself to perform. The time for entering this copy is the first day of the session of the Circuit Court next after the filing of the bond. The petition and bond are parts of the record, and are necessary to the jurisdiction of the Circuit Court over the case. In Bright v. The Milwaukee & St. Paul R. R. Co. 14 Blatch. 214, it appeared that the plaintiff filed his petition in the State court for removal on the 4th of February, 1876 ; that the next session of the Circuit Court began on the last Monday of the same month ; and that the copy of the record was not filed in the Cir- cuit Court until the first day of the ensuing April. The suit was remanded to the State Court because the copy of the record was not entered in the Circuit Court on the first day of the term next ensuing after the filing of the petition, as directed in the statute. The same ruling, in principle, was adopted in Broadnax v. Eisner, 13 Blatch. 366, and in McLean v. The St. Paul c& Chicago R. R. Co. 16 Blatch. 309. Judge Hammond, however, in Wool/ridge v. McKenna, 8 Fed. JRep. 650, held as follows : " The provision of the Act of March 3d, 1875, sec. 3, requiring the transcript of the record of the State court to be filed on the first day of the succeeding term of the Federal court, is not mandatory as a condition precedent to the jurisdiction of the Federal court, but is directory only as a mode of practice. The statute should be strictly obeyed, but the court, under the Kevised Statutes, sees. 948, 954, may, and on good 33 514 REMOVAL OF CAUSES TO CIRCUIT COURTS. cause shown should, enlarge the time for filing, or cure the defect by allowing the transcript to be filed nunc pro tunc." Judge McCrary took substantially the same view in Kidder v. Featteau, 2 Fed. Eep. 616, holding that delay in not filing the record at the time specified in the statute is not necessarily sufficient ground for remanding the cause to the State court. He held that " un- necessary delay, amounting to laches, in fiHng such record, prej- udicing the other party, may be ground for remanding the case ; but the party is not entitled for such cause, as a matter of right, to have it remanded." Upon this point Chief Justice Waite, in The Removal Oases, 10 Otto, 457, 475, remarks: "While the act of Congress requires security that the transcript shall be filed on the first day, it nowhere appears that the Circuit Court is to be deprived of its jurisdiction, if, by accident, the party is delayed until a later day in the term. If the Circuit Court, for good cause shown, accepts the transfer after the day and during the term, its jurisdiction will, as a general rule, be complete, and the removal properly effected." The conclusion to be derived from these cases is that, while the party seeking a removal should rigidly follow the statute as to the time of filing a copy of the record, the Circuit Court, in de- ciding whether non-compliance shall be regarded as a cause for remanding the case, may exercise some degree of discretion according to the circumstances of each particular case. This would seem to be the better opinion, especially in view of the language of Chief Justice Waite. (5.) The second stipulation of the bond is that the party filing it will pay " all costs that may be awarded by the said Circuit Court, if said court shall hold that such suit was wrongfully or improperly removed thereto." In Torrey v. The Grant Locomotive Works, 14 Blatch. 269, it was held by Judge Blatehford, that the case was not properly re- moved because the bond required by the statute, which was held to be applicable to the case, contained no provision for the pay- ment of these costs. Judge Blatehford said in this case : " The filing of the bond, conditioned as required by the Act of 1875, is a condition precedent to the removal of the cause to the Federal court; and that, if the required bond has not been filed, that court has no jurisdiction, although it belongs to that Court ex- THE ACT OF MARCH 3d, 1875. 515 clusively, and not to the State court, to decide that fact." This he approvingly quotes as the ruling of Judges McKennan and Cadwalader, in McMundy v. The Connecticut General Life Ins. Co. 9 Chicago Legal News, 324. Judge Ooxe, in Webber v. Bishop, 13 Fed. Kep. 49, held that " it is essential that the bond contain a provision for the payment of costs, and the objection that it does not may be taken at any time." The case of Deford v. Mehaffy, 13 Fed. Eep. 481, contradicts this view. In this case Judge Hammond held as follows : " If the removal be defective, and omit the condition for the payment of costs required by the act of Congress, the omission is not fatal to the jurisdiction of the Federal court. The defect may be cured by amendment, either in the State or Federal court, or by the substitution of a new bond, containing the proper conditions, filed nunc pro tunc." The judge denied the motion to remand the case, and directed the petitioner for removal to amend the bond or substitute a new one, conditioned as required by the statute, and file the same nunc pro tunc, and decided that, on his failure to do this, the plaintiffs should have leave to renew the motion to remand. The point involved in these conflicting opinions turns upon the question whether the Circuit Court can take jurisdiction of the case, in the absence of the required stipulation in the bond respecting the payment of costs. If it cannot, then the proper course is to remand the case. (c.) The third stipulation is that the party filing the bond will appear in the Circuit Court and enter " special bail in such suit, if special bail was originally requisite therein." If there was no special bail in the case, then there will be no necessity for a stipu- lation in the bond to enter such bail. {The Removal Cases, 10 Otto, 457, 472.) It was objected, in Cooke v. Seligman, 17 Blatch. 452, 459, that the condition of the bond did not provide for the defendants appearing in the Circuit Court and entering special bail in the suit. To this Judge Blatchford replied : " The clause in the con- dition, providing that the defendants shall ' do or cause to be done such other and appropriate acts,' &c, is a sufficient compliance with any requirement in sec. 3 of the Act of 1875, that the bond 516 REMOVAL OF CAUSES TO CIRCUIT COURTS. shall be one for appearing in the Federal court." These general terms were held to embrace this specific stipulation. Such, then, are the conditions of the bond required to be given and filed with the petition in removing a cause from a State court. The purpose of the bond is to secure the performance of these conditions ; and it was undoubtedly the design of Congress to qualify the right of removal by such performance. Any con- struction by courts, inconsistent with this design, would defeat the purpose of the statute. (6.) Duty of the State Court. — The statute further provides that when, in any of the cases mentioned in the second section of the act, all the conditions of removal specified in the third section of .the same act shall have been complied with, " it shall then be the duty of the State court to accept said petition and bond, and proceed no further in such suit, and any bail that may have been originally taken shall be discharged." The theory of this provision is that, all the steps for the re- moval of a suit being taken as prescribed, the jurisdiction of the State court at once comes to an end, unless the case shall be re- manded, and, consequently, that it has no power to proceed any further in the case. Congress commands the court to accept the petition and bond and suspend all further proceedings. Ex- Judge Dillon, in his " Kemoval of Causes," 3d ed. p. 92, states the point as follows : "Under such circumstances the State court has no power to refuse the removal, and can do nothing to affect the right, and its rightful jurisdiction ceases eo instanti; no order for the removal is necessary ; and every subsequent exercise of jurisdiction by the State court, including its judgment, if one is rendered, is erroneous. And if the right of removal has once become perfect, it cannot be taken away by subsequent amendment in the State court or Federal court, or by a release of part of the debt or damages claimed, or otherwise ; nor can the State court stay proceedings for removal until the costs are paid, or award costs, or issue execu- tion for costs." Judge Nixon, in The New York Silk Manuf. Co. v. The Second Nat. Bank of Paterson, 10 Fed. Rep. 204, held that, the petition and bond being in due form and properly filed, "all further proceedings in the State court are warn non judice." {Rowland v. The Insurance Company, 2 C. L. B. 56.) THE ACT OF MARCH 3d, 1876. 517 Chief Justice Waite, in stating the opinion of the court in The Railroad Company v. Koontz, 14 Otto, 5, said : " It is also a well settled rule of decision in this court that when a sufficient case for removal is made in the State court, the rightful jurisdiction of that court comes to an end ; and no further proceedings can prop- erly be had there, unless in some form its jurisdiction is restored." (Gordon v. Longest, 16 Pet. 104; Kanouse Y.Martin, 15 How. 198 ; The Insurance Company v. Dunn, 19 "Wall. 214 ; and The Railroad Company v. Mississippi, 12 Otto, 135.) In the last of these cases the court said that the State court " was entirely with- out jurisdiction to proceed after the presentation of the petition and bond for removal." Chief Justice Waite, in The Railroad Co. v. Koontz, supra, further said : " If, after a case has been made, the State court forces the petitioning party to trial and judgment, and the highest court of the State sustains the judgment, he is entitled to his writ of error to this court if he saves the question on the record. If a reversal is had here on account of that error, the case is sent back to the State court with instructions to recognize the removal and proceed no further. Such was in effect the order in Gordon v. Longest, supra. The petitioning party has the right to remain in the State court under protest, and rely on this form of remedy if he choses, or he may enter the record in the Circuit Court, and require the adverse party to litigate with him there, even while the State court is going on. This was actually done in The Re- moval Cases." As to the question whether the petitioning party, having com- plied with the provisions of the statute for a removal of the suit, if kept by his adversary and against his will in the State court, and forced to a trial there on the merits, may, after having ob- tained in the regular course of procedure a reversal of the judg- ment and an order for the allowance of the removal, enter his cause in the Circuit Court, notwithstanding the term of that court has gone by during which, under other circumstances, the record should have been entered, Chief Justice Waite in this case said : " We have no hesitation in saying that in our opinion we can." The petitioning party, under such circumstances, does not, by contesting the case in the State court, waive or forfeit any of his rights as secured to him by the statute. (The Insurance Com- 518 REMOVAL OF CAUSES TO CIRCUIT COURTS. pany v. Dunn, 19 Wall. 214 ; Removal Oases, 10 Otto, 457 ; and The Railroad Company v. Mississippi, 12 Otto, 135.) All this, however, proceeds upon the assumption that the case,, as presented to the State court by the petitioning party, is one that comes within the provisions of the second and third sections of the Act of March 3d, 1875. If it is not such a case, then these observations have no application to it ; and whether it is or not must in the first instance be decided by the State court. It is made the duty of the State court to accept the petition and bond ; and it is not possible intelligently to perform this duty without deciding whether the case presented is within the meaning of the statute. Chief Justice Waite, in The Removal Cases, 10 Otto, 457, 474, said : " We fully recognize the principle, heretofore asserted in many cases, that the State court is not required to let go its juris- diction until a case is made which, upon its face, shows that the petitioner can remove the case as a matter of right." The State court surely has the right to examine the case, in order to ascer- tain whether it be one which demands a surrender of its jurisdic- tion ; and, for this purpose, it may inquire into the truth of facts alleged in the petition as the basis for the right of removal. (Carswell v. Schley, 59 Ga. 17; Clark v. Opdyhe, 17 IS. Y. Supr. 383 ; Bureh v. The D. & St. P. R. R. Co. 46 Iowa, 449 ; and Schwab v. Hudson, 11 C. L. 1ST. 372.) If the State court decides that no case for removal exists, and on this ground refuses to accept the petition and bond, and hence continues its jurisdiction, the petitioning party can have this de- cision reviewed without any loss of rights on his part ; and if the decision be affirmed by the highest court of the State, then, by a proper procedure, he may carry the question to the Supreme Court of the United States. The statute does not require the petitioning party to give any notice to the adverse party of his application for the removal of a suit from the State court. In reference to this point Judge Blatchf ord, in Wehl v. Wold, 17 Blatch. 342, said : " The act of Congress does not require notice. If, as a matter of discretion, a State court can or does require notice in any case of removal, such notice was dispensed with in this case ; and the matter being one of practice, it is for the State court to regulate its own practice,. THE ACT OF MARCH 8d, 1875. 519 and this court will not review such a question." The same doc- trine was affirmed in Stevens v. Riehardson, 9 Fed. Rep. 191. The voluntary appearance of the party in the State court, without summons, does not affect his right to insist on the removal of the suit therefrom. It is not a waiver of the right. {Stevens v. Richardson, 9 Fed. Eep. 191.) Although it is proper that the State court, upon a sufficient case, should make a formal order for the removal of the cause, this is not necessary to its removal. The removal is a legally ac- complished fact whether the order is made or not. It does not depend upon the order, but upon compliance with the prescribed conditions. {Lalor v. Dunning, 56 How. Pr. 209 ; The Commer- cial and Savings Bank v. Corbett, 5 Saw. 172 ; and Jackson v. The Mutual Life Ins. Co. 60 G-a. 423.) In Penrose v. Penrose, 1 Fed. Rep. 479, it was held that, the case being removed by the filing of the proper papers, the order of the State court awarding cost, was without jurisdiction, and was therefore void. {The Mayor v. Cooper, 6 Wall. 247.) (7.) The Circuit Court. — The third section of the act still further provides that " the said copy being entered as aforesaid in said Circuit Court of the United States, the cause shall then proceed in the same manner as if it had been originally com- menced in the said Circuit Court." To this, section sixth adds the following provision : " That the Circuit Court of the United States shall, in all suits removed under the provisions of this act, proceed therein as if the suit had been originally commenced in said Circuit Court, and the same proceedings had been taken in such suit in said Circuit Court as shall have been had therein in said State court prior to its removal." The " copy " here referred to, is the copy of the record of the suit in the State court, including the petition and the bond for re- moval filed in that court, which is assumed to have been entered in the Circuit Court at the time specified in the statute. This being done, then the case is in a condition for the exercise of the jurisdiction of the latter court. Chief Justice Waite, in The Railroad Company v. Koontz, 14 Otto, 5, 14, said : " The jurisdiction is changed when the removal is demanded in proper form and a case for removal made. Pro- ceedings in the Circuit Court may begin when the copy is entered." 520 REMOVAL OF CAUSES TO CIRCUIT COURTS. Eef erring to "the right of the Circuit Court to proceed with the cause ," he added : " The entering of the record is necessary for that, but not for the transfer of jurisdiction. The State court must stop when the petition and security are presented, and the Circuit Court go on when the record is entered there, which is in effect docketing the cause." This entrance of the record then is not a condition of the existence of the jurisdiction of the Circuit Court, which is already established, but simply of the exercise of that jurisdiction. The case is not in a condition to come before the court until a copy of the record is entered therein, which is equivalent to putting it on the docket of the court. Mr. Justice Harlan, in The Nat. Steamship Co. v. Tugman, 1 Supreme Court Kep. 58, said : " Upon the filing, therefore, of the petition and bond, the suit being removable under the statute, the jurisdiction of the State court absolutely ceased, and that of the Circuit Court of the United States immediately attached. The duty of the State court was to proceed no further in the cause. Every order thereafter made in that court was coram non judice, unless its jurisdiction was actually restored. It could not be restored by the mere failure of the company to file a tran- script of the record in the Circuit Court of the United States within the time prescribed by the statute. The jurisdiction of the latter court attached, in advance of the filing of the transcript from the moment it became the duty of the State court to accept the bond and proceed no further ; and whether the Circuit Court of the United States should retain jurisdiction, or dismiss or re- mand the action because of the failure to file the necessary tran- script, was for it, and not the State court, to determine." (St. Paul c& 0. it. R. Co. v. McLean, 2 Supreme Court Eep. 498.) Assuming the case to be a proper one for removal, and that the necessary proceedings have been taken for this purpose, the statute directs the Circuit Court to dispose of the case just as it would have done if the suit had been first brought in this court, and if the proceedings in the State court prior to removal had been had in the Circuit Court. The latter court takes up the case as it was at the time of removal. In Werthein v. The Conti- nental Railway & Trust Co. 11 Fed. Eep. 689, Judge Shipman said : " It cannot now be doubted that the Circuit Court takes the case where the positive affirmative action of the State court has THE ACT OF MARCH 3d, 1875. 521 left it. If the State court has made an order, and thereafter the case is removed, it goes into the Circuit Court, with the order, if unexecuted, to be executed, and, if executed, to remain a valid order." In Duncan v. Cegan, 11 Otto, 810, Chief Justice "Waite said : "The transfer of the suit from the State court to the Circuit Court did not vacate what had been done in the State court previ- ous to the removal. The Circuit Court, when a transfer is effected, takes the case in the condition it was when the State court was deprived of its jurisdiction. The Circuit Court has no more power over what was done before the removal than the State court would have had if the suit had remained there. It takes up the case where the State court left it off." . In Bills v. The New Orleans, St. Louis c& Chicago R. R. Go. 13 Blatch. 227, it was held that as the complaint had been made in the State court before the cause was removed, no further plead- ing on the part of the plaintiff was necessary in the Circuit Court. In West v. Smith, 11 Otto, 263, it was held that where an ac- tion has been removed from a State court to the Circuit Court, the latter court may, in accordance with the State practice, grant the plaintiff leave to amend his declaration by inserting new counts for the same cause of action as that alleged in the original counts. Having already filed a declaration in the State court, he need not file a new one in the Circuit Court. Where in an action at law the cause is at issue at the time of removal, no other or different pleadings are necessary than those in the State court be- fore removal. {The Merch. & Manuf. Nat. Bank v. Wheeler, 13 Blatch. 218.) It was held, in The- La Mothe Manuf. Co. v. The National Tube Works Co. 15 Blatch, 432, that where the suit in the State court combined purely equitable reliefs and purely legal reliefs in the same suit, the pleadings must, upon the removal of the suit into the Circuit Court, be re-cast into two cases, one at law and the other in equity. {Fish v. The Union Pac. R. R. Co. 8 Blatch. 299 ; Bennett v. Butterworth, 1 1 How. 669 ; Thompson v. . The Railroad Companies, 6 Wall. 134 ; and Montejo v. Owen, 14 Blatch. 324.) The general principle of Federal jurisprudence is that equitable and legal causes of action cannot be blended in the 522 REMOVAL OF CAUSES TO CIRCUIT COURTS. same suit in the courts of the United States, even if they are thus united in State courts. {Hurt v. Hollingsorth, 10 Otto, 100.) In Brooks v. Farwell, 4 Fed. Kep. 166, Judge Hallett said : " We do not, on the removal of a cause from a court of the State, review or attempt to reverse any proceedings that may have been had there before the removal of the cause into this court. As to all questions that are passed upon in the State court before the removal of the cause, they are fully and finally determined so far as this court is concerned, and can only be reviewed in the Su- preme Court of the United States, if there be error in them." These cases illustrate the construction of the statute as to the procedure in the Circuit Court when a cause has been removed thereto. The intention of Congress is that the suit shall, from the point of removal, proceed there just as it would have done if orig- inally commenced there. The Circuit Court, referred to in the statute, is the Circuit Court for the district within the territorial limits of which the suit was pending in the State court. {Knowl- ton v. The Congress & Empire Spring Co. 13 Blatch. 170.) It is the province of this court, having obtained jurisdiction in the way prescribed, to dispose of the case and administer all provisional remedies applicable thereto. {The Mahoney Mining Co. v. Ben- nett, 4 Saw. 289.) (8.) Citizens of the same State. — The section under considera- tion makes a special provision for the removal of suits from State courts between citizens of the same State claiming lands under grants of different States, which is as follows : " And if in any action commenced in a State court the title of land be concerned, and the parties are citizens of the same State, and the matter in dispute exceed the sum or value of five hun- dred dollars, exclusive of costs, the sum or value being made to appear, one or more of the plaintiffs or defendants, before the trial, may state to the court, and make affidavit if the court require it, that he or they claim and shall rely upon a right or title to the land under a grant from a State, and produce the original grant, or an exemplification of it, except where the loss of public records shall put it out of his or their power, and shall move that any one or more of the adverse party inform the court whether he or they claim a right or title to the land under a grant from some other State, the party or parties so required shall give such information, or otherwise not be allowed to plead such grant, or give it in evi- dence upon the trial ; and if he or they inform that he or they do claim under such grant, any one or more of the party moving for THE ACT OF MARCH 3d, 1875. 523 such information may then, on petition and bond as hereinbefore mentioned in this act, remove the cause for trial to the Circuit Court of the United States next to be holden in such district ; and any one of either party removing the cause shall not be allowed to plead or give evidence of any other title than that by him or them stated as aforesaid as the ground of his or their claim, and the trial of issues of fact in the Circuit Courts shall, in all suits except those of equity and of admiralty and maritime jurisdiction, be by jury." This, in several respects, changes the law in regard to such re- movals, as originally enacted in the twelfth section of the Judiciary Act of 1789 (1 U. S. Stat, at Large, 73), and, with slight modifi- cations, reproduced in section 647 of the Eevised Statutes of the United States. Cases under this provision very rarely occur. 3. Supplementary Provisions. (Sees. 4-7.) — The Act of March 3d, 1875, having defined the suits which may be removed, and prescribed the method of removal, proceeds to give a series of provisions, which may be properly designated as supplementary. These provisions are as follows : - (1.) Previous Process continued. (Sec. 4.) — This section pro- vides " that when any suit shall be removed from a State court to a Circuit Court of the United States, any attachment or sequestra- tion of the goods or estate of the defendant had in such suit in the State court shall hold the goods or estate so attached or seques- tered to answer the final judgment or decree in the same manner as by law they would have been held to answer final judgment or decree had it been rendered by the court in which such suit was commenced; and all bonds, undertakings, or security given by either party in such suit prior to its removal shall remain valid and effectual, notwithstanding said removal ; and all injunctions, orders, and other proceedings had in such suit prior to its removal shall remain in full force and effect until dissolved or modified by the court to which such suit shall be removed." This proceeds upon the theory that the proceedings had in the State court are not vacated, and do not become null and void, simply because the suit has been removed to the Circuit Court. The latter court takes the case in the condition in which it was when the State court was deprived of its jurisdiction. {Duncan v. Gegan, 11 Otto, 810 ; and Bills v. The New Orleans, St. Louis & Chicago R. R. Co. 13 Blatch. 227.) 524 REMOVAL OF CAUSES TO CIRCUIT COURTS. (2.) Dismissal or Remanding. (Sec. 5.) — This section pro- vides as follows : " That if, in any suit commenced in a Circuit Court or removed from a State court to a Circuit Court of the United States, it shall appear to the satisfaction of said Circuit Court, at any time after such suit has been brought or removed thereto, that such suit does not really and substantially involve a dispute or controversy properly within the jurisdiction of said Cir- cuit Court, or that the parties to said suit have been improperly or collusively made or joined, either as plaintiffs or defendants, for the purpose of creating a case cognizable or removable under this act, the said Circuit Court shall proceed no further therein, but shall dismiss the suit or remand it to the court from which it was removed as justice may require, and shall make such order as to costs as shall be just ; but the order of said Circuit Court dismiss- ing or remanding said cause to the State court shall be reviewable by the Supreme Court on writ of error or appeal, as the case may be." The question whether the Circuit Court has jurisdiction of a suit removed thereto from a State court, is one which it may con- sider and determine at any time after the removal ; and if it is without jurisdiction it is directed by this statute to proceed no further in the suit, but to remand it to the State court. In The Traders' Bank of Chicago v. TaUmadge, 9 Fed. Kep. 363, it was held that, under this statute " the Circuit Court is not precluded by the decision of the State court from determining for itself whether or not the removal was made in time." Chief Justice Waite, in stating the opinion of the court in Babbitt v. Clark, 13 Otto, 606, 610, remarked that the language of the statute might be more explicit, and then proceeded to say : " We think it may be fairly construed to include a case where the Circuit Court decides that the controversy is not properly within its jurisdiction because the necessary steps were not taken to get it away from a State court where it was rightfully pending. The right to remove a suit from a State court to the Circuit Court of the United States is statutory, and to effect a transfer of jurisdic- tion all the requirements of the statute must be followed. If this is done, the controversy is brought properly within the jurisdiction of the Circuit Court, and may be lawfully disposed of there ; but if not, the rightful jurisdiction continues in the State court." A suit removed from a State court may, according to this con- THE ACT OF MARCH 3d, 1875. 525 structicm, be remanded for the want of jurisdiction in the Circuit Court, not only when neither the subject-matter of the suit nor the parties give jurisdiction, but also when the necessary steps were not taken for its removal to the Circuit Court. It is enough that the suit has not been lawfully removed for any reason ; and when the Circuit Court " remands the suit on that account, it," as re- marked by Chief Justice Waite, "in effect determines that the controversy involved is not properly within its own jurisdiction." So, also, Judge Blatchford, in McLean v. The St. Paul & Chi- cago R. B,. Co. 16 Blatch. 309, 318, expressed the opinion that the provisions of this section " are enabling and not prohibitory, and that they are such as not to indicate any intention in Congress to take away from the Circuit Court the power of remanding a cause to the State court, on the ground that the prescribed prerequisites necessary to authorize the Circuit Court to proceed in the cause have not been complied with." The Circuit Court has no power to change the statute; and unless the jurisdictional conditions which the law establishes are substantially complied with, the law- ful jurisdiction remains in the State court ; and if the suit has been removed therefrom, it should be remanded thereto. {Burdick v. Hale, 7 Biss. 96.) Judge Hallett, in Hoyt v. Wright, 4 Fed. Eep. 168, remarked : " In cases removed from a court of the State, if there is in the record, either in the State court or in the petition for removal, anything showing want of jurisdiction in this court, the party ob- jecting to the removal may rely upon that by motion to have the cause remanded. If, taking the facts appearing in the record and petition to be true, this court has jurisdiction, the party objecting to the jurisdiction must make his objection by plea to the juris- diction — that is, he must allege the facts in a manner in which issue may be joined, and according to the course and practice of the court, so that they may be properly determined." The result would then seem to be this : That a suit removed from a State court to a Circuit Court of the United States, not within the description of removable suits given in the second section of the Act of March 3d, 1875, or not removed in substan- tial compliance with the method prescribed in the third section of the same act, should be remanded to the State court, unless the defects or irregularities in the method of removal are immaterial and do not touch the substance of the statute, or unless such de- 526 REMOVAL OF CAUSES TO CIRCUIT COURTS. f ects or omissions were occasioned by some action of the State court or the clerk thereof, which prevented the petitioner from complying with the law of Congress. The decision of the Circuit Court remanding the suit to the State court is, in express words, made " reviewable by the Supreme Court on writ of error or appeal, as the case may be." The doc- trine of the Supreme Court, prior to this enactment, was that it had no power to review such a decision on writ of error or appeal, because it did not partake of the nature of a final judgment or decree in a civil action. (The Insurance Company v. Comstock, 16 Wall. 258, and The Railroad Company v. Wiswall, 23 Wall. 507.) This power was given by the section under consideration and may now be exercised. (Hoadley v. San Francisco, 4 Otto, 4; Ayers v. Chicago, 11 Otto, 184; and Babbitt v. Clark, 13 Otto, 606.) The Supreme Court will not, however, so exercise this power as to interfere with the legal discretion of the Circuit Court in re- manding a cause. In The St. Paul & C. B. B. Co. v. McLean, 2 Supreme Court Eep. 498, it was held that "where, upon the removal of a cause from a State court, the copy of the record is not filed within the time fixed by statute, it is within the legal discretion of the Federal court to remand the cause, and the order remanding it for that reason should not be disturbed unless it clearly appears that the discretion with which the court is invested has been im- properly exercised." The only reason given in this case for the omission to file the transcript of the record in the Circuit Court within the proper time was inadvertence on the part of counsel ; and this was not regarded as a sufficient legal reason for not com- plying with the statute. (3.) Time of Filing the Becord. (Sec. 1.) — The first provision of this section is "that in all causes removable under this act, if the term of the Circuit Court to which the same is removable, then next to be holden, shall commence within twenty days after filing the petition and bond in the State court for its removal, then he or they who apply to remove the same shall have twenty days from such application to file said copy of record in said Circuit Court, and enter appearance therein, and if done within said twenty days, such filing and appearance shall be taken to satisfy the said bond in that behalf." Section third of the act requires a copy of the record in the THE ACT OF MARCH 3d, 1876. 527 State court to be entered in the Circuit Court on the first day of the next session after the filing of the petition in the State court for the removal of the suit. The part of section seven, above quoted, modifies this requirement in the case specified, so as to provide that, if the term of the Circuit Court, next to be held, shall commence within twenty days after filing the petition and bond in the State court, the petitioner shall have twenty days from the time of the application for the removal of the suit, within which he may file the copy of the record in the Circuit Court and enter his appearance therein, and that, if he does so at any time within this limit, this shall in such a case be regarded as satisfying the bond on this point. The design of Congress was to enlarge the petitioner's period of action to at least twenty days when the term of the Circuit Court begins within twenty days after filing the petition and bond in the State court. (4.) Refusal of the Clerk of the State Court. (Sec. 7.)— The section further provides " that if the clerk of the State court in which any such cause shall be pending, shall refuse to any one or more of the parties or persons applying to remove the same a copy of the record therein, after tender of legal fees for such copy, said clerk so offending, shall be deemed guilty of a misdemeanor, and, on conviction thereof in the Circuit Court of the United States to which said action or proceeding was removed, shall be punished by imprisonment not more than one year, or by fine not exceeding one thousand dollars, or both, in the discretion of the court." The design of this provision is to compel the clerk of the State court to furnish a copy of the record in that court. It makes his refusal to so, in the circumstances recited, a criminal offense. (5.) The Writ of Certiorari, &c. {Sec. 7.) — This section still further provides that " the Circuit Court to which any cause shall be removable under this act, shall have power to issue a writ of ■certiorari to said State court, commanding said State court to make return of the record in any such cause removed as aforesaid, or in which any one or more of the plaintiffs or defendants have complied with the provisions of this act for the removal of the same, and enforce said writ according to law ; " that " if it shall be impossible for the parties or persons removing any cause under this act, or complying with the provisions for the removal thereof, 528 REMOVAL OF CAUSES TO CIRCUIT COURTS. to obtain such copy, for the reason that the clerk of said State court refuses to furnish a copy, on payment of legal fees, or for any other reason, the Circuit Court shall make an order requiring the prosecutor in any such action or proceeding to enforce for- feiture or recover penalty as aforesaid, to file a copy of the paper or proceeding by which the same was commenced, within such time as the court may determine ; " that " in default thereof the court shall dismiss the said action or proceeding ; " that " if said order shall be complied with, then said Circuit Court shall require the other party to plead, and said action or proceeding shall pro- ceed to final judgment ; " that " the said Circuit Court may make an order requiring the parties thereto to pleads novo,'" and that " the bond given, conditioned as aforesaid, shall be discharged so far as it requires copy of the record to be filed as aforesaid." These provisions authorize the Circuit Court to issue a writ of certiorari to the State court, and, in the event of a failure to ob- tain a copy of the record in that court, to proceed with the case in the way prescribed without the record. The refusal of the clerk of the State court or of the court to furnish a copy of the record will not defeat the jurisdiction of the Circuit Court, when a party entitled to remove a cause has taken all the steps pre- scribed by law for this purpose. The fact that the State court decides against the removal of a cause and refuses to allow it, and hence proceeds with its trial, is not conclusive with or binding upon the Circuit Court. (Cobb v. The Globe Mutual Life Ins. Go. 3 Hughes, 452 ; and Hunter v. The Royal Canadian Ins. Co. 3 Hughes, 234.) The jurisdiction of the Circuit Court attaches ipso facto to the case the moment the proper steps for its removal have been taken ; and this juris- diction cannot be vacated or ousted by any action or want of action on the part of the State court. The purpose of issuing a writ of certiorari is not to require the State court to remove the cause to the Circuit Court, but simply to require a "return of the record" of the case, duly authenticated by the court through its clerk. The issue of the writ assumes the ■ authority of the Circuit Court over the case. (Broadnax v. Eisner, 13 Blatch. 366, 369.) 4. The Repealing Section. (Sec. 10.)— This section pro- vides as follows : " That all acts and parts of acts in conflict with the provisions of this act are hereby repealed." THE ACT OF MARCH 3d, 1875. 529 This language does not expressly particularize any act as being repealed by the Act of March 3d, 1875. It applies only to such acts or parts of acts as are in conflict with this act. The question then arises whether there are any prior acts of Congress, or parts of acts, that are repealed in this way. The answer is as follows : (1.) Section 639 of the Revised Statutes. — This section con- tains three subdivisions, each one reproducing a previous act of Congress for the removal of causes of a civil nature at law or in equity from State courts to the Circuit Courts of the United States, and all requiring the matter in dispute, exclusive of costs, to exceed the sum or value of five hundred dollars. (a.) Subdivision First. — This subdivision, corresponding to the first part of section twelve of the Judiciary Act of 1789 (1 U. S. Stat, at Large, 73) , provides for the removal of a suit from a State court in two classes of cases. The first is " when the suit is against an alien," without any specification of the party by whom the suit is brought. The second is when the suit " is by a citizen of the State wherein it is brought and against a citizen of another State," and is hence a controversy " between citizens of different States." The second and third sections of the Act of March 3d, 1875, provide for the removal of suits from State courts when the con- troversy is " between citizens of different States," or " between citizens of a State and foreign States, citizens or subjects." Ex- Judge Dillon, in his " Removal of Causes," 3d ed. p. 28, remarks : " It would seem that subdivision one of section 639, Revised Statutes (12th section of the Judiciary Act), is practically repealed by reason of being merged in the more enlarged right given by the Act of 1875. If, however, a case should arise which could be removed under this provision, but which could not be removed under the Act of 1875, the former would be held to be still sub- sisting." Judge Blatchford, in The La Mothe Manuf. Co. v. The Na- tional TubeWorTcs Co. 15 Blatch. 432, said: "The better opinion is that such provision in subdivision one of sec. 639 was super- seded and repealed by the Act of 1875." Judge Ballard, in CooTce v. Ford, 4- Cent. Law. Jour. 560, held that the provisions of the Act of 1875 are inconsistent " with subdivision one of sec. 639, that each covers precisely the same ground, and that both cannot 34 530 REMOVAL OF CAUSES TO CIRCUIT COURTS. stand." Substantially the same view was taken in Oirardey v. Moore, 3 "Woods, 397, and in The Zinc Co. v. Trotter, 17 Amer. Law Eep. (1ST. S.) 376. There would seem to be no doubt that the case of a suit, " by a citizen of the State wherein it is brought and against a citizen of another State," is fully provided for in the second and third sec- tions of the Act of 1875, relating to a controversy between citizens of different States, and hence that the removal of such a suit is to be made in accordance with the provisions of this act, and not those of subdivision one of section 639. How is it with the other case mentioned in the same sub- division, that is, " when the suit is against an alien ? " The Act of 1 875 provides for the removal of a suit when the controversy is "between citizens of a State and foreign states, citizens, or subjects." If a citizen of a State of the Union and a foreign state, or a citizen of a State and a citizen of a foreign state, be the parties to the suit in a State court, then, under this provision, the suit may be removed. But if a State of the Union and an alien or citizen or subject of a foreign state, be the parties to the suit, then there is no provision for its removal. If, for example, a State of the Union, as it may, sues an alien in its own court, then the Act of 1875 does not provide for the removal of that suit to a Circuit Court of the United States by either party. Precisely such a case was presented in The State of Texas v. Lewis et al. 12 Fed. Rep. 1. The State of Texas brought a suit in its own court against the defendants who were aliens, and took the requisite steps for the removal of the suit to the proper Cir- cuit Court. The question, on a motion to remand the suit to the State court, arose whether the first subdivision of section 639 of the Revised Statutes, relating to removal " when the suit is against an alien," was not applicable to the case, and, if so, whether this part of the subdivision was not still in force. Judge McCormick, the district judge who held the Circuit Court, answered this question in the affirmative. He held that the words " when the suit is against an alien," were broad enough to cover the case before the court, and that the court had jurisdic- tion thereof, and on this ground refused to remand the suit to the State court. It did not follow, as he claimed, because neither the Constitution nor any act of Congress had authorized a State to sue in'the Circuit Court, " that when a suit is properly brought in THE ACT OF MARCH 3d, 1875. 531 a State court, having unquestioned jurisdiction, by a State against an alien, the alien cannot, under section G39, Revised Statutes, remove the cause to the Circuit Court." He treated the provision in section 639 as still operative, and as authorizing a removal for ■which there was no provision in the Act of 1875. The motion to remand the suit in this case was, at the sugges- tion of the district judge, re-argued before Judge Pardee, the •circuit judge, who concurred with Judge McCormick, and denied the motion. The doctrine laid down by Judge Pardee was as follows : 1. That the original jurisdiction, given by the Constitu- tion to the Supreme Court in cases where a State is a party, " does not preclude Congress from conferring jurisdiction upon the Cir- cuit Courts in cases brought by a State against an alien," and that ■" by section 639 of the Revised Statutes, in terms and effect pro- viding for the removal of such cases from the State courts, Con- gress has conferred such jurisdiction in removal cases." 2. That *'' section 639 of the Revised Statutes is not repealed by the Act ■of March 3d, 1875, except by merger," and that "a case which ■could have been removed under the former provision,- but could not under the latter act, may still be removed." {The State v. Lewis, 14 Fed. Rep. 65.) This particular clause of section 639, not coming within the provisions of the Act of 1875, and providing for a removal not provided for by the act, and hence not in conflict with the act, is, according to this ruling, to be regarded as still in force. The other clause of the first subdivision relating to a suit in a State court " by a citizen of the State wherein it is brought and against a citizen of another State," is evidently merged in and superseded by the provisions of the Act of 1 875, relating to the removal of suits " between citizens of different States." The latter provision covers all the ground occupied by the former, and, being the later act, is of course the rule on the subject. {b.) Subdivision Second. — This subdivision, corresponding to the Act of July 27th, 1866 (14 U. S. Stat, at Large, 306) relates to the removal of a suit from a State court " when the suit is against an alien and a citizen of the State wherein it is brought, or is by a citizen of such State against a citizen of the same and a citizen of another State." Ex-Judge Dillon, in his " Removal of Causes," 3d edit. p. 29, thinks that " the better view probably is, that the Act of 1866 is not repealed by the Act of 1875." Judge 532 REMOVAL OF CAUSES TO CIRCUIT COURTS. Blatchford, in Wormser v. Dahlman, 16 Blatch. 319, held that this subdivision is not repealed by tbe Act of 1875 ; and to the- same effect was the opinion of Mr. Justice Bradley, in Girardey v. Moore, 3 Woods, 397. In Whitehouse v. The Continental Fire Ins. Co. 2 Fed. Rep. 498, Judge Butler held the same doctrine. {Ex parte Grimball, 8 Cent. Law Jour. 151 ; and Board v. Kans. & Pac. R. R. Co. 4 Dill. 277.) All these authorities, however, are overruled by the opinion of the Supreme Court of the United States in Hyde v. Ituble, 14 Otto, 407. Chief Justice Waite, in stating the opinion of the court, said : " The second clause of sect. 639 of the Revised Statutes was, as we think, repealed by the Act of 1875." So r also, in King v. Cornell, 16 Otto, 395, the Chief Justice said : "It follows that the whole of the second subdivision of section 639* was repealed by the Act of 1875." (c.) Subdivision Third. — This subdivision, founded on the Act of March 2d, 1867 (14 U. S. Stat, at Large, 558), relates to the removal of a suit from a State court when it "is between a citizen of the State in which it is brought and a citizen of another State," in which case the latter citizen, whether plaintiff or defendant, is authorized to remove the suit by filing his petition in the State court as provided ; and also filing an affidavit " stating that he has reason to believe and does believe that, from prejudice or local influence, he will not be able to obtain justice in such State court." Chief Justice Waite, referring, in The Bible Society v. Grove, 11 Otto, 610, to this subdivision, said : " The Act of March 3d, 1 875 (18 Stat. 470), has not changed this provision of the Revised Statutes." Judge Ballard held this view in Cooke v. Ford, 4 Cent. Law Jour. 560. The same view was taken in Whitehouse v. The Continental Fire Ins. Co. 2 Fed. Rep. 498 ; in Johnson v. Johnson, 13 Fed. Rep. 193 ; in Hobby v. Allison, 13 Fed. Rep. 401 ; and in Dennis v. Alachua, 3 "Woods, 683. (2.) Section 640 of the Revised Statutes. — This section, corre- sponding to section second of the Act of July 27th, 1868 (15 U. S. Stat, at Large, 226), relates to the removal of suits from State courts against corporations organized under any law of the United States, not including banking associations, or against any member thereof as such member, and provides for a removal on the ground THE ACT OF MARCH 3d, 1875. 533 that the defendant in any such suit claims a defense arising under the Constitution, or a law or treaty of the United States. In Kain v. Tex. and Pac. R. R. Go. 3 Cent. Law Jour. 1 2, and in My v. The North Pac. R. R. Go. 36 Leg. Int. 164, it was held that this section is not repealed hy the Act of 1875. The section applies to " any suit " of the character described, while the Act of 1875 applies only where the matter in dispute, exclu- sive of costs, exceeds the sum or value of five hundred dollars This shows that the latter does not comprehend or supersede the former. (3.) Section 641 of the Revised Statutes. — This section, repro- ducing portions of acts of Congress in 1863. 1866 and 1870, re- lates to the removal of civil suits or criminal prosecutions com- menced in State courts against persons denied any right secured to them by any law of the United States, or unable to enforce such right in State tribunals, or against officers, civil or military, for acts done or omitted under the authority of such law. The Act of 1875, qualified and limited by a jurisdictional sum as to the matter in dispute, and having no reference to criminal prose- cutions in State courts, evidently does not affect this section one way or the other. The Supreme Court, at the October term of 1S79, had occasion, in Virginia v. Rives, 10 Otto, 313, to con- sider and explain this section, and treated it as still in force. The same was true in Neal v. Delaware, 13 Otto, 370. (4.) Section 643 of the Revised Statutes. — This section, repro- ducing parts of acts of Congress in 1833, 1866 and 1871, relates to the removal of civil suits or criminal prosecutions commenced in State courts against revenue officers of the United States, or against officers acting under the authority of Federal registration and election laws. The provisions of this section were, in Ten- nessee v. Davis, 10 Otto, 257, considered by the Supreme Court at the October term, 1879, and treated as both constitutional and •operative. The Act of 1875, limited by a jurisdictional sum, and confined exclusively to suits of a civil nature, manifestly has no relation to the provisions of this section. ( Venable v. Richards, 1 Hughes, 326.) In Venable v. Richards, 15 Otto, 636, 638, Mr. Justice Har- lan said : " "We are of opinion that effect will be given to the in- tention of Congress by holding, as we now do, that sect. 643 of 534 REMOVAL OF CAUSES TO CIRCUIT COURTS. the Revised Statutes, not being in conflict with the Act of 1875, is in full force as to all cases embraced by its terms ; and, conse- quently, that the act, so far as it embraces suits arising under the laws of the United States, does not preclude a removal of a suit of the class defined and in tbe mode prescribed in that section." This settles the question as to the continued operative force of the section. (5.) Section 644 of the Revised Statutes. — This section, corre- sponding to the Act of March 30th, 1872 (17 U. S. Stat, at Large, 44), relates to the removal of a personal action commenced in a State court by an alien against a citizen of a State who is, or, at the time the alleged action accrued, was, a civil officer of the United States, being a non-resident in the State where the juris- diction was obtained on the part of the State court by personal service, and provides for the removal of such suit into the proper Circuit Court of the United States. Such suits are not simply suits between citizens and aliens, but also suits between aliens and civil officers of the United States ; and it is for the latter reason that provision is made for their removal in the cases specified. They are not comprehended in any provision of the Act of 1875 ; and there is nothing in this section that is in conflict with the act. The conclusion, therefore, is that this section remains in force. (6.) Section 647 of the Revised Statutes. — This section, corre- sponding to the latter part of the twelfth section of the Judiciary Act of 1789 (1 U. S. Stat, at Large, 73), provides for the removal of suits between citizens of the same State claiming lands under grants of different States, when the matter in dispute exceeds, ex- clusive of costs, the sum or value of five hundred dollars. The latter part of section third of the Act of 1875 relates to the same- subject, and being the later act, and making several changes in the method of removal, has undoubtedly superseded and repealed sec- tion 647 of the Revised Statutes. The result reached by this examination is that the first and second subdivisions of section 639 of the Revised Statutes, except " when the suit is against an alien," and is brought by a State in a State court, and section 647 of these Statutes have been repealed by the Act of 1875, and that all the other provisions of these Stat- utes which define the cases in which suits may be removed from State courts into the Circuit Courts of the United States, still re- THE ACT OF MARCH Sd, 1875. 535 main in force, and hence that these cases are removable in accord- ance therewith. The Act of 1875 has, however, enlarged, not only the original civil jurisdiction of the Circuit Courts, but also their civil jurisdic- tion by the removal of suits from State courts. It provides, as had not been done by any previous legislation, for such removals where the controversy in a State court arises under the Constitu- tion, or a law, or treaty of the United States, or where the United States shall be plaintiff or petitioner, or where there shall be a • controversy between citizens of a State and foreign states. The proper view, then, of the Act of 1875, is that it is in part a repeal of and substitute for previous acts of Congress, and in part supplementary to such acts, on the subject of the removal of causes from State courts. All cases coming within its provisions, wheth- er included in prior legislation or not, are to be governed by it. Cases provided for by the Revised Statutes, but not included in this act, are to be governed by these Statutes, just as they would have been if the act had never been passed. The whole law on the subject is to be found in this act, and in such parts of the Revised Statutes, relating to the same subject, as have not been superseded or repealed by the act. The acts of January 29th, 1880, of February 4th, 1880, and of June 11th, 1880, having reference respectively to the States of Georgia, Ohio, and Tennessee, so far as they relate to the removal of causes, simply designate the Circuit Courts in particular di- visions of these States to which suits shall be removed, but do not otherwise change the law, and hence need no special notice. (21 U. S. Stat, at Large, 63, 64, 176.) CHAPTER III. REMOVAL OF CAUSES FROM STATE COURTS TO THE SUPREME COURT. The constitutional authority of Congress to extend the appellate jurisdiction of the Supreme Court to a review of the judgments and decrees of State courts, in cases there arising and coming within the judicial power of the United States, as defined in the Constitution, was considered in the first chapter of this Part. The result of that inquiry was that such authority, not expressly, but by necessary implication, is given to Congress. The peculiarity of the jurisdiction, when thus exercised, con- sists in the fact that it operates upon the judgments and decrees of courts not organized under the authority of the United States, but organized under the authority of the several States, which States, except as limited by the Constitution, are distinct and inde- pendent sovereignties enacting and executing their own laws. The jurisdiction is, in many respects, analogous to that exercised by the Supreme Court over the judgments and decrees of the inferior courts of the United States ; but, in several respects, it is different in the laws which regulate it. It has, for this reason, been thought best to treat of it in a dis- tinct chapter, and to give the whole law on the subject, though some parts of that law, being equally applicable to the appellate review, by the Supreme Court, of the judgments and decrees of the inferior Federal courts, have already been presented in chapter third of Part III. This, though involving some repetition, will make the present chapter complete by itself, without referring to any other chapter. SECTION I. GRANT OF THE JURISDICTION. 1. The Judiciary Act of 1789.— The first legislation of Con- gress on the subject is found in the twenty-fifth section of the GRANT OF THE JURISDICTION. 537 Judiciary Act of 1789. (1 U. S. Stat, at Large, 73.) The cases in which the Supreme Court might exercise the revisory power ; the State courts and the judgments and decrees to which the power should be applicable; the manner of exercising the power; the limitation imposed upon the power — such, in general terms, are the contents of the section that formed the only law on the subject from 1789 to 1867, covering a period of about seventy-eight years. Under the law, as thus established, a large number of cases was considered and determined by the Supreme Court. 2. The Act of February 5th, 1867. (14 U. S. Stat, at Large, 385.) — The second section of this act, though not changing the substance or general character of the twenty-fifth section of the Judiciary Act of 1789, was designed to be amendatory thereof. It omits some of the words of the original section, and adds others not found therein. The difference between the two sections raised the question whether the later section had repealed the earlier one ; and this question, in Murdoch v. The City of Memphis, 20 Wall. 590, was answered in the affirmative. Mr. Justice Miller, in stating the opinion of the court in this case, said : " The result of this reason- ing is that the twenty-fifth section of the Act of 1789 is technically repealed, and that the second section of the Act of 1867 has taken its place. What of the statute of 1789 is embraced in that of 1867 is of course the law now, and has been ever since it was first made so. What is changed or modified is the law as thus changed or modified. That which is omitted ceased to have any effect from the day that the substituted statute was approved." While this is true, the changes are not such as materially to affect the jurisdiction of the Supreme Court conferred by the original Act of 1789. The two acts in this respect are substan- tially identical ; and hence the general principles of construction, settled under the one, are equally applicable under the other. 3. The Revised Statutes. — Section 709 of the Kevised Stat- utes continues and re-enacts, almost in exact words, with the omis- sion of the last sentence, the substance of the second section of the Act of February 5th, 1867. This section was amended by the Act of February 18th, 1875 (18 U. S. Stat, at Large, 318), by striking out some of its words ; and, as thus amended, it reads as follows : 538 REMOVAL OF CAUSES TO THE SUPREME COURT. " A final judgment or decree in any suit in the highest court of a State, in which a decision in the suit could be had, where is drawn in question the validity of a treaty or statute of, or an au- thority exercised under, the United States, and the decision is- against their validity ; or where is drawn in question the validity of a statute of or an authority exercised under any State, on the ground of their being repugnant to the Constitution, treaties, or laws of the United States, and the decision is in favor of their va- lidity ; or where any title, right, privilege, or immunity is claimed under the Constitution, or any treaty or statute of, or commission held or authority exercised under, the United States, and the de- cision is against the title, right, privilege, or immunity specially set up or claimed, by either party, under such Constitution, treaty,, statute, commission, or authority, may be re-examined and reversed or affirmed in the Supreme Court upon a writ of error. The writ shall have the same effect as if the judgment or decree complained of had been rendered or passed in a court of the United States." " The Supreme Court may reverse, modify, or affirm the judg- ment or decree of such State court, and may, at their discretion, award execution, or remand the same to the court from which it was removed by the writ." 4. Precedence in Criminal Cases. — Section 710 of the Revised Statutes, reproducing a part of the sixty-ninth section of the Act of July 13th, 1866 (14 U. S. Stat, at Large, 172), provides as fol- lows : " Cases on writ of error, to revise the judgment of a State court in any criminal case, shall have precedence, on the docket of the Supreme Court, of all cases to which the Government of the United States is not a party, excepting only such cases as the court,, in its discretion, may decide to be of public importance." SECTION II. REVISORY POWERS OF THE COURT. 1. Revisory Powers — The powers of the Supreme Court over the judgment or decree of a State court, properly before it for re- examination, are expressly declared to be reversal, modification, or affirmance, with the right, in its discretion^ to award execution, or remand the case with instructions to the court from which it was removed. Eeversal nullifies the judgment or decree of the State court al- together ; modification changes it in some respects ; and, in either REVISORY POWERS OF THE COURT. 539 event, the Supreme Court may remand the case, with instructions which the lower court is bound to follow. Affirmance leaves the ' judgment or decree to stand just as it would have stood if there had been no review by the Supreme Court. If the case be dis- missed simply for the want of jurisdiction, then no decision is rendered upon its merits. The Supreme Court, in section 701 of the Revised Statutes, is expressly forbidden, in causes removed thereto from the Circuit and District Courts of the United States, to issue execution, and required to send a special mandate to the inferior court to award execution thereupon. The inferior court is bound in all cases to give effect to this mandate. (Sibbald v. The United States, 12 Pet. 488 ; West v. Brashear, 14 Pet. 51 ; and Durant v. The Es- sex Company, 11 Otto, 555.) But, in causes transferred to the Supreme Court from State courts, the court, in addition to its power of reversal, modification, or affirmance, may, in its discretion, award execution, or remand the same to these courts, with instructions as to further proceed- ings. The usual practice of the court, when reversing the judg- ments or decrees of State courts, is to remand the cases with such instructions. 2. Disobedience of the State Courts. — If, however, a State court, for any reason, refuses to obey the instructions of the Su- preme Court, the party aggrieved by such a proceeding may sue out a writ of error based upon the proceeding ; and the Supreme Court, in addition to reversing the action of the lower court, may award execution, and thus, by its own direct action, carry its judg- ment or decree into effect. The State court cannot, by disobedi- ence, evade or nullify the jurisdiction of the Supreme Court. The Court of Appeals of Virginia refused to obey the mandate of the Supreme Court in a case brought before the latter by writ of error ; and this refusal, which denied the validity of the twenty- fifth section of the Judiciary Act of 1789, being regarded as a final judgment in its relation to the rights of the parties, was made the basis of a second writ of error addressed to the same court. {Martin v. Hunter's Lessee, 1 Wheat. 304, 354.) In Magwire v. Tyler, 8 Wall. 650, the Supreme Court reversed the decree of the Supreme Court of Missouri, and remanded the case, " with directions to affirm the decree of the St. Louis Court 540 REMOVAL OF CAUSES TO THE SUPREME COURT. of Common Pleas." This decision was subsequently so modified that the cause was directed to " be remanded for further proceed- ings in conformity to the opinion of the court." The Supreme* Court of Missouri did not follow the instruction given by the Supreme Court of the United States, and, on the ground that there was, under the laws and practice of the State, a plain and adequate remedy at law, and that equity consequently had no jurisdiction of the case made by the petition, dismissed the peti- tion. To this decree the complainant sued out a second writ of error ; and, in Tyler v. Magwire, 17 Wall. 253, the Supreme Court not only reversed the decree of the Missouri court dismissing the petition, but proceeded to award execution by ordering a writ of possession in favor of the complainant to be issued by the clerk of the court, directed to the marshal thereof. 3. The Rule of the Court. — It is a settled rule of practice in the Supreme Court, that whatever has been decided by that court, upon a writ of error or appeal, will not be re-examined upon a subsequent writ of error or appeal in the same suit. If another writ of error be sued out in reference to the case, it must relate to the proceedings in the court below taken subsequently to the de- cision and order of the Supreme Court, and not to the matter already determined by that decision. This principle applies alike to the judgments and decrees of inferior Federal courts and to those of State courts. (Himely v. Hose, 5 Cranch, 314 ; Martin v. Hunter's Lessee, 1 Wheat. 304; Browden v. MoArther, 12 Wheat. 53 ; Sibbald v. The United States, 12 Pet. 492 ; Coming v. The Troy Iron & Nail Co. 15 How." 466 ; Sizer v. Maney, 16 How. 103 ; Roberts v. Cooper, 20 How. 481 ; Tyler v. Magwire, 17 Wall. 283 ; The Supervisors v. Kennicott, 4 Otto, 498 ; and Clark v. Keith, 16 Otto, 464.) This rule, however, does not preclude a second writ of error to review and reverse the proceedings of a State court not in con- formity with the order of the Supreme Court in a case decided upon a previous writ ; and if the court in such a case shall so de- termine, it may award execution, as was done in Tyler v. Magwire, 17 Wall. 283. It was held in this case that under the Judiciary Act, as well as under that of February 5th, 1867, amendatory of it, the Supreme Court may, upon a second writ of error, proceed to a final judgment and award execution. It was the design of THE WRIT OF ERROR. 541 Congress that the judgments or decrees of the Supreme Court, in cases removed thereto from State courts, should have the same force and effect as in cases removed thereto from inferior Federal courts, and to arm the court with ample power to carry its own judgments or decrees into effect, independently of State courts, even against their insubordination or refusal to obey the order of the court. SECTION III. THE WRIT OF EEEOE. 1. Mode of Exercising the Jurisdiction. — The mode of exercising the jurisdiction conferred upon the Supreme Court, as expressly stated in the statute, is by writ of error, without regard to the question whether the cause be one at law or in equity. The statute makes no provision for such exercise by any other mode ; and, hence, no appeal can be taken from the final decision of a State court to the Supreme Court of the United States, what- ever may be the character of the cause. Mr. Justice Catron, in Verden v. Golemwn, 22 How. 192, said : " No appeal can be taken from the final decision of a State court of last resort, under the twenty-fifth section of the Judiciary Act, to the Supreme Court of the United States. A writ of error alone can bring up the cause." The record in this case showed that an appeal had been taken to the Supreme Court of the United States from the Supreme Court of Indiana ; and on this ground the case was dismissed, without any inquiry into its merits. 2. Nature of the Writ. — The writ of error is an order of the Supreme Court, formally issued in the name of the President of the United States, and addressed to the judge or judges of the State court, whose judgment or decree is to be examined, or to the State court that may have the legal custody of the record in the case. This writ specifies the following things : 1. The suit and the parties thereto, in which and with respect to whom the final judgment or decree, complained of, was rendered, together with the date thereof. 2. The court of the State by which the suit was decided, and whose judgment or decree is to be reviewed, it 542 REMOVAL OF CAUSES TO THE SUPREME COURT. being the highest court of law or equity of the State in which a decision in the suit could be had. 3. The Federal question or questions arising in that suit and determined by the State court. 4. The character of the decision with reference to such question or questions. The mandatory part of the writ directs the judge or judges of the State court to transmit, under the seal of the court, together with the writ itself, the record and proceedings in the case, to the Supreme Court of the United States at Washington, and at the time specified in the writ, to the end that the Supreme Court may examine the same, and consider and determine as law and justice may require in respect to the errors alleged. 3. Authentication of the Writ. — Section 911 of the Eevised Statutes provides that all writs and processes issuing from the Supreme Court of the United States shall bear teste of the Chief Justice of the United States, or, when that office is vacant, of the associate justice next in precedence. The writ of error to a State court must, consequently, bear this teste, and must also be signed by the clerk of the Supreme Court, or by the clerk of the Circuit Court of the United States for the district specified therein, and in either case it must be attested by the seal of the court. In Buel v. Van Ness, 8 Wheat. 312, it was held that "the writ of error may be issued by the clerk of the Circuit Court in the State to whose court it is directed." The fact that it is thus issued does not make it any less a writ of error from and by the authority of the Supreme Court. In Mussina v. Cavazos, 6 Wall. 355, it was held that the writ of error by which a case is transferred from a Circuit Court to the Supreme Court, is the writ of the latter court, although it may be issued by the Circuit Court, and this principle equally applies when the writ is directed to a State court. 4. The Effect of the Writ.— Chief Justice Marshall, in Co- hens v. Virginia, 6 Wheat. 264, 410, said that " the effect of the writ is to bring the record into court, and submit the judgment of the inferior tribunal to re-examination. It does not in any manner act upon the parties. It acts only upon the record. It removes the record into the supervising tribunal," and thus sup- plies the necessary condition of the supervision. It is not, as he THE WRIT OF ERROR. 543 held in this case, the institution of a new suit, but simply a pro- cess provided for reviewing the final judgment or decree, in a suit already commenced and determined by the court rendering such judgment or decree. The writ of error does not compel the parties to come into the appellate court. It is not a summons to either of them to appear in court. What, and all that, it calls for is the record of the case in which the judgment or decree, complained of, was rendered ; and this demand is addressed to the court rendering the judgment or decree, or the court having the legal custody of the record. If the parties, one or both, fail to appear when the cause is called in the Supreme Court, they do so at their peril. No process will be issued to compel their appearance. (See Eules 16, 17, and 18 of the Supreme Court.) 5. The Eight to the Writ. — The appellate jurisdiction of the Supreme Court over the final judgments or decrees of the inferior Federal courts is, with certain specified exceptions, conditioned by a given sum or value in dispute, which must exceed the amount named in the statute, and is also limited to " civil cases," except when the judges, holding a Circuit Court in a criminal case, cer- tify to the Supreme Court that they were divided in opinion in relation to some question or questions arising in the ease. It is otherwise with writs of error from the Supreme Court to State courts. The right to sue out such a writ does not depend at all upon the sum or value in dispute between the parties, or the amount awarded by the judgment or decree of the State court, or upon the question whether the case was a civil suit or a criminal prosecution. Neither the right to the writ nor the jurisdiction of the Supreme Court is in any way affected by these circumstances. Both depend upon the presence of the conditions specified in the statute, of which these circumstances form no part. In Buel v. Van Ness, 8 Wheat. 312, 322, it was held that " the amount of the judgment is not material under the twenty- fifth section of the Judiciary Act." Chief Justice Chase, in Twitchell v. The Commonwealth, 7 Wall. 321, said : " Neither the Act of 1789, nor the Act of 1867, which in some particulars su- persedes and replaces the Act of 1789, makes any distinction be- tween civil and criminal cases in respect to the revision of the judgments of State courts by this court ; nor are we aware that it 544 REMOVAL OF CAUSES TO THE SUPREME COURT. has ever been contended that any such distinction exists. Cer- tainly none has been recognized here. No objection, therefore, to the allowance of the writ asked for by the petition can arise from the circumstance that the judgment, which we are asked to re- view, was rendered in a criminal case." 6. Service and Return.— On this point the Digest of Mr. Justice Curtis (p. 598), formerly one of the justices of the Su- preme Court, contains the following statement : " The plaintiff in error should deposit in the office of the court where the record of the judgment or decree remains, the original writ of error, the citation, with its service indorsed thereon, and the bond, together with a copy of each. The clerk of the court to which the writ of error is directed, makes his re- turn by transmitting a true copy of the record without references aliunde, and of all the papers, exhibits, depositions, and other proceedings, authenticated by the seal of the court and the signa- ture of the clerk. The original writ of error, the citation, with its service indorsed thereon, and a copy of the bond, are appended to the return. A copy of the writ of error, of the citation, and the original bond, remain in the office of the clerk making the re- turn." " The entry of the writ in the Supreme Court, and the pro- ceedings thereon, are the same as in writs of error and appeals from the Circuit Courts of the United States, and reference may be had to the directions hereafter given, as to those proceedings." The Eighth Rule of the Supreme Court provides as follows : 1. That " the clerk of the court to which the writ of error shall be directed, may make return of the same by transmitting a true copy of the record, and of all proceedings in the cause under his hand and the seal of the court." 2. That " in all cases brought to this court, by writ of error or appeal, to review any judgment or decree, the clerk of the court, by which such judgment or decree was rendered, shall annex to and transmit with the record a copy of the opinion or opinions filed in the case." 3. That "no cause will hereafter be heard until a complete record, containing in itself, without references aliunde, all the papers, exhibits, depositions and other proceedings which are necessary to the hearing in this- court, shall be filed." 4. That, " in cases where final judgment is rendered more than thirty days before the first day of the next term of this court, the writ of error and citation, if taken before, must be returnable on the first day of said term, and be served THE "WRIT OF ERROR. 545 before that day ; but in eases where the judgment is rendered less than thirty days before the first day, the writ of error and citation may be made returnable on the third Monday of the said term, and be served before tbat day." 7. The Parties. — The parties before the Supreme Court, upon a writ of error, are known as the plaintiff in error, and the defend- ant in error — the former suing out the writ and seeking to have the judgment or decree of the State court corrected in respect to alleged errors, and the latter seeking to have it affirmed. This designation does not necessarily indicate their relation in the court below, since the plaintiff and defendant in that court have an equal right to sue out a writ of error, and either may be the plaintiff or the defendant in error in the Supreme Court. The general rule of law is that writs of error can be sued out only by persons, individual or corporate, who have the legal ca- pacity to sue, and only by such persons as were parties to the suit in the court below, and were consequently interested in and af- fected by the judgment or decree rendered, or by the legal repre- sentatives of such persons. Chief Justice Taney, in Payne v. Mies, 20 How. 219, said : " "Writs of error to remove the judgment of an inferior tribu- nal to this court are, under the acts of Congress, governed by the principles and usages of the common law. And it is very well settled in all common law courts, that no one can bring up, as a plaintiff in a writ of error, the judgment of an inferior court to a superior one, unless he was a party to the judgment in the court below ; nor can any one be made a defendant in the writ of error, who was not a party to the judgment in the inferior court." It was held in Simpson v. Greeley, 20 "Wall. 152, that " all the parties against whom a joint judgment or decree is rendered must join in the writ of error or appeal, or it will be dismissed, except sufficient cause for the non-joinder is shown." ( Williams v. Bank, 11 Wheat. 414 ; and Masterson v. Rerndon, 10 Wall. 416.) In O'Dowd v. Russell, 14 Wall. 402, it was held that " a notice by one of three defendants to his co-defendants, of his intention to prosecute a writ of error, and a refusal by them to co-operate, is equivalent to the old proceeding of summons and severance, and the one defendant can take his writ accordingly." In The Railroad v. Johnson, 15 Wall. 8, it was held that 35 546 REMOVAL OP CAUSES TO THE SUPREME COURT. " when a mortgagee on a bill of foreclosure filed in an inferior State court against his mortgagor and certain trustees holding col- lateral securities, obtains in that court a decree against the mort- gagor personally and against the trustees as trustees, and the mort- gagor alone appeals to the Supreme Court of the State, to which, on affirmance of the decree, he alone takes a writ of error here,, it is no ground to dismiss the writ that the trustees are not joined with him as plaintiffs in error in this court." The fifteenth Eule of the Supreme Court makes provision that, if either party dies, pending a writ of error, the case may be proceeded with by making the proper legal representative of the deceased a party on the record, who, for the purposes of the writ, in effect takes his place. SECTION IV. THE RECORD. 1. Indispensable to Jurisdiction. — What is wanted, and, by the writ of error, sought to be obtained and brought to the Supreme Court, as already remarked, is an authenticated copy of the record of the State court that rendered the judgment or decree com- plained of, as the means of enabling the former court to re-examine such judgment or decree. This record forms the basis, in connec- tion with the law, upon which the Supreme Court proceeds in the exercise of its revisory jurisdiction, and in the light of which it determines whether it has any jurisdiction in the case. The first question in every case is the one of jurisdiction ; and if the record does not show a case within the jurisdiction of the court, as conferred by law, then the writ of error, either upon motion or without motion, will be dismissed without taking up the merits at all. If, however, the record shows jurisdiction under the provisions of law, and the case has been properly brought be- fore the court, then, at the proper time, the court hears the parties upon the merits of the case as presented by the record, and passes judgment upon the question or questions decided by the State court to which such jurisdiction attaches. The record of the court below in the case is, for both purposes, indispensable. THE RECORD. 547 2. Contents of the Record.— Mr. Benjamin E. Curtis makes the following statement on this point : " In acting on the writ of ercor, the Supreme Court has before it only the record of the State court. They have nothing before them except the record, which includes * * * the pleadings and the verdict and judgment, if it is a case at law, and if there has been a trial by jury, the bill of exceptions, if any exceptions were taken showing what points were made at the trial, and what the rulings of the court below were upon them ; and that bill of exceptions becomes, when properly taken and allowed, a part of the record. In equity, they have the bill, the answer, the replica- tion, the evidence, and the decree, or decrees if there were more than one. These are the records in law and in equity, and they are before the Supreme Court of the United States, from the State court, for them to examine, and thus determine whether any one of those questions has arisen, which is described in this twenty- fifth section." (Jurisdiction, &c, of the Courts of the United States, pp. 35, 36.) The reference, here made, is to the twenty-fifth section of the Judiciary Act of 1789, and to the Federal questions specified in that section. The record, whether the suit be one at law or in eq- uity, must, in its contents, show the presence of one or more of these questions, and also the decision of the State court touching the same. The Supreme Court examines these contents, in order to ascertain whether a Federal question arose in the case and was decided as specified in the statute, and if so decided, then whether the decision is correct. 3. The Record the Sole Guide. — The Supreme Court, for the purpose of examining the case, depends solely upon the record brought up from the State court. Anything that is not properly a part of this record will not be considered. Chief Justice Marshall, in Fisher's Lessee v. CockreU, 5 Fet. 248, 254, remarked : " In cases at common law, the course of the court has been uniform not to consider any paper as part of the record which is not made so by the pleadings, or by some opinion of the court referring to it. _ This rule is common to all courts ex- ercising appellate jurisdiction according to the course of the com- mon law. The appellate court cannot know what evidence was given to the jury, unless it be spread on the record in proper legal manner. The unauthorized certificate of the clerk that a docu- ment was read, or any evidence given, to the jury, cannot make 548 REMOVAL OF CAUSES TO THE SUPREME COURT. that document or that evidence a part of the record, so as to bring it to the cognizance of this court." The court, in this case, re- fused to regard such a certificate as presenting any matter which it was its province to consider. It was no part of the record of the case. In Reetfs Lessee v. Marsh, 13 Pet. 153, 155, Chief Justice Taney said : " Can we receive the certificate of the clerk, that certain papers were offered in evidence, and the statement of coun- sel upon a motion for a new trial, that certain instructions were refused by the court, as sufficient evidence of the facts they set forth, and proceed upon that ground to take jurisdiction and re- vise the judgment of the State court ? We think not." Keferring to the case of Fisher's Lessee v. Cockrell, supra, he added : " The doctrine in that case is entirely correct." In Williams v. Norris, 12 "Wheat. 117, it was held that the written opinion of a State court filed among the papers, is not a part of the record, and cannot be examined under the twenty-fifth section of the Judiciary Act, to ascertain the questions decided, and also that an order made by a court of a State, after the re- moval of the record by a writ of error, not by way of amend- ment, but introducing new matter, cannot be deemed a part of the record. This ruling was approvingly referred to in Hector v. Ashley, 6 Wall. 142 ; and in Gibson v. Chouteau, 8 Wall. 314. In Lnglee v. Ooolidge, 2 "Wheat. 363, the following was the ruling of the court : " No writ of error lies to the highest court of law or equity of a State, under the twenty-fifth section of the Judiciary Act of 1789, unless there is something apparent on the record, bringing the case within the appellate jurisdiction of the court. The report of the judge who tries the cause at nisi prius, containing a statement of the facts, is not to be considered as a part of the record. The judgment being rendered upon a gen- eral verdict, and the report being mere matter in pais to regulate the discretion of the court as to the propriety of granting a new trial, the writ of error, in such a case, will be dismissed." The rule to which the Supreme Court has uniformly adhered is that the record of the State court, and nothing else, must be its guide in determining whether it has jurisdiction, and, if this fails to present a case coming within the statute, to dismiss the case for want of jurisdiction. THE RECORD. 549 4. Particularity of Statement. — As to the degree of particu- larity with which the record of the State court must, in order to give jurisdiction to the Supreme Court, specify the matter on which that jurisdiction depends, the following cases show the doc- trine of the court as stated at different times : In Lawler v. "Walker, 14 How. 149, the record of the Su- preme Court of Ohio, including therein the certificate of the court, which by the court was ordered to be made a part of the record, showed that the validity of the statutes of the State of Ohio was drawn in question, and that the plaintiffs in error claimed that these statutes were in violation of the Constitution of the United States, and that the statutes were declared to be valid, as against the objection alleged. The Supreme Court dismissed the writ of error on the ground that, on the basis of such a record, it had no jurisdiction. Mr. Justice Wayne, in stating the opinion of the court, said : " We cannot find in the record, nor can it be inferred from any part of it, the certificate of the Supreme Court included, which of the statutes of Ohio were declared to be valid, which has been alleged to be in conflict with the Constitution of the United States. * * * The statutes complained of in this case should have been stated. Without that, the court cannot apply them to the subject-matter of litigation, to determine whether or not they violated the Constitution and laws of the United States." In Maxwell v. Newbold, 18 How. 511, the writ of error was dismissed on the ground of an insufficient specification in the rec- ord of the particular clause of the Constitution and of the law under which the alleged right was claimed in the court below. Chief Justice Taney, referring to the only part of the record which set up this point, said : " The language of that is too general and indefinite to come within the provisions of the act of Congress, or the decisions of this court. It alleges that the charge of the court was against, and in conflict with, the Constitution and laws of the United States. But what right did he claim under the Constitution of the United States which was denied him by the State court ? Under what clause of the Constitution did he make his claim ? And what right did he claim under an act of Congress? And under what act, in the wide range of our statutes, did he claim it ? The record does not show. * * * This case cannot be distinguished from the case of Lawler v. Walker, 14 How. 149." Essentially the same doctrine was stated in Farnley v. Towle, 550 REMOVAL OF CAUSES TO THE SUPREME COURT. 1 Black, 350, and in Hoyt v. Thompson's Executors, 1 Black, 518. The writ of error, in both of these cases, was dismissed on the ground of insufficient specification of jurisdictional matter in the record. Mr. Justice Miller, in stating the opinion of the court in The Bridge Proprietors v. The Hoboken Co. 1 "Wall. 116, 142, said : " It is objected, however, by the defendants, that the pleadings do not, in words, say that the statute is void because it conflicts with the Constitution of the United States, and do not point out the special clause of the Constitution supposed to render the act invalid. It would be a new rule of pleading, and one altogether superfluous, to require a party to set out specifically the provision of the Constitution of the United States on which he relies for the action of the court in the protection of his rights. If the courts of this country, and especially this court, can be supposed to take judicial notice of anything without pleading it specially, it is the Constitution of the United States. And if the plaintiff and defendant, in their pleadings, make a case which necessarily comes within the provisions of that instrument, this court surely can recognize the fact without requiring the pleader to say in words : ' This paragraph of the Constitution is the one involved in this case.' " In Furman v. Nichol, 8 Wall. 44, Mr. Justice Davis, in stat- ing the opinion of the court, said : " It is urged that the particular provision of the Constitution, which the plaintiffs in error say has been violated in application to their case, should be contained in the pleadings ; but this is in no case necessary. If the record shows, either by express averment or by clear and necessary intendment, that the constitutional pro- vision did arise, and that the court below could not have reached the conclusion and judgment it did reach, without applying it to the case in hand, then the jurisdiction of the court attaches." In Messenger v. Mason, 10 Wall. 507, the objection in the court below was that " the law under which the proceedings were had was unconstitutional and void." The Supreme Court of Iowa overruled this objection, and in the record certified " that, on the final hearing, the validity of the partition law of Iowa Terri- tory, approved January 4th, 1839, was drawn in question, on the ground that the same was in conflict with the Ordinance of 1787, the Constitution of the United States, the treaties and laws thereof," and " that the objections thereto were overruled, and the statute held to be valid." Mr. Justice Nelson, in stating the THE RECORD. 551 opinion of the court in the light of this record, said that " the constitutional objection taken'in the present case is too general to be noticed on a writ of error under this twenty-fifth section " of the Judiciary Act. The court, in granting the motion for a dis- missal of the writ of error on the showing of this record, referred approvingly to the cases of Maxwell v. Newbold, of Zawler v. Walker, and Hoyt v. Thompson's Executors, above cited. In Murray v. Charleston, 6 Otto, 432, 441, Mr. Justice Strong said : " The jurisdiction of this court over the judgments of the highest courts of the States is not to be avoided by the mere ab- sence of express reference to some provision of the Constitution. * * * The form and mode in which the Federal question was raised in the State court is of minor importance, if, in fact, it was raised and decided." In Edwards v. Elliott, et al. 21 Wall. 532, it was held that an assignment of error in the highest court of a State, to the decision of an inferior State court, that the latter had decided a particular State statute " valid and constitutional," and a judgment entry by the latter court that the statute was not " in any respect repug- nant to the Constitution of the United States," is not specific enough to give jurisdiction to the Supreme Court of the United States under section 709 of the Kevised Statutes, there being nothing else anywhere in the record to show to which provision of the Constitution of the United States the statute was alleged to be repugnant. Mr. Justice Clifford, in delivering the opinion of the court in this case, referred to Messenger v. Mason, 10 "Wall. 507, to The Bridge Proprietors v. The Hobolcen Co. 1 Wall. 116, to Eurman v. Niohol, 8 Wall. 44, and to Maxwell v. Newbold, 18 How. 511. These cases, when compared together, do not present precisely the same doctrine as to the particularity with which the jurisdic- tional matter must be shown by the record. It is insisted, in some of them, that the particular clause of the Constitution or of the statute, as the case may be, that is the basis of the Federal ques- tion, must be referred to in the record, and this, in others, was held to be not necessary, if a Federal question was involved and decided, and the Supreme Court can ascertain this fact from the record. The safe rule in the pleadings, which form a part of the record, is to act upon the former of these theories, especially as in none of the cases is any objection made to this course. 552 REMOVAL OF CAUSES TO THE SUPREME COURT. 5. Authentication of the Record. — The record sent up from the State court, in obedience to the writ of error, must be authen- ticated. Paragraphs first and third of the eighth Kule of the Supreme Court provide that " the clerk of the court to which any writ of error shall be directed may make return of the same by transmitting a true copy of the record, and of all proceedings in the cause, under his hand and the seal of the court," and that "no- cause will hereafter be heard until a complete record, containing in itself, without references aliunde, all the papers, exhibits, dep- ositions, and other proceedings which are necessary to the hearing in this court, shall be filed." In Martin v. Hunter's Lessee, 1 Wheat. 304, it was held that " the return of a copy of the record of a State court, duly certified by the clerk, and annexed to the writ of error, is a sufficient re- turn." In Worcester v. Georgia, 6 Pet. 515, it was held that " a return to a writ of error from this court to a State court, duly cer- tified by the clerk of the court which pronounced the judgment, and to which the writ is addressed, authenticated by the seal of the court, is in conformity to law, and brings the record regularly before this court." In Oelston v. Hoyt, 3 Wheat. 246, the court held that the writ of error may be addressed to any State court that has the legal custody of the record, whether or not the court that rendered the judgment or decree complained of ; and in Webster v. JReid, 11 How. 437, 457, the court said : " If the record contain the judg- ment duly certified, oyer which we have jurisdiction, it is not es- sential that it should be certified by the court rendering the judg- ment." The proper certification of the record by the clerk of the court that has the legal custody of the record, is sufficient to bring it before the Supreme Court. SECTION V. THE PETITION FOE THE WRIT. The proceeding for a writ of error, in order to obtain the rec- ord of the State court, and remove the case to the Supreme Court . is that of a petition, as the first step in the case. This petition is signed by the party or his attorney, and addressed to the judge ap- ALLOWANCE OF THE WRIT. 553 plied to and authorized to allow the writ, who, if allowing it, in- dorses the allowance thereon. 1. Recitals of the Petition. — The petition contains the fol- lowing statement of facts : 1. The judgment or decree com- plained of, with the date thereof. 2. The State court that ren- dered the judgment or decree, it being the highest court of the State in which a decision in the suit could be had. 3. The parties, plaintiff and defendant, in the case. 4. The ground or grounds, on which the writ of error is claimed, with a reference to the record and proceedings in the suit as showing that error has been committed to the damage of the petitioner. 5. The fact that the judgment or decree in the case is final. These materials, placed in proper form, so as to be descriptive of the suit, the parties, the State court, the judgment or decree, and the errors complained of, and thus present a synopsis of the case, as claimed by the petitioner, constitute the recitals in a peti- tion for a writ of error. The party making the petition takes the position of plaintiff in error, whether he was plaintiff or defend- ant in the State court ; and it makes no difference which he was, for the purpose of suing out a writ of error. 2. Prayer of the Petition. — The petition concludes with a prayer for the allowance of a writ of error and such other process as will enable the petitioner to obtain a review of the case, and a correction of the errors alleged, by the Supreme Court of the United States. SECTION YI. ALLOWANCE OF THE WEIT. 1. The Rule of the Supreme Court. — The rule of practice adopted by the Supreme Court is that when writs of error are is- sued from that court to State courts, they must be previously allowed. In Twitchell v. The Commonwealth, 7 Wall. 321, Chief Justice Chase said: "But writs of error to State courts have never been allowed, as of right. It has always been the practice to submit the record of the State court to a judge of this court, whose duty has been to ascertain upon examination whether any 554 REMOVAL OF CAUSES TO THE SUPREME COURT. question, cognizable here upon appeal, was made and decided in the proper State court, and whether the case upon the face of the record will justify the allowance of the writ. In general, the al- lowance will be made where the decision appears to have involved a question within our appellate jurisdiction ; but refusal to allow "the writ is the proper course when no such question appears to have been made or decided." In Gleason v. Florida, 9 Wall. 779, Chief Justice Chase quoted the above language and then proceeded to say : " And this may now be considered as the settled construction of the Judiciary Act on this subject. The foundation of the jurisdiction of this court over the judgments of State courts is the writ of error ; and no writ of error to a State court can issue without allowance, either by the proper judge of the State court, or by a judge of this court, after examination as just stated." The words in italics were not in the opinion given in Twitchell v. The Commonwealth, to which reference was made. The same ruling was adopted in The Hartford Fire Ins. Co. v. Van Duzer, 9 Wall. 784, in which the writ was dismissed for the want of the proper allowance. Chief Justice Chase said in this case " that such allowance was indispensable to the jurisdic- tion of the court in error to revise the judgment of the highest court of a State," and referred to the case of Gleason v. Florida, supra, decided at the same term of the court. The writ of error, in this case, was dismissed because it did not appear on the record that there had been any allowance of the writ. 2. The Legislation of Congress. — The twenty-fifth section of the Judiciary Act of 1789 (1 U. S. Stat, at Large, 73), provides for the review by the Supreme Court of the judgments or decrees of State courts, " the citation being signed by the Chief Justice, or Judge, or Chancellor of the court rendering or passing the judgment or decree complained of, or by a justice of the Supreme Court of the United States." As to the signing of the citation, precisely the same words are used in the Act of February 5th, 1867. (14 U. S. Stat, at Large, 385.) This statute makes no direct mention of the allowance of a writ of error to State courts ; yet the construction of the Supreme Court has been that the writ must be allowed by the judge or jus- tice authorized to sign the citation to the adverse party, and that ALLOWANCE OF THE WRIT. 555 if not so allowed, no jurisdiction can be had upon the writ of error. The case of Bartemeyer v. Iowa, 14 "Wall. 26, contains a very definite statement of the doctrine of the court on this point. The Supreme Court of Iowa was composed of a Chief Justice and three associate justices ; and the writ of error in this case was al- lowed by one of these justices. On this ground it was dismissed by the Supreme Court of the United States. Mr. Justice Miller, in delivering the opinion of the court, said : " In this class of cases the court has been in the habit of exam- ining the record to see if it has jurisdiction whether the question is raised by counsel or not ; and the case before us we find our- selves compelled to dismiss, because there is no proper allowance of the writ of error." " "Writs of error to the Circuit Court, under the twenty-second section of the Judiciary Act, issue as a matter of course, and can be obtained from the clerk of the Circuit Court, and when filed in his office by the party, are duly served. But writs of error to the State courts can only issue when one of the questions mentioned in the twenty-fifth section of that act was decided by the court to which the writ is directed ; and, in order that there may be some security that such a question was decided in the case, the statute re- quires that the citation must be signed by the chief justice, or judge, or chancellor of the court rendering or passing the judg- ment or decree complained of, or by a justice of the Supreme Court of the United States. It has been the settled doctrine of this court that a writ of error to a State court must be allowed by one of the judges above mentioned, or it will be dismissed for want of jurisdiction ; and the case before us raises the question whether the writ has been allowed by a judge authorized to do so." " The Supreme Court of Iowa, which rendered the judgment complained of, is composed of a chief justice and three associate justices." " "We are of opinion that the act of Congress requires that, when there is a court so composed, the writ of error can only be allowed by the chief justice of that court, or by a justice of the Supreme Court of the United States. In case of a writ to a court composed of a single judge or chancellor, the writ may be allowed by that judge or chancellor, or by a justice of the Supreme Court of the United States." The act of Congress here referred to, which subsequently be- came part of section 999 of the Kevised Statutes, is the twenty- fifth section of the Judiciary Act of 1789, providing for the sign- ing of the citation, and, according to the construction of the Su- 556 REMOVAL OF CAUSES TO THE SUPREME COURT. prenie Court, for the allowance of write of error to State courts. The allowance, in the case of Bartemeyer v. Iowa, swpra, was plainly not in conformity with the act as thus construed ; and for this reason the writ was dismissed. SECTION VII. THE CITATION . 1. Revised Statutes.— Section 997 of the Eevised Statutes provides that " there shall be annexed to and returned with any writ of error for the removal of a cause, at the day and place therein mentioned, an authentic transcript of the record, an as- signment of errors, and a prayer for reversal, with a citation to the adverse party." This applies to all writs of error, as well to those issued from the Supreme Court to State courts as to those issued by that court to inferior Federal courts. Section 999 of these Statutes provides that when the writ of error " is issued by the Supreme Court to a State court, the cita- tion shall be signed by the Chief Justice, Judge, or Chancellor of such court, rendering the judgment or passing the decree com- plained of, or by a justice of the Supreme Court of the United States, and the adverse party shall have at least thirty days* notice." 2. The Nature of the Citation. — This citation is simply a formal notice to the adverse party, signed in the way prescribed, and informing him that a writ of error has been allowed and filed in the office of the clerk of the State court, in the case in which the party obtaining the writ is plaintiff in error, and he defendant in error, and admonishing him to appear at the Supreme Court, at the time and place specified, to show cause, if any there be, why the judgment or decree referred to in the writ should not be cor- rected. It has the character of a notice to the adverse party, and does not possess the nature of a compulsory process. Chief Justice Marshall, in Cohens v. Virginia, 6 Wheat. 264,. 411, said : " It is simply notice to the opposite party that the record has been transferred into another court, where he may appear, or de- THE CITATION. 55V cline to appear, as his judgment or inclination may determine. As the party who has obtained a judgment is out of court, and may, therefore, not know that his cause is removed, common justice requires that notice of the fact should be given him. But this notice is not a suit, nor has it the effect of process. If the party does not choose to appear, he cannot be brought into court, nor is his failure to appear considered as a default. Judgment cannot be given against him for his non-appearance, but the judgment is to be re-examined, and reversed or affirmed, as if the party had appeared and argued his cause." The writ of error makes the adverse party a defendant in error, and the citation simply advises him of this fact. Whether he shall appear or not before the Supreme Court is for him to deter- mine. 3. Judicial Construction. — The general principles of law in relation to citations are equally applicable in writs of error to State courts. And as to those principles, the following cases may be referred to as a guide : In Bacon v. Hart, 1 Black, 38, it was held that service of citation on a writ of error, where the defendant in error is dead, cannot be legally made on the widow or executor of his attorney, who is also dead ; that it is not sufficient that it was served on the law partner of the deceased attorney, unless the name of such partner appeared of record as attorney in the ca6e ; and that the Supreme Court does not take judicial notice of law partnerships in practice in the courts. The service of the citation must be on the party himself, or on his attorney or counsel of record. Mr. Justice Clifford, in stating the opinion of the court in Bigler v. Waller, 12 Wall. 142, said : " Notice is required by law, and where none is given and the failure to comply with the re- quirement is not waived, the appeal or writ of error must be dis- missed ; but the defect may be waived in various ways, as by consent of parties, or the fraud of the other party. Service of the citation may be made upon the attorney of record of the proper party. Unquestionably, the attorney of record may also waive service, and acknowledge notice on the citation, as in that behalf he rep- resents the party." (Grosvenor v. Danforth, 16 Mass. 74; and Adams v. Robinson, 1 Pickering, 461.) In Innerarity v. Byrne, 5 How. 295, Mr. Justice McLean, in answer to a motion to dismiss the writ of error because no citation 558 REMOVAL OP CAUSES TO THE SUPREME COURT. appeared in the record, said: " The citation was not necessarily a part of the record, it forming no part of the proceedings of the court below. The presumption is that one was issued when the writ of error was allowed, and it may be proved aliunde." The motion to dismiss was overruled. In Wilson v. Daniel, 3 Dall. 401, it was held that "the original citation to the defendant in error, signed by the judge, must be returned." In Palmer v. Downer, 7 Wall. 541, it was held that a district judge has no authority to sign a citation upon a writ of error to a State court, and that when the citation has been thus signed, the writ of error will be dismissed on motion. In Kail v. Wetmore and Same v. Douglas, 6 Wall. 451, the writs of error were dismissed because the citations did not corre- spond with the writs in their description of persons. In the one case there were but three plaintiffs in error, while the citation presented four ; and in the other the names in the citation were different from those in the writ of error. The doctrine, however, of Peale v. Phijpps, 8 How. 256, is that mere misnomers in a cita- tion, not calculated to mislead the adverse party, and not mislead- ing him, are not a sufficient reason for dismissing a writ of error. In Davenport v. Fletcher, 16 How. 142, the writ of error was dis- missed for three reasons, one of which was the fact that the citation was issued to a person who was not a party on the record. The law requires that " the adverse party shall have at least thirty days' notice," which is the prescribed period when writs of error are issued to Circuit Courts. The meaning is the same in both classes of writs ; and in The National Bank v. The Bank of Commerce, 9 Otto, 608, Chief Justice Waite said that " the mean- ing of the statute is not that the citation shall be served thirty days before the return-day, but that the defendant in error shall have at least thirty days' notice before he can be compelled to go to a hearing." The omission to serve a citation upon the defendant in error or his attorney of record is fatal to the writ, unless the adverse party, without a motion to dismiss the writ for this reason at the first term, waives the right by entering a general appearance in the appellate court. (Phillips' Practice, 1878, pp. 116, 117; Vil- labolos v. The United States, 6 How. 81 ; The United States v. Yates, 6 How. 605 ; and Carroll v. Dorsey, 20 How. 204.) THE SECURITY. 559 These cases, for the most part, relate to citations in appeals from, or writs of error to, the inferior Federal courts ; yet they illustrate the rules of practice in writs of error to State courts as it respects the citation, with the single exception of the signing thereof. The citation in the latter cases must be signed as re- quired by statute. SECTION VIII. THE 8EOUEITT. 1. The Statutory Requirement. — Section 1000 of the Ke- vised Statutes provides as follows : "Every justice or judge signing a citation on any writ of error, shall, except in cases brought up by the United States or by direc- tion of any Department of the Government, take good and suffi- cient security that the plaintiff in error or the appellant shall prosecute his writ or appeal to effect, and, if he fail to make his plea good, shall answer all damages and costs, where the writ is a supersedeas and stays execution, or all costs only where it is not a supersedeas as aforesaid." This statute applies to all cases in which a justice or judge signs a citation or any writ of error, with the exception expressly stated ; and it, hence, covers the case of a writ of error sued out from the Supreme Court to a State Court, as well as the cases in which the writ is directed to the inferior Federal courts. 2. The Assignment of the Duty. — The performance of the duty specified is assigned to "the justice or judge," who signs the " citation on any writ of error ; " and when the writ of error is from the Supreme Court to a State court, then this duty devolves upon the justice of the former court who signs the citation, or upon the Chief Justice, or Judge, or Chancellor of the latter court, if signing the citation, the court being the one that rendered the judgment or passed the decree complained of. The duty cannot be delegated to the clerk of the court, but must be performed by the justice or judge himself. {O'Reilly v. Edrington, 6 Otto, 724 ; and The National Banh v. Omaha, 6 Otto, 737.) The time for the performance of this duty is not expressly 560 REMOVAL OF CAUSES TO THE SUPREME COURT. stated. The natural import of the language is that the security should be taken at the time of signing the citation as " part of the same transaction." Yet, according to repeated decisions of the Supreme Court, a case will not be dismissed if the security be given within a reasonable time thereafter, or if the party gives the security within a time fixed by the court. [The Dos Sermanos, 10 "Wheat. 306, 311 ; Catlett v. Brodie, 9 Wheat. 553 ; Adams v. Law, 16 How. 144 ; Anson, Bangs & Go. v. The Blue Ridge R. R. Co. 23 How. 1 ; Brobst v. Brdbst, 2 "Wall. 96 ; and Seymour v.. Freer, 5 Wall. 822.) The presumption of law, until the contrary appears, is that every justice or judge who signs a citation, has complied with the statute in respect to taking security. His omission to do so does not necessarily render the writ of error void, since the statute is merely directory ; and if any party is prejudiced thereby, the Su- preme Court can grant him summary relief, by imposing such terms on the other party as, under all the circumstances, may be legal and proper. {Martin v. Hunter's Lessee, 1 Wheat. 304, 361 ; Davidson v. Lanier, 4 Wall. 447 ; and Seymour v. Freer, 5 Wall. 822.) 3. Sufficiency of the Security. — The undertaking of the party who sues out a writ of error, as required by statute, is that he will prosecute the writ to effect, and that, if he fails to make good his plea, he will answer all damages and costs if the writ operates as a supersedeas, or all costs only when it does not thus operate. A bond sufficient for these purposes meets all the re- quirements of the statute for the protection of the opposite party or parties as appearing in the record. {Gay v. Parpart, 11 Otto, 391.) The precise form in which the security shall be given, is not expressly stated ; yet, by the usual practice of courts, it is a bond with proper sureties, and must be given in favor of the opposite party or parties. {Bigler v. Waller, 12 Wall. 142, 149.) The sufficiency of the bond for the purpose in question is, in the first instance, to be determined by the justice or judge who signs the citation ; yet this point is cognizable in the Supreme Court, and the court may increase or diminish the amount of the bond as circumstances and justice may require. This doctrine was laid down in The Rubier Company v. Goodyeovr, 6 Wall. 153. SUPERSEDEAS. 561 If, after the security has be,en accepted, the circumstances of the case, or of the parties, or of the sureties upon the bond, have so changed that the security which was good and sufficient at the time it was taken does not continue to be so, the Supreme Court may, upon a proper application, so adjudge and order as justice may require. But, upon the facts as existing at the time the security was taken, the action of the justice or judge signing the citation and accepting the bond, within the statute and the rules of practice adopted for his guidance, will be deemed final. {Jerome v. Mc Carter, 21 Wall. 17; and Martin v. The Hazard Powder Co. 3 Otto, 302.) The above cases mainly relate to appeals to, or writs of error from, the Supreme Court to the inferior Federal courts ; yet they illustrate the principles of law applicable to the security to be taken in writs of error from the Supreme Court to the State courts, except as it may be otherwise specially provided. Section 1003 of the Revised Statutes expressly declares that " writs of er- ror from the Supreme Court to a State court, in cases author- ized by law, shall be issued in the same manner, and shall have the same effect, as if the judgment or decree complained of had been rendered or passed in a court of the United States." SECTION IX. SUPERSEDEAS. 1. The Judiciary Act of 1789. — Congress, in the twenty- third section of the Judiciary Act of 1789 (1 U. S. Stat, at Large, 73), provided " that a writ of error as aforesaid shall be a superse- deas and stay execution in cases only where the writ of error is served, by a copy thereof being lodged for the adverse party in the clerk's office where the record remains, within ten days, Sun- days exclusive, after rendering the judgment or passing the decree complained of," and further provided that "until the expiration of which term of ten days, executions shall not issue in any case where a writ of error may be a supersedeas." The writ of error " as aforesaid," here directly referred to, is the one specified in the immediately preceding section, and issued either by a Circuit Court to a District Court, or by the Supreme 36 562 REMOVAL OF CAUSES TO THE SUPREME COURT. Court to a Circuit Court. The provision of the statute is that this writ shall be a supersedeas and stay execution, by a compliance with the condition stated, and not without such compliance, and that, in any case in which the writ may be a supersedeas, execu- tion shall not issue until ten days after rendering the judgment or passing the decree complained of. The twenty-fifth section of the same act provided that, in the . cases specified, the final judgment or decree of the highest court of a State in which a decision in the suit could be had, might be re-examined and reversed or affirmed in the Supreme Court, upon a writ of error, " in the same manner, and under the same regula- tions," and with " the same effect," "as if the judgment or decree complained of had been rendered or passed in a Circuit Court." This, in respect to a supersedeas, adopts the rule prescribed there- for when the writ of error is issued from the Supreme Court to a Circuit Court, and makes it applicable when the writ is issued from the Supreme Court to a State court. It was hence necessary, under the Judiciary Act of 1789, that the petitioner for a writ of error to a State court, if desiring to have it operate as a super- sedeas, should comply with this rule within the time specified, and give the requisite security as prescribed by law. (Curtis's Digest, p. 596.) The effect of a supersedeas is to arrest or stay further proceed- ings in the subordinate court ; and this is the effect of a writ of error when the statutory conditions, which make it a supersedeas, have been complied with. {The Slaughter- House Cases, 10 Wall. 273.) It is to be observed that the writ of error, under the Judiciary Act, was to be a supersedeas " only " in the case and under the conditions specified ; and hence it was necessary to comply with each provision of the, statute on this subject. All the required conditions must be supplied. (Hogan v. Boss, 11 How. 294 ; The Railroad Company v. Harris, 7 Wall. 574 ; and Sage v. The Central R. R. Co. of Iowa, 3 Otto, 412, 417.) Chief Justice Waite, in the last of these cases, remarked : " A supersedeas is a statutory remedy. It is obtained by a strict compliance with all the required conditions, none of which can be dispensed with." In Green v. Van BusMrk, 3 Wall. 448, it was held that " the ten days " mentioned in the twenty-third section of the Judiciary Act, " run from the day when judgment is entered in the court SUPERSEDEAS. 563 where the record remains," and that " when judgment is given in the highest court of a State on appeal or writ of error from an in- ferior one, and, on affirmance, the record is returned to such infe- rior court with the order to enter judgment there, they run from the day when judgment is so there entered." 2. The Act of June 1st, 1872.— Congress, by the Act of June 1st, 1872 (17 U. S. Stat, at Large, 196), provided as follows, in the eleventh section of the act : " That any party or person desiring to have any judgment, decree, or order of any District or Circuit Court reviewed on writ of error or appeal, and to stay proceedings thereon during the pendency of such writ of error or appeal, may give the security required by law therefor within sixty days after the rendition of such judgment, decree or order, or afterward with the permission of a justice or judge of the said appellate court." This section did not repeal the provision of the twenty-fifth section of the Judiciary Act of 1789, which declared that the judgments and decrees of the highest State courts might be re- viewed by the Supreme Court, on writ of error, "in the same manner and under the same regulations," and with "the same effect," as if the judgments or decrees had been rendered by Cir- cuit Courts. "What the section did was to extend the time from ten to sixty days, or even afterward, with the permission of the designated justice or judge, within which the requisite security might be given, in order to stay proceedings in the lower court during the pendency of the writ of error or appeal ; and this ex- tension of time, though expressly referring to the judgments and decrees of Circuit and District Courts, was, according to the un- repealed provisions of the twenty-fifth section of the Judiciary Act of 1789, equally applicable to the judgments and decrees of State courts when reviewed by the Supreme Court. The effect of the section, therefore, in the latter cases, as well as in the former, was to give the period named, instead of the former one of ten days, within which a party, desiring by a supersedeas to stay pro- ceedings in the lower court, could do so by furnishing the requisite security. The section does not, in express terms, say anything about the time within which a copy of the writ of error must be lodged for the adverse party in the clerk's office where the record remains, 564 REMOVAL OF CAUSES TO THE SUPREME COURT. in order to make the writ operate as a supersedeas. It speaks simply of giving the requisite security within the time specified. The construction, however, placed upon this statute by the Su- preme Court, in The Telegraph Company v. Eyser, 19 Wall. 419, was that not only the supersedeas bond or security might be exe- cuted within sixty days after the rendition of the judgment com- plained of, but also that the copy of the writ of error might, in the manner previously prescribed by law, be served upon the ad- verse party, either before or at the time of filing the supersedeas bond in the clerk's office where the record remains. The court held that the section, by obvious implication, included this service of a copy of the writ, as well as the supersedeas bond ; and the same construction equally applies when the writ of error is issued from the Supreme Court to a State court. 3. The Revised Statutes. — Section 1007 of the Kevised Stat- utes, based upon the twenty-third section of the Judiciary Act of 1789, and the eleventh section of the Act of June 1st, 1872, above referred to, being amended by the Act of February 18th, 1875 (18 IT. S. Stat, at Large, 318), provides as follows : " In any case where a writ of error may be a supersedeas, the defendant may obtain such supersedeas by serving the writ of error, by lodging a copy thereof for the adverse party in the clerk's office where the record remains within sixty days, Sundays exclusive, after the rendering of the judgment complained of, and §'.ving the security required by law on the issuing of the citation, ut if he desires to stay process on the judgment, he may, having served his writ of error as aforesaid, give the security required by law within sixty days after the rendition of such judgment, or afterward with the permission of the justice or judge of the ap- pellate court. And in such cases where a writ oi error may be a supersedeas, executions shall not issue until the expiration of ten days." The last sentence of this section was, in Doyle v. Wisconsin, 4 Otto, 50, held to refer only to the judgments of the courts of the United States. Chief Justice Waite, in stating the opinion of the court, said " that it was not the intention of Congress, under the Act of 1789, to interfere at all with the practice of the State courts as to executions upon their judgments, until a supersedeas was actually perfected, and that the same effect must be given to the corresponding sections of the Kevision." This particular part of SUPERSEDEAS. 565 the section, according to this ruling, has no relation to the judg- ments or decrees of State courts. The two conditions, specified in this statute, of making a writ of error operate as a supersedeas, are the lodgment of a copy of the writ for the adverse party in the clerk's office, and giving the required security, within sixty days after the rendition of the judgment complained of, with the qualification that, if the party has served the writ of error " as aforesaid," he may give the secu- rity either within the sixty days named, or " afterward with the permission of a justice or judge of the appellate court." These conditions must he supplied, or he cannot make the writ of error operate as a supersedeas. Chief Justice Waite, in Kitchen v. Randolph, 3 Otto, 86, 92, after examining the several acts of Congress on the subject, came to the following conclusion : " We are, therefore, of the opinion that, under the law as it now stands, the service of a writ of error or the perfection of the appeal within sixty days, Sundays exclu- sive, after the rendering of the judgment or the passing of the decree complained of, is an indispensable prerequisite to a super- sedeas, and that it is not within the power of a justice or judge of the appellate court to grant a stay of process on the judgment or decree, if this has not been done." It was remarked by the Chief Justice in this case, " that if a writ of error had been served as required in the first paragraph " of the section, " a stay might be had as a matter of right by giving the required security within sixty days, and afterwards, as a matter of favor, if permission could be obtained from the designated jus- tice or judge. Thus prompt action in respect to the writ was required, and indulgence granted only as to the security." The law, as contained in this section of the Revised Statutes, and thus construed, is, with the exception of the last sentence, applicable in writs of error from the Supreme Court to State courts. The reader, by referring to the chapter on the Supreme Court, will find this law more fully explained. (Part III, chap. 3, sect. 8.) 566 REMOVAL OF CAUSES TO THE SUPREME COURT. SECTION X. LIMITATION OF TIME. 1. Writs of Error to State Courts Section 1003 of the Ee- vised Statutes provides that '' writs of error from the Supreme Court to a State court, in cases authorized by law, shall be issued in the same manner, and under the same regulations, and shall have the same effect, as if the judgment or decree complained of had been rendered or passed by a court of the United States." This provision is based on a clause in the twenty-fifth section of the Judiciary Act of 1 789 (1 U. S. Stat, at Large, 73), which was reproduced and continued in the Act of February 5th, 1867. (14 C. S. Stat, at Large, 386.) The twenty-second section of the first of these acts provided that " writs of error shall not be brought but within five years- after rendering or passing the judgment or decree complained of, or in case the person entitled to such writ of error be an infant, feme covert, non compos mentis, or imprisoned, then within five years as aforesaid, exclusive of the time of such disability." Mr. Justice Story, referring in Gelston v. Iloyt, 3 Wheat. 246, 303, to this limitation of time, said : " The Judiciary Act allows the party, who thinks himself aggrieved by the decision of any inferior court, five years within which he may sue out his writ of error, and bring his cause into this court. The same rule applies to judgments and decrees of a State court, in cases within the juris- diction of this court." The provision in the twenty-fifth section of the Judiciary Act made the rule the same in both cases. 2. Change of the Limitation.— Section 1008 of the Eevised Statutes provides as follows : "No judgment, decree, or order of a Circuit or District Court, in any civil action, at law or in equity, shall be reviewed in the Supreme Court, on writ of error or appeal, unless the writ of error is brought, or the appeal is taken, within two years after the entry of such judgment, decree, or order : Provided, That where a party entitled to prosecute a writ of error or to take an appeal, is an infant, insane person, or imprisoned, such writ of error may be prosecuted, or such appeal may be taken, within two years after the judgment, decree, or order, exclusive of the term of such disability." FORMAL CONDITIONS. 567 This section, founded upon the second section of the Act of June 1st, 1872 (17 U. S. Stat, at Large, 196), establishes a shorter limitation of time than that of the Judiciary Act of 1789, fixing two years instead of five. The rule thus established, taken in connection with section 1003 of the Revised Statutes, and with the construction given by Mr. Justice Story in Gelston v. Hoyt, supra, applies to writs of error from the Supreme Court to State courts ; and if so, then, with the qualifications annexed to the rule, these writs of error are subject to the same limitation of time. The change as to the extent of the limitation does not affect its application. In Brooks v. JVorris, 11 How. 204, the following doctrine was adopted as to the date at which a writ of error is deemed to be brought : " A writ of error is not brought until filed in the court to which it is addressed, and whose record is to be removed by it ; and, therefore, though the writ is tested within five years, if it be not filed in the court which rendered the judgment, till after the expiration of that period, it is barred." This was said when five years formed the limitation. The case was a writ of error from the Supreme Court to a State court ; and it was held to be barred because the writ did not come within the time specified by Congress. The limitation now being two years, the writ of error must be filed in the proper State court within this period " after the entry of the judgment or decree complained of ; " and unless a copy of the writ is lodged for the adverse party in the clerk's office, within sixty days, Sundays excepted, after the rendering of such judg- ment or the passing of such decree, the writ will not operate as a supersedeas. {Kitchen v. Randolph, 3 Otto, 86.) SECTION XL FORMAL COOTHTIONS. The statute which gives the Supreme Court jurisdiction over the judgments and decrees of State courts, contains five formal conditions, all of which must be present in each case. These conditions are as follows : 1. The Judgment or Decree. — There must be a judgment or decree to be re-examined. Provision is made in other statutes for 568 REMOVAL OF CAUSES TO THE SUPREME COURT. the transfer of causes, before trial and judgment or decree, from State courts to the Circuit Courts of the United States. Here, however, no jurisdiction is given to the Supreme Court until the cause has been tried, and a judgment or decree actually rendered. This judgment or decree is in every case the direct subject of the appellate review. 2. A State Court. — The judgment or decree must be that of a court existing and acting under the authority of a State, in distinction from a Federal or Territorial court, or a court of the District of Columbia. The jurisdiction conferred by the statute has no relation to any other class of courts. It is assumed that the Supreme Court, in the exercise of this jurisdiction, will take judi- cial knowledge of the States as members of the Union, and, so far as necessary, of the courts organized therein, and existing under their authority. 3. A Suit. — The judgment or decree must be rendered in a " suit." A suit within the meaning of the statute was, in Weston v. The City Council of Charleston, 2 Pet. 449, denned by Chief Justice Marshall as follows : " The term is certainly a very com- prehensive one, and is understood to apply to any proceeding in a court of justice, by which an individual pursues that remedy in a court of justice which the law affords him. The modes of pro- ceeding may be various, but if a right is litigated between parties in a court of justice, the proceeding by which the decision is sought is a suit." The judgment of the State court in this case reversed the order of a lower court granting a writ of prohibition ; and this was held to be a judgment rendered in a " suit," within the meaning of the statute. The judges of the Supreme Court, in Holmes v. Jennison, 14 Pet. 540, though divided in opinion on other points in the case, were, nevertheless, agreed that the refusal of the Supreme Court of Vermont to discharge Holmes on habeas corpus, was a judgment rendered in a suit. Chief Justice Chase, in Twitohdl v. The Commonwealth, 7 Wall. 321, said: "Neither the Act of 1789, nor the Act of 1867, which in some particulars supersedes and replaces the Act of 1789, makes any distinction between civil and criminal cases in respect FORMAL CONDITIONS. 569 to the revision of the judgments of State courts by this court ; nor are we aware that it has ever been contended that any such dis- tinction exists. Certainly none has ever been recognized here." The term "suit" comprehends both classes of cases. It was held in Aldrich v. The ^Etna Company, 8 Wall. 491, that the voluntary agreement of parties to submit a case to a State court for judgment, made under the anthority of State law, with- out any compulsory process or proceeding against the defendant, does not take the case out of the category of a " suit," or impair the jurisdiction of the Supreme Court to review the judgment thereon, provided the other necessary conditions are present. The law in such a case provides for the institution of the suit by the voluntary action of the parties, without any compulsory process. The statute uses the words " any suit," which evidently mean any kind of legal proceeding in a court of justice, whether in law or equity, and whether civil or criminal, that furnishes the occasion for a judgment or decree. The application of the words is not limited or qualified by the amount in dispute. It is enough that the proceeding has resulted in a final judgment or decree by a court of justice. This shows it to be a suit in the sense of the statute. 4. The Highest State Court. — The judgment or decree must be that of "the highest court of a State in which a decision in the suit could be had." This may or may not be absolutely the high- est court of the State. If the court rendering the judgment or decree be the highest that, according to the laws of the State, can take cognizance of the case and determine it, this will meet the condition specified in the statute. It was held, in Downkam v. Alexandria, 9 Wall. 659, that " when the State court in which judgment in a suit is given is the highest court of law or equity in the State in which a decision in that suit can be had, a right of review exists here under the twen- ty-fifth section of the Judiciary Act, if the case be otherwise one for review here, although that court may not be actually the high- est court of law or equity in the State." The same doctrine was stated in Olney v. Arnold, 3 Dall. 308, and in Miller v. Joseph, et al. 17 Wall. 655. It was held, in Gregory v. Mo Veigh, 23 Wall. 294, that " where, by the laws of a State, an appeal can be taken from an inferior 570 REMOVAL OF CAUSES TO THE SUPREME COURT. court of the State to the highest court of the same, only with leave of this latter or of a judge thereof, and that leave has been refused in any particular case in the regular order of proceeding — the refusal not being the subject of appeal to this court — a writ of error, if there be in the case a Federal question, properly lies, under section 709 of the Revised Statutes, to the inferior court, and not to the highest one." The inferior court, in these circum- stances, is the highest court of the State in which a decision in the suit can be had. Ordinarily, the writ of error should be directed to the court that rendered the judgment or decree complained of ; yet, if the record of the case, as may be the fact, is in the custody of another court, the writ may be directed to that court. Mr. Justice Story,, in Oelston v. IToyt, 3 "Wheat. 246, said : " The judgment to be examined must be that of the highest court of the State having cognizance of the case, but the record of that judgment may be brought from any court in which it may be legally deposited, and in which it may be found by the writ." In Webster v. Reid, 11 How. 437, it was held that the "writ of error may be directed to any court which has the custody of the record, and can certify it, though not the court which rendered the judgment, provided no difficulty exists respecting the execution of a mandate from this court." The doctrine stated in Atherton v. Fowler, 1 Otto, 143, is the following : " As the appellate jurisdiction of this court over the State courts is confined to a re-examination of the final judgment or decree in any suit in the highest court of a State in which the decision in the suit could be had, the writ of error sued out here should be sent only to such court, unless the latter, after pronounc- ing judgment, sends its record and judgment, in accordance with the laws and practice of the State, to the inferior court, where they thereafter remain. In such a case the writ may be sent either directly to the latter court, or to the highest court, in order that through its instrumentality the record may be obtained from the inferior court having it in custody or under control." The statute clearly designates the State court whose judgment or decree may be reviewed by the Supreme Court ; but it does not designate the tribunal to which the writ of error shall be directed. The design of this writ is to secure the record of a given case ; and hence, under the ruling and practice of the Supreme Court, it may FORMAL CONDITIONS. 571 be sent to any State court in which the record is to be found, even though it be not the court that rendered the judgment or decree. 5. Final Judgment or Decree. — The judgment or decree, to be reviewed, must be " final." The Supreme Court has had fre- quent occasion to expound this term, and determine what judg- ments and decrees are final in their character. Chief Justice Marshall, in Weston v. The City Council of Charleston, 2 Pet. 449, said: "The word 'final' must be understood in the section under consideration as applying to all judgments %nd decrees which determine, the particular cause." It was held, in this case, that the judgment of the highest court of the State, reversing the order in a writ of prohibition granted by an inferior court, is final, and might be re-examined by the Supreme Court. Chief Justice Waite, in Bostwick v. Brinkerhoff, 16 Otto, 3, said : " The rule is well settled and of long standing, that a judg- ment or decree, to be final within the meaning of that term as used in the acts of Congress giving this court jurisdiction on ap- peals and writs of error, must terminate the litigation between the parties on the merits of the case, so that if there should be an af- firmance here, the court below would have nothing to do but to execute the judgment or decree it had already rendered." (Whit- ing v. The Bank of the United States, 13 Pet. 6 ; Forgay v. Con- rad, 6 How. 201; Craighead v. Wilson, 18 How. 199; Bebee v. Russell, 19 How. 283 ; Bronson v. The Railroad Company, 2 Black, 524 ; Thomson v. Bean, 7 Wall. 342 ; St. Clair County v. Lovingston, 18 Wall. 628 ; Parcels v. Johnson, 20 Wall. 653 ; The Railroad Company v. Swasey, 23 Wall. 405 ; Crosby v. Buchan- an, 23 Wall. 420 ; and The Commissioners v. Lucas, 3 Otto, 108.) " If the judgment is not one which disposes of the whole case on its merits," the Chief Justice continued to say, " it is not final. Consequently, it has been uniformly held that a judgment of re- versal, with leave for further proceedings in the court below, can- not be brought here on writ of error." (Brown v. The Union Bank, 4 How. 465 ; Pejyper v. Dunlap, 5 How. 51 ; Tracy v. Rol- combe, 24 How. 426; Moore v. Robbins, 18 Wall. 588; McComb v. Knox County, 1 Otto, 1 ; Baker v. White, 2 Otto, 176 ; and Davis v. Crouch, 4 Otto, 514.) In Grant v. The Phoenix Insurance Company, 16 Otto, 429, Chief Justice Waite said : " It has also been many times decided 572 REMOVAL OF CAUSES TO THE SUPREME COURT. that a decree of sale in a foreclosure suit, which settles all the rights of the parties and leaves nothing to be done but to make the sale and pay out the proceeds, is a final decree for the purposes of an appeal. {Ray v. Law, 3 Cranch, 179 ; Whiting v. The Bank of the United States, 13 Pet. 6; Bronson v. The Railroad Com- pany, 2 Black, 524; and Green v. Fish, 13 Otto, 518.) In Eanouse v. Martin, 14 How. 23, the judgment of the high- est appellate State court affirming the refusal of a lower court to allow the removal of a cause from that court to a Circuit Court of the United 'States, under the act of Congress providing therefor, was regarded as a final judgment. In O'Dowd v. Russell, 14 Wall. 402, it was held that " a judg- ment in a court of last resort that a judgment against A. (who had been sued for not faithfully discharging the duties of a vendue- master of a city and been held discharged under the Bankrupt Act) be reversed, is a final judgment within the meaning of the Judiciary Act, as is also a judgment in a court of last resort that a judgment in an inferior court, holding B. and C. (the sureties of A. on his bond as vendue-master) liable, be reversed." It was held, in Atherton v. Fowler, 1 Otto, 143, that the judg- , ment of the Supreme Court of California, reversing the judgment of an inferior court, and directing a modification thereof as to the amount of damages, without permitting further proceedings in the court below, if the defendants consented to such modification, is final within the meaning of the act of Congress, if the record shows that such consent was given, and that the writ of error was properly directed to the Supreme Court of the State. The writ of error was, in this case, directed to the Supreme Court of California, and that court furnished a transcript of the record of the court below, which was held to be sufficient. In The Commissioners v. Lucas, 3 Otto, 108, it was held that if, by any direction of a Supreme Court of a State, an entire cause is determined, the decision, when reduced to form and entered in the records of the court, constitutes a final judgment, whatever may be its technical designation, and is subject in a proper case to review by the Supreme Court of the United States. The judg- ment was also held to be final where, upon appeal from an inter- locutory order made by a Circuit Court of Indiana, granting a temporary injunction, the Supreme Court of the State reversed FORMAL CONDITIONS. 573 tlie order and remanded the cause to the lower court, with direc- tion to dismiss the complaint. On the other hand, the judgment of the appellate tribunal reversing that of the court below and remanding the case with directions to award a venire facias de novo, or reversing the judg- ment and remanding the case for such proceedings by the inferior court as law and justice shall require, or merely affirming an inter- locutory order and remanding the case, or dismissing a petition for a removal of a case into a Federal court and remanding the case to the inferior court for further proceedings according to law, is not a final judgment, since it does not in any of these cases finally dispose of and determine the particular cause, but leaves it open for further proceedings. [Houston v. Moore, 3 Wheat. 433 ; Winn v. Jackson, 12 Wheat. 135 ; Pepper v. Dunlap, 5 How. 51 ; Tracy v. Holcombe, 24 How. 426 ; McOornb v. The Commis- sioners, 1 Otto, 1; Moore v. Bobbins, 18 Wall. 588; Davis v. Grouch, 4 Otto, 514; Reddall v. Bryan, 24 How. 421 ; and Kim- loll v. Evans, 3 Otto, 320.) In Rankin v. The State, 11 Wall. 380, it was held that "where, on an indictment for a capital offense, the Supreme Court reverses a judgment of a court below, under such circumstances as that the case must go back for trial on its merits, the judgment is not a final judgment," and cannot be reviewed by the Supreme Court of the United States. These examples illustrate the principle, stated by Chief Justice Marshal], that a judgment or decree which determines the partic- ular cause is final, and that no other judgment or decree is to be deemed such. The final character of the judgment or decree is of course rel- ative to State courts. It is final in the sense that neither of the parties can find in the court rendering it, or in any other court of the State, any further judicial remedy in that suit. This makes the judgment or decree final. It is not certain, until this point has been reached, that the judicial power of the State will not correct any errors that may have been committed, and thus super- sede the necessity of a resort to the Supreme Court of the United States. It was evidently the intention of Congress that the Supreme Court of the United States should not exercise a revisory power over the judgments and decrees of State courts until the judicial 574 REMOVAL OF CAUSES TO THE SUPREME COURT. power of the State in each particular case has been entirely ex- hausted. Hence the judgment or decree must be final, and must also be rendered by the highest court of the State that can take cognizance of the subject. The case, with the other necessary conditions present, is then a proper one for review by the Supreme Court of the United States. SECTION XII. FEDERAL QUESTIONS. The judgment or decree, to be re-examined, must, as to its subject-matter, embrace and determine, in the manner specified, at least one of the Federal questions named in the statute. The statute designates three classes of such questions ; and a case be- longing to some one or more of these classes must be shown by the record, in order to give jurisdiction to the Supreme Court. These classes are as follows : 1. Federal Treaties and Laws. — The first class embraces all cases in which " is drawn in question the validity of a treaty or statute of, or an authority exercised under, the United States, and the decision is against their validity." This language specifies two jurisdictional facts ; and, in order that the Supreme Court may exercise jurisdiction, both must be shown to exist. (1.) The Matter drawn in Question. — The first fact is that "the validity of a treaty or statute of, or an authority exercised under, the United States" was "drawn in question" in the State court, and by that court made the subject of a judicial determination. This supposes that such a question may arise in a State court, and that the court, in the exercise of its judicial power, may decide it. The Constitution declares that " 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 a part of "the supreme law of the land," and that the judges of State courts shall be bound by this law, " anything in the constitution or laws of any State to the contrary notwithstand- ing." These judges are required to take an oath to this effect. The test of " the validity " of a treaty or law of the United States is, of course, the Constitution itself; and the particular FEDERAL QUESTIONS. 575 clause of the statute under consideration supposes that a State court, in deciding a case before it, may subject either to this test, and may decide for or against "the validity " of either, as the case may be. The test of " an authority exercised under the United States " is the Constitution, or a law, or a treaty of the United States, each being a part of "the supreme law of the land." Any ■" authority," in whatever form, that rests upon this basis, has at- tached to it the supremacy of the basis itself. The phrase " drawn in question," as here used, evidently means that " the validity of a treaty or statute of, or an authority exer- cised under, the United States," did arise in the State court in the progress of a case, and was by that court determined, not as an abstract question, but in reference to some right claimed or denied by a party to the suit. The matter was brought to the attention of the court under the claim or denial of an alleged right ; and this called for a decision, and a decision was made. Such being the state of the facts as shown by the record, then one of the stat- utory conditions of appellate review by the Supreme Court is supplied. (2.) The Decision of the State Court. — The other condition, which must be equally shown by the record, is that the decision of the State court was against the validity of the treaty or the statute of, or the authority exercised under, the United States, which was drawn in question. If the record shows this fact, then what is called a " Federal question " was determined in the manner named in the statute ; and to the judgment or decree rendered in the case the statute extends the revisory jurisdiction of the Supreme Court. Either party to the suit may then, by complying with the pro- visions of iaw therefor, cause the suit to be removed to the Su- preme Court for final determination. If, however, the decision of the State court sustained the va- lidity of the Federal treaty, or statute, or authority, drawn in ques- tion, or if there was no decision upon the point, then the Supreme Court, by the express terms of the statute, has no jurisdiction in the case. The mere fact that the specified validity was drawn in question, or that a decision was made in regard to it, is not enough. A decision must not only be made, but it must be against this va- lidity, or the appellate jurisdiction of the Supreme Court cannot be exercised in the case. Congress doubtless might have provided that the decision of 576 REMOVAL OF CAUSES TO THE SUPREME COURT. the State Court, whether for or against the validity named, might be reviewed in the Supreme Court. It, however, has not so pro- vided. Even if the decision of the State court was erroneous in sustaining the validity of the Federal treaty, or statute, or author- ity, that was drawn in question, this will not give any jurisdiction to the Supreme Court. The latter court has nothing to do with such a decision, and no authority to inquire whether it was right or wrong. The jurisdiction is purely statutory ; and the character of the decision made by the State court is just as indispensable to it as the presence of the Federal question decided. 2. State Laws. — The second class embraces those cases in which " is drawn in question the validity of a statute of or an au- thority exercised under any State, on the ground of their being repugnant to the Constitution, treaties, or laws of the United States, and the decision is in favor of their validity." (1.) Meaning of the term " State." — The term " State," as oc- curring in this clause of the statute, means a member of the Union, owing obedience and conformity to the Constitution and laws of the United States. Mr. Justice "Woodbury, in Scott v. Jones, 5 How. 343, said : " The statute must be by a State, a member of the Union and a public body, owing obedience and comformity to its Constitution and laws. This seems to have been settled by this court as to the meaning of the word ' State,' where empowering one to bring an action. It must be a member of the Union. (The Cherokee Nation v. Georgia, 5 Pet. 18.) And it is not enough for it to be an organized political body within the limits of the Union." In The Miners' Bank v. The State of Iowa, 12 How. 1, it was held that the Supreme Court cannot re-examine the decision of a State court that a law of a Territory was not repugnant to the Constitution of the Dnited States, and that the power of review given to the court does not extend to laws passed by a territorial legislature. Mr. Justice Daniel said in this ease : " The alleged wrong which the court are called on to redress, is not an act of State power at all ; it is an act of the territorial government of Iowa, by which was repealed an act of the preceding territorial government of "Wisconsin ; consequently, the decision of the court below asserted no State act or power in opposition to the Consti- tution, treaties, or laws, or to a commission or authority of or FEDERAL QUESTIONS. 577 under the United States, and presents therefore no ground of jurisdiction here, either as derived from the language of the stat- ute, or from any construction heretofore given of it." The doc- trine stated in Scott v. Jones, supra, was approvingly referred to in this case. The provision confines the jurisdiction of the Supreme Court exclusively to State statutes and authority, considered as being drawn in question on the ground specified, and has no reference to the laws of a Territory, or to those of any political body exist- ing within the limits of the Union, but which is not a State, and not a member of the Union. It is assumed that the Supreme ■Court, though not admitting States into the Union, and though having no power to review and change the action of Congress in such admissions, will take judicial notice of the States which, by the proper authority, compose the Union. (2.) The Statute or Authority of a State. — As to what consti- tutes a statute or an authority of a State, within the meaning of the provision under consideration, it was held, in Williams v. Bruffy, 6 Otto, 176, that " any enactment, from whatever source originating, to which the State gives the force of law, is a State statute, within the meaning of the act regulating the appellate jurisdiction of this court over the judgments and decrees of the State courts." Mr. Justice Field, in stating the opinion of the court, took the ground that " acts authorized by the constitution of a State, or by the convention that framed it," if treated and applied as laws, come within the meaning of the statute giving jurisdiction to the Supreme Court. He said in this case that if a State recognizes and gives effect to an act of the Confederate States, such act becomes the act of the State for the purpose of jurisdiction by the Supreme Court. The doctrine of this case was re-affirmed in Ford v. Surget, 7 Otto, 594, the court holding that " an enactment of the Confed- erate States, enforced as a law of one of the States composing that Confederation, is a statute of such State, within the meaning of the act regulating the appellate jurisdiction of this court over the judgments and decrees of the State courts." The imposition of a tax on the bonds of the United States in the hands of individual citizens of the State, though made by a municipal corporation of that State, was, in Weston v. The City 37 578 REMOVAL OF CAUSES TO THE SUPREME COURT. Council of Charleston, 2 Pet. 249, treated as an exercise of au- thority under the State, and hence as coming within the statute that gives to the Supreme Court appellate jurisdiction over the judgments and decrees of State courts. In The Railroad Company v. McClvre, 10 Wall. 511, it was held that the constitution of a State, as well as a statute thereof, comes within the meaning of that clause of the Federal Constitu- tion which ordains that no State shall pass any law impairing the obligation of contracts. A provision made in a State constitution, repugnant to this or any other provision of the Federal Constitution, or to any treaty or law of the United States, would be " a statute " or law of the State in the sense of section 709 of the Revised Stat- utes ; and, the constitutionality of the provision being drawn in question in the proper State court, the Supreme Court would have jurisdiction over the case, if the decision of the State court be the one specified. The general principle is that whatever a State regards and treats as law, and, as such, is applied by its courts, is " a statute " thereof for the purpose of the jurisdiction in question. The au- thority of the State is annexed to it ; and this makes it law, even though it may not have been directly enacted by the legislature. In Bethell v. Demaret, 10 Wall. 537, it was held that " the authority conferred by a State on its Supreme Court to hear and determine cases, is not the kind of authority referred to in the twenty-fifth section of the Judiciary Act, which gives this court a right to review the decisions of the highest State court, where is drawn in question the validity of a statute of or an authority ex- ercised under any State, on the ground of their being repugnant to the constitution, &c, * * * and the decision is in favor of such validity." The phrase "authority under any State" does not refer to the authority of State courts to make decisions. If it did, the result, as remarked by Mr. Justice Nelson in this case, would be that " every judgment of the Supreme Court of a State would be re-examinable under the section." (3.) The Question of Repugnancy. — The question assumed to have arisen in, and to have been decided by, the State court, re- lates to the validity of a statute of or an authority exercised under a State, considered with reference to the repugnancy thereof to the Constitution, treaties, or laws of the United States. FEDERAL QUESTIONS. 579 It is the province of State courts to construe and apply State laws and State constitutions ; and when they simply decide that the former are or are not repugnant to the latter, without decid- ing any question of repugnancy as between such laws and consti- tutions and the Constitution, treaties, or laws of the United States, the Supreme Court has no power to review their decisions. The statute gives no such power. (Jackson v. Lamphire, 3 Pet. 280 ; McBride v. Hoey, 11 Pet. 167 ; Robertson v. Coulter, 16 How. 106 ; Withers v. Buckley, 20 How. 84 ; Adams v. Preston, 22 How. 473 ; Medbery v. The State of Ohio, 24 How. 413 ; Cong- don v. Goodman, 2 Black, 574 ; and The Insurance Company v. The Treasurer, 11 Wall. 204.) In Austin v. The Aldermen, 7 Wall. 694, it was held that " if a State statute, passed in professed exercise of an authority given by Congress to the States to pass such a statute, does not deprive, contrary to the act of Congress, the party to the suit of any right, nor work as to him any effect which the act of Congress forbids, this court cannot, on the case being brought here by such party, on the ground that the State statute violated the act of Congress, declare the State statute void." If the law of the State does not deprive the plaintiff in error of any right, contrary to the law of Congress, the decision of the State court will not be reviewed by the Supreme Court, whatever may be the effect of the law upon the rights of others, who are not parties to the suit. Chief Justice Taney, in The Commonwealth Bank v. Griffith, 14 Pet. 56, referring to this clause of the statute, said that the three following things must concur to give the Supreme Court jurisdiction : "1. The validity of a statute of or an authority ex- ercised under a State must be drawn in question. 2. It must be drawn in question upon the ground that it is repugnant to the Constitution, treaties, or laws of the United States. 3. The de- cision of the State court must be in favor of their validity." If the specified validity was not drawn in question upon the ground named in the statute, then the jurisdiction of the Supreme Court will not attach to the case. ( Walker v. Taylor, 5 How. 64 ; and Sevier v. Haskell, 14 Wall. 12.) The doctrine laid down in The Railroad Company v. Rock, 4 Wall. 177, is the following: 1. That "in a case brought here from a State court, under the twenty-fifth section of the Judic- iary Act, the record must show that some one of the matters men- 580 REMOVAL OF CAUSES TO THE SUPREME COURT. tioned in that section was necessarily decided by the court, not- withstanding there may be a certificate from the presiding judge that such matters were drawn in question." 2. That "if it ap- pears from the record that the State court might have decided the case on some other ground, this court has no jurisdiction." 3. That " this court cannot review the decision of a State court upon the general ground, that that court has declared a contract void which this court thinks to be valid." 4. That " it must be the constitution or some statute of the State which impairs the obli- gation of the contract, or which is otherwise in conflict with the Constitution or laws of the United States, and the decision of the State court must sustain the law of the State in the matter in which this conflict is supposed to exist, or the case for this court does not arise." In Rector v. Ashley, 6 Wall. 142, it was held : 1. That " when a case is brought here by a writ of error to a State court under the twenty-fifth section of the Judiciary Act, this court can only re- view the decision of the State court on the questions mentioned in that section." 2. That, " if in addition to the decision of the State court on such question or questions, that court has rested its judgment on some point in the case not within the purview of that section, and that point is broad enough to sustain the judg- ment, then, although the ruling of the State court might be re- versed on the point which is of Federal cognizance, this court will not entertain jurisdiction of the case." Mr. Justice Bradley, in stating the opinion of the court (Klinger v. The State of Missouri, 13 Wall. 257), said : " The rules which govern the action of this court in cases of this sort are well settled. Where it appears by the record that the judgment of the State court might have been based either upon a law which would raise a question of repugnancy to the Constitu- tion, laws, or treaties of the United States, or upon some other in- dependent ground, and it appears that the court did, in fact, base its judgment on such independent ground, and not on the law raising the Federal question, this court will not take jurisdiction of the case, even though it might think the position of the State court an unsound one. But where it does not appear on which of the two grounds the judgment was based, then, if the independent ground on which it might have been based was a good and valid one, sufficient of itself to sustain the judgment, this court will not as- sume jurisdiction of the case ; but if such independent ground was not a good and valid one, it will be presumed that the State court FEDERAL QUESTIONS. 581 based its judgment on the law raising the Federal question, and this court will then take jurisdiction." The following cases were referred to in support of this state- ment : Magwire v. Tyler, 8 Wall. 650 ; Neilson v. Lagow, 12 How. 110; The Railroad Company v. Rock, 4 Wall. 177: The Railroad Company v. McClure, 10 Wall. 511 ; The Insurance Company v. The Treasurer, 11 Wall. 204 ; Crowell v. Randell, 10 Pet. 368 ; Suydam v. Williamson, '20 How. 427 ; and Wil- liams v. Oliver, 12 How. 123. (4.) The Decision of the State Court. — The decision of the State court, in order to make a case for the appellate review of the Supreme Court, must be in favor of the validity of the statute of or an authority exercised under a State, drawn in question on the ground of an alleged repugnancy to the Constitution, or a treaty or law of the United States. This supposes that the State court actually decided that the State statute or authority, drawn in ques- tion as specified, is not repugnant to the Constitution, or any law or treaty of the United States, and hence that, so far as this ground of objection is concerned, it is to be taken and applied as a rule governing the rights of the parties to the suit pending before the court. Such being the decision made by the State court, and the case being determined on the basis of the State statute or authority in respect to which the Federal question was raised, then, by the express terms of the Federal statute, the judgment or decree rendered may be reviewed in the Supreme Court. The conditions of its appellate jurisdiction are present ; and if the case be proper- ly brought before it, the court will exercise jurisdiction, and de- termine the Federal question that was raised and decided in the court below. If, however, the decision of the State court was against the validity of the State statute or authority, drawn in question on the ground of repugnancy to the Constitution, or a law or treaty of the United States, then, although a Federal question was raised and decided, it was not so decided as to give the Supreme Court jurisdiction. This state of facts being shown by the record, the court will dismiss the case for the want of jurisdiction. It was held in Walker v. Taylor, 5 How. 64, that the Supreme Court has no jurisdiction, under the twenty-fifth section of the 582 REMOVAL OF CAUSES TO THE SUPREME COURT. Judiciary Act of 1789, if the decision of the State court be against the validity of the State law, drawn in question as repugnant to the Constitution of the United States. This case illustrates the uniform ruling of the court in all similar cases. The decision of the State court must be the one specified, or the Supreme Court will have no power to review the case. 3. Federal Titles, Rights, Privileges, and Immunities.— The third class embraces those cases in which " any title, right, privilege, or immunity is claimed under the Constitution, or any treaty or statute of, or commission held or authority exercised under, the United States, and the decision is against the title, right, privilege, or immunity specially set up or claimed, by either party, under such Constitution, treaty, statute, commission, or au- thority." The corresponding clause in the twenty-fifth section of the Judiciary Act of 1789 reads as follows: "Where is drawn in question the construction of any clause of the Constitution, or of a treaty or statute of, or commission held under, the United States, and the decision is against the title, right, privilege, or exemption specially set up or claimed by either party, under such clause of the said Constitution, treaty, statute, or commission." This, in the second section of the Act of February 5th, 1867 (14 U. S. Stat. at Large, 385), was so changed as to read as follows : " "Where any title, right, privilege, or immunity is claimed under the Constitu- tion, or any treaty or statute of, or commission held or authority exercised under, the United States, and the decision is against the title, right, privilege, or immunity specially set up or claimed by either party under such Constitution, treaty, statute, commission, or authority." In this form the clause is reproduced totidem ver- bis in section 709 of the Revised Statutes. The evident design of Congress in the original language, as well as in the revised form, was to embrace every case arising in a State court, and decided as specified, in which the decision denied any title, right, privilege, or immunity claimed, by either party to the suit, on the ground of being a title, right, privilege, or immu- nity secured to such party by the Constitution, or a treaty, or law of the United States, or by any commission held or authority ex- ercised under the Government of the United States. The inten- tion was that such party, whether plaintiff or defendant in the FEDERAL QUESTIONS. 583 State court, should have the means of redress in the appellate jurisdiction of the Supreme Court. The later form of the enact- ment, though not differing essentially from the earlier form, is perhaps a more comprehensive and accurate expression of this purpose. Nearly all the cases, if not absolutely all, included in the first class of cases, are also included in the more comprehensive provision relating to the third class. Two jurisdictional conditions must be shown by the record of the State court, in order to bring a case within the limits of this provision. (1.) The Matter Claimed. — This must be some " title, right, privilege, or immunity," claimed by the party on at least one of the grounds named in the statute, which must be " the Constitu- tion, or a treaty or statute of, or a commission held or an authority exercised under, the United States." A claim in any one of these forms, on any one of these grounds, will supply the first condition of jurisdiction. It is evident, upon the very face of the provision, that titles, rights, privileges, and immunities that do not depend upon, or are not protected by, the Constitution, or laws, or treaties of the United States, or any commission held or authority exercised under the United States, but which, so far as they exist at all, are entirely dependent upon State constitutions or laws, do not come within the provision at all. Such rights present questions which, so far as the jurisdiction of the Supreme Court is concerned, it is the exclusive province of State courts to consider and determine ; and over their judgments or decrees relating thereto the Supreme Court has no jurisdiction. ( Udell v. Davidson, 7 How. 769 ; and Walworth v. Kneeland, 15 How. 348.) It is essential that the claim, on any one of the grounds speci- fied, should have been presented to the State court, and its atten- tion called to the subject. Chief Justice Taney, referring to this point in The Grand Gulf R. It. <& B. Go. v. Marshall, 12 How. 165, said : " The party is authorized to bring his case before this court, because a State court has refused him a right to which he is enti- tled under the Constitution or laws of the United States. But if he omits to claim it in the State court, there is no reason for per- mitting him to harass the adverse party by a writ of error to this court, when, for anything that appears in the record, the judgment 584 REMOVAL OF CAUSES TO THE SUPREME COURT. of the State court might have been in his favor if its attention had been drawn to the question. The rule upon this subject is distinctly stated in the case of Armstrong and others v. The Treas- urer of Athens County, 16 Pet. 285." The case of Calcote v. Stanton, 18 How. 243, was dismissed on the ground that the record did not show that any Federal question, involving any right of the plaintiff in error, did arise in the State court, or " could have been decided " by it. In The Victory, 6 Wall. 382, it was held that the Federal question " must have re- ceived the consideration or attention of the court," and that "it is not sufficient that this court can see that it ought to have been raised, and that it might have been decided." In The Hamilton Company v. Massachusetts, 6 "Wall. 632, it was held that " questions not decided in the State court, because not raised and presented by the complaining party, will not be re-examined in this court on a writ of error under the twenty-fifth section of the Judiciary Act." So, also, in Caperton v. Boioyer> 14 Wall. 216, it was held that " a Federal question cannot be as- sumed to have been raised and passed on in a State court, so as to- give jurisdiction to this court, when nothing appears in the record to show on what grounds the decision of the matter .in which the Federal question alleged to be involved was made." The following doctrine was laid down in Millingar v. Hartu- pee, 6 Wall. 258 : 1. That the twenty-fifth section of the Judiciary Act does not give jurisdiction to this court in cases of decisions by the courts of a State against mere assertions of an exercise of au- thority under the United States. 2. That where a party claims authority under an order of a court of the United States, which, when rightly viewed, does not purport to confer any authority upon him, the writ will be dismissed. 3. That the writ will be dismissed on motion, and apart from the consideration of the mer- its, when the single question is, not the validity of the authority, but its existence, and the court is fully satisfied that there was and could have been no decision by the State court against any author- ity under the United States existing in fact. Chief Justice Chase, in this case, said that " something more than a bare assertion of such authority seems essential to the juris- diction of this court," and that " the authority intended by the act is one having a real existence, derived from competent govern- mental power." He added : " In respect to the question we are FEDERAL QUESTIONS. 585 now considering, ' authority ' stands upon the same footing with ' treaty ' or ' statute.' If a right were claimed under a treaty or statute, and, on looking into the record, it should appear that no such treaty or statute existed, or was in force, it would hardly be insisted that this court could review the decision of a State court that the right claimed did not exist." Chief Justice Marshall, in Hickie v. Starke, 1 Pet. 94, said: " This court has never required that the treaty or act of Congress under which the party claims, who brings the final judgment of a State court into review before this court, should have been spread upon the record. It has always deemed it essential to the exercise of jurisdiction, in such a case, that the record should show a com- plete title under the treaty or act of Congress, and that the judg- ment of the court is in violation of that treaty or act." Mr. Justice Trimble, in Montgomery v. Hernandez, 12 Wheat. 129, said : " It is not every misconstruction of an act of Congress by a State court, that will give this court appellate jurisdiction. It is where the party claims some* title, right, privilege, or exemp- tion, under an act of Congress, and the decision is against such right, title, privilege, or exemption." The conclusions derivable from these cases are the following : 1. That the party who seeks a review and reversal, by the Supreme Court, of the final judgment or decree of a State court, must have presented to the latter court " the title, right, privilege, or immu- nity " which he asks the former court to secure to him, together with the Federal ground on which he makes the claim. 2. That this Federal ground, whether it be the Constitution, or a law, or treaty of the United States, or a commission held or an authority exercised under the United States, must be a reality, and must also support the claim. 3. That the State court must have actu- ally made a decision with regard to the Federal question brought to its notice. 4. That the decision must be the one specified in the statute. The Supreme Court, unless the record shows these facts, has no power to review and reverse the decision of the State court. The statute, in the class of cases now under consideration, expressly confines the appellate power of the court to the case of some " title, right, privilege, or immunity specially set up or claimed by either party " in the State court, and set up or claimed on any one or more of the Federal grounds specified, and alleged to be denied 580 REMOVAL OF CAUSES TO THE SUPREME COURT. by the judgment or decree of the State court. These are jurisdic- tional facts, and they must exist, and the record must show that they do exist, or the case will be dismissed for the want of juris- diction. (2.) Decision of the State Court. — The statute gives jurisdic- tion to the Supreme Court, even where all the other necessary conditions are present, only when the decision of the State court is against " the title, right, privilege, or immunity specially set up or claimed by either party," on any one of the grounds named. If the decision was in favor of the claim, then no case is presented for appellate review, even though the decision be deemed errone- ous. It was held, in Gordon v. Caldcleugh, 3 Cranch, 268, that " if a State court decree in favor of a right claimed under the act of Congress, this court has no jurisdiction under the twenty-fifth section of the Judiciary Act." Mr. Justice Grier, in Strader v. Baldwin, 9 How. 261, said : " The plaintiffs in this case have«set up no act of Congress in their pleadings, under which they support their claim or title to recover. It is the defendant who has pleaded a privilege or exemption under a statute of the United States, and relies upon it as his only defense. If the decision of the State court had been against him, his right to have the case re-examined by this court could not be doubted. But the decision has been in favor of the right set up under the statute, the validity of which was denied by the plaint- iffs. We have no jurisdiction to entertain a writ of error to the Supreme Court of Ohio at their suggestion. This case must, there- fore, be dismissed for want of jurisdiction." The case of Linton v. Stanton, 12 How. 423, is to the same effect. The plaintiffs in error brought a suit in a State court of New Orleans against the defendant on two promissory notes, and the latter pleaded his discharge under the bankrupt law of the United States. The former objected to the regularity of the bankruptcy proceedings, but the court overruled the objection and gave judgment for the defendant. From this judgment the plaint- iffs took an appeal to the Supreme Court of the State ; and here the judgment of the court below was affirmed. The plaintiffs then carried the case to the Supreme Court of the United States by writ of error. Chief Justice Taney, referring to the twenty- fifth section of the Judiciary Act of 1789, said : FEDERAL QUESTIONS. 587 " "We have no jurisdiction over the judgment of a State court upon a writ of error, except in the cases specified in that section. And the jurisdiction of this court is there limited with great care and in plain terms. It gives a writ of error to this court where a party claims a right or exemption under a law of Congress, and the decision is against the right claimed. Undoubtedly, the defendant, in pleading his discharge under the bankrupt law, claimed a right or exemption under a law of Congress. But, in order to give jurisdiction, something more is necessary. The judg- ment of the State court must be against the right claimed. In the case before us the decision was in favor of it ; and, consequently, no writ of error will lie to this court under the provisions of the Act of 1789." In Roosevelt v. Meyer, 1 Wall. 512, it was held, where a certifi- cate, coming up with the record from the highest court of law or equity of a State, certifies only that on the " hearing " of the case a party " relied upon " such and such provisions of the Constitution of the United States, " insisting " that the effect was to render an act of Congress void, as unconstitutional, which said claim the record went on to say, " was overruled and disallowed by this court," and the record itself shows nothing except that the statute which, it was argued, contravened these provisions, was drawn in question, and that the decision was in favor of the statute, and of the rights set up by the party relying on it, that no writ of error would, under the twenty-fifth section of the Judiciary Act of 1789, lie from the Supreme Court to the State court. So, also, in Ryan v. Thomas, 4 "Wall. 603, it was held that where a decision of the highest court of law or equity of a State is in favor of the validity of a statute of or an authority exercised under the United States, drawn in question in such court, the Su- preme Court, under the twenty-fifth section of the Judiciary Act, by which alone it has jurisdiction of the judgments of State courts, has no revisory power. Mr. Justice Catron, in stating the opinion, of the court in Hale- v. Gaines, 22 How. 144, said : " To give jurisdiction to this court, the party must claim for himself, and not for a third person in whose title he has no interest. {Henderson v. Tennessee, 10 How. 323.) The plaintiff in error must claim (for himself) some title, right, privilege, or exemption, under an act of Congress, &c, and the decision must be against his claim, to give this court jurisdic- tion. Setting up a title in the United States, by way of defense, is not claiming a personal interest affecting the matter in litigation. 588 REMOVAL OF CAUSES TO THE SUTREME COURT. This is the established construction of the twenty-fifth section of the Judiciary Act. {Montgomery v. Hernandez, 12 Wheat. 132.)" It was held, in Miller v. The Lancaster Bank, 16 Otto, 542,. that, " where a party sues out a writ of error to a State court, this court has no jurisdiction to re-examine the judgment or the decree, although it be adverse to the Federal right, if he set up and claimed the right, not for himself, but for a party in whose title he had no interest." Chief Justice Waite, in this case, after stating the facts, remarked : " Clearly, therefore, the plaintiffs in error occupy no other position than that of parties setting up title in the Danville Bank by way of defense, and that is not claiming for themselves any title, right, privilege, or immunity given by law." {Long v. Converse, 1 Otto, 105.) It appears then, from these cases taken together, that, in order to give the Supreme Court jurisdiction over the final judgment or decree of a State court, not only must the decision of the latter court be against the title, right, privilege, or immunity specially set up or claimed by the party on any of the Federal grounds- mentioned in the statute, but that the party setting up such claim must do so for himself, and not for another in whose title he has no interest. The writ of error, in the absence of either of these conditions, will be dismissed for the want of jurisdiction. Congress has, with great accuracy and precision of language, specified the three classes of cases which, first arising in State courts and being determined, in the manner-stated, by the highest State courts in which decisions in the same could be had, may, by writ of error, be reviewed in the Supreme Court. The jurisdiction, while resting on the Constitution as an ultimate basis, is purely statutory as to the cases in which it may be exercised, and cannot exceed the limits fixed by statute. The statute, in its recital of cases, begins with that class in which " the validity of a treaty or statute of, or an authority exer- cised under, the United States," is drawn in question in the high- est court of a State, and the decision of the State court is " against their validity." A case of this character may be re-examined in the Supreme Court. The statute then proceeds to specify the class of cases in which " the validity of a statute of or an authority exercised under any State," is drawn in question, on the alleged ground of " being re- FEDERAL QUESTIONS. 589 pugnant to the Constitution, treaties, or laws of the United States,".and the decision of the State court is in favor of the State statute or authority. Such a case may be carried to the Supreme Court by writ of error. The statute then specifies the more comprehensive class in which " any title, right, privilege, or immunity is," in the State court, " claimed under the Constitution, or any treaty or statute of, or commission held or authority exercised under, the United States, and the decision is against the title, right, privilege, or im- munity specially set up or claimed, by either party, under such Constitution, treaty, statute, commission, or authority." A case, coming within this description, may also be re-examined in the Supreme Court. It is worthy of observation, that when a Federal treaty, statute, or authority is drawn in question in a State court, or when a Fed- oral title, right, privilege, or immunity, claimed on any of the grounds stated, is the subject of judicial determination in a State court, the decision must be against the validity of the treaty, stat- ute, or authority, or the Federal title or right, &c, in order to give jurisdiction to the Supreme Court. But when a State statute or authority is drawn in question, on the ground of being repug- nant to the Constitution, laws, or treaties of the United States, then, in order to give jurisdiction to the Supreme Court, the de cision of the State court must be in. favor of the validity of such statute or authority. This difference, as to the character of the decisions made by State courts, was designed to limit the jurisdiction of the Supreme Court to those cases in which rights claimed on the Federal basis are rejected by these courts. If such rights are not re- jected, but affirmed, then there is no occasion for a review by the Supreme Court. All that this court could give to a party making such claim has been given by the decision already rendered ; and Congress did not think it necessary or practically expedient to vest in the Supreme Court any power to review such a decision. The three classes of cases specified in the statute, when taken together, cover the whole field of Federal questions. Congress cannot increase the dimensions of this field, without exceeding the limits assigned to the judicial power of the United States, and in- vading that province of jurisprudence which, by the Constitution, belongs exclusively to the States. If no State statute or author- 590 REMOVAL OF CAUSES TO THE SUPREME COURT. ity is drawn in question in a State court, on the ground of being repugnant to the Constitution, or a law, or treaty of the United States, and if no question arises in such court to which "the supreme law of the land " has any relation, then the case is purely one of local State jurisprudence ; and any attempt to remove the case therefrom, or to review the exercise of that jurisprudence; would he without warrant in the Constitution. The States have exclusive and absolute rights, under the Constitution, legislative, executive, and. judicial; and, in the sphere of these rights, no agency of the General Government has any duty to perform, or any power to exercise. So, also, the United States have rights within the limits fixed by the Constitution; and all rights, within these limits, are para- mount, and may be carried into effect by the appropriate agency of the General Government. The jurisprudence of this Govern- ment, subject in its exercise to the regulations of law, reaches to all cases, no matter where they first arise, that come within the terms of the Constitution. The cases being Federal in their character, or, by reason of the parties thereto, the fact that they first arise in State courts, does not in the slightest degree qualify or limit this jurisprudence. They may, at the pleasure of Con-, gress, expressed by law, be transferred to a Federal court, either before trial and judgment or decree, or afterward, as Congress shall direct. SECTION XIII. THE KECOKD AND SCOPE OF THK JURISDICTION. The Supreme Court, in expounding its own jurisdiction under the statute, has had frequent occasion to refer to what the record of the State court must show, and also to the scope or extent of the jurisdiction when it has legally attached to a case. The ques- tion as to the sufficiency of the record has often been before the court, and also the further question whether, when jurisdiction has attached to a case, it extends to all the matters involved in that case as they stood in the State court, or is limited to such matters as come within one or the other of the enumerated classes of questions specified in the statute. The following cases, in ad- THE RECORD AND SCOPE OF THE JURISDICTION. 591 dition to those already cited, will serve to throw light on both of these points. Mr. Justice Story, in stating the opinion of the court in Cro- well v. Randell, 10 Pet. 368, briefly referred to all the cases in which the construction of the twenty-fifth section of the Judiciary Act of 1789 had been made a matter of controversy. His conclu- sion was that, in order to bring a case within this section, it must appear on the face of the record : " 1. That some one of the questions stated in that section did arise in the State court. 2. That the question was decided by the State court, as required in the same section. 3. That it is not necessary that the question should appear on the record to have been raised, and the decision made in direct and positive terms, ipsissimis verbis, but that it is sufficient if it appears, by clear and necessary intendment, that the question must have been raised and must have been decided in order to have induced the judg- ment. 4. That it is not sufficient to show that a question might have arisen or been applicable to the case, unless it is further shown, on the record, that it did arise, and was applied by the State court to the case." This deliverance was made in 1836, and, in 1842, the Supreme Court, in Armstrong v. The T?'easurer of Athens Comity, 16 Pet. 281, through Mr. Justice Catron, laid down the following doc- trine, as being the established law of the court : " To give this court jurisdiction under the twenty-fifth section of the Judiciary Act (1 Stats, at Large, 85), it must appear on the record itself to be one of the cases enumerated in that section ; and nothing out of the record certified to this court can be con- sidered. This may be shown : 1. By express averment in, or nec- essary intendment from, the pleadings. 2. By a ruling stated in a bill of exceptions. 3. In Louisiana, by a statement of facts, and the decision thereon. 4. By an entry on the record of proceed- ings of the appellate court, in a case in which such a question may have arisen and been decided, that it was in fact raised and de- cided ; and this entry must appear to have been made by order of the court, and must be certified by the clerk as part of the record. A certificate to that effect, made by the presiding judge, and cer- tified by the clerk as part of the record, will be presumed to have been made by authority of the court. 5. In equity, it may be stated in the final decree. 6. It may appear that the State court could not have given the judgment or decree, without deciding such a question." 592 REMOVAL OF CAUSES TO THE SUPREME COURT. Mr. Justice Strong, in stating the opinion of the court, in Mur- ray v. Charleston, 6 Otto, 432, said : " The jurisdiction of this court over the judgments of the highest courts of the States is not to he avoided by the mere absence of express reference to some pro- vision of the Federal Constitution. Wherever rights acknowl- edged and protected by that instrument are denied or invaded under the shield of State legislation, this court is authorized to in- terfere. The form and mode in which the Federal question is raised in the State court are of minor importance, if, in fact, it was raised and decided. * * * The true test is not whether the record exhibits an express statement that a Federal question was presented, but whether such a question was decided, and de- cided adversely to the Federal right." Mr. Justice Strong, in con- firmation of these views, referred to Crowell v. Randell, 10 Pet. 368 ; Armstrong v. The Treasurer of Athens County, 16 Pet. 281 ; The Bridge Proprietors v. The Hobohen Company, 1 Wall. 116 ; and Furman v. JVichol, 8 Wall. 44. The Supreme Court, in Montgomery v. Hernandez, 12 Wheat. 129, having referred to the provisions of the twenty-fifth section of the Judiciary Act of 1789, said : " Under these provisions we have no authority to re-examine the whole case. We can re-ex- amine so much and sucli parts of it only as come within some one or other of the classes of questions enumerated in the act of Con- gress, and so much of the case as must necessarily be decided to arrive at such question. 1 ' In Mills v. Brown, 16 Pet. 525, it was held that, since the record did not show " that a question under the Constitution of the United States was raised in the State court, and as that court might have decided the case without passing on such a question, this court has not jurisdiction under the twenty- fifth section of the Judiciary Act." In Doe v. The City of Mobile, 9 How. 451, it was held that, under the twenty-fifth section of the Judiciary Act, the court " cannot re-examine the decision of a State court upon a question of boundary between coterminous proprietors of lands, depending on the local laws." In QUI v. Oliver's Executors, 1 1 How. 529, it was said by Mr. Justice Grier, in stating the opinion of the court, that " it is a conclusive test of the question of jurisdiction of this court in the present case that, if we assume jurisdiction and proceed to consider the merits of the case, we find it to involve no THE RECORD AND SCOPE OF THE JURISDICTION. 593 question either of validity or construction of treaties or statutes of the United States." Mr. Justice Story, referring, in Martin v. Hunter's Lessee, 1 Wheat. 304, 358, to the twenty-fifth section of the Judiciary Act of 1789, said : " It was foreseen that the parties might claim under various titles, and might assert various defenses, altogether inde- pendent of each other. The court might admit or reject evidence applicable to one particular title, and not to all, and in such cases it was the intention of Congress to limit, what would otherwise have unquestionably attached to the court, the right of revising all the points involved in the cause. It therefore restrains this right to such errors as respect the questions specified in the section." Mr. Justice Catron, in considering the question, in Lytle v. The State of Arkansas, 22 How. 193, 203, how far the Supreme Court can " re examine the proceedings of State courts," said : " In their answers, the respondents rely on the act of limitations of the State of Arkansas for protection. As this is a defense having no connection with the title of Cloyes, this court cannot revise the decree below in this respect, under the twenty-fifth section of the Judiciary Act." A decree of a State court protecting parties as innocent purchasers, under a State statute of limitations, whether rightfully made or not, was in this case held not to be within the revisory jurisdiction of the Supreme Court. All these cases, with the exception of Miirray v. Charleston, 6 Otto, 432, were decided under the provisions of the twenty-fifth section of the Judiciary Act of 1789. (1 U. S. Stat, at Large, 73.) One of the provisions of this act was as follows : " But no other error shall be assigned or regarded as a ground of reversal in any such case as aforesaid, than such as appears on the record, and immediately respects the before-mentioned questions of validity or construction of the said Constitution, treaties, statutes, commis- sions, or authorities in dispute." This, in express terms, limited the jurisdiction of the Supreme Court, as to its power of reversal, to errors set forth on the record, and to such errors as immediately related to the questions specified in the statute ; and the court has accordingly been careful to observe this limitation. Congress, however, when, in the second section of the Act of February 5th, 1867 (14 U. S. Stat, at Large, 385), re-enacting the substance of the twenty-fifth section of the Judiciary Act of 1789, somewhat changed its phraseology, omitting some words and add- 38 594 REMOVAL OF CAUSES TO THE SUPREME COURT. ing others, and wholly omitting the restraining clause of the orig- inal section, as above quoted. The omission of this clause raised the question whether the Supreme Court, having acquired juris- diction of a case by reason of the presence of one or more of the Federal questions specified in the second section of the Act of 1867, which subsequently became section 709 of the Kevised Stat- utes of the United States, has the power to re-examine not only the Federal question or questions presented in the case, but also all the other questions of law, controverted facts, and conflicting evidence that may be shown by the record. Was it the design of Congress,, in modifying the twenty-fifth section of the Judiciary Act of 1789, thus to extend the jurisdiction of the Supreme Court to a deter- mination of matters not expressly within the enumeration of the statute ? Mr. Justice Miller^ in delivering the opinion of the court in Murdoch v. The City of Memphis, 20 Wall. 590, took the ground that the second section of the Act of February 5th, 1867, was in effect a repeal of the twenty-fifth section of the Judiciary Act of 1789 ; that this section as now found in section 709 of the Kevised Statutes is the sole law on the subject ; that it was not the intention of Congress affirmatively to enact that the Supreme Court should consider all the other questions involved in the case that might be necessary to a final judgment or decree in the court below ; and that, under the law as it now stands, the court is not to decide any other than the Federal questions when a case is brought before it for revision. The conclusions to which Mr. Justice Miller finally comes are the following : 1. " That it is essential to the jurisdiction of this court over the judgment of a State court, that it shall appear that one of the questions mentioned in the act must have been raised and pre- sented to the State court ; that it must have been decided by the State court, or that its decision was necessary to the judgment or decree rendered in the case ; and that the decision must have been against the right claimed or asserted by plaintiff in error under the Constitution, treaties, laws, or authority of the United States." 2. "These things appearing, this court has jurisdiction, and must examine the judgment so far as to enable it to decide whether this claim of right was correctly adjudicated by the State court." 3. " If it finds that it was rightly decided, the judgment must be affirmed." 4. " If it was erroneously decided against plaintiff in error, then this court must further inquire whether there is any other THE RECORD AND SCOPE OF THE JURISDICTION. 595 matter or issue adjudged by the State court, which is sufficiently broad to maintain the judgment of that court, notwithstanding the error in deciding the issue raised »by the Federal question. IF this is found to be the case, the judgment must be affirmed without inquiring into the soundness of the decision on such other matter or issued' 5. " But if it be found that the issue raised by the question of Federal law is of such controlling character that its correct decision is necessary to any final judgment in the case, or that there has been no decision by the State court of any other matter or issue which is sufficient to maintain the judgment of that court without regard to the Federal question, then this court will reverse the judgment of the State court, and will either render such judgment here as the State court should have rendered, or remand the case to that court, as the circumstances of the case may require." This is the most complete statement ever made by the Supreme Court with reference to the general principles that govern the ex- ercise of its jurisdiction over the judgments and decrees of State courts. Chief Justice Waite, in Moore v. Mississippi, 21 Wall. 636, referred to this statement, and then added : " It is sufficient for all the purposes of this case to hold, as we do, that if the record shows upon its face that a Federal question was not necessarily involved, and does not show that one was raised, we will not go outside of it, to the opinion or elsewhere, to ascertain whether one was in fact decided." The record of the State court, with its pleadings, bills of exceptions, judgments, and evidence, must present the case to which the court will apply the principles regulating its jurisdic- tion ; and if no proper case is thus presented, then the court will not assume the jurisdiction. In Boiling v. Lersner, 1 Otto, 59 i, Chief Justice Waite said : " We cannot re-examine the judgment or decree of a State court simply because a Federal question was presented to that court for determination. To give us jurisdiction, it must appear that such a question was in fact decided, or that its decision was necessarily involved in the judgment or decree as rendered." So, also, in The Citizen^ Bank v. The Board of Liquidation^ 8 Otto, 140, Chief Justice Waite said : " To give us jurisdiction under sect. 709, Rev. Stat., it is not only necessary that some one of the questions mentioned in the section should exist on the rec- ord, but that the decision was controlling in the disposition of the cause. ( Williams v. Oliver, 12 How. 125 ; Klinger v. State of 596 REMOVAL OF CAUSES TO THE SUPREME COURT. Missouri, 13 Wall. 257.) As the State court has decided as a question of State law that, even if the guaranties of the bonds are valid obligations of the State, they are not fundable under the act, it matters not in this suit whether the decision against their valid- ity was erroneous or not." The Supreme Court has, for nearly a century, been expounding its appellate jurisdiction, as conferred by law, over the judgments and decrees of State courts. Several hundred cases, involving the question of such jurisdiction, have come before the court. The cases mentioned in this chapter furnish an outline of the law, as explained and applied by the court. The general fact that such jurisdiction exists in the cases spec- ified by law, and also the general principles which regulate and control its exercise, are settled beyond controversy. The court has clearly indicated what the record must show, in order to make a proper case for its appellate review, and as clearly established the principle that the jurisdiction, when acquired, is limited to the Federal questions named in the statute, and does not extend to other questions of law and fact that may be involved in the case. Congress, within the limits prescribed by the Constitution, may change the law ; yet, the law remaining substantially what it now is, it is not likely that the Supreme Court will see any occasion for changing its construction. PAKT V. EELATIONS OF FEDEEAL AND STATE JUEIS- PEUDENCE. CHAPTEE I. EXCLUSIVE AND CONCURRENT JURISDICTION. 1. State and Federal Courts. — The judicial system of this country is embodied in two classes of courts, with their respective powers to take cognizance of and decide causes, and enforce their judgments and decrees. One of these classes embraces the courts that exist and act under the constitutions and laws of the several States. These courts are known as State courts. They existed before the Con- stitution of the United States was adopted, and they still continue to exist. They derive their judicial powers from State authority. The other class embraces those courts that exist and act under the authority of the Constitution, laws, and treaties of the United States. These courts are spoken of as Federal courts, or courts of the United States. They have no dependence whatever upon State authority. They derive their jurisdiction from the Consti- tution and laws of the United States, and are limited in the exer- cise thereof to the cases and controversies specified in the Consti- tution as coming within the judicial power of the United States. Both classes of courts operate within the same territory and among the same people. In all the States there are State courts to hear and decide causes ; and in all the States there are Federal courts to hear and decide causes. Here then arises the important question of relationship, if any, between these two classes of courts. Is the jurisdiction of , the Federal courts exclusive in the cases and controversies con- fided to them, so that in these cases and controversies the State 598 EXCLUSIVE AND CONCURRENT JURISDICTION. courts have no jurisdiction whatever ? Is it exclusive in some cases, and concurrent with State courts in others ? Is it concur- rent with State courts in all the cases and controversies enumer- ated in the Constitution ? The Constitution does not, in express words, answer these ques- tions. It says, for example, that the judicial power of the United States shall extend to controversies " between citizens of different States," but does not expressly say that such controversies shall not be cognizable also in State courts. It nowhere, in express terms, excludes the cognizance of State courts in any of the cases and controversies confided to Federal courts, and nowhere, in ex- press terms, gives to State courts a concurrent cognizance. "What then is the fact ? How far, if at all, is the jurisdiction of the Federal courts exclusive, considered with reference to State courts, and how far, if at all, do the latter courts possess a concur- rent jurisdiction with the former, so that the same suit may be brought in either class of courts ? This is the question to be con- sidered in this chapter. 2. Opinions of Commentators. — Alexander Hamilton, than whom no one had a larger share in framing the Constitution, or contributed a stronger influence in securing its adoption, took the ground that the delegation of legislative power to the United States, by this instrument, is exclusive, in respect to the States, only in the following cases : " 1. Where the Constitution in express terms granted an ex- clusive authority to the Union. 2. Where it granted in one in- stance an authority to the Union, and in another instance pro- hibited the States from exercising the like authority. 3. Where it granted an authority to the Union, to which a similar authority would be absolutely and totally contradictory and repugnant." (The Federalist, No. 32.) Mr. Hamilton held that the legislative power of the United States, as defined in the Constitution, is, and must be, in these cases, exclusive of any similar power in the States. Referring to these principles in a subsequent number of the Federalist, he fur- ther said : " Though these principles may not apply with the same force to the judiciary as to the legislative power, yet I am inclined to ' think that they are, in the main, just with respect to the former OPINIONS OF COMMENTATORS. 599 -as well as the latter. And, under this impression, I shall lay it down as a rule that the State courts will retain the jurisdiction they now hare, unless it appears to be taken away in one of the enumerated modes. * * * I hold that State courts will be divested of no part of their primitive jurisdiction, further than may relate to an appeal ; and I am even of opinion that in every case in which they are not expressly excluded by the future acts of the national legislature, they will of course take cognizance of the causes to which these acts will give birth." (The Federalist, No. 82.) It was the opinion of Mr. Hamilton " that the State courts would have a concurrent jurisdiction, in all cases arising under the laws of the Union, where it was not expressly prohibited." Mr. St. George Tucker regarded the judicial power of the United States as being exclusively vested in the tribunals of the Federal Government in the following cases : 1. "All cases affect- ing ambassadors, other public ministers, and consuls." 2. "All cases of admiralty and maritime jurisdiction." 3. " Controversies between two or more States." 4. " Controversies between a State and any foreign state." 5. " Controversies to which the United States are a party." 6. " Trials for offenses against the Constitu- tion or laws of the Federal Government." He thought " that the judicial power of the State must be presumed to possess concur- rent, though perhaps subordinate, powers with the courts of the United States in the following cases : " 1. " Controversies between the State and the citizens of another State, or foreign citizens or subjects." 2. Controversies " between citizens of different States, if the defendant reside within the State claiming jurisdiction." 3. Controversies "between citizens of the same State claiming lands, within the State, under grants from different States." (1 Tuck. Black. Part I, App. 181-183.) Mr. Rawle remarks : "A jurisdiction exclusive of the State courts is not expressly given by the Constitution to any of the courts of the United States, but it is in several instances clearly implied." He cites cases of admiralty and maritime jurisdiction, cases affecting ambassadors, other public ministers, and consuls, and controversies between two or more States, as examples of such clear implication. As to cases in law and equity arising under the Constitution, laws, or treaties of the United States, controversies to which the United States are a party, and controversies between a State and 600 EXCLUSIVE AND CONCURRENT JURISDICTION. citizens of another State, or between citizens of different States, or between citizens of the same State claiming lands under grants of different States, or between a State or the citizens thereof and foreign states, citizens, or subjects, Mr. Rawle says that " in some of these cases it may be doubted whether it was intended, and whether it would be beneficial to the United States, that the juris- diction should be exclusive " in the Federal courts. He adds that " in all these cases a concurrent jurisdiction exists " in State courts " so far as relates to the language of the Constitution itself," and expresses the opinion that these courts are not "precluded from holding cognizance of a right claimed under a treaty or statute of the United States, or an authority exercised under the United States, or a suit in which is drawn in question the construction of any clause of the Constitution." " The correct general position seems to be," he says, " that in civil cases in some instances the judicial power is unavoidably exclusive of State authority, and in many others it may be rendered so at the election of Congress." (Rawle's Const, pp. 191-195.) Chancellor Kent, after considering the question somewhat at length, comes to the following conclusion : " The conclusion, then, is, that in judicial matters the concurrent jurisdiction of the State tribunals depends altogether upon the pleasure of Congress, and may be revoked and extinguished whenever they think proper, in every case in which the subject-matter can constitutionally be made cognizable in the Federal courts ; and that, without an ex- press provision to the contrary, the State courts will retain a con- current jurisdiction in all cases where they had jurisdiction orig- inally over the subject-matter." (Kent's Comm. Lect. 18.) . Mr. Justice Story, having remarked that it would be difficult " to lay down any general rules in relation to the cases in which the judicial power of the courts of the United States is exclusive of the State courts, or in which it may be made so by Congress," proceeds to say : " That there are some cases in which that power is exclusive cannot well be doubted ; that there are others, in which it may be made so by Congress, admits of as little doubt ; and that in other cases it is concurrent in State courts, at least until Congress shall have passed some act excluding the concurrent jurisdiction, will scarcely be denied. It seems to be admitted that the jurisdiction of the courts of the United States is, or at least may be-made, ex- OPINIONS OF COMMENTATORS. 601 elusive in all cases arising under the Constitution, laws, and trea- ties of the United States ; in all cases affecting ambassadors, other public ministers, and consuls ; in all cases (in their character ex- clusive) of admiralty and maritime jurisdiction ; in controversies to which the United States shall be a party; in controversies be- tween two or more States ; in controversies between a State and citizens of another State ; and in controversies between a State and foreign states, citizens, or subjects. And it is only in those cases where, previous to the Constitution, State tribunals possessed jurisdiction independent of national authority, that they can now constitutionally exercise a concurrent jurisdiction." (Story's Const, sec. 1 754.) Mr. Curtis expresses the opinion " that, in regard to the sev- eral elasses of cases, to all of which the Constitution imperatively declares that the judicial power shall extend, if any original juris- diction is established by the Constitution itself, or by Congress in the exercise of the discretion left to it by the Constitu- tion, that jurisdiction may be regarded as exclusive of State courts." In regard to other classes of cases, such as " controversies to which the United States shall be a party, those between citizens of different States, or between citizens of a State and aliens or foreign states," he thinks it to be the " purpose of the Constitu- tion to provide a tribunal to which resort might be had, which would be more likely to be impartial than the State courts might always be, under the same circumstances, but to leave the resort to that tribunal entirely optional," without any intention of mak- ing its jurisdiction exclusive in such cases. (Curtis's Comm. Book I, chap. 7.) Mr. Abbott lays down the following general principles in ref- erence to this question : 1. " The Constitution leaves it to the discretion of Congress to confer upon the courts of the United States an original jurisdic- tion in all cases to which the judicial power of the United States extends." 2. " Where the language of the Constitution extends the judicial power to all cases of any class, it is in the power of Congress to make the jurisdiction of the courts of the United States exclusive in reference to such cases." 3. " Whether, in a given ca.se, Congress has conferred exclusive jurisdiction, depends upon the statute conferring it, in the interpretation of which some weight is due to the consideration that in respect to many classes of cases the State courts had jurisdiction prior to the adoption of the Constitution, and that the presumption in such cases is against 4302 EXCLUSIVE AND CONCURRENT JURISDICTION. an alienation or surrender of State power by implication." (Abb. U. S. Practice, vol. 1, p. 63.) Mr. Pomeroy, in regard to " controversies between a State and citizens of another State," or "between citizens of different States," or "between citizens of tbe same State claiming lands under grants of different States," or "between a State or the citi- zens thereof and foreign states, citizens, or subjects," raises the question whether the jurisdiction relating to these controversies is " exclusively in the national courts, or held by them concurrently with the State tribunals." His answer is the following : " Plainly, the latter is the true interpretation of the Constitution. In all these cases the judiciary of the United States is not wielding a power which belongs to it of right, of necessity, but one which the State judges may also wield — a power relating entirely to State laws, to rights and duties flowing from State legislation." (Pomeroy's Const. Law, sec. 759.) Here is some diversity of opinion, in the matter of detail, among these text- writers and commentators ; yet they all agree that, in some of the enumerated cases and controversies, the jurisdiction of the Federal courts is exclusive, and that, in respect to other cases, State courts may exercise concurrent jurisdiction, unless ex- pressly excluded therefrom by the legislation of Congress. 3. Judicial Opinions. — The Supreme Court of the United States has, on several occasions, expressed its opinion in regard to this subject. The following cases are examples to this effect : (1.) Martin v. Hunter, 1 Wheat. 304, 337. — The court, in answer to the question relating to the cases, if any, in which the judicial power of the United States is " exclusive, or exclusive at the election of Congress," proceeded to say : " It is manifest that the judicial power of the United States is unavoidably in some cases exclusive of all State authority, and in all others may be made so at the election of Congress. No part of the criminal jurisdiction of the United States can, consistently with the Constitution, be delegated to State tribunals. The ad- miralty and maritime jurisdiction is of the same exclusive cogni- zance ; and it can only be in those cases where, previous to the Constitution, State tribunals possessed jurisdiction independent of national authority, that they can now constitutionally exercise a concurrent jurisdiction. Congress, throughout the Judicial Act, JUDICIAL OPINIONS. 603 and particularly in the ninth, eleventh, and thirteenth sections, has legislated upon the supposition that, in all the cases to which the judicial power of the United States extended, they might rightfully vest exclusive jurisdiction in their own courts." This deliverance limits the concurrent jurisdiction of State courts to those cases in which, previously to the adoption of the Constitution, they had jurisdiction, as, for example, a controversy between citizens of different States, and leaves it at the option of Congress to exclude such jurisdiction, even in these cases. (2.) Houston v. Moore, 5 Wheat. 1, 26. — Mr. Justice Washing- ton, in stating the opinion of the court, referred to the view of Alexander Hamilton, which he stated to be "that, in every case in which the State tribunals should not be expressly excluded by the acts of the national legislature, they would, of course, take cognizance of the causes to which those acts might give birth." In regard to this view he said : " I can discover, I confess, nothing unreasonable in this doctrine ; nor can I perceive any inconvenience which can grow out of it, so long as the power of Congress to withdraw the whole, or any part of those cases from the jurisdic- tion of the State courts, is, as I think it must be, admitted." Having spoken of the provisions of the Judiciary Act of 1789, as assuming the power of Congress to exclude the concurrent ju- risdiction of State courts in cases cognizable by the Federal courts, Mr. Justice Washington further said : " I hold it to be perfectly clear that Congress cannot confer jurisdiction upon any courts but such as exist under the Constitution and laws of the United States, although the State courts may exercise jurisdiction on cases au- thorized by the laws of the State, and not prohibited by the exclu- sive jurisdiction of the Federal courts." As to crimes and offenses against the United States, Mr. Jus- tice Washington still further said : " The law of Congress had vested the cognizance of them exclusively in the Federal courts. The State courts, therefore, could exercise no jurisdiction whatever over such offenses, unless where, in particular cases, other laws of the United States had otherwise provided ; and wherever such pro- vision was made, the claim of exclusive jurisdiction to the partic- ular cases was withdrawn by the United States, and the concurrent jurisdiction of the State courts was eo instanti restored, not by way of grant from the national Government, but by the removal of a disability before imposed upon the State tribunals." 604 EXCLUSIVE AND CONCURRENT JURISDICTION. The particular point considered and disposed of in this case was whether a law of Pennsylvania could " confer authority upon a State court-martial to enforce the laws of the United States against delinquent militia-men who had disobeyed the call of the President to enter into the service of the United States." The Supreme Court held that this law was " not repugnant to the Constitution and laws of the United States," and hence that a State court-mar- tial might act under it and carry it into effect. (3.) Teal v. Felton, 12 How. 284, 292.— This was an action of trover originally brought in a State court to recover from a post- master the value of a newspaper which he refused to deliver to the party to whom it was addressed, claiming the authority of the postal laws of the United States for the refusal. The case, having been decided by the highest court of the State, was by writ of error transferred to the Supreme Court of the United States. The question arose in the latter court whether the State court had juris- diction of the case. Mr. Justice Wayne, in stating the opinion of the court on this point, said : " Now, the courts in New York having jurisdiction in trover, the case in hand can only be excepted from it by such a case as this having been made one of exclusive jurisdiction in the courts of the United States, by the Constitution of the United States. That such is not the case, we cannot express our view better than Mr. Justice Wright has done in his opinion in this case in the Court of Appeals." He then proceeded to quote this opinion with reference to the second section of the third article of the Constitution, as follows : " This is a mere grant of jurisdiction to the Federal courts, and limits the extent of their power, without words of exclusion or any attempt to oust the State courts of con- current jurisdiction in any of the specified cases in which concur- rent jurisdiction existed prior to the adoption of the Constitution. The apparent object was not to curtail the powers of the State courts, but to define the limits of those granted to the Federal judiciary." Adopting this language as his own, Mr. Justice Wayne further said : " We will add that the legislation of Congress, immediately after the Constitution was carried into operation, confirms the con- clusion of the learned judge. We find in the twenty-fifth section of the Judiciary Act of 1789, under which this case is before us, JUDICIAL OPINIONS. 605 that such a concurrent jurisdiction in the courts of the States and of the United States was contemplated, for its first provision is for a review of cases adjudicated in the former, where is drawn in question the validity of a treaty or statute of, or an authority exer- cised under, the United States, and the decision is against their validity." The concurrent jurisdiction of the State court was in this case asserted by the Supreme Court ; and inasmuch as there was no error in the decision made by the Court of Appeals, its judgment was affirmed. The opinion of Mr. Justice Wright, as to the sec- ond section of the third article of the Constitution, was also adopted as the opinion of the Supreme Court. (4.) The Moses Taylor, 4 Wall. 411. — The question, consid- ered and decided in this case, was whether a State court, proceed- ing under the authority of a State statute, could take cognizance of a suit which was properly one of admiralty and maritime juris- diction. This question was answered in the negative, and hence the case was remanded to the State court, with directions to dis- miss the action for want of jurisdiction. This was equivalent to declaring the jurisdiction of the Federal courts exclusive in such cases. Mr. Justice Field, in stating the opinion of the court, referred to the opinion in Martin v. Hunter, supra, to the effect " that the judicial power of the United States is in some cases unavoid- ably exclusive of all State authority, and that in all others it may be made so at the election of Congress," and then proceeded to say: "We agree fully with this conclusion. The legislation of Congress has proceeded upon this supposition. The Judiciary Act of 1789, in its distribution of jurisdiction to the several Fed- eral courts, recognizes and is framed upon the theory that in all cases to which the judicial power of the United States extends, Congress may rightfully vest exclusive jurisdiction in the Federal courts. It declares that in some cases, from the commencement, such jurisdiction shall be exclusive. In other cases it determines at what stage of the procedure such jurisdiction shall attach, and how long and how far concurrent jurisdiction of the State courts shall be permitted. Thus, cases in which the United States are parties, civil causes of admiralty and maritime jurisdiction, and cases against consuls and vice-consuls, except for certain offenses, are placed, from the commencement, exclusively under the cog- nizance of the Federal courts." 606 EXCLUSIVE AND CONCURRENT JURISDICTION. " On the other hand, some cases, in which an alien or a citizen of another State is made a party, may be brought either in a Fed- eral or a State court, at the option of the plaintiff ; and, if brought in the State court, may be prosecuted until the appearance of the defendant, and then, at his option, may be suffered to remain there, or may be transferred to the jurisdiction of the Federal courts." " Other cases, not included under these heads, but involving questions under the Constitution, laws, treaties, or authorities of the United States, are only drawn within the control of the Fed- eral courts upon appeal or writ of error, after final judgment." " By subsequent legislation of Congress, and particularly by the legislation of the last four years, many of the cases which by the Judiciary Act could only come under the cognizance of the Federal courts after final judgment in the State courts, may be withdrawn from the concurrent jurisdiction of the latter courts at earlier stages, upon the application of the defendant." " The constitutionality of these provisions cannot be seriously questioned, and is of frequent recognition by both State and Fed- eral courts." The conclusions to be drawn from these authorities are the fol- lowing : 1. That, in respect to the cases and controversies enumer- ated in the Constitution, over whose subject-matter State courts had jurisdiction prior to the adoption of the Constitution, these courts, if so authorized by their respective States, retain such juris- diction, unless excluded therefrom by Congress. 2. That, in re- spect to other cases named in the Constitution, the jurisdiction is, by reason of the parties or the subject-matter, exclusive in the courts of the United States. 3. That, in all cases and contro- versies to which the Constitution extends the judicial power of the United States, the jurisdiction of the Federal courts maybe made exclusive by Congress, and is exclusive so far as Congress has thus legislated. It should be added, in this connection, that Congress cannot, in the distribution of the judicial power of the United States, affirmatively bestow any portion of it upon State courts, and hence cannot in this way make their jurisdiction concurrent with that of Federal courts. Mr. Justice Story, in Martin v. Hunter's Lessee, 1 Wheat. 304, said that " Congress cannot vest any portion of the judicial power of the United States, except in courts ordained and established by itself." So, also, Mr. Justice Washington, in Hous- ton v. Moore, 5 Wheat. 1, said : " I hold it to be perfectly clear JUDICIAL OPINIONS. 607" that Congress cannot confer jurisdiction upon any courts, but such as exist under the Constitution and laws of the United States." This excludes State courts from being the recipients of the judicial power of the United States by the authority of Congress. They are not established by Congress, and their judges are not appointed under the Constitution and laws of the United States. If they exercise cognizance in cases within the judicial power of the United States, they do so by State authority, and not that of Congress. The omission of Congress to exclude this cognizance in any of these cases does not affirmatively confer it, but simply leaves these courts to exercise whatever power State authority may bestow upon them. Chancellor Kent justly remarks : " The doctrine seems to be admitted that Congress cannot compel a State court to entertain jurisdiction in any case. It only permits State courts, which are competent for the purpose, and have an inherent jurisdiction ade- quate to the case, to entertain suits in given cases ; and they do not become inferior courts in the sense of the Constitution, be- cause they are not ordained by Congress." (Comm. Lect. 18.) Congress, by the Act of March 2ri, 1815 (3 U. S. Stat, at Large, 244), provided that " State or county courts within or next adjoining a collection district" established by Congress "for the collection of any direct tax or internal duties of the United States," should have power " to take cognizance of all complaints, suits, and prosecutions for taxes, fines, penalties, and forfeitures arising and payable under any of the acts passed or to be passed as aforesaid, or where bonds are given under the said acts ; " and also that these courts, or the principal or presiding judges thereof, should have authority " to exercise all and every power in cases cognizable before them, by virtue of this act, "for the purpose of obtaining a mitigation or remission of any fine, penalty, or for- feiture, which may be exercised by judges of the District courts of the United States in cases brought before them by virtue of the law of the United States." The law here referred to is the Act of March 3d, 1797. (1 U. S. Stat, at Large, 506.) The Act of March 3d, 1815, was, upon its face, an attempt by Congress to vest a portion of the judicial power of the United States in State courts. The cases in respect to which such power purported to be given arose under the laws of the United States. This legislation, according to the doctrine stated in Martin v. 608 EXCLUSIVE AND CONCURRENT JURISDICTION. Hunter 's Lessee, and Houston v. Moore, supra, exceeded the power of Congress, and was, therefore, unconstitutional. By some State courts the power was for a time exercised, and by others declined. The Supreme Court of New York, in The United States v. Lathrop, 17 John. 4, decided that a State court could not take jurisdiction of an action brought by the United States to recover a penalty or forfeiture for a breach of the laws of the United States, and that Congress has no power to confer such jurisdiction upon State courts. The pecuniary penalty or forfeiture was held to be a punishment for a violation of the law of Congress ; and hence the matter was regarded as cognizable only in the courts of the United States. A similar doctrine was stated in several other cases. {The United States v. Campbell, 6 Hall's Law. Jour. 113 ; The Commonwealth v. Freely, 1 Ya. Cases, 321 ; and Jackson v. Rose, 2 Va. Cases, 34.) The courts of the United States, on the other hand, are, except as established by the Constitution itself, purely the creatures of Congress, and may be vested with the judicial power granted by the Constitution, in any form and to any extent not inconsistent with the constitutional grants of power to the Supreme Court. Congress may make the jurisdiction of these courts exclusive of State courts, even in those cases in which the latter courts would otherwise possess concurrent jurisdiction. What then is the leg- islation of Congress on this subject ? 4. The Judiciary Act of 1789. — The first answer to this question is found in the Judiciary Act of 1789 (1 U. S. Stat, 'at Large, 73), providing for the organization of the courts of the United States, and vesting judicial power in them. The provis- ions of the act, relating to this subject, are the following : (1.) District Courts. — The ninth section of the act provided as follows in respect to the exclusive jurisdiction of District Courts : 1. That they should have, exclusively of the courts of the several States, cognizance of all crimes and offenses that shall be cognizable under the authority of the United States, committed within their respective districts, or upon the high seas, where no other punishment than whipping not exceeding thirty stripes, a fine not exceeding one hundred dollars, or a term of imprison- ment not exceeding six months, is to be inflicted. 2. That they THE JUDICIARY ACT OF 1789. 609 should have jurisdiction, exclusively of the courts of the several States, of all suits against consuls or vice-consuls, except for of- fenses above the description aforesaid. 3. That they should have exclusive original cognizance of all civil causes of admiralty and maritime jurisdiction, including all seizures under the laws of im- post, navigation, or trade of the United States, where the seizures are made on waters which are navigable from the sea by vessels of ten or more tons' burthen, within their respective districts as well as upon the high seas ; saving to suitors in all cases the right of a common-law remedy where the common law is competent to give it. 4. That they should have exclusive original cognizance of all seizures on land, or other waters than as aforesaid, made under the laws of the United States. 5. That they should have such cogni- zance of all suits for penalties and forfeitures incurred under these laws. The same section also provided as follows in respect to the concurrent jurisdiction of these courts : 1. That they should have cognizance, concurrent with the courts of the several States, or the Circuit Courts, as the case might be, of all causes where an alien sues for a tort only in violation of the law of nations or a treaty of the United States. 2. That they should have cognizance, concur- rent as last mentioned, of all suits at common law where the United States sue, and the matter in dispute amounts, exclusive of costs, to the sum or value of one hundred dollars. Here, then, are seven classes of cases, in five of which the ju- risdiction of District Courts is made exclusive of that of the courts of the several States, and in two of which a concurrent jurisdiction by State courts is not excluded. (2.) Circuit Courts. — The eleventh section of the act provided as follows in respect to the Circuit Courts : 1. That they should have original cognizance, concurrent with the courts of the several States, of all suits of a civil nature at common law or in equity, where the matter in dispute exceeds, exclusive of costs, the sum or value of five hundred dollars, and the United States are plaintiffs or petitioners, or an alien is a party, or the suit is between a citizen of the State where it is brought and a citizen of another State. 2. That they should have exclusive cognizance of all crimes and offenses cognizable under the authority of the United States, except where this act otherwise provides, or the laws of the United States 39 610 EXCLUSIVE AND CONCURRENT JURISDICTION. shall otherwise direct, and concurrent jurisdiction with the District Courts of the crimes and offenses cognizable therein. This permitted a concurrent jurisdiction by State courts in the civil cases mentioned, and excluded it in all criminal cases cogniz- able under the authority of the United States. (3.) The Supreme Court. — The thirteenth section of the act provided as follows in respect to the original jurisdiction of the Supreme Court : 1. That this court shall have exclusive jurisdic- tion of all controversies of a civil nature where a State is a party, except between a State and its citizens ; and except also between a State and citizens of other States, or aliens, in which latter case it shall have original but not exclusive jurisdiction. 2. That this court shall have exclusively all such jurisdiction of suits or proceedings against ambassadors, or other public ministers, or their domestics, or domestic servants, as a court of law can have or exercise consist- ently with the law of nations, and original but not exclusive juris- diction of all suits brought by ambassadors, or other public minis- ters, or in which a consul or vice-consul may be a party. A controversy of a civil nature between a State and its citizens is here excepted from the original jurisdiction of the Supreme Court ; and hence it has no such jurisdiction over such a case, con- currently with a State court. In controversies between a State and citizens of other States, or aliens, the jurisdiction was declared to be original but not exclusive. The denial of exclusive original jurisdiction to the Supreme Court in these cases has generally been regarded as implying a concurrent jurisdiction by other Federal courts. If, however, these cases could be determined by a State court, then so far the original jurisdiction of the Supreme Court would be concurrent with that of State courts. In cases of a civil nature brought against ambassadors, &c, the jurisdiction of the Supreme Court was made original and exclusive. And in cases brought by ambassadors, &c, or in which a consul or vice-consul was a party, the jurisdiction was declared to be original but not exclusive. If State courts in the latter cases could exer- cise jurisdiction, then their jurisdiction would be concurrent with that of the Supreme Court. Such jurisdiction on their part is not excluded by the thirteenth section of the Judiciary Act of 1789. There is nothing in this section to prevent an ambassador or a con- sul from bringing a 6uit in a State court. REVISED STATUTES OF THE UNITED STATES. 611 The twenty-fifth section of the Judiciary Act extended the appellate jurisdiction of the Supreme Court to cases arising in and determined by State courts, in which certain Federal questions were involved and decided as specified. This recognizes the fact that State courts might render decisions upon the questions named, and provides that the Supreme Court may review these decisions, and pass judgment upon the same questions. The jurisdiction of State courts for the purpose of making decisions in the first in- stance, and that of the Supreme Court for the purpose of review- ing these decisions, are, according to the provisions of this section, concurrent in respect to the Federal questions decided in State courts and re-examined and decided by the Supreme Court. The appellate jurisdiction of the latter court covers these questions when decided in a certain way by the highest State courts. There is here a species of concurrent jurisdiction, not in the sense that the suits might be originally brought in State courts, or in the Supreme Court, but that both have jurisdiction in respect to the same subject-matter, so far as the twenty-fifth section of the Ju- diciary Act extends the appellate jurisdiction of the Supreme Court. 5. Revised Statutes of the United States. — Section 711 of these Statutes provides that the jurisdiction of the courts of the United States shall, in the following cases and proceedings, be ex- clusive of the courts of the several States : (1.) All crimes and offenses cognizable under the authority of the United States. (2.) All suits for penalties and forfeitures incurred under the laws of the United States. (3.) All civil causes of admiralty and maritime jurisdiction ; saving to suitors, in all cases, the right of a common-law remedy where the common law is competent to give it. (4.) All seizures under the laws of the United States, on land or on waters not within admiralty and maritime jurisdiction. (5.) All cases arising under the patent or copyright laws of the United States. (6.) All matters and proceedings in bankruptcy. (7.) All controversies of a civil nature, where a State is a par- ty, except between a State and its citizens, or between a State and citizens of other States, or aliens. The effect of these provisions is to exclude any concurrent ju- risdiction by State courts in the cases specified, with the qualifica- 612 EXCLUSIVE AND CONCURRENT JURISDICTION. tions contained in the third and seventh of the above paragraphs. The right to a common-law remedy is saved to suitors in admiralty- cases where the common law is competent to give such a remedy ; and, in such cases, they may, at their own option, seek their relief in a State court. So, also, where a State is a party in a civil con- troversy, the jurisdiction is exclusive of any concurrent jurisdiction by State courts, except between a State and its citizens, or between a State and citizens of other States or aliens. 6. The Civil Rights Act— The Act of March 1st, 1875 (18 U. S. Stat, at Large, 335), entitled " An Act to protect all citizens in their civil and legal rights," provides as follows, in its first sec- tion: " That all persons within the jurisdiction of the United States shall be entitled to the full and equal enjoyment of the accommo- dations, advantages, facilities, and privileges of inns, public con- veyances on land or water, theaters, and other places of public amusement, subject only to the conditions and limitations estab- lished by law, and applicable alike to citizens of every race and color, regardless of any previous condition of servitude." The second section of this act provides that any person who shall violate any of the above provisions, shall, for every such offense, forfeit and pay the sum of five hundred dollars to the person aggrieved thereby, to be recovered in an action of debt, with full costs, and shall also be deemed guilty of a misdemeanor, punishable, on conviction, by a fine of not less than five hundred nor more than one thousand dollars, or by imprisonment not less than thirty days nor more than one year. The provisoes annexed to this section are these : " Provided, That all persons may elect to sue for the penalty aforesaid or to proceed under their rights at common law and State statutes ; and having so elected to proceed in one mode or the other, their right to proceed in the other jurisdiction shall be barred. But this proviso shall not apply to criminal proceedings, either under this act or the criminal law of any State. " And provided further, That a judgment for the penalty in favor of the party aggrieved, or a judgment upon an indictment, shall be a bar to either prosecution respectively." The third section of the act provides that " the District and Circuit Courts of the United States shall have, exclusively of the courts of the several States, cognizance of all crimes and offenses THE ACT OF MARCH 3d, 1876. 613 against, and violations of, the provisions of this act." The fourth section forbids the exclusion of any citizen, otherwise qualified, from serving as a juror, on account of race, color, or previous con- dition of servitude. The criminal jurisdiction provided for in this act is exclusively vested in the District and Circuit Courts of the United States. The party aggrieved by a violation of any of the provisions of the first section of the act, and seeking by an action of debt to recover the forfeiture specified in the second section, may sue therefor in a Federal court, or may proceed under his rights at common law and by State statutes, in the latter case bringing his action in a State court, and seeking his remedy under State authority. He is not confined to a Federal court or to the provisions of this act for a remedy, but may seek whatever remedy State authority may afford to him, with the provision that if he elects to do so, he can- not proceed in a Federal court. 7. The Act of March 3d, 1875.— Congress, by the Act of March 3d, 1875 (18 IL S. Stat, at Large, 470), provides as follows, in the first section thereof : (1.) That the Circuit Courts of the United States shall have exclusive cognizance of all crimes and offenses cognizable under the authority of the United States, except as otherwise provided by law, and concurrent jurisdiction with the District Courts of the crimes and offenses cognizable therein. (2.) That these courts shall have original cognizance, concur- rent with the courts of the several States, of all suits of a civil nature at common law or in equity, where the matter in dispute exceeds, exclusive of costs, the sum or value of five hundred dol- lars, and arising under the Constitution, or laws of the United States, or treaties made or which shall be made under their author- ity, or in which the United States are plaintiffs or petitioners, or in which there shall be a controversy between citizens of different States, or a controversy between citizens of the same State claim- ing lands under grants of different States, or a controversy between citizens of a State and foreign states, citizens, or subjects. This act designates the cases in which the original jurisdiction of the Circuit Courts of the United States shall be exclusive of State courts, and those in which it shall not be thus exclusive. A concurrent jurisdiction on the part of State courts is permitted in 614 EXCLUSIVE AND CONCURRENT JURISDICTION. all the civil suits specified in the first section of the act. This permission does not directly bestow such jurisdiction upon State courts, but simply omits to exclude it, and hence leaves the ques- tion, whether they can exercise it in all of the cases mentioned, to be determined by the courts themselves proceeding under State authority. Congress, commencing with the Judiciary Act of 1789, has thus assumed the power to prescribe the cases in which State courts shall be permitted to exercise jurisdiction within the field assigned by the Constitution to the judicial power of the United States. And, in the exercise of this power, it has never wholly excluded State courts from this field, and never opened the entire field to their jurisdiction. Such has been the policy of Congress in legislatively disposing of the question of jurisdiction, as between the Federal and State courts, in the cases and controversies specified in the third article of the Constitution. Where it permits a concurrent jurisdiction it provides for a transfer, before trial and judgment, of suits from State courts to the Circuit Courts of the United States, or for a review of the final judgments or decrees of the highest State courts, on writ of error, by the Supreme Court of the United States. And thus the judicial power of the United States is made effective and operative in all the cases specified, either by provid- ing for bringing them in the Federal courts in the first instance, or, if permitting them to be first brought in State courts, by pro- viding for their transference to Federal courts. CHAPTER II. FEDERAL AND STATE HABEAS CORPUS. 1. The Writ of Habeas Corpus. — This writ, as defined by Bouvier, is " a writ directed to the person detaining another, and commanding him to produce the body of the prisoner at a certain time and place, with the day and cause of his caption and deten- tion, to do, submit to, and receive whatsoever the court or judge awarding the writ shall consider in that behalf." (Law Diction.) The power to issue such a writ, and pass upon the question in- volved and raised by its issue, is judicial ; and it hence belongs to courts of justice or the judges thereof, or to those who, if not judges in the technical sense, are, nevertheless, invested by law with the power of performing this judicial function. The power, being derived from law, is in all cases subject to the regulations and qualifications that may be imposed by law. It is the province of law to fix the limits within which this power must be exercised. The purpose of the writ is to afford summary relief to those who are illegally restrained of their liberty, with the exception of the case in which the prisoner is by the writ brought into court for the purpose of being used as a witness. The party holding another under restraint is commanded to bring him into court or before the judge issuing the writ, with a statement of the reason for the detention, that an inquiry may be promptly made as to the lawfulness of such detention, and that, if not lawful, the person may at once be discharged therefrom. The writ of habeas corpus, though not a writ of error, or a writ of certiorari, is collaterally the exercise of appellate power, so far at least as to inquire and determine whether a person in custody under color of authority is lawfully deprived of his lib- erty. The applicant for the writ affirms the custody to be unlaw- ful, setting forth the facts of the case, and on this ground asks to be discharged. If, by his own statement, the custody appears to be lawful, then the writ will not be issued at all. If, however, 616 FEDERAL AND STATE HABEAS CORPUS. the facts as stated fairly raise the question, then an inquiry will be made by the issue of the writ. The proper range of inquiry, on the hearing of the case upon the issue made by the applicant for the writ and the return there- to, relates to the existence and legal validity of the process by which the party is detained ; and beyond this the inquiry cannot extend without exceeding its just limits. Testimony, within these limits, may be introduced to settle any question of fact. If the party is shown to be held by a legal process issued by com- petent authority, then the writ is dismissed and the party re- manded to the custody from which he sought to be released. It is not the province of the court or judge, upon merely habeas cor- pus proceedings, to review the judgment of another court, and correct errors which can be corrected only by an appeal or a writ of error. If, however, the detention rests on no legal process, or if the process itself does not rest upon lawful authority, then the party is entitled to a summary discharge. Such are the general principles of law in relation to the pur- pose and the exercise of judicial power in proceedings upon habeas corpus. 2. Federal and State Governments. — We have in this country two distinct and separate systems of government, operat- ing in the same territory, and among and upon the same people. One of these systems is the local government of the respective States, which are independent and sovereign political communities, except as their powers are limited by the Constitution of the "United States. The other is the Government of the United States, extending over the territory of all the States, acting directly upon the people composing these States, and supreme in the sphere of action assigned to it by the Constitution. These systems of government are conducted by distinct and separate agencies, legislative, executive, and judicial ; and the theory of the Constitution is that neither shall interfere with the legitimate operations of the other. The writ of habeas corpus is, in both of these systems, a recognized and established legal pro- cess, resting upon and regulated by constitutional or statutory provisions, or both. There is a Federal writ of habeas corpus, and a State writ of habeas corpus, the one issued under the authority of the United States, and the other issued under State authority. FEDERAL HABEAS CORPUS. 617 Both writs are essentially the same in their purpose and general characteristics. How far then, if at all, does the Federal writ extend to per- sons restrained of their liberty under State authority, or under color thereof ? How far, if at all, does the State writ extend to persons restrained of their liberty under the authority of the United States, or under color thereof ? These are the questions to be considered in this chapter. 3. Federal Habeas Corpus.— The Eevised Statutes of the United States contain the following provisions in relation to the Federal writ of habeas corpus: " The Supreme Court and the Circuit and District Courts shall have power to issue writs of habeas corpus" (Sec. 751.) " The several justices and judges of the said courts, within their respective jurisdictions, shall have power to grant writs of habeas corpus for the purpose of an inquiry into the cause of re- straint of liberty." (Sec. 752.) I " The writ of habeas corpus shall in no case extend to a prison- er in jail, unless where he is in custody under or by color of the 1 authority of the United States, or is committed for trial before some court thereof ; or is in custody for an act done or omitted in pursuance of a law of the United States, or of an order, process, or decree of a court or judge thereof ; or is in custody in violation of the Constitution, or of a law or treaty of the United States ; or, being a subject or citizen of a foreign state, and domiciled therein, is in custody for an act done or omitted under any alleged right, title, authority, privilege, protection, or exemption claimed under the commission, or order, or sanction of any foreign state, or under color thereof, the validity and effect whereof depend upon the law of nations ; or unless it is necessary to bring the prisoner into court to testify." (Sec. 753.) The first and second of the above sections give the power to p# the Federal courts, and to the several justices and judges of these courts, to issue writs of habeas corpus. This power extends to every species of the writ ; and, as to the meaning of the writ of habeas corpus, reference may be had to the common law, but not for the authority to issue the writ, since this depends upon statute. (Ex parte Bollman, ^Cranch, 75.) The other section specifies five classes of cases, in any one of which the writ may be issued. The section also declares that the writ shall not extend to a prisoner in jail, unless his case comes within one of these classes. 618 FEDERAL AND STATE HABEAS CORPUS. (1.) The first class embraces the cases in which the prisoner " is in custody under or by color of the authority of the United States, or is committed for trial before some court thereof." This has nothing to do with custody under State authority. (2.) The second class embraces the cases in which the prisoner " is in custody for an act done or omitted in pursuance of a law of the United States, or of an order, process, or decree of a court or judge thereof." The terms here used show that the party con- templated is not one who is in custody on the charge of any crime against the United States. The custody is for an act done or omitted in pursuance of United States law, or of the order of a Federal court or judge. It must, of course, be based on some State law ; and hence the case presented is that of a person im- prisoned under State law for his obedience to the laws of the United States, or to the order of some court or judge thereof. The occasion which originally led Congress to extend the writ of habeas corpus to this class of cases, grew out of the rebellious attitude of South Carolina in 1833 in respect to the tariff laws of the United States. The special design was to give the habeas cor- pus relief to any officers of the General Government, or persons acting under their authority, who, under the laws of that State, might be arrested and imprisoned for acts done or omitted in pur- suance of the laws of the United States, or of the orders or pro- cesses of any court or judge thereof. For this purpose Congress, in the seventh section of the Act of March 2d, 1833 (4 U. S. Stat, at Large, 632), provided as follows : • " That either of the justices of the Supreme Court, or a judge of any District Court of the United States, in addition to the authority already conferred by law, shall have power to grant writs of habeas corpus in all cases of a prisoner or prisoners in jail or confinement, where he or they shall be committed or con- fined on or under any authority or law, for any act done, or omitted to be done, in pursuance of a law of the United States, or any order, process, or decree of any judge or court thereof, any thing in any act of Congress to the contrary notwithstanding. And if any person or persons to whom such writ of habeas corpus may be directed, shall refuse to obey the same, or shall neglect or refuse to make return, or shall make a false return thereto, in ad- dition to the remedies already given by law, he or they shall be deemed and taken to be guilty of a misdemeanor, and shall, on conviction before any court of competent jurisdiction, be punished by fine not exceeding one thousand dollars, and by imprisonment FEDERAL HABEAS CORPUS. 619 not exceeding six months, or by either, according to the nature and aggravation of the crime." This section in the Act of March 2d, 1833, furnished the basis of the provision in the Eevised Statutes under consideration. The law as thus established, and still continued, is applicable to any case in which a person, for the reason stated, is held in cus- tody under State authority, or under color thereof. The Federal courts, proceeding under the supreme authority of the United States, may give the relief of habeas corpus. The General Gov- ernment surely has the right to protect its own officers and citizens against imprisonment by State authority for obedience to its laws. (3.) The third class embraces any case in which the prisoner " is in custody in violation of the Constitution or of a law or treaty of the United States," whether under color of State or Federal authority. The custody, in such a case, is not only unlawful, but is so as a violation of "the supreme law of the land." This pro- vision, originally made by the Act of February 5th, 1867 (14 U. S. Stat, at Large, 385), grew out of circumstances that were con- nected with the war of the Rebellion. The special design of Con- gress was to afford the habeas corpus relief to any person who, under State authority or under color thereof, might be imprisoned in violation of the Constitution, or a law or treaty of the United States. The original act expressly declared that such State author- ity " shall be deemed null and void." This provision is applicable to any case that comes within its terms. , If, for example, the Government of the United States should, under th« stipulations of a treaty, demand and receive a fugitive criminal from a foreign state, on the charge that he had violated a law of one of the States, and should then deliver the accused to the authorities of that State, and if these authorities, having obtained the custody, were to maintain and continue it in violation of the treaty under which the delivery was made by the foreign state, then, upon a proper application setting forth the facts, a Federal court would be authorized to grant a writ of ha- beas corpus, and if, upon the hearing of the case, it appeared that the custody was in violation of the treaty, to discharge the prisoner therefrom. The provision clearly covers such a case should it be found to exist ; and it is equally clear that there should be some way in ' which the General Government, having obtained from a foreign 620 FEDERAL AND STATE HABEAS CORPUS. government the custody of fugitive criminals against State author- ity, and having delivered them to such authority for trial and pun- ishment, may secure to them all the rights guaranteed to them by treaty, whether expressly or by implication. It is the duty of the General Government to see to it that the treaty is in no respect violated. (4.) The fourth class embraces any case in which the prisoner, " being a subject or citizen of a foreign state, and domiciled there- in, is in custody for an act done or omitted under any alleged right, title, authority, privilege, protection, or exemption claimed under the commission, or order, or sanction of any foreign state, or under color thereof, the validity and effect whereof depend upon the law of nations." This provision was suggested by the McLeod case which arose in the State of New York, and at one time threat- ened to involve the United States in serious complications with Great Britain. McLeod, who was arrested, indicted, and tried for murder in the State of New York, claimed, in reference to the matter charged against him as an offense, to have acted under the authority of the British government, and his claim was indorsed by that govern- ment. The State of New York, through its Supreme Court, in- sisted upon its right to try the prisoner for the offense charged ; and there was at the time no law of the United States giving any Federal court the power to exercise any jurisdiction in the prem- ises. Fortunately, the jury acquitted McLeod, and he was at once discharged. Congress, seeing the peril in this case, provided by the Act of August 29th, 1842 (5 U. S. Stat, at Large, 539), that the Federal writ of habeas corpus should be applicable to all such cases. The question involved in such a case depends upon the law of nations ; and it is the province of the Federal courts, rather than State courts, to pass upon such a question. The original act authorized any justice of the Supreme Court, or judge of a District Court of the United States, to bring the prisoner before him by habeas cor- pus, and if, upon the hearing of the case, it appeared that the pris- oner was entitled to be discharged on the ground alleged, then at once to discharge him from custody. It suspended proceeding against the prisoner while the case was being heard by habeas cor- pus, and, after his discharge in this way, it made any further pro- ceeding against him unlawful. FEDERAL HABEAS CORPUS. 621 (5.) The fifth and last class embraces the cases in which " it is necessary to bring the prisoner into court to testify." This pro- vision was made in the fourteenth section of the Judiciary Act of 1789. (1 IT. S. Stat, at Large, 73.) No question in such a case is raised as to the lawfulness of the custody. The only object of the writ is simply to obtain the testimony of the prisoner in a case pending before the court. Such, then, are the cases of custody to which the Federal writ of habeas corpus is applicable, and to which it is expressly limited by law. It is undoubtedly true, as a general principle, that the Federal courts have no jurisdiction to inquire by writ of habeas corpus into the imprisonment of persons held in custody under State authority, or under color thereof. It is the special province of State courts to inquire by habeas corpus into the lawfulness of the custody in such cases. Mr. Hurd says : " None of the courts of the United States have authority to grant the writ for the pur- pose of inquiring into the cause of commitment, where the prisoner is imprisoned under process issued from the State courts." (Hurd's Habeas Corpus, 2d ed. p. 143.) This states the general rule, without the necessary qualifica- tions. A truer statement is that the Federal courts have no such authority, except in the cases specified in section 753 of the Re- vised Statutes of the United States, and in which Congress has extended the Federal writ to prisoners in jail, even though the custody may be under State authority. These exceptions relate to cases in which rights under the Constitution, or a law or treaty of the United States, or under the law of nations, may be involved. Congress has provided that, in such cases, the Federal writ of ha- beas corpus shall be available to persons held in custody under State authority. One of the points laid down by the court in Ex parte Waddy Thompson, 24 A. L. Eeg. 522, was that " the power given to the Federal courts to arrest the arm of State authorities, and to dis- charge a person held by them, is one of great delicacy, and should only be exercised where it clearly appears that justice demands it." So, also, in In re Jesse H. Bull, 4 Dill. 323, it was held that, " be- fore a party will be released on a writ of habeas corpus, it must be made to appear with reasonable certainty that the imprisonment under State authority is for an act done in pursuance of Federal authority and warranted by it." The case must come within one 622 FEDERAL AND STATE HABEAS CORPUS. of the classes of cases specified by Congress, as cases in which the Federal writ may be issued. Mr. Bump, in his '' Federal Procedure," pp. 460-462, cites, at considerable length, the cases which come, and those which do not come, within the provisions made by Congress on this subject, giv- ing the authorities therefor. We present, as follows, several of these cases : If a Federal officer is imprisoned under process issued by a State court for an act done in pursuance of a law of the United States ; or if a person be indicted for murder under a State law committed while executing a writ issued by a Federal court ; or if a person has been arrested under a State law for an act done while engaged in the execution of a process issued by a Federal officer ; or if an agent appointed by the governor of a State, to make a de- mand upon the governor of another State for a fugitive from jus- tice, is arrested for an act done by him as such agent ; or if a person is convicted in a State court for an act done by him while in the service of the United States in a rebellious territory ; or if a Federal supervisor of elections is arrested by a State officer for acts done in the discharge of his duty ; or if a person has been con- victed in a State court for perjury-before an officer of the United States ; or if, under a State law void because in conflict with the Constitution or a law or treaty of the United States, a person has been convicted in a State court ; or if a person is imprisoned by a State court for a crime committed in a place under the exclusive jurisdiction of the United States, — then, in each of these cases, the Federal writ of habeas corpus is an appropriate and lawful remedy for the relief of the prisoner. {Ex parte M. R. Robinson, 6 Mc- Lean, 335 ; The United States v. Jailer, 2 Abb. C. C. 265 ; The. United States v. Morris, 2 A. L. Reg. 348 ; Ex parte H. B. Titus, 8 Ben. 411 ; Coleman v. Tennessee, 7 Otto, 509 ; Ex parte Geissler, 13 C. L. K 59 ; In re Wong Young Quy, 2 Fed. Eep. 624 ; and Ex parte John W. Totem, 1 Hughes, 558.) It was held by Judge Blatchford, in In re Thomas H. Weill, 8 Blatch. 156, that no State court, judge, or officer, has jurisdiction to release a soldier, on habeas corpus, when it appears, prima facie, that he is held to service in the army by an officer acting under the authority of the United States and claiming to hold him as an enlisted soldier ; that, in the return to a writ of habeas corpus is- sued by a State court or judge in such a case, the officer is not FEDERAL HABEAS CORPUS. 623 bound to produce the body of the soldier ; and that where such officer has, by a State court, been imprisoned for contempt, be- cause he did not produce the body of the soldier, and did not make a sworn return to the writ, he may, by a Circuit Court of the United States, on a writ of habeas corpus, be discharged from such imprisonment. In Ex parte McCready, 1 Hughes, 598, it was held that the law of Virginia which prohibits persons other than citizens of that State from taking or planting oysters in the waters of that State, and subjecting offenders to forfeiture and indictment, is unconsti- tutional ; that a person indicted and imprisoned under this law, is deprived of his liberty in violation of the Constitution of the United States ; and that, consequently, he may, on habeas corpus, be released from such imprisonment by a court or judge of the United States. In The Electoral College of South Carolina, 1 Hughes, 571, it was held that a Federal court may issue a writ of habeas corpus, in favor of petitioners imprisoned for contempt by a State court, where the acts constituting the alleged contempt were done in per- formance of duties created by the Constitution and laws of the United States, and the petitioners acted under the protection of these laws and of the courts of the United States, and where the record clearly shows that the State court exceeded its powers in committing the petitioners to prison for the alleged contempt. In Ex parte Reynolds, 3 Hughes, 559, a habeas corpus was is- sued by the Circuit Court of the United States, requiring the sher- iff of a county to bring the bodies of two colored persons into court, with a statement of the cause of their detention, on the ground that, according to the allegations in the petition' of the prisoners, they had been tried capitally before a State court by a jury exclusively white, which, as they claimed, was in contraven- tion of the Constitution and laws of the United States. In Ex parte Turner, 3 Woods, 603, it was held that if a dis- trict attorney and marshal of the United States are imprisoned by a State court for contempt, because not obeying a subpoena duces tecum commanding them to produce papers which had been pre- sented to the grand jury of a Circuit Court of the United States, and which were held to be used as evidence on the trial of the indictment found by the grand jury, a Circuit Court may discharge them by writ of habeas corpus. It was held in this case that the 624 FEDERAL AND STATE HABEAS CORPUS. papers required by the State court were proper evidence in a pend- ing prosecution before the Circuit Court; that the court had a right to retain them until they had been thus used ; that no other court of concurrent jurisdiction could, without its permission, take them from its custody ; that its officers could not be required to produce such papers before the grand jury of a State court ; and that officers of a court of the United States, if arrested by a State court for contempt, in refusing to obey such a requirement, may and should be discharged by a Federal writ of habeas corpus. The theory of this ruling is that the officers in such circumstances are acting under the authority and protection of Federal law. They cannot commit a contempt against a State court, or an offense against State authority, while simply doing what they are by Fed- eral law required to do. Such are some of the cases which contain the construction placed by courts upon section 753 of the Revised Statutes of the United States, and the antecedent legislation of Congress which formed the basis of this section. It would manifestly involve a serious conflict of jurisdictions, if, in ordinary cases of imprisonment under State authority, the Federal writ of habeas corpus were deemed concurrent with the State writ, so that a party imprisoned might apply for relief to either a Federal or a State court. Such a use of the writ would be an interference with State rights, wholly unwarranted by the Constitution. Congress, in bestowing the power on the Federal courts for the relief of persons in jail, has, hence, limited it to persons in custody under the authority of the United States, or, if in custody under I State authority, to cases in which the imprisonment is for some ; act done or omitted in pursuance of a law of the United States, or in which the Constitution, or a law or treaty of the United States, ', is violated thereby, or in which the law of nations and the rights of a foreign state are involved in such imprisonment, or in which it is necessary to use the prisoner as a witness. All other cases of imprisonment under State authority are beyond the jurisdiction of the Federal courts. The power of these courts on this subject is purely statutory, and is, therefore, confined to the limits fixed by statute. 4. The State Habeas Corpus.— The question whether State courts have jurisdiction, concurrent with the Federal courts, to ' FEDERAL HABEAS CORPUS. 625 inquire by writ of habeas corpus into the lawfulness of the impris- onment or detention of persons held or detained under the author- ity of the United States, or under color thereof, and to pass judg- ment upon the validity of their commitment or detention, and, if deciding against the validity thereof, to discharge them from such custody or detention, was, for a long series of years, the subject of conflicting decisions, not only in the State courts, but to some ex- tent in the inferior Federal courts. The courts of some of the States, as in Massachusetts, Pennsylvania, and New Jersey, claimed and exercised the power. In other States the courts disclaimed the jurisdiction, and declined to exercise it. It would require a volume to give the full history of the judi- cial discussion of this subject. Mr. Hurd, in his " Habeas Corpus," 2d ed. pp. 154-198, states the leading cases on both sides. (1.) The Case of Booth. — The first consideration of this ques- tion by the Supreme Court of the United States was in 1858, in the cases of Ablernan v. Booth, and The United States v. Booth, 21 How. 506. Both of these cases were considered and determined at the same time, since both involved essentially the same matter. The facts in these cases are the following : Booth was charged before a United States Commissioner with aiding in the escape of a fugitive slave from the deputy marshal who had him in custody under the Act of September 18th, 1850. (9 U. S. Stat, at Large, 462.) The law made the act a crime against the United States, and provided for its punishment. The Commissioner, upon the preliminary inquiry, being satisfied that the offense charged had been committed, held Booth to answer before the District Court of the United States for the district of Wisconsin, and finally committed him to the custody of the mar- shal of the district, to be delivered to the keeper of the jail, and there held until he should be discharged in due course of law. Booth, the next day after his commitment to prison, applied to one of the judges of the Supreme Court of Wisconsin for a writ of habeas corpus. The writ was issued, and the marshal made due return thereto, stating under what authority he held the prisoner. The judge, after hearing the case, decided that the custody was illegal, and ordered the prisoners discharge, which was accordingly done. The marshal, after this decision, carried the case by a proper proceeding to the Supreme Court of the State ; and this court af- 40 626 FEDERAL AND STATE HABEAS CORPUS. firmed the order of one of its judges discharging Booth. The marshal, whose name was Ableman, then sued out a writ of error, returnable to the Supreme Court of the United States, thus bring- ing the case before this court for a review of the judgment ren- dered by the Supreme Court of Wisconsin. Chief Justice Taney, in stating the opinion of the court, said with reference to these facts : " A judge of the Supreme Court of Wisconsin, in the first of these cases, claimed and exercised the right to supervise and annul the proceedings of a Commissioner of the United States, and to discharge a prisoner who had been committed by the Commissioner for an offense against the laws of this Government, and this exer- cise of power was afterwards sanctioned and affirmed by the Su- preme Court of the State." Booth, after his discharge by the State judge, was indicted by the grand jury of the District Court of the United States for the offense with which he was charged before the Commissioner, and for which he had been committed to prison. Being tried on this indictment, he was convicted, and by the court sentenced to im- prisonment for one month and to pay a fine of one thousand dol- lars. He then applied to the Supreme Court of Wisconsin for a writ of habeas corpus ; and the court having granted the writ and heard the case, decided that his imprisonment was illegal and or- dered him to be discharged. The Attorney- General of the United States then took the proper steps to bring this action before the Supreme Court of the United States for review ; and in regard to this action Chief Justice Taney said : " The State court has gone a step further, and claimed and exercised jurisdiction over the proceedings and judgment of a Dis- trict Court of the United States, and upon a summary and collat- eral proceeding, by habeas corpus, has set aside and annulled its judgment, and discharged a prisoner who had been tried and found guilty of an offense against the laws of the United States, and sen- tenced to imprisonment by the District Court." Both of these cases involved essentially the same question, and that question was whether a State court or a State judge could, by writ of habeas corpus, discharge a prisoner held in custody under the authority of the United States, as exercised by an officer thereof. If this question were answered in the affirmative, then, as remarked by Chief Justice Taney, " no offense against the laws FEDERAL HABEAS CORPUS. 627 of the United States can be punished in their own courts, without the permission and according to the judgment of the courts of the State in which the party happens to be imprisoned." The power, as claimed and exercised by the Supreme Court of Wisconsin, if it exists at all, applies, as justly said by the Chief Justice, to all offenses against the United States, from the highest to the lowest ; and, moreover, if such a power belongs to the courts and judges of that State, it would equally belong to the courts and judges of every other State. The result would be that the Government of the United States could not, through its own courts, execute its penal laws against offenders in any case in which a State court should see fit to interfere with the execution by writ of habeas corpus. Having stated the character of these cases, and also the ques- tion which they involved, Chief Justice Taney presented a care- fully prepared argument, founded upon the Constitution of the United States, in which he showed that although the powers of the General Government and those of the State governments are exercised within the same territorial limits, they are, nevertheless, separate and distinct, and that the sphere of action assigned by the Constitution to the United States " is as far beyond the reach of the judicial process issued by a State judge or a State court, as if the line was traced by landmarks and monuments visible to the eye." The doctrine of the court, as stated by its Chief Justice, with reference to these cases, is the following : " "We do not question the authority of a State court or judge, who is authorized by the laws of the State to issue the writ of ha- beas corpus, to issue it in any case where the party is imprisoned within its territorial limits, provided it does not appear, when the application is made, that the person imprisoned is in custody under the authority of the United States. The court or judge has a right to inquire, in this mode of proceeding, for what cause and by what authority the prisoner is confined within the territorial limits of the State sovereignty. And it is the duty of the marshal, or other person having the custody of the prisoner, to make known to the judge or court, by a proper return, the authority by which he holds him in custody. This right to inquire by process of habeas corpus, and the duty of the officer to make a return, grows, necessarily, out of the complex character of our government, and the existence of two distinct and separate sovereignties within the same territo- rial space, each of them restricted in its powers, and each, within the sphere of action prescribed by the Constitution of the United 628 FEDERAL AND STATE HABEAS CORPUS. States, independent of the other. But after the return is made, and the State judge or court judicially apprised that the party is in custody under the authority of the united States, they can pro- ceed no further. They then know that the prisoner is within the jurisdiction of another government, and that neither the writ of habeas corpus, nor any other process issued under State authority, can pass over the line of division between the two sovereignties. He is then within the dominion and exclusive jurisdiction of the United States. If he has committed an offense against their laws, their tribunals alone can punish him. If he is wrongfully im- prisoned, their judicial tribunals can release him and afford him relief." The Chief Justice added, that while it is the duty of the mar- shal to make the proper return, it is also " his duty to obey the process of the United States, to hold the prisoner in custody under it, and to refuse obedience to the mandate or process of any other government," and, if necessary, " to call to his aid any force that might be necessary to maintain the authority of law against illegal interference." The order of a State court or judge directing the discharge of the prisoner in such circumstances would be without any legal authority ; and it would be the duty of the marshal to disobey it. Any attempt to enforce the order would be " nothing less than lawless violence." The decision of the Supreme Court in these cases, and the lan- guage of Chief Justice Taney in stating the views of the court, led to some conflict of opinion in State courts as to the construction to be given to the decision and the language. It was maintained by some State courts that the ruling of the Supreme Court applied only to those cases in which a prisoner is held in custody under undisputed lawful authority of the United States, and, consequent- ly, that where the lawfulness of the authority was in dispute, a State court might still issue the writ of habeas corpus, and pass upon the question whether the prisoner was in custody under the laws of the United States, and in conformity therewith, especially when the custody is not the result of a judicial proceeding. It was held by other State courts that the ruling applied to any case in which the prisoner was in the custody of a Federal officer under claim and color of the authority of the United States, and, hence, that when this fact appeared, it was conclusive as against any ju- risdiction by State courts. Conflicting decisions in State courts resulted from this diversity of construction. FEDERAL HABEAS CORPUS. 629 (2.) TarbWs Case. — The same general question was, in 1871, considered by the Supreme Court of the United States in TarbWs Case, 13 Wall. 397. Tarble, being in the custody of a recruiting officer of the United States as an enlisted soldier, was, on writ of habeas corpus, discharged by a court commissioner of Wisconsin, who under the laws of that State had the authority to issue - writs of habeas corpus. The Supreme Court of the State subsequently affirmed the order of the commissioner. {In re Tarble, 25 Wis. 390.) This judgment of affirmation was by writ of error carried to the Supreme Court of the United States for review. Mr. Justice Field, in delivering the opinion of the court, said that the question to be determined is " whether any judicial officer of a State has jurisdiction to issue a writ of habeas corpus, or to continue proceedings under the writ when issued, for the discharge of a person held under the authority, or claim and color of the au- thority, of the United States, by an officer of that Government." Referring to the cases of Ableman v. Booth, and The United States v. Booth, supra, he further said that " the decision of this court in the two cases which grew out of the arrest of Booth, * * * disposes alike of the claim of jurisdiction by a State court, or by a State judge, to interfere with the authority of the United States, whether that authority be exercised by a Federal officer or be exercised by a Federal tribunal." In respect to the theory, adopted by some State courts, that the decision referred to was applicable only " to cases where a prisoner is held under undisputed lawful authority of the United States, as distinguished from his imprisonment under claim and color of such authority," Mr. Justice Field said "that the decision does not admit of any such limitation." Referring to the language used by Chief Justice Taney in the cases which grew out of the arrest of Booth, he further said : " All that is meant by the language used is, that the State judge or State court shquld proceed no further when it appears, from the application of the party, or the return made, that the prisoner is held by an officer of the United States under what, in truth, purports to be the authority of the United States, that is, an authority, the validity of which is to be deter- mined by the Constitution and laws of the United States. If a party thus held be illegally imprisoned, it is for the courts or judi- cial officers of the United States, and those courts or officers alone, to grant him release." 630 FEDERAL AND STATE HABEAS COEPUS. The doctrine established by this case, as given in the syllabus thereof, is the following : "A State judge has no jurisdiction to issue a writ of habeas corpus, or to continue proceedings under the writ when issued, for the discharge of a person held under the authority, or claim and color of the authority, of the United States, by an officer of that Government. If, upon the application for the writ, it appear that the party, alleged to be illegally restrained of his liberty, is held under the authority, or claim and color of the authority, of the United States, by an officer of that Government, the writ should be refused. If this fact do not thus appear, the State judge has the right to inquire into the cause of imprisonment, and ascertain by what authority the person is held within the limits of the State ; and it is the duty of the marshal, or other officer having the custody of the prisoner, to give, by a proper return, informa- tion in this respect. But after he is fully apprised by the return that the party is held by an officer of the United States, under the authority, or claim and color of the authority, of the United States, he can proceed no further." These decisions of the Supreme Court of the United States set- tle the question that the jurisdiction of State courts, by writ of habeas corpus, does not extend to the discharge of persons held in Custody under the authority, or claim 'and color of the authority, of the United States. The Federal courts are the proper courts to take cognizance of such cases, and afford the necessary relief, and with them State courts have no concurrent jurisdiction. Any in- terference with such custody by a State court or a State judge is itself an unlawful act, since it is without jurisdiction. State laws cannot make it lawful. The Constitution of the United States, as expounded by the supreme judicial authority of the'land, excludes and forbids the interference. The government of the respective States and that of the United States, though existing and acting within the same territo- rial limits, and upon the same people, are distinct and separate in their spheres of action. " Neither," as remarked by Mr. Justice Field in Tarble's Case, " can intrude with its judicial process into the domain of the other, except so far as such intrusion may be necessary on the part of the National Government to preserve its rightful supremacy in cases of conflict of authority." The only cases in which the Federal writ of habeas corpus ex- tends into the domain of State authority, are those in which the Constitution, or a law or treaty of the United States, or the law of FEDERAL HABEAS CORPUS. 631 nations may be involved in the custody enforced by such authority, or in which it is necessary to bring prisoners into court to testify. In all other cases the State writ of habeas corpus is exclusive in this domain. The latter writ in no case extends into the domain of the authority of the United States. Here the Federal writ is exclusive ; and, hence, here all relief to persons, alleged to be ille- gally restrained of their liberty, must be furnished by Federal courts, under such regulations as Congress may see fit to prescribe. CHAPTER III. FEDERAL JURISPRUDENCE AND STATE LAWS. SECTION I. mTBODTJCTOBY STATEMENT. 1. Constitutional Provisions. — The Constitution extends the judicial power of the United States to controversies between two or more States, between a State and citizens of another State, be- tween citizens of different States, between citizens of the same State claiming lands under grants of different States, and between a State or the citizens thereof and foreign states, citizens or subjects. The Eleventh Amendment to the Constitution modifies two of these provisions, by declaring 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 foreign state." The jurisdiction conferred by these provisions of the original Constitution, subject to the qualification imposed by the Eleventh Amendment, rests upon the character of the parties to the con- troversies mentioned, and not upon the subject-matter involved therein, with the single exception that, when the controversy is between citizens of the same State, it must relate to lands claimed under grants of different States. The general principle of these provisions is that jurisdiction depends on the parties to the suit, without regard to the nature of the matter in dispute. 2. Legislative Provisions — Section 629 of the Eevised Statutes of the United States gives to the Circuit Courts original jurisdiction of all suits of a civil nature at common law or in equity, where the matter in dispute, exclusive of costs, exceeds INTRODUCTORY STATEMENT. 633 the sum or value of five hundred dollars, and an alien is a party, or the suit is between a citizen of a State where it is brought and a citizen of another State. Section 687 of these Statutes gives to the Supreme Court exclusive jurisdiction of all controversies of a civil nature where a State is a party, except between a State and its citizens, or be- tween a State and citizens of other States or aliens, in which latter cases it shall have original but not exclusive jurisdiction. Section 691 of the same Statutes gives, to the Supreme Court of the United States, appellate jurisdiction of all final judgments of any Circuit Court, or of any District Court acting as a Circuit Court, in civil actions brought there by original process, or re- moved there from courts of the several States, and of all final judgments of any Circuit Court in civil actions removed there from any District Court by appeal of writ of error, where the matter in dispute, exclusive of costs, exceeds the sum or value of two thousand dollars. Section Third of the Act of February 16th, 1875 (18 U. S. Stat, at Large, 315), so modified this legisla- tion as to provide that the jurisdictional sum should exceed five thousand dollars, exclusive of costs. Congress, by the Act of March 3d, 1875 (18 U. S. Stat, at Large, 470), provided that the Circuit Courts of the United States shall have original cognizance, concurrent with the courts of the several States, of all suits of a civil nature at common law or in equity, where the matter in dispute exceeds, exclusive of costs, the sum or value of five hundred dollars, in which there shall be a controversy between citizens of different States, or a controversy between citizens of the same State claiming lands under grants of different States, or a controversy between citizens of a State and foreign states, citizens or subjects. These provisions of law are founded upon, and designed to carry into effect, corresponding provisions in the Constitution itself. 3. The Snfoject-matter. — Many of the controversies thus provided for, if not all of them, depend, as to the subject-matter involved, not on the Constitution, laws, or treaties of the United States, but on State constitutions or laws. The jurisdiction over the parties depends on the Federal Constitution, or the laws or treaties of the United States, while the subject-matter in dispute 634 FEDERAL JURISPRUDENCE AND STATE LAWS. has its legal basis in State authority, and might be determined by State courts. What then, in such cases, shall be the rule of decision when the trial is had in a Federal court ? If, for example, a citizen of a State brings a suit in the proper Circuit Court against a citizen of another State, in which the subject-matter of the controversy depends upon State laws, what is the rule by which the courts shall be governed in deciding the question at issue ? The obvious answer to this question is that the law upon which the matter depends should be the rule. Such would be the fact if the suit, as might have been, had been brought in a State court. Shall a different rule be adopted when a suit is brought in a Fed- eral court, having jurisdiction over it by reason of the parties, but in which the matter in controversy depends on a State law ? This would lead to endless confusion, and often, if not always, to a grave perversion of justice. It is manifest on the very face of the case that, if a Circuit Court of the United States decides a controversy between citizens of different States, in which the legal basis of the controversy is solely in State laws, then the court ought to apply and administer these laws. This must have been anticipated and intended by the framers of the Constitution, and by the people in adopting it. 4k. Authority of State Laws. — It is well to remember that the constitutions and laws of the several States, not inconsistent with the Constitution, laws, or treaties of the United States, are not superseded or made inoperative by the Federal system. They still exist in all their force, concurrently with that system, as the foundation and rule of rights, as regulations of contracts, as laws for the disposition of property, whether real or personal ; and it is the province of State courts to interpret and apply these laws, as fully as it would be if the Federal system did not exist at all. " The powers not delegated to the United States by the Constitu- tion, nor prohibited by it to the States, are reserved to the States respectively, or to the people." These reserved powers, both leg- islative and judicial, relate to a large body of rights and interests, which may be matters of controversy in State courts, and upon which such courts have full authority to pass judgment. The autonomy of the States is not destroyed by the Constitution. And, if the Federal courts have jurisdiction over the parties LEGISLATIVE ADOPTION OF STATE LAWS. 635 in cases where the matter in controversy depends on State laws, and where, by reason of the parties, they also have jurisdiction over the subject-matter, then they must have authority to apply and administer the State laws upon which the controversy de- pends, and in such cases must be bound by these laws. This is an obvious requirement of simple justice. The question cannot be one for the discretion of Federal courts. They stand in the place of State courts, and in the cases contemplated must find their rules of decision in State laws. SECTION II. LEGISLATIVE ADOPTION OF STATE LAWS. The Thirty-fourth Section of the Judiciary Act of 1789 (i IT. S. Stat, at Large, 73), as reproduced in Section 721 of the Ee- vised Statutes of the United States, establishes the following pro- vision on the subject under consideration : " The laws of the several States, except where the Constitu- tion, treaties, or statutes of the United States otherwise require or provide, shall be regarded as rules of decision in trials at com- mon law, in the courts of the United States, in cases where they apply." This, within the limits and subject to the qualifications speci- fied, is an imperative rule for the guidance of Federal courts. It virtually re-enacts State laws as "rules of decision," in these courts, in the cases named. Their jurisdiction does not depend upon these laws, and cannot be defeated by them ; yet they are to be governed thereby, so far as the laws are applicable, and not inconsistent with the Constitution, laws, or treaties of the United States. Mr. Justice Story, in stating the opinion of the court, in The Steamboat Orleans v. Phoebus, 11 Pet. 175, 184, said: "The local laws can never confer jurisdiction on the courts of the United States. They can only furnish rules to ascertain the rights of the parties, and thus assist in the administration of the proper remedies, where the jurisdiction is vested by the laws of the United States." The rule, thus* provided, originally applied to the laws of the several States that were members of the Union when the rule was 636 FEDERAL JURISPRUDENCE AND STATE LAWS. first established ; and so far as the common law had been adopted by these States as a part of their local law in civil cases that were not cases of equity or admiralty and maritime jurisdiction, it doubtless applied to the common law as thus adopted, and by the adoption made a part of their local law. The rule is general in its terms, and permanent in its reasons, and includes State laws existing at the time of its original enactment and any such laws that might thereafter be passed by any State of the Union. It is just as applicable to the laws of the several States existing to-day, as it was to those of the several States existing in 1789. The courts of the United States have had repeated occasions to construe this statute ; and from their construction, as well as from the language itself, we gather the following results as to its meaning and application : 1. Trials at Common Law. — The statute declares that the laws referred to shall be rules of decision " in trials at common law." It has no application to any other trials than those em- braced in this description. What then are "trials at common law?" Chief Justice Marshall, referring, in The United States v. Aaron Burr, 2 Robertson, 481, to the words " trials at common law," said: "It would seem to me too that the technical term 'trials at common law,' used in the section, is not correctly appli- cable to prosecutions for crimes. I have always conceived them to be, in this section, applied to civil suits as contradistinguished from criminal prosecutions, as well as to suits at common law as contradistinguished from those which come before the court sitting as a court of equity or admiralty." This limits the phrase to trials of a civil nature in which simply legal rights form the issue to be determined. In The United States v. Reid, 12 How. 361, it was held that the thirty-fourth section of the Judiciary Act " applies only to the trial of civil actions at common law." Chief Justice Taney said in this case : " The language of this section cannot, upon any fair construc- tion, be extended beyond civil causes at common law, as contra- distinguished from suits in equity. So far as concerns rights of property, it is the only rule that could be adopted by the courts of the United States, and the only one that Congress had the power LEGISLATIVE ADOPTION OF STATE LAWS. 637 to establish. And the section above quoted was merely intended to confer on the courts of the United States the jurisdiction nec- essary to enable them to administer the laws of the States. But it could not be supposed, without very plain words to show it, that Congress intended to give to the States the power of prescribing the rules of evidence in trials for offenses against the United States. For this construction would in effect place the criminal jurisprudence of one sovereignty under the control of another." Judge Ingersoll, in Segee v. Thomas, 3 Blatch. 11, 18, said : " This section was intended to furnish a rule to guide the courts of the United States in the formation of their judgments, in trials or litigations in court, in cases at common law. To enable them to form a judgment in such cases, the laws of the several States are to be regarded as rules of decision, or rules of evidence. But the section does not apply to cases in equity, or to criminal cases." By the phrase " trials at common law," as intended in the stat- ute, we must then understand civil suits or trials in distinction from criminal trials, and also from equity and admiralty suits or trials. The reference is exclusively to this class of trials ; and the statute, consequently, furnishes no rule in respect to trials of the other classes of cases. (Blanchard v. Sprague, 1 Cliff. 288 ; and The United States v. Mundell, 1 Hughes, 415.) 2. Limitations in the Statute. — The statute contains limita- tions or exceptions to its application, even in " trials at common law." If, in respect to these trials, " the Constitution, treaties, or statutes of the United States otherwise require or provide," then, so far as this is the fact, State laws cease to be rules of decision in the Federal courts. To such cases the statute does not apply. If the constitution or law of a State be inconsistent with the Constitution, or a law or treaty of the United States, it can furnish no rule for the guidance of a Federal court ; and whether such in- consistency exists or not in a given case would be a question for that court to determine. The Constitution of the United States provides that no State shall pass any law " impairing the obligation of contracts ; " and hence a State law exposed to this objection, being for this reason inoperative and void, could have no force or effect in a Federal court. It would be the duty of the court to disregard it altogether. (Bronson v. Kinzie, 1 How. 311 ; The Bank v. Dudley, 2 Pet. 492; McCracken v. Hay ward, 2 How. 638 FEDERAL JURISPRUDENCE AND STATE LAWS. 608 ; Delmas v. The Insurance Company, 14 Wall. 661 ; and White v. Hart, 13 Wall. 64:6.) So, also, State laws are, in the statute, declared to be rules of decisions only "in cases where they apply." The evident mean- ing of this language is that the matter in litigation must arise under, and be dependent upon, the laws of a State or States. If this be not a fact, then State laws do not apply to the matter, and cannot be resorted to for the purpose of settling the rights of the parties. No other State laws than those which thus apply are, by the Federal courts, to be regarded as " rules of decision." The test of applicability is the dependence of the matter in controversy upon a State law. Moreover, the court, having jurisdiction to try the issue, is the tribunal to determine whether, in the case pending before it, a State law applies. This is a question of fact in part as to the na- ture of the issue, and a question of construction in part as to the import of a law. If the point in litigation relates to a title to land, then the State law must relate to the same subject, in order to be a rule of decision ; and of this question the court must judge in each case, applying such laws, and such only, as relate to the matter in hand. The limitation of the statute does not confine the court exclu- sively to the laws of the State in which it may be sitting. The statute says that " the laws of the several States " are to be re- ■ garded as rules of decision "in cases where they apply." This embraces the laws of any State, upon which the rights of the parties, either in whole or in part, may be dependent, whether it is or not the State in which the court happens to sit. It is the province of the court to consider all State laws that apply to the case, and affect the rights of the parties in litigation. If, as may be the fact, the controversy, as to its subject-matter, depends upon the laws of more than one State, then these laws, so far as they are pertinent to the issue, are to be regarded as " rules of decision." There is nothing in the statute that limits its operation to the par- ticular State in which the court may be holding its session. On this point Mr. Abbott says : " And the Circuit and District Courts are thus called upon to administer, not only the laws of the State in which they may be respectively sitting, but the laws of . other States of the Union wherein rights litigated before them de- pend upon such laws." (Abb. U. S. Pr. vol. 1, p. 75.) LEGISLATIVE ADOPTION OF STATE LAWS. 639 This statute has no application to the laws of the Territories of the United States, since these Territories are not States, and Terri- torial courts are not courts of the United States in the sense of the statute. {American Ins. Co. v. Canter, 1 Pet. 607; Benner v. Porter, 9 How. 235 ; and Clinton v. Englebrecht, 13 Wall. 434.) 3. Judicial Notice of State Laws. — The State laws, referred to in the statute, do not, like foreign laws, need to be proved in the Federal courts, as matters of fact. The acts of the legislature of any State are sufficiently authenticated by having the seal of the State annexed thereto. (Rev. Stat. sec. 905.) These acts, though not conferring jurisdiction upon the Federal courts, nevertheless, in many cases, furnish the means of ascertaining and determining the rights of litigant parties ; and hence the statute refers to them, as proper subjects for judicial notice, just as other statutes refer to the laws of the United States. Mr. Justice Story, in Owings v. Hull, 9 Pet. 607, 625, said : " The Circuit Courts of the United States are created by Con- fress, not for the purpose of administering the local law of a single tate alone, but to administer the laws of all the States in the Union, in cases to which they respectively apply. The judicial power conferred on the General Government, by the Constitution,, extends to many cases arising under the laws of the different States. And this court is called upon, in the exercise of its appel- late jurisdiction, constantly to take notice of and administer the jurisprudence of all the States. That jurisprudence is then, in no just sense, a foreign jurisprudence, to be proved in the courts of the United States by the ordinary methods of proof by which the laws of a foreign country are to be established ; but it is to be ju- dicially taken notice of in the same manner as the laws of the United States are taken notice of by these courts." In Pennington v. Gibson, 16 How. 65, it was held that " the courts of the United States can and should take notice of the laws and judicial decisions of the several States of this Union, and, with respect to them, no averment need be made in pleading, which would not be necessary within the respective States." Chief Jus- tice Taney, in The Covington Drawbridge Co. v. Shepherd, 20 How. 227, 232, said that " wherever a law of a State is held to be a public one, to be judicially taken notice of by the State courts, it must be regarded in like manner by a court of the United States, when it is required to administer the laws of the State." 64:0 FEDERAL JURISPRUDENCE AND STATE LAWS. 4. Rules Of Decision. — The laws of a State or States that are applicable to the case before the court, and not excluded by the exception stated in the statute, are declared to be " rules of decis- ion " in the class of trials mentioned. Chief Justice Marshall, in Wayman v. Southard, 10 "Wheat. 1, 24, referring to this statute, said : " But it has, we believe, been generally considered by gentlemen of the profession, as furnishing a rule to guide the court in the formation of its judgment, not one for carrying that judgment into execution. It is a rule of decision, and the proceedings after judgment are merely ministerial. It is, too, a rule of decision in trials at common law — a phrase which presents clearly to the mind the idea of litigation in court, and could never occur to a person intending to describe an execution, or proceedings after judgment, or the effect of those proceedings." The same view was taken in The Bank of the United States v. Halstead, 10 Wheat. 51, 54. This particular statute, according to this construction, does not make State laws a rule in respect to the practice, process or modes of proceeding in the Federal courts. It relates simply to the judgment or decision to be rendered. In Beers v. Houghton, 9 Pet. 329, it was held that State laws cannot, prqprio vigore, affect the process or proceedings of the courts of the United States. To the same effect is the ruling in Keary v. The Farmers' <& Mechanics' Bank, 16 Pet. 89. The laws of the several States that are to operate as authorita- tive rules in the Federal courts, relate to a variety of subjects ; and among these the following may be mentioned : (1.) The Laws of Property. — The rights of property are large- ly regulated by local State laws ; and it is the province of the Fed- eral courts, having acquired jurisdiction, to administer these laws, so far as they apply, in the cases that come before them. This is especially true in respect to the possession and convey- ance of land titles. Keferring to such a question arising under a statute of North Carolina, the court, in Olcott v. Bynum, 17 "Wall. 44, 58, said : " It is one to be determined by the lex loci rei sitce. It is to be considered solely in the light of the statutes and adju- dications in North Carolina. This court must hold and administer the law upon the subject as if it were sitting as a local court of that State." Keferring to a similar question in Slaughter v. Glenn, 8 Otto, 242, 244, the court said: "The controversy be- tween the parties is to be decided according to the jurisprudence LEGISLATIVE ADOPTION OF STATE LAWS. 641 of Texas. We must administer the law of the case in all respects as if we were a court sitting there, and reviewing the decree of an inferior court in that locality." In Ward v. Chamberlain, 2 Black, 430, it was held that " whenever, hy the laws of the State, the judgments or decrees of the State courts are liens on real estate, the judgments and decrees of the courts of the United States sitting in that State are liens under similar circumstances." Such judgments or decrees are a rule of property by the laws of the State, and the rule is to be ap- plied by the Federal courts. (Clements v. Berry, 11 How. 398, 411 ; The United States v. Morrison, 4 Pet. 124 ; and Lombard v. Bayard, 1 Wall. Jr. 96.) Mr. Justice Grier, in Lombard v. Bayard, supra, held that the lien of judgments in- the courts of the United States does not result from any direct legislation of Congress on that subject ; and that, under the Judiciary Act which ordains that the laws of the several States shall be rules of decision at common law, the courts of the United States have uniformly adopted the principles of State policy and jurisprudence on the subject of the lien of judg- ments, so far as the same were applicable, treating them as rules affecting real property and its transmission, whether by descent or purchase. In Miles v. Caldwell, 2 Wall. 35, it was held that "a State statute, enacting that a judgment in ejectment, provided the action be brought in a form which gives precision to the parties and the land claimed, shall be a bar to any other action between the same parties on the same subject-matter, is a rule of property as well as of practice, and, being conclusive on title in the courts of the State, is conclusive also in those of the Union." The same doc- trine was stated in Blanchard v. Brown, 3 Wall. 245. In Brine v. The Insurance Company, 6 Otto, 627, it was held that " the laws of the State in which land is situated control exclu- sively its descent, alienation, and transfer, and the effect and con- struction of instruments intended to convey it," and that "all such laws in existence when a contract in regard to real estate is made, including the contract of mortgage, enter into and become a part of such contract." In Orvis v. Powell, 8 Otto, 176, it was held that " where lands have been mortgaged, and parcels thereof subsequently sold at different times to different purchasers, the order in which such 41 642 FEDERAL JURISPRUDENCE AND STATE LAWS. parcels shall be subjected to the satisfaction of the mortgage is, where the rule is established by a statute or by the decisions of the courts of the State where the lands He, a rule of property binding on the courts of the United States sitting in that State." Mr. Justice Thompson, in stating the opinion of the court in Jackson v. Chew, 12 Wheat. 153, 162, said: "The inquiry is very much narrowed, by applying the rule which has uniformly governed this court, that, where any principle of law estabHshing a rule of real property has been settled by the State courts, the same rule will be applied by this court that would be applied by the State tribunals." He added : " This is a principle so ob- viously just, and so indispensably necessary, under our system of government, that it cannot be lost sight of." These and numerous other cases proceed upon the general principle that when a rule of property exists and has been acted upon under State authority, especially in respect to real property, that rule will be followed and applied by the Federal courts when sitting in the State. Chief Justice Marshall, referring, in The Bank of Hamilton v. Dudley's Lessee, 2 Pet. 492, 525, to the thirty-fourth section of the Judiciary Act of 1789, said that " the laws of the States and the occupant law, like others," would be regarded, as a rule of decision in the courts of the United States, independently " of that special enactment." (2.) Laws of Evidence.— la. M'Mel v. Holbrook, 12 Pet. 84, it was held that, " under the thirty-fourth section of the Judiciary Act, the statutes of the several States which prescribe rules of evidence in civil cases, are included." Chief Justice Taney said in this case : " The object of the law of Congress was to make the rules of decisions in the courts of the United States the same with those of the States, taking care to preserve the rights of the United States by the exceptions contained in the same section. Justice to the citizens of the several States required this to be done, and the natural import of the words used in the act of Con- gress includes the laws in relation to evidence, as well as the laws in relation to property. We think they are both embraced in it." In Vance v. Campbell, 1 Black, 427, it was held that "the Federal courts follow the State courts as to rules of evidence, in- cluding competency of witnesses, when there is no act of Con- gress to the contrary, and in Ohio, when plaintiff was offered and was by the law of the State competent as a witness, his rejection LEGISLATIVE ADOPTION OF STATE LAWS. 643 is error, for which the judgment must be reyersed." Alluding to the thirty-fourth section of the Judiciary Act, Mr. Justice Nelson said : " This section has been construed to include the rules of evidence prescribed by the laws of the State in all civil cases at common law, not within the exceptions therein mentioned." Mr. Bump, in his "Federal Procedure," p. 414, cites several cases in illustration of this principle. If, under the laws of a State, a party to a suit is a competent witness in his own behalf ; or if State laws provide that a wife shall not testify for or against her husband, nor the husband for or against his wife ; or if the laws of a State make the certificate of a register of a land office competent evidence; or if a notary's certificate of protest and notice thereof be competent evidence by State law ; or if by State law an indorsement be prima facie evidence of the transfer of a promissory note without proof of the handwriting; or if the courts of a State treat a public record of land grants as primary evidence, then, in each of these cases, a Federal court sitting in the same State will follow the same rule as to evidence. {Ryan v. Bindley, 1 Wall. 66 ; Lucas v. Brooks, 18 Wall. 436 ; Best v Polk, 18 Wall. 112 ; Sims v. Hundley, 6 How. 1 ; M 'Mel v. Eolbrook, 12 Pet. 84 ; and Palmer v. Low, 8 Otto, 1.) This rule, however, is subject to whatever qualification may be imposed by section 858 of the Revised Statutes of the United States, which provides as. follows : " In the courts of the United States no witness shall be ex- cluded in any action on account of color, or in any civil action because he is a party to or interested in the issue tried : Provided, That in actions by or against executors, administrators, or guard- ians, in which judgment may be rendered for or against them, neither party shall be allowed to testify against the other, as to any transaction with, or statement by, the testator, intestate, or ward, unless called to testify thereto by the opposite party, or re- quired to testify thereto by the court. In all other respects, 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 ad- miralty." (3.) Statutes of Limitation. — The laws of the several States that operate as statutes of limitation, as well as those that directly relate to rights of property, come within the meaning of the statute of Congress. " It is not to be questioned," said the 644 FEDERAL JURISPRUDENCE AND STATE LAWS. Supreme Court in Hawkins v. Barney's Lessee, 5 Pet. 457, 466, " that the laws limiting the time of bringing suit constitute a part of the lex fori of every country ; they are laws for administering justice, one of the most sacred and important of sovereign rights and duties." " It is as little to be questioned," said this court in Amy v. Dubuque, 8 Otto, 470, " that the courts of the United States, in the absence of legislation upon the subject by Congress, recognize the statutes of limitation of the several States, and give them the same construction and effect which are given by the local tribunals." These statutes, in Leffingwell v. Warren, 2 Black, 599, 603, were declared to be " a rule of decision under the thirty- fourth section of the Judiciary Act of 1789." {Green v. Weal's Lessee., 6 Pet. 291 ; Harpending v. The Dutch Church, 16 Pet. 455 ; and Davie v. Briggs, 7 Otto, 628.) In Ross v. Duval, 13 Pet. 45, it was held that " the act of Virginia, passed in 1792, to regulate proceedings on judgments, is substantially an act of limitation, and is one of the laws of the State, to be applied in the courts of the United States, according to the thirty-fourth section of the Judiciary Act, although one of its provisions regulates the issue of executions." In McElmoyle v. Cohen, 13 Pet. 312, it was held that " the statute of limitations of Georgia may be pleaded in bar of an action in the Circuit Court of the United States for the district of Georgia, on a judg- ment recovered in South Carolina." In Bich v. BicTcetts, 7 Blatch. 230, it was held that " a plea setting up the statute of limitations of the State of New York is a good plea in bar to an action for the infringement of letters patent, brought in this court." (4). New Trials. — Section 254 of the Code of Civil Procedure of Colorado provides as follows : " Whenever judgment shall be rendered against either party under the provisions of this chapter, it shall be lawful for the party against whom such judgment is rendered, his heirs or as- signs, at any time before the first day of the next succeeding term, to pay all costs recovered thereby, and, upon application of the party against whom the same was rendered, his heirs or assigns, the court shall vacate such judgment and grant a new trial in such case ; but neither party shall have but one new trial in any case, as of right, without showing cause. And after such judgment is vacated, the cause shall stand for trial the same as though it had never been tried." LEGISLATIVE ADOPTION OF STATE LAWS. 645 The question came before the Supreme Court, in The Equator Company v. Hall, 16 Otto, 86, whether a Circuit Court of the United States, sitting in Colorado, is, upon a motion for a new trial, to be governed by this statute of that State. The answer was in the affirmative. Mr. Justice Miller, in stating the opinion of the court, said : " We are of opinion that when an action of eject- ment is tried in a Circuit Court of the United States according to the statutory mode of proceeding, that court is governed by the . provisions concerning new trials as it is by the other provisions of the State statute. There is no reason why the Federal court should disregard one of the rules by which the State legislature has guarded the transfer of the possession and title to real estate within its jurisdiction." Reference in this case was made to Miles v. Caldwell, 2 Wall. 35, in which the court cited a law of Missouri in regard to an action of ejectment, to the following effect : " A judgment, ex- cept on nonsuit, in an action authorized by this act, shall be a bar to any other action between the same parties, or those claiming under them, as to the same subject-matter." The court then said : " We hold this enactment to be binding on the Federal courts as well as those of the State. It is a rule of property. It concerns the stability of the titles to land, and it would be highly improper to adopt in the Federal courts a rule tending to increase litigation and unsettle those titles, which is in conflict with the one pre- scribed by the law-making power of the State." State laws, then, furnishing the local rule as to rights of prop- erty, relating to evidence, or being statutes of limitation, or in the cases specified referring to new trials, are, by the Federal courts, to be regarded as rules of decision in trials at common law, in cases where they apply. These courts administer such laws as if they were sitting as local courts of the State. {Alcott v. Bynum, 17 Wall. 44 ; and Slaughter v. Glenn, 8 Otto, 242.) 5. Construction of State Laws. — The general principle, as to the construction of State constitutions and laws, adopted by the Federal courts, is to accept the construction given to them in the highest State courts, without inquiring into its correctness, pro- vided that such construction does not make them inconsistent with the Constitution, or laws, or treaties of the United States. This principle is founded upon the theory that the judicial depart- 646 FEDERAL JURISPRUDENCE AND STATE LAWS. ment of every government is the appropriate agency for constru- ing the constitution and laws of that government. The constitu- tion and laws of a State, for the purpose of affecting the rights of parties, are what the judicial authority of that State declares them to be ; and this declaration the Federal courts, as a general rule, accept as conclusive in respect to their meaning. Mr. Justice Field, in stating the opinion of the court in Walker v. The State Harbor Commissioners, 17 Wall. 648, said : " It is not for us to express any opinion as to what would be our construction of the act had the Supreme Court [of the State] never spoken on the subject. In the construction of the statutes of a State, and especially those affecting titles to real property, where no Federal question arises, this court follows the adjudica- tions of the highest court of a State. Its interpretation is ac- cepted as the true interpretation, whatever may be our opinion of its original soundness. It becomes a part of the statute, as much so as if incorporated into the body of it ; and, in following the statute as thus interpreted, we only apply to a local question the law of the place. As has been often remarked, infinite mis- chiefs would result if, in construing State statutes affecting titles to real property where no Federal question is involved, a different rule were adopted by the Federal tribunals from that of the State courts." The rule here stated is sustained by repeated decisions of the Supreme Court of the United States, and is the settled rule on the subject. {Shelby v. Guy, 11 Wheat. 361, 368 ; Jackson v. Chew, 12 Wheat. 153; Green v. Neat's Lessee, 6 Pet. 291 ; M 'Keen v. Delancy's Lessee, 5 Cranch, 22 Elmendorf v. Taylor, 10 Wheat. 152 ; Webster v. Cooper, 14 How. 488 ; and The City of Richmond v. Smith, 15 Wall. 429.) It has not infrequently happened, however, that State courts of the last resort have reconsidered and reversed their own con- struction of State constitutions and laws, and thus given to them an import different from that previously established. The Federal courts in such cases, as a general rule, follow the latest construo- tion of these courts. {Green v. JSfeaVs Lessee, 6 Pet. 291 ; Suydam v. Williamson, 24 How. 427 ; Leffingwell v. Warren, 2 Black, 599 ; and The United States v. Morrison, 4 Pet. 124.) The Federal courts, however, will not follow the latest de- cisions of State courts to the damage of rights acquired under a previously settled construction of State constitutions or laws. LEGISLATIVE ADOPTION OF STATE LAWS. 647 This construction, for the purpose of determining these rights, will be adopted and applied by the courts of the United States, because it was the recognized and accepted law applicable to the case when the rights were acquired. Chief Justice Taney, in The Ohio Life Insurance c& Trust Co. v. Debolt, 16 How. 416, 431, said : " And when the constitution of a State, for nearly half a cen- tury, has received one uniform and unquestioned construction by all the departments of the government, legislative, executive, and judicial, I think it must be regarded as the true one. It is true that this court always follows the decision of the State courts in the construction of their own constitutions and laws. But where those decisions are in conflict, this court must determine between them. And certainly a construction acted on as undisputed for nearly fifty years by every department of the government, and supported by judicial decision, ought to be regarded as sufficient to give the instrument a fixed and definite meaning. Contracts with the State authorities were made under it. And upon the question as to the validity of such a contract, the court, upon the soundest principles of justice, is bound to adopt the construction it received from the State authorities at the time the contract was made." A similar view was taken in Rowan v. Runnels, 5 How. 134. The court said in this case that, while it would regard the decisions of State courts upon their own constitutions and laws as conclusive, it would not "give to them a retroactive effect, and allow them to render invalid contracts entered into with citizens of other States, which in the judgment of the court were lawfully made." In Gelpoke v. The City of Dubuque, 1 Wall. 175, it was held that, although it is the practice of the court to follow the latest settled adjudications of the State courts giving construction to the laws and constitutions of their own States, it will not necessarily follow decisions which may prove but oscillations in the course of such judicial settlement, and that it will not follow any adjudica- tion to such an extent as to make a sacrifice of truth, justice, and law. It was also held that the fact that the Supreme Court of Iowa now decides that previous decisions of the same court were erroneous, and ought not to have been made, and that the legisla- ture of the State has no such power as former decisions declared that it had, can have no effect upon transactions in the past, how- ever it may affect those in the future. 648 FEDERAL JURISPRUDENCE AND STATE LAWS. " The sound and true rule," said Mr. Justice Swayne in this case, quoting the language of Chief Justice Taney, " is that if the contract, when made, was valid by the laws of the State as then expounded by all departments of the government, and adminis- tered in its courts of justice, its validity and obligation cannot be impaired by any subsequent action of legislation or decision of its courts altering the construction of the law." In Havemeyer v. Iowa County, 3 Wall. 294, the case of Gelpcke v. The City of Dubuque, supra, was re-affirmed, and the doctrine re-asserted that if a contract, when made, was valid by the consti- tution and laws of a State, as then expounded by the highest au- thorities whose duty it was to administer them, no subsequent action of the legislature or judiciary can impair its obligation. Mr. Justice Strong, in stating the opinion of the court in 01- cott v. The Supervisors, 16 Wall. 678, 690, said : " This court has always ruled that if a contract, when made, was valid by the constitution and laws of a State, as they had been previously ex- pounded by its judicial tribunals, and as they were understood at the time, no subsequent action by the legislature or the judiciary will be regarded by this court as establishing its invalidity. Such a rule is based upon the highest principles of justice." The doctrine laid down in Douglas v. The County of Dike, 11 Otto, 677, is the following : 1. That where municipal bonds have been put upon the market as commercial paper, the rights of the parties thereto are to be determined according to the statutes of the State as they were then construed by her highest court, and that in a case involving these rights the Supreme Court will not be governed by any subsequent decision in conflict with that under which they accrued. 2. That the settled judicial construction of a statute, so far as contract rights were thereunder acquired, is as much a part of the statute as the text itself, and that a change of decision is the same in its effect on pre-existing contracts as a re- peal or an amendment by legislative enactment. Chief Justice Waite in this case said : " The true rule is to give a change in judicial construction in respect to a statute the same effect in its operation on contracts and existing contract rights that would be given to a legislative amendment ; that is to say, make it prospective, but not retroactive." Mr. Justice Bradley, in stating the opinion of the court in Bur- gess v. Seligman, 2 Supreme Court Eep. 10, 21, gave an extended LEGISLATIVE ADOPTION OF STATE LAWS. 649 exposition of the views of the court in regard to the decisions of State courts, as furnishing the rule to be followed by the Federal courts. The following is his language upon this point : " We do not consider ourselves bound to follow the decisions of the State court in this case. When the transactions in contro- versy occurred, and when the case was under the consideration of the Circuit Court, no construction of the statute had been given by the State tribunals contrary to that given by the Circuit Court." " The Federal courts have an independent jurisdiction in the administration of State laws, co-ordinate with, and not subordinate to, that of the State, courts, and are bound to exercise their own judgment as to the meaning and effect of those laws. The exist- ence of two co-ordinate jurisdictions in the same territory is pe- culiar, and the results would be anomalous and inconvenient but for the exercise of mutual respect and deference. Since the ordi- nary administration of the law is carried on by the State courts, it necessarily happens that by the course of their decisions certain rules are established which become rules of property and action in the State, and have all the effect of law, and which it would be wrong to disturb. This is especially true with regard to the law of real estate, and the construction of State constitutions and stat- utes. Such established rules are always regarded by the Federal courts, no less than by the State courts themselves, as authoritative declarations of what the law is." " But where the law has not been thus settled, it is the right and duty of the Federal courts to exercise their own judgment, as they also always do in reference to the doctrines of commercial law and general jurisprudence. So, when contracts and transac- tions have been entered into, and rights have accrued thereon under a particular state of the decisions, or when there has been no decision of the State tribunals, the Federal courts properly claim the right to adopt their own interpretation of the law ap- plicable to the case, although a different interpretation may be adopted by the State courts after such rights have accrued." " But even in such cases, for the sake of harmony and to avoid confusion, the Federal courts will lean towards an agreement of views with the State courts if the question seems to them balanced with doubt. Acting on these principles, founded as they are on comity and good sense, the courts of the United States, without sacrificing their own dignity as independent tribunals, endeavor to avoid, and in most cases do avoid, any unseemly conflict with the well-considered decisions of the State courts. As, however, the very object of giving to the national courts jurisdiction to admin- ister the laws of the States in controversies between citizens of different States was to institute independent tribunals, which, it might be supposed, would be unaffected by local prejudices and 650 FEDERAL JURISPRUDENCE AND STATE LAWS. sectional views, it would be a dereliction of their duty not to ex- ercise an independent judgment in cases not foreclosed by previous adjudication." " As this matter has received our special consideration, we have endeavored thus briefly to state our views with distinctness, in or- der to obviate any misapprehensions that may arise from language and expressions used in previous decisions. The principal cases bearing upon the subject are referred to in the margin, but it is not deemed necessary to discuss them in detail." The cases here alluded to are the following : McKeen v. De- lancy's Lessee, 5 Cranch, 12 ; Polk's Lessee v. Wendell, 9 Cranch, 98 ; Thatcher v. Powell, 6 Wheat. 127 ; Preston's Heirs v. Bow- man, Id. 581 ; Paly v. James, 8 Wheat. 495 ; Elmendorfr. Tay- lor, 10 Wheat. 159-165 ; Shelby v. Guy, 11 Wheat. 367 ; Jackson v. Chew, 12 Wheat. 167, 168; Fullerton v. The Bank of the United States, 1 Pet. 614 ; Gardner v. Collins, 2 Pet. 85 ; The United States v. Morrison, 4 Pet. 136 ; Green v. NeaVs Lessee, 6 Pet. 295, 300: Groves v. Slaughter, 15 Pet. 497; Swift v. Tyson, 16 Pet. 18-20 ; Carpenter v. The Insurance Co. Id. 511 ; Carroll v. Sofford, 3 How. 460 ; Lane v. Vick, Id. 476 ; Rowan v. Run- nels, 5 How. 139 ; Smith v. Kernochan, 7 How. 219 ; Nesmith v. Sheldon, Id. 818 ; Williamson v. Berry, 8 How. 558, 559 ; Van Rensselaer v. Kearny, 11 How. 318 ; Webster v. Cooper, 14 How. 504 ; Ohio Life ds Trust Co. v. Bebolt, 16 How. 431, 432 ; Beau- regard v. New Orleans, 18 How. 500-503 ; Watson v. Tarpley, Id. 519 ; Peasfi v. Peck, Id. 598, 599 ; Morgan v. Curtenius, 20 How. 1 ; League v. Bgery, 24 How. 266 ; Suydam v. Williamson, Id. 433 ; s. c. 6 Wall. 736 ; Leffingwell v. Warren, 2 Black, 603 ; Mercer Co. v. Backet, 1 Wall. 95, 96 ; Gelpcke v~The City of Du- buque, Id. 175 ; Seybert v. Pittsburgh, Id. 273, 274 ; BTavemeyer v. Iowa City, 3 Wall. 294, 303 ; Thomson v. Lee, Id. 330 ; Christy v. Pridgeon, 4 Wall. 203 ; Mitchell v. Burlington, Id. 274, 275 ; Lee Co. v. Rogers, 7 Wall. 183, 187; Butz v. Muscatine, 8 Wall. 583 ; The City v. Lamson, 9 Wall. 485 ; Olcott v. The Supervisors, 16 Wall. 678 ; Supervisors v. The United States, 18 Wall. 81, 82 ; Boyce v. Tabb, Id. 548 ; Township of Pvne Grove v. Talcott, 19 Wall. 677 ; Elmwood v. Marcy, 92 IT. S. 294 ; State Railroad Tax Cases, Id. 617 ; Ober v. Gallagher, 93 U. S. 207 ; Ottawa v. Per- kins, 94 IT. S. 260, 267, 268 ; Davie v. Briggs, 97 IT. S. 637, 638 ; Fairfield v. :7% Washington Territory, 277. in appeals from Washington Territory, must exceed $2,000, 277. on appeals from District of Columbia, when must exceed $2,500, 281. MAXIMS, in equity, enumerated, 730, 732. McLEOD, case of, act of Congress in consequence, 620. MEMBERS OF CONGRESS, while in office, cannot be Federal judges, 2. MEXICAN LAW, how far applicable in Federal courts, 722. MINING TITLES, rule as to paramount title of United States in, 444. MISSOURI, special provisions applicable to Circuit Courts in, 226, 228. INDEX. 841 MODELS, -when to be removed after trial, 361. MODIFICATION of judgment by Supreme Court, effect of, 388, 280. instances of, 289. MONEYS, provision as to deposit of, in admiralty cases, 94. must be drawn by the court, 94. MONITION to parties to prove claims in certain cases, 99. MORTGAGE, when, not affected by preference of claim due United States, 111. when local statute as to, is binding in Federal courts, 641, 642. See, also, Foreclosure. MOTIONS, when the court on motion may strike citizen from the record to confer jurisdiction, 184. how brought on for hearing in Supreme Court, 346, 347. injunction may be granted until decision of, 788, 789. where to be granted, 789. MUNICIPAL BONDS are negotiable instruments within the Act of March 3, 1875, 159. decisions of State courts as to, not binding in Federal courts, 654, 655. rules applicable to, in Federal courts, 654. MUNICIPAL CORPORATIONS may sue and be sued in Federal courts, 167. remedies against, similar in State and Federal courts, 662. MURDER, jurisdiction of Federal courts in cases of, 61. See, also, Crimes ; Jurisdiction. NATIONAL BANKS, suits by or against, in District Courts, 196. suits by or against, where brought, 219. copies of certificates of organization of, admissible as evidence, 435. ■ excluded from the statute as to removal of causes, 474. See, also, Removal of Causes. NATIONAL CITIZENSHIP, distinguished from State or local citizenship, 142. NATIONS, LAW OF, with regard to public ministers, 41. See, also, Law of Nations; Ambassadors; Public Ministers. NATURALIZATION creates citizenship, 183. jurisdiction of District Courts, in cases of, 200. NAVIGABLE WATERS, admiralty jurisdiction of Federal courts extends to, 52. tort committed on, may be governed by State law, 83. NAVIGATION, State and Federal authority with respect to, 57. NAVIGATION LAWS, infraction of, how tried in District Courts, 200. NE EXEAT, nature of, when may be granted, 316, 317. NEGLIGENCE, meaning of term " fault or negligence," 366. of lot owner, rule as to liability of in Federal courts, 715, 716. NEGOTIABLE INSTRUMENTS, lona fide holder of may sue in Federal courts, though original holder could not, 154 et seq. overdue coupons are, 157. 842 INDEX. NEGOTIABLE INSTRUMENTS— continued. municipal bonds are, 159. when treasury warrants are, 160. mortgages are not, 160. note made by corporation under seal is not, 161. See, also, Bills and Notes. NEW MATTER, how libellant may amend when answer contains, 97. NEW TRIAL, effect of, pendiDg appeal from Court of Claims, 283. may be granted within two years, 284. granting or refusing of, when not subject to review in Supreme Court, 295. power of Supreme Court to grant, 295. when may be granted by Court of Claims, 373. effect of, upon appeal, 374. power of court to grant, 414. State laws, with reference to, in ejectment, binding on Federal courts, 644. NEW YORK, Southern district of, criminal terms in, by whom held, 212. special rule as to jurisdiction of Circuit Court, in Southern district, 228. NOLLE PROSEQUI, power of district attorney to enter, 395. NOMINAL PARTIES, when not to appear, 777. when entitled to costs, 778. See, also, Parties. NON-RESIDENT PARTIES, rule as to appearance of, in Federal courts, 149. when appearance may be dispensed with, 150. See, also, Parties ; Absent Defendant. NOTARY PUBLIC, powers of, under Federal statutes, 400. may take depositions in Federal courts, 428. NOTES. See Negotiable Instruments ; Bills and Notes. NOTICE, to adverse party, on service of citiations in Supreme Court, 298. of motions, in Supreme Court, 346. none required on removal of cause, 518. on writ of error to State court, 556. may be waived, 557, 558. of time and place of taking testimony, 782. effect of failure to notify as to taking testimony, 782. NUISANCE, not an indictable offense in Federal courts, 679. See, also, Chimes. OATH, when administered by commissioner as referee, 95. of appraisers, before whom taken, 199. power of commissioner to administer, in Court of Claims, 372. when affirmation may be takeu in lieu of, 788. OCCUPANTS OF LAND, right of, to recover for improvements, 655 et seq. OFFICERS AND AGENTS of United States may be sued in Federal courts, 104. INDEX. 843 OFFICERS, suits to recover from, in District Courts, 195, 220. suits for removal of, in District Courts,, 196. of Supreme Court, how appointed, 244. See, also, Court Officers; 'Fedebal Officers; Public Officers. OPINION, must be attached to record on appeal, &c, 348. of Supreme Court, how recorded, printed, and filed, 358. of Court of Claims, to whom sent, 363. of State court, no part of record, on removal of cause, 548. of State Court, may be examined in connection with the record, 793. ORAL EVIDENCE, how taken on appeal, in admiralty cases, 96. See, also, Evidence ; Witness ; Masteb in Chanceet. ORIGINAL, meaning of word as applied to jurisdiction of Supreme Court, 249. original, as distinguished from exclusive, jurisdiction, 250 et seq. See, also, Jurisdiction. OYSTERS, legality of State laws with respect to, in navigable waters, 57. PARDONING POWER, an exercise of grace, does not operate to correct a legal judgment, 4. PARTIES, rule as to citizenship of, in Federal courts, 144-172. citizenship of nominal parties to the record, 152. citizenship of legal representatives as parties, 150. of assignees, corporations, &c, 153 et seq. entitled to writ of error to State court, 545. death of, pending writ, 546. when jurisdiction of Federal courts depends upon the, 632. to bill in chancery, when not joined, or are not within the jurisdic- tion, 770. rule in cases of absent parties, 776. rule where parties are numerous, 776. rule as to trustees as parties, 776. when heir-at-law to be made a party, 777. defective parties, remedy in case of, 777. rule where obligation is joint and several, 777. nominal parties, when to appear, 778. PARTY, when United States can be made a "party," 103. means a party to the record, 117. a State to claim exemption, under the Eleventh Amendment, must be a party on the record, 132. PATENT CASES, suits in, where brought, 219, 611. when jury may be impaneled in, 239. may be reviewed without regard to amount in dispute, 263. jurisdiction of Federal courts exclusive as to, 611. PATENT OFFICE RECORDS, when copies of, admissible in evidence, 438. PATENTS, sci.fa. may be granted to annul, 315. PAYMASTER, loss by, how allowed in Court of Claims, 366. 844 INDEX. PENAL CODE of State, when administered in Federal courts, 657, 658. PENALTIES AND FORFEITURES, jurisdiction of District Courts as to, 193. suits for in certain cases, where brought, 218. when jurisdiction of Federal courts exclusive as to, 611. concurrent jurisdiction to recover under Civil Rights Act, 612, 613. PENSION CLAIMS, examination of, not a judicial act, 6. PEOPLE, the Constitution springs from the people, not from the States, 10, 11. See, also, Jurisdiction; Congress. PERISHABLE PROPERTY, when court may order sale of, 87. proceeds of, how disposed of, 87. PERSONAM. See Proceedings in Personam ; Proceedings in Rem. PETITION, for limitation of, or exemption from, liability in admiralty, 99. on appeal from Court of Claims, 282, 283. in Court of Claims, contents of, 369. for removal of cause, when to be filed, 465, 467. in case of prejudice or local influence, what to contain, 470. by whom may be verified, 470, 471. contents of, on removal of " Civil Rights " causes, 478. contents of, on removal of suits against government officers, 480. contents of, in suits respecting "elective franchise," 480, 481. for removal in revenue cases, how verified, 484. for removal, whether it must show diversity of citizenship when the suit was begun, 501 et seq., 793. for removal under Act of 1875, contents of, 506. when to be filed on removal, 507 et seq. when bond and petition should be filed together, 513. for removal, may be inquired into by State court, 518. for writ of error to State court, contents of, 553. how and by whom allowed, 552-555. for rehearing in equity, what to contain, 787. PETITORY AND POSSESSORY SUITS, rule as to, 83, 89. PILOTAGE, lien for services, created by State law, 73. rule as to suits for, 78. proceedings by libellant in suits for, 88. PIRACY, crime of, under the Constitution, 25. distinguished from prize captures, 69. jurisdiction of District Courts as to, 192. PLEA, when to be accompanied by answer, 773. when deemed sufficient for omission to reply or argue, 773, 774. PLEADINGS, how amended in admiralty and maritime causes, 90. answer must be verified, 91. failure to answer, 91. further answer, 91. when may be dispensed with after filing libel, 92. exceptions may be filed to any pleading, 93. INDEX. 845 PLEADINGS— continued. libellant may amend, when answer contains new matter, 97. set-off may be pleaded against United States, 109. what not sufficient averment of foreign corporation 137. what is a sufficient averment of citizenship, 142. citizenship must be averred in the body of the bill, averment in title not sufficient, 146. averment of citizenship, when essential to confer jurisdiction in Circuit Court, 146. citizenship of corporation, how averred, 167. citizenship of corporation must be averred to give court jurisdiction, 169, 170. averment of citizenship must always appear on the record to confer jurisdiction, 183. when defective, ground for reversal, 290. to writ of scire facias, 315. in Court of Claims, 369. in action, not to be used as evidence in criminal proceedings, 427. not allowed after removal, 521. may be re-cast after removal, 521, 747. on Federal questions, must be specific, 547-551 . with reference to State laws, and decisions in Federal courts, 639. in practice in State courts, how far applicable to Federal courts, 658, 666. in equity suits, must not be blended with common law actions, 747. in equity suits, modeled upon the English chancery practice, 752-756. forms of, under the English equity practice, 756-764. special rules as to, in equity suits, 769-784. form of introduction to bill in chancery, 769, 770. recitals and omissions in chancery bill, 770. See, also, Answeb. POLITICAL QUESTIONS, court cannot pass upon, when not judicial in character, 102. dispute as to State boundary not a political question, 121. POLYGAMY, when conviction for may be reviewed in Supreme Court, 280. POSTAL LAWS, suits under, where brought, 217. jurisdiction of District Courts, in suits under, 193. POSTMASTERS, when credits may be allowed in suits against, 109. when may be sued officially in a State court, 604. POST OFFICE RECORDS, when copies of, admissible in evidence, 437. POWERS OF GOVERNMENT, three classes of, under the Constitution, 1. how vested under the Constitution, 1. See, also, Congkess; State. PRACTICE, matters of, not subject to review, 260. questions of, should not be certified to Supreme Court, 269. on appeals and writs of error, 296-299. on obtaining supersedeas, 303. in Supreme Court, rule as to, 345. 84:6 INDEX. PRACTICE— continued, on removal of cause from State court to U. S. Supreme Court, 541 et seq. See Procedure. PRAYER, in chancery bill, contents of, 770, See, also, Bill in Chancery ; Equity. PREAMBLE of the Constitution analyzed, 10. PREFERENCE, when given to debts due United States, 110. does not affect a mortgage, 111. rule as to preference, 111. of causes on docket of Supreme Court, 358. of criminal causes removed to Supreme Court, 538. See, also, Advancement. PREJUDICE OR LOCAL INFLUENCE, ground for removal of cause to Federal court, 469. contents of affidavit for, 470. PRESENTMENT, as distinguished from *' indictment," 408. PRESIDENT OF THE UNITED STATES, clothed with executive power, 2. how chosen, 2. cannot be enjoined by suit, 102. PRESUMPTION, that every State recognizes validity of Federal laws, 479. See, also, Evidence. PRINCE. See Foreign Sovereign. PRINTING of record, and indexing same; number of copies, &c, 350. of argument, number of copies, 354. of opinions of Supreme Court, 358. form and size of printed record, 360. when record to be printed on writs of error, 361. PRIORITY, of claims due the United States, rule as to, 111. PRIZE, how distinguished from piracy, 69. condemnation of property as, in District Courts, 194. distribution of property in, pending appeal, 197. PRIZE APPEALS, how amended, 302. PRIZE CAUSES, jurisdiction of Federal Courts as to, 68. in District Court, may be reviewed in Supreme Court, 272. when amount involved immaterial, 273. transcripts on appeals in, 274. come before the court by appeal, not by writ of error, 275. time in which transcript must be filed on appeal in, 276. time within which appeal must be taken in, 313. how far to be disposed of by laws of war, 697. PROCEDENDO, when issued from Supreme Court, 357. PROCEDURE in admiralty and maritime cases not prescribed by the Con- stitution, 46. in Federal courts, in cases of crime, 61, 62. mode of, in admiralty and maritime cases, 70 et seq. in Court of Claims, 369-375. INDEX. §47 PROCEDURE— continued. in State courts, how far applicable to Federal courts, 658, 666. in equity and admiralty causes regulated by Federal law, 660. in equity cases, subject to rules of Supreme Court, 752. in equity, analogous to procedure in English. Court of Chancery 752 PROCEEDINGS, meaning of the term, 321. PROCEEDINGS IN PERSONAM, nature of libel or petition in, 76. as distinguished from proceedings in rem 76. admiralty rules as to, 78, 79. PROCEEDINGS IN REM, nature and character of, 70-76. object of, to enforce maritime lien, 72. cannot be conferred by a State, 75. differ from foreign attachment, 75. not a common law remedy, 76. admiralty rules as to, 78, 79. not a common law remedy in admiralty causes, 82. is derived from the civil law, 82. special rules applicable to, 86. PROCESS, when and how served in admiralty causes, 84. how served in a suit against a State, 117. rules of Supreme Court as to, 118. service of, in Missouri, 227. in Supreme Court, how tested and served, 345. in suits in equity, to be commenced by subpoena, 766. writs of attachment, sequestration, and assistance in equity, 767. PROCHEIN AMI, suit by, in chancery, 787. PROHIBITION, nature of writ, when granted by Federal courts, 328. does not lie, unless court has appellate jurisdiction, 329. PROMISSORY NOTES. See, also, Bills and Notbs; Negotiable In- struments. PROOF OF CLAIMS, for loss, embezzlement or destruction, in certain case, 99. PROPERTY RIGHTS, when local statutes as to, binding on Federal courts, 640-645. PROSECUTE, meaning of the term, 395. PUBLICATION, service by publication on absent defendant, 235, 236. of testimony taken by commission, 783. service tby, on absent defendant, 789. PUBLIC DOCUMENTS, how received in evidence in chancery, 762. See, also, Evidence ; Record. PUBLIC MINISTERS, cases affecting them in the Federal courts, 37, 38. evidence as to what constitutes, 39. mode of enforcing their rights, 39, 40. jurisdiction as to, exclusive, 40. may bring suit in State court, 43. exclusive jurisdiction in suits against, 251. original, but not exclusive, jurisdiction in suits by, 247, 251. See Ambassadors and Consuls. 848 INDEX PUBLIC MONET, paid wrongfully, government entitled to priority in claim for, 112. PUBLIC OFFICERS, when may be compelled to act by mandamus to, as distinguished from judicial officers, 340. PUBLIC USE, property cannot be tiiken for, without just compensation, 8. PUNISHMENT, cruel punishments prohibited, 9. power of, vested in the legislature, not in the judiciary, 678. QUARTERMASTER, loss by, how allowed in Court of Claims, 366. QUESTION OF FACT, change of citizenship a question of fact for the court, 165. when finding of court as to, conclusive, 267. in what cases must be tried by jury, 224. when not subject to review, 260. how re-examined in Federal courts, 294. QUESTION OF LAW, when alone subject to review, 260. only, should be certified on division of opinion, 269. QUESTIONS. See Federal Questions. QUORUM of Supreme Court, what constitutes, 243. court may adjourn for want of, 246. what orders made by less than, 246. QUO WARRANTO, suits in District Courts, 195. RAILROAD CORPORATIONS may sue and be sued in Federal courts, 167 et seq. See, also, Cokpobation. REAL ESTATE, when judgment of Federal courts are liens upon, 641. State statutes with reference to, &c, when authority in Federal courts, 641. improvements upon, right of occupant to recover for, 655-657. See, also, Land; Lien. REBELLION, right of persons engaged in, to sue in Court of Claims, 370. RECEIVER, of corporation, citizenship of, different from corporation repre- sented, 161. See, also, Cobporation. RECOGNIZANCE, when may be required of witness, 434. See, also, Bail. RECORD, contents of, on appeal from District Court, 97. must be paged and indpxed, 98. omission from, by stipulation, 98. how delivery of, compelled, 198. of original court on appeal,. copies of, how procured, 244, 245. how transmitted to Supreme Court in prize cases. 274. of Territorial court, how transferred, after territory becomes a State, 276, 277. of Territorial court, cannot be transmitted to State court, 278. on appeal from Court of Claims, how made, 282, 283. INDEX. 849 RECORD— continued. may be remanded to Court of Claims for proper finding, 284. on appeal must show error, 290. { transcript of, how authenticated, 297. must contain all references and exhibits, 348. in admiralty cases, how made, 348. printing of, number of copies of, &c, 350. translations in, 330. official documents, copies of, admissible as evidence, 435, 445. when originals lost or destroyed, provision for copies of, 440. provision for restoration of, 441. of judicial proceedings or statutes, how authenticated, 442. in public offices, when admissible as evidence, 443. foreign, relating to land titles, when admissible, 443. failure, to procure from State court, on removal, remedy for, 486. when to be filed on removal of cause, 513, 526 et seq. when may be filed nuna pro tune, 514. ' filing copy of, equivalent to docketing cause, 520. refusal of clerk of State court to deliver, a misdemeanor, 527. remedy in cases of refusal to deliver, 527. on removal of cause to Supreme Court, must show jurisdictional facts, 540. contents of the record, 547. what papers form part of, 548. opinion of State court, no part of, 548. but opinion of court below may be examined with, 793. statements in, must be specific. 549. must show that Federal question was raised in State court, 584. on writ of error to State court, what it must, show, 590-596. REFEREE, commissioner, as referee, may exercise powers of master in chan- cery, 95. See, also, Master in Chancery. REFERENCE, when may be ordered to one or more commissioners, 95. of claim by head of department, 367. powers of master on, 785 786. to master as to personal estate of decedent, 784. when to be brought on before master, 784. REGISTERS IN BANKRUPTCY, appointment of, 400. See, also, Bankruptcy. REGULATIONS governing Court of Claims, 366. See, also, Rules. REMANDING ACTION, when acts of parties amount to waiver of right to, 503. when suit by assignee will not be remanded, 504, 505. for failure to file petition in time. 50ii. for failure of bond to provide for costs, 514. for failure to tile copy of record, 520. 54 850 INDEX. REMANDING- ACTION— continued. order for, reviewable by Supreme Court, 524, 526. for want of jurisdiction proper, 524. See, also, Removal . of Causes. REMEDIES distinguished from rights, 74. common law remedies in admiralty causes, 80. election of remedies in admiralty causes, 81. under State laws, how far applicable in Federal courts, 658-666. in Federal courts, when governed by rules of common law, 708-710. distinction between law and equity as to, 709. where remedy exists at law, none in equity, 724, 725, 750, 751. States where legal and equitable remedies are bleDded, 733. English system of equity adopted only as to remedy, 745. REMOVAL OF CAUSES, foreign corporation may remove suit to Federal court, 185. when cause may be removed by corporations generally, 464. when removal may be had by Federal corporation, 474. national banks excepted from the statute as to, 474. any suit by or against a Federal corporation may be removed, 793, 794. order in, may be reviewed, 271. constitutional authority for, 447, 482. validity of legislation as to, 448-459. views of Hamilton, Marshall, and Story, as to, 450-454. decisions of the Supreme Court as to, 455, 456, 458. right of removal does not extend to suits in Territorial courts or courts of District of Columbia, 461. general provisions as to, under Revised Statutes, &c. , 460 et seq, in suits against citizens or aliens, 463. in separable controversies, 465. where there are several parties, 463. in case of prejudice or local influence, 469. contents of the affidavit of petitioner, 470. petitioner must furnish surety, 471. duty of State court in case of, 471, 472. appeal in case right is denied, 472. provision as to bail, in cases of, 476. question as to sufficiency of, in State court, 471. question of validity of, in Federal court, 473. in "civil rights" cases, 475. in suits against government officers, 480. in suits against revenue officers and under election laws, 480. contents of petition in cases of Federal officers, 480, 481. where the defense involves a question of Federal authority, 482. personal actions by aliens in particular cases, 485. attachment, injuuction, &c, preserved, incase of, 486. in case of claims of land grants from different States, 487. classification of suits in which removal may be had under Revised Statutes, 488. INDEX. 851 REMOVAL OF CAUSES— continued. Removal under the Act of March 3. 1875, 488 et seq. general observations as to, 489. inseparable controversies, under Act of 1875, 490. class of actions removable under the Act of 1875, 491. mode of, under Act of 1875, 505. against Federal corporation, depends on nature of the defense, 492 ; but see 794. separable controversies, under Act of 1875, 496. whether diversity of citizenship must exist when action is begun, query, 501 et seq. ; but see 793. diversity of citizenship must exist, both at commencement of suit and time of removal, 793. when suit by assignee will not be remanded, 504. contents of petition for, 506. form and sufficiency of bond on, 511 et seq. when transcript of record to be filed on, 513. duty of State court, on removal of cause, 516. remedy, where State court refuses to surrender cause, 517. notice of removal not required, 518. appearance no waiver of right of, 518. order for, by State court not necessary, 519. new pleadings need not be filed after, 521. pleadings may be remodeled after, 521. where lands are claimed under grants of different States, 522. when refusal to deliver record on removal a misdemeanor, 527. writ of certiorari in cases of, 527. sections of Revised Statutes relating to, still in force, 529-535. special statutes relating to Georgia, Ohio, and Tennessee, 535. Removai. from State Court to United States Supreme Court, power of Congress as to such removals, 536. various statutes relative to, 536-538. what cases may be removed to, 538. when criminal causes to have preference in Supreme Court, 538. record of State court must show jurisdiction, 546. contents of record, 547. opinion of State court no part of record, 547. See, also, Actions. REMOVAL OF OFFICERS, suits for, in District Courts, 196. REPEALING CLAUSE of Act of March 3, 1875, as to removal of causes, effect of, 529-535. REPLICATION not avowed in admiralty, remedy by amendment, 97. office of in chancery pleading, 761. effect of failure to file, 780. REPLY to amended libel, 97. See, also, Pleading; English Chancery Practice. 852 INDEX. REPORT, master cannot retain, as security for fees, 786. exceptions to report of master, when filed, 780. of master, form of, 784. REPORTER of Supreme Court, how appointed, 244. salary and duties of, 245. REPORTS, when to be published, 245. price of, not to exceed two dollars per volume, 246. distribution of, by Secretary of the Interior, 246. REPUDIATION, no remedy in cases where State chooses to repudiate its contracts, 137-140. REPUGNANCY of State laws, when question reviewable in United States Supreme Court, 578 et seq. See, also, Appeal; Wbit of Error. REQUESTS TO FIND in Court of Claims, rule as to, 283. See, also, Findings. RESIDENCE, when it constitutes citizenship, 143. exercise of suffrage, when conclusive as to, 143. when change of, creates change of citizenship, 165. of alien, immaterial, 184. See, also, Domicil. REVENUE LAWS, lien created by statute for violation of, 73. seizures for violation of, 89. actions to enforce, may be reviewed without regard to amount in- volved, 264. removal of causes affecting, 480, 482. petition for removal, to be presented to Federal court, 484. REVENUE OFFICER, when copies of official papers admissible in suits against, 435. REVERSAL of judgment by Supreme Court and Circuit Court, 286. Supreme Court may order further proceedings on, 286. of judgment, effect of in Supreme Court, 290. error on must appear in the record, 290. when ordered on defective pleadings, 290. of conviction, by Circuit Court, effect of, 241. limitation of, on error. 309. REVISED STATUTES, classification of suits which maybe removed under, 488. portions of, not repealed by the Act of March 3, 1875, 534, 535. what sections of, relating to removal of causes, repealed, 529-535. provisions for District of Columbia, 686, 687. REVISORY POWER of Supreme Court, how regulated, 285-293. See, also, Stjpkeme Court. REVIVAL of action in case of death of party, 236, 237. See, also, Abatement ; Bill of Revivor. REVIVOR, bill of, how obtained when suit shall abate, 778. statements in original suit not to be set forth in bill of, 779.] See, also, Bill of Revivor. INDEX. 853 RIGHTS, as distinguished from remedies, 74. See, also, CrviL Rights; Remedies. RULES as to practice, may be made by Circuit Court, 787, 788. of English Court of Chancery, when applicable, 788. have force and effect of statutes, 790, 791. in equity apply to Circuit Courls only, 790. power of court to alter or make, 790, 791. Rules est Admiralty. process in admiralty suits, when to issue, 84. process in suits in personam, 85. bail for appearance in suits in personam, 85. attachments in suits in personam, 85. bonds and stipulations in admiralty suits, 85, 86. reduction of bail in suits in personam, 8B. warrant of arrest in suits in personam, 86. ship's tackle, when taken in custody from third party, 86. process in seizure cases and proceedings in rem, by arrest of .ship, &c, 86. sale of perishable property, 87. delivery of ship to claimant, 87. materialmen, remedies of, 87. mariner's wages, mode of procedure in suits for, 87, pilotage suits, procedure in, 88. collisions suits, procedure in, 88. assault and battery, proceedings to be in personam only, 88. hypothecation, suits upon, procedure in, 88. bottomry bonds, suits upon, procedure, 88. salvage, suits for, procedure in, 88. petitory and possessory suits, process in, 88, 89. enforcement of final decree, 89. seizures for violation of law, 89. libels in instance cases, 89. amendments to libels, 90. security for costs, 90. verification of claim, 90. verification of answer, 91. exceptions to answer, 91. failure to answer, 91. further answer, 91. criminating answer, 92. interrogatories in answer, 92. liability to answer, 92. intervention of third party, 92. stipulations and exceptions, 93. attachment and garnishment, 93. property brought into court, 93. 854 INDEX. RULES— continued. abandonment of admiralty suit, 94. rescinding of the decree, 94. sales of property, deposit of moneys and intervention for proceeds, 94, 95. reference to commissioners, 95. appeals from District to Circuit Court, 95. cases not provided for, 95. arrest, bail, and imprisonment for debt, 95. limitation of 27th admiralty rule, 96. repeal of prior rules, 96. appeal, further proof, oral evidence on, 96. new facts in answer, 97. the record on appeals, contents of, 97. costs on cross-libels, 98. libel against ship under Act of 1851, 91. proof of claims, 99. parties defendant, 100. i filing of the libel, 100. limitation of liability on appeal in Circuit Court, 100. Rules of Court op Claims. the record on appeal, 282. the petition on appeal, 282. certificate by judge on appeal, 283. time in which appeal to be taken, 283. findings of fact and conclusions in, 283. requests to find on appeal in, 283. appeals under Act of June 16, 1880, rule 1 applicable to, 794. Rules in Equity. courts always open for filing pleadings in equity, 765. applicable only to Circuit Court in exercise of original jurisdiction, 790, 791. have force and effect of statutes, 790. power of court to amend or make, 790, 791. clerk's office open, when, 765. orders in vacation, 765. motions, rules and orders to be entered on, 766. motions, what grantable of course, 766. motions, not grantable of course, 766. process of subpoena, 767. how subpoena issued and served, 767, 768. •writs of attachment, sequestration, and assistance, 767. orders, how enforced by one not a party, 767. rules as to parties to chancery suits, 776-778. appearance of defendant in equity suits, 768. bills, when taken pro confesso, 769. when answer may be compelled by attachment, 769. INDEX. 855 KULE S — continued. as to default of defendant in equity suit, 769. decree in case of default, 769. form of introduction to bill in chancery, 769. recitals and omissions in chancery bill, 770. rule when parties not joined or not within the jurisdiction, 770. prayer for process, what to contain, 770. chancery bill must be sigaed by counsel, 770, 771. taxable costs for drawing chancery bill, 771. scandalous matter to be stricken from chancery bill, costs on, 771. bill in chancery, when and how amended, 772. conditions as to demurrer, 772. rules as to demurrer and plea, 772, 773, 774. rules as to answer, and interrogatories in bill, 774, 775. rules as to amendment and answer after replication filed, 776. as to supplemental bill, 778. as to verification of answer, 779. as to exceptions to answer, 779. as to costs on exceptions, 780. injunction may be granted in term time or vacation, 778. injunction, how long to continue, 778. injunction may be modified or suspended on appeal, 788. injunction may be granted pending motion, 789. as to taking testimony by commission, 781-786. as to references and proceedings before masters, 784-787. as to bill by stockholder, contents of, 789. Utiles of Stjfbeme Court. adopted in 1845 relating to admiralty, 78, 79. relating to admiralty causes, 84-100. as to residence and duties of clerk, 344. as to admission of attorneys in, 344. as to practice in, 345. as to allowance of bill of exceptions, 345. as to issuing and service of process, 345. motions, general regulations, argument and hearing of, 346. library of, regulations as to, 347. writ of error, regulations as to return of, &c, 347. docketing cases in, &c, 348. costs insecurity for, &c, 349, 357. printing record, regulations concerning, 350, 354, 360. attachment for costs in, 350. translations in record in, 350. evidence, additional, how taken, 351. certiorari to diminish record, 351. death of party pending appeal, 352. default of parties, plaintiff or defendant, 353, 356. argument, how to be conducted, 353, 355, 356. 856 INDEX. RULES — continued. briefs, contents of, when to be filed, 355. i charge of court excepted to must be set out, 355. interest, how calculated, 356. opinions of, filing, recording, &c, 358. calendar, or docket, call of, 358. advancement of causes, &c, 358. adjournments to be announced, 359. dismissal of cause in vacation, 359. supersedeas bonds, how taken, 560. injunctions, modifications of, 360. writs of error, regulations as to, 360, 361. models, diagrams, and exhibits, 361. as to admission of attorneys, 389. as to writ of error to State court, 544. SALARIES of District Court judges, 190. of circuit judge, 212. of judge sitting in a circuit other than his own, 213. of Supreme Court justices, 244. of marshals, 245. of reporters, 245. of judges of Court of Claims, 363. SALES, of property in admiralty suits, 94. SALVAGE, rule as to suits for, 79. suits for, may be in rem or in personam, 88. SCIRE FACIAS and habeas corpus, under the Judiciary Act, 4. SEAL, in Federal courts, destroys negotiability of note, 161. note may be made by corporation without a seal, 161. when sufficient authentication of transcript, 275. must be affixed to bill of exceptions, 296. when may be supplied on bond nunc pro tunc, 512. when essential to proof of documents, &c, 435. See, also, Evidence ; Records ; Statutes ; Copies. SEAMEN, power of Congress to legislate with regard to rights andjduties of, 67, 68. deserters, restoration of by U. S. commissioner, 382. controversies of foreign seamen, how adjudicated, 383. not to be imprisoned more than two months, 385. wages of, how enforced, 385. See, also, Wages. SEARCHES AND SEIZURES, right of people to be secure from, 8. See, also, Seizures. SEARCH WARRANTS, may be issued by U. S. Commissioner, 379. See, also, Warrant. SECRETARY OF INTERIOR entitled to 300 copies of Supreme Court re- ports, 246. INDEX. 857 SECRETARY OF WAR, cannot be enjoined in official capacity, 102. SECURITY, in petitory and possessory suits, 79. on writ of error to State court, when to be given, 559, 561, 563, 567. See, also, Bond. SEIZURE CASES, when burden of proof on claimant in 444. SEIZURES, cannot be ordered until libel is filed, 71. provision for in admiralty cases, 86. provision for, for violation of revenue law, 89. of land or property for purposes of insurrection, in District Courts, when jurisdiction of Federal courts exclusive as to, 611. SENATE OF THE UNITED STATES, of whom composed, how chosen, 1. represents the States as such, 1. See, also, Congkess. SEQUESTRATION, writ of, in equity suits, 767. SERVICE of process in suit against a State, 118. upon governor of a State, when sufficient, 118. of process, special rule as to, in Missouri, 227. on absent defendant, how made, 235, 236. of citation on appeal, 298. of process in Supreme Court, 345. of process against a State, 345. of citation on writ of error, how made, 556, 557. failure to serve citation fatal, 557, 558. of process, in equity suits, how and by whom made, 767, 768. of subpoena in equity suits, 768. SESSIONS of Circuit Courts, when and where held, 231-241. See, also, various courts. SET OFF, may be pleaded against the United States, 109. in case of postmasters, contractors., &c, 109. SEVENTH AMENDMENT, construction of, 293, 294. SHIP, when it may be delivered to claimant, 87. when court may order sale of, 87. SHIPMASTERSj power of Congress to legislate in regard to, 68. SHD?'S TACKLE, when may be delivered to custody of marshal, 86. SICKNESS, when sufficient excuse for failure to plead, 92. SLAVE TRADE LAWS, suits under, where brought, 218. SOLDIER, cannot be discharged by State court, on habeas corpus, 622. SOLICITOR GENERAL, duties of, 392. SOVEREIGN, cannot be sued without his consent, 103. State, when it may be sued, 104. SPECIAL TERMS of Circuit Courts, when held, 232, 233. business at, 233. STATE, when can be and cannot be sued in Federal court, 9, 104. may bring suit in Federal court, 12. as assignee cannot bring suit against a State, 123, 124. 858 INDEX. STATE— continued. when exempt from suit under the Eleventh Amendment to Consti- tution, 123. ■when it cannot be sued by State, 125. cannot be sued by foreign citizen, 125. could be sued by citizen of another State prior to the Eleventh Amendment, 127. may be sued by an alien or citizen in admiralty, 129. indictment by, against a citizen, may be reviewed on appeal taken by the prisoner, 130. officers of, may be sued, 132. as plaintiff, may sue citizens of another State, 134. must have direct and proprietory interest in the suit, 136, 137. if it be stockholder in a corporation latter may be sued, 133. may be stockholder in a corporation, 134. cannot sue its citizens in Federal courts, 137. when citizen of another State cannot enforce contracts of, 137. a territory not a State within jurisdiction of Circuit Court, 145. powers of, restricted by the Constitution, 27. laws of, must yield to treaties, 30. may confer rights which Federal courts will enforce, 73. cannot authorize State court to enforce maritime lien by proceeding in rem, 74. owns beds of tide-waters within borders of, 57. ownership of land under tide-water, subject to right of naviga- tion, 57. "controversies" between, how settled, 114 et seq. cannot, without consent of Congress, settle its dispute with another State, 115. Indian tribe not a State within the Constitution, 116. when State recognized as such by Congress, suable, 116. when State a " party " for purposes of suit, 117. how process may be served upon, 117. effect of failure of, to appear in a suit, 118. effect of withdrawal of, appearance by, in suit, 118. cannot lawfully resist decree of Supreme Court, 122. legislature cannot limit jurisdiction of Federal courts as to corpora- tions, 168. boundaries and territorial jurisdiction of, when Circuit Court may determine, 175. jurisdiction in controversy of, with foreign state, 181. jurisdiction in controversy of, with alien, 182. jurisdiction in controversy of alien with citizen of, 182. original and exclusive jurisdiction of Supreme Court in cases where State is a party, 252. jurisdiction in Supreme Court when a State is a party, 252. cannot sue its own citizens in Supreme Court, 253. process against, how served in Supreme Court, 345. INDEX. 859 STATE— continued. presumed to recognize validity of Federal laws, 479. meaning of the word " State," 576. meaning of authority of, uuder the Constitution, 577. power of, to confer authority to enforce Federal laws, 604. when a party, jurisdiction of Federal courts exclusive, 611. States where equity and law are distinct remedies, 733. States where legal and equitable remedies are blended, 733. STATE COURTS, not bound by regulations of judicial power in the Con- stitution, 9. Congress cannot confer on them any portion of Federal judicial power, 13. when have no jurisdiction over Federal officers as such, 22. when officer of United States may be sued in, 105, 604. when practice in, cannot affect mode of Federal procedure, 25. procedure in, how far applicable to Federal courts, 658, 666. equity precedents in, not binding in Federal courts, 749. jurisdiction of, in suits by ambassadors, 36. have no jurisdiction of offenses by foreign consuls, 40. foreign consuls may bring suit in, 43. concurrent remedies of, in admiralty cases, 51. jurisdiction of, in cases of crime on navigable waters, 61. cannot enforce maritime liens by proceedings in rem, 74, 75. may grant an attachment in certain cases, 75. may exercise common law remedy in admiralty causes, 83. may enforce remedy for damages sustained on navigable waters, 83. order remanding cause to, may be reviewed, 271. cannot receive records of a prior Territorial court, 278, 279. appeals from, to Supreme Court of United States, 285. when may be enjoined by Federal court, 320. cannot stay proceedings in Federal courts, 321, 322. mandamus does not lie from Federal court to, 331. security required on removal of cause from, 471. duty of, on petition for removal of cause from, 471, 472. appeal from, where right of removal denied, 472. remedy in cases of refusal of, to furnish papers in removal cases, 478, 481. duty of, on removal of cause, 516. remedy, where cause is not surrendered, 517. remedy in case of disobedience of, 539. may inquire into the truth of the petition for removal, 518. proceedings in, to time of removal, not to be disturbed in Federal court, 521. processes of, not vacated on removal of cause from, 523. refusal of clerk of, to deliver records of, a misdemeanor, 527. review of judgments of, in Supreme Court, 536 et seq. chief justice of, must allow writ of error, 555. 860 INDEX. STATE COURTS— continued. when justice of or chancellor may allow writ of error, 555. security on writ of error to, 561. when writ of error to operates as a supersedeas, 561-565, 567. time in which writ of error must issue to, 566. writ of error to, must be brought within two years, 793. to what State court writ of error directed, 570. meaning of term "highest State court," 569, 570. Federal questions in, 574. Federal question must be raised and decided in, 579, 584. judgment of, in favor of a Federal statute or right, not reviewable, 586 et seq. judgment of, in favor of validity of State laws, is reviewable, 589. what record must show to confer jurisdiction on Supreme Court, 590, 596. jurisdiction of, when concurrent unless expressly prohibited by Congress, 604. Congress cannot confer jurisdiction upon, 603, 606-8. when jurisdiction concurrent with Federal courts, 597-614. Federal jurisdiction cannot be delegated to, 602. when Federal courts cannot issue habeas corpus in commitment by, 631. exceptions to the rule as to habeas corpus, 631. officers in contempt of, when entitled to Federal habeas corpus, 633. cannot discharge, by habeas corpus, prisoner held by Federal author- ity, 625-631. when decisions of, followed in Federal courts, 637-651. decisions of, not allowed to operate retrospectively, 647. changes in decisions of, when not followed, 648. when decisions of, not binding on Federal courts, 651-655. opinion of, may be examined with record, to ascertain Federal questions, 793. STATE LAWS, legality of, in regard to navigable waters, 56. when followed in Federal courts, 186. validity of, how and when reviewed in Supreme Court, 576-582. application of, in Federal courts, 634, 658. when inconsistent with Federal statutes, not authority in Federal courts, 637. application of, a mixed question of law and fact in Federal courts, 638, 639. Territorial laws not regarded as, 639. when Federal courts take judicial notice of, 639. how administered in Federal courts, 640. construction of by State courts, when followed in Federal courts, 645-651. not allowed to operate retrospectively, 647. with regard to local improvements on lands, binding on Federal courts, 655-657. relative to crimes, when enforced in Federal courts, 657, 658. INDEX. 861 STATE LAWS -continued. as to crimes, when applicable in Federal courts, 682, 683. cannot limit equity jurisdiction of Federal courts, 745. may establish remedies, which Federal courts will enforce, 745 746. furnishing remedies in equity, may be enforced in Federal courts 745, 746. ' STATE LEGISLATURE, cannot create a maritime lien for proceeding in rem, 82. See, also, State Laws; State. "~ STATUTES, how authenticated as evidence in Federal courts 442. of State, review of validity of in Supreme Court, 576-582. what constitutes a statute of a State, 577. when State constitution regarded as, 578. of the respective States, authority of in Federal courts, 651. See, also, Statute of Limitations ; State Laws. STATUTES OF LIMITATION, on appeal to Supreme Court, 811. suspended pending war of the Rebellion, 311. applicable to Court of Claims, 368. on marshal's bond, 396. See, also, Appeal; Time; Writ of Ebbob. STATUTES OF U. S., Little & Brown's edition to be evidence, 444. See, also, Revised Statutes. STAT, when appeal or writ of error does not operate as, 300. court may order supersedeas, 300. of execution, after filing writ of error, 303, 305-308. when may be granted in Federal court against State court, 320. cannot be granted by State court against Federal court, 321, 322. rule as to, in State court also applicable to Federal court, 662. may be granted in Court of Claims, 373. See, also, Supeesedeas; Bond. STIPULATION, provision for bonds and stipulations, 85, 93. for security, where limitation of liability is claimed, 99. See, also, Bond. STOCKHOLDER, rule as to bill by stockholder of corporation, 789. STORY, HON. JOSEPH, on the origin of the Constitution, 11. on duty of Congress to vest the judicial power, 13. defines meaning of a " case " under the Constitution, 20. defines meaning of "common law " under the Constitution, 23. defines "cases" under the Constitution, 28. on jurisdiction of Federal courts in respect to public ministers, 40. on removal of causes, 451. on exclusive and concurrent jurisdiction of Federal courts, 601. shows how far Federal courts establish rules on questions of com- mercial law, 652. definition of equity jurisprudence, 723, 724. SUBMISSION of case on printed arguments, 354. SUBP03NA out of Supreme Court returnable in sixty days, 118. how served on governor of a State, 118. 862 INDEX. SUBPCENA— continued. service of, in Supreme Court, 345. how issued in Court of Claims, 372. _ duces tecum, under dedimus poteslatem, 430. to run one hundred miles in certain cases, 433. form of, 433. suits in equity to be commenced by, 766. when to issue, 767. how and by whom served, 768. to witness, to be issued by clerk, 785. SUIT, when cannot be brought against a State, 9, 104. when may be brought against a State, 117. cannot be brought against the United States, 103. by and against States, 104. can be brought against officers of United States, 104. cannot be brought against a State by a citizen of another State, 125. cannot be brought against a State by an Indian tribe, 116. may be maintained against corporation in which a State is a stock- holder, 134. may be brought by a State against citizens of another, 184. meaning of the word, 568. See, also, Controversies; State. SUIT IN PERSONAM, process and writ of arrest in, 85. See, also, Actions. SUMMARY TRIALS, for infraction of navigation laws, in District Courts, 200. SUMMONS, how served in a suit against a State, 117, 118. See, also, Service; Actions; State. SUPERSEDEAS, amount of bond when writ of error operates as, 300. time in which, and how obtained, 303-308. bonds, how given, 360. when security must be filed, 561, 563, 567. when writ of error to State court operates as, 561-565, 567. statutory provisions as to, 561-567. within what time to issue, 566. See Bonds. SUPERVISOR of Federal elections, duties of, 385. SUPPLEMENTAL ANSWER. See Answer. SUPPLEMENTAL BILL, office of, in chancery pleading, 760. leave to file same, when granted, 778. statements in original suit not to be set forth in, 779. See, also, English Chancery Practice. SUPREME COURT OF THE UNITED STATES, judges of, how appointed, 3, 12. can be but one, 12. no appeal from, 12. in what cases it exercises original jurisdiction, 12. INDEX. 863 SUPREME COURT OF THE UNITED STATES— continued. in what cases it can exercise appellate jurisdiction, 12. may review case on writ of error, 31. appellate jurisdiction of, 31. original and appellate jurisdiction of, 242, 247. alone has jurisdiction over controversies between States, 115. rules as to process in suits against a State, 118. cannot entertain suit against a State by citizen of another, 125. jurisdiction of, in suit by a State against citizens of another State, 137. has power to redress wrongs of a State, 137. exclusive jurisdiction in suit between a State and a foreign state, 179. original jurisdiction where a State and a foreign State are parties, 179. Chief Justice and associates of, to be allotted to hold Circuit Courts, 210. salaries of justices of, 244. power to appoint officers of, 244. sessions and terms of, 246. courts subject to appellate jurisdiction of, 257. appeals to, from Circuit Court, 258. appeals to, from District Court in prize causes, 272. appeals to, from Territorial courts, 277. original and exclusive jurisdiction of, 247, 249. when jurisdiction original and exclusive, 250, 251. when original but not exclusive, 251. cases in which its jurisdiction is both original and exclusive, 252. cases in which its jurisdiction is original but not exclusive, 253. scope of appellate jurisdiction of, 255. appeals to, from Supreme Court of District of Columbia, 280. appeals to, from Court of Claims, 232. writs of error from, to State courts, 285. appeal to, when must be taken, 311. power of, to review decisions of State courts, 538 et seq. laws of Congress with reference to, 243. organization of, 243. number of justices of, 243. quorum of justices, 243. order of precedence of justices of, 243. vacancies in, 244. adjournment of, for want of a quorum, 246. when orders made by less than quorum, 246. limitation of jurisdiction of, 248. Congress cannot enlarge original jurisdiction of, 247, 248. when it has no power to issue a mandamus, 2i8. cannot exercise appellate jurisdiction in cases of original jurisdic- tion, 250. has no jurisdiction in suit by State against its own citizens, 253. 864 INDEX. SUPREME COURT OF THE UNITED STATES— continved. jurisdiction of, in ambassadorial and consular cases, 254. trials in, must be by jury, 254, 255. may order new evidence in admiralty and prize causes, 275. appeals to, from Territory after it becomes a State, 276-278. distinction between writ of error and appeal, cannot be abolished in, by State or Territory, 278. when may review cases of habeas corpus, 279. may review cases of polygamy and bigamy, 280. may grant leave to appeal from Supreme Court of District of Colum- bia, 281. cannot review cases of crime in District of Columbia, 281, 282. cannot review order granting new trial in Court of Claims, 284. may remand record to Court of Claims for proper findings, 284. may award judgment on reversal, 286. shall send mandate to court below awarding execution, 286. in case of reversal of judgment, may order further proceedings be- low, 286. may direct court below as to judgment, 286. mode in which it may review judgments of Territorial courts, 287. equal division of opinion in, effect of, 288. affirmance, modification or reversal of judgment by, 288-291. direction by, to court below, 291. how execution directed by, 291. when may award execution, 538. defendant entitled to thirty days notice on appeal to, 298. writs of error to, how issued, 301. may amend writ of error, 302. may amend prize appeals, 3U2. may grant a scire facias, 314. may grant a ne exeat, 316. may grant an injunction, 318. may grant habeas corpus, 322. may grant prohibition or mandamus, 328. may grant summary writs, 342. power of court to punish for contempt, 342. rules of. See Rules. provision as to jury trials in, 423. rules of, as to writ of error to State court, 544. jurisdiction of, on removal must be ascertained from record, 547. what Federal questions from State courts may be reviewed by, 574-090. what record of State court must show to confer jurisdiction on, 590-596. jurisdiction of, in equity cases, 743, 744. See, also, Rules of Supreme Court ; Writ of Error. SURPLUSAGE may be stricken from pleading, 93. INDEX. 865 SURETY of bankrupt, when not discharged from debt of his principal due the United States, 111, 112. when entitled to preference from assets of his principal, 112. change in condition after bond executed, 299. one surety, when sufficient, 512. when presumed sufficient, 512. TANEY, CHIEF JUSTICE, distinction of, between a judgment and a mere award, 7. defines distinction between law and equity, 24. on admiralty and maritime judisdiction in Federal courts, 47,48,51. defines nature of writ of mandamus, 338. TAX may be levied by Congress to enforce a judgment against a State, 123. suits in equity to enforce collection of, in District Courts, 192. TERMS, effect of change of, 202. continuance of, 202. for criminal causes in the Southern district of New York, 212. of Circuit Courts, when and where held, 231-241. change of terms not to abate action, 231. of Supreme Court, 246. at which cause must be removed, 508. See District Court ; Circuit Court ; Supreme Court. TERRITORIAL COURTS, not created under Article III of tbe Constitution, 14. created under the clause authorizing laws for the Territories, 15. mode of appointing judges of, subject to laws of Congress, 15. appeals from, after it becomes a State, 276-280. when records of, to be transferred to District Court, 276. appeals from, to Supreme Court, 277. mode in which judgments of, may be enforced on appeal to Su- preme Court, 287. records of, cannot be transmitted to State court, 278, 279. Territorial, Supreme and District Courts, 690, 692. TERRITORY, citizenship in, not sufficient to confer jurisdiction in Circuit Court, 145. status of citizens of, in Federal courts, 180. when it becomes a State, jurisdiction of District Court pending in, 198. validity of law of, when not reviewable in United States Supreme Court, 577. laws of, rest solely on authority of Congress, 688. relation of, to Federal government, 689. crimes committed in, are committed against United States, 689. legislative and judicial power in, 689-693. common law in, 68A-693. TESTIMONY. See Evidence. TESTIMONY DE BENE ESSE, when and how taken, 783. See, also, Evidence ; Deposition ; Commission. 55 866 LSTDEX. TIDE-WATERS, jurisdiction of Federal courts over, 48, 50. State owns beds of, within its borders, 57. ownership of tide-water subject to the right of navigation, 57. TITLE to land granted by different States may be tried in Circuit Court of United States, 174. in mining suits, rule as to paramount title of United States in, 444. See Land Titles. TIME within which appeal must be taken to Circuit Court, 230. in which to appeal from District Court in criminal causes, 240. in which to appeal in prize causes, 273. in which transcript must be filed in prize causes, 276. in which appeal must be taken from Court of Claims, 2.82. in which new trial may be granted in Court of Claims, 284. of notice of citation and hearing in Supreme Court, 298. within which execution may issue after writ of error, 303, 305. in which supersedeas may be obtained, 303-308. within which writ of error may be served, 305-308. in which security must be filed on supersedeas, 304-308. within which appeal to Supreme Court must be taken, 811. within which security must be given on appeal, 312. allowed in Supreme Court to argue motion, 348. of docketing appeals in Supreme Court, 348. allowed for argument, 355. for docketing writ of error in certain cases, 361. within which new trial may be granted in Court of Claims, 373, 374. for filing petition for removal under act of 1875, 507. for filing bond on removal, 513. for filing transcript of record on removal of cause, 513, 526. in which writ of error to State court returnable, 544. in which to serve citation on writ of error, 556, 558. in which writ of error must issue to State court, 566. in which security, must be filed on writ of error to State court, 561, 563, 567. See, also, Appeal ; "Writ of Ekkob. TORT, damages for maritime tort in Federal court, 73. committed on navigable waters may be governed by State law, 83. suits by aliens for, in District Courts, 196. by United States, Court of Claims has no jurisdiction of, 365. See, abo, Negligence. TRANSFER OF CAUSES from Territorial court, when Territory becomes a State, 276-280. See, also, Actions; Removal of Causes. TRANSLATIONS must be made and printed in the record, 350. TREASON, defined by the Constitution, 8. when there can be no conviction for, 8. testimony of two witnesses essential, 8. INDEX. 867 TREASURY, transcript from books of, and copies of papers, when evidence, 435. when original bonds, contracts, &c, must be produced, 436. TREATIES, cases arising under, 17, 20, 29. conflict between treaty and Act of Congress, 30. with Indian tribes same as with foreign nations, 30. State laws must yield to treaties, 30. claims against government under, 367. TRIALS, what trials must be by jury, 8. where to be held, 8. in all controversies involving more than twenty dollars, 8. in District Courts, when by jury, 198. in Circuit Courts, when by jury, 224. by jury in Federal courts, 401, 403. in common law suits, when to be by jury, 412 et seq. by impeachment, 401, 402. of cases arising in land and naval forces, or militia, 405. can be but one in criminal cases, 409. shall be speedy and public, 410. rights of the accused, 409-412. TRIALS AT COMMON LAW, meaning of, in Federal statute, 636, 637. term does not embrace criminal trial, equity, or admiralty suits, 636, 637. TRUSTEE, transfer of interest to secure limited liability, 99. citizenship of, in Federal courts, 151. rule as to making them parties in equity suits, 776. UNDERTAKING on appeal, 299. See, also, Bond. UNITED STATES, nature of controversies of, 101. statutory provisions as to suits by, 107. suits in Court of Claims, 107. by its consent, may be sued in Court of Claims, 113. suits to recover for frauds against, 192. suits by, when may be in District Courts, 192. when it can be made a " party" to a controversy, 102. when it cannot be sued, 103. judiciary act does not authorize suits against, 103. officers of, may be sued, 104. judgments in favor of, may be reviewed, 108. set-off may be pleaded against, 109. priority of claims due to, 110. rule as to priority, 111. no statute can deprive it of its rights and remedies, 112. is a corporation or body politic, 192. injunction against, does not lie, 319. 868 INDEX. UNITED STATES— continued. judgment against, how paid, 374, 375. has no common law for criminal cases, 680. UNITED STATES COMMISSIONERS. See Commissioners. UNITED STATES STATUTES, when State may confer authority on its- courts to enforce, 604. USURPATION, exercise of power not delegated is, 18. UTAH TERRITORY, appeals from in capital cases, or in cases of polygamy and bigamy, 280. VACANCY in office of judge not to affect pending proceedings, 207. in office of Chief Justice of Supreme Court, 244. in office of clerk of Supreme Court, 244. VENIRE FACIAS, when to issue, by whom served, 417. in case of grand jury, 419. VERDICT can only be set aside to correct errors of law, 294. of acquittal cannot be set aside, 294. VERIFICATION of claim in admiralty and maritime cases, 90. when not required in answer, in cases of $50 or less (Rule 48), 96. of answer, before what officer to be made, 779. VERMONT, recognizance of witness in, how taken, 434. VESSELS, suits against officers and owners of, 222. See, also, Admiralty ; Ship. VOTE, suits to enforce right to, 221. WAGES of seamen, how enforced, 385. See, also, Mariners' Wages; Seamen. WAITE, CHIEF JUSTICE, on right of a State to sue a State as assignee of its citizens, 125. WAIVER, when appearance constitutes waiver of privileges of non-resident, 150. of jury, must be in writing, 265, 267. of irregularity, when presumed in prize causes, 274. of jury by written stipulation, 421. of citizenship, when cause has been removed, 503. of right to remove cause, when presumed, 509. of defects in bond for removal, 512. appearance no waiver of right to remove cause, 518. of service of citation on writ of error, 557. WAR, laws of, with respect to prize cases, 69. laws of, must be referred to in prize cases, 697. WARRANT shall only be issued on probable cause, 8. must be supported by oath, 8. issuance of in extradition cases, by United States commissioner, 381. runs throughout United States, 381. WASHINGTON TERRITORY, appeal from Supreme Court of, the sum must exceed $2,000, 277. INDEX. 869 WHEATON, HENRY, on principles governing diplomatic rights, 32. "WILLIAMS, ISAAC, case of, 672. WITNESS, person accused of crime, must be confronted by the witnesses, 8 no person can be compelled in criminal case to be witness aeainst himself, 8. s compulsory attendance of in criminal cases, 8. accused entitled to compulsory process for, 411. compulsory attendance of, in criminal cases, 433. in criminal cases, may be required to enter into recognizance, 434. recognizance in Vermont, how taken, 434. in Court of Claims, not disqualified on account of color, 371. when not to be excluded on account of color, 643. interested in claim, disqualified, 371. accused, not compelled to be, 409. when not excluded on ground of interest, 426. rule in case of executors, guardians, &c, 426. person accused of crime, when to testify, 426. before Congress, testimony not to be used against him, 427. in criminal proceeding, pleadings of not to be used in, 427. when to be examined orally, 427. deposition of de bene esse, 427. how examined under dedimus poteslatem, 429 et seq. deposition of, in District of Columbia, 431. fees of, in District of Columbia, 432. testimony of under letters rogatory, 432, 433. distance, may be subpoenaed, 433. when State statutes as to competency of, binding in Federal courts. 642, 643. must sign his deposition in presence of parties and counsel, 781. upon refusal examiner may sign, 782. effect of refusal to attend and be sworn, 782. attachment may issue for, 785. how produced and examined before master, 785. must produce books, papers, &c, 785. when, may be committed, 434. WOMEN, when may be admitted as attorneys in Supreme Court, 345, 389. See, also, Married Woman. WORDS AND PHRASES, " court," meaning of defined, 3. " judicial authority," what it comprehends, 4. "judicial power'' defined, 3, 4. "cases" and "controversies" within the Constitution, 5. "We, the people," 10. *' do ordain and establish," 10. "judicial power of the United States" defined, 11. " cases and controversies " classified, 18, 19. " cases," meaning of, 20. 870 I1TOEX. WORDS AND PHRASES— continued. " cases," defined, 20, 21. "cases," meaning of, in Constitution, 101. "common law," meaning of, 23. " law," term defined, 23. " law and equity," distinguished, 23, 24. " privileges and immunities " of citizens, 28. word "ambassadors," 34. ■words " public ministers," 34. word " affecting," as applied to public ministers, 39. terms "admiralty" and "maritime," 44. " navigable rivers and lakes," defined, 53. "canal boat," admiralty jurisdiction as to, 55, 56. " high seas," meaning of defined, 00. " civil causes," defined, 62, 63. " maritime contracts," defined, 63. " maritime lien," defined, 72. " prize," meaning of in maritime law, 68. " controversies," meaning of in Constitution, 101. "controversies," between States defined, 115. " disputes and differences," word " controversies," substituted for, 119. "controversies," what embraced in as between States, 119. term "State," defined, 127. term " citizen," defined, 127. words " suits in law and equity," do not embrace admiralty suits, 129. "citizen," who is a, 142. word "judge," when it includes "justice," 210. "circuit judge" and "justice of a circuit," defined, 210. meaning of word "jurisdiction," 242. word "original," as applied to jurisdiction of Supreme Court, 249. meaning of term "judgments," 258. meaning of term "decrees," 258. word "final," meaning of, 261. meaning of "matter in dispute," 262. "law and fact" in the Constitution, 293. "civil action at law," meaning of, 313. " scire facias, 1 ' defined, 315. "usages and principles of law," construction of, 316. term "proceedings," defined, 321. " appellate," meaning of in Constitution, 331. "fault or negligence," meaning of, 366. meaning of term "prosecute," 395. "capital and otherwise infamous," 405, 406. meaning of word "suit," 461, 568. meaning of term " trial or final hearing," 467. INDEX. 871 WORDS AND PKRASES-continued. meaning of term "highest State court," 569. meaning of term "final judgment or decree," 571. meaning of phrase " drawn in question," 575. meaning of the term " State," 576. term " trials at common law," meaning of, 636, 637. meaning of the term " common law,'' 668. meaning of term " high seas," 678. when common law must be referred to, to ascertain, 683. meaning of phrase "common law," 694. meaning of "cases in law and equity," 696. phrase " due process of law " determined by the common law, 698. word "deprive " applied to taking of property, 713. WRIT OF ERROR, case may be carried by, to Supreme Court, 31. when the sum must exceed $5,000, 257. cases in which it lies to Supreme Court, 258. distinguished from an appeal and defined, 259. when amount involved not material on, 263. distinguished from appeal, State or Territory cannot abolish dis- tinction in Supreme Court, 278. to Supreme Court in habeas corpus cases, 279. in cases of polygamy or bigamy, 280. from Territorial courts injury cases, 280. mode "of procedure upon, 296-299. bond to be given on, 299-301. when operates as a stay and supersedeas per se, 300. from Supreme Court, how issued, 301. to District Court acting as Circuit Court, 301. form of, 301. amendments to, by Supreme Court, 302. when not supersedeas, security on, 303, 304. time of service of, 305. time within which must be taken to Supreme Court, 311. return to, in Supreme Court, 347. in certain cases, when returnable, 360, 361. when to be docketed, 361. in case of disobedience of State court, 539. to State court from U. S. Supreme Court, contents of, 541. authentication of, 542, 552. effect of, 542. right to the writ, 543. service and return of, 544. parties entitled to, 545. petition for, what to contain, 552, 553. by whom writ allowed, 553. allowance of essential to confer jurisdiction, 554, 555. must be accompanied by citation, 556. 872 INDEX. WRIT OF EEEOR— continued. to State court, security for, 559. to State court, when it operates as a supersedeas, 561-565, 567. to State court, how issued, 566. formal conditions of, 567. to State court, what record must show to confer jurisdiction, 590, 596. to State court must be brought within two years, 793. sufficiency of security on, 560. statutory provisions as to, 561-567. within what time to issue, 566. security on, when must be filed, 561, 563, 567. See, also, Appeal. WRITS AND EXECUTIONS, form of, in equity and admiralty cases, 24. WRITS, of scire facias and habeas corpus under the judiciary act, 4. other common law writs, 4. power of Circuit Courts to issue, 228. of sci.fa. and habeas corpus in District Courts, 200. power of Federal courts to grant, 314 et seq. various kinds of writs, 316. See, also, several kinds of writs. TAZOO RIVER, admiralty jurisdiction extends to, 53. Whole No. or Pages, 900.