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The Federal Courts. 
 
 THEIR ORGANIZATION, JURISDICTION 
 AND PROCEDURE. 
 
 LECTURES BEFORE THE 
 
 Riclimond Law School, 
 
 RICHMOND COLLEGE, 
 
 VIRGINIA. 
 
 BV 
 
 CHARLES H^SIMONTON, 
 
 U. S. CIRCUIT JUDGE. 
 
 Biehmond, Va. : 
 
 B. F. JOHNSON PXJBLIWHIN(i CO. 
 
 1896, 
 
COPTKIGHTED, 
 
 By C. H. Simonton. 
 
THE FEDERAL COURTS. 
 
 The convention which framed the Constitution of the United 
 States could not have completed its purpose, the formation of 
 a more perfect union, without providing for a separate Federal 
 judiciary. The instrument which they framed was a compact 
 between sovereign States, who, parting with many of the attri- 
 butes of sovereignty, bestowed these upon the government 
 then established. Necessarily, in the course of time, questions 
 would arise between these States and the general government, 
 questions between the departments of the general government, 
 questions also between the States themselves, which could not 
 be submitted for solution to the judicial department of any 
 one State. These questions could onlj' be solved in tribunals 
 created by the general government, whose decisions could 
 bind all the States. 
 
 To the government created by the Constitution was entrusted 
 the control and management of all relations with foreign gov- 
 ernments. It had the sole power of making treaties, of declar- 
 ing war, of concluding peace. These treaties binding upon 
 all the States could not be construed by one State alone. Am- 
 bassadors accredited to the United States present their creden- 
 tials to and could be recognized by the general government 
 alone. Whilst residing near the government they would be 
 under its protection and could seek redress for wrongs com- 
 plained of at its hands, and would be responsible only to it for 
 their action. It was bound to furnish tribunals which would 
 consider cases affecting ambassadors, other public ministers 
 and consuls. The Congress was invested with exclusive power 
 to regulate commerce with foreign nations among the several 
 ■States and with the Indian tribes. One of the principal objects 
 of the convention was to take these subjects from individual 
 
 (3) 
 
States and place them under the control of the general gov- 
 ernment. These regulations necessarily were to be construed 
 and administered in tribunals established by Congress. The 
 citizens of each State were entitled to all the privileges and 
 immunities of citizens in the several States. Congress natu- 
 rally was called upon to protect them in courts free from local 
 prejudices and attachments. The whole country was homoge- 
 nous in character and population. Intercourse between the 
 several colonies had been free. New States would be formed 
 out of the superabundant territory of the older States, and 
 occasions would frequently arise in which lands claimed under 
 grants of different States would be the subject of litigation. 
 A tribunal above the suspicion of partisanship or partiality 
 was necessary for the decision of these adverse claims. From 
 time to time, increasing as intercourse with other nations in- 
 creased, cases would arise between aliens and foreign States, 
 and citizens of the United States, which if they could not be 
 decided more impartially, would certainly be more free from 
 apparent bias if heard in tribunals national in their character, 
 not owing their existence to a single State. The United States 
 would be constantly called upon to maintain its rights, compel 
 the performance of its contracts, and enforce its penal and 
 criminal laws in its own name. And every sovereign, for these 
 purposes, establishes its own courts. Above all in a govern- 
 ment maintained under a written constitution, with well defined 
 powers, there would constantly arise in the acts of Congress 
 and in the legislation of the several States, what are called 
 Federal questions. These questions involve and are depend- 
 ant upon the construction of the Constitution of the United 
 States, and the laws passed thereunder. In their construction 
 there is the supreme necessity for uniformity of decision. This 
 could be secured only by the establishment of courts, whose 
 decisions could be reviewed in one court of last resort, whose ' 
 mandates would run and be implicitly obeyed throughout the 
 whole union. 
 
Recognizing this the convention adopted Article III. of the 
 Constitution, vesting the judicial powers of the United States 
 " in one Supreme Court and in such inferior courts as the 
 Congress may from time to time ordain and establish." 
 
 But whilst these courts are Federal courts, owing their sanc- 
 tion only to the Constitution and the action of the Congress 
 thereunder, and are wholly independent of State authority, 
 they are not in any sense foreign courts — see Metcalf v. Water 
 town, 153 U. S. 680 — alien from the people of the States ; nor 
 are they imposed upon the States by any separate power. 
 They are the courts of the people, as much so as any one 
 of the State courts. They rest for their origin and authority 
 upon the Constitution of the United States, adopted not by 
 the votes of State legislatures, but by the people of the United 
 States, voting directly thereon, ratified and confirmed by the 
 people in convention assembled, and established in the only 
 mode in which the whole people of the United States declare 
 their will, the aggregate of concurrent majorities. 
 
 As was said by the great Chief Justice Marshall, in McCul- 
 loch V. Maryland, 4 Wheaton,at page 403, after asserting that 
 the Constitution as it came from the hands of the convention 
 was a mere proposal, without obligation or pretensions to it; 
 it had no vitality until affirmed by the people. He then says: 
 " This mode of proceeding was adopted, and by the conven- 
 tion, by Congress and by the State legislatures, the instrument 
 was submitted to the people. They acted on it in the only 
 manner in which they can act safely, effectively and wisely on 
 such a subject by assembling in convention. It is true they 
 assembled in their several States ; and where else could they 
 have assembled? No political dreamer was ever wild enough 
 to think of breaking down the lines which separate the States, 
 and of confounding the American people into one common 
 mass. Of consequence when they act, they act in their States. 
 But the measures they adopt do not on that account cease to 
 
6 
 
 be the measures of the people themselves." . . " The 
 government of the Union, then, is emphatically a government 
 of the people. In form and substance it emanates from them. 
 Its powers are granted by them, and are to be executed directly 
 upon them for their benefit." 
 
 This language is affirmed by the Supreme Court in re Debs, 
 158 U. S. 578, and the language of Bradley, Justice, in ex-parte 
 Siebold, 106 U. S. 371, quoted and approved. " We hold it to 
 be an incontrovertible principle, that the government of the 
 United States may by means of physical force, exercised 
 through its official agents, execute on every foot of American 
 soil the functions and powers that belong to it. This neces- 
 sarily involves the power to command obedience to its laws 
 and hence the power to keep the peace to that extent. This 
 power to enforce its laws and execute its functions in all places, 
 does not derogate from the power of the State to execute its 
 laws at the same time and in the same place. Tbe one does 
 not exclude the oth^r, except when both cannot be executed at 
 the same time. In that case the words of the Constitution it- 
 self show which must yield. " This Constitution and all the 
 laws which shall be made in pursuance thereof, shall be the 
 supreme law of the land." 
 
 And in the administration of the law, the Federal courts 
 within the several States comport themselves as courts of the 
 State in which they are located. They are bound to recognize 
 and follow the local laws and customs, all the rules of property 
 prevailing in the States in which they are loi.ated, as these 
 are authoritatively expounded by the State courts. In all that 
 numerous class of cases in which the legal rights of citizens 
 are involved, their contracts, holdings of property rights and 
 duties growing out of the domestic relations, in short, all rights 
 enforcible in a court of law, as contradistinguished from equity 
 and admiralty, the Federal courts must adopt and closely fol- 
 low the practice, pleadings, forms and modes of procedure of 
 
the courts of the State in whose territory they are. In many 
 cases the State courts and the Federal courts have concurrent 
 jurisdiction. In these cases there are more or less dangers 
 of conflict. Indeed, there is always danger of conflict be- 
 tween courts, although created by the same authority. But 
 the Supreme Court of the United States rigidly enforces the 
 rule preventing this conflict between Federal and State courts. 
 Nowhere is this better expressed than in Covell v. Heyman, 111 
 U. S., 182. "The forbearance which courts of co-ordinate 
 jurisdiction administered under a single system, and it may 
 be added, under the same authority, exercise toward each other, 
 whereby conflicts are avoided, by avoiding interference with 
 the process of each other, is a principle of comity with perhaps 
 no higher sanction than the utility which comes from concord. 
 But between State courts and those of the United States it is 
 something more. It is a principle of right and of law, and 
 therefore of necessity. It leaves nothing to discretion or mere 
 convenience. These courts do not belong to the same system 
 so far as their jurisdiction is concurrent, and although they 
 exist in the same space they are independent and have no 
 common superior. They exercise jurisdiction, it is true, within 
 the same territory, but not on the same plane. And when one 
 takes into its jurisdiction a specific thing, that res is as much 
 withdrawn from the judicial power of the other as if it had 
 been carried physically into a different territorial sovereignty." 
 The makers of the Constitution contented themselves with 
 establishing one supreme court, that is to say, by declaring 
 that there shall be only one supreme court. Mindful of the 
 changes which time would bring and conscious, perhaps, of the 
 inevitable growth of the great empire they were establishing, 
 they left in the hands of Congress the power of accommo- 
 dating to these changes and of meeting the necessities of the 
 growing country by empowering them from time to time to 
 ordain and establish inferior courts. 
 
Immediately after the adoption of the Constitution the Con- 
 gress proceeded to provide for the organization of the one 
 Supreme Court, and to establish as the inferior courts the cir- 
 cuit and district courts, in what is known as the judiciary act, 
 24th September, 1789. 1 Statutes at Large, p. 73. 
 
 At first the Supreme Court consisted of a chief justice and 
 five associate justices. The growth of the country has in- 
 creased the number of associate justices to eight. 
 
 The whole country was divided into judicial districts, each 
 State being within one district at least, and for each district a 
 district court was established and a judge, known as the dis- 
 trict judge, was appointed to preside over it. There are now 
 sixty-nine districts. Several contiguous districts were united, 
 forming a circuit. There are now nine circuits. For each 
 circuit a court was established, known as the circuit court. 
 The circuit court as first organized was composed of justices 
 of the Supreme Court, afterwards of one circuit justice and 
 the district judge. To this end the Supreme Court was directed 
 to allot the several justices to the several circuits. If from any 
 cause the circuit justice could not attend the circuit court or 
 sit therein at any term, the district judge alone could hold 
 the court. In the absence, inability or disability of the dis- 
 trict judge, the circuit justice could hold the court alone. 
 
 In 1801 Congress created circuit judges — three for each cir- 
 cuit. This was done just as the administration of President 
 John Adams was about to expire. He appointed all the judges 
 and commissioned them on the eve of the inauguration of Mr. 
 Jefferson, his successor. In the political slang of the day, 
 these judges were known as "The Midnight Judges." This so 
 exasperated the dominant political party, who had defeated 
 him and had elected Mr. Jefferson, that the act was repealed 
 and the office of circuit judge was abolished. The circuit 
 courts thenceforward continued to be administered by the cir- 
 cuit justice and the district judge until 1869. One result of 
 
the war between the States was to increase greatly the busi- 
 ness of the courts of the United States and to render some 
 increase in their judges necessary. In this last-mentioned 
 year (14 Statutes at Large, 433) Congress provided for the crea- 
 tion of one judge for each circuit, to be known as the circuit 
 judge. The circuit justice and circuit judge sat in the circuit 
 court. In the absence of either or of both, the district judge 
 could sit, and when he sat alone he had all the powers of the 
 circuit court. The necessities of the court increasing. Congress 
 in 1887 (24 Statutes at Large, 492) appointed an additional 
 circuit judge for the second (the New York) circuit, and in 
 1891 (26 Statutes at Large, 826) provided for an additional 
 circuit judge in every other circuit, both circuit judges having 
 precisely the same powers, duties, responsibilities and emolu- 
 ments. The pressure of business led to the appointment of 
 still another (or third) circuit judge in the second (the New 
 York) circuit, in the seventh circuit (Illinois, Indiana and Wis- 
 consin), in the eighth circuit (embracing Arkansas, Colorado, 
 Iowa, Kansas, Minnesota, Missouri, Nebraska, the two Dakotas 
 and Wyoming), and the ninth circuit also (embracing Califor- 
 nia, Oregon, Montana, Washington, Nevada, Idaho and Alaska). 
 In addition to these courts, Congress has established a Court 
 of Claims, sitting at the seat of government, consisting of a 
 chief justice and four judges. This court has jurisdiction of 
 all claims brought against the United States on causes of action 
 in contract. They have no jurisdiction over torts. Their de- 
 crees are rendered, and if against the United States, are reported 
 to the Attorney- General of the United States, who brings them 
 to the attention of Congress, by whom provision is made by 
 special act for their payment. The District of Columbia being 
 immediately and exclusively under the government and con- 
 trol of the Congress, a regular system of courts has been pro- 
 vided for that district. These, however, do not come within 
 the scope of our present study. 
 
10 
 
 Beside these are the territorial courts, appointed by Congress 
 for each territory. 
 
 The judges of all the Federal courts are appointed by the 
 President, " by and with the advice and consent of the Senate." 
 All of these but the territorial judges hold their offices during 
 good behavior, and are only removable by impeachment before 
 and conviction by the Senate of the United States. 
 
 The territorial judges hold their office for a term of years 
 and are removable by the President at his pleasure. R. S. 1877. 
 
 The business of the Supreme Court was of such magnitude, 
 and was yearly increasing to such an extent, that Congress was 
 compelled to come to its relief. To this end they established 
 in each circuit a circuit court of appeals. This court consists 
 of the circuit justice and all the circuit judges of the circuit, 
 any two of them being a quorum for the hearing and decision 
 of causes. In the absence, disability or inability of either the 
 circuit justice or any of the circuit judges, a district judge of 
 the circuit is called in to fill his place. To this end all the 
 district judges are made members of the circuit court of ap- 
 peals of their respective circuits. This court has an appellate 
 jurisdiction which will be discussed and explained hereafter. 
 
 so THEN WE HAVE : 
 
 The Supreme Court of the United States, established by the 
 Constitution, and not subject to the action of Congress, except 
 that Congress can increase or diminish the number of its jus- 
 tices, and in some respects limit its appellate jurisdiction. 
 Next — The Circuit Court of Appeals. 
 The Circuit Courts. 
 The District Courts. 
 The Court of Claims. 
 The Courts in the District of Columbia. 
 The Territorial Courts. 
 Over all of them but the Supreme Court, Congress has com- 
 
11 
 
 plete control, in that it can limit and define their jurisdiction 
 or abolish them at pleasure and create other courts. 
 
 It is proposed to take up each of these courts, and in a prac- 
 tical way, ascertain its jurisdiction and explain its procedure. 
 The difficulty attending discussions of this character is that 
 the subject grows so much under the discussion, that it is apt 
 to run into wearisome length. On the other hand, the very 
 nature of the subject forbids too great condensation. Prin- 
 ciples are not the chief subject of our investigation. Facts, 
 methods and details must be stated. Terseness which belongs 
 to the discussion of principles, is apt to degenerate into obscu- 
 rity. So the task is not free from difficulty. Its only purpose 
 is instruction. An effort will be made to make that as com- 
 plete as time and the subject will permit. 
 
 The various changes which have been made in the Federal 
 law, its historical growth, if the expression can be used, will 
 not be noticed unless this becomes necessary to a complete 
 understanding of what the law now is. Nor will suggestions 
 be made as to possible improvements which may appear neces- 
 nary or beneficial in existing laws. Before we enter upon an 
 improvement of the law, we must thoroughly understand what 
 the present law is. Our investigation will be confined Lo this, 
 Our object is to make such an examination as to be able to 
 say, with some degree of certainty, " ita lex scripta est." 
 
 The Constitution, Article III., section 2, 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 au- 
 thority; to all cases affecting ambassadors, other public ser- 
 vants and consuls; to all cases of admiralty and maritime 
 jurisdiction; to controversies to which the United States shall 
 be a party; to controversies between two or more States ; be- 
 tween a State and citizens of another State ; between citizens of 
 different States; between citizens of the same State claiming 
 
12 
 
 lands under grants of different States, and between a State, or 
 the citizens thereof, aud foreign States, citizens or subjects." 
 
 The distribution and administration of this power among 
 and by the courts of the United States is left to the discretion 
 .of the Congress, except in the case of the Supreme Court. 
 
 Before going into an examination of these courts and ascer- 
 taing their jurisdiction and procedure, it will be well to know 
 how far the common law enters into the principles controlling 
 them. 
 
 "It is clear," say the Supreme Court in Wheaton et al. v. 
 Peters (8 Peters, at page 658), there can be no common law of 
 the United States. The Federal Government is composed of 
 sovereign and independent States. Each of which may have 
 its local usages, customs and common law. There is no prin- 
 ciple which pervades the Union and has the authority of law 
 that is not embodied in the Constitution and laws of the 
 Union. The common law could be made a part of our Federal 
 system only by legislative adoption." But the framers of our 
 ■Constitution had lived under the common law and possessed 
 its principles as a part of their inheritance. Many of them 
 were lawyers, educated under the system derived from Eng- 
 land. Some of them had served their terms in the Inns of 
 Oourt. 
 
 The language of the common law, its definitions and terms, 
 were with them, household words. And when the Constitu- 
 tion uses these terms, they must be understood in the sense 
 of the common law. " That is the system from which our 
 judicial ideas and legal definitions are derived. The language 
 of the Constitution and of many acts of Congress could not be 
 understood without reference to the common law." So said 
 Mr. Justice Bradley in Moore v. The United States, 91 U. S., 274. 
 And he applied this doctrine to the practice of the Court of 
 Claims. This is an extraordinary court in which claims 
 against the government are alone adjudicated. Yet in its 
 
13 
 
 practice, so far as rules of evidence are concerned, it must fol- 
 low the common law. In Smith v. Alabama, 124 U. S., 478^ 
 Mr. Justice Mattliews, delivering the opinion of the Supreme 
 Court, says: " There is no common law of the United States in 
 the sense of a national customary law, distinct from the com- 
 mon law of England, as adopted by the several States each for 
 itself, applied as its local law and subject to such alterations 
 as may be provided by its own statutes." 
 
 So when we speak of the common law as applied by Federal 
 courts, we mean the common law as it exists in each state. 
 And as the common law may be abrogated or altered by 
 statute, and every state has passed, or can pass statutes on this 
 subject, the common law must vary as the States themselves. 
 The Federal courts in each State apply the common law as 
 it exists in such State. Mr. Justice Matthews, however, goes 
 on : " There is, however, one clear exception to the statement 
 that there is no national common law. The interpretation of 
 the Constitution of the United States is necessarily influenced 
 by the fact that its provisions are framed in the language of 
 the English common law, and are to be read in the light of 
 its history." 
 
 " The code of constitutional and statutory construction which 
 therefore is gradually formed by the judgment of its courts in 
 the application of the Constitution and laws and treaties made 
 in pursuance thereof, has, for its basis, so much of the common 
 law as may be implied in the subject and constitutes a com- 
 mon law resting on national authority." 
 
 As the States have jurisdiction over all common law crimes, 
 and as all crimes against the United States, are such as are the 
 creation of statute, there are no common law crimes against 
 the United States. But when the United States statutes for- 
 bid the commission of certain acts, and in such prohibition 
 use common law terms, they must be defined according to- 
 common law principles. 
 
14 
 
 THE SUPREME COURT. 
 
 With regard to this the Constitution declares: In all cases 
 iiffecting ambassadors, other public ministers and consuls, and 
 those in which a State shall be a party, the Supreme Court 
 shall have original jurisdiction. 
 
 In all the other cases before mentioned, set out in Article 
 m., section 2 of the Constitution, quoted above, 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. As we proceed hereafter to discuss the 
 jurisdiction of the inferior courts, we will see what the excep- 
 tions and regulations are wiiich the Congress has made. 
 
 This fixes the original jurisdiction of the Supreme Court, 
 and the Congress has no power whatever to enlarge or modify 
 it {Marbury v. Madison, 1 Cranch, 137 ; Bollman v. Swartout, 
 4 Cranch, 75, ex-parte Yerger, 8 Wall., 85). It will be noted 
 that whilst the Constitution gives the Supreme Court original 
 jurisdiction in these specified cases, it does not say whether it 
 be exclusive. The judiciary act of 1789 (1 Statutes at Large 
 73) embodied in section 687 of the Revised Statutes of the 
 ■ United States, gives legislative construction to this article. 
 
 "The Supreme Court shall have exclusive jurisdiction of all 
 controversies of a civil nature when 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. An original, but not exclusive, jurisdic- 
 tion of all suits brought by ambassadors or other public min- 
 isters, or in which a consul or vice-consul is a party." 
 
 To repeat : In all suits against ambassadors, other public 
 
15 
 
 ministers, their domestics or domestic servants, consuls or vice, 
 consuls, the Supreme Court has exclusive original jurisdiction. 
 Such suits or proceedings can be brought in no other court. 
 But in suits or proceedings brought by ambassadors, &c., the 
 court has original jurisdiction, but not exclusive. Congress 
 can provide that such suits can be heard in an inferior court. 
 
 It will be noted the qualification to this authority to hear 
 suits against ambassadors, &c. They must be such "as a 
 court of law can have consistently with the law of nations." 
 The law of nations exempts public ministers from suits or 
 prosecutions, and extends this exception to their families and 
 servants. 
 
 So practically this jurisdiction is never exercised. 
 
 In controversies to which a State is a party — that is to say, 
 controversies between two or more of the States of the Union, 
 or between a State and a foreign State — the jurisdiction of the 
 Supreme Court is original and exclusive. 
 
 But in controversies between a State and citizens of other 
 States, and between a State and aliens, the jurisdiction is origi- 
 nal, but not exclusive. In the original Constitution the lan- 
 guage was without qualification, "In controversies to which a 
 State is a party." In Chisholm v. The State of Georgia, 2 Dal- * 
 las, 419, the Supreme Court took jurisdiction of a suit between 
 a private person and a State and gave judgment. This cre- 
 ated great popular excitement, leading to the adoption of a 
 constitutional amendment. 
 
 Under the eleventh amendment to the Constitution no such 
 suit will be entertained if the State is defendant. The con- 
 troversy must be of a civil nature. The jurisdiction does not 
 extend to cases for the recovery of a penalty for a violation of 
 municipal law. Wisconsin v. Pelican Ins. Co., 127 U. S, 265. 
 
 But the Supreme Court cannot take original jurisdiction of 
 a controversy between a State and one of its own citizens 
 {Pennsylvania v. Quicksilver Co., 10 Wall., 553), notwithstand- 
 
16 
 
 ing any expression in the section 687, Revised Statutes of the 
 U. S., above quoted, as this is not warranted in the Constitu- 
 tion. You will find a full discussion and elucidation of this 
 principle in California v. So. Pac. Railway, 157 U. S., 229, 
 showing how far it is carried. 
 
 The phrase "controversies to which a State is a party," and 
 the construction of the eleventh amendment to the Constitu- 
 tion, have long vexed the Supreme Court ot the United States, 
 and have been the subject of discussion in many cases. The 
 language of the eleventh amendment is this : 
 
 "The judicial power of the United States shall not be con- 
 strued 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." 
 
 Although the words of the amendment protect a State from 
 suit by citizens of another State and aliens ; they are held also 
 to include suits by citizens of a State against their own State. 
 The decision quoted from "Wallace above has been confirmed 
 in two well known cases, Harris v. Louisiana, 134 U. S. 1, and 
 Temple v. North Carolina, in the same volume page 22. In 
 these cases the point came up squarely and was decided by a 
 unanimous court. Judge Harlan dissented on another ground. 
 But when is the controversy one in which the State is a party, 
 so that it comes within the inhibition of the amendment? 
 There are many cases in the books in which suits are brought 
 by private citizens against State officers, treasurers, auditors, 
 governors, attorney-generals, in relation to taxes alleged to be 
 unlawful, and many other matters of like character ; and in 
 them there has been much discussion and apparently varying 
 decisions. It was at one time held, and by as great a judge 
 as Chief Justice Marshall, that the State must be a party to 
 the record by name, in order to make the controversy one in 
 which the State was protected. Osborn v. The Bank, 9 Whea- 
 ton, 738. But this was overruled in re Ayers, 123 U. S. 443. 
 
17 
 
 After many decisions the question came up in Pennoyer v. Mc- 
 Connaughy, 140 U. S. 9. The opinion of the court was deliv- 
 ered by Mr. Justice Lamar, whose specialty was constitutional 
 law, and who had imbibed from childhood the strictest tenets 
 of the State rights party. 
 
 The case was by a citizen of California against the Governor, 
 Secretary of State, and Treasurer of the State of Oregon, who 
 constituted ex-officio a board of land commissioners, seeking to 
 enjoin them from selling, as property of the State, a large tract 
 of land claimed by the complainant. You will observe that 
 these three officers had no personal interest in these lands. 
 They claimed that the lands belonged to the State of Oregon, 
 and that they held the lands for the State, and it was con- 
 tended that inasmuch as the decree would affect the title of 
 the State she was really a party though not named as such. 
 I will repeat the language of the court as the best possible ex- 
 position of the law on this delicate and doubtful question. 
 " Is this suit in legal effect one against a State within the 
 meaning of the eleventh amendment to the Constitution ?" 
 A very large number of cases involving a variety of questions 
 arising under this amendment have been before this court for 
 adjudication ; and, as might naturally be expected, in view of 
 the important interests and the wide-reaching political rela- 
 tions involved, the dissenting opinions have been numerous. 
 Still, the general principles enunciated by these adjudications 
 will, upon a review of the whole, be found to be such as the 
 majority of the court and the dissentients are substantially 
 agreed upon. 
 
 It is well settled that no action can be maintained in any 
 Federal court by the citizens of one of the States against a 
 State without its consent, even if the sole object of such suit 
 be to bring the State within the operation of the constitutional 
 provision. " No State shall pass any law impairing the obli- 
 gation of contracts." This immunity of a State from suit is 
 2 
 
18 
 
 absolute and unqualified, and the constitutional provision 
 securing it is not to be so construed as to place the State within 
 the reach of the process of the court. Accordingly it is equally 
 well settled tliat a suit against the officers of a State to compel 
 them to do the acts which constitute a performance by it of its 
 contracts is in effect a suit against the State itself. 
 
 In the application of this latter principle two classes of cases 
 have appeared in the decisions of the courts, and it is in deter- 
 mining to which class a particular case belongs that differing 
 views have been presented. 
 
 The first class is when a suit is brought against the officers 
 of the State as representing the State's action and liability, 
 thus making the State, though not a party to the record, the 
 real party against which the judgment will so operate as to 
 compel the State to specifically perform its contracts. For this 
 the learned Justice quotes cases, among them in re Ayers, 123 
 U. S., 443, in which the attorney-general of Virginia was con- 
 cerned. You will notice that this class of cases require the 
 officer of the State to do something — something the State 
 ought to do. This class of cases come within the constitu- 
 tional inhibition, being in effect suits against the State. 
 
 "The other class," continues Justice Lamar, " is when a suit 
 is brought against defendants, who, claiming to act as officers 
 of the State and under the color of an unconstitutional statute 
 commit acts of wrong and injury to the rights and property 
 of the plaintiff, acquired under a contract with the State. Such 
 suit, whether brought to recover money or property in the 
 hands of such defendants, unlawfully taken by them in behalf 
 of the State qr for compensation in damages or in a proper 
 case, when the remedy at law is inadequate for an injunction 
 to prevent such wrong and injury, or for a mandamus in a 
 like case to enforce on the defendant the performance of a plain 
 legal duty, purely ministerial, is not within the meaning of 
 the eleventh amendment an action against the State." You 
 
19 
 
 will note that in this class of cases the defendant is sued for 
 having done something, making a broad distinction between 
 the two classes of cases, the one requiring a State officer to do 
 something which the State should do, the other seeking redress 
 for an act done by a State officer which he should not have 
 done and has no valid protection for the doing. 
 
 Of course a State can be sued with its own consent. 
 
 There is a class of cases in which the courts of the United States 
 take jurisdiction over a controversy to which a State is a party. 
 This class of cases is when an officer of the revenue depart- 
 ment, or one acting under the authority of such an officer, is 
 indicted in a State court for some act done in pursuing his 
 duties under the revenue act. For instance, if in attempting 
 to arrest an oflFender, such officer, or the person acting under 
 his authority, maims or kills such offender, and is indicted 
 therefor in a State court. In this class of cases the person 
 indicted can by petition have his case removed from the State 
 court into the United States court and the trial had in the lat- 
 ter court. Rev. Stat, of the U. S., § 643. In every other re- 
 spect the trial proceeds as it would have done in the State 
 court. This will be mentioned hereafter. You will notice 
 that this does not infringe against the eleventh amendment, 
 as that forbids any suit commenced or prosecuted against any 
 State. Here the prosecution is by the State. On this subject 
 you can see Tennessee v. Davis, 100 U. S., 257. 
 
 It is very seldom that the original jurisdiction of the Supreme 
 Court is invoked, except in controversies between States. Many 
 of these are cited in Wisconsin v. Pelican Ins. Co., 127 U. S., 
 at page 288, and in the case of California v. Southern Pacific 
 R. R. Co., above quoted. The mode in which common law 
 suits are brought in the Supreme Court is not definitely fixed. 
 Rule 2 of that court considers the former practice of the courts 
 of King's Bench and of chancery in England as affording out- 
 lines for its own practice. Rhode Island v. Massachusetts, 12 
 
20 
 
 Peters, 657; Georgia v. Orant, 6 Wall., 341; Florida v. Georgia, 
 17 How., 478. But if the trial be on issues of fact in an action 
 of law against a citizen of the United States, they must be sub- 
 mitted to a jury (section 689 of Revised Statutes). This is in 
 accordance with the 7th amendment to the Constitution. "In 
 suits at common law, where the value in controversy shall 
 exceed twenty dollars, the right of trial by jury shall be pre- 
 served." 
 
 So much for the original jurisdiction of the Supreme Court. 
 This is but a small part of its usefulness. The great mass of 
 its business is appellate and supervisory. It is the court of 
 final resort upon all questions involving the construction of 
 the Constitution and laws and treaties of the United States 
 made thereunder. Its grand purpose is to protect the Consti- 
 tution and to secure uniformity in its construction, and of the 
 laws passed and treaties made thereunder. In the discussion 
 of the appellate jurisdiction of the Supreme Court, we will con- 
 fine ourselves for the present to its exercise over the circuit 
 and district courts. 
 
 Formerly, and until the act of Congress, approved 3d 
 March, 1891, 26 Statutes at Large, 826, establishing the cir- 
 cuit court of appeals, all final judgments in civil actions of 
 any circuit court, or of a district court with circuit court 
 powers, were reviewable by writ of error or by appeal in the 
 Supreme Court, in which the matter in dispute, exclusive of 
 costs, exceeded the sum of $2,000 at one time, and finally in- 
 creased to $5,000. An appeal also ky from the district courts 
 in prize cases, as of right, when the matter in dispute exceeded 
 in value $2,000, and without reference to value on the certifi- 
 cate of the district judge, that the adjudication involved a 
 question of general importance. In criminal cases in the cir- 
 cuit court, if the judges trying the case differed in opinion 
 on questions occurring during or at the trial and certified 
 up to the Supreme Court this difference, this court would 
 
21 
 
 hear it on this certificate. Otherwise no appeal lay to the 
 Supreme Court in criminal cases. But the business of the 
 court became so immense that it could not be disposed of. 
 The Congress came to the aid of the court in the establishment 
 of the circuit court of appeals, and in that act modified some- 
 what the appellate jurisdiction of the Supreme Court. 
 
 Section 5th of that act provides : Appeals or writs of error 
 may be taken from the district courts, or from the existing 
 circuit courts, direct in the following cases : 
 
 1. In any case in which the jurisdiction of the court is in 
 issue (that is of the circuit or district court which heard the 
 case), and this without regard to the amount in dispute {Mat- 
 tingly v. N. W. Va. R. R., 158 U. S., 57), in such cases the 
 question of jurisdiction alone shall be certified to the Supreme 
 Court from the court below for its decision. This certificate 
 must be granted during the term at which the judgment was 
 entered {Colvin v. Jacksonville, 158 U. S., 456). The Supreme 
 Court will not hear any discussion as to the facts or law bear- 
 ing on the merits of the case. 
 
 2. From final sentences and decrees in prize cases; evidently 
 without regard to value in dispute. 
 
 3. In cases of conviction of a capital or otherwise infamous 
 crime. In Mackin v. The United States, 117 U. S., 348, af- 
 firmed in re Claasen, 140 U. S., 200. An infamous crime is 
 one in which the judge has the power of sentencing the defend- 
 ant, on conviction, to punishment in a penitentiary, with or 
 without hard labor. 
 
 4. In any case that involves the construction or application 
 of the Constitution of the United States. 
 
 5. In any case in which the constitutionality of any law of 
 the United States, or the validity or construction of any treaty 
 made under its authority is drawn in question. 
 
 6. In any case in which the Constitution or law of a State 
 is claimed to be in contravention of the Constitution of the 
 United States. 
 
22 
 
 7. Nothing in that act contained can affect the jurisdiction 
 of the Supreme Court to review the decisions of State courts of 
 last resort. This will be treated separately. 
 
 The same act created in each circuit a circuit court of 
 appeals, and gave it appellate jurisdiction to review by appeal 
 or by writ of error, final decisions in the district and the 
 existing circuit courts, in all cases other than those provided 
 for as above in the Supreme Court. But the decisions of the 
 circuit court of appeals on these writs of error or appeal are 
 not all of them final. They are final in all the following cases. 
 
 1st. In which the jurisdiction is dependent upon the char- 
 acter of the parties. That is to say, where the jurisdiction is 
 obtained by reason of the fact that the suit is between citizens 
 of different States, or between citizens of the United States and 
 aliens. 
 
 2d. In all cases arising under the patent laws. 
 
 3d. In all cases arising under the revenue laws, that is pro- 
 bably all civil cases. 
 
 4th. All cases arising under the criminal law. Clearly 
 when the punishment is not capital or infamous, for such cases 
 go to the Supreme Court. 
 
 5th. All cases under admiralty law. 
 
 If the decision of the circuit court of appeals is on any one 
 of the cases in this category, it is final ; that is to say, the par- 
 ties aggrieved by the decision cannot appeal from it or get a 
 writ of error. But a quorum of the judges of the court of 
 appeals, in any one of these cases, if they desire the instruction 
 of the Supreme Court on any point or points in which they 
 are in doubt, may certify to the Supreme Court the questions 
 or propositions on which they desire instruction. Columbus 
 Watch Company v. Rabbins, 148 U. S., 269 ; Cincinnati &c., 
 V. McKeen, 149 U. S., 259. Thereupon the Supreme, Court 
 may answer these questions so certified or may require the 
 whole record and cause sent up to it for its consideration, and 
 
23 
 
 thereupon decide the whole matter for itself as if it had been 
 originally brought there. More than this, the Supreme Court 
 ™3,y, by its own action in any one of the cases enumerated 
 above, by certiorari or otherwise, direct the circuit court of 
 appeals to certify the case up to the Supreme Court for its re- 
 view and determination just as if it had gone there originally. 
 This power should be exercised only in cases of gravity and 
 importance. Re Woods, 143 U. S., 202. The only restriction 
 upon it is that the judgment of the Circuit Court of Appeals 
 was a final one. Chicago, kc, v. Osborne, 146 U. S., 354. 
 When a case has been heard and decided by the circuit court 
 of appeals, not im any one of the classes' enumerated above, 
 then an appeal or writ of error will lie from the circuit court 
 of appeals to the Supreme Court. 
 
 It will thus be perceived that the Supreme Court still has 
 the right of review of every case heard and decided in the dis- 
 trict or circuit courts, either by process in specified cases, di- 
 rectly to the Supreme Court itself, or by proceedings in the 
 circuit court of appeals. Nor could the Congress have pro- 
 vided otherwise, for the Constitution had declared that there 
 must be one Supreme Court. 
 
 II. 
 
 At the close of the remarks made to you when we met last, 
 your attention was called to the fact that in the Supreme Court 
 there has been preserved the right of review of every case heard 
 and decided in any of the other Federal courts. 
 
 That this right of review extends as well to the decisions of 
 the circuit court of appeals as to the other courts. And that 
 this must be the case as the Constitution has ordained that 
 there must be one Supreme Court. 
 
 For the purpose of obtaining this review by the Supreme 
 Court, there are certain prerequisites. The judgment or decree 
 must be final ; that is to say, end the controversy, dispose of 
 every matter in dispute. Lodge v. Twell, 135 U. S., 23. 
 
24 
 
 If the case to be reviewed is one at law, involving what are 
 technically known as legal principles, it can only be reviewed 
 by writ of error. The jurisdiction cannot be secured except by 
 writ of error. Chase v. The United States, 155 U. S. 489. 
 
 If it be an equity case, then it can only be reviewed on ap- 
 peal. 
 
 A writ of error is a mandate emanating from the Supreme 
 Court directed to the court (circuit or district) when its pro- 
 ceedings are complained of, commanding that court to send up 
 so much of the record of the case as will enable the Supreme 
 Court to understand the points complained of. It is allowed, 
 either by a justice of the Supreme Court or by a judge of the 
 court which tried the case, and is tested in the name of the 
 Chief Justice of the United States, and may be signed either by 
 the clerk of the Supreme Court or by the clerk of the court 
 which tried the cause. (Section 1004 Revised Statutes.) 
 
 In order to be in a position to obtain this writ of error and 
 thus prepare for adverse fortune, counsel must be alert during 
 the whole progress of the cause to take and have noted each 
 exception he may have to the ruling of the court on points 
 made by him — that is, to points made on the pleadings, the 
 admission or exclusion of evidence, refusal to charge the jurj' 
 as requested, to the charge made to the jury. These excep- 
 tions must be taken and noted before the jury leave their box 
 to consider the verdict. Each exception should be special — 
 no general exception to the charge is allowed. It must not be 
 a bald exception, but a reason must be given for it. Strictly 
 these exceptions should be reduced to writing and presented 
 to the court for signature as they are made, or at least during 
 the trial. In practice thej'' are made and noted during the 
 trial, and formulated within a reasonable period afterward, 
 during the term. 
 
 This having been provided for, the aggrieved party prepares 
 his petition, which he can present to a Supreme Court justice 
 
25 
 
 or to a judge of the court which tried his case, praying a writ 
 of error. He accompanies his petition with the exceptions 
 properly noted, certified by the signature, and properly, but 
 not necessarily, the seal of the judge. He has two years after 
 judgment within which to sue out his writ, if his appeal be to 
 the Supreme Court, and six months if to the circuit court of 
 appeals. He files also with his petition formal assignments of 
 error, calling attention distinctly and tersely to the errors 
 which he charges. The justice or judge to whom the petition 
 is presented may grant it, usually does grant it, and requires 
 the party complaining to enter into bond with surety. If it 
 be desired to stay execution, or technically to obtain a super- 
 sedeas, the penalty of the bond is double the value of the mat- 
 ter in controversy, so as to secure the party who has gained 
 the suit from loss. If a supersedeas be not desired, then the 
 bond is only for the costs of the appeal. These preliminaries 
 being finished, the justice or judge signs a citation — that is to 
 say, a notice to the other party to be and appear in the Supreme 
 Court or in the circuit court of appeals on a day named (within 
 thirty days from the date of citation) and answer the writ. 
 That citation is served through the marshal, or service is ac- 
 cepted. If there be several who conceive that they are injured, 
 they must all have an opportunity to join in the application 
 of the writ, and this must appear in the record. Inglehart v. 
 Stansbury, 151 U. S., 68. 
 
 The writ of error having been issued with the citation, the 
 clerk of the court below prepares the record, or so much thereof 
 as may be necessary, and forwards it to the clerk of the Supreme 
 Court. The plaintiff in error provides for the costs of that 
 court. The clerk of the Supreme Court has the record printed 
 and puts the case on that docket. When the cause is heard 
 and decided the mandate of the Supreme Court goes down to 
 the lower court, instructing it as to the disposition of the cause. 
 
 This is a matter of importance, and will bear recapitulation. 
 
26 
 
 If a party to a suit at law desires a review of the action of the 
 trial court he must take care to take exception to points ruled 
 against him iu the circuit court. In taking exception he must 
 do so during the progress of the cause before the jury leave 
 the box to consider the verdict. He must give reason for his 
 exception and must see that the exception is noted. He' may 
 put his exception in form at the time it is made, but by leave 
 of the court he may state and note the exceptions, and in a rea- 
 sonable time fixed by the court may formulate them after- 
 wards. This, however, unless specially provided, cannot be 
 done after the term. The exceptions must not be general. 
 Thej"- should be directed to a particular point. Reduced to 
 writing, they must be signed and sealed by the trial judge, the 
 sealing not being essential however. No exception not taken 
 at the trial, and not so certified, will be considered in the 
 Supreme Court. Having thus laid the foundation for his writ 
 of error, the party aggrieved can take it up to the Supreme 
 Court at any time within two years from entry of judgment. 
 No writ of error can be had but to a final judgment ; and on 
 a writ of error to a final judgment any error discovered and 
 excepted to from the beginning of the cause can be reviewed. 
 If he determine to go up to the Supreme Court, this party pre- 
 pares a petition for a writ of error, addressed to the court which 
 tried the cause. He produces with this the exceptions noted 
 and certified, technically called the bill of exceptions, and also 
 all the errors which he imputes to the court, called the assign- 
 ment of errors. He also signs a bond with surety. If he 
 simply wants a review of the case, his bond is in a sum only 
 necessary to cover the costs of the appeal. If he wishes a stay 
 of execution, technically called a supersedeas, his bond must 
 be in such a sum as will cover as well the costs, as all damages 
 the other party will suffer if the decision of the Supreme Court 
 be in his favor. Moreover, to get this supersedeas he must 
 furnish the bond and sue out his writ of error within sixty 
 
27 
 
 days after entry of final judgment. This time may be en- 
 larged by a justice of the Supreme Court (Revised Statutes, 
 section 1007). In order that he may have time within which 
 to make up his mind, an execution in the United States Court 
 cannot issue until ten days after entry of judgment. The peti- 
 tion, exceptions, assignment of errors, and bond having been 
 presented to the judge who tried the case, or to a justice of the 
 Supreme Court, he allows the writ ; thereupon a citation issues 
 which is tested in the name of the chief justice of the United 
 States, but may be sealed by the clerk of the court to which 
 the writ is taken. Then a summons is issued called a citation, 
 addressed to the opposite party, citing him to be and appear 
 within thirty days from its date in the Supreme Court to 
 answer the averments of the opposite party. The clerk of the 
 court below then prepares the record, or so much as may be 
 necessary for the proper understanding of the errors charged, 
 and forwards it to the clerk of the Supreme Court. The party 
 suing out the writ is the plaintiff in error, the other party is 
 the defendant in error. The plaintiff in error makes provision 
 for printing the record, which is done under the orders of the 
 clerk of the Supreme Court. It is the duty of the plaintiff in 
 error to see that the case is docketed and record filed on or 
 before the return day of the writ named in the citation. This 
 day may be extended, on cause shown, by the judge who signed 
 the citation, or by any justice of the Supreme Court. If he 
 fail so to docket his case, the defendant in error, on presenting 
 a certificate of the clerk of the court below, to which the writ 
 of error has been issued, that such writ was duly allowed, can 
 have the cause docketed and dismissed. This he can do in va- 
 cation as well as term time. It is competent for the clerk to 
 dismiss under these circumstances. A case so docketed and 
 dismissed cannot again be docketed unless by an order of the 
 Supreme Court. 
 
 If the judge who tried the case refuses to sign and seal a bill 
 
28 
 
 of exceptions, or to grant the writ of error, or to give a super- 
 sedeas, all or any of these, the party seeking these, or any of 
 them, can apply to the Supreme Court for a mandamus to be 
 directed to him to show cause for his refusal. 
 
 If the clerk sends up an insufficient record or refuses to com- 
 plete the record, application can also be made to the Supreme 
 Court for a mandamus to him to complete the record. 
 /' So much for the writ of error. It is the only mode in which 
 a law case can be carried to the Supreme Court ; and is neces- 
 sary to give that court jurisdiction in such cases. If there be 
 other parties interested in the judgment, they must be parties 
 to the writ, or the plaintiff in error must by the record show 
 that by summons, or some equivalent proceeding, they have 
 had an opportunity of joining in the writ and had refused or 
 omitted to do so. The technical name for this is severance. 
 
 In criminal cases the same mode of carrying them up to the 
 Supreme Court is followed as in those cases at law. The allow- 
 ance of the appeal suspends the execution of the sentence, and 
 the defendant, pending the action of the Supreme Court, may 
 be discharged on bail or recognizance under the order of the 
 judge signing the citation or any justice of the Supreme Court. 
 Rv^dson V. ParUr, 156 U. S. 277. 
 
 In cases not cases at law or criminal cases ; that is to 'say, 
 cases in equity or admiralty and the like, the action of the 
 Supreme Court reviewing them is obtained by an appeal. The 
 right to appeal is obtained in the same way, ai^d is upon the 
 sanie conditions as a writ of error, with this difference : No bill 
 of exceptions is filed. In every other respect the practice is 
 the same. The results of the two modes are not exactly the 
 same. On hearing a case in error, the judgment of the court 
 is either affirmed or set aside and a new trial granted On 
 hearing a case on appeal, the decree below may be affirmed in 
 the whole or in part only or modified or set aside in the whole 
 or in part, and the cause, unless affirmed in the whole, is sent 
 
29 
 
 back for further proceedings in conformity with the decree of 
 the Supreme Court. There is another mode in which the Su- 
 preme Court exercises appellate jurisdiction over the circuit 
 and district courts, limited, however, in its character. That is 
 by the writ of habeas corpus. When one is in custody under 
 the order of a district or of a circuit court of the United States, 
 he can apply to the Supreme Court for a writ of habeas corpus. 
 Under this writ he can be brought before the court and the 
 cause of his detention inquired into. Ex parte Siebold, 100 
 U. S. 373, is an excellent case on this subject, and will reward 
 perusal. The only question, however, which the Supreme 
 Court on such an examination can consider is, whether the 
 court making the order had jurisdiction of the cause in which 
 it was made. It cannot pass upon any question involved in 
 the merits of the case, or examine the opinion of the court to 
 see if there was error. The writ of habeas corpus cannot be 
 tortured into a writ of error. In re Swan, 150 U. S. 652. If 
 the Supreme Court find that the court below had jurisdiction, 
 the writ will be dismissed. Ex parte Tyler, 149 U. S. 164. If 
 it was without jurisdiction, the prisoner will be discharged^ 
 
 There is another branch of the appellate jurisdiction of^the 
 Supreme Court which deserves special consideration. It is the 
 control which that court has over the decisions of what are 
 known as Federal questions. Federal questions are such as 
 arise under the Constitution of the United States , treaties and 
 laws passed thereunder, involving their construction and the 
 enforcement of rights thereunder. It is well expressed aS the 
 construction or application of the Constitution of the United 
 States. This jurisdiction is exercised under the provisions now 
 embodied in the section 709 Revised Statutes of the United 
 States, in these words : 
 
 "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 
 
30 
 
 authority 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 Constitu- 
 tion, treaties, or laws of the United States, and the decision is 
 in favor of their validity; 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 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, 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." y 
 
 " The Supreme Court may reverse, modify or affirm the 
 judgment or decree of such State court, and may at their dis- 
 cretion award execution or remand the same to the court from 
 which it was removed by the writ." 
 
 This section has been very frequently before the Supreme 
 ■Court, as can be seen from the mass of authorities quoted in 
 connection with it in the edition of the Revised Statutes of 
 1878. The power herein given to the Supreme Court is very 
 great. It enables it to control on all Federal questions the 
 highest courts of the several States, and thereby secures that 
 uniformity in the construction of Federal questions which must 
 exist. It will be seen that to the exercise of this jurisdiction 
 these formal conditions must exist in each case. 
 
 1. There must be a final judgment or decree. We will see 
 when we examine into the jurisdiction of the circuit court pro- 
 visions made for removal into the Federal courts of cases 
 brought in the State courts before any judgment is rendered. 
 But no case can be carried into the Supreme Court from a 
 State court until final judgment or decree has been rendered. 
 
31 
 
 A final judgment is one which ends the litigation between 
 the parties in the State courts. 
 
 Chief-Justice Waite in his usual clear language thus defines 
 the term in Bostwick v. Brinkerhoff, 16 Otto, 3: "The rule is 
 well settled and of long standing that a judgment or decree to 
 be final within the meaning of that term, as used in the acts of 
 •Congress giving jurisdiction to this court on appeals 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. See, also, 
 Johnson Y. Keith, 117 U. S., 199 ; and Chief-Justice Fuller, in 
 Lodge v. Twell, 135 U. S., 232, approving this definition, adds : 
 ^' Where something more than the mere ministerial execution 
 of the decree as rendered is left to be done, the decree is not 
 final." An instance of this is when the costs are not taxed. 
 Wheeler v. Harris, 10 Wall., 51. 
 
 2. It must be the judgment of a court of a State, not ' of a 
 Territory, nor of the District of Columbia. 
 
 3. The judgment or decree must have been rendered in a 
 suit. This term suit is defined by Chief Justice Marshall, in 
 
 Weston V. City Council, 2 Peters, 449. " The term," says he, 
 " is certainly a very comprehensive 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 procedure 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." In that 
 case the court below granted a writ of prohibition, and that 
 was held a suit. So refusal to grant a writ of habeas corpus 
 is a suit. Palleser v. The United States, 136 U. S., 255. What is 
 called "in code pleading" as followed in New York and other 
 States, a controversy without action, that is the submission of 
 a question to the court on an agreed statement of facts, no 
 
32 
 
 compulsory process having been issued, is a suit. (Aldrich v. 
 The Mna Co., 8 Wall., 491.) 
 
 4. The judgment or decree must be that of the highest court 
 of the State in which a judgment could be had even if that 
 court be an inferior court in the State. {Gregory v. McVeigh, 
 90 U.S., 294.) If an appeal would lie from such inferior court 
 to another court of the State by leave of the judge and he 
 refuses to give such leave, the cause can go to the Supreme 
 Court of the United States. The writ of error of the Supreme 
 Court runs to the court having possession of the record, and 
 which can certify it. , As, for example, a cause is heard in a 
 State court and is carried by appeal or writ of error to the 
 Supreme Court of the State, which affirms the court below and 
 remands the case to it. If a writ of error be sued out of the 
 Supreme Court of the United States, it runs to the inferior 
 court, as it possesses the record.^. 
 
 These formal conditions being satisfied, there must appear 
 in the record of the judgment or decree, at least one Federal 
 question which has been disposed of in a specified way. 
 
 1. There must have been drawn in question the validity of 
 a treaty or statute of, or an authority exercised under the 
 United States, and the decision of the State court must have 
 been against their validity, or 
 
 2. There must have been 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, treaty or 
 laws of the United States, and the decision is in favor of their 
 validity. 
 
 3. Where any title, right, privilege or immunity is claimed 
 under the Constitution or any treaty or statute of or commis- 
 sion 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 Consti- 
 tution, treaty, statute, commission or authority. 
 
33 
 
 There must have been " drawn in question." That is, the 
 question under the Constitution, treaties or laws of the United 
 States which we call the Federal question, must have been in 
 issue, and its determination must have been necessary to the 
 decision. For example, if a State were to pass an act which it 
 is alleged impaired the obligation of a contract and so invalid, 
 under section 10, Article I. of the Constitution, and the State 
 court should decide that the contract set up was unlawful as 
 ■claimed, the Supreme Court of the United States could not 
 review the decision. Another illustration : 
 
 " Where two defences are made in the State court, either of 
 which, if sustained, would bar the action, and one of them 
 made a Federal question, the other did not. The State court 
 sustained both. The Supreme Court would sustain the juris- 
 diction so far as to examine the case. If it came to the con- 
 clusion that the question, not Federal, was rightly decided, it 
 would dismiss the case and not consider the Federal question at 
 all. (Hale v. Akers, 132 U. S., 565.) It is not enough to give 
 the Supreme Court jurisdiction over the judgment of a State 
 court, for the record to show that a Federal question was 
 argued or presented to that court for decision, although this, 
 too, is essential. It must also show that the Federal question 
 was passed upon by the court below. 
 
 It must also appear that the decision of this question was 
 necessary to the determination of the cause, and that it was 
 actually decided or that the judgment could not have been 
 given without deciding it. Moore v. Mississippi, 21 Wall., 638. 
 It will be noticed that to give the Supreme Court jurisdiction 
 when the question is with regard to the Constitution, treaties, 
 or laws of the United States, the decision of the State court 
 must be against the validity. But when the question is as to 
 the validity of a State constitution or statute, or acts done 
 under authority of a statute, the decision must be in favor of 
 the validity, else the Supreme Court has no jurisdiction. 
 3 
 
34 
 
 The acts done under the authority of a statute embrace all 
 ordinances of municipal corporations as well as acts of State 
 legislatures. Weston v. City Council, 2 Peters, 463 ; Home Ins. 
 Co. V. City Council, 93 U. S., 120. 
 
 With regard to the third class, above mentioned, titles, rights, 
 privileges, and immunities, claimed under United States Con- 
 stitution and laws, the rule is, when it appears that some title, 
 right, privileges, or immunity on which the recovery depends 
 will be defeated by one construction of the Constitution or a 
 law of the United States, or sustained by the opposite construc- 
 tion; this is a case arising under the Constitution or laws of 
 the United States. Starn v. New York, 115 U. S., 257. 
 
 Examples of these cases are as follows : A party sued in a 
 State court claims that he has the right to remove it into the 
 United States Court. If this right set up in the State court 
 is denied, the Supreme Court of the United States can review 
 the decision. Chesapeake and Ohio R. R. Co. v. White, 111 U. 
 S. 137. The Constitution of the United States provides that 
 no one can be deprived of his property without due process of 
 law. This is an immunity which would give the Supreme 
 Court jurisdiction. V. S. v. Lee, 106 U. S., 196. If a citizen 
 of African descent is excluded from the jury by reason of his 
 race, color, or previous condition, this would give the Supreme 
 Court jurisdiction. Neal\. Delaware, 103 U. S. 385. Where 
 legal tender notes were tendered for a judgment and tender re- 
 fused, this will accomplish the same result. Juillardv. Green- 
 man, 110 U. S. 421. Numerous cases of the same kind can be 
 cited. 
 
 There are three things to be noted. First, the right of re- 
 view of the decision of State courts by the Supreme Court of 
 the United States, applies as well to criminal as to civil causes ; 
 second, although the 11th amendment forbids a suit against 
 a State, this prohibition does not extend to the appellate juris- 
 diction. For a defendant in a State court prosecuted in the 
 
35 
 
 name of the State, can have his case reviewed in the Supreme 
 Court of the United States if all other conditions exist; third, 
 the act of 1890 fixing the jurisdiction of the Supreme Court, 
 does not say anything as to the limit in money value of its 
 jurisdiction. Before that act no case could ^be carried by ap- 
 peal from the circuit court, unless the matter in controversy 
 exceeded $5,000 without including costs. 
 
 But inasmuch as the jurisdiction of the circuit court is lim- 
 ited, except in one or two respects, to cases in which the mat- 
 ter in controversy exceeds the sum of $2,000, beside interest 
 and costs, and the jurisdiction of the district court has a simi- 
 lar, though not the same limitation, the jurisdiction of the 
 Supreme Court in cases carried up from these courts is affected 
 by the same limitations. 
 
 But no limit whatever exists in cases carried up from State 
 courts into the Supreme Court. 
 
 In addition to the original and appellate jurisdiction of the 
 Supreme Court, it is empowered by statute to issue writs of 
 scire facias, and other writs; that is to say, prohibition, manda- 
 mus, scire facias, injunction ne exeat, subpoena, and in general 
 all writs necessary to the exercises of its jurisdiction and agree- 
 able to the practice and principles of law. 
 
 The court has its own marshal, clerk and reporter. Its offi- 
 cial decisions, which are conclusive authority in all federal 
 courts are reported. They are usually quoted in the name of 
 the reporters as far down as Otto; thus 2 Peters, 4 Wheaton, 1 
 Black, 8 Wallace, 6 Otto ; after that reporter, they are quoted 
 as U. S. Reports, giving the whole number as 136 U. S. 
 The Lawyers' Co-operative Association have also published a 
 full series of Supreme Court Reports. The West Publishing 
 Company publish weekly reports of the decisions of the Su- 
 preme Court quoted as Supreme Court Reports. 
 
36 
 
 CIRCUIT COURT OF APPEALS. 
 
 The next federal court in the order of rank is the circuit 
 court of appeals. As has been said the business of the Su- 
 preme Court, growing with the rapid growth of the country, 
 increased to such enormous proportions, that the court could 
 not dispose of it. Although it is perhaps the most laborious 
 court in the Union, the end of each session found its docket lar- 
 ger than when the session began. When a case was entered in 
 that court, it could not be reached and disposed of under three 
 years, more often under four years. Not only did this work 
 great inconvenience and delay, but it was also taken advan- 
 tage of in order to secure delay on the part of disappointed 
 litigants. Many cases having no merit were carried up, and 
 when they were reached after years of waiting, were dismissed 
 or discontinued. To meet this evil Congress established in 
 each circuit, a circuit court of appeals. As there are nine 
 circuits, there are nine of these courts. They dispose of the 
 appellate business committed to them, coming up from the 
 circuit and dlstrii t and territorial courts within their circuit. 
 Whilst the decisions of a circuit court of appeals are not con- 
 clusive authority oa the other circuit courts of appeals of the 
 same paramount authority as are the decisions of the United 
 States Supreme Court, yet they are authority of the highest per- 
 suasive character, and are entitled to great respect. Uniformity 
 of decision is of the utmost importance. These appellate 
 courts recognize this and in so far as is consistent with con- 
 scientious independent judgment, they strive to attain the 
 uniformity of decision. When they do differ the decision of 
 the Supreme Court is sought as a final and conclusive arbiter. 
 To each circuit under the provisions of the law is assigned 
 a justice of the Supreme Court, by an order of that court. 
 The circuit justice and the circuit judges of each circuit are 
 the permanent members of the circuit court of appeals of that 
 circuit. In case of the absence, inability or disability, and by 
 
37 
 
 parity of reasoning ill case of a vacancy, of one or more of these 
 permanent members of the court, the place or places of the jus- 
 tice or judge is supplied by a district judge of the circuit. To 
 this end all the district judges of a circuit are declared mem- 
 bers of the circuit court of appeals of that circuit. The dis- 
 trict judges do this service by a roster made up according to 
 seniority of commission. In practice one district judge at 
 least attends each meeting of the court. The court is com- 
 posed of three judges and no more, but two judges can sit and 
 hear and decide cases, making a quorum for the transaction of 
 business. The place of meeting of each court is at some cen- 
 tral place or places within the circuit, and the court has the 
 power of adjourning its meeting elsewhere in the circuit, to 
 meet the exigency of the business before it. No judge of the 
 court can sit in it upon a case with which he has had any 
 connection as counsel or judge in the court below. 
 
 The jurisdiction of the court is fixed by statute. At the 
 risk of repetition it will be stated. 
 
 The act (March 3, 1891) first defines the appellate jurisdic- 
 tion of the Supreme Court, making it as to the classes stated 
 exclusive. Cases in which the jurisdiction of the courts is in 
 issue. That is the initial question of jurisdiction of that court. 
 Final sentences and decrees in prize cases, conviction of capi- 
 tal or otherwise infamous crimes, cases involving the Consti- 
 tution or application of the Constitution of the United States. 
 Cases in which there is drawn in question tlie constitution- 
 ality of any law of the United States, or the validity or 
 constitutionality of any treaty made under its authority. 
 Cases in which the Constitution or law of a State is claimed 
 to Be in contravention of the Constitution of the United States. 
 
 In all other cases the circuit court of appeals can exercise ap- 
 pellate jurisdiction to review by appeal or writ of error, final 
 decisions in the districts courts and in the existing circuit 
 courts unless otherwise provided by law. But whilst it can 
 
38 
 
 thus exercise appellate jurisdiction over all cases, those placed 
 in the hands of the Supreme Court excepted, its decisions are 
 final only in the following cases : 
 
 1st. Where the jurisdiction of the court below is dependent 
 entirely upon the opposite parties to the suit or controversy ; 
 that is to say, where the court below has jurisdiction of the 
 case because the suit or controversy is between citizens of dif- 
 ferent States, or between citizens of the United States and 
 aliens, or between citizens of the United States and a foreign 
 State. 
 
 2d. All cases arising under the patent laws. 
 
 3d. All cases arising under the revenue laws. 
 
 4th. All criminal cases in which the crime is not capital or 
 otherwise infamous. 
 
 5th. All admiralty cases. 
 
 In all these five classes the decision of the circuit court of ap- 
 peals is final. But if any question or questions arise in any of 
 these cases concerning which the circuit court of appeals enter- 
 tain a doubt, they certify this question or these questions up to 
 the Supreme Court, and ask its decision thereon. An instance 
 of this kind may be found in Bate Refrigerating Co., v. Sultz- 
 berger, 157 U. S., page 1. In any such case the Supreme 
 Court may content itself with answering the questions or it 
 may require the whole record to be sent up and thereupon 
 hear and decide the whole case for itself. Or the Supreme 
 Court of the United States itself, may by writ of certiorari to a 
 circuit court of appeals, require it to send up all the record of 
 any case decided by it for its review and determination, with 
 the same power over it as if the case had been originally car- 
 ried there. These provisions of law are essential to secure 
 uniformity of decision in the federal courts. And they save 
 conflict with the constitutional requirement, that there be one 
 Supreme Court, that is but one court whose decisions shall be 
 absolutely final. 
 
39 
 
 To all other cases carried to the circuit court of appeals, 
 outside of these five classes, there lies a writ of error or an 
 appeal to the Supreme Court of the United States, provided 
 that the matter in controversy exceeds $1,000 and costs. Cases 
 of this character are those to which the United States is a 
 party. Cases between persons claiming lands under grants 
 from several States, &c. &c. 
 
 The appellate jurisdiction of the circuit courts of appeal is 
 exercised in the same way and under the same practice as that 
 of the Supreme Court. To all errors of law, in cases at law, in 
 the courts below, there lies the writ of error, in all other cases, 
 equity and admiralty, there lies the appeal. The leave for 
 the writ of error and that for the appeal is obtained in the 
 same way and upon the same conditions. But whilst in the 
 Supreme Court, these may be sued oat within two years from 
 the date of the final judgment, in the cases carried to the cir- 
 cuit court of appeals the writ of error must be sued out or 
 the appeal taken within six months. 
 
 Another distinction exists between the appellate juris- 
 diction of these courts. No writ of error can be sued out 
 or appeal taken to the Supreme Court, except on final judg- 
 ment or decree. The circuit court of appeals can take juris- 
 diction of an appeal from an order of the court below, grant- 
 ing or refusing an injunction although this be an interlocutory 
 order, that is an order not ending the merits of the case. 28 
 Statutes at Large, 666. 
 
 When one loses a case in a circuit or district court of the 
 United States, it sometimes becomes a question of difficulty 
 determining whether to carry the case up to the circuit court 
 of appeals or to the Supreme Court. He cannot take the case 
 up to both courts. The act of Congress on this subject does 
 not contemplate two writs of error or two appeals. {United 
 States v. Jahn, 155 U. S. 109). 
 
 This seems to be the rule. If the only question made in 
 the lower court is that it has no jurisdiction of the case, this 
 
40 
 
 question is certified up to the Supreme Court b)' the judge- 
 who tried the case, and after final judgment the case will be 
 reviewed there. A formal certificate is not absolutely neces- 
 sary if the record shows that the question of jurisdiction was 
 the only question in the case. Carey v. Houston, &c., Railway,. 
 150 U. S. 171. In re Lehigh Mining Co., 156 U. S. 322. 
 Sheilds v. Coleman, 157 U. S. 168. If, however, besides the 
 question of jurisdiction there are other questions involved in 
 the case, which under the law can be reviewed in the circuit 
 court of appeals, then the proper course is to take the case to 
 the circuit court of appeals. That court will decide all the- 
 questions but that of the jurisdiction, and if it become neces- 
 sary that it should be decided, will certify it up to the Supreme 
 Court. {McLish v. Roff, 141 U. S. 761). He has the election 
 it is true, to go either to the Supreme Court or to the circuit 
 court of appeals, but if he takes a case of this character to the 
 Supreme court, that court will decide only the question of 
 jurisdiction and none of the other questions. (McLish y. Roff,. 
 supra). 
 
 But where the questions involved in the case are the con- 
 struction of the Constitution of the United States or the laws- 
 passed or treaties made thereunder, or as it is sometimes stated, 
 the construction or application of the Constitution of the- 
 United States, then the case can go to the Supreme Court only. 
 And if besides these, there are other questions involved, which 
 by themselves, might have been taken to the circuit court of 
 appeals, the Supreme Court will take jurisdiction of them and 
 of the entire case and will decide it. (Horner v. The United 
 /Stores, No. 2, 143 U.S. 576-7). But the questions involving the 
 construction or the application of the Constitution of the 
 United States, must be the controlling questions in such a case ;. 
 that is to say, no proper conclusion can be reach in it without 
 deciding them. (Carey v. Houston, &c. Railway, 150 U. S. 171). 
 
 There is a case which presented this difficulty in the greatest 
 
41 
 
 degree. It may be instructive. You will find it among the 
 decisions of the circuit court of appeals of the Fourth Circuits 
 It is known as Green v. Mills and is reported in Vol. 16 C. C. 
 A. Reports, page 521. In that case a citizen of the State of 
 South Carolina filed his bill against a supervisor of registra- 
 tion in that State, charging that the registration law violated 
 the Constitution of the United States and praying an injunc- 
 tion against him in further registration of voters. The case 
 was heard in the circuit court on the motion for injunction. 
 The defendant in his return to the rule for injunction, denied 
 that the law infringed the Constitution of the United States, 
 and also denied that the court of equity could injoin the re- 
 fusal of a political right ; that the remedy for such refusal 
 was in a court of law. The circuit court held that the registra- 
 tion law violated the Constitution of the United States, and 
 notwithstanding the other objection, issued the injunction. 
 
 You will remember that although the general rule is that an 
 appeal will only lie from a final decree, an exception is made 
 in appeals to the circuit court of appeals. To these courts an 
 appeal will lie from an order granting or refusing an injunc- 
 tion, provided the case in which the injunction was granted 
 was one which after final judgment could be carried to the 
 circuit court of appeals. An appeal was taken in this case to 
 the circuit court of appeals from the order granting the in- 
 junction. And in that case it was held there were two ques- 
 tions in the case ; one whether the registration law of South 
 Carolina was in conflict with the Constitution of the United 
 States, and the other, whether a court of equity could pass 
 upon and take jurisdiction of a question involving the denial 
 of a political right. That the first question was to be solved 
 only in the Supreme Court, but that it was not the controlling 
 question. That if the court below (the circuit court) could 
 not take jurisdiction of the political question as a court of 
 equity, it could not grant the injunction whether the registra- 
 tion law was constitutional or not. That the circuit court of 
 
42 
 
 a,ppeals had jurisdiction over this last question and could hear 
 and decide the case on that. The court concurred with the 
 Appellant, and dissolved the injunction. 
 
 THE CASES CAN THUS BE SUMMED UP. 
 
 If the case in the trial court depends on the question of the 
 jurisdiction of the court only, the decision can be reviewed in 
 the Supreme Court only. 
 
 If the questions in the case are such as involve only the 
 construction or application of the Constitution of the United 
 States, the decision can be reviewed in the Supreme Court only. 
 
 If there are with these questions as to the construction or 
 application of the Constitution of the United States, other 
 questions which are not of this Federal character, then the 
 ■case can be reviewed in the Supreme Court, which will hear 
 and decide all the questions in the case. 
 
 I am not prepared to say whether such a case can or cannot 
 be carried to the circuit court of appeals. 
 
 If the case involve a question of jurisdiction of the court, 
 and beside this, other questions which the circuit court of ap- 
 peals can decide, then the best course is to take it to the cir- 
 cuit court of appeals, which will hear and decide every other 
 question but that of jurisdiction, and if it sustain the court be- 
 low, will certify the question of jurisdiction to the Supreme 
 ■Court. But if the party losing the case is willing to risk it on 
 the question of jurisdiction only, he can take it direct to the 
 Supreme Court, which will decide no other question than that 
 of jurisdiction. 
 
 It will be seen from what has been said, that the circuit 
 <;ourt of appeals exercises a very important jurisdiction. It is 
 the court of final resort on all questions coming up in the 
 Federal courts, relating to mercantile and commerce law and 
 the vast railroad interests of the country. Its jurisdiction over 
 patent cases, and all admiralty cases, reaches transactions of 
 great interest to the people of the United States. The super- 
 
43 
 
 vision of the Supreme Court over its decisions on these ques- 
 tions is never exercised except in extraordinary cases. These 
 courts give the greatest relief to the docket of the Supreme 
 Court, and already that great tribunal is feeling the benefit of it. 
 Each circuit court of appeals is organized by the appoint- 
 ment of its own clerk and reporter. The marshal of the dis- 
 trict within which its sessions may be held is ex officio the 
 marshal of the court. Their decisions are known as U. S. 
 Appeals, and are so quoted 1 U. S. Appeals, &c. The present 
 reporter, S. A. Blatchford, Esquire, is the official reporter of 
 all the circuit courts of appeal. The West Publishing Com- 
 pany, with characteristic enterprise, also publishes their de- 
 cisions, not only in the federal reporter, but in a separate series 
 of reports known as C. C. A. (circuit court of appeals). With 
 some modifications and amendments, which it is not our pro- 
 vince to discuss here, the courts can be made much nearer per- 
 fection than they are at present. 
 
 THE CIKOUIT COURTS OF THE UNITED STATES. 
 
 The circuit courts were established in 1789, immediately 
 after the adoption of the Constitution. 
 
 The whole country is divided into districts, and the several 
 districts are grouped so as to form circuits. In each district 
 a circuit court is created. At present there are in the United 
 States 69 districts, arranged in nine circuits. It may not be 
 uninteresting to see how the circuits are arranged. 
 
 Ths First Circuit consists of the districts of the States of 
 Maine, New Hampshire, Massachusetts and Rhode Island. 
 
 The Second Circuit consists of the districts in the States of 
 Connecticut, New York (3 districts) and Vermont. 
 
 The Third Circuit consists of the districts in the States of 
 New Jersey, Pennsylvania (2 districts) and Deleware. 
 
 The Fourth Circuit consists of the districts in the States of 
 Maryland, Virginia (2 districts), West Virginia, North Caro- 
 lina (2 districts), and South Carolina. 
 
44 
 
 The Fifth Circuit consists of the districts in the States of 
 Florida, Georgia, Alabama, Mississippi, Louisiana and Texas. 
 The Sixth Circuit consists of the districts in the States of 
 Kentucky, Michigan, Ohio and Tennessee. 
 
 The Seventh Circuit consists of the districts in the States of 
 Illinois, Indiana and Wisconsin. 
 
 The Eighth Circuit consists of the districts in the States of 
 Arkansas, Colorado, Iowa, Kansas, Minnesota, Missouri, Ne- 
 braska, the two Dakotas and Wyoming. 
 
 The Ninth Circuit consists of the districts in the States of 
 California, Montana, Washington, Nevada, Oregon, Idaho and 
 Alaska. 
 
 To each of these circuits is assigned a Justice of the Supreme 
 Court. The Fourth Circuit, from the time of Chief Justice 
 Marshall, has been the circuit to which the Chief Justice has 
 been and is now assigned. 
 
 The judges of the circuit court are the Supreme Court 
 justice, called the circuit justice, the circuit judges and the 
 district judge of the district in which the court sits. When 
 the circuit justice and the circuit judge are present, the dis- 
 trict judge cannot sit, except through courtesy. In the South- 
 ern District of New York, a circuit judge and two district 
 judges sit in criminal cases. In re Claassen, 140 U. S. 200. 
 When either the circuit justice or the circuit judge is absent, 
 the district judge becomes a member of the court by right 
 and sits as such. In the absence of both the circuit justice 
 and the circuit judge, the district judge sits and administers 
 the court with all of its powers. Revised Statutes § 609. 
 When a circuit court is sitting with more than one judge pres- 
 ent it can divide itself, so that in one room a judge may try a 
 case before a jury, in another may try a criminal case and 
 another may hear an equity case. Revised Statutes §611. 
 When two judges hold the court, and differ upon any question, 
 the opinion of ranking judge prevails and is the opinion of 
 
45 
 
 the court. The circuit courts have both civil and criminal 
 jurisdiction. 
 
 The jurisdiction of the circuit courts of the United States, in 
 suits of a civil nature, as now fixed by law is defined in the 
 Act, 18th August, 1888, 25 Statutes at Large of the United 
 States, 433. This act must be read in pari materia with the 
 Act of March 3d, 1875, 18 Statutes, 470. 
 
 The act of J 888, gives to the circuit court an original jurisdic- 
 tion, and also jurisdiction over causes removed into it from the 
 State courts upon certain conditions. 
 
 ORIGINAL JURISDICTION. 
 
 The circuit courts of the United States have original cogni- 
 zance concurrent with the State courts of all suits of a civil na- 
 ture, at common law and in equity. 
 
 1st. Arising under the Constitution or laws of the United 
 States or treaties made or which shall be made thereunder, 
 when the matter in dispute exceeds, exclusive of interest and 
 costs, $2,000. 
 
 2d. In a controversy in which the United States are plaintiff 
 or petitioner ; apparently'- without regard to the value of the 
 matter in dispute. United States v. Sayward, 16 Supreme Court 
 Reports, 371. 
 
 3d. In a controversy between citizens of different States in 
 which the matter in dispute exceeds, exclusive of interest and 
 cost, the sum or value of $2,000. 
 
 4th. Of a controversy between citizens of the same State, 
 claiming lands under grants of different States. Here no 
 mention is made of the value of the matter in dispute and ap- 
 parently there is no such limit. Compare United States v. 
 Sayioard, supra. 
 
 5th. Of a controversy between citizens of a State and foreign 
 States, citizens or subjects in which the matter in dispute ex- 
 ceeds, exclusive of interest and cost, the sum or value of $2,000. 
 
46 
 
 All crimes and offences cognizable under the authority of 
 law, that is the law of the United States, except such as are 
 otherwise provided by law for the district court and concurrent 
 jurisdiction over all crimes and offences cognizable by that 
 court. 
 
 With regard to the criminal jurisdiction we may not linger. 
 There are no common law offences in the United States courts, 
 nor have they arly jurisdiction over common law offences. 
 Every crime cognizable in that court is made so by statute. 
 And all indictments are on the statute. 
 
 Ill 
 
 When last we met, we were about to enter upon an exami- 
 nation of the circuit courts of the United States. Their gen- 
 eral jurisdiction has been stated. Let us go more into detail. 
 
 WITH KEGARD TO THE CIVIL JURISDICTION. 
 
 1. To give jurisdiction there must be a suit of a civil nature. 
 We have heretofore given the definition of this term suit, by 
 Chief Justice Marshall, in Weston v. City Council, 2 Peteis,^ 
 499, any proceeding in a court of justice by which an indi- 
 vidual pursues the remedy which the law affords him. It 
 must be a suit at comnion law or in equity. This excludes all 
 admiralty cases. If the cause of action arise under the Con- 
 stitution and laws of the United States, or treaties made there- 
 under, the circuit court has jurisdiction of it without regard 
 to the citizenship of the parties to the controversy. But the 
 matter in dispute must exceed in value the sum of $2,000 
 without including interest and costs. The matter in dispute. 
 This phrase is defined by the Supreme Court in Smith v. 
 Adams, 130 U. S. 168. " By this phrase as used in the 
 statutes conferring jurisdiction on this court is meant, the sub- 
 ject of litigation, the matter upon which the action is brought 
 and issue is joined and in relation to which, if the issue be one 
 
47 
 
 of fact, testimony is taken. Its pecuniary value may be de- 
 termined, not by the money judgment prayed alone, but in 
 some cases by the increased or diminished value of the property 
 directly affected by the relief prayed or by the pecuniary re- 
 sult to one of the parties immediately from the judgment." 
 
 " In Kanouse v. Martin, 15 Howard, 198. The matter in 
 dispute is said to be what the plantiff claims. If there be 
 more than one plaintiff or complainant, the interest of each 
 of them in the matter in dispute must exceed $2,000, beside 
 interest and costs, unless they all claim under the same title 
 as in Shields v. Thomas, 17 How. '3, and the determination of 
 the cause necessary involves the validity of that title and the 
 value of the thing whose title is to be decided exceeds $2,000, 
 beside interest and costs. The distinction you will find marked 
 in North Pacific Railway Co. v. Parker, 143 U. S. at page 51, 
 and Walter v. North Eastern R. R. Co., 147 U. S. 370. 
 
 2. When the controversy is between citizens of different 
 States, and the matter in dispute exceeds $2,000, not including 
 interest and costs. The controversy must be between citizens of 
 States. The court has no jurisdiction as between a citizen of 
 a State and a citizen of a Territory or of the District of Co- 
 lumbia. And this also has its limitations. No person can be 
 arrested in one district for trial in another. No suit can be 
 brought in this court against any person by any process or 
 proceeding in any other district than that in which he is an 
 inhabitant, and where the jurisdiction is entirely dependent 
 on the citizenship of the parties, it shall be brought only in 
 the district in which the plaintiff or defendant resides. If the 
 plaintiff is the assignee of a chose in action, including in this 
 phrase promissory notes, he cannot maintain an action in the 
 circuit court on such chose in action, unless such action could 
 have been brought in the court without such assignment. 
 Morgan v. Day, 19 Wall, 81. And this even if the promissory 
 note be made payable to bearer and pass by delivery only.. 
 
48 
 
 Act of 1888, 25 Stat, at Large, 433. But if the promissory- 
 note be made by a corporation, he can sue in the circuit court. 
 Foreign bills of exchange are excepted from the general rule 
 as to choses in action, and suit on them will be entertained in 
 the Federal courts, all other conditions being complied with. 
 If there are several plaintiffs, each plaintiff must be competent 
 to sue, and if there be several defendants, each defendant must 
 be liable to be sued in the circuit court. Smith v. Lyon, 133, 
 U. S., 315. For example : A citizen of Maryland joins with 
 B., a citizen of Virginia, and brings a suit in the circuit court 
 for the Eastern District of Virginia, against C, a citizen of 
 Virginia ; the action will not lie. So if A., a citizen of West 
 Virginia, and B., a citizen of Pennsylvania, bring their action 
 against C, a citizen of Ohio, in the circuit court for the Dis- 
 trict of "West Virginia, it will not lie. If A. had sued alone 
 the court could take jurisdiction because West Virginia was 
 -the State of his residence. But West Virginia was not the 
 State of the residence either of B. or of C, hence under the rule 
 the action would not lie. This diversity of citizenship must 
 exist at the time when the action is brought. If, during the 
 progress of the case the parties become citizens of the same 
 State, or one of the parties should die and his executor be a 
 -citizen of the same State with the other party, this will not 
 affect the jurisdiction. When one, in order to obtain the juris- 
 diction of the United States Court, transfers his citizenship 
 bona fide from one State to another, this will not prevent the 
 jurisdiction. But if he do this mala fide for the purpose of 
 committing a fraud on the law, if he change his domicil sine 
 animo manendi, but with the determination to leave the State 
 into which he has gone as soon as he can do so without de- 
 feating jurisdictioH, his removal will not aid him, nor will 
 the circuit court take jurisdiction. [Morris v. Oilmer, 129, U. 
 S., 315]. If an action be brought between citizens of different 
 States, but not in the residence of either party, this objec- 
 
49 
 
 tion may be waived and the cause proceed, if the court has 
 jurisdiction of the subject matter. Central Trust Co. v. Mc- 
 George, 151 U. S., 129. 
 
 The large portion of the business of this country is done by 
 corporations ; corporations are artificial persons, and speaking 
 strictly, are not citizens. At first the circuit courts looked into 
 •the citizenship of the corporators, and if all of them were citi- 
 zens of different States from the other parties, they would take 
 jurisdiction. But if one or more of the corporators were citi- 
 zens of the same State with the other party, they would not 
 take jurisdiction. Bank v. DeVeaux, 5 Cranch, 61. Com- 
 mercial, &c. Bank v. Slocomb, 14 Peters, 60. But the 
 business of the country demanded broader views than these. 
 The rule was modified. First the courts decided that they 
 would conclusively presume that the corporators of a corpora- 
 tion were citizens of the same State as the corporation, and 
 would not permit an averment to the contrary. Louisville, G. 
 & C. R. R. V. Letson, 2 Howard, 497 ; Steamship Co. v. Tug- 
 man, 106 U. S., 118 ; Muller v. Bows, 94 U. S., 444. At last 
 the rule became fixed that in all cases where a Federal court 
 can take jurisdiction of controversies between citizens, it will 
 take jurisdiction of controversies between corporations and 
 treat them as citizens of the State, under whose laws they were 
 created. \Kansas. Pacific Ry. Co. v. Atcheson, &c., R. R., 112 
 U. S., 414.] 
 
 For the purposes of jurisdiction, therefore a corporation is a 
 citizen of the State in which it is created, and in which it has 
 its principal place of business. So. Pac. Co., v. Denton, 146 
 U. S., 202. This determines it right to sue or to be sued. 
 Even the consolidation of two corporations will not change 
 this result. Nashua Railroad v. Lowell Railroad, 136 U. S., 
 356. Nor can a corporation become a resident or inhabitant 
 in a jurisdictional sense of any other State than that of its in- 
 corporation or creation. And the agreement of the corporation 
 4 
 
50 
 to accept service of process in a State in which it was not crea- 
 ted will not estop it from taking advantage of its citizenship 
 or residence to defeat the action. Southern Pacific Co. v. Den- 
 ton, 146 U. S., 202 ; Shaw v. Quincy, 145 U. S., 453. 
 
 The act speaks of a controversy between citizens of different 
 States. In order to determine the jurisdiction it is necessary 
 to ascertain what is the controversy, and if there be several 
 parties to the suit, how they stand with regard to this contro- 
 versy. If, in arranging those who contend for the same view 
 of this controversy on one side and those taking an oppo- 
 site view of the controversy on the other, it be found that the 
 contestants on one side are all citizens of States, in which the 
 contestants on the other side are not citizens, the jurisdiction 
 can be maintained without regard to the place they occupy in 
 the record. For example : Proceedings are taken to set aside 
 conveyances as fraudulent by two or more persons, citizens of 
 the State of New York, against citizens of the State of Vir- 
 ginia, and there are made parties defendant, a citizen of the 
 State of Maryland and a citizen of the State of North Caro- 
 lina, who also are creditors of the Virginia debtor, and inter- 
 ested in setting aside the conveyances. The jurisdiction can 
 be] maintained, although the citizens of Maryland and North 
 Carolina are co-defendants with the Virginian, because the 
 controversy is between these citizens of Virginia and the other 
 parties citizens of other States. 
 
 But although in an original suit in which the jurisdiction 
 depends on this diversity of citizenship, the diversity must 
 exist, yet any proceedings ancillary to such original proceed- 
 ings, can be had regardless of the citizenship of the parties 
 Krippendorf V. Hyde, 110 U. S., 276. That is to say, a suit 
 growing out of a suit over which the court has jurisdiction, 
 brought to carry it into effect or to secure the advantages pro- 
 vided in it, or a suit growing out of and dependent upon the 
 former suit, is an ancillary suit. Clark v. Matthewson, 12 Peters, 
 
51 
 
 164. Such a suit can be maintaiced without any regard to 
 the citizenship of the parties. Root v. Woolworth, 150 
 U. S., 401. 
 
 For example, a creditors' bill is filed in the Federal court, 
 and all creditors are called in ; any creditor without regard to 
 the relative citizenship between the complainant and himself, 
 can come in and prove his claim. Krippendorff v. Hyde, supra. 
 So in all cases of claims by or against a receiver appointed by 
 the court. Milwaukee Co. v. Sautter, 3 Wall, 609. You will 
 find an excellent case in White v. Ewing, 159 U. S., 39. 
 
 Mr. Foster in his excellent treatise on Federal practice, sec- 
 tion 21, gives some illustrations. He says : " Not only can a 
 bill of review or a supplemental bill be maintained in a Fed- 
 eral court which had jurisdiction of the original litigation 
 (without regard to the citizenship of the parties) but so can a 
 bill to restrain or to regulate or to set aside or to obtain a ju- 
 dicial construction of or to inforce a judgment or decree of a 
 Federal court. A bill for the reformation of a policy of insur- 
 ance is ancillary to an action on the policy." 
 
 3. A controversy in which the United States are plaintiff or 
 petitioners is another ground for jurisdiction of the circuit 
 court. It will be observed that this confines the jurisdiction 
 to the cases brought by the United States. 
 
 Under another act, however, an act to provide for bringing 
 of suits against the United States, March 3d, 1 887, (24 Statutes 
 at Large, 505), the Circuit Court of the United States is clothed 
 with jurisdiction to hear and determine all claims against the 
 United States, founded upon the Constitution of the United 
 States or any law of Congress (except for pensions), or upon 
 any regulation of the executive department or upon any 
 contract expressed or implied with the government of the 
 United States, or for damages liquidated or unliquidated in 
 cases not sounding in tort in respect of which claims, the 
 party would be entitled to redress against the United States, 
 
52 
 
 either in a court of law or equity or admiralty, if the United 
 States were suable. But suit for specific performance to com- 
 pel the issue for land patent will not lie. United States v. Jones, 
 131 U. S. Excepted from this act are war claims growing 
 out of the war between the States and claims theretofore re- 
 jected, that is disallowed by any court, department, or author- 
 ized commission before the passage of this act. To give the 
 court jurisdiction the amount of the claim must exceed $1,000 
 and must not exceed $10,000. You will bear in mind that no 
 action will be against the United States for any tort. The 
 claim must be on a contract or arising out of a contract. For 
 illustration of this see German Bank v. The United States, 148 
 U. S., 573 ; mil V. The United States, 149 U. S., 593. This 
 jurisdiction is concurrent with that of the court of claim.s, 
 which will hereafter be noticed. 
 
 Inasmuch as the United States, a sovereign power, was not 
 amenable to the court except by its own consent — United States 
 V. Gleeson, 124 U. S., 255, this act is one of grace, and a con- 
 dition is imposed that all cases tried under the provision of 
 this act shall be tried by the court without a jury. An appeal 
 or writ of error depending on the nature of the action whether 
 at law or in equity or admiralty (United States v. Chase, 155 U. 
 S., 496), lies to the circuit court of appeals, or to the Supreme 
 Court, regard being had to the questions involved. The cir- 
 cuit court hearing the case must cause a written opinion to be 
 filed in the cause, setting forth the specific findings of facts 
 thereon and the conclusions of the court on all questions of 
 law involved in the case and render judgment thereon. United 
 States V. Tinsley, 15 0. C. A., 507. If the case is finally de- 
 cided against the government, the attorney-general reports it 
 to Congress, which then provides an appropriation for it. In 
 a case of this kind the circuit court may exercise jurisdiction. 
 
 4. Another ground of jurisdiction mentioned in the act of 
 1888 is a controversy between citizens of the same State 
 
53 
 
 claiming lands under grants of different States. This juris- 
 diction exists, although one of the States was a part of the 
 other when the first grant was made, as Kentucky and Vir- 
 ginia, or North Carolina and Tennessee. Colson v. Lewis, 2 
 Wheat., 377 ; Pawlet v. Clark, 9 Cranch, 292. 
 
 5. The last ground of original jurisdiction is over a contro- 
 versy between citizens of a State and foreign States or their 
 ■citizens and subjects. In these cases the matter in dispute 
 must exceed $2,000, exclusive of interest and costs. Note 
 here again, that citizens of a State are alone mentioned, ex- 
 ■cluding citizens of the District of Columbia and of the Terri- 
 tories. And also that a citizen of a State must be on one side 
 or the other of a case ; the court has no jurisdiction between 
 aliens alone. We are speaking of circuit courts. But in ad- 
 miralty, which is within the jurisdiction of the district courts, 
 the Federal courts do take jurisdiction between aliens. As an 
 instance of this see the Belgenland, 114 U. S., 355. Monta- 
 let V. Murray, 4 Cranch, 46. 
 
 Besides the jurisdiction conferred in this act of 1888, the 
 •circuit courts of the United States have original jurisdiction, 
 both civil and criminal, under the act of 1890, to protect trade 
 and commerce against unlawful restraints and monopolies. 
 (26 Statutes at Large, 200.) This act declares every contract, 
 •combination in the form of trust or otherwise, or conspiracy 
 in restraint of trade or commerce among the several States or 
 with foreign nations, illegal and void. Any person engaging 
 in any such contract, combination, or conspiracy is declared 
 guilty of misdemeanor ; and all monopolies are also forbidden. 
 An action is given to any person injured in his business or 
 property by any other person or corporation by reason of any- 
 thing forbidden in that act, to be sued in any circuit court of 
 the United States, in the district where the defendant is found, 
 without respect to the amount in controversy, and without 
 reference to the citizenship of the parties. 
 
54 
 
 There is another class of cases in which the Circuit Court of 
 the United States has jurisdiction. If any common carrier 
 violates or neglects or refuses to perform any lawful order of 
 the Interstate Commerce Commission, the commission or any 
 company or person interested in the order can apply in a sum- 
 mary way by petition to the Circuit Court of the United States, 
 sitting in equity in the judicial district where the common car- 
 rier complained of has its principal residence or in which the 
 violations of the order happen. The court sitting in equity 
 hears and determines the complaint without formal pleadings, 
 and decides the same according to the rules of equity, and en- 
 forces its decisions with all interlocutory or final orders neces- 
 sary thereto. 26 Statutes at Large, 743. 
 
 Yet another jurisdiction is vested in the circuit courts. 
 Congress under the act of June 10, 1890, 26 Statutes at 
 Large, 131, act to simplify the laws in relation to the collection 
 • of revenue, provided for a board of nine general appraisers of 
 merchandise. They settle disputes between importers and the 
 collectors of ports as to duties on merchandise. Either party 
 dissatisfied with their conclusion, can go into the circuit court 
 and have it reviewed. The conclusion of the court is final so 
 far as the importer is concerned, unless the court thinks the 
 case of suflScient importance to go to the Supreme Court. The 
 right of the United States, however, to a review by the Supreme 
 Court is absolute. 
 
 The jurisdiction of the court must be made to appear in the 
 record, for all circuit courts of the United States are courts of 
 limited jurisdiction ; that is to say all the facts necessary to 
 give the court jurisdiction must appear in the record. The 
 presumption is that a cause is without the jurisdiction of tlie 
 circuit court unless the contrary is made to appear. Grace v. 
 Insurance Co., 109 U. S., 278. The court suo motu will take 
 notice of its want of jurisdiction. So stringent is this rule 
 that it is not sufficient to state the jurisdictional facts in the 
 
55 
 
 title of the case ; they must be in the record itself. The words 
 limited jurisdiction have been used. The use of these words 
 in connection with the circuit courts of the United States is 
 so well explained by Judge Curtis, in his lectures on the juris- 
 diction of the United States Courts (which by the way are 
 earnestly recommended to your examination and study) that 
 his words are used : " I think it proper to premise here that 
 although this is only a limited jurisdiction, limited first by 
 the character of the parties and secondly by the nature of the 
 subject matter involved in the suit, still any party who has 
 the right and comes into the circuit court of the United States, 
 finds a court clothed with entire power to do justice according 
 to law or according to equity whichever he appeals to. Al- 
 though this is a court of limited jurisdiction, the limits of the 
 jurisdiction are limits which affect the persons who may come 
 there or the subjects which may be brought there. But when 
 a person has a right to come there or the subject is one which 
 can be brought there under the Constitution and laws of the 
 United States, the court has entire power as a court of equity 
 or of law to do justice between the parties. It is not a court 
 of limited jurisdiction in any other sense than that now ex- 
 plained." (Curtis' Jurisdiction U. S. Courts, 109.) 
 
 Consent of parties cannot give jurisdiction. But all other 
 conditions of jurisdiction being satisfied, a party can waive 
 the requirement, that suit be brought in the district of the 
 residence of plaintiff or defendants for this is a personal privi- 
 lege and the cause may be tried in another circuit court. 
 
 REMOVAL OF CAUSES. 
 
 In addition to the original jurisdiction of the circuit courts 
 of the United States as fixed by the act of 1888, the courts 
 have jurisdiction over causes originally brought in the State 
 courts and removed into the circuit court. This right of re- 
 moval applies to criminal and civil cases. In civil suits there 
 are two classes of removal cases. 
 
56 
 
 1st. Any suit of a civil nature at law or in equity arising 
 under the Constitution of the United States, and the treaties 
 and laws made thereunder, and any other suit of a civil na- 
 ture, in law or equity, jurisdiction over which is given by the 
 section of this act which has been discussed above, may be re- 
 moved by the defendant therein, to the circuit court of the 
 United States for the proper district. And if in the suit there 
 be a controversy wholly between citizens of different States, 
 and this can be fully determined as between them, one or more 
 of the defendants actually interested in such controversy may 
 also remove it. 
 
 Sometimes it occurs that in the same suit in the State court 
 there are several parties and several issues or controversies. If 
 in such suit there be a party defendant, whose interest is so 
 separate and distinct from that of the other defendants, that it 
 can be fully determined as between him and the plaintiff, 
 without the presence of the other parties, such defendant can 
 obtain the removal of his controversy into the United States 
 Court, if he and the plantiff be citizens of different States, and 
 the other conditions exist. Mitchell v. Small, 140 U. S., 406 ; 
 Merchants' Cotton Press v. Ins. Co. of North America, 151 U. 
 S., 368. This is called a separable controversy, and the ques- 
 tion whether it is such a controversy must be determined by 
 an inspection of the record in the State court, and not by any 
 allegations of the petition for removal, unless the petitioner 
 can both allege and prove that he was wrongfully joined as 
 defendant to defeat the jurisdiction of the United States Court. 
 L. & N. R. R. Co. V. Wangelin, 132 U. S., 599. 
 
 You will notice that no cause can be removed from a State 
 court to a Circuit Court of the United States, except it be one 
 which comes within the class of cases of which the circuit 
 court has jurisdiction. That this right of removal is confined 
 to the defendant or defendants. A plaintiff having chosen his 
 tribunal must abide by his selection. In order to secure such 
 
57 
 
 removal the party desiring it must file his petition in the State 
 court in which the action is pending at the time, or at any time 
 before the defendant is required by the laws of the State or the 
 rule of the State court, in which the suit is brought, to answer 
 or plead to the declaration or complaint of the plaintiff. The pe- 
 tition must pray for the removal of the suit, stating the grounds 
 therefor, and must be accompanied by a bond with surety, 
 that the petitioner will enter in the United States Circuit Court, 
 for the district in which the State court is, at the first day of 
 its session next thereafter, a copy of the record of the suit, and 
 also that he will pay all costs of such removal, if the circuit 
 court shall hold that it was wrongfully or improperly removed. 
 We will dwell on this a short time as it is a matter of frequent 
 occurrence in practice. 
 
 The petition must be filed in the State court. The petition 
 must state and the record must show that it is a removable 
 case. If the facts stated in the petition be denied, the issue of 
 fact can be tried nowhere but in the Circuit Court of the United 
 States. {Kansas City, &c., v. Daughters, 138 U. S., 298). 
 The burden of proof is on the petitioner. ( Carson v. Dunham, 
 121 U. S. 421). 
 
 If the petition with the record discloses facts which show 
 the right to remove, as soon as it and the proper bond are filed 
 in the State court, the cause is practically removed and the 
 jurisdiction of the State court ceases at once. {R. R. Co., v. 
 Kountz, 104 U. S., 5). No order of the State court is 
 necessary to the removal. (Kern v. Huidekoper, 103 U. S., 
 485). And if the State court refuses an order for removal, the 
 party seeking it can still go on, obtain a certified copy of the 
 record in the State court and docket his case in the circuit 
 court. When this is done he can defend in the State court 
 without prejudice to his right to remove {R. R. Co., v. Dunn, 
 19 Wall, 214, Removal Cases 100 U. S., 457) ; and if the State 
 court of last resort sustain the action of the lower court, he 
 
58 
 
 can carry his case by writ of error to the Supreme Court. R. 
 R. Co., V. Kountz, supra). This is a Federal question. (Oakley 
 V. Goodnow, 118 U. S., 43). When the law requires the peti- 
 tion and bond to be filed in the State court, it means filed as 
 all other papers are filed, in the clerk's ofiice, whether the 
 court be in session or not. (Brown v. Murray, 43 Federal Re- 
 ports, 614). There is some confusion in the courts on the 
 question whether the petition must necessarily be presented to 
 the State court. (Brown v. Murray, supra ; Shed v. Fuller, 36 
 Federal Reports, 609). Doubtless it should be, both from the 
 spirit of the act and from motives of comity. (See Crehore v. 
 Ohio & M. R. R. Co., 131 U. S., 240). But if it be a proper 
 case for removal, the adverse action of the State court cannot 
 prevent the removal. On the whole subject, see Stone v. South 
 Carolina, 117 U. S., 430. 
 
 The petition must be filed at the time or at any time before 
 the defendant is required by the laws of the State court or by 
 the rule of the State court in which the action is brought, to 
 answer or plead to the declaration or complaint. No consent 
 of parties can extend this time. The petition must be filed on 
 or before the day the defense is due by law or the rule of court. 
 In one case decided by the Supreme Court, the justice deliver- 
 ing the opinion says, that the petition must be filed on or be- 
 fore the day that the defendant is required in the State court 
 to make any defense whatever, either in abatement or on the 
 merits. (Martin v. B. & 0. R. R. 151JJ . S., 673). This, how- 
 ever, was not necessary to the decision of the case which went 
 off on another ground and is an obiter dictum. If the 
 proper petition showing the necessary amount, with a proper 
 bond, is filed within the time and the State court refuses to 
 consent to the removal, the party seeking it can procure a 
 transcript of the record and file that in the United States 
 court, where it will be docketed. The cause comes into the 
 United States court precisely in the same plight in every re- 
 
59 
 
 spect as it left the State court. The period between the filing 
 of the petition and the docketing of the cause in the United 
 States court is a period of suspension ; that is to say, if the 
 defendant, when petition was filed, had so many days left 
 within which to make his defense, the currency of these day& 
 is suspended until the cause is docketed in the United States 
 Court. {Pelser Manufacturing Co., v. St. Paul, 40 Federal Re- 
 ports, 185). If the other party be dissatisfied with the re- 
 moval, he makes his motion in the United States Circuit Court 
 to remand the cause to the State court. The proper practice 
 is to file a petition setting forth the grounds for this motion. 
 On this petition, issues either of law or fact are joined. The 
 cause is heard, and the decision of the circuit court refusing 
 to remand the case is not reviewable on the point until after 
 final judgment. If the case be remanded no appeal will lie (25- 
 Stat., 433). If the cause is not remanded it proceeds to a con- 
 clusion under the rules and practice of the Federal court. 
 
 The motion to remand must be made in the circuit court. 
 It is too late to make it after the cause has been heard on the 
 merits ; and if the ground of the motion is that the petition 
 for removal was not filed in time, delay in taking advantage 
 of this will be treated as a waiver of the objection. Martin 
 V. B. & 0. R. R Co., 151 U. S. at page 688. 
 
 There is another class of civil cases which can be removed 
 from the State court to the Circuit Court of the United States. 
 If the action in the St9,te court be between citizens of that 
 State and the title to land is concerned, one or more of the 
 parties plaintiff or defendant, at any time before the trial, may 
 state to the court on oath, if the court require it, that they 
 claim and shall rely for title under a grant from a State. Th ey 
 must produce the original grant or an exemplification of itr 
 except where a loss of public records puts it out of their power 
 and then they can prove it by secondary evidence apparently. 
 Thereupon they can move the court that the other party in- 
 
60 
 
 form the court, whether they do not claim under grant from 
 another State. The other party must give this information or 
 be debarred the right of pleading such grant or giving it in evi- 
 <ience. If the reply is that they rely on such grant, then the 
 other party on petition and bond as above, may remove the 
 <;ause for trial into the United States Court. 25 Statutes at 
 Large, 433. 
 
 There is still another class of civil cases which can be re- 
 moved. If there be a suit or controversy between citizens of 
 different States in a State court and the defendant can make 
 it to appear by a full statement of facts, to the satisfaction of 
 the United States Circuit Court, that from prejudice or local in- 
 fluence he will not be able to obtain justice in that State court 
 or in any other State court to which he could remove his cause, 
 he can file his petition in the United States Circuit Court, stat- 
 ing all these facts fully and giving a proper bond therewith, 
 whereupon, if the court think it a fit case for removal, it will 
 sign an order to that effect which order must be filed in the 
 State court, and thereupon the cause will be removed into the 
 United States Circuit Court. Pennsylvania Co., v. Bendes 148 
 U. S., 258. Provided, always, however,that the matter in con- 
 troversy exceeds $2,000 beside interest and costs, and the par- 
 ties on one side are all citizens of a different State from the 
 party on the other side. If the petition is filed before the 
 final hearing it is in time even if there had been a trial which 
 was set aside and new trial ordered. Fisk v. Howard, 143 
 U. S., 459. 
 
 The books are full of cases upon removal of causes. Judge 
 Dillon and Judge Speer have written full and valuable treat- 
 ises on the subject. 
 
 For our present purposes this brief outline is deemed suf- 
 ficient. 
 
 There is also a right of removal in criminal as well as civil 
 ■cases. 
 
61 
 
 By section 643 of the Revised Statutes of the United States, 
 when any civil proceeding or criminal prosecution is com- 
 menced in any court of a State against any officer appointed 
 under or acting by authority of any revenue law of the United 
 States, now or hereafter enacted or against any person acting 
 under or by authority of any such officer, on account of any 
 act done under color of his office or of any such law, or on ac- 
 count of any right, title, or authority claimed by such officer 
 or person under such law, the said suit or prosecution at any 
 time before the trial or final hearing thereof, may be removed 
 for trial in the Circuit Court of the United States, next to be 
 holden in the district where the same is pending, upon j)eti- 
 tion of the defendant to the Circuit Court of the United States. 
 Tennessee v. Davis 100 U. S., 257. 
 
 This privilege of removal is confined to an officer appointed 
 under a revenue law or some one acting under his authority. 
 The removal can only take place after indictment found in the 
 State court and before trial. Virginia v. Paul, 148 U. S., 107. 
 The removal is effected either by service of a writ of certiorari 
 upon the State court or of a writ of habeas corpus cum causa 
 upon the person having defendant in custody. (Ibid.) 
 
 When the case gets into the Circuit Court of the United 
 States it is tried upon the indictment presented by the grand 
 jury in the State court and framed with the assistance of its 
 law officers. An interesting discussion of cases of this char- 
 acter will be found in Tennessee v. Davis, 100 U. S., 257, and 
 Virginia v. Paul, 148 U. S. 107. 
 
 So also any civil suit or criminal prosecution arising out of 
 civil rights, can be removed if it appear that the petitioner 
 cannot get justice in the State courts — sections 641, 2, 3, and 
 722 ; title 24 Revised Statutes of the United States and Act of 
 1875. " An act to protect all citizens in their civil and legal 
 
 rights." 
 
 It will be seen that there are two modes of removing cases 
 
62 
 
 from the State courts into those of the United States, and on 
 but one ground, that the eases depend either on some con- 
 struction of the Constitution of the United States, or treaties 
 or laws passed thereunder or on some rights secured thereby. 
 
 One mode is by writ of error or appeal from final judgment 
 of a State court of last resort, and only into the Supreme 
 •Court. 
 
 The other made is by removal of a case before or immedi- 
 ately upon filing a defence from a State court at nisiprius, into a 
 circuit court of the United States, where the issues are heard 
 and decided. Thus the final decision on all Federal questions 
 is given to the one Supreme Court of the United States. And 
 uniformity of decision is secured, 
 
 PROCEDURB AND PRACTICE IN UNITED STATES CIRCUIT COURTS. 
 
 The distinction between law and equity is rigidly preserved 
 and insisted upon in the United States courts. Fenn v. Holme, 
 21 How, 485. The forms of procedure in law and in equity 
 are entirely dissimilar. No case can present both legal and 
 equitable issues. New Orleans v. Louisiana Construction Co., 
 29U. S., 45. The dockets are entirely distinct; and although 
 the same judge administers both law and equity, he keeps the 
 two jurisdictions apart. 
 
 This must always be kept in mind. The rule is observed 
 -strictly. If a cause be removed from a State court into the 
 United States court, and by the law prevailing in the State, 
 legal and equitable causes of action can be joined in one suit, 
 as is the practice under the New York code, just as soon as it 
 ■comes into the United States Court, an order is passed requir- 
 ing the pleadings to be recast. So much of them as rest on a 
 cause of action at law are put into shape for the law side of 
 the court, so much of the pleadings as proceed on equitable 
 causes of action, are put into the form of a bill in equity, and 
 are heard and decided on the equity side of the court. Hurt 
 ■V. Hollingsworth, 100 U. S., 100. 
 
63 
 
 CASES AT LAW. 
 
 In all civil cases at law on legal causes of action and pre- 
 senting legal issues, the United States Court follows the prac- 
 tice, pleading, forms, and modes of procedure of the State courts, 
 it being always borne in mind that the pleadings on their face 
 must show the jurisdiction of the court. This is expressly 
 provided by statute, section 914 of Revised Statutes of the 
 United States, and the language of the section expressly limits 
 its operation to the practice, pleadings, and forms and modes 
 of procedure in civil causes, others than equity and admiralty^ 
 
 This rule includes the rules of evidence in those courts, the 
 sufficiency and scope of the pleadings, the form and effect of 
 the verdict, the lien and mode of enforcement of the judgment. 
 And this practice and the pleadings are governed by the State 
 law, and uniform State practice established by usage. {Glenn 
 V. Sumner, 132 U. S., 152 ; Robertson v. Perkins 129 U. S., 
 233). 
 
 There are some differences fixed by practice. The judges 
 of the United States Circuit Courts have more power, with 
 respect to the jury, than State judges usually have. They 
 can charge on the facts, can express their opinion on them to 
 the jury, always, however, saying to the jury in express lan- 
 guage, and so instructing them, their right finally to pass on 
 the conflict of testimony, or the preponderance of the evidence. 
 They can instruct a jury to find for a party if the evidence 
 against him and all the legal inferences to be drawn there- 
 from have made out no case. 
 
 The language of the Supreme Court on this subject is this : 
 Where the testimony is of such a conclusive character as 
 would compel the court in the exercise of a sound judicial 
 discretion, to set aside the verdict if the jury find against the 
 opinion of the court, it can instruct the jury as to the verdict. 
 (Montclair v. Dana 107 U. S., 162.) 
 
 Chief Justice Fuller, in an able and elaborate opinion, dis- 
 
64 
 
 cusses this question in {Louisville, &c., R. R. v. Woodson), 134 
 U. S., 621, with this conclusion : " It is the settled law of^^this 
 court that when the evidence given at the trial with all in- 
 ferences that the jury could justifiably draw from it, is in- 
 sufficient to support a verdict for the plaintiff, so that such 
 verdict if returned must be set aside, the court is not bound to 
 submit the case to the jury. While on the other hand the 
 case should be left to the jury unless the conclusion follows on 
 matters of law, that no recovery can be had on any view 
 which can properly be taken of the facts the evidence tends to 
 establish." 
 
 A recent case on this subject is Treat Manufacturing Co., v. 
 Standard Steel and Iron Co., 157 U. S., 674. That case holds 
 that when the trial judge is satisfied upon the evidence that 
 the plaintiff is not entitled to recover and that if the jury 
 render a verdict for him the court would feel bound to set it 
 aside, he can instruct the jury to find for the defendant, and 
 that this does not deprive plaintiff of his right to a trial by 
 jury. But the action of the judge can be reviewed in an ap- 
 pellate court, if his opinion was wrong. The similarity in 
 practice, pleading, form and mode of procedure apply onlj' to 
 the trial courts. The time, mode and practice of reviewing 
 cases on appeal or writ of error are governed wholly by the 
 rules of the United States courts. A writ of error in the 
 United States courts lies only to errors of law occurring du- 
 ring a trial, regularly excepted to and formulated. No writ of 
 error lies to the granting of or to the refusal of a new trial. 
 {Henderson v. Moore, 5 Cranch, 11 ; Emley v. Palmer, 107 U. S., 
 3. Appeals lie from judgments or decrees on the equity side 
 of the court, on assignments of errors both of law and fact. 
 The details of these have been noticed in what has been said 
 of the Supreme Court. 
 
 The judgments of the United States courts have precisely 
 the same lien as the judgments of the State courts, and are 
 governed in this by the laws of the State. 
 
65 
 
 PROCEDURE AND PRACTICE IN EQUITY. 
 
 The equity jurisdiction of the courts of the United States is 
 derived from the Constitution and laws of the United States. 
 The powers, practice, and rules of the court are the same in all 
 the States ; their practice is regulated by themselves, and by 
 rules established by the Supreme Court, unaffected by State 
 practice or legislation. New Orleans v. Louisiana Construction 
 Co., 129 U. S., 45. The equity jurisdiction of these courts 
 cannot be enlarged by State legislation. For instance : As a 
 general rule a right enforceable in a State court can also, all 
 other conditions existing, be enforced in the United States 
 •Circuit Court. But if by statute of a State the jurisdiction of 
 the court of equity in such State is enlarged and be made to 
 extend to cases not formerly cognizable therein, this will not 
 ■enlarge the power of the court of equity of the United States. 
 In Mississippi and in other States by statute, an open creditor, 
 one who has not reduced his claim to judgment, can file a bill 
 to set aside convej^ances made by the debtor, alleged to be 
 fraudulent. This will not avail an open creditor in the United 
 States court, even in Mississippi. [Scott v. Neely 140 U. S.) In 
 Gormhy v. Clark, 134 U. S., 348, Chief Justice Fuller, recognizing 
 this doctrine, says : "However, that if equitable rights beenlarged 
 by a State they can be administered by Circuit Courts of the 
 United States when the case is one of a remedial proceeding 
 ■essentially of an equitable character." 
 
 The practice in equity in the United States Courts is regu- 
 lated by the laws of Congress, and by the rules of the Su- 
 preme Court, adopted under the authority of Congress, which 
 have the force of laws. One of these rules, the ninetieth, is 
 that when not otherwise directed, the practice of the High 
 Court of Chancery in England shall be followed. The rules of 
 the Supreme Court, fixing the practice, are those known as the 
 equity rules. They can be found in Desty's Federal Procedure 
 5 
 
66 
 
 in full. The practice of the High Court of Chancery is shown 
 in Daniel's Chancery Pleading and Practice, which is full 
 authority. The other authorities are Mitford on Pleading, 
 Story on Pleading, Mr. Foster's excellent book on Federal Pro- 
 cedure, Beach on Equity, and others. Excellent precedents of 
 bills, &c., can be found in the Equity Draftsman. 
 
 Perhaps no system of pleading is more perfect than that in 
 equity. We perhaps may except admiralty pleading. The 
 pleadings in equity are the bill, demurrer, plea and answer 
 and replication. The bill states the complainant's case. The 
 demurrer lies for any defect or objections patent on the face of 
 the bill. The plea sets up some matter not in the bill, operat- 
 ing as a defense to anj' statement therein. The answer dis- 
 closes the whole defence. The replication is a joinder in issue 
 and though necessary, is formal. 
 
 If one demur to the whole bill, he cannot plead or answer 
 without withdrawing or defeating his demurrer. So also 
 having pleaded to the whole bill, he cannot answer without 
 defeating his plea. Nor can he either demur or plead after 
 answering. But one may demur to one part of a bill, plead to 
 another and answer as to the rest. Or in his answer he may 
 set up the same defence he could have made by demurrer or 
 plea or both, and crave and obtain the same benefit of objec- 
 tion as if he had formally demurred or pleaded. The bill is 
 usually verified on oath. The demurrer or plea must be 
 certified by counsel, that in his opinion it is well founded in 
 point of law and must be supported by affidavit of the defend- 
 ant, that it is not interposed for delay, the plea being sworn 
 to as true in point of fact. 
 
 Amendments are liberally allowed. A complainant can 
 amend as of course and without costs at any time before a 
 copy of the bill leaves the clerk's office. If such copy has 
 been given the defendant, he can amend on paying for him 
 the cost of a copy of the amendment. If the amendments 
 
67 
 
 are numerous, he must furnish a copy of the whole bill as 
 amended. 
 
 After a demurrer, plea or answer has been put in, complain- 
 ant can amend on motion to and by leave of any judge of the 
 court on such terms as the judge may impose without notice to 
 the other side if he has not filed his replication. If he wants 
 to amend after replication, he must give notice of his motion 
 and get leave of the judge, submitting an affidavit that his 
 motion is not for delay and getting his amendment on the 
 terms the judge may impose. 
 
 A bill in equity is the statement of his side of his case by a 
 party seeking aid of the court. Strictly it has nine parts, or 
 subdivisions. In practice some of these are omitted. It opens 
 with : 
 
 1. The address, to The Honorable Judges of the Circuit Court 
 of the United States for the Eastern District of Virginia. 
 
 2. Then it gives the names, &c., of complainant, complaining 
 show unto your Honors, John Smith and James Jones, citizens 
 of the State of New York, and residents of the said State. 
 Then it goes on and states the claims of complainants as 
 simply and as tersely as is consistent with clearness. A 
 good rule in preparing these statements is this: imagine 
 that j'ou are stating all the facts of a case to some legal friend 
 for his opinion in the form of a letter to him ; and do it so 
 that he can understand and see every material fact in the case. 
 
 This statement having been made, sometimes it is followed 
 by a charge that the defendants, whose names are mentioned 
 in your statement (and by the way, after whose names when 
 first mentioned, must follow the averment of their citizenship 
 and residence, as for example, citizens of the State of Virginia 
 and residents of the city of Petersburg), that these defendants 
 have combined and confederated with certain parties unknown, 
 &c. This, however, can be omitted. (Equity Rule 21). After 
 that there used to come and may now at times come, what is. 
 
68 
 
 called the charging part of the bill ; that is to say, a detailed 
 statement of the various pretences set up by the defendants as 
 the reason or excuse for denying or refusing the plaintiffs' 
 claims, it was done by way of anticipating and answering the 
 .defence. This may be omitted. (Rule 21.) Then comes the 
 averment that complainant is without remedy save in a court 
 of equity in which matters of this sort are cognizable and re- 
 ^lievable. This is not essential either, (Rule 21). Then come 
 'such questions as complainants may desire to put to defend- 
 ants, to obtain their acknowledgment of certain facts and to 
 purge their consciences generally, technically known as inter- 
 rogatories. 
 
 This used to be very important when parties to a cause could 
 not be witnesses therein and the interrogatories were used as 
 means of discovery. They are not used freely now. for the 
 reason above intimated, and because the answers on oath to 
 such questions cannot be gainsayed except. by the oath of two 
 witnesses or by the oath of one and corroborating circum- 
 stances. The more general practice is to avoid this by not 
 requiring the answer to be verified by oath. See Rule 41 as 
 amended. Waiver of the oath must be express. Conly v. 
 Nailor, 118 U. S., 134. Then "comes the prayer for the relief 
 sought. This requires care so that it may be expressed 
 clearly and distinctly. If extraordinary remedies are asked, 
 such as for an injunction or appointment of a receiver or any- 
 thiog like this, a prayer to this effect comes in here, and the 
 whole ends with a general prayer for such further relief as to the 
 court may seem best in equity. 
 
 Having thus put the court in possession of his case and 
 what he asks in the way of relief, he prays for' process to 
 bring the defendant into court. This is essential. Rule 23 
 in equity. Story Eq. PL, § 44; 1 Daniel, ch. (6thAm. Ed.), p. 
 391 and note 3. It is called a subpoena ad respondendum, and 
 is the equivalent of the writ at common law, or the summons 
 
69 
 
 of the modern system, by which the defendants are summoned 
 into court and are instructed when to come and make defence. 
 
 This subpcena cannot issue until the bill is filed in the 
 clerk's ofiice, and must be served on the defendant personally, 
 or by leaving a copy thereof at his usual place of abode with 
 some adult member of or resident in the family. The mar- 
 shal or his deputy or some one specially authorized must serve 
 this process. It is returnable to a rule day, the first Monday 
 in each month, the rule day at least twenty days after the 
 date of the service of the process. 
 
 Having been served with process the defendant must enter 
 his appearance with the clerk on the rule day to which the 
 subpoena is returnable. He should then get a copy of the 
 bill and must file his defence thereto on or before the next 
 succeeding rule day. If he fails to do this the bill is taken 
 pro confesso, and the case is thereupon under the control of 
 complainant. 
 
 If he makes defence, and the bill on its face shows a want 
 of equity; that is, does not state a case for equitable relief, he 
 can enter a general demurrer, or if there are defects patent on 
 the face of the bill, he can demur because of these. Or if 
 there be any facts outside of those mentioned in the bill, he 
 may enter his plea setting them up as defence to the bill. If 
 a demurrer or plea be interposed the complainant must set it 
 down for argument on the rule day on which it is filed, or 
 the next succeeding rule day, otherwise he will be held to ad- 
 mit its sufficiency, and the bill is liable to be dismissed. 
 
 If the defendant prefer to make a full defence he will file 
 his answer to the bill, stating his grounds of defence. If the 
 bill require him to answer certain interrogatories he must an- 
 swer them, and unless the bill waive his oath to his answer, he 
 must verify it. 
 
 The oath in the courts of the United States must be taken 
 either before the clerk of the court, or a United States commis- 
 sioner, or a notary public. 
 
70 
 
 The answer having been filed, the defendant has the same 
 right of amending it as the complainant had to amend his 
 bill, and on the same conditions. 
 
 When it has been filed the complainant must examine it, 
 and if he deem it insufficient be can file his exceptions thereto 
 by the next rule day. If none be filed, and if the time be not 
 extended by a judge, the answer stands. 
 
 Then the complainant, on the rule day next after that on 
 which the answer is filed, must file his replication. This is as 
 has been said, a formal joinder of issue. Unless it is filed the 
 bill is liable to be dismissed, unless the judge will allow it to 
 be filed nunc pro tunc. Rule 66. 
 
 The case is now at issue. If the statements of the bill and 
 those of the answer cover the case sufficiently, at can be heard 
 on bill and answer. But if testimony is needed in the case, 
 such testimony can be taken orally before an examiner ap- 
 pointed by the court after reasonable notice. The witness 
 must be produced before the examiner, and his testimony is 
 taken on examination and cross-examination, and is recorded 
 by the examiner, or, if parties consent, by a stenographer or 
 typewriter, and is signed by the witness. If any question be 
 excepted to, the examiner notes the exception, and reports the 
 testimony. When the evidence is closed the examiner trans- 
 mits the original depositions to the clerk. Testimony of absent 
 witnesses can be taken by commission, the interrogatories and 
 cross-interrogatories having been first prepared in writing and 
 attached to the commission. The testimony of aged and in- 
 firm witnesses, or of one about to leave the country, or of one 
 living more than one hundred miles from the place of trial, 
 may be taken by deposition de bene esse. This is taken orally 
 before any notary public, after reasonable notice to the other 
 side. The testimony, when taken, is sealed by the notary 
 public, and either handed by him to the clerk or sent by mail, 
 in a package sealed by him, and with the name of the case 
 
71 
 
 endorsed on it. Every provision of the act of Congress in 
 this regard must be strictly pursued, else the testimony can- 
 not be read. Nor can it be read if the witness subsequently 
 appear in court so that he can be regularly examined. 
 
 All the testimony being in, the cause can be heard on the 
 pleadings and evidence. The court usually fixes a time when 
 all the evidence must be taken, giving so many days to the 
 complainant to open his case, so many to defendant to rebut, 
 and a few days to complainant to reply. If no such time is 
 fixed by the court, all the evidence on both sides must be 
 taken in ninety days from the filing of the replication. 
 
 The cause being ready now for a hearing, comes before the 
 court. In ordinary cases it can be heard and decided. Some- 
 times, however, there arises in the case a dispute on a matter 
 of law, the decision of which is necessary before the equities 
 can be settled, and sometimes a dispute on a matter of fact so 
 complicated, and sustained by evidence so contradictory, that 
 the court is unwilling to decide it. In cases of the first kind 
 the case may be suspended in equity, and the parties are in- 
 structed to go into the law court and have the point decided. 
 A familiar illustration of this is an action for partition of land 
 in which the question of title in the land is made. Courts of 
 equity do not ordinarily decide such questions. So they sus- 
 pend the equity case, and send the parties to the law court, 
 with instructions to trj' in that court, before a jury, the ques- 
 tion of title. When sach trial has been had the result is 
 reported to the equity court, and it then goes on and disposes 
 of the case. Another. example is a question of fact, to which 
 witnesses on both sides swear, contradicting each other. The 
 court of equity prefers that such contradiction be solved by a 
 jury as the most appropriate tribunal. It orders the parties 
 to make up an issue and try it in the law court before a jury, 
 or in some instances, it organizes a jury for itself and submits 
 the case to it. Wilson v. Paddle, 123 U. S., 608. Where the 
 
parties are ordered to go into the law court and there get a 
 determination of their case, -the court of equity is bound by the 
 decision. When the court directs them simply to try an issue 
 of fact before a jury in the law court, or in its own court, it is 
 not bound to accept the verdict of the jury, but may try it be- 
 fore another jury or decide the issue for itself. The most com- 
 mon step in a cause in equity is the reference to a master. He 
 is directed to make such inquiry as the court may desire, and 
 has not the time or the opportunity of making, and the master 
 must report the result of his inquiry to the court. This inquiry 
 may be of the most searching character. Especially is it used 
 in matters of account, the dealings of trustees, guardians, and 
 executors; the relations of copartners with each other, and 
 minute details of this character. The master takes all the tes- 
 timony bearing on the points referred to him, makes his report 
 to the court as directed, full opportunity for exception is given 
 so as to test the accuracy of the report. The master cannot 
 pass upon all the issues in an equity case ; nor can the court 
 refer to him the decision of a case except by consent of parties. 
 He simply reports facts, his findings are simply advisory, and 
 the court may reject them in whole or in part. Kimberley v. 
 Arms, 129 U. S., 512 ; Boesch v. Graff, 133 U. S., 697. The 
 cause is then heard, leading to a final decree. 
 
 It will be seen from this brief sketch of a suit in equity, 
 how carefully every step is designed for obtaining the most 
 complete justice in a case before the court. The complain- 
 ant prepares his complaint and files it. Any defect he may 
 have unwittingly made in his statement can be amended by 
 him with full opportunit)^ The opposite party can then pro- 
 vide himself with a copy of the complaint and can examine 
 it carefully for at least one month. If he see any omissions 
 or insuflficieut statements of fact or errors in the principles of 
 equity, he can by his demurrer or plea have these corrected 
 and can force amendments, or he can put in his answer which 
 
73 
 
 in time is submitted to the criticism of the complainant who 
 can except to it until it is perfected. The full case on both 
 sides thus being before the court, it can have them thoroughly 
 investigated either before the court or by a jury or by the help 
 of a law court or by ils own officer, known as the master. 
 Complete and full justice can thus be secured. More than this. 
 If a defendant brought into a court of equity, conceives that 
 out of the facts stated or transactions before the court, he is en- 
 titled to some relief as against the complainant or any one or 
 more of his co-defendants, he can file what is known as a cross- 
 bill, in which he becomes an actor and to which he can make 
 defendants the complainant and his co-defendants, but no one 
 else. A cross-bill must always be filed when a defendant doe& 
 not only stand on a denial of of the complainant's case, but 
 seeks some affirmative relief himself. 
 
 If any circumstances occur after the bill filed, which in any 
 respect changes the aspect of affairs existing at the time of the 
 filing of the bill, it can be brought before the court by supple- 
 mental bill, setting it forth and connecting it with the other- 
 matters in the original bill. And if any parties die pending 
 the suit, if they are among the plaintiffs, the death is sug- 
 gested on the record, or if relief is sought against the repre- 
 sentatives of deceased defendants theseare made parties to the 
 suit by bill of revivor. 
 
 Decrees in equity rank as judgments, and are enforced by 
 writs of attachment, or if defendant cannot be found by writ 
 of sequestration or a writ of assistance to enforce delivery of 
 possession. In practical experience these writs are not needed. 
 
 Courts of equity are always open for all purposes prepara- 
 tory to the hearing of causes on their merits and for executing 
 decrees. 
 
 CRIMINAL JURISDICTION. 
 
 Circuit courts of the United States have jurisdiction over 
 all offences against the statutes of the United States, unless it 
 
74 
 
 be expressly provided to the contrary. They have concurrent 
 jurisdiction with the State courts over all crimes and misde- 
 meanors committed in forts, arsenals and other places within 
 the States, ceded for public purposes to the United States, 
 where this jurisdiction is reserved by the ceding States. The 
 provision upon this subject is found in section 5391 of the 
 Revised Statutes of the United States as follows : 
 
 "If any offence be committed in any place which has been 
 -or may hereafter be ceded to and under the jurisdiction of the 
 United States, which offence is not prohibited or the punish- 
 ment thereof is not specially provided for by any law of the 
 United States, such offence shall be liable to and receive the 
 same punishment as the laws of the State in which such 
 place is situated now in force provide for like offence when 
 committed within the jurisdiction of such State, and no sub- 
 sequent repeal of any such State law shall affect any such 
 prosecution in any court of the United States. They have 
 exclusive jurisdiction over all capital felonies committed on 
 the high seas and outside of the limits of any State, and con- 
 ■current juris(iictiou with the district court of all crimes and 
 misdemeanors not capital committed on the high seas and 
 outside the limits of any State." You will find the offences 
 punishable in the circuit courts as crimes detailed in §§ 5339- 
 5391, Revised Statutes of the United States. 
 
 These are the provisions with regard to the trial of crimes 
 in United States Courts : 
 
 1. All crimes shall be tried in the State and district where 
 the crime was committed (6th Amendment of the Constitution 
 of the United States), and all capital offences shall be tried in 
 the county where the offence was committed where that can 
 be done without great inconvenience. Section 729, Revised 
 Statutes. 
 
 2. The trial of all offences on the high seas or elsewhere out 
 of the jurisdiction of any particular State or district shall be 
 
75 
 
 in the district where the oflFender is found or in which he is 
 first brought. Act April 30, 1790, 1 Statutes at Large, 114. 
 
 3. Where an offence is committed against the United 
 States, begun in one district and completed in another, it can 
 be tried and pnnished in either district. Section 731, Revised 
 Statutes of the United States. 
 
 There are no common law crimes triable before their courts 
 (Pettibone v. The United States, I4.8 U. S., 197), but in constru- 
 ing the statutes creating crimes and misdemeanors the com- 
 mon law definitions apply. Every offence, the punishment 
 of which is capital or infamous, must be presented by a grand 
 jury on indictment before the party accused can be tried. 
 5th Amendment of Constitution of the United States. An in- 
 famous offence is one in which the judge has the right in his 
 discretion to imprison the defendant in a penitentiary with or 
 without hard labor. And as under provisions of law persons 
 sentenced for more than twelve months' imprisonment must 
 be sent to some penitentiary designated by the attorney-gen- 
 eral, it would seem that every offence for which the revised 
 statutes provide as a maximum of imprisonment, more than 
 twelve months, is an infamous crime. (Macklin v. The 
 United States, 117 U. S., 352 ; In re Classen, I4.O U. S., WO). 
 
 Ofifences not infamous can be tried on information by the 
 district attorney. Section 1022, Revised Statutes of the United 
 States. The incidents of trial are the same as in the State 
 courts, except that in all cases below felonies, the accused can 
 challenge peremptorily three jurors and the United States 
 three, and in felonies, except treason and capital felonies, the 
 accused has ten and the United States five challenges. In 
 treason and capital felonies, the accused has twentj'^ and the 
 United States ten challenges. Section 819, Revised Statutes of 
 the United States. If there are several defendants tried to- 
 gether, they have together the same right of challenge as but 
 one would have had. Section 819, Revised Statutes. In every 
 
76 
 
 court of the United States a defendant charged with crime may- 
 testify in his own behalf. If he avails himself of this privi- 
 lege, he then becomes subject to the rules controlling any 
 other witness. If he does not, no allusion to his non-action 
 can be made in the progress of the case or in the charge of the 
 judge to his disadvantage. See Statutes at Large of the United 
 States, 30. 
 
 Formerly the circuit courts had an appellate jurisdiction 
 from the district courts. This seems to have been practically 
 abolished, except, perhaps, in some of the few unfinished bank- 
 ruptcy cases. It has been doubted whether a defendant can 
 consent to be tried by a jury less than twelve in number. 
 (Pope Manufacturing Co. v. Oormelly, 144 U. S., 234.) And it 
 has been decided that the prisoner in a trial for felony cannot 
 waive the right to be personally present. Lewis v. the United 
 States, 146 U. S., 370. 
 
 DISTRICT COURTS. 
 
 There are sixty-nine judicial districts in the United States. 
 One in each of the States of Maine, New Hampshire, Vermont, 
 Massachusetts, Rhode Island, Connecticut, New Jersey, Dela- 
 ware, Maryland, "West Virginia, Indiana, Minnesota, Kansas, 
 Colorado, Nevada, Nebraska, Montana, North Dakota, South 
 Dakota, Wyoming, Washington, Oregon, Idaho, Alaska. Two 
 in each of the States of Pennsylvania, Virginia, North Carolina, 
 Florida, Georgia, Louisiana, Michigan, Ohio, Illinois, Wiscon- 
 sin, Arkansas, Iowa, Missouri, California. Three in each of 
 the States of New York, Texas, Tennessee, and Alabama. 
 
 There are two districts in each of the States of Mississippi 
 and South Carolina, but there is only one district judge for 
 each State. In Alabama and Tennessee there are three dis- 
 tricts, but only two district judges. Every other district is 
 presided over by a district judge. 
 
77 
 
 JURISDICTION. 
 
 The district courts of the United States have jurisdiction : 
 
 1. Of all crimes and offences cognizable under the authoritj^ 
 of the United States, the punishment for which is not capital, 
 committed within their respective districts or upon the high 
 seas. The only exception to this is an offence defined in sec- 
 tion 5412, tampering with official land records of the State of 
 California, which presumably can only be tried in the circuit 
 court. 
 
 2. Of all cases arising under any act for the punishment of 
 piracy where no circuit court is held in the districts of such 
 courts. 
 
 3. Of all suits for penalties and forfeitures incurred under 
 any law of the United States. This jurisdiction is exclusive. 
 
 4. Of all suits at common law brought by the United States 
 or by any officer thereof. Persons holding office under anj'^ 
 act of Congress are officers within this clause. Such as 
 receivers of national banks appointed by the comptroller of 
 the currency. Piatt v. Beach, 2 Ben., 363. 
 
 This term officer of the United States is defined by the Su- 
 preme Court to be " a person in the employment of the govern- 
 ment, who holds his place by virtue of appointment by the 
 President, or of one of the courts of justice or heads of depart- 
 ments, authorized by law to make such an appointment." 
 United States v. Moriat, 124 U. S., 307. 
 
 5. Of all suits in equity to enforce 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 and interest. 
 
 6. Of all suits for the recovery of any forfeitures or dam- 
 ages under section 3490 of the Revised Statutes of the United 
 ■States, and such suits may be tried in any district court within 
 -whose jurisdictional limits the defendant may be found. The 
 
78 
 
 cases referred to are these : It is made a serious crime by sec- 
 tion 5438 to present any forged, fictitious or fraudulent claim 
 against the United States, punishable by heavy fine or im- 
 prisonment. In addition to this punishment the person guilty 
 of this crime forfeits to the United States the sum of $2,000 
 and such damages as the United States have sustained. Suits 
 for these can be brought in the district court. 
 
 7. Of all causes arising under the postal laws of the United 
 States. 
 
 8. Of all civil causes of admiralty and maritime jurisdic- 
 tion. This will be particularly discussed hereafter. 
 
 9. It had jurisdiction over property captured during tlie 
 late war. 
 
 10. Of all suits by the assignee of any debenture for draw- 
 back of duties issued under any law for the collection of 
 duties against the person to whom such debenture was origin- 
 ally granted or against any indorser thereof, to recover the 
 amount of such debenture. 
 
 The debenture here spoken of is this : Any person import- 
 ing into the United States, dutiable articles, which he intends 
 to re-export, is entitled to a drawback or repayment of the 
 duties so paid upon the exportation. He upon satisfying the 
 collector of his bona fides and on payment of the duties, gets 
 from the collector a debenture, that is an acknowledgment in 
 writing, that the United States is indebted to him in the sum 
 of money so paid, less proper allowances. These are made 
 assignable and are the papers here referred to. 
 
 11 and 12. All suits at law or in equity for damages against 
 or for securing civil rights. 
 
 13. Of all suits to recover possession of any office, except 
 that of president of the United States or vice-president, repre- 
 sentative or delegate in Congress, or member of a State legisla- 
 ture, when the sole question touching the title to such an 
 office arises out of the denial of the right to vote to any citi- 
 
79 
 
 zen offering to vote on account of race, color or previous con- 
 dition of servitude, provided that the jurisdiction shall extend 
 only so far as to determine the right of the party to such office, 
 by reason of the denial of a right guaranteed by the Constitu- 
 tion and secured by law. 
 
 14. Of all proceedings by the writ of quo warranto pre- 
 sented by any district attorney for the removal from office of 
 any person holding an office except as member of Congress or 
 of a State legislature, contrary to section 3 of XIV. Amend- 
 ment of the Constitution of the United States. This section 
 relates to political disability arising out of the late war be- 
 tween the States. 
 
 15. Of all suits brought by an alien for a tort only, in viola- 
 tion of the law of nations or of a treaty with the United States. 
 
 16. All suits against consuls and vice-consuls except for 
 tort just as described. 
 
 It will be seen from this enumeration that the district courts 
 have a very wide jurisdiction. They are in fact the courts 
 through which the government enforces its customs' revenue 
 law, internal revenue laws, postal and pension laws and all 
 the details of administration either civil or criminal. The 
 greatest volume of business passes through them, and the 
 judges who preside in them are the most laborious judges, with 
 some few exceptions, in the whole Union. 
 
 In the exercise of its common law and criminal jurisdiction 
 the court always sits with the jury. And in civil cases at 
 law the practice and pleadings and mode of trial with the in- 
 cidents of trial conform to the mode of procedure, practice 
 and pleading in the State court. All infamous crimes, and 
 you will remember that all crimes in these courts are infa- 
 mous where the statute gives the judge the right to sentence 
 for imprisonment longer than twelve months, can only be 
 tried on indictment and presentment by a grand jury. All 
 other offences can be tried on information by the district at- 
 torney. 
 
80 
 
 The right of challenge is the same as in the circuit court, 
 three on each side for offences below the grade of felony ; in 
 felonies five to the United States and ten to the defendant. If 
 several are tried together, they all count as one in the exercise 
 of the right of challenge. 
 
 In all cases involving the question of the jurisdiction of the 
 •courts, either civil or criminal, the decision of the court can 
 be only reviewed in the Supreme Court of the United States. 
 The single question of jurisdiction is presented, none other. 
 
 In capital and infamous cases also the judgment of the 
 <;ourt can be corrected only in the Supreme Court of the 
 United States. The only capital cases, however, which can 
 come up from this court are those of piracy, when there is no 
 circuit court to take jurisdiction. 
 
 All other cases are reviewed in the circuit court of appeals 
 from the circuit to which the district court belongs. 
 
 The modes of correction are writs of error in law cases; 
 a,ppeals in equity and admiralty cases. 
 
 In addition to this common law jurisdiction, the district 
 courts are also courts of admiralty. Although these two 
 classes of jurisdiction are vested in the same tribunal they are 
 -as distinct from each other as if they were vested in different tri- 
 bunals, and can no more be blended than a court of chancery 
 with a court of law. {The Sarah, 8 Wheat., 391). 
 
 COUKTS OP ADMIRALTY. 
 
 The pleadings, practice, principles, and administration 
 of courts of admiralty differ so much from the courts of law, 
 ^nd the jurisdiction of these courts is so large and of such vast 
 importance to the interests of this country, that the subject 
 will be treated as fully as time will allow. 
 
 It is perhaps the most perfect system of jurisprudence. 
 The supreme effort is to get at the real equities of the case, 
 and to ascertain what justice demands. Free from technical!- 
 
81 
 
 ties, the parties come into court, and every facility is aflforded 
 for a plain statement of their' claims or defences. So in mak- 
 ing its decree the court can have all the information needed. 
 The rules of pleading and the principles controlling the cases 
 are found in the civil law, the ancient usages of the sea, the 
 Statutes of the United States, and the decrees and rules of the 
 Supreme Court. And its decrees are based on broad princi- 
 ples of equity and fair dealing. One instance of many can be 
 given. At common law in an action for injuries caused by 
 the negligence of the defendant, if it appear in the evidence 
 that the plaintiff himself was negligent, he cannot recover if 
 his negligence contributed to the injury, although the injury 
 may be very great and his contribution may be small. 
 In admiralty the rule is different. If both parties contribute 
 to the injury, both bear the damages. Generally these are 
 divided ; that is each party bears one-half the damages. The 
 rule is now being relaxed, and the better opinion is that the 
 damages be apportioned between the parties according to the 
 degree of negligence. 
 
 The jurisdiction in admiralty as distinct from the common 
 law has been administered for many centuries. Its origin in 
 England is in doubt, but it certainly existed during the time 
 of Richard, the Lion Hearted. On his return from Palestine 
 he brought with him the system of laws governing admiralty 
 cases, known as the laws of Oleron. You will find a learned 
 and exhaustive discussion of this topic by Mr. Justice Story in 
 DeLovio v. Boit, 2 Gallison, 398, to be found also in Federal 
 Cases, of the West Publishing Company, No. 8, 776. Lord Coke 
 was specially hostile to the courts of admiralty, and he waged 
 war against them as well as against courts of equity. The 
 contest has been carried on in England from his time to the 
 present between the courts of common law and these courts, in 
 which, however, the admiralty courts have steadily won silent 
 victories. On the Continent they have existed beyond the 
 6 
 
82 
 
 memory of man. Before the Revolution of 1776, there were 
 admiralty courts in nearly all the colonies, and practice and 
 procedure in admiralty were familiar to all the lawyers 
 of that day. The Constitution declared that the judicial 
 power of the United States shall extend "to all cases of admi- 
 ralty and maritime jurisdiction." And the great judiciary 
 act of 1789 conferred this jurisdiction on the district court 
 exclusively. The language of the statute now of force on this 
 subject is in these words : 
 
 Eighth. "In all cases of admiralty and maritime jurisdic- 
 tion, saving to suitors in all cases the right of a common law 
 remedy, when the common law is competent to give it, and 
 of all seizures on land and on waters, not within admiralty 
 and maritime jurisdiction. And such jurisdiction shall be 
 exclusive, except in particular cases in which jurisdiction of 
 such causes and seizure is given to the circuit courts, and shall 
 have original and exclusive cognizance of all prizes brought 
 into the United States." 
 
 It will be noticed that the jurisdiction in admiralty is con- 
 ferred on these courts in all cases of admiralty and maritime 
 jurisdiction, saving to suitors in all cases the right of a com- 
 mon law remedy, where tlie common law is competent to give 
 it. This saving clause, however, was liot intended to with- 
 draw such cases from the cognizance of the admiralty courts, 
 but simply to give a concurrent jurisdiction over them in 
 common law courts. {New Jersey Sham Navigation Company 
 v. Merchants' Banh, 6 Howard, 344). Either court can take 
 jurisdiction and give relief according to its own methods. 
 
 The jurisdiction of courts of admiralty extends over the 
 high seas and the navigable waters of the United States. The 
 term high seas needs no interpretation. It covers all the great 
 oceans and seas of the globe. The navigable waters of the 
 United States are that part of the high seas, adjacent to the 
 coasts over which the United States has a jurisdiction as 
 
83 
 
 against other nations, and all harbors, lakes, rivers, streams in 
 the United States, used or capable of beinor use for the purposes 
 of trade and commerce, including the canals. Ex parte Boycr, 
 109 U. S., 629. In England the jurisdiction of the admiralty 
 is confined to the high seas and to those streams in which the 
 tide ebbs and flows, and in these only, within this ebb and 
 flow. 
 
 This restriction was followed in this country for many years. 
 But as the great West opened up, and the tide of population 
 surging over the Alleghanies and the Blue Ridge, invaded 
 that immense region, drained by the Ohio and Mississippi 
 rivers and their great tributaries, and especially when the 
 shores of the great lakes were inhabited, and large fleets cov- 
 ered their waters, it was found impossible to keep within the 
 narrow definition of navigability imposed by the peculiar con- 
 dition of the small and short rivers in England. Waters were 
 declared navigable, which were or could be navigated. The 
 Supreme Court of the United States in The Oennessee Cliief, 12 
 Howard, 450, with an excellent opinion hj Taney, chief jus- 
 tice, followed by The Daniel Ball, 10 Wall, 557, and The Mon- 
 tello, 20 Wall., 43, which are commended to your examination, 
 and which have been confirmed again and again, swept away 
 all narrow restrictions, and established the jurisdiction which 
 has been stated. 
 
 Courts of admiralty are prize courts and instance courts. 
 As prize courts, they administer international law, the law of 
 nations (Henry's Admiralty, page 83), and they exercise the 
 jurisdiction in time of war, in the condemnation and sale of 
 prizes captured, and in the distribution of the proceeds. This 
 jurisdiction is exclusive. They have no jurisdiction over prizes 
 made for foreign vessels. 
 
 As instance courts, they exercise jurisdiction under the mu- 
 nicipal law, as for example, over maritime contracts, and over 
 maritime torts. The jurisdiction over contracts is dependent 
 
84 
 
 on the subject matter of the contract. They must be maritime. 
 Jurisdiction over torts is dependent on the locality. The tort 
 must have occurred on navigable waters. 
 
 MARITIME CONTRACTS. 
 
 Here are some of the definitions given of the term a mari- 
 time contract: 
 
 Maritime contracts are such as relate to commerce and navi- 
 gation. (Young v. The Orpheus, 2 Cliff., 29). 
 
 The term is limited to contracts, claims, and services purely 
 maritime, and touching rights and duties appertaining to com- 
 merce and navigation. [The Jefferson, 20 How., 393). 
 
 To be a maritime contract it is not enough that the subject 
 matter of it, the consideration, the service is to be done on the 
 sea, it must be in its nature maritime. It must relate to mari- 
 time affairs. It must have connection with the navigation of 
 the ship, with her equipment or preservation, or with the 
 maintenance or preservation of the crew, who are necessary to 
 the navigation and safety of the ship. Thus a carpenter, a 
 surgeon, a steward, though not strictly mariners, may all sue 
 in admiralty for their wages, as maritime contracts, because 
 they contribute in their several ways to the preservation and 
 support of the vessel and her crew. The i^armer, Gilpin, 531. 
 
 It is better to give examples of what are maritime contracts. 
 The term has been greatly enlarged in this country, and many 
 contracts are included in it, which in England would be ex- 
 cluded. 
 
 1. Mariners' wages are'all subjects of maritime contract, and 
 of high rank. Ships are built for the purpose of voyaging, 
 not to lie in port. Whatever contributes to this purpose is 
 encouraged, and seamen and others whose services are neces- 
 sary to subserve this purpose are objects of care to admiralty 
 courts. Indeed, they are the wards of admiralty. The court 
 is always open to listen to and adjudicate their claims, to arbi- 
 
85 
 
 trate all disputes between them and the master, and the own- 
 ers of the ship, and to protect them from fraud and oppression 
 of all kinds, and from any quarter. Seamen and men of their 
 class have a lien on the ship for their wages. But the master 
 has not in this country, although many other maritime nations 
 give such lien to him. The Orleans v. Phoebus, 11 Peters, 175. 
 
 2. Contracts of affreightment and of carriage of passengers. 
 This is the purpose for which vessels are built and used, and 
 it also is protected in admiralty. Contracts of affreightment 
 are either by charter party or bills of lading. A charter 
 party is an instrument whereby the owner of a vessel hires 
 the vessel to another, who is called the charterer. Sometimes 
 the whole vessel is hired, so that the charterer becomes the 
 owner pro hac vice, engages and pays the crew, furnishes 
 all supplies, pays all expenses. At other times only the 
 freight room in the vessel is hired, the owner retaining pos- 
 session and control of the vessel, and having thus a right to 
 retain cargo until the money for the hiring has been paid. 
 
 A bill of lading is used where the owner of the property 
 shipped is neither the owner nor cliarterer of the vessel. It 
 is evidence of the receipt of the goods shipped, and contains 
 the contract on which they are carried and to whom they are 
 to be delivered. As you well know the contract of a common 
 carrier at common law, and ships and vessels are almost al- 
 ways common carriers, is that of an insurer. He is liable for 
 all casualties "not the acts of God or the king's enemies." 
 The liability, however, may be modified by the contract of 
 carriage in the bill of lading. In England this can be car- 
 ried so far as to excuse the carrier from the negligence of his 
 servants, even the negligence of himself. 
 
 In this country and in the Federal courts, certainly, no com- 
 mon carrier can by any contract exempt himself from liability 
 for the negligence of himself or of his servants, although he 
 can modify it in almost every other respect. New York Gen- 
 
86 
 
 tral Railroad Company v. Lockwood, 17 Wallace, 357 ; Invian 
 V. So^lth Carolina Railroad Company, 129 U. S., 128; Grand 
 T'lunk Railway v. Stevens, 95 U. S., 655; The Montana, 129 
 U. S, 397. 
 
 By ail act of Congress no owner of a vessel carrying goods 
 is responsible for destruction of cargo, or any of it, by fire not 
 caused by the design or neglect of the owner. Section 4182, 
 Revised Statutes. 
 
 3. Marine policies of insurance are maritime contracts. 
 Insurance Company v. Dunham, 11 Wallace, 1. 
 
 4. Bottomry and respondentia bonds are also. Bottomry 
 bonds are so called because they create a lien on the vessel 
 herself. They are bonds executed by the master or owners to 
 pay expenses of repairs and new equipment absolutely neces- 
 sary for a vessel, which has met on her voyage with disaster 
 and has been compelled to seek refuge in some port of safety. 
 Delaivare Mutual Safety Company v. Gassier, 96 U. S., 645 ; 
 The Grapeshot, 7 Wall., 563. These bonds constitute u claim 
 on the vessel contingent on her safe arrival in port. 
 
 Respondentia bonds are similar to bottomry bonds in this. 
 They can only be given in a matter of extreme necessity to 
 pay for such repairs and equipment, and they cover the cargo, 
 and not the ship. Maritime law clothes the master with this 
 power. It rests on the assumption that ship and cargo are 
 both interested in one common purpose, and that is in reach- 
 ing the port of destination. To this end they should contri- 
 bute when it becomes absolutely necessary. Thomas Y. Osborn, 
 19 How., 22. The master in control of the ship and in charge 
 of the cargo represents the owners of both. In an emergency 
 of the kind described he acts as their agent. Thomas v. Os- 
 born, 19 How., 22; The Julia Blake, 107 U. S., 418. But if it 
 appears that in the port to which the vessel has gone there can 
 be obtained another vessel which could carry the cargo for- 
 ward, and if it be for the interest of the owner of the cargo to- 
 
do this, instead of waiting for the repair of the vessel, then the 
 master has no right to execute a bond on the cargo without 
 express consent of the owner. The Julia Blake. 
 
 This rule originated at a, time when steam and the tele- 
 graph were unknown ; when ships sailed on distant voyages 
 into remote countries, and owners of vessel and the cargo 
 could not be consulted when emergencies arose, so masters of 
 ships had great powers. 
 
 5. Somewhat similar in principle to this is the relief afforded 
 in admiralty in cases of jettison and general average. A jet- 
 tison occurs when it becomes necessary in order to save a ves- 
 sel in storm, hurricane or any threatened marine disaster to 
 lighten her by throwing overboard any part of her cargo or 
 equipment. This is done for the benefit of the vessel and of 
 all her cargo, and the owner of the property jettisoned has the 
 right to call upon the owners of the property saved by the 
 jettison to contribute to the loss incurred for the common 
 safety. This is analagous to the implied assumpsit ex equo et 
 bono. 
 
 General average is the mode of enforcing the right which 
 the owners of the vessel have to call upon the owners of the 
 cargo, to assist them in paying for all expenses incurred by the 
 vessel in repairing disasters caused by acts of God and other 
 inevitable casualties, necessary to completion of the voyage. 
 Thus a vessel meeting with a severe gale in which she is dam- 
 aged, has to put into port and repair. This can be made the 
 subject of general contribution, technically called general aver- 
 age. Or she may be found afire and has to call in assistance 
 to put out the fire. The expense of this is subject to general 
 contribution. It proceeds upon the same general principle as 
 jettison, and agrees with the maxim " gm sentit commodum 
 sentire debet et onus." 
 
 You will find a full and excellent discussion and explana- 
 tion of what is general average in Rallie v. Troup, 157 U. S., 
 
88 
 
 380. That case quotes the language of Mr. Justice Grier with 
 approval in Barnard v. Adams, 10 Howard, 270, and which 
 with one addition is almost perfect in its explanation. 
 
 " In order to constitute a case of general average, three 
 things" (I think four things) "must concur." 
 
 1st. A common danger, a danger in which ship, cargo and 
 crew all participate ; a danger imminent and apparently inevi- 
 table, except by voluntarily incurring the loss of a portion of 
 the whole to save the remainder. 
 
 2nd. There must be a voluntary jettison or casting away of 
 some portion of the joint concern for the purpose of avoiding 
 this imminent peril or in other words, a transfer of the peril 
 from the whole to a particular portion of the whole. 
 
 3rd. This attempt to avoid the imminent peril must be suc- 
 cessful. 
 
 4th. Which I venture to add : 
 
 The sacrifice must be made under the direction of the own- 
 ers of the vessel and cargo or by the commanding officer (Mas- 
 ter or in his stead the Mate) of the vessel, acting as the agent 
 of vessel and cargo. 
 
 6th. Salvage in another subject of maritime jurisdiction. 
 
 Salvage is the reward for services voluntarily rendered by 
 persons under no legal obligation to do so, to property exposed 
 to marine disaster. It is very much favored in admiralty and 
 the compensation is measured not as a quantum meruit only, 
 but as a premium given by way of inducement for others in 
 like circumstances to do likewise. The books are full of cases 
 discussing this matter of salvage. 
 
 Mr. Justice Clifford, whose decisions on all questions of ad- 
 miralty law are of very high authority, lays down this propo- 
 sition in The Blackwall, 10 Wallace, 13. 
 
 Courts of admiralty usually consider the following circum- 
 stances as the main ingredients in determining the amount of 
 the salvage award. 
 
89 
 
 The labor expended by the salvors in rendering the salvage 
 service. 
 
 The promptitude, skill and energy displayed in rendering 
 the service and saving the property. 
 
 The value of the property employed by the salvors in ren- 
 dering the service and the danger to which such property is 
 exposed. 
 
 The risk incurred by the salvors in securing the property 
 from the impending peril. 
 
 The value of the property salved. 
 
 The degree of danger from which it was rescued. 
 
 When all of these elements concur the reward is very large. 
 It is graduated by the absence of one or more of tlie ingre- 
 dients. Judge Wallace of the 2nd circuit, expresses the law 
 in this way, in The Baker, 25 Fed. Rep., 774. Neither the 
 value of the property imperiled, nor the exact quantum of ser- 
 vice performed is a controlling consideration in determining 
 the compensation to be made for salvage services. The peril, 
 hardship, fatigue, anxiety and responsibility encountered by 
 the salvors in the particular case, the skill and energy exer- 
 cised by them, the gallantrj'', promptitude and zeal displayed 
 are all to be considered and the salvors are to be allowed such 
 generous recompence, as will encourage and stimulate similar 
 service in others." 
 
 Mr. Justice Bradley, in a celebrated and oft quoted case. 
 The Suliote, 5 Federal Reports, 99, uses this language : 
 
 "Salvage should be regarded in the light of compensation 
 and reward and not in the light of prize. The latter is more 
 like the gift of fortune conferred without regard to the loss or 
 suffering of the owner who is a public enemy. Salvage is the 
 reward granted for saving property of the unfortunate and 
 should not exceed what is necessary to insure the most prompt, 
 energetic and daring effort of those who have it in their power 
 to furnish aid and succor. Anything beyond this would be 
 
90 
 
 foreign to the principles and purposes of salvage. Anything 
 short of this would not secure its object. The court should be 
 liberal but not extravagant, otherwise that which is intended 
 to be an encouragement to rescue property from destruction, 
 may become a temptation to subject it to peril. 
 
 It is not necessary that there should be a contract in ad- 
 vance to render salvage services. Indeed most frequently there 
 is no contract. But the existence of a contract entered into 
 without compulsion or duress, will not affect the service, only 
 the courts exercise an equitable jurisdiction with respect to 
 such an agreement and will set it aside if inequitable in its 
 origin. 
 
 You will see an excellent case on this subject in The Waverly, 
 3 Law Reports, (Eng.) Admry. & Eccl., 378. 
 
 The salvor is entitled to hold possession of the property 
 saved until he has been compensated. But favored as he is in 
 admiralty, his own conduct is observed and if he be guilty of 
 fraud, dishonesty or other impropriety, he will forfeit his award 
 in whole or in part. The Bello Corrunls, 6 Wheat., 152 ; House- 
 man V. The North Carolina, 15 Peters, 40. 
 
 7. Courts of admiralty also take jurisdiction over contracts 
 for the ransom of a vessel captured. 
 
 8. And over surveys of her to ascertain her actual condi- 
 tion. So as to determine whether she can complete her voyage 
 or not. 
 
 9 and 10. And also they entertain suits by owners of vessels 
 unlawfully deprived of their possession by co-owners, called 
 possessory actions, and suits to try the title to vessels, called 
 petitory actions. Possessory actions are peculiar. Most 
 frequently a vessel is owned by several parties, each owning a 
 fraction in her. These ownerships are entirel}' distinct and 
 have none of the elements of partnership. Now vessels must 
 be going on voyages. They are meant for this Not be tied 
 up at piers or to lie at anchor. If owners do not agree as to 
 
91 
 
 what voyage the vessel shall go on, courts of admiralty adjust 
 the dispute. The majority in interest are allowed to prevail, but 
 they must give the minority security for the return of the vessel 
 in good order and condition. If, however, the dispute be whether 
 the vessel be employed or not, and the majority do not wish 
 her to be employed, the court will allow the minority to employ 
 her on giving similar security. The Orleans v. Phoebus, 11 
 Peters, 175. In either of these cases the owners employing 
 the vessel alone get the profits of the adventure. 
 
 There is a class of contracts partaking of a maritime character, 
 but not under maritime law, nor protected by the maritime 
 lien. These are contracts under which supplies, materials, 
 repairs, and labor are furnished to a vessel in her home port ; 
 that is to say, the port in which she is registered, in which her 
 owners reside, from which she hails. The persons who furnish 
 these supplies, materials, repairs, and labor are known as ma- 
 terial men. The material men who deal with foreign ships 
 have by the law maritime a lien on the ship and all her furni- 
 ture for the materials, supplies, labor, and repairs furnished 
 her. The reason for this is plain. As we have seen the pur- 
 pose of ships is to make voyages, and the maritime law gives 
 every inducement to aid in this purpose. When a foreign 
 vessel enters a foreign port in need of materials, supplies, and 
 repairs, or any of these, she would not be able to obtain credit 
 in the names of her owners, because there is no way of ascer- 
 taining, with any degree of certainty, who are the owners ; 
 and if there were, whether they are responsible or not; and 
 even if they were responsible, still persons would hesitate to 
 credit them, as there would be no way of enforcing the demand. 
 The master also is a stranger, and he can scarcely hope for 
 credit. To meet this constantly occurring necessity, the mari- 
 time law treats the foreign vessel herself as the contracting 
 party, and makes her liable for any debt incurred for these 
 necessary purposes. The Kalorama, 10 Wall., 204. Unless it 
 
92 
 
 can be showu that the credit was given wholly to the owners, 
 or to the master. The burden of proof of this is on the ship. 
 Insurance Company v. Baring, 20 Wall., 159. Her liability is 
 secured by the maritime lien, and will be enforced in admi- 
 ralty. But the same reason does not exist in the case of a 
 domestic vessel in her home port, where her owners or her 
 master are well known, and the reason ceasing, the rule also 
 ceases. 
 
 There is no maritime lien for material men in a home port. 
 But, to promote commerce, nearly all of the States which have 
 harbors or ports, or own shipping, have enacted laws which, 
 under certain prescribed conditions, give to material men in 
 home ports a lien on the vessel, similar in kind to the lien 
 given by maritime law on foreign vessels. These domestic 
 liens do not rest for their sanction on the law maritime, and 
 are therefore not maritime liens. But as proceedings in rem 
 are exclusively cognizant in admiralty, and these domestic 
 liens cannot be enforced except by proceedings in rem, and as 
 a necessary result, their enforcement would lead to a marshall- 
 ing of liens, the Supreme Court of the United States, in its 
 decisions and by a formal rule, permit the district courts to take 
 jurisdiction in such cases, and to enforce the domestic liens. 
 (Meyer v. Tupper, 1 Black, 572). You will see this whole 
 matter discussed and fully explained in the J. Rumbell, 148 
 U. S. p. 1. The reason for this aid to these domestic liens by 
 admiralty is the close resemblance they bear to the maritime 
 lien for the same subject matter. 
 
 But admiralty has no jurisdiction to enforce a mortgage of a 
 vessel, as this is not a maritime contract, and does not create 
 a maritime lien. Bogart v. The John Jay, 17 How., 399. The 
 most that the court will do in these cases is to permit a mort- 
 gagee to intervene by petition in a cause in which a vessel is 
 ordered to be sold, and if there be any surplus proceeds, after 
 paying all maritime and their domestic liens of material men. 
 
93 
 
 this surplus will be paid to the mortgagee, just as had there- 
 been no mortgage, the surplus would have been paid to the 
 owner. 
 
 Nor has admiralty any jurisdiction over a contract .made on 
 land, to be performed on the land, such as building a ship or 
 vessel. The Ferry Co. v. 5iers, 20 Howard, 393. Nor has it 
 had jurisdiction in rem for injuries to a structure on the land, 
 although such injury was caused by a vessel afloat, such as col- 
 lision with a pier or bridge by vessel. She cannot be held 
 liable in rem. The John C. Sweeney, 55 Fed. Rep., 541. 
 
 Maritime liens have priority over any mortgage. 
 
 The invariable incident of every maritime contract is that it 
 has a maritime lien on the vessel, a lien enforcible in admi- 
 alty, and enforcible nowhere else. Edwards v. Elliott, 21 Wall, 
 532. What maritime liens are and the mode of enforcing 
 them will be discussed hereafter. 
 
 When next we meet we will inquire into another branch of 
 admiralt}' jurisdiction — that one, marine torts. 
 
 V. 
 
 We have examined into marine contracts one subject of 
 admiralty jurisdiction. This evening we will see what are 
 marine torts. 
 
 The other source of jurisdiction of courts of admiralty as 
 instance courts is marine torts. This jurisdiction depends on 
 the locality in which the tort was committed; that is to say, 
 on navigable waters and so within the admiralty jurisdiction. 
 This jurisdiction over torts committed on navigable waters ap- 
 plies to all kinds of torts, committed anywhere, where the ju- 
 risdiction of admiralty exists. It embraces aill injuries to per- 
 son or property from assault and battery to collision between 
 ships, and acts of spoliation by armed vessels. 
 
 The remedy can in any case be sought by proceedings 
 against the person committing the tort, in what is known as 
 
94 
 
 an action in personam, which will be spoken of hereafter. But 
 in addition to this remedy against the person and property of 
 the wrong-doer, the maritime law gives to some torts the as- 
 sistance of the maritime lien. The proceeding is not against 
 the wrong-doer, or the master, or the owner, but against the 
 vessel herself, treated as an entity or a person. If a person is 
 injured in person or property by the negligence of those con- 
 trolling a vessel, he has a remedy in admiraltj^, against the 
 vessel herself, which is protected by the maritime lien. The 
 admiralty courts go farther. You are familiar with that en- 
 croachment made on the common law by what is known as 
 Lord Cam])beirs act, the provisions of which are adopted in 
 nearly ever}' State of the Union. 
 
 At common law a personal action dies with the person and 
 therefore when one receives an injury to his person at the 
 hands of another and dies after or from it, no right of action 
 survives. Under Lord Campbell's act and those acts adojited 
 in this country following it, if one receives an injury for which 
 he could have brought an action had he lived, and dies from 
 it, his personal representative can bring an action against the 
 wrong-doer for the death resulting from this injury and dam- 
 ages can be recovered for the benefit of those dependent on the 
 deceased person. Admiralty will enforce this remedy bj' pro- 
 ceedings, if the law of the State in which the suit is brought 
 gives a similar remedy in its courts. If the State statutes in 
 addition to the right of action, give also a lien, then a mari- 
 time lien is also given in admiralty and the suit can be against 
 the vessel, on or by which the loss of life was occasioned. But 
 if the State statute give only a personal remedy, then only the 
 persons causing the act or whose negligence caused the act, 
 can be sued in admiralty m personam. The Corsair, 145 U. 
 S., 335. 
 
 There is a class of maritime torts against w^hich the Con- 
 gress and the courts have adopted the most careful precautions 
 
95 
 
 and for which the most complete remedy is provided. More 
 than this, it is a matter of international concern. These are 
 collisions between vessels on the high seas and in navigable 
 waters. All the great commercial nations of the world have 
 adopted an International Code of Regulations, binding upon 
 all of them, which are intended to prevent the risk of collision. 
 You will note the phraseology, not to prevent collision, but to 
 prevent the risk of collision. This code provides in every 
 minute detail for every possible risk of collision, by day or 
 night, in fair weather or in fog, and clearly instructs as t'j the 
 mode of avoiding such risk by the use of flag signals and 
 sound of whistles or horns by day, and of lights, whistles and 
 horns by night. The international regulations now in force, 
 you will find in the Revised Statutes of the United States, sec- 
 tion 3233. A revised and enlarged code has been prepared 
 and is under consideration of the Great Powers. It has been 
 assented to by this country and can be found in Supplement 
 to the Revised Statutes of the United States, Vol. I, page 781, 
 26 Statutes at Large, 820. It will not go into operation until 
 the President issues his proclamation. This awaits the action 
 of the other powers. 
 
 Besides this there are codes adopted by the United States 
 alone or under its authority for bays, harbors, rivers and lakes 
 in the United States. The necessity for these codes in the nar- 
 row channels and water ways and in the broader rivers and 
 harbors frequented by water craft is obvious. 
 
 But wide and apparently limitless as the oceans are, the 
 path vessels take in traversing them is comparatively narrow. 
 The course of currents, the prevalence of winds, the effort to 
 save time and distance cause this. For example, all vessels 
 going from this country to Europe, with few exceptions, seek 
 the parallel of latitude as far north as is consistent with 
 safety and on that complete the voyage. In their passages, 
 fogs are constantly met with, the course is by night as well 
 
96 
 
 as day. Tlie dangers of collision are constant, unexpected 
 and sudden. The utniost vigilance is required on the part of 
 all navigators. The most strict compliance with the rules of 
 navigation is commanded. Obedience to them is enforced in 
 heavy damages for collisions arising from their non-observ- 
 ance. Non-observance raises the presumption of negligence. 
 When a collision takes place, the vessel iu fault is held bound 
 to restore the other vessel ad integrum. Williamson v. Barrett, 
 13 Ho«-., 110. If both are in fault, both are punished by the 
 apportionment of the damage. 17 How., The Schooner Cathe- 
 rine. This damage is secured by a lien on the vessel. If the 
 fault be inscrutable there is no division of damages. The 
 Alhamhra, The Grace Girdler, 7 Wall., 196 ; 33 Federal Re- 
 ports, 77. 
 
 Judge Curtis, in the lectures to which your attention has 
 already been invited, mentions other torts, damages for which 
 are protected by maritime lien. One of these is spoliation by 
 force on the high seas or navigable waters of the United States. 
 These may be either by pirates or armed vessels, not author- 
 ized by any recognized power, or by the master and crew or a 
 part of a crew of a vessel, not a pirate, but on some particular 
 occasion, committing the act of spoliation, or they may be 
 committed by some vessel duly commissioned by the United 
 States. In all these cases the admiralty court has jurisdiction 
 to make restitution of the things seized and to award damages- 
 for the seizure. The court can also interfere in cases of spolia- 
 tion by foreign ships, if it take place within our waters ;. 
 that is to say, within one league of the shore of the United 
 States or between any of the headlands on the coast, or inter 
 fauces terrx. Soult v. L'Africane, Bee, Admiralty Reports, 
 207, Federal Cases, section 13179. The Hungaria, 41 Federal 
 Report., 109. 
 
 The courts can also take jurisdiction of a breach of our neu- 
 trality laws by any foreign vessel. 
 
97 
 
 So also all revenue seizures made on navigable waters are 
 within the jurisdiction of courts of admiralty. 
 
 The jurisdiction of courts of admiralty has no other limit 
 than that stated. Contracts must be maritime and torts must 
 have been committed on navigable waters. The provision in 
 the act of 1888, that no civil suit can be brought in any cir- 
 cuit or district court against any person in any other district 
 than that whereof he is an inhabitant, has no application to suits 
 in admiralty. One can be sued in personam wherever he can be 
 served with process. {Re Louisville Underwriters, 134 U. S., 
 488). 
 
 Nor does the jurisdiction depend on citizenship. The court 
 can in its discretion take jurisdiction over suits maritime be- 
 tween aliens. They may decline to do so. The Maggie Ham- 
 mond, 9 AValL, 435. 
 
 They have jurisdiction over collisions on the high seas be- 
 tween vessels of different nationalities. The Belgenland, 114 U. 
 a, 355. 
 
 They can entertain, all suits by seamen for their wages 
 against a vessel, whether foreign or American, and will apply 
 to such cases the laws of the country under whose flag the vessel 
 sails. The Olga, 32 Federal Reports, 329. The Velox, 21 
 Federal Reports, 479. 
 
 Now all maritime contracts and these maritime torts of col- 
 lision, spoliation and the like are secured in admiralty by the 
 maritime lien. 
 
 This term lien has a different signification at common law, 
 in equity and in admiralty. 
 
 At common law there can be no lien without possession. 
 It is there defined a right in one man to retain that which is 
 in his possession belonging to another until certain demands 
 of him, the person in possession, are satisfied. An innkeeper 
 has such a lien on the baggage of his guest. A common car- 
 rier on the goods carried. In courts of equity the term lien 
 7 
 
98 
 
 is used as synonymous with a charge or encumbrance on a thing 
 where there is neither jus in re or ad rem nor possession of the 
 thing. A judgment at law is such a lien. In maritime law 
 liens exist independently of possession, actual or construc- 
 tive. Peck V. Jenness, 7 Howard, 612. 
 
 The maritime lien is thus defined by Henry in his work on 
 Admiralty Jurisprudence and Procedure, section 41. 
 
 " It is a right or privilege in the vessel to be carried into 
 effect by legal process. Whenever a lien or claim is given on 
 a thing by the maritime law the admiralty will enforce it by 
 its process in rem, and it is the only court competent to do 
 this. It is much more than a right lo sue; it is a jus in re a 
 right in the thing itself, without actual possession or any right 
 of possession, and can be executed and divested only by a 
 process in rem, and is treated as a proprietary right. It in- 
 heres in the thing itself, the vessel, accompanies it into the 
 hands of a purchaser even without notice, is not destroyed or 
 impaired by forfeiture of the vessel for a violation of the 
 municipal law prior to the attaching of the lien, although 
 such law may forfeit the interest of the owners in the vessel, 
 and the lien is not lost by a sheriff's sale under a judgment 
 against the owner of the lien accrued." 
 
 But it may be lost if rights of other parties have intervened. 
 
 It is a secret lien, and notwithstanding this is carefully 
 protected. 
 
 The lien arises, as has been seen, out of contracts, services 
 and supplies, and from torts. It has a peculiarity which dis- 
 tinguishes it from liens in any other jurisdiction. It is sub- 
 ject to all subsequently occurring liens, whether growing out 
 of supplies furnished or services rendered to preserve the pro- 
 perty, or for the redress of wrongs inflicted on the property of 
 others by the res in which the creditor has an interest. The 
 rule existing in courts of common law and of equity, qui 
 prior est in tempore potior est in jure, does not govern in admi- 
 
99 
 
 ralty cases. It is often the reverse. " The last shall be first, 
 and the first last." Thus in cases of salvage, and of repairs 
 and supplies, the last liability in point of time is first in point 
 of merit as having served to preserve the very subject which 
 supplies the lien for all. ( The Guiding Star, 18 Fed. Rep., 
 267). This illustrates the broad equity of admiralty. A ves- 
 sel leaves port on her voyage, certain contracts for supplies 
 being unpaid, secured, however, by this lien which the law 
 gives, the maritime lien. On her voyage she meets with dis- 
 aster, and to complete the voyage puts into port for repairs, 
 which are made. The claim for these repairs has precedence 
 over the older lien, for without these the vessel, the subject of 
 both liens, could never return to the port from which her 
 voyage began, and the lien could not be enforced. This 
 maritime lien can be enforced only in courts of admiralty 
 {Moran v. Sturges, 154 U. S., 257) by what are called pro- 
 ceedings in rem. 
 
 We have seen that courts of admiralty are prize courts and 
 instance courts. The name indicates what prize courts are. 
 Instance courts entertain jurisdiction of cases purely civil. 
 
 There are two classes of cases in the instance courts of 
 admiralty, proceedings m personam, when the claim is made 
 against one or more individuals, and success in which would 
 result in a personal decree, exactly like a judgment at law on 
 a note or an account, and proceedings in rem. Proceedings in 
 rem are against the thing, the vessel itself, which in admiralty, 
 is always treated as if it were a person, and the institution of 
 the proceedings puts into operation the lien. Frequently one 
 or other of the two proceedings can be used to secure the same 
 demand. Thus if one ships goods by a vessel, under a con- 
 tract of affreightment, to be carried from one port to another, 
 and the goods be not delivered, he can sue the owners of the 
 vessel in personam in admiralty on the contract, and if he 
 recover, can enter his decree and issue execution against their 
 
100 
 
 property generally. Or he may institute proceedings against 
 the vessel in rem, and enforce his maritime lien on the vessel. 
 In such case the vessel is the only defendant. The process of 
 the court issues against her alone. The marshal takes her 
 into his possession, and if the party recover, he satisfies his 
 claim out of her. In all such cases notice is given by publi- 
 cation to all the world of the proceedings, which may result 
 in a sale of the res, and all claimants are called in to prove 
 their demands. To this end they intervene in the suit, and 
 the proceeds of sale are distributed according to the priority of 
 liens. This intervention is always made by a petition formu- 
 lated like a libel, setting forth the claim of the petitioner, 
 either to a superior or equal lien, or to an interest in the pro- 
 ceeds. As has been often said, however, vessels are built to 
 traverse from port to port, and not to lie idle. When, there- 
 fore, such proceedings in rem are instituted, and the vessel 
 taken into custody; those interested can put in bail for her, 
 called in admiralty a stipulation. This is a bond with surety in 
 such amount as the court thinks sufficient for the payment of 
 claims made against her. This bond, when approved and filed, 
 takes the place of the vessel, and she then goes free. 
 
 The procedure in admiralty is wholly different from that of 
 common law. It is derived entirely from the civil law ; in 
 form and substance it is governed by the practice and rules of 
 the civil law. 
 
 The first step is the libel. The libel fills the place of the 
 declaration or complaint at law and of the bill in equity. It 
 is addressed to the district judge. Opens with the introduc- 
 tion of the name of the complaining party, called always the 
 libelant, and states that his complaint is in a cause civil and 
 maritime, and that the thing proceeded against is within the 
 jurisdiction of the court, or if the suit be in personam, giving 
 the names, residence and occupations of the persons sued. 
 
 It then proceeds to state the facts of the case in plain, un- 
 
101 
 
 technical language, as tersely as is consistent with clearness. 
 In technical language, the libel " articulately propounds " the 
 facts of the case ; that is sets them forth in paragraphs, so pre- 
 senting them most clearly. The facts being stated the libel 
 asks for the particular relief desired, closes with the averment 
 that all the facts stated are true and ends with prayer for pro- 
 cess. See Rules in Admiralty, No. 23. If the libel is in per- 
 sonam; that is against one or more individuals seeking personal 
 relief against them, the libel prays a monition. A monition is 
 like a writ or summons at law, directed to the defendant and 
 telling him when and where he must answer the libel. It is 
 made returnable at an early day, and is issued upon filing the 
 libel, not before. If imprisonment for debt be notjabolished in 
 the State in which the libel is filed, (Revised Statutes, section 
 990), the libellant can also sue out an an attachment against 
 the person of the respondent, under which he can be arrested, 
 and held to bail. If he cannot be found his property can be 
 attached, to be released upon his appearance and entry into 
 bail. The bail is governed by the laws prevailing in the State 
 in which the libel is filed. 
 
 No attachment can issue unless the libel is sworn to, and if 
 the amount exceed $500 an order of the judge must be ob- 
 tained. (Rule 7, Supreme Court, Admiralty). 
 
 If the libel be in rem ; that is, as will be remembered, against 
 the vessel itself, then the libel prays a warrant of arrest di- 
 rected to the marshal to take possession of and hold the ves- 
 sel. To obtain this the libel must be verified by oath. No 
 warrant of arrest can issue until the libelant enters into secu- 
 rity for costs, except in the case of seaman's wages. Nor can 
 a libel in personam be filed without similar security. To the 
 libel may be attached such interrogatories as libelant may 
 wish the other side to answer. The libel must be signed by 
 counsel. The monition must be served by the marshal or his 
 deputy. When a warrant of arrest is issued the marshal 
 
102 
 
 takes the vessel into actual custody. The owner of the vessel, 
 or some one acting in his behalf, usually the master, if he 
 wishes to defend, enters an appearance and files his claim. 
 He then can stipulate ; that is to say, gives bond for the Vessel 
 if he wishes. If the claim be simple and comparatively small 
 the stipulation is double the value of the claim. This stipu- 
 lation takes the place of the vessel only for the purposes of 
 that suit. {The Haytien Republic, 154, U. S., 127). The 
 sureties cannot be made responsible beyond this. You will 
 find a full discussion on this point and authorities quoted in 
 The Oregon, 158 U. S., 205. But if the claim approximate 
 the value of the vessel, or if there are others threatened, then 
 the stipulation is for her value, ascertained by appraisement. 
 The bond or stipulation must be approved by the judge, or if 
 he be absent, by the collector of the port. The defendant in 
 suits in personam having been served, or the claimant in suit 
 in rem having come in and made claim, must file an answer 
 setting up the defence. If, however, he thinks the libel im- 
 perfect, he may except in writing thereto, setting forth his 
 objections. These are passed upon by the court, and if sus- 
 tained an order is entered directing that the libel be amended 
 in the particulars stated. If the answer be imperfect the libel- 
 ant can file his exceptions in like manner. The pleadings are 
 perfected in this way, and when complete the cause is at issue. 
 This right to amend exists up to the filing of the decree. 
 The cause is tried by a judge without a jury. Usually, and in 
 every case in which it can be done, the testimony is taken 
 before the judge. Conflict in testimony is met with in all 
 courts. It is the rule in admiralty. Scarcely any case, cer- 
 tainly no case of importance is tried in that court, in which 
 seamen are introduced as witnesses which does not abound in 
 contradictory evidence. Under such circumstances it is all 
 important that the judge who is to try the issues of fact 
 should see and observe the appearance, demeanor and mode 
 
103 
 
 of testifying on the part of witnesses. But if it be necessary 
 the cause can be referred to an examiner appointed to take 
 testimony and report it. In many cases the judge is at lib- 
 erty to confer with one or more experienced navigators who 
 can aid him in doubtful questions of navigation. 
 
 If the defendant in admiralty, technically known as respon- 
 dent in libels in personam and as claimants in libels in rem, 
 not only defends ; that is, denies the claim of libelant, but 
 also desires affirmative relief against him, he files his cross- 
 libel, setting up his case precisely as an original libelant. To 
 this the same right of exception lies as to the original libel, 
 and the pleadings are perfected in the same way. When per- 
 fected the libel and cross-libel are treated as one case and are 
 heard and tried together. 
 
 In speaking of proceedings in rem the word vessel has al- 
 ways been used as synonymous with res. Res means anything 
 the subject of the suit. It may mean the cargo, or any part 
 of the outfit of the vessel, or the whole vessel and her furni- 
 ture, or as libels express it, "tackle, apparel, furniture and 
 boats." The term "vessel" means anything that floats, from 
 a raft of logs up to a man-of-war of the first-class. The decree 
 is enforced by execution. 
 
 This division into suits in personam and suits in rem is al- 
 ways observed. Most frequently the suitor has his choice of 
 remedy. Thus in a suit for supplies and repairs or other ne- 
 cessity the libelant may proceed against the ship in rem, or 
 against the master or owner in personam. The master, an 
 agent, contracting in his own name is responsible. 
 
 Mariners may proceed for their wages against the ship and 
 her freight in rem and join the master in personam, or they 
 may proced in rem alone against the ship and her freight, or 
 they may proceed against the owner or the master alone mperso- 
 nam. 
 
 In suits for damages by collision, libelant may proceed 
 
104 
 
 against the ship in rem and the master or against the ship 
 alone in rem, or against the master or owner alone in personam. 
 
 Suits for assault and battery can be in personam only. 
 
 There is one matter appertaining to the jurisdiction and 
 practice of courts of admiralty which requires special attention. 
 And that is the liability of ship owners for the contracts and 
 torts made or committed by the master and crew, or any of 
 their agents. It must be always borne in mind that a grand 
 principle of admiralty is the encouragement and protection of 
 commerce and navigation. It is essential to the welfare of 
 mankind that commercial intercourse between nations should 
 exist. The intercourse is chiefly provided by shipping. So 
 great is the expense, so great is the risk, so frequent are casu- 
 alties to shipping, that men must be encouraged to risk their 
 property and lives in marine adventures. Therefore, very early 
 in maritime law, whilst the owner was rigidly held responsible 
 for the acts of the master and crew, both in matters of contract 
 and of tort in other courts, the maritime law modified the strin- 
 gency of the common law and of the civil law and made owners 
 of vessels liable only to the extent of their interest in the vessel, 
 if personally they were free from blame. If they surrendered 
 the vessel they were discharged from all further liability. 
 This interest, of course, extends to the ship and her earnings 
 which in maritime language is called freight. This rule is 
 laid down by Grotius, Valin, Pardessus in the French Ord- 
 nances de la Marine of 1681, in fact all the authorities on 
 maritime law. It has been imitated by statutes in England 
 and France, and by the legislatures of Maine and Massachu- 
 setts. In 1851 Congress passed a statute on the subject, (9 
 Statutes at Large, 635). It is embodied in the Revised Stat- 
 utes of the United States, section 4283, " The liability of the 
 owner of any vessel for any embezzlement, loss or destruction 
 by any person of any property, goods or merchandise, shipped 
 or put on board of such vessel or for any loss or damage or in- 
 
105 
 
 jur}' 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, shall in no case exceed 
 the amount of the interest of such owner in such vessel and 
 her freight then pending. 
 
 The language of this section is clear and unmistakable The 
 loss must occur without the privity — that is to say, without any 
 connection with the cause thereof by any act of commission or 
 omission and without the knowledge of the owner. The bene- 
 fit of the act is given to the owner of any vessel ; foreign ves- 
 sels are protected by it. The Scotland, 105 U. S., 24. And all 
 vessels navigating the high seas between ports in the same State. 
 Lord V. Goodall, 102 U. S., 541. It only relieves the owners to 
 the extent of their interest. It does not prevent an action against 
 the master or crew individually for the wrong suffered. You 
 will find able and full discussion of the law in The Rebecca 
 Ware's Rep., 187, also reported in the Federal Cases, section 
 11619, and in Norwich Co. v. Wright, 13 Wallace, 104. The 
 owners of a vessel can secure the limitation of liability provided 
 in the act, whether the action be brought in a State court or 
 in a Federal court, or before any action has been commenced 
 against them in any court. 
 
 The practice in such matters has been established by the 
 rules of the Supreme Court of the United States in admiralty. 
 Rules 54, 55, 56 and Amended Rule 57. It would be tedious 
 to recite these rules in full. In substance they provide that 
 the relief must be sought in a district court of the United States, 
 and nowhere else. The owner seeking the relief must file his 
 libel in the district court in which proceedings have been begun 
 against the ship or vessel to answer for the wrong complained 
 of. If the vessel has not been libeled, but suit has been be- 
 gun against the owners in any court — that is, any Federal 
 court — then the libel must be filed in the district court of the 
 district where that suit is brought. If no libel has been filed 
 
106 
 
 against the ship, and no suit brought against the owners, and 
 they only apprehend a suit or suit be threatened, (see ex "parte, 
 Slayton, 105 U. S., 451) then the libel must be filed in the dis- 
 trict court where the ship or vessel is. If she has been already 
 libeled and sold, then her proceeds represent her in all respects 
 under these rules. 
 
 The libel must state all the facts and circumstances upon 
 which such limitation of liability is claimed, and must aver dis- 
 tinctly the absence of all fault on the part of the owner, and 
 must state his interest in the vessel and the extent of it. It 
 must pray the benefit of the act. The court thereupon orders 
 an appraisement to be had under its direction by competent 
 persons of the value of the vessel and of her freight and of the 
 value of the interest therein of the libelant. And commands the 
 libelant to pay that amount into court, or else to give bond with 
 good surety for the payment of the amount, or, if the owners 
 so elect, the court will order the transfer of the whole of their 
 interest in the vessel and freight to a trustee, to be appointed by 
 the court, who shall hold for whom it may concern. When this 
 has been done the court issues a monition to all persons hold- 
 ing claims against such vessel for losses or wrongs, to come into 
 court and make proof thereof, on a day named, which, however, 
 must not be less than three months from the date of the publi- 
 cation of the notice. The court can also order such notice to 
 be further given by mail or personal service. Then an injunc- 
 tion issues against any further proceedings whatever, anywhere, 
 against suits againsts the owners for such loss or wrong. Prov- 
 idence & N. Y. Steam Navigation Co. v. Hill M'nf g. Co., 109 U. 
 S., 578. Any person claiming damages can answer the libel. 
 The owner, by instituting these proceedings, does not lose the 
 right of contesting his liability. An excellent case, full of the 
 law on these points, is in re Morrison, 147 U. S., 15. 
 
 Judge Brown, of the Southern District of New York, held in 
 The Rosa, 53 Federal Reports, 132, that where there is but a 
 
107 
 
 single damage claim full relief under Revised Statutes, Section 
 4283 can be had by answer in a common law suit. Hence a 
 proceeding in admiralty to limit liability and to restrain the 
 prosecution of a pending action in a common law court, must 
 show the existence or at least the probability of the existence 
 of more than one damage claimant and the need of an appor- 
 tionment in order to make the special proceeding in the Dis 
 trict Court of the United States, under the section necessary and 
 appropriate, or else it must show such a special case as does 
 not admit of the full statutory remedy upon a single claim in 
 the suit at common law. Failing such an averment the court 
 of admiralty can refuse to entertain the proceeding or to enjoin 
 the common law action in the State court on a single claim, 
 even if it exceed the value of the vessel. 
 
 This is the law I think. An owner of a vessel is not obliged 
 to go into the district court to protect himself under the united 
 limited liability act in a suit on a single claim. He can use the 
 act as a defence in the common law or in the admiralty court if 
 he chooses, and it will be allowed him. The Great Western, 118 
 U. S., 520 ; The Scotland, 105 U. S., 24. But where there are 
 several claimants, and it is clear that an apportionment pro 
 rata among the claims of the value of the vessel will be neces- 
 sary, then he must go into the district court. 
 
 One word more: Although a court of admiralty exercises 
 its jurisdiction and administers its remedies upon the prin- 
 ciples of equity it has none of the powers of a court of chan- 
 cery. It cannot give equitable relief by way of injunction. It 
 cannot compel the specific performance of a contract. It may 
 set aside a sale made in admiralty proceedings in case of fraud 
 or misconduct in the parties. It cannot take an account in 
 proceedings, either in personam or in rem between part owners 
 or their agents unless this arise incidentally in its own pro- 
 ceedings. It cannot review an award in a maritime cause 
 made before action brought. Nor can it enforce an equitable 
 
108 
 
 title in suits for possession nor enforce a trust. Henry's Ad- 
 miraltj', 310. 
 
 How far the statutes of limitation bind courts of admiralty- 
 is a question. They have no part in proceedings in rem ; 
 although the courts will adopt the principle that one may de- 
 prive himself of a right by laches or by unreasonable delay in 
 enforcing it. {The Key City, 14: Wall., 65S). There are many 
 actions in personam in which the jurisdiction of admiralty and 
 of the common law courts is concurrent ; that is the party 
 seeking relief could go into either court. It was contended 
 that in such cases the party plaintiff was barred in admiralty 
 if he would have been barred in the law court of the State in 
 which the court was sitting. The Supreme Court although 
 the question was made did not decide it. Reed v. Insurance 
 Co., 95 U. S., 23. In the lower courts generally the statute has 
 been held not to bind the court. (See cases quoted in Henry's 
 Admiralty, 314, Note 1). 
 
 THE COURT OF CLAIMS. 
 
 Necessarily in the numerous and multifarious operations of 
 the General Government claims beyond number are con- 
 stantly arising against it. As the sovereign is not suable 
 without his consent, these claims were presented to Congress, 
 and the calendar of private claims increased to such an ex- 
 tent that it could not be disposed of. As a relief to Congress 
 the Court of Claims was established, first by the act of 1855, 
 24th February, 10 Statutes at Large, 612. This act and all 
 amendments thereto were brought together in the Revised 
 Statutes of the United States, sections 1059 et seq. Under 
 their provisions a certain class of claims can now be recovered 
 by suit against the United States in this court. Of these sec- 
 tion 1068 gives to aliens who are citizens or subjects of any 
 government which accords to citizens of the United States the 
 right to prosecute claims against such government in its 
 
109 
 
 courts the privilege of prosecuting suits against the United 
 States in the Court of Claims, whereof such court, by reason 
 of their subject matter and character, might take jurisdiction. 
 
 In 1887, 24 Statutes at Large, 505, Congress passed an act 
 fixing the jurisdiction of the Court of Claims as it now exists. 
 First. All claims founded upon the Constitution of the United 
 States, or of any law of Congress, except for pensions. 
 
 Or upon any regulation of an executive department, or 
 upon any contract, expressed or implied, with the Govern- 
 ment of the United States. 
 
 Or for damages, liquidated or unliquidated, in cases not 
 sounding in tort. 
 
 In respect of which claims the party would be entitled to 
 redress in a court of law, equity or admiralty, if the United 
 States were suable. 
 
 Then comes an exception of claims growing out of the late 
 civil war, known as war claims. Over these the court has no 
 jurisdiction. Nor can it hear again any case heretofore, that 
 is, before the passage of that act, (18S7) rejected or reported 
 upon adversely by any court, department or commission 
 authorized to hear and determine the same. 
 
 Second. The court has jurisdiction in behalf of the United 
 States of all set-ofifs, counter claims, claims for damages, 
 whether liquidated or unliquidated, or other demands what- 
 soever on the part of the Government of the United States 
 against any claimant against the Government in that court. 
 
 Inasmuch as the United States is not suable but by its own 
 consent, the Court of Claims has no other jurisdiction than 
 that given by act of Congress. United Slates v. Gleason, 124 
 U. S., 255 ; De Groot v. The United States, 5 Wall., 419. 
 
 It has no jurisdiction founded on torts. Gibbons v. The 
 United States, 8 Wall., 269. If land be taken for public pur- 
 poses and the owner resists, he cannot sue for compensation 
 in the Court of Claims ; if he does not resist he may sue. 
 Uz parte Schillenger, J 55 U. S., 165. 
 
110 
 
 Thus the court has no jurisdiction to try cases growing out 
 of the appropriation of property by the army or navy not 
 authorized by contract. 
 
 A good illustration of this is found in Pugh v. The United 
 States, 13 Wallace, 633. In that case a suit was brought 
 against the United States in this court for unlawful appropria- 
 tion of property, and among the items was rent of a plantation 
 which had been taken possession of during the war by a 
 treasury agent, and by him leased to third parties. This was 
 done under act of Congress relating to captured and aban- 
 doned property. The court held that it had no jurisdiction to 
 consider the other items of the account, which were for pro- 
 perty unlawfully taken and destroyed. And that the leasing 
 of the plantation was but an incident to the unlawful appro- 
 priation and spoliation of the plantation ; and, therefore, 
 though set up as a contract, really sounded in tort, and, there- 
 fore, was not within its jurisdiction. 
 
 The court has no jurisdiction over a cause of action against 
 the United States, which grows out of or is dependent on a treaty 
 stipulation. {Great Western Insurance Co. v. The United States, 
 112 U. S., 193; Paulson v. The United States, 112 U. S., 193.) 
 For example, the court has no jurisdiction of a claim against 
 the United States for money received from Mexico under the 
 treaty of 4th July, 1 868, it being a claim growing out of and 
 founded on a treaty. {Ailing v. The United States, 114 U. S., 
 562). But there must be direct connection between a treatj'' 
 and the claim against the United States in order to exclude it 
 from the jurisdiction of this court. ( United States v. Wild, 127 
 U. S., 51). 
 
 The United States can make use of any patent it may deem 
 necessary for public purposes, in the exercise of its right of 
 eminent domain. You will find this fully discussed in a case 
 of Dashiell v. Grosvenor, 66 Fed. Rep., 334, a case in the Cir- 
 cuit Court of Appeals of this circuit. Compensation for such 
 
Ill 
 
 use can be obtained in the court of claims. United States v. 
 Palmer, 128 U. S., 262. 
 
 No claim can be entertained by the court not brought within 
 six years after the accrual of the right for which the claim is 
 made. There is no limit to the jurisdiction of the court of 
 claims as to the amount. The Circuit Court of the United 
 States has concurrent jurisdiction with it as to claims between 
 $1,000 and $10,000. The district court has concurrent juris- 
 diction on claims below $1,000. 
 
 In addition to jurisdiction of claims against the United 
 States, the act of Congress gives a remedy to persons indebted 
 to the United States. Any one indebted to the United 
 States as an officer or agent thereof or under any con- 
 tract therewith, or who is the guarantee, surety or per- 
 sonal representative of any officer, agent, or contractor 
 so indebted to the United States, who has applied to the 
 proper department of the government, requesting that the ac- 
 count of such officer, agent, or contractor may be adjusted and 
 settled, and has not been able to obtain such adjustment within 
 three years from the date of his application, can file his petition 
 in the court of claims, setting forth all these facts, and that no 
 suit has been brought on such indebtedness. Thereupon the 
 court will entertain the petition, and after due notice to the 
 head of the department and to the Attorney-General of the 
 United States, will hear the cause and adjust the claim. If the 
 petitioner pay the sum fixed in such cause, he will be dis- 
 charged. If he does not so pay the sum found due, suit can 
 be brought on the judgment by the United States against all 
 parties indebted at any time within three years from rendi- 
 tion of the judgment. After that date it will be barred. So 
 also if any claim be presented to the head of a department and 
 on examination it be found to present controverted questions 
 of fact or law, the head of such department, with the consent 
 of the claimant, may submit these questions to the court of 
 
112 
 
 claims for final adjudication. Judgment for costs can be 
 against the United States, for all costs but for attorneys. 
 
 The pleadings in this court are by petition, and defences 
 thereto, by way of answer. The cause is heard by express 
 provision of the act without a jury — by the court alone. This 
 provision of the act is not affected by the clause in the Consti- 
 tution securing the right of trial by jury in a case at common 
 law. The right to sue the government depends entirely upon 
 the statute, and has no existence at common law. The decision 
 is subject to review by the Supreme Court of the United States, 
 and as far as the reported cases show, they go up by appeal 
 and not by writ of error. Six months is allowed to the attor- 
 ney-general of the United States to determine whether he will 
 appeal or not. The petition, in fact, all the pleadings with re- 
 gard to their sufficiency and the incidents of trial, rules of evi- 
 dence and the like, are governed by the rules prevailing in the 
 other courts. 
 
 The final result of each case, if adverse to the government, 
 must be reported to Congress by the attorney-general at the 
 beginning of each session, so that Congress may take such ac- 
 tion thereon as may be advised. 
 
 The sessions of the court are all held at the seat of govern- 
 ment in Washington. Its decisions are oQicially reported as 
 Court of Claims Reports, and are frequently quoted as persua- 
 sive, but not as conclusive, authority. 
 
 TERRITORIAL COURTS. 
 
 These are not, strictly speaking, courts of the United States 
 within the meaning of the Constitution. ( Qood v. Martin, 95 U. 
 S., at page 98 ; Reynolds v. The United States, 98 U. S., at page 
 154.) 
 
 They are not constitutional, but legislative courts, combining 
 the powers of both Federal and State jurisdiction. The dis- 
 tinction between Federal and State jurisdiction does not exist 
 
113 
 
 in them, either as to persons or as to subjects committed to 
 their cognizance. Forsythe v. The United States, 9 Howard, 235- 
 One distinction is noteworthy. Admiralty jurisdiction in the 
 States can only be exercised in the courts established under the 
 Article III. of the Constitution, but Congress can bestow ad- 
 miralty jurisdiction on the Territorial courts, notably the Ter- 
 ritory of Florida and the Territory of Washington. American 
 Ins. Co. V. Canter, 1 Peters, 511 ; City of Panama v. Phelps, 101 
 U. S., 453. 
 
 Another distinction exists between these Territorial courts 
 and the Circuit and District Courts of the United States. As 
 has been seen, law and equity are kept totally distinct in the 
 United States courts. The procedure in them is entirely differ- 
 ent. 
 
 Practice, pleadings, form and mode of procedure in the Ter- 
 ritorial courts are governed entirely by the acts of the Territo- 
 rial Legislature, and causes of action and forms of procedure 
 can be blended by these acts. (Hirshfield v. Toombs, 18 Wal- 
 lace, 648.) Although this is so, the essential difference exist- 
 ing between the principles governing law and equity are not 
 changed. The forms of action may be the same, but law cases 
 must be passed upon by a jury, unless the jury be expressly 
 waived. Equity cases can be passed upon by the court alone. 
 Basy v. Gallagher, 20 Wallace, 670. 
 
 As the Territories of the United States are all organized in 
 order to prepare them for exercising the rights of Statehood 
 when Congress shall so order, the Territorial courts necessarily 
 are not of a permanent character. The judges for these courts, 
 therefore, do not hold during good behavior, as judges in Con- 
 stitutional Courts of the United States, but are appointed for 
 four years and until their successors are appointed. Though 
 technically not removable at the pleasure of the President, any 
 of them can be suspended by him, and if the Senate confirms 
 another person as such judge, the suspension is permanent. Mc- 
 
114 
 
 Allister v. The United States, 141 U. S., 174; Wingard v. The 
 United States, 141 U. S., 201. 
 
 The Supreme Court of every Territory consists of a Chief 
 Justice and two associate justices, any two of whom are a 
 quorum and can hear and decide cases and transact business. 
 Each Territory is divided into three districts, over each of 
 which a justice of the Supreme Court presides. The courts 
 exercise chancery as well as common law jurisdiction. The 
 Supreme Court appoints its own clerk, and each district court 
 its clerk. Writs of error and appeals lie from their decision to the 
 Supreme Court of the United States, and to the circuit courts of 
 appeal of the circuit in which they may be respectively, under 
 the same rules and regulations as govern appeals, and writs of 
 error from the Circuit Courts of the Unit'ed States. 
 
 The courts have power to issue all writs necessary to preserve, 
 protect and enforce their jurisdiction. 
 
 We have thus gone over the whole subject of the Federal 
 courts, their jurisdiction and procedure. The effort has been 
 to set out the matter as plainly and distinctly as possibly, 
 without ornamentation of any kind. We are fellow students 
 in the law. In- going over that branch of it which pertains to 
 the Federal courts, I have acted the part of an older brother 
 in the profession, and have pointed out to you some of the 
 principles and facts which deserve your attention. Of neces- 
 sity the examination and discussion of these matters have 
 been brief, and in great measure superficial. To do justice to 
 them would require a volume. Your patience and time would 
 both be exhausted. 
 
 All that could be done was to put you on the inquiry, to 
 open the paths by which more thorough knowledge of the 
 subject can be found. No proposition has been stated which 
 cannot be sustained hj decisions of the Supreme Court of the 
 United States. These are noted in the text and have in every 
 case been reviewed and verified. 
 
115 
 
 You aspire to be members of a great profession. Tlie Bar 
 has exercised great influence in the progress of Anglo Saxon 
 civilization. It has made its impress on the civilization of 
 the continent of Europe. In our own country it has done 
 more toward the adoption and construction of the Constitu- 
 tion, to the preservation of the conservative forces of our gov- 
 ernment, to the development and security of our prosperity, 
 than any other of the numerous influences at work. 
 
 To the successful pursuit of the profession, industry, perse- 
 verance, patience and character are essentially necessary. 
 
INDEX. 
 
 A. 
 
 Admiralty Cases — How Reviewed — 
 
 Appeal 2'* 
 
 Admiralty courts »0 
 
 Rules of pleading in admiralty. . . 81 
 History oi admiralty jurisdiction . 81 
 Extent of admiralty jurisdiction. . 82 
 Jurisdiction over torts depends 
 upon locality where tort Is com- 
 mitted 93 
 
 Modes of procedure In 100 
 
 How far bound by statute limita- 
 tions ^ . . . 108 
 
 Appellate Proceedings — 
 
 Final judgment of highest State 
 Court re-examined by Supreme 
 Court of the United States — when 
 and how 30 ci S€(f. 
 
 Bond in appellate proceedings ... 26 
 
 Actions — 
 In personam. . . 
 In rem .... 
 
 answer and amendments thereto 
 
 Affreightment 
 
 Average — See General Average. 
 B. 
 Bill of Exceptions — 
 See Exceptions. 
 
 Bond in appellate proceedings 
 
 Bills op lading 
 
 94 
 99 
 70 
 85 
 
 26 
 85 
 
 Bottomry .... 
 
 C. 
 
 Circuit Court oj United States — 
 
 History of 8 
 
 Sixty-nine districts divided Into 
 
 nine circuits . . 43 
 
 Judges of Circuit Court 44 
 
 Original jurisdiction 45 
 
 Its civil jurisdiction 46 
 
 To give jurisdiction there must be 
 
 suit of civil nature 46 
 
 Matter In dispute must exceed 
 
 $2,000 46 
 
 Controversy must be between citi- 
 zens of different States and not 
 
 territories 47 and 50 
 
 Choses In action 47 
 
 Jurisdiction as to corporations , . 49 
 
 Creditor's bills 51 
 
 Claims against U. S. founded on 
 
 Constitution . . 51 
 
 Controversies between citizens of 
 the same State claiming lands 
 under grants of different States. . 53 
 Controversies between citizens of a 
 
 State and foreign citizens. ... 53 
 Jurisdiction to protect trade 
 
 against monopolies .... 5S 
 Refusal of common carriers to per- 
 form the orders of Interstate Com- 
 merce Commission 54 
 
 Disputes between importers and 
 
 collectors of ports as to duties . . 54 
 Jurisdiction of court must appear 
 in the record. . ... 54 
 
 Removal of causes 55 
 
 Petition for removal of cause. ... 57 
 When petition for removal must be 
 
 filed 58 
 
 Criminal prosecution of State 
 against revenue officer removable 
 to United States Circuit Court . . 61 
 Criminal prosecution arising out of 
 
 civil rights 61 
 
 Modes of removing causes 62 
 
 Procedure and practice in United 
 
 States Circuit Court 62 
 
 Procedure In cases at law— plead- 
 ings must show jurisdiction on 
 their face — privileges of judges 
 
 with respect to jury 63 
 
 Procedure and practice in equity. . 65 
 Demurrers and pleas— amendments 
 
 to bill 66 
 
 Parts of bill in equity. . . . . 67 
 
 Subpoena . 68 
 
 Bill taken pro con/csso 69 
 
 Defence of defendant 69 
 
 Answer and amendments thereto. . 70 
 Hearing of the case ... 70 
 
 Supplemental bill 73 
 
 Its criminal jurisdiction ... 73 
 
 Provisions with regard to trial of 
 
 crimes . . 74 
 
 Incidents of trial of crimes. ... 75 
 
 Court of Claims of U. S. — 
 See United States Court of Claims. 
 
 Circuit Codet or Appeals of 
 United States — 
 
 See United States Circuit Court of 
 Appeals. 
 
 Common Law — 
 
 No part of our Federal system ... 12 
 Common law terms of Constitution 
 are understood in the sense of 
 the common law 12 
 
 [ 117 ] 
 
118 
 
 INDEX. 
 
 PAGE. 
 
 Applied by Federal courts in each 
 State 13 
 
 No common law crimes against 
 United Slates 13 
 
 Citations 27 
 
 Costs in appellate proceedings 25 
 
 Causes- 
 How removed from State Court. . . 55-62 
 
 Constitution— 
 
 Federal questions arising there- 
 under. ... . 29 
 
 Cbeditoe's bills . . .51 
 
 contkacts of affeeightmbnt . . 85 
 
 Choses in action . . 47 
 
 Common Careiers— 
 
 Refusal to perform orders of Inter- 
 state Commerce Commission . 54 
 
 Crimes — 
 
 Infamous, what 21-79 
 
 Decision of State Courts may be re- 
 viewed by Supreme Court United 
 States in certain criminal cases 34 
 
 Collisions on high seas . ... 95 
 
 Criminal prosecutions arising 
 OUT of civil rights. . . .61 
 
 Such proceedure in United States 
 Circuit Courts 73 
 
 D. 
 
 Befetidant in error 27 
 
 Duties — 
 
 Disputes between Importer's and 
 
 collector's of ports as to . . 54 
 
 See Debentures. 
 
 Demurrers .... 66 
 
 Debentures .... 78 
 
 District Courts of U. S. — 
 
 See United States District Courts. 
 
 Equity- 
 review of equity 24 
 
 Procedure and practice in United 
 
 States Courts .... . . . 65 
 
 Parts of a bill In 67 
 
 Creditors' bills 51 
 
 Answer and amendments thereto . 70 
 Hearing of case in United States 
 
 Circuit Court . 70 
 
 Supplemental bill .... . . 73 
 
 Exceptions 26 
 
 page. 
 
 How noted 26 
 
 Must be signed and sealed by judge 26 
 Mandamus to compel judge to sign 
 
 bill of exceptions .... 28 
 
 Executions in United States Covrts 27 
 
 F. 
 
 Federal Judiciary — 
 
 Provisions for 1 
 
 Sanctioned by Constitution and 
 
 action of Congress 5 
 
 How Federal courts administer the 
 
 law 6 
 
 Federal courts adopt and closely 
 
 follow procedure of State courts . 
 
 Conflict of jurisdiction between 
 
 State and Federal courts 7 
 
 How controlled . . 11 
 
 Powers deiined by Article III. of 
 
 Constitution . . 11 
 
 Revenue officers indicted by a State 
 
 while in discharge of duty may 
 
 have case transferred to Federal 
 
 courts 19-61 
 
 Pinal judgment dejined . 31 
 
 G. 
 
 General average . . 87 
 
 What constitutes 88 
 
 H. 
 
 Habeas Corpus — 
 
 Jurisdiction of Supreme Court in 
 case of ... . . 29 
 
 I. 
 
 Infamous Crimes — 
 What are such crimes . . . 21-79 
 
 Insurance — 
 Marine policies of . ... 86 
 
 J 
 
 Jurisdiction — 
 
 Conflict between Federal and State 7 
 
 Jettison ... . . . 87 
 
 Judicial Power of United States— 
 
 Defined by Art. III. of Constitution 11 
 Judgment — 
 
 Final judgment defined 31 
 
 Judges— 
 
 Powers of Federal judges with re- 
 spect to jury ... 63 
 
 Law — 
 
 How administered by Federal 
 Courts . ... ... 6 
 
INDEX. 
 
 119 
 
 PAGE. 
 24 
 
 115 
 
 92-97 
 
 85 
 
 -106 
 100 
 
 Review of case at law 
 
 The author's requisites for success 
 in tlie study of . . .... 
 
 LlEVS — 
 
 Maritime 
 
 Lading — 
 
 Bills of 
 
 Libels .... . 100 e( aeq.- 
 
 Definition of, etc. . 
 
 Limitations- 
 How for statutes of, bind courts of 
 admiraltj' .... loS 
 
 M. 
 
 Mandamus to compel judge to sign hill 
 of exceptions . . 28 
 
 Maeitime co.ntkacts . . ... 84 
 
 " LIENS . . 92-97 
 
 Marine policies of insurance . . 86 
 
 Maeineb's wages 84 
 
 Marine torts . , .... 93 
 
 Jurisdiction over such depends 
 upon locality in which tort is 
 committed . 93 
 
 Remedy for marine torts 93 
 
 N. 
 
 Neutrality — 
 Breach of laws of 
 
 Procedure in United Slates Courts — 
 
 Federal courts adopt and closely 
 
 follow procedure of State courts . 
 
 Procedure In Courts of Admiralty . 
 
 Procedure in Territorial courts. . . 
 
 96 
 
 6 
 100 
 113 
 
 Plaintiff in keboe 27 
 
 Pleas 66 
 
 Proceedings — 
 In rem and in personam 99 c( seq. 
 
 R. 
 
 Revenue— 
 
 Officers Indicted by State for of- 
 fense committed in discharge of 
 his duty can have the case re- 
 moved to Federal Court. . . . 19-61 
 
 Requisites for Success in the Study 
 of Law — 
 Industry, perseverance, patience, 
 and character 116 
 
 PAGE. 
 
 Review— 
 
 Right of 23 
 
 Requisites for review 23 
 
 Review of case at law 24 
 
 " in equity . . . 24 
 
 Respondentia 86 
 
 Ransom contracts 90 
 
 Supreme Court of United States — 
 
 Its early history . . 8 
 
 Its original jurisdiction as defined 
 
 by Constitution .14 and 19 
 
 Its exclusive jurisdiction ... 14 
 Controversies between States or 
 between a State and foreign coun- 
 try 15 
 
 Controversies between a State and 
 citizens of another State and 
 
 aliens. . 15 
 
 No jurisdiction of controversy be- 
 tween a State and one of Its own 
 
 citizens. 15 
 
 How criminal cases carried to it . . 28 
 Appellate jurisdiction. ... 20 
 
 What cases reviewable and how . . 20 
 Right of review by court . 23 
 
 Requisites for review . 23 
 
 Review of case at law. . . 24 
 
 *' in equity . 24 
 
 Writ of error. ... . 24 
 
 How obtained 24 
 
 Petition for writ of error 25 
 
 Time within which to sue out writ, 25 
 
 Stay of execution 25 
 
 Supersedeas 25 
 
 Record for Supreme Court. . . 25 
 
 Costs 25 
 
 Exceptions — how noted 26 
 
 Exceptions must be signed and 
 
 sealed by judge 26 
 
 Bond must be given ... . . 26 
 
 Executions. 27 
 
 Citations 27 
 
 Plaintiff in error .... . . 27 
 
 Defendant in error 27 
 
 Mandamus to compel judge to sign 
 
 bill of exceptions . . 28 
 
 Equity and admiralty cases— how 
 
 reviewed by appeal 28 
 
 Appellate jurisdiction of court In 
 
 habeas corpus 29 
 
 Appellate jurisdiction of Federal 
 
 questions. ... 29 
 
 Final judgment of high State Court 
 reviewed by Supreme Court 
 United States — when and how . SO et seq. 
 Supreme Court may issue writ of 
 
 scire facias 35 
 
 May issue writs of prohibition . in- 
 junction, mandamus, injunction 
 
 ne exeat, subpcena. etc 35 
 
 Officers and reports of Supreme 
 Court 
 
 States — 
 
 Controversies between 
 
 Supreme Court has no jurisdiction 
 of controversies between a State 
 audits own citizens. 
 
 35 
 
 15 
 
120 
 
 INDEX. 
 
 When State is a party to contro- 
 Tersy . . 
 
 Meaning of phrase " party to con- 
 troversy" . 
 
 No action can he maintained by 
 citizens against a State without 
 its consent .... ... 
 
 Immunity of a State from suit . 
 
 Suits against State ofi^cers .... 
 
 State can be sued with its own con- 
 sent 
 
 Revenue oflEicers of United States 
 indicted by a State 
 
 When decision of highest State 
 Court may be received in United 
 States Supreme Court . . 
 
 Supersedeas. . . . 
 
 Stay of executions. . . 
 
 Summons — 
 See Citations. 
 
 subpcena 
 
 Salvage . . 
 
 Defined— mode of determining 
 amount of salvage award. 
 
 T. 
 
 17 
 18 
 18 
 
 19 
 
 19 
 
 26 
 
 25 
 
 Territorial Courts — 
 
 How judges of, are appointed. . 10 
 
 Jurisdiction of 113 
 
 Procedure In territorial courts . . 113 
 
 Supreme courts of territories 114 
 
 Trade— 
 Jurisdiction to protect against 
 monopolies . . . 53 
 
 TOBTS— 
 
 Marine 93 
 
 Admiralty jurisdiction over torts 
 depends upon locality where tort 
 
 is committed 93 
 
 Remedy for marine torts 93 
 
 U. 
 
 United States Court of Claims — 
 Jurisdiction of 
 
 9 
 
 United States Circuit Court of Appeals. 10-36 
 
 Purpose of .10 and 22 
 
 Its jurisdiction defined . . . 22-37 
 
 How composed 37 
 
 Cases in which Its decisions are 
 
 final 38 
 
 When Circuit Court of Appeals may 
 
 certify case to Supreme Court . 38 
 
 How its appellate jurisdiction is 
 
 exercised S9 
 
 Writ of error must be sued out or 
 
 appeal taken within six months . 39 
 Can take jurisdiction of an appeal 
 
 from an order of a lower court . 39 and 41 
 How to determine whether to carry 
 
 a case to Circuit Court of Appeals 
 
 or Supreme Court 39 
 
 PAGE. 
 
 It is a court of final resort on all 
 questions relating to mercantile 
 and commerce law and railroads. 42 
 
 Officers and reports of Circuit 
 Court of Appeals 43 
 
 United States Circuit Court — 
 
 See Circuit Court of United States. 
 
 United States District Courts— 
 
 Sixty-nine judicial districts ... 76 
 Jurisdiction of United States Dis- 
 trict Courts . . 77 
 
 Debentures 78 
 
 Court sits with jury in common 
 
 law and criminal cases 79 
 
 In civil cases practice conforms to 
 
 mode of procedure in State courts 79 
 
 Courts of admiralty 80 
 
 Rules of pleading in Courts of Ad- 
 miralty 81 
 
 Extent of admiralty jurisdiction. . 82 
 
 Maritime contracts . . 84 
 
 Mariner's wages . . 84 
 
 Contracts of affreightment . . . 85 
 
 Bills of lading 85 
 
 Marine policies of Insurance ... 86 
 
 Bottomry and respondentia . . 86 
 
 Jettison and general average . 87 
 
 Salvage . . 88 
 
 Ransom contracts 90 
 
 Possessory actions for vessels ... 90 
 Contracts for supplies, materials, 
 
 repairs and labor on vessel ... 91 
 
 Maritime liens. . . . 92-97 
 
 Marine torts 93 
 
 Jurisdiction In admiralty as to 
 torts depends on locality where 
 
 tort Is committed 93 
 
 Remedy for marine torts . . 93 
 Actions in personam ... .94 
 
 Collisions on high seas ... 95 
 
 Breach of neutrality laws. ... 96 
 
 Modes of procedure in admiralty. . 100 
 
 Libels 100c(seg.l06 
 
 Liability of ship-owners for con- 
 tracts and torts of master, crew, 
 
 and agents 104 
 
 How far Statute Limitations binds 
 
 courts of admiralty 108 
 
 United States Court of Claims— 
 
 Jurisdiction of court 109 
 
 Claims must be brought within six 
 
 years . . Ill 
 
 Pleadings in Court of Claims by 
 
 petition ... . .... 112 
 
 V. 
 
 Vessels — 
 
 Possessory actions for 90 
 
 W. 
 
 Writ of Error, . 24 
 
 How obtained . . 24 
 
 Petition for writ of error 24 
 
 Time within which to sue out writ. 25-39 
 
 Stay of execution— supersedeas . . 25 
 
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