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versy in a given case is within the grant of judicial power. 6 The object of vesting in courts of the United States jurisdiction of suits by one State against the citizens of another, was to enable such controversies to be determined by a national tribunal, to avoid partiality, or suspicion of partiality, which might exist on a resort to State courts.? Amendment 11 does not exclude from the jurisdiction of the Federal courts a suit by a State against one of its own citizens which suit involves a Federal question, and in which it has become appellant.8

1 Re Pacific Railway Com., 32 Fed. Rep. 255; Chisholm v. Georgia, 2 Dall. 431.

2 State v. New Orleans Pelican Ins. Co., 127 U. S. 265. 3 Smith v. Adams, 130 U. S. 167. 4 State v. New Orleans Pelican Ins. Co., 127 U. S. 265. 5 Story Const., $ 1681; New Jersey v. New York, 3 Peters, 461; S. C., 5 Peters, 284; 6 Peters, 323; Rhode Island v. Massachusetts, 12 Peters, 657, 724, 736, 759; S. C., 13 Peters, 23; 11 Peters, 210; 15 Peters, 233; 4 How. 591, 628; Missouri v. Iowa, 7 How. 66); and 10 How. 1; Florida v. Georgia, 17 How. 478: Alabama v. Georgia, 23 How. 505; Virginia v. West Virginia, 11 Wall. 39; Missouri v. Kentucky, 11 Wall. 395. See also Georgia v. Stanton, 6 Wall. 50, 72, 73; State v. New Orleans Pelican Ins. Co., 127 U. S. 265.

6 Rhode Island v. Massachusetts, 12 Peters, 657.

7 Federalist, No. £0; Chisholm v. Georgia, 2 Dall. 419; State v. New Orleans Pelican Ins. Co., 127 U. S. 265.

8 Ames v. Kansas, 111 U. S. 449.

§ 2. Power of Congress. The Congress of the United States shall have power to constitute tribunals inferior to the Supreme Court.

(U. S. Const. art. 1, sec. 8, cl. 9.)

Note.-The power to constitute inferior courts and endow them with jurisdiction affords no pretext for abrogating any established law of property, or for removing any obligations to submit to the rule of the local sovereign. In legislating for the territory of the United States Congress exercises the combined power of a general and a State government, and courts of a territory are in a senze inferior tribunals. 2

1 Suydam v. Williamson, 24 How. 433.
2 American & Ocean Ins. Co. v. Bales of Cotton, 1 Peters, 511

§ 2 a. United States Courts.—United States courts can exercise only that jurisdiction which is conferred on




them by Congress, or by treaty. Congress may say how much and what shall vest in one inferior court, and what in another, 3 and must define their respective jurisdictions. How jurisdiction shall be acquired, whether original or appellate, and the mode of procedure, are left to the wisdom of the legislature.5 So Congress may confer original jurisdiction in any case to which appellate jurisdiction extends, and may lawfully provide for suits at the option of the parties on all controversies between citizens of different States. In the first three classes of cases mentioned in this section-i. e. (1) cases arising under the Constitution or laws of the United States, or treaties made under its authority; (2) all cases affecting foreign embassadors, ministers, or consuls; (3) all cases of admiralty and maritime jurisdiction—the jurisdiction is exclusive;& as questions arising on treaties, when not political questions, or suits arising under the laws of the United States. 10 While in the latter class, as to controversies, it may qualify the jurisdiction, whether original or appellate. 11 It may invest the Federal courts with the power to issue writs. 12 Federal courts can issue writs only when necessary in and of their jurisdiction, and in a case pending. 13

1 Ex parte Cabrera, 1 Wash. C. C. 235: Magill v. Parsons, 4 Conn. 317.

2 The British Prisoners, 1 Wood. & M. 66; U. S. v. New Bedford Bridge, Wood, & M. 437; Smith v. Jackson, 1 Paine, 453.

3 U.S. v. New Bedford Bridge, 1 Wood. & M. 437.

4 Osborn v. Bank, 9 Wheat. 738; Turner v. Bank, 4 Dall. 10; McIntyre v. Wood, 7 Cranch, 506; Kendall v. U.S., 12 Peters, 616; Cary v. Curtis, 3 How. 236; Sheldon v. Sill, 8 How. 448.

5 Mayor v. Cooper, 6 Wall 247.

6 Osborn v Bank, 9 Wheat. 738; U. S. v. Bevans, 3 Wheat. 336; Jones v. Seward, 41 Barb. 272.

7 Gaines v. Fuentes, 42 U. S. 10. 8 State v. McBride, Rice, 400.

9 Wilson v. Wall, 6 Wall, 83; Ex parte Leon, 1 Edm. Sel. Cas. 301; U.S. v. Lathrop, 17 Johns. 4; U.S. v. Campbell, 6 Hall L. J. 113; Haney v. Sharp, 1 Dana, 442.

10 Fox v. Ohio, 5 How. 410; Voorhees v. Frisbie, 8 Bank. Reg. 154, 11 Martin v. Hunter, 1 Wheat. 304; The Moses Taylor, 4 Wall. 411. 12 Desty Fed. Proc., sec. 716, and cases cited.

13 Ex parte Everts, 7 Am. Law Reg. 79; overruling U. S. v. William. sin, 7 Am. L. Reg. 11.

$ 3. Jurisdiction, as to subject-matter and parties.—The judicial power shall extend to all cases in law and equity arising under this Constitution, the laws of the United States and treaties made, or which shall be made, under their authority.

Second. To all cases affecting embassadors, other public ministers and consuls;

Third. To all cases of admiralty and maritime jurisdiction.

Fourth. To controversies to which the United States shall be a party.

Fifth. To controversies between two or more States.

Sixth. Between a State and citizens of another State.

Seventh. Between citizens of different States.

Eighth. Between citizens of the same State, claiming lands under grants of different States, and;

Ninth. Between a State or the citizens thereof, and foreign states, citizens or subjects. (U. S. Const. art. 3, sec. 2.)

§ 3 a. Where the government is a party:The judicial power extends to controversies in which the United States is a party, so the United States may in. stitute a proceeding at common law, to condemn lands for the use of the government; or to condemn property used in aid of insurrection. It may file a bill in equity to set aside a fraudulent conveyance; or bring an action on a contract, unless a different mode is prescribed by law;4 or on a bond given to secure the landing of a cargo under the embargo Jaws;5 or for the breach of a bond in an action brought by a postmaster. The jurisdiction reaches to controversies where the State is a party;' but only where it is a party to the record;8 or when the governor is sued in his official capacity.9 The jurisdiction of the Federal courts depends on two points : first, as arising from the subject matter; second, as dependent on the character of the parties;10 and when it depends on the character of



the parties and not of the subject-matter, Congress cannot

11 vest jurisdiction in the Federal courts. The giving of the Supreme Court original jurisdiction in cases where a State is a party does not withhold from Congress the power to vest in circuit courts concurrent jurisdiction in such cases.

1 Mississippi v. Johnson, 4 Wall. 498; Georgia v. Stanton, 6 Wall, 50. 2 U. S. v. Smith, 1 Hughes, 347. 3 Union Ins. Co. v. U.S., 6 Wall. 759. 4 Dugan v. U. S., 3 Wheat. 172; U. S. v. Barker, 1 Paine, 156.

1 5 Durousseau v. U.S., 6 Cranch. 307. 6 P. M. Genl. v. Early, 12 Wheat. 133.

7 N. Y. v. Conn., 4 Dall. 1; N. J. v. N. Y., 5 Peters, 290; Ga, v. Brailsford, 2 Dall. 402; Oswald v. N. Y., 2 Dall. 415; Chisholm v. Ga., 2 Dall. 419; Grayson v. Va., 3 Dall. 320; Mass. v. R. I., 12 Peters, 755: Ga. v. Madrazo, 1 Peters, 122; Luther v. Borden, 7 How. 55; Mowery v. Indiana & C. R. R. Co., 4 Biss. 80.

8 Osborn v. Bank, 9 Wheat. 738; New York v. Connecticut, 4 Dall. 3; Fowler v. Lindsay, 3 Dall. 411; U. S. v. Peters, 5 Cranch, 115.

9 Kentucky v. Ohio, 34 How. 97; Georgia v. Madrazo, 1 Peters, 116.

10 Celluloid Co. v. Goodyear, 13 Blatchf. 375; citing Cohens v. Virginia, 6 Wheat. 204; Littlefield v. Perry, 21 Wall. 205.

11 State v. Trust of University, 5 Nat. Bk. Reg. 466; Wisconsin v. Duluth, 2 Dill. 406; explained in State v. Lewis, 12 Fed. Rep. 1.

12 State v. J ewis, 12 Fed. Rep. 1, citing Pennsylvania v. Wheeling Br. Co., 13 How. 520.


§ 3 b. Where an alien is a party.–Under the first clause of section 2, article 3, of the Constitution of the United States, jurisdiction is given to the Federal courts in cases where a foreign state or individual is a party.' So it extends to all cases affecting embassadors, although they are not parties to the record. A citizen of the State may sue an alien in the Federal courts, although the alien be a foreign consul.3 The controversy must be one in which a citizen of the State and an alien are parties, 4 or a nominal citizen suing for the use of an alien;" and one party, either plaintiff or defendant, must be a citizen, as the circuit court has no jurisdiction of a controversy between aliens.? For the purpose of jurisdiction, a foreign corporation is deemed an alien; so of resident unnaturalized foreigners; and one who has merely filed his declaration of intentions to become a citizen is an alien;10 but an Indian tribe is not a foreign nation;11 nor is an Indian a foreign citizen or subject. 12 A foreign sovereign




may sue a citizen in the United States courts;13 and a resident alien may sue a citizen, 14 although he sues trustee. 15

So an executor and residuary legatee may sue in the Federal courts, though both are aliens. 16 And if an alien holds lands he may sue a citizen for any matter affecting his rights. 17

1 Chappedelaine v. Dechenaux, 4 Cranch, 308; Browne v. Strode, 5 Cranch, 307.

2 Obsborn v. Bank, 7 Wheat. 738; U. S. v. Ortega, 11 Wheat. 467; U. S. v. Ravara, 2 Dall. 297.

3 St. Luke's Hosp. v. Barclay, 3 Blatchf. 259; Graham v. Stucken, 4 Blatchf. 50.

4 Hepburn v. Ellzey, 2 Cranch, 445; Mossman v. Higginson, 4 Dall, 12; New Orleans v. Winter, 1 Wheat. 91: Jackson v. Twentyman, 2 Peters, 136; Hodgson v. Bowerbank, 5 Cranch, 303; Gassies v. Ballou, 6 Peters, 761; Brown v. Keene, 8 Peters, 112; Picquet v. Swan, 4 Mason, 443; 5 Mason, 35: Case v. Clarke, 5 Mason, 70; Catlett v. Pacific Ins. Co., 1 Paine, 594; Cooper v. Galbraith, 3 Wash. C. C.546: Prentiss v. Brennnn, 2 Blatchf. 164; Wilson v. City Bank, 5 Bank. Reg. 270.

5 Browne v. Strode, 5 Cranch, 303.

6 Jackson v. Twentyman, 2 Peters, 136; Baird v. Byrne, 3 Wall. Jr. 1; Prentiss v. Brennan, 2 Blatchf. 162; kaleau v. Bernard, 3 Blatchf. 241.

7 Petrocokino v Stuart, 37 Leg. Int. 30.
8 Soci. for Prop. Gosp. v. New Haven, 8 Wheat. 464.
9 Baird v. Byrne, 3 Wall. Jr. 1.
10 Baird v. Byrne, 3 Wall. Jr. 1.

11 Cherokee Na. v. Georgia, 5 Peters, 1; Worcester v. Georgia, C Peters 515.

12 Karrahoo v. Adams, 1 Dill. 344.
13 King v. Oliver, 2 Wash. C. C. 429.

14 Breedlove v. Nicolet, 7 Peters, 413; Bonaparte v. Camden & A. R. R. Co., Bald. 205.

15 Chappedelaine v. Dochenaux, 4 Cranch, 306.
16 Chappedelaine v. Dcchenaux, 4 Cranch, 306.
17 Bonaparte v. Camden & A. R. R. Co., Bald. 205.

3 c. State legislation cannot limit or impair. -State legislation cannot in any wise im pair or limit the jurisdiction of the Federal courts. Stale statutes are powerless to affect an amendment of a Federal statute, under which Congress has regulated the exercise of Fed. eral jurisdiction by Federal courts.? A State cannot by conferring exclusive jurisdiction on its own courts, exclude the jurisdiction of the United States courts. If the representative of a decedent is a citizen of a State different from that of the other party, the jurisdiction of the United Stutes courts cannot be defeated by


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