Give tho

sites?

410; Davis v Packard, 6 Pet. 41, 48; Mayor of New Orleans v. De Armas. Pet. 234.) Crowell v. Randell, 10 Pet. 394-398. After this rull review, these propositions were stated:-1. That four requi- some one of the questions (stated in the 25th section) did arise in the State court; 2. That the question was decided by the State court as required in the same section; 3. It is not necessary that the question should appear on the record to have been raised, and the decision made in direct and positive terms ipsissimis verbis ; but that it is sufficient if it appear by clear and necessary intendment, that the question must have been raised, and must have been decided in order to have induced the judgment. 4. That it is not sufficient to show that a question might have arisen and been applicable to the case; unless it is further shown on the record, that it did arise, and was applied by the State court in the case. Crowell v. Randell, 10 Pet. 398. Affirmed, Choteam v. Marguerite, 12 How. 510; McKinney v. Carroll, 12 How. 70. See Brightly's Digest, Tit. "ERRORS AND APPEALS," pp. 257-261, and voluminous notes thereon.

Define law and fact? 270-272.

What gives the appellate jurisdiction?

What juris

"LAW AND FACT."-Since the seventh amendment, Congress can not confer upon the Supreme Court authority to grant a new trial by a re-examination of the facts, and tried by a jury, except to redress errors of law. (Parsons v. Bedford, 3 Pet. 447, 449. See Bank of Hamilton v. Dudley, 2 Pet. 492). Curtis' Com. § 114. It is the "case" and not the court which gives the appellate jurisdiction. (Martin v. Hunter, 1 Wheat. 394). Curtis' Com. $115. Therefore, if the question or the parties give federal jurisdiction, it may be reached by appeal. Id.; Cohens v. Virginia, 6 Wh. 413. The objects of appeal, not the tribunals from which it is to be made, are alone contemplated. Id. 416; Curtis' Com. § 116. And see Osborn v. Bank of United States, 9 Wheat. 820, 821; Story's Const. § 1701.

If the objects can be attained without excluding the concurrent jurisdiction of the State courts, over cases which existed before, it would seem to be necessary to adopt such a construction as will sustain their concurrent powers. (Teal v. Felton, 12 How. 284, 292) Curtis' Com. § 121, 123, 124. As to when original jurisdiction is exclusive, see same author, § 129-135, and Martin v. Hunter; Houston v. Moore, 5 Wheat. 1, 12.

Congress can not confer jurisdiction upon any courts, but such diction can as exist under the Constitution and laws of the United States, Congress although the State courts may exercise jurisdiction in cases auconfer thorized by the laws of the State, and not prohibited by the exclusive jurisdiction of the federal courts. Houston v. Moore, 5 Wheat. 24-28, $135, p. 178. And wherever the law of Congress furnishes the offense, the State law can only be enforced by the authority of Congress, or unless the power remain concurrent. Id. If the jurisdiction be concurrent, the sentence of either court may be pleaded in law. Houston v. Moore, 5 Wheat. 40; 1 Curtis Com. p. 180. Where Congress ject given them by the

Can the
Stites

any thing? legislation to add to

The action by Congress seems to exclude State legislation. (Houston v. Moore, 5 Wheat. 1, 22, 23; Prigg v. Pennsylvania, 16 Pet. 608.) Story's Const. 3d ed. p. 615.

be a party?

"WHERE A STATE SHALL BE A PARTY."-That is: 1. Where one In what three cases State is plaintiff, and another State is defendant; 2. Where a State is plaintiff, and an individual, whether a citizen of some other may a State State or an alien, is defendant. 3. Where a foreign State is plaintiff against one of the United States as defendant. Curtis' Com. § 153-157. See Rhode Island v. Massachusetts, 12 Pet. 657; New Jersey v. New York, 5 Pet. 283; Pennsylvania v. The Wheeling & Belmont Bridge Co. 13 Howard, 528; Cherokee Nation v. Georgia, 5 Pet. 1; Ex parte Juan Madrazo, 7 Pet. 627.

where must

had?

[3.] The trial of all crimes, except in cases of im- How and peachment, shall be by jury; and such trial shall be trials be held in the State where the said crimes shall have been committed; but when not committed within any State, the trial shall be at such place or places as the Congress may by law have directed.

212. "THE TRIAL." (L. Lat. trialio. Exactissima litis contestato, Define coram judice, per duodecem virale exagititio. SPELMAN.)-The term trial? means here, the examination before a competent tribunal, according to the laws of the land, of the facts put in issue upon the indictment or presentment, for the purpose of determining the truth of such issues. United States v. Curtis, 4 Mason, 232; Co. Litt. 1246. And see Burrill's Law Dic., TRIAL; Magna Charta, ch. 29 (9 Henry III.); 2 Inst. 45; 3 Black. Com. 379-381; 4 Black. Com. 349, 350; 2 Kent's Com. Lect. 24, pp. 1-9; 3 Elliot's Debates, 331, 339; De Lolme, B. 1, ch. 13, B. 2, ch. 16; Paley, B. 6, ch. 8; 2 Wilson's Law Lect. P. 2, ch. 6, p. 305; Story's Const. § 1778-1794.

"The trial" per pais, or by the country, is the trial by a jury, who are called the peers of the party accused, being of the like condition and equality in the State. (Magna Charta.) Story's Const. § 1779.

here?

"OF ALL CRIMES EXCEPT IN CASES OF IMPEACHMENT. -See What means "CRIME" defined, notes 193, 194. Here it means treason, piracy, "crimes" felony, or some offense against the law of nations or an act of the Congress of the United States. And this clause is to be taken subject to the exceptions, in the fifth amendment, as to trials in the land and naval service. The term "crime" here doubtless embraces misdemeanor.

In the case of the United States v. Hudson & Goodwin (7 Cranch, 32), it was held that "the legislative authority must first make an act a crime, affix a punishment to it, and declare the court that shall have jurisdiction of the offense," before the courts the United States can exercise jurisdiction over it. This docaffirmed by the case of the United States v. Coolidge et on, 415), and Chief-Justice Marshall, in delivering the court in Ex parte Bollman & Swartwout (4 Cranch,

39.

should the

process be served?

Upon whom 284; Grayson v. Virginia, 3 Dall. 320.) These cases settlo that the process should be served upon the chief executive and attorney-general of the State. Kentucky v. Ohio, 24 How. 96-7. Where the governor sues or is sued, in his official capacity, it is a suit by or against the State. Id. 97, 99; Governor of Georgia v. Madrazo, 1 Pet. 110. A mandamus is an ordinary process to which a State is entitled, where it is applicable. (Kendall v. The United States, 12 Pet. 615; Kendall v. Stokes, 3 How. 100.) Kentucky v. Ohio, 24 How. 97-8.

271, 272.

205, 203. 211, 271, 272.

Can a

State?

For the necessity of this jurisdiction, see Federalist, No. 80; Kent's Com. Lect. 14; Chisholm v. Georgia, 2 Dall. 437-445; Sergeant's Const. Introduction, 11-16; New York v. Connecticut, 4 Dall. 3; Fowler v. Lindsay, 3 Dall. 411; 3 Elliot's Debates, 281; 2 Elliot's Debates. 418; Penn v. Lord Baltimore, 1 Vesey, 444; Story's Const. § 80, 489, 1679-1681; 1 Chalm. Annals, 480–490.

The jurisdiction is a necessity to prevent a resort to the sword. Story's Const. § 1681. See Ableman v. Booth, 21 How. 506; Curtis' Com. 60-70.

A State obtained an injunction to prevent the construction of a bridge which would impede the navigation of the Ohio River. Pennsylvania v. Wheeling & Belmont Bridge Co. 13 How. 518. The 11th article of the amendments has forbidden suits by individual citizens against the States.

If the judicial power does not extend to all controversies between States, it excludes none. Rhode Island v. Massachusetts, 12 Pet.

657; Curtis' Com. § 60.

Its mere interest in a corporation will not oust the jurisdiction, U. S. Bank v. Planters' Bank, 9 Wheat. 904, 966; Curtis' Com. § 66. See also Bank of the Commonwealth of Kentucky v. Wistar, 2 Pet. 318.

It seems the court will look into the interest of the State, where it claims to be a party. Pennsylvania v. Wheeling Bridge Co. 13 How. 518, 539; Curtis' Com. § 70.

205a. "BETWEEN A STATE AND THE CITIZENS OF ANOTHER STATE."-Before the eleventh amendment (1793), it was held, that this authorized suits to be brought against, as well as by States, where the plaintiff was a citizen of another State. Chisholm v. Georgia, 2 Dall. 419-478; Cohens v. Virginia, 6 Wheat. 406; Curtis' Com. § 60.

But this power of a citizen to sue a State is removed by the citizen sue a eleventh amendment. For the history and object of the amendment, see Cohens v. Virginia, 6 Wheat. 406 et seq.: Curtis' Com. § 62. But where a State recovers a judgment against a citizen a writ of error will still lie. Id.; Cohens v. Virginia, 6 Wheat. 409.

271, 272.

When is a

the rule?

A State is within the operation of this original clause of the State within Constitution, only when it is a party to the record, as plaintiff or defendant, in its political capacity. Osborn v. Bank of United States, 9 Wheat. 738; Curtis' Com. § 63-65. New York v. Connecticut, 4 Dall. 3; Story's Const. § 1680, 1681.

271.

Where a State is a party to the record, the question of jurisdiction is decided by inspection. Id.

The State is only a party when it is on the record as such.

(Fowler v. Lindsay, 3 Dall. 411, 415; S. C. 1 Pet. Com. 190, 191; New York v. Connecticut, 4 Dall. 1-6; United States v. Peters, 5 Cr. 115, 139; 1 Kent's Com. Lect. 15, p. 302.) Story's Const. § 1685.

199-201.

206."CONTROVERSIES BETWEEN CITIZENS OF DIFFERENT STATES." Contro"CONTROVERSIES "" is synonymous with civil suits. Curtis' versies? Com. § 73. It may be deduced: 1. That they are all citizens of Who are the United States, who are domiciliated in a State; (Scott v. Sand- citizens of a ford, 19 How. 393.) 2. And they are suits where one party is a State? citizen of one State, and the other a citizen of another. Curtis' Com. § 73. The situation of the parties, rather than their char- 222. acters determines the jurisdiction. Id. At the commencement of What deterthe suit. Connoly v. Taylor, 2 Peters, 556, 564.

17, 19, 25,

93, 169, 220

mines the

jurisdiction? parties is What does Hartshorn citizenship

mean?

274.

222.

This clause does not embrace cases where one of the a citizen of a territory, or of the District of Columbia. v. Wright, Peters C. C. 61; Scott v. Jones, 5 How. 377; Hepburn 6, 18, 93, v. Elszey, 2 Cr. 445; Corporation of New Orleans v. Winter, 1 170, 220. Wh. 91; Gassies v. Ballou, 6 Pet. 761; 1 Kent's Com. Lect. 17, p. 274. 360; Story's Const. § 1693, 1694; Curtis' Com. § 77. Citizenship, when spoken of in the Constitution, in reference to the jurisdiction of the federal courts, means nothing more than residence. Lessee of Cooper v. Galbraith, 3 Wash. C. C. 546; Gassies v. Ballou, 6 Pet. 761; Shelton v. Tiffin, 6 How. 163; Lessee of Butler v. Farnsworth, 4 Wash. C. C. 101. But a free negro of the African race, whose ancestors were brought to this country and sold as slaves, is not a citizen within the meaning of the Constitution, nor entitled to sue in that character in the federal courts. Scott v. Sandford, 19 How. 393-4. But see the Civil Rights Bill, note 6, p. 55; 14 St. p. 27, § 1; Paschal's Annotated Digest, Art. 5382. A corporation created by, and transacting business in a State, is to be deemed an inhabitant of the State, capable of being treated as a citizen, for all purposes of suing and being sued. Louisville R. R. Co. v. Letson, 2 How. 497; Marshall v. Baltimore & Ohio R. R. Co. 16 Id. 314; Wheeden v. Camden & Amboy R. R. Co. 4 Am. L. R. 296. The judiciary act confines the jurisdiction, on the ground of citizenship, to cases where the suit is between a citizen of a State and a citizen of another State; and, although the Constitution gives a broader extent to the judicial power, the actual jurisdiction of the circuit courts is governed by the act of Congress. Moffat v. Soley, 2 Paine, 103; Hubbard v. Northern R. R. Co. 25 Vt. 715. So, too, in the same act, there is an exception, that where suit is brought in favor of an assignee, there shall be no jurisdiction, unless suit could have been brought in the courts of the United States, had no assignment been made. This is a restriction on the jurisdiction conferred by the Constitution; and yet this provision has been sustained by the Supreme Court since its organization. Assignee of Brainard v. Williams, 4 McLean, 122; Sheldon v. Sill, 8 How. 441. The Constitution has defined the limits of the judicial power, but has not prescribed how much of it shall be exercised by the circuit courts. Turner v. Bank of North America, 4 Dall. 10; McIntyre v. Wood, 7 Cr. 506; Kendall v. United States, 12 Pet. 616; Cary v. Curtis 3 How. 245.

It is well understood by those experienced in the jurisprudence of the United States, that Congress has conferred upon the federal courts but a portion of the jurisdiction contemplated by the Constitution. Clarke v. City of Janesville, 4 Am. L. R. 593. The plaintiffs should distinctly aver that they are citizens of different States; and in the absence of such averment, the judgment will be reversed for want of jurisdiction. (Bingham v. Cabott, 3 Dall. 382; Jackson v. Ashton, 8 Pet. 148; Capron v. Van Noorden, 2 Cr. 126; Montalet v. Murray, 4 Cr. 46.) Scott v. Sandford, 19 How. 420. Curtis' Com. § 79, note 4. But if the citizenship be denied, it should be by plea in abatement, or it should otherwise appear in the record. Id. See 1 Brightly's Dig. p. 126. sec. 17, and notes thereon. The Constitution of the Confederate States omitted this jurisdiction. Paschal's Annotated Dig. p. 92. In other respects it corresponded to this section and the eleventh amendment. Id. The citizenship must be expressly averred, or the facts which the citizen- constitute it must be set forth. (Turner v. Bank of North America, ship be 4 Dall. 8; Montalet v. Murray, 4 Cr. 46; Bailey v. Dozier, 6 How. 23.) Curtis' Com. § 78.

How must

averred?

What is the extent of the

jurisdic

tion?

Can a corpo

ration be a

See the Judiciary Act of September 24, 1789, 1 St. 78; 1 Brightly's Digest, p. 126 and notes.

The Judiciary Act of 1789 limited jurisdiction of national courts so far as they are determined by citizenship, "to suits between a citizen of the State in which the suit is brought and a citizen of another State," and except in relation to revenue cases this limitation remains unchanged. Ins. Co. v. Ritchie, 5 Wall. 542. In consequence of nullification the jurisdiction was extended to "all cases in law or equity arising under the revenue laws of the United States for which other provisions have not already been made." (4 Stat. 632.) Id. And by this act many suits brought in the State courts were removed into the circuit courts (Elliott v. Swartwout, 10 Pet. 137; Bend v. Hoyt, 13 Pet. 267); Ins. Co. v. Ritchie, 5 Wall. 542. The fiftieth section of the Internal Revenue Act of 1854 extended the act of 1833 to all cases arising under the laws for the collection of internal duties. (12 Stat. 241.) Id. But the act of 1866 repealed the fiftieth section aforesaid, without any saving of such causes as were then pending, and said that "the act of 1833 shall not be so construed as to apply to cases arising under act of 1864," &c. This ousted jurisdiction in the causes then pending. Id. When the jurisdiction of a cause depends upon a statute, the repeal of which takes away the jurisdiction, or it is prohibited by a subsequent statute, it can no longer be exercised. (Rex v. Justices of London, 3 Burrow, 1456; Norris v. Crocker, 13 How. 229.) Ins. Co. v. Ritchie, 5 Wall. 544. where the case would be removable under the new provision, and it is the opinion of the circuit judge that it ought to be retained, the jurisdiction is not lost. City of Philadelphia v. Collector, 4 Wall. 720-30.

But

As respects the proof of the residence or domiciliation to consti tute citizenship, see Shelton v. Tiffin, 6 How. 163, 185.

A corporation, whose members are citizens of a different State citizen? from the other party, is a citizen of a different State. Hope Ins.