Year: 1872

ferred such IA power on their own courts when exer-
crsed on person property within their territorial
limits and that to this extent such concurrent urs-
dction exists


But when it is claimed for any other federal court
than the Supreme Court, the power be found in
an act Of Congress.


Il is proposition which admits of no further debate
and needs the citation Of no authorities at this dav
that all courts Of the United States except the Su-
PIeme Court, being the mere of Congression
al statute can exercise jurisdiction but such as is
gwen by those statutes and even the Supreme is linn
ted Ill ali except the original jurisdiction given it by
the constitutions very small portion, indeed of the
power which 1t eXereiscsby the will of Congress as
expressed III It's legislation.


We iurn then, to the act of 1889 establishing the
Ju1lcIny system of the United States to which alone
we caa look for the requisite authority; for though
therere many subsequent comforting iurisdic


ton the federal courts, there are none which can
affect the question before


The fourth section OF that act creates the Circuit
Courts and the eleventh defines their powers and con-
crs their jurisdiction The latter declares that they
shall have original coguizance, concurrent with the
courts of the several States of all suits of civil nature
at common law or in equity where the matter in dis
pute exceeds, exclusive of the or value Of
five hundred dollars and The United States are plaintiffs
or paitoaer alien IS party, tie sau is tetots


citizen Of tie State tcterc tie Sat is brought and c
zen u another State.


This is all that is to be found in this section confer


ring jurisdiction the ground of the character of the
parties and look here in vain for jurisdiction
wnere State is party | do not know If the idea
has ever been advanced that State is a aggre
cation of its citizens and therefore has the
right bring suit that any of its citizens has IL
has been asserted by counsel in the case before US


1t certainly cannot be maintained upon any sound view
of the constitution. If the word State used in that
sense in the constitutional provision it is useless be
there is the provision that the judicial power ex
tends controversies between citizens of different
States ana if State is but the aggregate of its cit
zens, then the other is unnecessary.


The clause in that instrument comforting original u-
rsdction the Supreme Court in where a State
is party certainly does not confer Jurisdiction when
citizens of different States parties.


In view, then, of the constitutional foundation
which alone State can be party in the federal courts
such construction of the statute defining the iuris
diction of the Circuit Court can be sound.


like conclusion results from examination of the
thirteenth section of the judiciary Act. 1t declares
that the Supreme Court shall have exclusive urisdic


ton of all controversies of civil nature where State
is party, except between State and its citizens and
except also, between State and citizens of other
States, aliens, in which latter case it shall have
original but not exclusive jurisdiction. Now, in all
these cases Congress makes very clear distinction
between State and its citizens and it denies to the
Supreme Court any original Jurisdiction between
State and its citizens, and confers it jurisdic
ton original but exclusive between a State and
citizens of other States This latter is the precise class
of cases to which the before US belongs; and it
would be violation of all sound rules of construction
W say eAactly Is conferred
the Circuit Court by using the phrase, controver-
sizes between citizens of different States, y" phrase
applied both in this statute and in the constitution to
very different class Of controversies than the
der consideration.


This precise question raised in the case of 0s
borne The Bank of the United States, Wheaton
SILL in which the jurisdiction conferred by the const
tuition, where State is party is held to apply only
where State in its corporate sovereign character
Is by name an actual party to the record.


1t is argued, however. that in much the con
stituton in comforting original jurisdiction in this class
of cases the Supreme Court did not make that jurls
dctiol exclusive and the thirteenth section of the
OF l7S9 declares expressly that sshail not be excu
sive, that the Jurisdiction which is thus i'm
piled to be remain in other court must be in
the Circuit Court. 1t would be sufficient answer to
this TO say that if it must necessarily be in Court of
the United States, it might well be sought in the
District Court in the Circuit Court for there is
nothing in the statute defining the jurisdiction of either
Of those courts which refers to this jurisdiction
by implication.


But even if the language OF the thirteenth section
OF the judiciary act does Imply concurrent jurisdic
ton in some other court have already seen that
such jurisdiction exists now and has ALWAYS proba-
bly, existed in the State courts And the probability
that it this that the thirteenth section had ref
crence is the stronger, because in many other
that statute recognizes both in express terms, and by
fair implication such concurrent power in the State
courts with those of the United States Such is the
with the great body of the jurisdiction of the Cir
cut Courts in regard to aliens citizens Of different
States, and suits brought by the United States So
also Of admiralty courts, where the law fur
nhes remedy and other grounds of jurisdiction Of
the District Courts mentioned IN the ninth section Of
/ the same statute.


There is every reason therefore, to infer that Con
gress in declaring that the original jurisdiction of the
Supreme Court in this class OF shall be
elusive, had reference to the jurisdiction the
class of intended to be left with the State
Courts, and which have already seen they have
4F and r,li
But if Congress confer on the Circuit Courts an
ongina jurisdiction in this class of cases. concurrent
with that of the Supreme Court it is a sufficient an
to say that it has done it, And in the face
othe fact that Congress has in any other instance
whatever during period of over eighty years that the
government has existed attempted confer on those
two Courts Il concurrent jurisdiction, is argument
Of great force against implying such eXercis, Of the
power, in the absence of words expressly granting it.
1t would indeed be curious if when the Constitution
which gave limited original jurisdiction to the
Supreme Court, made suit brought by State against
citizens of another State, of that limited number
Congress had conferred the same jurisdiction an
inferior tribunal without an appeal to the former.


Looking at the question which considering
it may be affected by the authority Of judicial de-
eisons, have been unable to find, with the limited
opportunity which the exigeucy of this gives for
investigation, auv case in which it has been decided
that such jurisdiction exists in the Circuit Court.


Some reference is made TO the remarks OF the Su-
preme Court and in the dissenting opinion of the Chief
Justice in the Wheeling Bridge case, 13, How IS
which are supposed to favor such a doctrine But
such question before the court and both the Chief
Justice and Judge Mclean said nothing than that
the merits OF that case, aich original suit in
the Supreme Court, must be governed by the same
rules OF law would govern the Circuit Court of the
District of Virginia, if the pending before it ;
but 1t does appear that the question whether the
with such parties could be sustained in that court
had occurred to their minds Such suit brought by
the State of Iadana, tried by Mr. Justice Mclean
in the Circuit Court, without the question being rails
ed. 1t is the Indiana VS.. Miller, MeLeans Re
ports, and was removed by consent from the State