Commentaries on American Law (1826-30)

Chancellor James Kent

Of the Jurisdiction of the Federal Courts in
Respect to the Common Law, and in Respect to Parties

(I.) IT has been a subject of much discussion, whether the courts of the United States have a common law jurisdiction, and, if any, to what extent.

In the case of the United Stales v. Worrall,1 in the Circuit Court at Philadelphia, the defendant was indicted and. convicted of an attempt to bribe the commissioners of the revenue; and it was contended, on the motion in arrest of judgment, that the court had no jurisdiction of the case, because all the judicial authority of the federal courts was derived, either from the constitution, or the acts of congress made in pursuance of: it, and an attempt to bribe the commissioner of the revenue was not a violation of any constitutional or legislative prohibition. Whenever congress shall think any provision by law necessary to carry into effect the constitutional powers of the government, it was said, they may establish it, and then a violation of its sanctions will come within the jurisdiction of the circuit courts, which have exclusive cognizance of all crimes and offenses cognizable under the authority of the United States. Congress had provided by law for the punishment of various crimes, and even for the punishment of bribery itself in the case of a judge, an officer of the customs, or an officer of the excise; but, in the case of the commissioner of the revenue, the act of congress did not create or declare the offense. The question then fairly and directly presented itself, what was there to render it an offense arising under the constitution or laws of the United States, and cognizable under their authority? A case arising under a law, must mean a case depending on the exposition of a law, in respect to something which the law prohibits or enjoins; and if it were sufficient, in order to vest a jurisdiction to try a crime, or sustain an action, that a federal officer was concerned and affected by the act, a source of jurisdiction would be opened which would destroy all the barriers between the judicial authorities of the states and the general government. Though an attempt to bribe a public officer be an offense at common law, the constitution of the United States contains no reference to a common law authority. Every power in the constitution was matter of definite and positive grant, and the very powers that were granted could not take effect until they were exercised through the medium of a law. Though congress had the power to make a law which would render it criminal to offer a bribe to the commissioner of the revenue, they had not done it, and the crime was not recognized either by the legislative or constitutional code of the union.

In answer to this view of the subject, it was observed, that the offense was within the terms of the constitution, for it arose under a law of the United States, and was an attempt by bribery to obstruct or prevent the execution of the laws of the union. If the commissioner of the revenue had accepted the bribe, he would have been indictable in the courts of the United States; and upon principles of analogy. the offense of the person who attempted it must be equally cognizable in those courts. The prosecution against Henfield for serving on board a French privateer against the Dutch, was the exercise of a common law power, applied to an offense against the law of nations, and a breach of a treaty which provided no specific penalty for such a case.

The court were divided in opinion on this question. In the opinion of the circuit judge, an indictment at common law could not be sustained in the Circuit Court. It was admitted that congress were authorized to define and punish the crime of bribery, but as the act charged as an offense ill the indictment had not been declared by law to be criminal, the courts of the United States could not sustain a criminal prosecution for it. The United States, in their national capacity, have no common law, and their courts have not any common law jurisdiction in criminal cases, and congress have not provided by law for the offense contained in the indictment, and until they defined the offense, and prescribed the punishment, he thought the court had not jurisdiction of it.

The district judge was of a different opinion, and he held that the United States were constitutionally possessed of a common law power to punish misdemeanors, and the power might have been exercised by congress in the form of a law, or it might be enforced in a course of judicial proceeding. The offense in question was one against the well-being of the United States, and from its very nature cognizable under their authority.

This case settled nothing, as the court were divided; but it contained some of the principal arguments on each side of this nice and interesting constitutional question.

In the case of The United States v. Burr, which arose in the Circuit Court in Virginia in 1807, the chief justice of the United States declared,2 that the laws of the several states could not be regarded as rules of decision in trials for offenses against the United States, because no man could be condemned or prosecuted in the federal courts on a state law. The expression, trials at common law, used in the 34th section of the judiciary act, was not applicable to prosecutions for crimes. It applied to civil suits, as contradistinguished from criminal prosecutions, and to suits at common law, as contradistinguished from those which came before the court sitting as a court of equity and admiralty. He admitted, however, that when the judiciary act, sec. 14. authorized the courts to issue writs not specially provided for by statute, but which were agreeable to the principles and usage of law, it referred to that generally recognized and long established law which formed the substratum of the laws of every state.

The case of The United States v. Hudson & Goodwin,3 brought this great question in our national jurisprudence for the first time before the Supreme Court of the United States. The question there was, whether the Circuit Court of the United States had a common law, jurisdiction in cases of libel. The defendants had been indicted in the Circuit Court in Connecticut for a libel on the president of the United States, and the court was divided on the point of jurisdiction. A majority of the Supreme court decided, that the circuit courts could not exercise a common law jurisdiction in criminal cases.4 Of all the courts which the United States, under their general powers, might constitute, the Supreme Court was the only one that possessed jurisdiction derived immediately from the constitution. All other courts created by the general government possessed no jurisdiction but what was given them by the power that created them, and could be vested with none but what the power ceded to the general government would authorize them to confer, and the jurisdiction claimed in that case had not been conferred by any legislative act. When a court is created, and its operations confined to certain specific objects, it could not assume a more extended jurisdiction. Certain implied powers must necessarily result to the courts of justice from the nature of their institution, but jurisdiction of crimes against the state was not one of them. To fine for contempt, to imprison for contumacy, to enforce the observance of orders, are powers necessary to the exercise of all other powers, and incident to the courts, without the authority of a statute. But to exercise criminal jurisdiction in common law cases was not within their implied powers, and it was necessary for congress to make the act a crime, to affix a punishment to it, and to declare the court which should have jurisdiction.

The general question was afterwards brought into renewed discussion in the Circuit Court of the United States for Massachusetts, in the case of The United States v. Coolidge.5 Notwithstanding the decision in the case of The United States v. Hudson & Goodwin, the court in Massachusetts thought the question, in consequence of its vast importance, entitled to be reviewed and again discussed, especially as the case in the Supreme Court had been decided without argument, and by a majority only of the court. In this case the defendant was indicted for an offense committed on the high seas, in forcibly rescuing a prize which had been captured by an American cruiser. The simple question was, whether the Circuit Court had jurisdiction to punish offenses against the United States, which had not been previously defined, and a specific punishment affixed by statute. The judge who presided in that court did not think it necessary to consider the broad question whether the United States, as a sovereign power, bad entirely adopted the common law. He admitted that the courts of the United States were courts of limited jurisdiction, and could riot exercise any authorities not confided to them by the constitution and laws made in pursuance of it. But he insisted that when an authority was once lawfully given, the nature and extent of that authority, and the mode in which it should be exercised, must be regulated by the rules of the common law, and that if this distinction was kept in sight, it would dissipate the whole difficulty and obscurity of the subject.

It was not to be doubted that the constitution and laws of the United States were made in reference to the existence of the common law, whatever doubts might be entertained as to the question, whether the common law of England, in its broadest sense, including equity and admiralty as well as legal doctrines, was the common low of the United States. In many cases, the language of the constitution and law would be inexplicable without reference to the common law; and the. existence of the common law is not only supposed by the constitution, but it is appealed to for the construction and interpretation of its powers.

It was competent for congress to confide to the circuit courts jurisdiction of all offenses against the United States, and they have given to it exclusive cognizance of most crimes and offenses cognizable under the authority of the United States. The words of the 11th section of the judiciary act of 1789 were, that the circuit courts should have “exclusive cognizance of all crimes and offenses cognizable under the authority of the United States, except where this act otherwise provides, or the laws of the United States shall otherwise direct.” This means all crimes and offenses to which, by the constitution of the United States, the judicial power extends, and the jurisdiction could not be given in more broad and comprehensive terms. To ascertain what are crimes and offenses against the. United States, recourse must be had to the principles of the common law, taken in connection with the constitution. Thus, congress had provided for the punishment of murder, manslaughter, and perjury, under certain circumstances, but had not defined those crimes. The explanation of them must be sought in, and exclusively governed by, the common law; and upon any other supposition, the judicial power of the United States would be left in its exercise to arbitrary discretion.6 In a great variety of cases arising under the laws of the United States, the will of the legislature cannot be executed, unless by the adoption of the common law. The interpretation and exercise of the vested jurisdiction of the courts of the United States, as for instance, in suits in equity and in causes of admiralty and maritime jurisdiction, and in very many other cases, must, in the absence of positive law, be governed exclusively by the common law.

There are many crimes and offenses, such as offenses against the sovereignty, the public rights, the public justice, the public peace, and the public police of the United States, which are cognizance under its authority; and in the exercise of the jurisdiction of the United States over them, the principles of the common law must be applied in the absence of statute regulations. Treason, conspiracies to commit treason, embezzlement of public records, bribery, resistance to judicial process, riots and misdemeanors on the high seas, frauds and obstructions of the public laws of trade, and robbery and embezzlement of the mail of the United States, are offenses at common law, and when directed against the United States, they are offenses against the United States; and being offenses, the circuit courts have cognizance of them, and can try and punish them upon the principles of the common law. The punishment must be fine and imprisonment, for it is a settled principle, that where an offense exists, to which no specific punishment is affixed by statute, fine and imprisonment is the punishment. The common law is then to be referred to, not only as the rule of decision in criminal trials in the courts of the United States, but in the judgment or punishment; and by common law he meant the word in its, largest sense, as including the whole system of English jurisprudence.

It was accordingly concluded, that the circuit courts had cognizance of all offenses against the United States, and what those offenses were, depended upon the common law applied to the powers confided to the United States; and that the circuit courts having such cognizance, might punish by fine and imprisonment, where no punishment was specially provided by statute. The admiralty was a court of extensive criminal, as well as civil jurisdiction; and offenses of admiralty jurisdiction were exclusively cognizable by the United States, and were offenses against the United States, and. punishable by fine and imprisonment, when no other punishment was specially prescribed.

This case was brought up to the Supreme Court, but it was not argued. A difference of opinion still existed among the members of the court; and under the circumstances, the court merely said, that they did not choose to review their former decision in the case of The United States v. Hudson & Goodwin, or draw it in doubt.7 The decision was for the defendant, and consequently against the claim to any common law jurisdiction in criminal cases.

These jarring opinions and decisions of the federal courts, have not settled the general question as to the application and influence of the common law, upon clear and definite principles; and it may still be considered, in civil cases, as open for further consideration. The case of Hudson & Goodwin decided that the United States courts had no jurisdiction given them by the constitution or by statute, over libels; and the case of Worrall decided that they had no jurisdiction in the case of an attempt to bribe a commissioner of the revenue. If that were so, the common law certainly could not give them any. The cases were therefore very correctly decided upon the principle assumed by the court. But the subsequent case of Coolidge did not fall within that principle, because the offense there charged was clearly a case of admiralty jurisdiction, and the courts of the United States would seem to have had general and exclusive jurisdiction over the case. Mr. Du Ponceau, in his “Dissertation on the nature and extent of the jurisdiction of the courts of the United States,” has ably examined the subject, and shed strong light on this intrinsic and perplexed branch of the national jurisprudence. He pursues the distinction originally taken in the circuit court in Massachusetts, and maintains, that we have not, under our federal government, any common law, considered as a source of jurisdiction; while on the other hand, the common law, considered merely as the means or instrument of exercising the jurisdiction, conferred by the constitution and laws of the union, does exist, and forms a safe and beneficial system of national jurisprudence. The courts cannot derive their right to act from the common law. They must look for that right to the constitution and law of the United States. But when the general jurisdiction or authority is given, as in cases of admiralty and maritime jurisdiction, the rules of action under that jurisdiction, if not prescribed by statute, may, and must be taken from the common law, when they are applicable, because they are necessary to give effect to the jurisdiction.8

The principle assumed by the courts in the cases of Worrall and of Hudson & Goodwin, is considered to be a safe and sound principle. The mere circumstance that the party injured by the offense under prosecution, was an officer of the government of the United States, does not give jurisdiction; for neither the constitution, nor the judicial acts founded upon it, gave the federal courts a general jurisdiction in criminal cases, affecting the officers of government, as they have in cases affecting public ministers and consuls. Because an officer was appointed under the constitution, that would not of itself render all cases in which they were concerned, or might be affected, cases arising under the constitution and laws, and cognizable by the judiciary. Such a wide construction would be transferring legislative power to the judiciary, and vest it with almost unlimited jurisdiction; for where is the act that might not, in some distant manner, be connected with the constitution or laws of the United States? It rests alone in the discretion of congress, to throw over the persons and character of the officers of the government, acting in their official stations, a higher protection than that afforded by the laws of the states; and when laws are made for that purpose, the federal courts will be charged with the duty of executing them.

This appears to be sound doctrine, and to be deduced from the cases which have been mentioned. There is much weight undoubtedly due to the argument of the Circuit Court in Massachusetts; and an attempt to bribe an officer of the government, or to libel an officer of the government in relation to his official acts, would seem to be an offense against that government. They tend directly to weaken or pervert the administration of it; and if it once be admitted that such acts amount to an offense against the United States, they must of course be cognizable under its authority, and belong to the jurisdiction of the circuit courts. The great difficulty, and the danger is, in leaving it to the courts to say what is an offense against the United States, when the law has not specifically defined it. The safer course undoubtedly is, to confine the jurisdiction in criminal cases to statute offenses duly defined, and to cases within the express jurisdiction given by the constitution. The admiralty jurisdiction of the federal courts is derived expressly from the constitution; and criminal cases belonging to that jurisdiction by the common law, and by the law of nations, might well have been supposed to be cognizable in the admiralty courts, without any statute authority. If the common law be a rule of decision in the exercise of the lawful jurisdiction of the federal courts, why ought it not to apply to criminal, as well as to civil cases, and upon the same principle, when jurisdiction is clearly vested? If congress should by law authorize the district or circuit courts to take cognizance of attempts to bribe an officer of the government in the exercise of his official trust, and should make no further provision, the courts would, of course, in the description, definition, prosecution, and punishment of the offense, be bound to follow those general principles and usages, which are not repugnant to the constitution and laws of the United States, and which constitute the common law of the land, and form the basis of all American jurisprudence. Though the judiciary power of the United States cannot take cognizance of offenses at common law, unless they have jurisdiction over the person or subject matter, given them by the constitution or laws made in pursuance of it; yet, when the jurisdiction is once granted, the common law, under the correction of the constitution and statute law of the United States, would seem to be a necessary and a safe guide, in all cases, civil and criminal, arising under the exercise. of that jurisdiction, and not specially provided for by statute. Without such a guide, the courts would be left to a dangerous discretion, and to roam at large in the trackless field of their own imaginations.

The Supreme Court of the United States, in Robinson v. Campbell,9 went far towards the admission of the existence and application of the common law to civil cases in the federal courts. The judiciary act of 1789,10 had declared, that the laws of the several states, except where the constitution, treaties, or statutes of the union, otherwise required, should be regarded as rules of decision in trials at common law in the courts of the United States, in cases where they applied. The subsequent act of May, 1792, confirmed the modes of proceeding then used in suits at common law in the federal courts, and declared, that the modes of proceeding in suits in equity should be according to the principles and usages of courts of equity.11 Under those provisions, the court declared, that the remedies in the federal courts, at common law, and in equity, were to be, not according to the practice of state courts, “but according to the principles of common law and equity as distinguished and defined in that country from which we derived our knowledge of those principles.”

In this view of the subject, the common law may be cultivated as part of the jurisprudence of the United States. In its improved condition in England, and especially in its improved and varied condition in this country, under the benign influence of an expanded commerce, of enlightened justice, of republican principles, and of sound philosophy, the common law has become a code of matured ethics, and enlarged civil wisdom, admirably adapted to promote and secure the freedom and happiness of social life. It has proved to be a system replete with vigorous and healthy principles, eminently conducive to the growth of civil liberty; and it is in no instance disgraced by such a slavish political maxim as that with which the Institutes of Justinian are introduced.12 It is the common jurisprudence of the people of the United States, and was brought with them as colonists from England and established here, so far as it was adapted to our institutions and circumstances. It was claimed by the congress of the United Colonies in 1774, as a branch of those “indubitable rights and liberties to which the respective colonies are entitled.”13 It fills up every interstice, and occupies every wide space which the statute law cannot occupy. Its principles may be compared to the influence of the liberal arts and sciences; adversis perfugium ac solatium praebent; delectant domi, non impediunt foris; pernoctant nobiscum, peregrinantur, rusticantur. To use the words of the learned jurist to whom I have already alluded,14 “we live in the midst of the common law, we inhale it at every breath, imbibe it at every pore; we meet with it when we wake and when we lay down to sleep, when we travel and when we stay at home; and it is interwoven with the every idiom that we speak; and we cannot learn another system of laws, without learning, at the same time, another language.”

II. The jurisdiction of the federal courts ratione personarum, and depending on the relative character of the litigant parties, has been the subject of much judicial discussion. The constitution gives jurisdiction to the federal courts of all suits between aliens and citizens, and between citizens of different states, and we have a series of judicial decisions on that subject.

In Bingham v. Cabot,15 the Supreme Court held, that it was necessary to set forth the citizenship of the respective parties, or the alienage when a foreigner was concerned, by positive averments, in order to bring the case within the jurisdiction of the Circuit Court; and if there was not a sufficient allegation for that purpose on record, no jurisdiction of the suit would be sustained. The same doctrine was maintained in Turner v. Enville,16 and in Turner v. The Bank of North America;17 and it was declared, that the Circuit Court was a court of limited jurisdiction, and had cognizance only of a few cases specially circumstanced, and the fair presumption was, that a cause was without its jurisdiction till the contrary appeared. Upon that principle the rule was founded, making it necessary to set forth, upon the record of the Circuit Court, the facts or circumstances which gave jurisdiction, either expressly, or in such manner as to render them certain by legal intendment. It is necessary, therefore, where the defendant appears to be a citizen of one state, to show, by averment, that the plaintiff is a citizen of some other state, or an alien; or if the suit be upon a promissory note, by the endorsee, to show that the original payee was so; for it is his description, as well as that of the endorsee, which gives the jurisdiction.

The judiciary act of 1789, sec. 11 gives jurisdiction to the Circuit Court when an alien is a party, and it was decided in Mossman v. Higginson,18 that. the jurisdiction was confined to the case of suits between citizens and foreigners, and did riot extend to suits between alien and alien; and that if it appeared on record that the one party was an alien, it must likewise appear affirmatively, that the other party was a citizen. So, again, in Course v. Stead,19 it was decided to the same effect. The principle is, that it must appear on the record that the character of the parties supports the jurisdiction; and the points in this case were reasserted in Montalet v. Murray,20 and in Hodgson v. Bowerbank,21 and in Sullivan v. The Fulton Steam Boat Company.22 In Maxfield v. Levy,23 the question of jurisdiction arising from the character of the parties, was discussed in the Circuit Court in Pennsylvania, and the court animadverted severely upon an attempt to create a jurisdiction by fraud, contrary to the policy of the constitution, and the law. The suit was an ejectment between citizens of the same state, to try title to land; and to give jurisdiction to the Circuit Court, a deed was given collusively, and without any consideration, to a citizen of another state, for the sole purpose of making him a nominal plaintiff, in order to give the federal court jurisdiction. The court dismissed the suit, and observed that the constitution and laws of the United States had been anxious to define by precise boundaries, and preserve with great caution, the line between the judicial authority of the Union, and that of the individual states. No contrivance to defeat the law of the land, and create jurisdiction by fraud, could be tolerated.

The doctrine in the original case of Bingham v. Cabot, was again confirmed in Abercrombie v. Dupuis,24 with some symptoms of reluctance; and it would seem, that the court was not entirely satisfied with the precise limits in which their jurisdiction had been circumscribed, and embarrassed, by their predecessors. But in Strawbridge v. Curtiss,25 the limitation of the federal jurisdiction was considered as being still more close and precise. The Supreme. Court declared, that where the interest was joint, and two or more persons were concerned in that interest, as joint plaintiffs, or joint defendants, each of them must be competent to sue, or liable to be sued, in the federal courts; and the suit was dismissed in that case, because some of the plaintiffs and defendants were citizens of the same states.26 The next case that arose on this subject was, whether a corporation was a citizen within the meaning of the constitution, and could sue in the federal courts in consequence of its legal character; and it was decided, in the cases of the Hope Insurance Company v. Boardman, and of the Bank of the United States v. Deveaux,27 that a corporation aggregate was not, in its corporate capacity, a citizen, and that its right to litigate in the federal courts depended upon the character of the individuals who composed the body politic, and which character must appear by proper averments upon the record.28 But a corporate aggregate, composed of citizens of one state, may sue a citizen of another state in the Circuit Court of the United States.

With respect to the question on the peculiar right of the Bank of the United States to sue in the federal courts, it was decided in. reference to the first Bank of the United States, that no right was conferred on that hank by its act of incorporation, to sue in those courts. It had only the ordinary corporate capacity to sue, and be sued; and being an invisible artificial being, a mere legal entity, and not a citizen, its right to sue must depend upon the character of the individuals of which it was composed. The constitution of the United States supposed apprehensions might exist, that the tribunals of the states would not administer justice as impartially as those of the nation, to parties of every description, and therefore it established national tribunals for the decision of controversies be between aliens and a citizen, and between citizens of different states. The persons whom a corporation represents may be aliens or citizens, and the controversy is between persons suing by their corporate name for a corporate right, and the individual defendant. Where the members of the corporation are aliens or citizens of a different state from the opposite party, they come within the reason and terms of the jurisdiction of the federal courts.

The court can look beyond the corporate name, and notice the character of the members, who are not considered to every intent as placed out of view and merged in the corporation. Incorporated aliens may sue a citizen, or the incorporated citizens of one state may sue a citizen of another state, in the federal courts, by their corporate name, and the controversy is substantially between aliens and a citizen, or between the citizens of one state and those of another. In that case, the president, directors, and company of the Bank of the United States averred, that they were citizens of Pennsylvania, and that the defendants were citizens of Georgia; and this averment, not traversed or denied, was sufficient to sustain the suit in the Circuit Court. In suits by the present Bank of the United States, such an averment is not necessary, because the act incorporating the bank29 authorizes it to sue and be sued in the circuit courts of the United States, as well as in the state courts. Without such an express provision, it would have been difficult for the Bank of the United States ever to have sued in the federal courts, if the fact of citizenship of all the members was to be scrutinized, for there is probably few or no states which have not some stockholder of the bank a resident citizen.30 It was indispensable for congress to have provided specially for a jurisdiction over suits in which the bank was concerned, or no jurisdiction could well have been sustained. It was truly observed by the Supreme Court, that if the Bank of the United States could not sue a person who was a citizen of the same state with any one of its members, in the circuit courts, this disability would defeat the power.

A trustee who holds the legal interest, is competent to sue in right of his own character as a citizen or alien, as the case may be, in the federal courts, and without reference to the character or domicile of his cestuy que trust, unless he was created trustee for the fraudulent purpose of giving jurisdiction.31 This rule equally applies to executors and administrators, who are considered as the real parties in interest; but it does not apply to the case of a general assignee of an insolvent debtor, and he cannot sue in the federal courts if his assignor could not have sued there. The 11th section of the judiciary act will not permit jurisdiction to vest by the assignment of a chose in action, (cases of foreign bills of exchange excepted,) unless the original holder was entitled to sue, and whether the assignment was made by the act of the party, or by operations of law, makes no difference in the case.32

With respect to the District of Columbia, and to the territorial districts of the United States, they are not states within the sense of the constitution, and of the judiciary act, so as to enable a citizen thereof to sue a citizen of one of the states in the federal courts. However extraordinary it might seem to be, that the courts of the United States, which were open to aliens, and to the citizens of every state, should be closed upon the inhabitants of those districts, on the construction that they were not citizens of a state, yet as the court observed, this was a subject for legislative, and not for judicial consideration.33

If the jurisdiction of the circuit court between citizens of different states has once vested, it is not divested by a subsequent change of domicile of one of the parties, and his removal into the same state with the adverse party, pendente lite.34 The jurisdiction depends upon the state of things at the time the action is brought. So, an endorsee of a note who resides in one state, may sue his immediate endorser who resides in another state, though that immediate endorser and the maker be residents of the same state. The endorsement is a new contract between the parties to the record, quite distinct from the original note.35

The case of Osborn v. The Bank of the United States,36 brought into view important principles touching the constitutional jurisdiction of the federal courts, where a state claimed to be essentially a party. The court decided, that the circuit courts had lawful jurisdiction, under the act of congress incorporating the national bank, of a bill in equity brought by the bank for the purpose of protecting it in the exercise of its franchises, which were threatened to be invaded under a law of the state of Ohio, and that as the state itself could not be made a party defendant, the suit might be maintained against the officers and agents of the state who were entrusted with the execution of such laws.

As the amendment to the constitution prohibited a state to be made a party defendant by individuals of other states, the court felt the pressure and difficulty of the objection, that the state of Ohio was substantially a party defendant, inasmuch as the process of the court in the suit acted directly upon the state, by restraining its officers from executing a law of the state. The direct interest of the state in the suit was admitted, but the objection, if it were valid, would go in its consequences completely to destroy the powers of the union. If the federal courts had no jurisdiction, then the agents of a state, under an unconstitutional law of the state, might arrest the execution of any law of the United States. A state might impose a fine or penalty on any person employed in the execution of any law of the union, and levy it by a ministerial officer, without the sanction every of its own courts. All the various public officers of the United States, such as the carrier of the mail, the collector of the revenue, and the marshal of the district, might be inhibited, under ruinous penalties, from the performance of their respective duties. And if the courts of the United States cannot rightfully protect, the agents, who execute every law authorized by the constitution, from the direct action of state agents in the collection of penalties, they could not rightfully protect those who execute any law. The court insisted that there was no such deplorable failure of jurisdiction, and that the federal judiciary might rightfully protect those employed in carrying into execution the laws of the union from the attempts of a particular state, by its agents, to resist the execution of those laws. It may use preventive proceedings, by injunction or otherwise, against the agents or officers of the state, and authorize proceedings against the very property seized by the agent; and the court concluded, that a suit brought against individuals for any cause whatever, was not a suit against a state in the sense of the constitution. The constitution contemplated a distinction between cases in which a state was interested, and those in which it was a party; and to be a party for the purpose of jurisdiction, it is necessary to be one upon record. The constitution only intended a party on record, and to be shown in the first instance by the simple inspection of the record, and that is what is intended in all cases where jurisdiction depends upon the party.

The question of jurisdiction depending upon the character and residence of parties, came again into discussion in the case of The Bank of the United States v. The Planter’s Bank of Georgia;37 and it was decided that the circuit courts had jurisdiction of suits brought by the Bank of the United States against a state bank, notwithstanding the state itself was a stockholder, together with private individuals who were citizens of the same state with some of the stockholders of the Bank of the United States. It was declared, that the state of Georgia was not to be deemed a party defendant, though interested as a stockholder in the defense. The state, so far as concerned that transaction, was divested of its sovereign character, and took that of a private citizen.

We have now seen how far the courts of the United States have a common law jurisdiction; and it appears to have heel. wholly disclaimed in criminal cases; and the true distinction would seem to be, that all federal jurisdiction in civil and criminal cases, must be derived from the constitution and the laws made in pursuance of it; and that when the jurisdiction is vested, the principles of the common law are necessary to the due exercise of that jurisdiction. We have seen, likewise, with what caution, and within what precise limits the federal courts have exercised jurisdiction in controversies between citizens and aliens, and between citizens of different states. In the next lecture, we shall enter upon a particular examination of the powers and claims of the federal courts, relative to admiralty and maritime jurisdiction.


     1.    2 Dallas, 384.
     2.    Opinion delivered September 3d, 1807, and reported by Mr. Ritchie.
     3.    7 Cranch, 32.
     4.    In the states of Ohio and Louisiana, it is understood to be held that there is no common law indictable offense, and that every indictable offense must be grounded upon some statute.
     5.    1 Gallison 488.
     6.    Judge Wilson, in his charge to a grand jury in the Circuit Court of the United States, in Virginia, in 1791, observed, that we must recur to the common law for the definition and description of many crimes against the United States. See Wilson’s Works, vol. 3, 371-377.
     7.    1 Wheaton, 415.
     8.    Cui jurisdictio data est, ea quoque concessa esse videntur, sine quibus jurisdictio explicari non potest. Dig. 2. 1, 2.
     9.    3 Wheaton, 212. 10. Ibid. 159.
   10.    Sec. 34.
   11.    The practice of the Supreme Courts of the states in use in September 1789, was adopted, subject to alterations by the federal courts. 1 Paine, 428, 429. 10 Wheaton, 1. The federal courts follow the decisions of the state courts on the construction of state laws, unless they come in conflict with the constitution or laws of the United States. 10 Wheaton, 159. 1 Paine, 564.
   12.    Quod principi placuit, legis habet vigorem. Inst. 1, 2. 6.
   13.    Declaration of rights of 14th October, 1774. Journals of Congress, vol. 1. p. 28.
   14.    Du Ponceau on jurisdiction, p. 91.
   15.    3 Dallas, 382.
   16.    4 Dallas, 7.
   17.    4. Dallas, 8.
   18.    4 Dallas, 12.
   19.    4 Dallas, 22. The omission of the above averments, or any other requisite to give jurisdiction, is matter of substance. and not cured by verdict, nor amendable after verdict. 1 Paine, 486, 594.
   20.    4 Cranch, 46.
   21.    5 Cranch, 303.
   22.    6 Wheaton, 450.
   23.    4 Dallas, 330.
   24.    1 Cranch. 343.
   25.    3 Cranch, 267.
   26.    But the Circuit Court of the United States is not deprived of its jurisdiction arising from the character of the party, by joining with an alien or citizen of another state, a mere nominal party, who does not possess the requisite character. 5 Cranch, 303. 8 Wheaton, 451. 1 Paine, 410. And if a citizen of one state establishes his domicile in another, it is sufficient to enable him to sue in the federal courts. Even if he removes from one state to another with the avowed object to acquire a capacity to sue in the federal courts, it is not deemed a fraud upon the law, provided he removes with the intention to establish his permanent residence. Catlett v. Pacific Ins. Co. 1 Paine, 594.
   27.    5 Cranch, 57, 61.
   28.    In Breithaupt v. The Bank of Georgia, 1 Peters’ Rep 238. it was there held that a bill to give jurisdiction must state that the stockholders were citizens of Georgia.
   29.    Act of Congress, April 10, 1816. sec. 7.
   30.    Osborn v. United States Bank, 9 Wheaton 738. United States Bank v. Planter’s Bank, 9 Wheaton 901.
   31.    Chappedelaine v. Decheneux, 4 Cranch, 306. 308. Browne v. Strode, 5 Cranch, 303. See also 5 Cranch, 91, and Childress v. Emory, 8 Wheaten, 642.
   32.    Sere v.Pilot, 6 Cranch, 332.
   33.    Hepburn v. Ellzey, 2 Cranch, 445. Corporation of New Orleans v. Winter, 1 Wheaton, 91.
   34.    Morgan v. Morgan, 2 Wheaten, 290.
   35.    Young v. Bryan, 6 Wheaton, 146. Mollan v. Torrance, 9 Wheaton, 537.
   36.    9 Wheaton, 738.
   37.    9 Wheaton 904.