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 even 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 ctherwise, 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 Plant

er's Bank of Georgia, 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 defence. The state, so far as concerned that transaction, was devested of its sovereign character, and took that of a private citizen.

We have seen how far the courts of the United States have a common law jurisdiction; and it appears to have been 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.

a 9 Wheaton, 904. Bank of Kentucky v. Wister, 2 Pelers' U. S. R. 318. S. P.

LECTURE XVII.

OF THE DISTRICT AND TERRITORIAL COURTS OF THE
UNITED STATES.

THE District Courts act as courts of common law, and also as courts of admiralty.

jurisdiction

trict Courts.

A distinction is made in England between the instance and the prize Court of Admiralty. The former is the ordinary admiralty court, but the latter is a special and extra- Admiralty ordinary jurisdiction; and although it be exercised by the of the Dis same person, it is in no way connected with the former, either in its origin, its mode of proceeding, or the principles which govern it. To constitute the prize court, or to call it into action in time of war, a special commission issues, and the court proceeds summarily, and is governed by general principles of policy, and the law of nations. This was the doctrine of the English Court of King's Bench, as declared by Lord Mansfield in Lindo v. Rodney; and though some parts of his learned and elaborate opinion in that case do not appear to be very clear and precise on the point concerning the difference in the foundation of the powers of the instance and of the prize court of admiralty, yet I should infer from it that the judge of the English admiralty requires a special commission, distinct from his ordinary commission, to enable him, in time of war, to assume the jurisdiction of prize. The practice continues to this day, of issuing a special commission, on the breaking out of hostilities, to the commissioners for executing the office of lord high admiral, giving them jurisdiction in prize cases.b

The division of the Court of Admiralty into two courts is said not to have been generally known to the common lawyers of England before the case of Lindo v. Rodney; and yet it appears, from the research made in that case, that the prize jurisdiction was established from the earliest periods of the English judicial history. The instance court is the ordinary and appropriate Court of Admiralty, and takes cognizance of the general subjects of admiralty jurisdiction, and it proceeds according to the civil and maritime law. The prize court has exclusive cognizance of matters of prize, and matters incidental thereto, and it proceeds to hear and determine according to the course of the admiralty and the law of nations. The distinction between these two courts, or rather between these two departments of the same court, is kept up throughout all the proceedings; and the appeals from the decrees of these two jurisdictions are distinct, and made to separate tribunals. The appeal from the instance court lies to delegates, but from the prize court it lies to the lords commissioners of appeals in prize causes, and who are appointed for that special purpose.

Such is the distinction in England between the instance and the prize Court of Admiralty; and in the case of Ex parte Lynch, it was held, that the jurisdiction of the admiralty as a prize court, did not cease with the war, but extended to all the incidents of prize, and to an indefinite period after the war. It remains to see how far that distinction is known or preserved in the jurisdiction of our District Courts.

It is said by a judge, who must have been well acquainted with this subject, (for he was a register of a colonial Court of Admiralty before our revolution,) that this distinction between the instance and the prize court was not known to our admiralty proceedings under the colony administrations."

a 1 Maddock's Rep. 15.

b 1 Peters' Adm. Rep. 5, 6.

In the case of Jennings v. Carson, the District Court of Pennsylvania, in 1792, decided, that prize jurisdiction was involved in the general delegation of admiralty and maritime powers, and that Congress, by the judiciary act of 1789, meant to convey to the District Courts all the powers appertaining to admiralty and maritime jurisdiction, including that of prize. Prize jurisdiction was inherent in a Court of Admiralty, though it was of course a dormant power until called into activity by the occurrence of war.

b

District

Courts are

equally in

stance and

But notwithstanding this early decision in favour of the plenary jurisdiction of the District Courts as Courts of Admiralty, there was great doubt entertained in this country, prize courts. about the year 1793, whether the District Courts had jurisdiction under the act of Congress of 1789, as prize courts. The District Court of Maryland decided against the juris-. diction, and that decree was affirmed on appeal to the Circuit Court, on the ground that a prize cause was not a civil cause of admiralty jurisdiction, but rested on the jus belli, and that there was no prize court in existence in the United States. The same question was carried up to the Supreme Court of the United States, in February, 1794, in the case of Glass v. The sloop Betsey, and was ably discussed. The Supreme Court put an end at once to all these difficulties about jurisdiction, by declaring that the District Courts of the United States possessed all the powers of Courts of Admiralty, whether considered as instance or as prize courts. In the case of The Emulous, the Circuit Court in Massachusetts was inclined to think, that the admiralty, from time immemorial, had an inherent jurisdiction in prize, because, if we examine the most venerable relics of ancient maritime jurisprudence, we shall find the admiralty in possession of prize jurisdiction, independent of any known special commission. It seems to have always constituted an ordinary, and not an extraordinary branch of the admiralty powers;

с

a 1 Peters' Adm. Rep. 1.

b 3 Dallas, 6. c 1 Gallison, 563.