party, pendente lite. The jurisdiction depends upon the state of things at the time the action is brought. (1) 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.b

where a state

and not a

cord.

The case of Osborn v. The Bank of the United States, Jurisdiction brought into view important principles touching the constitu- is interested, tional jurisdiction of the federal courts, where a state claimed party on reto 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 intrusted 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 the 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 jurisdic- *351 tion, 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

Morgan v. Morgan, 2 Wheaton, 290. Clarke v. Matthewson, 12 Peters, 164. b Young v. Bryan, 6 Wheaton, 146. Mollan v. Torrance, 9 Wheaton, 537. c 9 Wheaton, 738.

(1) Therefore the appointment of a person as consul of a foreign power does not work an abatement of a suit already commenced. Koppel v. Heinrichs, 1 Barb. S. C. Rep. 449.

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 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.a

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*352 ers' *Bank of Georgia; and it was decided that the

In the case of McNutt v. Bland, 2 Howard R. 9, it was decided, that a citizen of another state might sue a citizen of Mississippi, in the Circuit Court of the United States, though he sued in the name of the nominal plaintiff or trustee, who was also a citizen of Mississippi, provided he was the party in interest. Mr. Justice Daniel dissented, and contended, on the authority of prior decisions, that the jurisdiction depended, not on the situation of the parties concerned in interest, but on the character of the parties appearing on the record.

b 9 Wheaton, 904. Bank of Kentucky v. Wister, 2 Peters' U. S. Rep. 318. S. P. In this last case it was decided that an incorporated bank was suable, though the whole property and control of the bank belonged to the state incorporating it.

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, as a state, to be deemed a party defendant, though interested as a stockholder in the defence. The state, so far as concerned that transaction, was divested of its sovereign character, and took that of a private citizen; and this principle applies to every case in which the government becomes a partner in any trading company.

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.

LECTURE XVII.

jurisdiction

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.

Admiralty A distinction is made in England between the instance and of the Dis- the prize court of admiralty. The former is the ordinary adtrict Courts. miralty court, but the latter is a special and extraordinary

jurisdiction; and although it be exercised by the 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 *354 *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. Rod

ney; 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 courts 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 registrar 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 administra- *355 tions. 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.

1 Maddock's Rep. 15. VOL. I.

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

• 1 Ibid. 1.

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