of Georgia; (a) 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, 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. (b)

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 Peters, 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.

(b) Story, J., 11 Peters, 349.

[898]

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.

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 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; (a) 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. 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 a) Doug. 613, note. (b) Ex parte Lynch, 1 Mad. 15.

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, (a) 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 administrations. (a) In the 355 case of Jennings v. Carson, (b) 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.

But notwithstanding this early decision in favor of the plenary jurisdiction of the district courts as courts of admiralty, there was great doubt entertained in this country, 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 (b) Ib. 1.

(a) 1 Mad. 15

(a) 1 Pet. Adm. 5, 6.

decided against the jurisdiction, 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 (c) 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, (d) 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 extra*356 ordinary branch of the admiralty powers; * and it is to be observed, that Lord Mansfield leaves the point uncertain whether the prize and the instance jurisdictions were coeval in antiquity, or whether the former was constituted by special commission. Be that as it may, the equal jurisdiction of the admiralty in this country, as an instance and as a prize court, is now definitely settled; and if the prize branch of the jurisdiction of the admiralty be not known in time of peace, it is merely because its powers lie dormant, from the want of business to call them into action.1

There is no pretence of claim, on the parts of courts of common law, to any share in the prize jurisdiction of the courts of admiralty. It is necessarily and completely exclusive; and we will first take a view of the jurisdiction and powers of the district courts in prize cases, and then of their ordinary admiralty jurisdiction. As prize questions are applicable to a state of war, and are governed chiefly by the rules of the law of nations, and the usages and practices of the maritime powers, I do not propose

(c) 8 Dallas, 6; Penhallow v. Doane, 3 Dallas, 54, s. P. See, also, the act of Con gress of June 26th, 1812, sec. 6.

(d) 1 Gall. 563.

See cases cited 357, n. 1.

to enlarge on that subject. My object will be to ascertain the exact jurisdiction of the district court, in all its various powers and complicated character. I shall consider, (1.) its character as a prize court. (2.) As a court of criminal jurisdiction in admiralty. (3.) The division line between the admiralty and the courts of common law. (4.) Its powers as an instance court of admiralty. (5.) Its jurisdiction as a court of common law, and clothed, also, with special powers.

1. Of the District Court as a Prize Court. The ordinary prize jurisdiction of the admiralty extends to all captures in war made on the high seas. I know of no other definition of prize goods, said Sir William Scott, in the case of the Two Friends, (a)

than that they are goods taken on the high seas jure *357 belli, out of the hands of the enemy. The prize jurisdiction also extends to captures in foreign ports and harbors, and to captures made on land by naval forces, and upon surrenders to naval forces, either solely, or by joint operation with land forces. (a) It extends to captures made in rivers, ports, and harbors of the captor's own country. But as to plunder or booty in a mere continental land war, without the presence or intervention of any ships or their crews, Lord Mansfield admitted in Lindo v. Rodney, there was no case or authority, or principle, to enable him to bring it within the cognizance of a prize court. (b) The prize court extends, also, to all ransom bills upon captures at sea, and to money received as a ransom or commutation, on a capitulation to naval forces alone, or jointly with land forces. (c) The federal courts have asserted for the prize courts in this country a jurisdiction equally as ample and extensive as any claimed for them in England. In the case of (a) 1 C. Rob. 271.

(a) Lindo v. Rodney, Doug. 613, note.

(b) In the case of Alexander v. The Duke of Wellington, 2 Russ. & My. 35, Lord Brougham said, that military prize rests upon the same principles of law as prize at sea, though in general no statute passes with respect to it.

(c) Ships taken at Genoa, 4 C. Rob. 388; Anthon v. Fisher, Doug. 649, note; Maisonnaire v. Keating, 2 Gall. 325.

1 Prize Jurisdiction. - United States v. Weed, 5 Wall 62, 69; The Amy Warwick, 2 Sprague, 123; The Hiawatha, Blatchf. Pr. 1; 282 Bales of Cotton, ib. 302; The Anna, ib. 337; The Prize Cases, 2 Black, 635; Jecker v. Montgomery, 13 How. 498. See the act of June 30, 1864, ch. 174, 13

U. S. St. at L. 306, which does not exhaust the subject, however. There are cases outside of it. The Siren, 1 Lowell, 280. The exclusive jurisdiction in prize of the admiralty was asserted as to captures made on the Mississippi River during the rebellion.

United States v. 2694 Bales of