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 offence, 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 offences 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, 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, 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 8th, 1792, confirmed

a 3 Wheaton, 212. 10 Ibid. 159.

b Sec. 34.

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. 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. It is the common jurisprudence of the people of the United States, and was brought with them as

a 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. 1 Peters' Cir. R. 1. Those modes and forms of proceeding remain unaffected by subsequent state regulations on the subject. 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. The state laws which are made rules of decision in the federal courts, are those which apply to rights of person and property. U. States v. Wonson, 1 Gall. 18. Mayer v. Foulkrod, 4 Wash. Cir. R. 349.

b Quod principi placuil, legis habet vigorem. Inst. 1. 2. 6.

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." 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 præbent; delectant domi, non impediunt foris; pernoctant nobiscum, peregrinantur, rusticantur. To use the words of the learned jurist to whom I have already alluded, "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."

b

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 resident citizens of different states, and we have a series of judicial decisions on that subject. If the case arises under the constitution, laws, or treaties of the Union, it is immaterial who may be parties; and if it arises between aliens and citizens, or between citizens of different states, it is immaterial what may be the nature of the controversy.

Jurisdiction

when an

In Bingham v. Cabot, the Supreme Court held, that it was necessary to set forth the citizenship of the respective alien is a

a Declaration of rights of 14th October, 1774. Journals of Con

gress, vol. 1. p. 28.

b Du Ponceau on Jurisdiction, p. 91.

c Lessee of Butler v. Farnsworth, 4 Wash. Cir. R. 101.

d 3 Dallas, 382.

party.

Between citizens of dif

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 that 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, and in Turner v. The Bank of North America; 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 that 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. But an alien cannot sue a citizen in the Circuit Court of the United States, if the latter be at the time a resident in a foreign country, notwithstanding he has property in the district which might be attached. No compulsory process, under the judiciary act of 1789, lies against a person who is not at the time an inhabitant of, or is not found in, the district in which the process issues.c

The judiciary act of 1789, sec. 11. gives jurisdiction to ferent statos. the Circuit Court when an alien is a party; and it was decided in Mossman v. Higginson, that the jurisdiction was confined to the case of suits between citizens and foreigners, and did not extend to suits between alien and alien; and

a 4 Dallas, 7. b 4 Dallas, 8.

e Picquet v. Swan, 5 Mason, 35.

d 4 Dallas, 12.

d

с

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 it was decided to the same effect. The principle is, that it must appear upon the record, that the character of the parties supports the jurisdiction; and the points in that case were reasserted in Montalet v. Murray, and in Hodgson v. Bowerbank, and in Sullivan v. The Fulton Steam-Boat Company. In Maxfield v. Levy," 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. But if a citizen of one state thinks proper to change his domicil, and remove with his family to another state, not colourably, but permanently, and with a bona fide intention to reside there,

a 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. Jackson V. Twentyman, 2 Peters' U. S. Rep. 136.

b 4 Cranch, 46.

c 5 Cranch, 303.

d 6 Wheaton, 450. Dodge v. Perkins, 4 Mason, 435. S. P.