jurisdiction. But subsequently to the passage of the Judiciary Act, the eleventh amendment of the Constitution took from the judicial power of the United States all cognizance of suits brought against a state by citizens of other states in the Union, or by the citizens or subjects of foreign states. There remain, therefore, of the cases to which a state can be a party as defendant in the courts of the Union only those between two or more states,' between a state and a foreign state, and those between a state and its own citizens. Practically, however, the two first are the only cases that can arise, since the states do not generally allow of suits being brought against them by their own citizens ;3 and as to these, the jurisdiction of the Supreme Court is made by the Judiciary Act exclusive. Where a state is plaintiff, and the citizens of other states, or aliens, are defendants, the Supreme Court has original, but not exclusive jurisdiction.

§ 146. As to the controversies to which the United States shall be a party, those between citizens of the different states, or between the citizens of a state and aliens or foreign states, it appears to have been the purpose of the Constitution to provide a tribunal, to which resort might be had, which would be more likely to be impartial, than the state courts might always be, under the same circumstances: but to leave the resort to that tribunal entirely optional. That the jurisdiction was not intended to be exclusive is apparent, from the fact, that the state courts may have had an antecedent jurisdiction in these cases, which are characterized only by a description of the parties, without reference to the subjectmatter, and that the Constitution employs no language with reference to them, which might import a surrender of that antecedent jurisdiction. Accordingly, the Judiciary Act has

The State of New Jersey v. The State of New York, 5 Peters, 283; Rhode Island v. Massachusetts, 12 Peters, 657.

2 The Cherokee Nation v. The State of Georgia, 5 Peters, 1.

3 This exception does not extend to a writ of error prosecuted to the Supreme Court of the United States by an individual against a state. Cohens v. Virginia, ante.

made the jurisdiction of the courts of the United States concurrent only, in these cases, with that of the state courts.1

§ 147. There remains only the class of cases described by the Constitution as "controversies between citizens of the same state claiming lands under grants of different states." It is not easy to make a strict classification of these cases, under the one or the other general head of jurisdiction. The character of the parties is not alone regarded, nor is the character of the subject-matter the sole ground of jurisdiction. Both seem to have been taken into view. On the one hand, the character of the parties is expressly designated; but as this is the only case where jurisdiction has been expressly conferred between citizens of the same state, and as the same reasons for a national jurisdiction do not generally exist between citizens of the same state as between citizens of different states, a peculiar reason for the jurisdiction in this particular case must be sought for. That reason is to be found in the subject-matter, which is a comparison of titles claimed to be derived from the grants of different states. The Constitution intended to secure an impartial tribunal for the decision of these causes, and it supposed that a state tribunal might not stand indifferent in a controversy where the claims of its own sovereign were in conflict with those of another sovereign. But the Constitution employs no terms with reference to this class of cases, which evince an intention to make the jurisdiction exclusive; and from the very nature of the cases, it would be impracticable to establish any exclusive original jurisdiction in the courts of the United States, so as to compel parties in all instances to originate their cases in those courts, for the reason that the title claimed by the defendant may not appear until after a suit has been instituted. Accordingly, what the Judiciary Act has done, is, to give either party a right to have the case removed into a circuit court, when it has been commenced in a state court,

2

1 Act of 1789, 89, 11.

2 Town of Pawlet v. Clarke, 9 Cranch, 292, 322.

and it appears that the parties respectively claim lands of the value of more than five hundred dollars, under the grants of different states.1

§ 148. Connected with this subject of the original jurisdiction of the courts of the United States, and their relation to the state courts, we have again to notice the power of removal, which, as we have just seen, is sometimes exerted, where the nature of the subject-matter cannot appear until after a suit has been instituted, but where the subject-matter is in fact such as to bring the case within the judicial power of the United States, and it is proper that that power should act by way of original jurisdiction. This power of removal is also exerted in some cases where the jurisdiction depends on the characters of the parties, and where the plaintiff has seen fit to institute the proceeding in a state court. The existence of this power, under the Constitution, is clearly to be inferred from the nature, objects, and extent of the judicial power of the United States. The Constitution has declared that the judicial power shall extend to certain cases described, and has left it to Congress to provide that it shall reach them by the exercise of original or appellate jurisdiction, or both, excepting in the few cases where it has vested original jurisdiction in the Supreme Court. Congress may therefore employ the original jurisdiction in such manner as will most effectually answer and completely fulfil the purposes of the Constitution. It may employ it in such a manner as to compel all cases of a certain class to be instituted in the courts of the United States alone, where it is practicable to do so, and may provide that another class of cases may be transferred to them, when they originate elsewhere, and be prosecuted as if they had been commenced in the first instance in the national tribunals. In either form of exercising the original jurisdiction, Congress is employing only the judicial power which the Constitution has created. Indeed, without the power of removal, the judicial power

1 Act of 1789, & 12.

would be deprived of many of the objects to which the Constitution has expressly extended it. Not only may cases be commenced in the state courts, where the parties are such as the Constitution describes, but other cases, where the subject-· matter is such as the Constitution intended to include within the judicial power, may also be instituted in the state tribunals. All these cases are within the judicial power, as well after they have been instituted, as before; but the facts which bring them within the definitions of the Constitution, may not appear until after the suit has been commenced. It may be laid down, therefore, as a general proposition, that wherever there is a case cognizable in the courts of the United States, of which the state courts have concurrent jurisdiction, it is competent to Congress to provide for its removal from a state court to a court of the United States, to be proceeded in as if it had originated in the latter jurisdiction.

§ 149. But this power of removal has been extended only to three classes of cases: 1. Those involving a title to land of more than $500 value, where both parties are citizens of the same state, and claim under the grants of different states; 2. Those where the plaintiff is a citizen of one state and the defendant is a citizen of another state, or an alien;2 3. Those where any officer of the United States, or other person, is sued in a state court for or on account of any act done under the revenue laws of the United States, or under color thereof, or for or on account of any right, authority, or title, set up or claimed by such officer or other person, under any such law of the United States. The mode in which such removals are to be effected, will be a proper subject of consideration, in treating of the jurisdiction of the circuit and district courts.

1 Act of 1789, 212.

2 Ibid. 3 Act of March 3, 1833, 3.

BOOK II.

THE JURISDICTION AND PRACTICE OF THE SUPREME COURT OF THE UNITED STATES.

CHAPTER I.

THE ORIGINAL JURISDICTION OF THE SUPREME COURT OF THE UNITED STATES.

§ 150. WE have seen that the Constitution conferred upon the Supreme Court of the United States original jurisdiction in "all cases affecting ambassadors, other public ministers, and consuls, and those in which a state shall be a party." We have also seen that the better opinion is, that this original jurisdiction, given on account of the character of the party, is exclusively vested in the Supreme Court by the Constitution; that it is not exclusive of its appellate jurisdiction, on account of the character of the party, if an inferior court of the United States had jurisdiction on account of the character of the cause; and that it is confined to the cases enumerated in the Constitution, and cannot be enlarged by Congress.3

§ 151. The Judiciary Act, passed on the 24th September, 1789, declared that "the Supreme Court shall have exclusive jurisdiction of all controversies of a civil nature, where a state is a party, except between a state and its citizens; and except also between a state and citizens of other states, or aliens, in which latter case it shall have original, but not 3 Ante.

Ante.

2 Ante.