tion over all cases arising under treaties, and that this jurisdiction should be either exclusive, or, if shared by the state courts, should be supreme over those local tribunals. As private rights of property are often based upon the stipulations of treaties, and as the state courts have a very general power to adjudicate upon this class of rights, it has not been deemed expedient to withdraw from them all jurisdiction over cases arising under treaties; the control of the nation has been preserved by the provisions made for a review stated in preceding paragraphs.

§ 753. Cases affecting Ambassadors, other public Ministers, and Consuls. The considerations which were adverted to under the preceding head, apply with equal force to this. The exclusive control over foreign relations extends to the cases of public ministers as well as to treaties. But there is another consideration especially applicable to these foreign representatives. Ambassadors and other public ministers are, by the International Law, exempt to a very great extent from the civil and criminal jurisdiction of the country in which they reside. The exceptions to this rule are few in number, special in character, and based upon state necessities. Any interference with a foreign minister in violation of this rule is an insult to the independence and sovereignty of the nation which he represents. The interference is a crime of state against the government to which the ambassador is accredited, and demands an apology and reparation from that government proportioned to the offence. By our Constitution the national authorities are solely responsible for the observance of these rules of the International Law; they alone may judge whether the act of the foreign minister be such as to bring him within the exceptions to those rules; they alone should have jurisdiction of all cases affecting this class of officials. Were the state courts to assume the jurisdiction, they would not be restrained by the sense of responsibility for their acts; and if they were uncontrolled by the central government, they might, at any time, jeopard the relations existing between us and foreign powers. As consuls do not by the International Law, enjoy any such immunity, the reasons are not so strong

for conferring an exclusive jurisdiction over them upon the national tribunals. But as they are foreign representatives, acting under a foreign commission, charged with the duty of protecting foreign commercial interests, and often particularly mentioned in treaties, it was thought proper to place them under the control of the same courts. The Constitution gives

to the Supreme Court an original jurisdiction in this class of cases. The "Judiciary Act" of 1789 made this jurisdiction exclusive in all actions brought against an ambassador or other foreign minister, but concurrent only in those brought by ambassadors and other foreign ministers, and in those where a consul is a party. It may be that the Constitution, by its very terms, deprives the state courts of all authority in any of these cases; at all events, the question can hardly be considered as definitely settled.

As

§ 754. Cases of Admiralty and Maritime Jurisdiction. the Congress of the United States has power to regulate commerce, and as admiralty extends over the high seas beyond the territorial limits of any particular state, it seems peculiarly necessary for the national courts to have jurisdiction in cases. of this description. One class of proceedings falling under the general head of admiralty, should confessedly be within the exclusive authority of the United States tribunals. As the general government can alone carry on war, and as all captures are made by it or under its authority, and as it is responsible to neutral nations for the observance of neutral rights, all questions of prize taken in maritime war must be determined by the national courts alone. But the Supreme Court of the United States has very recently decided in The Moses Taylor1 and The Hine v. Trevor 2 that the grant of the Constitution and the legislation of Congress thereunder have conferred an exclusive jurisdiction in all civil cases of admiralty upon the courts of the nation, and that this jurisdiction extends to the great inland navigable rivers and lakes, as well as to the tide waters.

§ 755. Controversies to which the United States shall be

14 Wallace's R. 411.

33

2 Ibid. 555.

a party. As the United States is supreme, sovereign, and independent, it should not be compelled to sue in the courts of another commonwealth, but should be able to bring actions in its own tribunals. This is particularly the case when the proceeding is against a person prosecuted for a crime. It would hardly be consistent with the dignity of the nation for it to enforce its penal laws in the courts of a subordinate power. In respect to civil actions the reasons are not so imperative. There is nothing in the nature of things to prevent one nation from prosecuting a private suit in the courts of another, but it should certainly be able to do so in its own.

§ 756. Controversies between two or more States. Jurisdiction in these proceedings belongs to the nation as a part of its paramount sovereignty. As the several states stand towards each other in a condition of equality, none could, without its consent, be sued in its own courts, much less be compelled to appear and answer in those of the prosecuting commonwealth. But as the states stand towards the general government in a condition of subordination, they may well implead each other in the tribunals of their superiors.

§757. The foregoing enumeration exhausts the list of cases in which the United States possesses a jurisdiction which is necessary, which is a part of its essential attribute of paramount sovereignty. It will be noticed that in all except the cases of ambassadors, those to which the United States is a party, and those between two or more states, the jurisdiction is based upon the subject-matter of the controversy, without any reference to the character or situation of the parties; while in the three instances named the jurisdictional fact is the character of the parties without any reference to the subject-matter of the controversy or the nature of the cause of action. The principles which lie at the bottom of the judicial system of the United States, and which determine the extent of jurisdiction. granted by the Constitution, and the particular applications of those grants which Congress has authority to make, were discussed in the most exhaustive manner, and settled in accordance with the national idea in the early cases of Martin v.

Hunter's Lessee 1 and Cohens v. Virginia,2 and in the more recent case of Ablemann v. Booth.8

§ 758. The supplementary jurisdiction, or that based entirely upon considerations of expediency. -The grants of judicial power referable to this head are plainly the following: "Controversies between a state and citizens of another state; controversies between citizens of different states;" "controversies between citizens of the same state claiming lands under grants of different states;" and "controversies between a state or citizens thereof, and foreign states, citizens, or subjects." The peculiar reasons for conferring a power to hear and decide these controversies, have already been alluded to. They are all summed up in the desire to furnish a tribunal free from partisan influences in those cases where it was feared lest local interests might prevent perfect justice being done to suitors. When we examine these several grants of power, we perceive that, with one exception, the jurisdictional fact is found in the peculiar character and situation of the parties, and has no reference to the subject-matter of the controversy. If the parties fall within the terms of the requirement, there is no constitutional restriction placed upon the causes of action which may be the foundation of suits.

§ 759. Is the jurisdiction included within these several grants exclusively in the national courts, or held by them. concurrently with the state tribunals? Plainly the latter is the true interpretation of the Constitution. In all these cases, the judiciary of the United States is not wielding a power which belongs to it of right, of necessity, but one which the state judges may also wield; a power relating entirely to state laws, to rights and duties flowing from state legislation. For the same reason this jurisdiction is not supreme; the decisions of the national courts by virtue thereof are not binding upon those of the states. These courts are not interpreting or enforcing the law of the United States in any of its forms; they are interpreting and enforcing the law of the particular state in which the controversy arose. The suitor, there26 Wheaton's R. 264.

1 1 Wheaton's R. 304.

3 21 Howard's R. 506.

fore, can only demand that his rights shall be secured according to a just view of the local law from which those rights are claimed to flow. The single duty of the national judges is to secure those rights according to their best understanding of that law; they cannot insist that their interpretation and their judgments shall be taken as a guide by the state tribunals in any subsequent cases. As a practical consequence of this principle there need not be, indeed there cannot be, any uniformity in the decisions of the United States judiciary made under this branch of their general authority. As there is great diversity in the state legislation, and as the courts of the nation simply expound and apply that legislation, there must be a similar diversity in the results of their labor. The practice of the Supreme Court of the United States is therefore firmly settled, that in all controversies falling within this department of their jurisdiction, they will follow the statutes and authoritative decisions of the local courts which have defined and established the law of the commonwealth where the cause of action arose.1

§ 759. It is not in accordance with my plan to describe the various national courts and the distribution of powers among them. A few important and general rules, however, which seem to form a part of our Constitutional Law, may well be stated.

The broad principle which lies at the bottom of these rules, and which was not established without a very vigorous dissent from many able jurists and statesmen, is, that the national courts have no common law jurisdiction whatever, and that all the powers they possess must be referred to the grants of the Constitution, or to these grants and laws of Congress passed in pursuance thereof.

1 See Luther v. Borden, 7 Howard's R. 1: Phalen v. Virginia, 8 Ib. 163 Webster v. Cooper, 14 Ib. 504: Beauregard v. New Orleans, 18 Ib. 497: Gelpcke v. Dubuque, 1 Wallace's R. 175. It has been held, however, that upon questions depending upon general commercial law, or upon general equity jurisprudence, the court will not be bound by the decisions of the state courts. This rule seems to be inconsistent with the principles which should guide the court in this branch of its jurisdiction. See Swift v. Tyson, 16 Peters' R. 1: Watson v. Tarpley, 18 Howard's R. 517, 520: Neves v. Scott, 13 Ib. 268: Nichols t. Levy, 5 Wallace's R. 433.