in other words, what jurisdiction has the Constitution directly conferred, or authorized the Congress to confer; (2) to describe the extent to which Congress has acted, or in other words, how has passed laws which confer the jurisdiction which may be given; and (3) to explain the organization of the national courts, and the distribution of functions among them. The first only of these topics belongs, however, to the department of Constitutional Law, and it alone will be considered in this work.

§ 730. As introductory to the particular matter of this chapter a few observations will be made upon the nature of jurisdiction in general. Jurisdiction is, in brief, the power of a court to decide. To state the same fact in another form, it is the power or capacity of a court to grant a remedy, and thus to protect some primary legal right, and enforce some primary legal duty. It may therefore be contentious, where the existence of the right and duty is denied, and must be established before the remedy is granted; or it may be ex parte or noncontentious, where the existence of the right is admitted, and only some formal act of a court is necessary in order that the right may be protected or enforced.

The jurisdiction residing in all tribunals of justice, may be considered in respect of its several kinds, classes, natures, and grades or degrees, and also in respect of the sources from which it is derived. When jurisdiction is considered in respect of its various kinds, classes, natures, and degrees, we shall find several distinct lines of division, based upon different ideas, and often crossing each other.

§ 731. In relation to the mere form and kind of the remedy administered by the courts, there are in England and America the familiar departments of civil and criminal jurisdiction; the one being the power to administer a remedy on the application of a private suitor, for the establishment, protection, or enforcement of a private legal right; the other, the power to administer a remedy on the application of the state, for the punishment of a breach of a duty to society. Again: in relation to the mere form and kind of the remedy administered, there are in England and America the well known divisions of Common. Law, Equity, Admiralty, and Probate jurisdiction; and in

England the special case of Ecclesiastical jurisdiction growing out of the union of church and state. The common law jurisdiction is both civil and criminal; the admiralty, though mainly civil, has a criminal side; the equitable and the probate are purely civil.

§ 732. In relation to its nature, jurisdiction of all kinds is either original or appellate. All the courts which exercise any power to administer a remedy, must exercise it in one of these two forms. Original jurisdiction is the power to hear and decide a legal controversy, or to administer a remedy, in the first instance. Courts in which suits may be brought, or which may grant some special remedies, are, in respect of such suits and special remedies, tribunals of original jurisdiction. The appellate, on the other hand, is entirely a power to review the act, or decision, or determination of some other court, the appellate tribunal being generally considered as superior to the one whose decision is appealed from and reviewed. It is plain that there is nothing in the nature of things to prevent the same court from possessing both an original and an appellate jurisdiction. In fact, as the judicial machinery of England and of America is organized, there is an ascending series of courts, many of those which are intermediate having both the original and the appellate jurisdiction. In the United States system there are three grades of tribunals, the District Courts, the Circuit Courts, and the Supreme Court. The first of these possesses only an original jurisdiction; the second is clothed with both; the Supreme Court is chiefly appellate, but some special original jurisdiction of great importance is conferred upon it.

§ 733. Jurisdiction may be exclusive, or concurrent. A court possesses an exclusive jurisdiction when it alone can take cognizance of a particular class of cases, or can administer some particular remedy. Thus, by the combined operation of the Constitution, and of statutes of Congress passed in virtue thereof, the national courts have a jurisdiction exclusive of the states over certain classes of cases, as for example, suits for the infringements of patent rights, admiralty causes, and many others. Two or more courts have a concurrent jurisdiction

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when the suit or proceeding might have been originally instituted in either, at the will or election of the suitor.

§ 734. In relation to the extent of the power which courts possess to hear and determine, their jurisdiction is general, or limited. The word general, used in its broadest sense, would imply that the court had authority to hear and determine any and all suits and proceedings of every description which may be instituted to enforce, protect, or establish legal rights; while the word limited would imply that the court was restricted in its authority to some particular kinds or classes of suits or proceedings. If this wide significance were given to the word general, there is no court in England or America which possesses a general jurisdiction. There is plainly none in America, because all state courts are prevented from entertaining some special classes of suits which are confided exclusively to the national tribunals, while these latter are hedged about by the provisions of the Constitution which confine their powers within comparatively narrow bounds. The word, therefore, as descriptive of jurisdiction, is used in a sense much less broad. Certain kinds of courts are, from their very nature, plainly limited; the peculiar functions which they wield forbid the use of the word general as applied to them. Thus, courts purely and distinctively admiralty, or probate, do not possess a general jurisdiction; although we might with propriety denominate them if the fact were so-courts of general admiralty, or of general probate jurisdiction, that is, courts in which all admiralty, or all probate matters might be originally brought.

§ 735. The epithet general, as descriptive of jurisdiction, and as designating a class of courts, is only applied to common law and equity tribunals. A common law court possesses general jurisdiction, when it may originally entertain all actions or proceedings by which common law remedies are administered, and rights strictly legal enforced, without restriction as to the nature of the controversy, or the situation of the parties, except such as the modes of practice and procedure adopted, have established. An equity court possesses general jurisdiction, when it may originally entertain all actions and proceedings by which equitable remedies are administered, and equitable

rights are enforced. In England the three superior courts, the King's Bench, the Common Pleas, and the Exchequer are examples of the former class; the High Court of Chancery, of the second class. In the United States all the state tribunals are, by the operation of the National Constitution, deprived of certain functions which belong to the superior courts of law and of equity in England. Bearing this important restriction in mind it may be said that each state contains at least one court of general jurisdiction, which, in most instances, extends to cases both in law and equity. None of the United States Courts, as we shall see in the sequel, can properly be said to have a general jurisdiction.

§ 736. The great majority of courts plainly possess but a limited jurisdiction, whatever be the form and nature of the particular remedies which they administer. Indeed it would hardly be proper to assume the kind of remedy which any court is competent to grant, as the criterion or test of the extent of its jurisdiction. If we should suppose that one tribunal might entertain and determine suits based upon all possible causes of action, but was restricted to a certain class of remedies, while another tribunal might entertain and determine suits based upon the very same states of facts, but was limited to the use of an entirely different class of remedies, we would properly say of each that it possessed a general jurisdiction. What then is meant by the term limited, as applied to courts? It is opposed to general, as the latter has been defined. The limitation imposed upon the jurisdiction of any particular court, may have respect solely to the subject-matter of the action or proceeding which is entertained therein; or solely to the persons who, as parties, may prosecute or be prosecuted therein; or to these two combined.

§ 737. 1. The Subject-matter of the Action. I speak now of this limitation independent of all others. It involves the fact that any person capable of proceeding or being proceeded against at all, may prosecute or be prosecuted in such courts; but that such persons can only institute suits based upon certain specified causes of action, can only seek relief for certain particular breaches of primary rights, or for breaches of certain

particular primary rights. This restriction upon the subjectmatter over which the court has jurisdiction, may relate to several different elements or characteristics of that subjectmatter. It may have reference exclusively to the essential nature of the cause of action; that is, to the very nature of the primary right or the breach thereof. Thus courts of probate are confined to a narrow and accurately defined field of activity. The jurisdiction of admiralty courts is limited to a very special class of forensic disputes. This species of limitation rests, to a very great extent, upon the national courts. The restriction upon the subject-matter over which a court has jurisdiction, may also have reference solely to the amount of the claim, or the value of the property involved in the controversy. Or it may be based upon the locality of the cause of action; that is, upon the situation of the property which is in dispute, or upon the place where the cause of action arose, if it do not relate to the ownership of, or injury to, fixed property.

This limitation ex

§ 738. 2. The Parties to the Action. tends to those cases only where some peculiar character impressed upon the person, or some peculiar circumstance affecting him, is necessary to give the court jurisdiction over him either as the party prosecuting or the party defending; so that when this necessity is met, any subject-matter may be drawn within the sphere of judicial action. The restriction as to persons may have reference to some peculiar status or official character of the litigants. Thus the Constitution gives to the Supreme Court a jurisdiction in all matters affecting ambassadors, other public ministers, and consuls. By far the most common form of this limitation has respect to the residence or locality of the parties. The Constitution makes the residence of parties a criterion or test of the jurisdiction held by the national courts, without any reference to the subject-matter of the controversy; it gives those tribunals the power to entertain and decide all controversies between a state and citizens of another state, between citizens of different states, and between a state or citizens thereof, and foreign states, citizens, or subjects.

In the case of many inferior courts these two general species