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. 1 But the power of one state to sue another must be confined to suits in which a state is a real and not a merely nominal party. And therefore it was held in a recent case that one state could not maintain an action against another to collect its bonds, which were really owned by citizens of the plaintiff state, but which had been, under a state law, assigned by such citizens to the state for the purpose of collection, and thus to avoid the effect of that clause of the Constitution forbidding the citizens of one state from suing another state in the United States court. That a person cannot sue his own state, except under some state law, is, of course, well settled.2 And the right by individuals to sue a state being wholly a matter of statutory regulation, any state may repeal its law, making it amenable to civil suit, even if thereby the state is enabled to repudiate its contracts. Whether a particular suit against some officer of the state or of the United States, in his official capacity, is really to be considered a suit against the state, and so not maintainable, is a question upon which much difference of opinion exists; and possibly all the decisions of the Supreme Court on this point may not be easily reconciled. Some of the most important where such actions have been sustained are Davis v. Gray, 16 Wall. 203; Board of Liquidation v. McComb, 92 U. S. 531; United States v. Lee, 106 U. S. 196; and the Virginia Coupon Cases, 114 U. S. 269. On the other hand, the opposite view has been maintained with much ability by Mr. Justice Gray, in the dissenting opinion in United States v. Lee, 102 U. S. 223; by Mr. Justice Bradley, in the Virginia Coupon Cases, 114 U. S. 330; in Louisiana v. Jumel, 107 U. S. 711; and in the recent case of Hans v. Louisiana, 24 Fed. Rep. 55 (1885). ED. 1 New Hampshire v. Louisiana, 108 U. S. 76. ED. 2 See Hans v. Louisiana, 24 Fed. Rep. 55 (1885), in which the subject is carefully considered. ED. § 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.3 § 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 constitu 11 Wheat. 304. 26 Ibid. 264. tional 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, therefore, 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 So the construction uniformly given to the Constitution. 1 See Luther v. Borden, 7 How. 1; Phalen v. Virginia, 8 Ibid. 163; Webster v. Cooper, 14 Ibid. 504; Beauregard v. New Orleans, 18 Ibid. 497; Gelpcke v. Dubuque, 1 Wall. 175. It has been held, however, that upon questions depending upon general commercial law, or upon general of a state by its highest court is binding on the courts of the United States as a rule of decision. Gray, J., in Post v. Supervisors of Amoskeag Bank, 105 U. S. 667, affirming Town of South Ottawa v. Perkins, 94 U. S. 260. If differ ent constructions have been given by the state court, and rights have been acquired under the former, the federal courts incline to follow the earlier decisions. Fairfield v. County of Gallatin, 100 U. S. 47. One exception exists to the rule that a construction of a state court upon a state statute is concurrent with the United States court; and that is when a state court has interpreted the statutes of a state, though they have been made in the forms of law, or through the authorized functionaries of a state acting in conformity with state legislation. Wright v. Nagle, 101 U. S. 791. § 760. 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. The Supreme Court has an original jurisdiction in all cases affecting ambassadors, other public ministers, and consuls, and in those to which a state shall be a party. This original authority cannot be abridged, -nor, on the other hand, can it be extended, by the legislature.1 In all other cases mentioned in Article III. Section II., the Supreme Court has appellate jurisdiction, "with such excepequity 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 Pet. 1; Watson v. Tarpley, 18 How. 517, 520; Neves v. Scott 13 Ibid. 268; Nichols v. Levy, 5 Wall. 433. 1 Marbury v. Madison, 1 Cranch, 137. tions and under such regulations as Congress shall make." All appellate jurisdiction must therefore be exercised in pursuance of positive statutes which must themselves fall within the constitutional grants. In fact, the legislation of Congress has fallen far short of the limits set by the organic law.2 In all cases excepting those affecting foreign representatives, and those in which a state is a party, the original jurisdiction is therefore given to "such inferior courts as Congress may, from time to time, ordain and establish." The legislature has complete discretion in the creation of these subordinate tribunals; it may allot powers and distribute jurisdiction at will; it may confer upon them all the authority permitted by the Constitution to be given, or may grant but a small portion thereof. As a matter of fact, Congress has been very unwilling to clothe the national courts with all the functions which the Constitution recognizes as appropriate for them. The following principle results from these facts: The inferior courts. possess no powers whatever except those included in the terms of statutes passed in pursuance of the Constitution. If the power invoked cannot be found in the statute, it does not exist, even though it plainly falls within some general clause of Article III. Section II. If the power be statutory, it is still a nullity if it transcends the scope of the constitutional grant.3 The same principle has been applied to jurisdiction over criminals. There are no common law crimes within the authority of the national courts; they must go to statutes of Congress alone as guides to determine what constitutes an offence against the United States.4 1 See, accordingly, The Francis Wright, 105 U. S. 381; The Abbotsford, 98 U. S. 440. And see Bank v. Skelly, 1 Black, 436; Burgess v. Seligman, 107 U. S. 20. ED. 2 Wiscart v. Dauchy, 3 Dall. 321; Clarke v. Bazadone, 1 Cranch, 212; United States v. Moore, 3 Cranch, 159; Durousseau v. United States, 6 Cranch, 307; Ex parte Kearney, 7 Wheat. 38; Ex parte Watkins, 3 Pet. 193. 3 Mossman v. Higgenson, 4 Dall. 12; Hodgson v. Bowerbank, 5 Cranch, 303; Bank of U. S. v. Deveaux, 5 Cranch, 61. Ex parte Bollman, 4 Cranch, 75; United States v. Hudson, 7 Cranch, 32; United States v. Coolridge, 1 Wheat. 415; United States v. Bevans, 3 Wheat. 446. |