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 very idiom that we speak; and we cannot learn another system of laws without learning, at the same time, another language."

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, (c) 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, for the subject-matter gives jurisdiction; 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, for the character of the parties gives jurisdiction.

* 344

3. Jurisdiction when an Alien is a Party. In Bingham v. Cabot, (d) the Supreme Court held, that it was necessary to set forth the citizenship of the respective * 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. Enrille, (a) and in Turner v. The Bank of North America; (b) and it was declared, that the circuit court was a court of limited jurisdiction, and had cognizance only of a few cases specially ciring to the rules of the common law. Were it otherwise, there would be nothing to exempt us from an absolute despotism of opinion and practice.1

(c) Lesser of Butler v. Farnsworth, 4 Wash. 101.

(d) 3 Dallas, 382.

(b) 4 Dallas, 8.

1 Professor Theodore W. Dwight, in an able article in 6 Am. Law Reg. N. s. 257, maintains the view that the Constitution only adopts impeachment as a mode of procedure, and that there can be no impeachment except for a violation of a law of Congress, or for the commission of a crime named in the Constitution. On another page (641) of the same volume

(a) 4 Dallas, 7.

Mr. Justice Lawrence, of Ohio, presents the opposite view, which was acted upon, as is well known, in framing the articles against President Johnson. See points and authorities submitted by the same author, Johnson's Trial. See also the arguments of counsel in that case on the one side and the other.

cumstanced, 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 indorsee, to show that the original payee was so; for it is his description, as well as that of the indorsee, 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. This goes to exclude from the federal courts the proceeding by foreign attachment under the local laws of the states. (c)

4. Jurisdiction between Citizens of Different States.—The Judiciary Act of 1789, sec. 11, gives jurisdiction to the circuit court when an alien is a party; and it was decided in Mossman v. Higginson, (d) that the jurisdiction was confined to the case of suits

*

between citizens and foreigners, and did not extend to *345 suits between alien and alien; and 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, (a) 1 it was decided to the same effect. The

(c) Picquet v. Swan, 5 Mason, 35; Toland v. Sprague, 12 Peters, 300. (d) 4 Dallas, 12.

(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, 186.

1 Prentiss v. Brennan, 2 Blatchf. 162; Rateau v. Bernard, 3 Blatchf. 244. So the court has no jurisdiction when all the parties, as well plaintiffs as defendants, are citizens of states other than that in which the suit is brought. Kelly v. Harding, 5 Blatchf. 502. See Merserole v.

Union Paper Collar Co., 6 Blatchf. 356. And when some of the parties to a bill for partition, being citizens of the District of Columbia, made a merely colorable conveyance to a citizen of a state, it was held not to give the court jurisdiction. Barney v. Baltimore, 6 Wall. 280. See Jones v.

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, (b) and in Hodgson v. Bowerbank, (c) and in Sullivan v. The Fulton Steamboat Company. (d) In Maxfield v. Levy, (e) 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. (f) But if a citizen of one state thinks proper to change his domicile, and remove with his family to another state, not colorably, but permanently, and with a bona fide intention to reside there, even though *346 his object was to avail himself of the jurisdiction of the federal courts, he becomes instantly a citizen of the other state, and may sue as such in the courts of the United States. (a)

(b) 4 Cranch, 46.

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(c) 5 Cranch, 303.

(d) 6 Wheaton, 450; Dodge v. Perkins, 4 Mason, 435, s. p.

(e) 4 Dallas, 330. This case was repudiated by Mr. Justice Story, in Briggs v. French, 2 Sumner, 257, as being erroneously decided.

(f) The same doctrine was held by Judge Washington, in Hurst v. McNeil, 1 Wash. 70, 83. But in Briggs v. French, 2 Sumner, 251, it was pointedly condemned; and the judge held, that a conveyance of land by a citizen of one state to a citizen of another, for the purpose of enabling the latter to maintain a suit on it in the courts of the United States, vested a legal title, and a stranger not claiming under either of the parties had no right to inquire into the motive of the conveyance.

(a) Lessee of Cooper v. Galbraith, 3 League, 18 How. 76; Smith v. Kernochen, 7 How. 198; Starling v. Hawks, 5 McL. 818. But it was admitted that if the conveyance had really transferred the interest, although made for the avowed purpose of enabling the court to entertain

VOL. I.

Wash. 546; Case v. Clark, 5 Mason, 70; jurisdiction of the case, it would have accomplished that purpose, 6 Wall. 288, and it was so held in Osborne v. Brooklyn City R. R., 5 Blatchf. 366; Newby v. Oregon C. R. Co., 8 Am. Law Times, 127.

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The doctrine in the original case of Bingham v. Cabot was again confirmed in Abercrombie v. Dupuis, (b) with some symptoms of reluctance; and it would seem that the court was not entirely satisfied with the precise limits in which their jurisdiction had been circumscribed and embarrassed by their predecessors. But in Strawbridge v. Curtiss, (c) the limitation of the federal jurisdiction was considered as being still more close and precise. The Supreme Court declared, that where the interest was joint, and two or more persons were concerned in that interest, as joint plaintiffs, or joint defendants, each of them must be competent to sue, or liable to be sued, in the federal courts; and the suit was dismissed in that case, because some of the plaintiffs and defendants were citizens of the same state. (d)1 The next case Catlett v. Pacific Ins. Co., 1 Paine, 594. In Briggs v. French, 2 Sumner, 251, it was held, that it was sufficient to give jurisdiction to the federal courts, that a citizen of one state had really, and not merely nominally, removed from one state to another, though his motive might have been to prosecute a suit in the courts of the United States. It was sufficient if the plaintiff was in fact a citizen of one state and the defendant of another. The motive of the removal was not to be inquired into. (c) 3 Cranch, 267.

(b) 1 Cranch, 343. (d) But the circuit court of the United States is not deprived of its jurisdiction arising from the character of the party, by joining with an alien or citizen of another state a mere nominal party, who does not possess the requisite character. 5 Cranch, 803; 8 Wheaton, 451; 1 Paine, 410. It has likewise been adjudged, that as the courts of Louisiana do not proceed according to the rules of the common law, but of the civil law, a suit may be brought in the federal courts by a resident alien against one or two obligors, bound severally as well as jointly, who reside in Louisiana, though the other obligor resides in another state. The rule in chancery and in the civil law is, that if the court can make a decree according to justice and equity between the parties before them, that decree shall not be withheld because a party out of its jurisdiction is not made a defendant, although he must have been united in the suit had he been within the reach of the process of the court. This was the principle of that decision. Breedlove v. Nicolet, 7 Peters, 413. See, also, Harrison v. Urann, 1 Story, 64. And now, by act of Congress of February 28th, 1839, c. 36, if there be several defendants, and any one or more of them is not an inhabitant of, or not found in the district where the suit is brought, and does not voluntarily appear, the court may entertain jurisdic tion, and proceed against the parties properly before it.

1 The act mentioned at the end of note (d) does not enable the circuit court to make a decree in a suit in the absence of a party whose rights must necessarily be affected by such decree. On the other hand, it had been determined before the act was passed, that the nonjoinder, for want of jurisdiction, of parties merely formal, or necessary, but without whom

the court could proceed to a decree and do complete and final justice to the parties before it, was not fatal. So the act seems to be hardly more than declaratory in equity cases. Barney v. Baltimore, 6 Wall. 280; Shields v. Barrow, 17 How. 130; Coiron v. Millaudon, 19 How. 113. See also Drake v. Goodridge, 6 Blatchf 151.

that arose on this subject was, whether a corporation was a citizen within the meaning of the Constitution, and could sue in the federal courts in consequence of its legal character; and it was decided in the cases of The Hope Insurance Company v. Boardman, and of The Bank of the United States v. Deveaux, (e) that a corporation aggregate was not, in its corporate capacity, a citizen, and that its right to litigate in the federal courts depended upon the character of the individuals who com- *347 pose the body politic, and which character must appear by proper averments upon the record. (a)1 But a corporation aggregate, composed of citizens of one state, may sue a citizen of another state in the circuit court of the United States. If any of the stockholders are citizens of the same state with the defendant, the federal courts have no jurisdiction. And the rule relative to suits originally instituted in the courts of the United States, requiring all the individuals composing the respective parties to possess the requisite character to give the court jurisdiction, applies equally to suits removed from the state courts. (b)

(e) 5 Cranch, 57, 61; Bank of Augusta v. Earle, 13 Peters, 519; Wood v. Hartford Fire Insurance Co., 13 Conn. 202, s. p.

(a) In Breithaupt v. The Bank of Georgia, 1 Peters, 238, it was there held that a bill, to give jurisdiction, must state that the stockholders were citizens of Georgia.

(b) Ward v. Arredondo, 1 Paine, 410; Bank of Cumberland v. Willis, 3 Sumner, 472. But the very inconvenient and narrow doctrine contained in the cases of Strawbridge v. Curtiss, 3 Cranch, 367; Bank of the United States v. Deveaux, 5 Cranch, 84, and Comm. and R. R. Bank of Vicksburg v. Slocomb, 14 Peters, 60, was reviewed and overruled in the Louisville Railroad Co. v. Letson, in 2 How. 497. It was there held, that a corporation created and doing business in a state was an inhabitant of the state, capable of being treated as a citizen, for all purposes of suing and being sued, although some of the members of the corporation were not citizens of the state in which the suit was brought, and although the state itself might be a member of the corporation. This was a very important and salutary decision, and reinstated the

1 The rule has now taken the form of a legal fiction. For while a suit by or against a corporation is considered to be brought by or against its members, they are conclusively presumed, for purposes of jurisdiction, to be citizens of the state in which the body was incorporated. Railway Co. v. Whitton, 13 Wall. 270, 284; Ohio & Mississippi R.R. v. Wheeler, 1 Black, 286; Covington Drawbridge Co. v. Shepherd, 20 How. 227; Marshall v. Balt. & Ohio R.R., 16 How. 314; Lafayette Ins.

Co. v. French, 18 How. 404; Insurance
Co. v. Francis, 11 Wall. 210; Pennsylvania
v. Quicksilver Co., 10 Wall. 553; Express
Co. v. Kountze, 8 Wall. 342.

On this principle it is held that a suit may be brought by a national bank organized and located in one state against a citizen of another in the circuit court sitting in the latter state. Manufacturers' N. Bank v. Baack, 2 Abbott, U. S. 232, explaining a dictum in Kennedy v. Gibson 8 Wall. 498, 506.