§ 80. The next class of cases subjected to the judicial power of the United States is, "controversies between citizens of the same state claiming lands under grants of different states." The object of this clause was, to secure an impartial tribunal for the decision of causes arising from the grants of different states. It was 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. It had no reference to the antecedent situation of the territory, whether included in one sovereignty or another. It simply regarded the fact, whether the grants arose under the same state or under different states. Accordingly, cases of grants made by different states are within the jurisdiction, notwithstanding one of the states was originally part of the other. It is the grant which passes the legal title, and if the controversy is founded upon the conflicting grants of different states, the judicial power of the United States extends to the case, whatever may have been the equitable title of the parties prior to the grant.3

§ 81. The last class of cases consists of "controversies between a state, or the citizens thereof, and foreign states, citizens, or subjects." The object of this provision was to give the cognizance of controversies, in which foreign states, or individual foreigners, are parties, to the national judiciary. The controversies between a foreign state and a state of this Union, which are contemplated by this clause, must of course be such as can be submitted to judicial cognizance. The controversies in which individuals are concerned must be those between an alien and a state, or a citizen, of the United States. If the party to the record be an alien, he is within this clause, whether he sues in his own right, or as a trustee, if he have a substantial interest as a trustee ; and

1 Town of Pawlet v. Clarke, 9 Cranch, 292.

2 Ibid.

Colson v. Lewis, 2 Wheat. 377.

Chappedelaine v. De Cheneaux, 4 Cranch, 306.

1

if the nominal plaintiff, although a citizen, sues for the use of an alien, who is the real party in interest, the case is within the jurisdiction. A foreign corporation, all of whose members are aliens, is an alien for this purpose. But in all these cases, the opposite party must be a citizen, and this from the record.3

must appear

1 Brown v. Strode, 5 Cranch, 303.

2 Society for Propagating the Gospel v. The Town of New Haven, 8 Wheaton, 464. Quere, whether it would now be necessary, in the case of a foreign corporation, that all its members should be aliens, since the decision in Louisville Railroad Company v. Letson, 2 Howard, 497.

3 Jackson v. Twentyman, 2 Peters, 136.

CHAPTER VI.

WHAT CONSTITUTES JUDICIAL POWER.

§ 82. WE now come to the very interesting and important question: What constitutes the exercise of judicial power, within the meaning of the Constitution?

§ 83. The language of the Constitution, which creates and defines the power of the judicial department, establishes a limited and not a general jurisdiction. The objects upon which that jurisdiction is to be exercised are described in two general classes, as "cases" and "controversies." In the first class are comprehended "all cases in law and equity, arising under the Constitution, laws, or treaties of the United States," "all cases affecting ambassadors, other public ministers and consuls," and "all cases of admiralty and maritime jurisdiction." In the latter class are embraced "controversies" between parties particularly described, and one "controversy" where the parties and the subject-matter are also particularly designated. The term, "cases," however, is applied as a generic term to all these objects, in that clause of the 3d article, which distributes the original and appellate jurisdiction of the Supreme Court. From this phraseology, it is apparent that the objects on which the judicial power is to be exerted, are those proceedings, civil or criminal, arising under the circumstances limited by the terms of the Constitution, which, in their nature and form, are capable of being submitted to judicial action. The term. "case" has received a judicial construction, which affixes to it this limitation, namely, that where the subject on which action is invoked, has assumed such a form that judicial

power is capable of acting upon it, it becomes within the meaning of the Constitution.

66

So, too, the terms,

cases in law and equity," have been held to contemplate those judicial proceedings in which legal or equitable rights between party and party are to be ascertained in courts of justice, according to the forms peculiar to a legal or equitable jurisdiction. The term, "case," therefore, as used in the Constitution, is of limited signification. It is a controversy between parties, which has taken a shape for judicial decision. To come within this description, a question must assume a legal form, for forensic litigation and judicial decision.3

§ 84. It is to be observed, also, in this connexion, that the Constitution has established an executive and a legislative, as well as a judicial department; that to each of these departments it has assigned distinct powers and duties, and from their distinct functions and the objects committed to them, the maxim is derived, which forbids each of them to encroach upon the powers of either of the others. Each of these departments exercises its powers and functions upon objects which arise under, or are called into existence by the Constitution, laws, or treaties of the United States. The duty of the executive is prescribed by the Constitution, or by laws or treaties made in pursuance of its provisions. The powers of the legislative branch extend to all matters of

Osborne v. The Bank of the United States, 9 Wheaton, 738, 819.

2 Robinson v. Campbell, 3 Wheat. 212, 221; Parsons v. Bedford, 3 Peters, 433, 446, 447.

3 See the argument of Ch. J. Marshall, in the House of Representatives (March, 1800), on the case of Jonathan Robbin. Annals of Congress, 6th Congress, p. 596, 606, 618. (Washington: Gales and Seaton,

1851.)

4 The Constitution of the United States has placed the power of recognising a State government in the hands of Congress. The question, therefore, whether a particular Constitution has been established in any State, is a question for the political, and not for the judicial department of the government. Luther v. Borden, 7 Howard, 1.

ment.

legislation, that grow out of the exercise of the powers which the Constitution has conferred upon the general governIt is obvious, therefore, that whether the determination of a particular question belongs to the one or the other of these three departments, is a matter which cannot be concluded by the single circumstance, that it arises under, or grows out of the Constitution, laws, or treaties of the United States. There may, for instance, be a question which arises under a treaty, but which it may belong exclusively to the executive to determine; as, where the treaty requires a particular act to be done by the government, and the question is, whether the casus fœderis has arisen. So, too, there may be a question arising under a law of the United States, which may belong wholly to the executive or legislative branch of the government, according to the directions of Congress; as where a law directs a sum of money to be paid to certain claimants, or a patent for land to be issued, or letters-patent to be granted, and the question is, whether the party claiming has satisfied the requisitions of the law. So, too, a question might arise, whether a foreign minister should be permitted to maintain his official connexion with the government; and this, in one sense, would constitute "a case" by which such a minister would be deeply "affected;" but no one would doubt that such a question belonged exclusively to the executive. So, too, a question might arise under the Constitution, which would be for legislative determination, in the first instance, and until a controversy between parties had brought it before a judicial tribunal; as is the case whenever Congress exercises the legislative powers conferred upon it by the Constitution.

§ 85. The circumstance that questions of fact, or questions of law, are to be determined in the discharge of a particular duty, or the exercise of a particular function, has no necessary tendency to show that the duty or function is to be discharged by the judiciary. In the discharge of both executive and legislative duties, questions of law and of fact must