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68. CONTROVERSIES BETWEEN CITIZENS OF DIFFERENT STATES. The expression "citizen " is not to be understood here literally. It means "inhabitant." Even corporations are regarded as inhabitants. Inhabitants of the territories or of the District of Columbia, however, are not included. The jurisdiction granted by this provision to the federal courts has been by no means put in full force by congress in its legislation.

$69. CONTROVERSIES BETWEEN CITIZENS OF THE SAME STATE CLAIMING LANDS UNDER GRANTS OF DIFFERENT STATES. This provision also applies when the states concerned originally constituted one state.

$70. CONTROVERSIES BETWEEN A STATE OR ITS CITIZENS AND FOREIGN STATES, CITIZENS OR SUBJECTS. Foreign corporations, and also immigrants who have declared their intention of becoming citizens, are "foreign," within the meaning of this clause.

PRACTICE AND PLEADING.

§ 71. RULES OF PRACTICE were almost wholly left to congress to determine. But on one substantial point the constitution has given congress no discretion. "In all cases affecting embassadors, other public ministers and consuls, and those in which a state shall be a party, the supreme court shall have original jurisdiction" (art. III., sec. 2, § 2). These cases are the exceptions to the rule, according to which the judicial power of the United States can come into operation only after legislation by congress. Congress is authorized, here, as every where else, to enact the more definitive provisions of procedure, but if it does not do so, the supreme court may itself provide the modus procedendi (Florida vs. Georgia, Howard, XVII., 478). It is uncertain whether or no the constitution intended that this original jurisdiction should

also have been exclusive. Jurists' opinions differ, and so do judicial decisions. The affirmative view has always had the more support, but legislation has not fully come up to it. For while a suit against embassadors, consuls, etc., can be maintained only in the supreme court, they may bring suits in other courts as well. On the other hand, it is generally admitted that congress cannot extend the original jurisdiction of the supreme court. The extent of its jurisdiction in appeals is practically left wholly to the discretion of congress. The constitution says: "In all the other cases before mentioned, the supreme court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations, as the congress shall make." Congress must therefore give original jurisdiction to other federal courts, as far as this is not granted in the first sentence to the supreme court. Congress may also give them an appellate jurisdiction. The supreme court has this appellate jurisdiction only so far as it is expressly granted by the laws. The circuit courts, consequently, sit in some cases as courts of first as well as last resort.1 A case in which a jury has rendered a verdict does not come within the category of those in which the supreme court may reexamine a question of fact on appeal. The seventh amendment, to be hereafter discussed, establishes this.

1 Details as to practice and pleading in the different federal courts are beyond the scope of this work. The most necessary are grouped in Cooley, Principles, 120 et seq. Among the comprehensive books on the subject are: St. D. Law, The Jurisdiction and Powers of the U. S. Courts, Albany, 1852; G. T. Curtis, Commentaries on the United States Courts, Phila., 1854; A. Conkling, Treatise on the Organization, Jurisdiction and Practice of the Courts of the U. S., 5th ed., Albany, 1870; B. R. Curtis, Jurisdiction, Practice and Peculiar Jurisprudence of the Courts of the U. S., Boston, 1880; R. Desty. Federal Procedure, 5th ed., San Francisco, 1881.

The United States therefore cannot appeal in a criminal case, for in "crimes"-impeachments, of course, excepted the decision must be by jurors (art. III., sec. 2, $3). Everything which is a crime by the common law or state laws does not come within the limits of this paragraph of the constitution. It refers only to those crimes which are within the jurisdiction of the federal courts. The conditions precedent of the exercise of this jurisdiction are that the act in question has been declared to be a crime by federal law, and that congress has conferred the requisite jurisdiction upon a certain court. In the latter respect, congress has not complete freedom of action. If the crime was committed in a state, the trial must take place within that state and in the particular federal district. If the crime was not committed in a place geographically or legally within a state, but in a territory, in the District of Columbia, in Indian Territory, in a fort, arsenal or other place subject to the exclusive jurisdiction of the United States, then the place of trial must have been fixed by law.

EXPRESS LIMITATIONS OF AUTHORITY AND PROHIBI

TIONS.

Many of the provisions belonging under this head have already been treated elsewhere, and may therefore remain unnoted here. So, too, those provisions which concern the rights and legal safeguards of individuals will be passed over here, because they are to be treated in a special section.

$72. BILLS OF ATTAINDER AND EX POST FACTO LAWS. "No bill of attainder or ex post facto law shall be passed" (art. I., sec. 9, § 3). It is not stated who is forbidden to

1 U. S. vs. Coolidge, Wheaton, I., 315; U. S. vs. Hudson and Goodwin, Cranch, VII., 32.

2 Sixth amendment.

pass such measures. The next section of the same article, however, says: "No state shall pass any bill of attainder [or] ex post facto law." Hence follows directly the important principle that (as the courts have always held) all prohibitory clauses of the constitution containing no words extending their import bind only the federal powers. According to a decision of the supreme court (Cummings vs. State of Missouri, Wallace, IV., 323, 324) the expression "bill of attainder" is to be understood here in the broadest sense, so that it includes also the socalled bills of pains and penalties. In other words, not only can no death sentence be imposed by an act of the legislative power, but the latter cannot take the general exercise of justice in criminal cases into its own hands. In the United States a punishable crime is only one which is declared to be such by existing laws, and a man accused of such a crime can be made answerable only under existing laws and before a competent court. A correct definition of the expression "ex post facto laws is not to be got by translating and taking the Latin in its literal sense. The framers of the constitution used the Latin words because they desired to speak only of what this technical term means in English law, and not of all retroactive laws. Indeed, all ex post facto laws are retroactive, but all retroactive laws are not ex post

It suffices to mention Barron vs. Mayor of Baltimore, Peters, VII., 243.

2 In the so-called Test-Oath Cases, viz.: Cummings vs. State of Missouri, supra, and Ex parte Garland, Wallace, IV., 333, the supreme court gave such a wide scope to this eminently technical expression, that most jurists will probably agree with the minority of the judges. The controversy in the Cummings case was over certain provisions of the Missouri constitution (and in the Garland case over certain federal laws) which made the capacity of occupying an office depend upon taking a test-oath as to non-participation in the rebellion. In both cases five judges were arrayed against four.

facto. The latter relate only to crimes and misdemeanors covered by the criminal law. Neither congress nor the states can give a law a retroactive force in such a way as to make an act, already done and not punishable when done, punishable now; or to increase the punishment or the legal grade of a punishable act; or to lessen the legal conditions of conviction; or to withdraw a legally-vested right on account of an action now first made punishable; or, finally, to deny to a person accused of crime the opportunity of pleading something --for instance, a declaration of amnesty, a former sentence or an acquittal-which would otherwise assure him immunity.3 $73. NOBILITY. Both the United States and the states are forbidden to grant any title of nobility (art. I., sec. 9, 8, and sec. 10, § 1).

$74. RELIGIOUS LIBERTY. The principle of the separation of church and state is as completely carried out in the United States as it can be in any nation based upon law; but religious liberty is not, as most Europeans believe, guarantied by the constitution. The latter contains only two clauses as to religion. It prohibits a "religious test as a qualification to any office or public trust under the United States" (art. VI., § 3). The word "test" is unquestionably to be understood in the

In 1798, in Calder vs. Bull, Dallas, III., 390, Justice Chase defined these four classes.

2 See the convincing criticism of this part of the Test-Oath Cases by Pomeroy, pp. 340-317.

3 Cooley, Principles, 286.

Here, too, belongs the provision that no officer of the United States "shall, without the consent of the congress, accept of any present, emolument, office or title of any kind whatever, from any king, prince or foreign state."

5 The federal and state officers who must pledge themselves to support the constitution are free to take a mere affirmation in lieu of an oath.

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