a citizen and an alien have a joint interest, a serious objection exists to taking the case out of the State courts. The constitution and laws of the United States have 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.

§ 13. It has also been decided that an alien cannot sue, in the Circuit Court of the United States, a citizen who is at the time a resident of a foreign country, notwithstanding he has property in the district which might be attached; because, under the act of Congress passed in 1789, commonly called the Judiciary Act, which gives jurisdiction to the Circuit Courts when an alien is a party, no compulsory process 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, which may be had under the local laws of the States.a

b

§ 14. The United States courts are bound to take judicial cognizance of the constitution and statutes of the different States; in all actions brought in said courts, the Judiciary Act of 1789 (34th sec.) provides that the laws of the State where the court is held, except where the constitution, treaties, or statutes of the United States shall otherwise require or provide, shall be regarded as rules of decision in trials at common law, in the cases where they apply. But in equity proceedings the United States courts are under no such obligation. In cases depending on the laws of a

a Picquet v. Swan, 5 Mason's Rep. p. 35; Toland v. Sprague, 12 Peters' Rep. p. 300.

b Gordon v. Hobart, 2 Sumner's Rep. p. 402.

The distinction between the enforcement of legal rights and the pursuit of equitable remedies, which will repeatedly be referred to in these pages, may be thus explained:

The common law of England, derived from remote antiquity, and the force and authority whereof obtains from the universal consent and immemorial usage of the people, is composed of general and unyielding rules, which as society and civilization advanced, became in particular instances oppressive and unjust, according to the enlarged ideas of comparatively modern times. The Chancellors of England, being in early times churchmen of Rome, applied the humane principles of the civil law of the Roman empire, (as chiefly laid down in the celebrated Corpus Juris Civilis,) in which they were

particular State, the construction put upon those laws by the courts of the State will be adopted as far as practicable.a

§ 15. From all final judgments rendered in the Circuit Court, in any cases of equity, etc., where the matter in dispute exceeds the sum or value of two thousand dollars, an appeal is allowed to the Supreme Court of the United States.b

To the same court an appeal lies, under the twenty-fifth section of the Judiciary Act of 1789, from any final judgment of the Supreme Court of this State, in cases where is drawn in question the validity of a treaty or statute of, or an

schooled, to modify and ameliorate the harshness and asperities of the common law. This interference occasioned at first, and for a long time, fierce conflicts between the common law and chancery Judges; but the efforts of the Chancellors, assisted by advancing enlightenment, were successful, and resulted in the establishment of certain principles of equity, which, administered concurrently with the common law, have for centuries formed a harmonious system of law, without conflict of jurisdiction or process between the two courts.

The nature of equity cannot be better expressed than in the words of Aristotle, who defines it to be: the correction of the law wherein it is defective by reason of its universality; a definition adopted by Grotius and other eminent authors.

Courts of common law give a general judgment for or against defendant; but they have no method of proceeding by which the proper remedy can be administered, to the full extent of the relative rights of the parties, in cases where a simple judgment for either party will not do entire justice between them, and where some modification of their rights, or some peculiar adjustment, either present or future, temporary or perpetual, is required. In all such cases, where a plain, adequate, and complete remedy cannot be had in common law courts, equity will claim jurisdiction and give relief, In some instances, courts of equity are distinct from those of law; in others, the same tribunals exercise the jurisdiction of both courts, though their forms of proceedings are different in their two capacities.

In suits founded upon mortgages, justice would generally not be fully administered by a decision only founded upon common law principles, and they are therefore brought in courts having equity jurisdiction. Considering the vast benefits derived from the application of equitable principles in the judicial settlement of such suits, it may well be said, in the language of Chancellor Kent, that "the case of mortgages is one of the most splendid instances, in the history of our jurisprudence, of the triumph of equitable principles over technical rules, and of the homage which those principles have received by their adoption in the Courts of law."

Shelby v. Guy, 11 Wheaton's Rep. p. 361, 6 Cond. Rep. p. 345; Jackson v. Chew, 12 Wheat. Rep. p. 153, 6 Cond. Rep. p. 489.

b Act of Congress, March 3, 1803, § 2.

authority exercised under any State, on the ground of their being repugnant to the constitution, treaties, or laws of the United States, and the decision is in favor of such their validity; or where is drawn in question the construction of any clause of the constitution, or of a treaty, or statute of, or commission held under the United States, and the decision is against the title, right, privilege, or exemption specially set up or claimed by either party under such clause, or commission.a

EFFECT OF WAR.

§ 16. In considering the restrictions to which the rights of aliens are subject during war, it will not be necessary to refer to such aliens as are, on the breaking out of war, bona fide residents of California, the same rights in respect to the possession, enjoyment, and inheritance of property, as are held by native-born citizens, being guaranteed to them by the constitution of this State."

The following observations, therefore, relate exclusively to the position of a non-resident alien-or alien enemy, as he is then styled during the existence of a war between the United States and his country.

с

17. The property of an enemy, in general, is liable to seizure and confiscation as prize of war, but only during the war. For the sound rule of international law is, that war suspends, but does not annul, obligations contracted between individuals of different countries before its existence; and, unless there is some legal declaration of the forfeiture, the right of the owner revives, and he may enforce it, on the return of peace. This, Lord Stowell observes, is an ac

d

• This section of the Judiciary Act establishes a mode of final adjudication of the questions arising under it, by which uniformity of interpretation throughout the United States is insured. Its constitutionality, which has sometimes been questioned, has been acknowledged by the highest tribunal of this State, in the case of Ferris v. Coover, 11 Cal. Rep. p. 175. b See ante, § 7.

• Immovable property is never confiscated, but its rents and profits may be sequestrated. Bynkershoeck, Quæst. Jur. Publ. lib. i. cap. 7; Vattel, Droit des Gens, liv. iii. ch. 5, § 76; 3 Phillimore, Comment. upon Intern. Law, p. 135.

d

3 Phillimore, Intern. Law, pp. 734, 735; The Adventure, 1 Wheat. p. 128, note.

knowledged principle of the common law of England, which it has borrowed from the stores of international jurisprudence.a

§ 18. But there is a great diversity of opinions, as to whether property belonging to him, including debts due to him, by mortgage or otherwise, and found within the territory of the belligerent State at the commencement of hostilities, is liable to the same fate with his other property wheresoever situated; and the tendency of modern usage between nations seems to be, to exempt such property from the operations of war.

The late Henry Wheaton, in his Elements of International Law, after stating that Grotius, whose great work on the laws of war and peace appeared in 1625, considered the right to demand debts, due to private persons, as suspended only during war, and reviving with the peace,-examines the principles laid down by Bynkershoeck, who wrote in 1737, Vattel, and the later authors on the law of nations, and concludes as follows: "It appears, then, to be the modern rule of international usage, that property of the enemy, found within the territory of the belligerent State, or debts due to his subjects by the government or individuals, at the commencement of hostilities, are not liable to be seized and confiscated as prize of war. This rule is frequently enforced by treaty stipulations; but, unless it be thus enforced, it cannot be considered as an inflexible, though an established

a Nuestra Señora de los Dolores, 1 Edwards' Adm. Rep. p. 60. b Wheaton, Intern. Law, part IV. ch. 1, § 9.

Ibid.; Clarke v. Morey, 10 John. Rep. p. 68.

d Vattel, writing about the year 1757, says, when speaking of the right of seizure and confiscation, that "the sovereign has naturally the same right over what his subjects may be indebted to the enemy; therefore, he may confiscate debts of this nature, if the term of payment happen in time of war, or at least he may prohibit his subjects from paying while the war continues. But, at present, the advantage and safety of commerce have induced all the sovereigns of Europe to relax from this rigor. And as this custom has been generally received, he who should act contrary to it would violate the public faith; for strangers trusted his subjects only from a firm persuasion that the general custom would be observed. The State does not so much as touch the sums which it owes to the enemy: money lent to the public is everywhere exempt from confiscation and seizure in case of war." Vattel, liv. iii. ch. 5, $77.

rule. The rule,' as it has been beautifully observed, 'like other precepts of morality, of humanity, and even of wisdom, is addressed to the judgment of the sovereign,-it is a guide which he follows or abandons at his will; and although it cannot be disregarded by him without obloquy, yet it may be disregarded.'

19. In the decision from which the latter quotation is taken, the United States Supreme Court further held, that "it was not an immutable rule of law, but depended on political considerations, which might continually vary. Commercial nations, in the situation of the United States, had always a considerable quantity of property in the possession of their neighbors. When war breaks out, the question, what shall be done with enemy's property in our country, is a question rather of policy than of law. The rule which we apply to the property of our enemy, will be applied by him to the property of our citizens." "The universal practice of forbearing to seize and confiscate debts and credits, the principle universally received that the right to them revives on the restoration of peace, would seem to prove that war is not an absolute confiscation of this property, but that it simply confers the right of confiscation." "Between

debts contracted under the faith of laws, and property acquired on the faith of the same laws, reason draws no distinction; and it is not believed that modern usage would sanction the seizure and confiscation of the goods of an enemy on land, which were acquired in peace in the course of trade." d

§ 20. And it was decided, in the case alluded to, that such confiscation was not a necessary consequence of a declaration

a Wheaton, Intern. Law, part iv. ch. 1, § 9.

↳ Mr. Chief Justice Marshall, in Brown v. The United States, 8 Cranch's Rep. p. 110; 3 Cond. Rep. p. 136.

© The principle of reciprocity operates in many cases of international law. The conduct of the enemy may be a consideration for retaliation, as the fear of reprisals may restrain the taking of extreme measures.

d Kent in commenting upon this decision of the Supreme Court, says that, as it is asserted by its authority. this right is contrary to universal practice, and it may therefore well be considered as a naked and impolitic right, condemned by the enlightened conscience and judgment of modern times. 1 Kent's Comm. p. 73, 8th ed.