particular case it does not interfere with the exercise of power by a federal court. No doubt the federal government might, should it see fit, exclude the state courts from jurisdiction in any of the cases which, under the Constitution, are embraced in the general grant of judicial power to the federal government. But Congress has seen fit to exclude the jurisdiction of the state courts in only a few classes of cases falling within the scope of the federal judicial power; and to leave the others subject to the jurisdiction of the state courts so far as the latter do not interfere with the actual exercise of power in the particular case by a federal court.

It is not intended to indicate by this statement that a state court and a federal court may actually try the same case. It is a principle of general jurisprudence that when one court has acquired jurisdiction of a case, no other court will interfere while the case is pending, nor will any other court, except a court having appellate or supervisory jurisdiction, review, revise, or disregard the result of the trial of the case in the court having authority to try it. Therefore, in saying that as to many classes of cases the federal and state courts have concurrent jurisdiction, no more is intended than to indicate that a particular case of one of these classes may be in either a state or a federal court, depending upon the question where the case is actually brought on for trial; and that, if such a case is actually brought in the court of a state, it may be finally and conclusively determined in the courts of that state, although had it been properly brought in the first instance in a federal court it could properly have been tried and finally determined in the federal

courts.

CHAPTER XXVI.

CASES OF FEDERAL JURISDICTION.

144. References.

IN GENERAL: J. Story, Constitution, §§ 1637-1700; T. M. Cooley, Constitutional Limitations, ** 11-15; J. I. C. Hare, Constitutional Law, lects. lv, lvi; J. N. Pomeroy, Constitutional Law, $$ 747-760; T. M. Cooley, Constitutional Law, ch. vi; H. C. Black, Constitutional Law, §§ 88-90.

CASES ARISING UNDER CONSTITUTION, LAWS, OR TREATIES OF THE UNITED STATES: Osborne v. Bank of United States (1824, 9 Wheaton, 738; 6 Curtis' Decisions, 251; McClain's Cases, 617; Thayer's Cases, 1346); Pacific Railroad Removal Cases (1885, 115 U. S. 1; McClain's Cases, 622); Southern Pacific Railroad Company v. California (1886, 118 U. S. 109; McClain's Cases, 624); Bock v. Perkins (1891, 139 U. S. 628; McClain's Cases, 626).

CASES AFFECTING AMBASSADORS, ETC.: Börs v. Preston (1884, 111 U. S. 252; McClain's Cases, 628).

CASES OF ADMIRALTY: The Propeller Genesee Chief v. Fitzhugh, (1851, 12 Howard, 443; McClain's Cases, 648); The Steamboat Magnolia (1857, 20 Howard, 296; McClain's Cases, 650); Manchester v. Massachusetts (1891, 139 U. S. 240; McClain's Cases, 655).

SUITS BY OR AGAINST THE UNITED STATES: Stanley v. Schwalby (1896, 162 U. S. 255; McClain's Cases, 673); United States v. Texas (1892, 143 U. S. 621; McClain's Cases, 676; Thayer's Cases, 310).

SUITS AGAINST STATES: Hans v. Louisiana (1890, 134 U. S. 1; McClain's Cases, 702; Thayer's Cases, 293); New Hampshire v. Louisiana (1883, 108 U. S. 76; McClain's Cases, 713); South Dakota v. North Carolina (1904, 24 Sup. Court Reporter, 269).

SUITS AGAINST OFFICERS OR AGENTS OF UNITED STATES OR STATE: United States v. Lee (1882, 106 U. S. 196; McClain's Cases, 720); Louisiana v. Jumel (1882, 107 U. S. 711).

CASES OF DIVERSE CITIZENSHIP: Hepburn v. Ellzey (1805, 2 Cranch, 445; Thayer's Cases, 348; Marshall's Decisions, Dillon's ed., 48); Hooe v. Jamieson (1897, 166 U. S. 395; McClain's Cases, 734); The Ohio & Mississippi Railroad Company v. Wheeler (1861, 1 Black, 286; McClain's Cases, 737); St. Louis & San Francisco Railway Co. v. James (1896, 161 U. S. 545; McClain's Cases, 739).

145. Constitutional Enumeration.

Bearing in mind the statement already made that no federal court can have jurisdiction of any case unless it is one of the classes of cases enumerated in the federal constitution as those to which the judicial power of the federal government may extend, we have to consider briefly the enumeration of these classes of cases found in the federal constitution. In this enumeration (Const. Art. III, § 2) we find nine classes of cases, which are considered briefly in the following paragraphs of this chapter.

146. Cases Arising under the Federal Constitution, Laws, and Treaties.

The first and most extensive class of cases described as of federal cognizance, are those "in law and equity arising under this constitution, the laws of the United States, and treaties made, or which shall be made, under their authority." The distinction here recognized between cases in law and cases in equity is of no particular significance for present purposes. In the jurisprudence of England, there were at the time our Constitution was framed, and still are, distinct courts of law and of equity, although in a general sense the courts of equity as well as the courts of law recognize and administer the law of the land. Law and equity in this sense are simply different divisions of jurisprudence. The distinction between law and equity depends on the nature of the case, or the nature of the relief which the court may grant, and is still recognized in some of the states, although in many states the same courts administer both law and equity. By the use of these two terms in the federal constitution, it was only intended to indicate that both law and equity may be administered in the federal courts, if the case is one otherwise coming within the jurisdiction of those courts. (See below, § 168.)

The essential description of the cases within the class now under consideration is that they are cases arising under the constitution, laws, or treaties of the United States. Such a case

Under Constitution and Laws.

§ 146] 231 may involve the construction of the federal constitution or a law or treaty of the United States, or it may involve the determination of some right, privilege, or immunity under such constitution, law, or treaty. In either event, it is a case as to which the federal judicial power may be exercised. For instance, if a person were being punished by state authority for violating some state statute, which statute was unconstitutional because in conflict with the provisions of the federal constitution, such person seeking relief as against the unlawful exercise of authority on the part of the state would have a case arising under the federal constitution. If one who has a patent from the United States entitling him to the exclusive use, manufacture, and sale of an invention should desire to bring suit against another who was infringing his right under such patent, the case would be one arising under the laws of the United States, for it is only under the United States laws that a patent may be granted and enjoyed, and the case would therefore be one within the possible jurisdiction of the federal courts. If the subject of a foreign state had the right by treaty between his government and the government of the United States to inherit property in the United States, and his right to thus inherit was denied to him or questioned under the laws of a state, his case would be one arising under a treaty, and therefore one as to which the federal courts might have jurisdiction.

It is to be noticed that it is not essential that cases of this class directly involve the interpretation of the federal constitution, statute, or treaty; it is enough if the right asserted be a right dependent upon such constitution, statute, or treaty. Thus, suits by or against federal corporations have been held to be cases arising under the laws of the United States, for a federal corporation can only exist by virtue of federal law (Osborn v. Bank of United States and Pacific Railroad Cases). However, national banks, although they are federal corporations, are by Congress prohibited from resorting to the federal courts on the ground that they are federal corporations, and must submit to the jurisdiction of the state courts in the same way as corporations organized under the authority of the states. But

a detailed discussion of the cases which belong to this class is not practicable. It is enough to indicate their general characteristics.

147. Cases Affecting Ambassadors, etc.

The second class of cases of federal cognizance embraces those "affecting ambassadors, other public ministers, and consuls." These officers of foreign governments, while within the limits of the United States, are entitled, according to international law, to some exemption from the ordinary jurisdiction of the courts. Ambassadors and other public ministers are the personal representatives of the foreign governments under whose authority they have come into the limits of the United States, so far as their public character has been recognized and acquiesced in by this government. By international law they are regarded, while thus authorized and recognized, as entirely exempt from the jurisdiction of the courts; neither civil nor criminal suits may be prosecuted against them. The practical remedy for any wrongs which they may commit is to make complaint to the state department of the federal government, and, if sufficient reparation is not voluntarily made, the representative may be dismissed by this government, or on complaint to the home government of such representative, he may be recalled, and after having had reasonable opportunity to leave this country, may be treated as no longer entitled to any immunity from procedure in the courts.

So long as he is within the limits of the United States, as the recognized representative of a foreign government, the foreign minister according to international law is entirely outside of the jurisdiction of the courts. Therefore, the practical effect of this provision is to enable the federal courts to interfere, should any state court improperly attempt to exercise jurisdiction over a foreign ambassador or minister. As to consuls, however, the case is different. They are mere agents, not representatives of foreign governments, and are not exempt from the jurisdiction of our courts. And as to them, the result of this provision is to enable Congress to give jurisdiction with reference to them