pressly or without denying them, and the court will have jurisdiction to render judgment on the merits, unless it takes notice of the defect and dismisses the case. When a case within the jurisdiction is stated, the court is bound to proceed-in other words, has jurisdiction. If defendant then admits the facts stated by the plaintiff the jurisdiction is thereby fortified." This rule, however, applies only to quasijurisdictional facts, as explained in this article. No amount of consent or admission could give a justice of the peace jurisdiction to probate a will.10 Where defendant possesses some privilege which exempts him from the jurisdiction, he may waive that privilege." Where the court once had jurisdiction, but has lost further power to act through the lapse of the judgment term, such power may be restored by consent of both parties. 12 No action can be maintained against the United States or a state without its consent, and only so far as such consent goes. 13 23. Ancillary jurisdiction.-It is a general rule that courts have such incidental powers as are necessary or proper to carry out and make completely effective all original authority with which they are vested. Once having jurisdiction of the cause of action and of the parties, they may issue such writs and entertain such proceedings as may be suited to 9 Lord Denman, in Regina v. Bolton, 41 Eng. Common Law, p. 439, 4 P. & D. 679 (Eng.); Brewer, Circuit Judge, in Cooke v. Bangs, 31 Fed. 640. 10 Same. 11 Johnson v. Jones, 2 Neb. 126, 135. 12 Brown v. Crow's Heirs, 3 Ky. 443. 13 Minnesota v. Hitchcock, 185 U. S. 373, 22 Sup. Ct. 650, 46 L. Ed. 954. For executive and political questions, see § 24. attain this end.14 Executions, injunctions, mandamus, certiorari and writs of possession are instances of the exercise of such ancillary jurisdiction.15 24. Executive and political questions.-Courts are powerless to take any cognizance of matters still being considered by the political department of the government,16 or to restrain executive officers from carrying federal statutes into execution, on the ground that so doing would subvert a state government." Recognition of a foreign government is exclusively political.18 Belligerency is exclusively for decision by the President or the Congress.19 In relation to national or state boundaries, the fixing of the dividing line is purely a political question, to be settled by the governments themselves in the case of national boundaries, by the crown in cases of the original states or colonies, and by Congress in case of the states created after the Revolution. After a boundary has been so fixed, its construction becomes a judicial question, if the court is authorized on other grounds to assume jurisdiction. If the question arises between national governments, and both submit themselves to the jurisdiction, the court may proceed, otherwise not. If a sovereign sues an individual, as in the King of Spain v. Machado,20 14 11 Cyc. 677. For a fuller discussion of the subject see Chap. II., The Courts of the United States. 15 11 Cyc. 678. 16 United States ex rel. Boynton v. Blaine, 139 U. S. 306, 11 Sup. Ct. 607, 31 L. Ed. 183. 17 Georgia v. Stanton, 6 Wall. 50 (U. S.), 18 L. Ed. 721. 18 Jones v. United States, 137 U. S. 202, 11 Sup. Ct. 80, 34 L. Ed. 691. 19 Prize Cases, 2 Black 635 (U. S.), 17 L. Ed. 459. 204 Russ. 560 (Eng.); Hob. p. 113, in the House of Lords. the jurisdiction is complete. The Federal Constitution having given the Supreme Court original jurisdiction of suits to which a state is a party, that court may settle the question of disputed boundaries.21 This is because the states have consented to the exercise of such power by ratifying the Constitution.22 25. The mandatory or strict record and the statutory record. A convenient distinction has been made by Mr. William T. Hughes in his various legal works,23 between the judgment record which is examined by the courts on collateral attack and res judicata, which he calls the mandatory or due process of law record, and the statutory or appeal record. The first contains those things which are essential to the validity of the proceedings, and which cannot be waived, and the second the record of matters subject to waiver. The statutory record contains the bill of exceptions or the certificate of evidence, the rulings on evidence, the exceptions, and assignments of error. This is so important, and so difficult to be clearly understood, even by the practicing lawyer, as to justify the following quotation from Mr. Justice Pitney, in the recent case of Nalle v. Oyster: 24 "By the ancient common law, a writ of error lay only for an error in law apparent upon the judgment roll-what is now called the 'strict record' or for an error in fact, such as the death of a 21 Rhode Island v. Massachusetts, 12 Pet. 657 (U. S.), 9 L. Ed. 1233; Louisiana v. Mississippi, 202 U. S. 1, 26 Sup. Ct. 408, 50 L. Ed. 913. 22 Same. 23 Hughes, Procedure, passim. These two volumes, and indeed all the works of this author, show marked originality, and are all worthy of constant study. They appeal to first principles on every page. 24 229 U. S. party before judgment. (See Green v. Watkins, 6 Wheat., 260, 262.) For an erroneous decision that did not appear upon the record there was no redress by writ of error. To relieve this, the Statute of Westminster 2, 13 Edw. I, ch. 31 (1 Eng. Stat. at L. 99; Bac. Abr., title 'Bill of Exceptions'), was enacted more than six hundred years ago, providing that one who alleged an exception should write it out and require the justices to put their seals to it, and that if upon review 'the exception be not found in the roll, and the plaintiff show the written exception, with the seal of the justices thereto put, the justice shall be commanded to appear, etc., and if he cannot deny his seal they shall proceed to judgment according to the exception,' etc. Under this act, and state statutes modeled after it, it has always been held that error appearing upon the face of the record may be assigned as ground for reversal, although no exception be taken. And, on the other hand, the function of an exception is not confined to rulings made upon the trial of the action. As pointed out by Lord Coke (2 Inst. 427): "This (i. e., an exception taken under the Statute of Westminster 2), extendeth not only to all pleas dilatory and peremptory, etc., and (as hath been said) to prayers to be received, oyer of any record or deed, and the like; but also to all challenges of any jurors, and any material evidence given to any jury, which by the court is overruled."" 26. The mandatory record. "The record of a suit has been defined to embrace the successive judicial steps which have been taken, and are necessary to show jurisdiction and regularity of procedure; the process, writ or summons, with proof of service (return); the pleadings, minutes of trial (judge's minutes), verdict (of jury, decision or finding of master, referee, auditor, or trial judge), and judgment; and also ancillary and interlocutory proceedings, entering into and supporting the action." Also stipulations withdrawing certain pleadings, but not the pleadings withdrawn.25 "A record is substantially a written history of the proceedings from the beginning to the end of the case, but nothing which is not properly matter of record can be made such by inserting it therein." "In Mandeville v. Perry, 6 Call. 78, the Court of Appeals of Virginia, in considering the question 'what this court will consider as constituting the record of which it is to take notice in cases of common law,' says: 'I answer, the writ for the purpose of amending by, if necessary, the whole pleadings between the parties. Papers of which a profert is made, or oyer demanded. And such as have been specially submitted to the consideration of the court by a bill of exceptions, a demurrer to evidence, or a special verdict, or are inseparably connected with some paper or evidence so referred to. These, with the several proceedings at the rules or in court, until the rendition of the judgment, constitute the record in any common law suits, and are to be noticed. by the court, and no others.'” "Mr. Freeman, in his work upon Judgments, §79, thus summarizes from the authorities 'the matters which are not (unless made so by bills of exceptions, or by consent, or by order of the court) matters of record,' namely: 'Matters of evidence, written or oral, including note, bond or mortgage filed in the case, and upon which suit is brought; an agreed statement of facts not in nature of special verdict; 25 Wilkinson v. Delaware, L. & W. R. Co., 23 Fed. 561. |