of controversies between the states. While its authority has often been nullified in particular cases by the executive, and disregarded and denied by the states and their courts, its position has steadily advanced. No such high and important authority is possessed by any other tribunal in the world.

47. Organization of the Supreme Court.-The Supreme Court was created by the Constitution, and organized under the Judiciary Act of 1789. It consisted of one chief justice and five associate justices. The act also divided the country into judicial districts, authorizing the appointment in each of a district judge to hold the district court therein. Three circuits were also created, and it was provided that the circuit court should consist of two Supreme Court justices and the district judge previously provided for. Although circuits were created, no circuit judges were provided for. In 1801, however, Congress passed an act, which was repealed at the next session, authorizing the appointment of circuit judges, and who were actually appointed. It was not until 1869 that regular circuit judges were authorized.21 The power of Congress to authorize the justices of the Supreme Court to hold the circuit court was acquiesced in until 1803, when the question was raised in Stuart v. Laird.22 It was held by the court that acquiescence for several years in the organization of the judicial system had fixed the construction of the Constitution by contemporary interpretation, which ought not then to be disturbed.

21 U. S. Rev. Stats., § 607.

22 1 Cranch 299, 2 L. Ed. 115.

Prior to the Act of 1891, creating the circuit court of appeals, it was required of the justices of the Supreme Court that they should each hold circuit courts in the circuit assigned to them respectively at least once in two years. Accordingly they used to go out upon the circuit in May of each year and sit for a short time in the circuit court, either with the circuit judge or district judge, or alone. When any other judge sat with them their opinion prevailed in case of dispute. Since the creation of the circuit court of appeals this practice has been discontinued, and the law authorizing it was repealed by the Judicial Code.

48. Its original jurisdiction.-The Constitution23 gives the Supreme Court original jurisdiction in all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be a party. By the Eleventh Amendment it was provided that the judicial power should not extend to any suit in law or equity commenced or prosecuted against one of the United States by citizens of another state, or by citizens or subjects of any foreign state. The original Judiciary Act of 1789, followed by the Judicial Code, provided that the Supreme Court should have exclusive jurisdiction of all controversies of a civil nature where a state is a party, except between a state and its citizens, or between a state and citizens of other states, or aliens, also that it should have such exclusive jurisdiction of suits or proceedings against ambassadors or other public ministers, or their domestics or domestic servants. It was further provided that it should have original, but not exclusive, 23 Art. III, § 2.

jurisdiction of all controversies of a civil nature between a state and its citizens, or between a state and either citizens of other states or aliens, and of all suits brought by ambassadors or other public ministers, or in which a consul or vice-consul is a party.24 Further provision was made by the same act for the issue by the court of writs of prohibition, mandamus, and all other writs necessary to the exercise of its jurisdiction.25 Writs of ne exeat and scire facias were also provided for.26 The most usual exercise of the exclusive jurisdiction of the Supreme Court is the settlement of state boundaries in suits brought by one state against another.27 Suits against ambassadors or other public ministers are rare. In the case of In re Baiz28 its jurisdiction was invoked by reason. of an action against a person claiming to be ambassador, but who had no such authority. A number of suits by the United States against a state have been brought in the Supreme Court.29 The Supreme Court has also original, but not exclusive, jurisdiction of suits by states against citizens of other states or aliens. The object of this provision was to enable such controversies to be determined by a tribunal independent of either party, and so as to avoid suspicion of partiality.30

Suits against states by citizens of other states hav

24 Judicial Code, § 233.

25 Judicial Code, §§ 234, 262.

20 Judicial Code, §§ 261, 262.

27 § 24.

28 135 U. S. 403, 10 Sup. Ct. 854, 34 L. Ed. 222.

29 United States v. Texas, 143 U. S. 621, 12 Sup. Ct. 488, 36 L. Ed. 285.

30 Wisconsin v. Pelican Ins. Co., 127 U. S. 265, 8 Sup. Ct. 1370, 32 L. Ed.

239.

ing been prohibited by the Eleventh Amendment, it has been attempted by persons holding claims against states, which the latter did not recognize as valid or just, to assign their claims to another state, which would then bring suit upon such claims in the Supreme Court. In one of these cases it was held that the assignment from the claimant to the plaintiff state must be such as to vest the entire interest in the state, and must not be merely for the purpose of suit, so that the plaintiff state really represents its own interest, and not the interest of the claimant." It has been further held that the Supreme Court cannot take original jurisdiction of a suit by a state against corporations or citizens of other states where such a suit, though in the form of a civil action, is essentially one to enforce by injunction the criminal legislation of the state against intoxicating liquors.32 In Virginia v. West Virginia33 an equitable action to compel the payment of a just proportion of the bonded debt of Virginia, on account of the separation of West Virginia, was sustained. The case is still pending in the Supreme Court.

Practice in the original jurisdiction. No rules of procedure have been made by statute or by Supreme Court rules. The practice is for a person desiring to bring suit to apply to the court for that purpose, the motion being ordinarily granted as a matter of

31 New Hampshire v. Louisiana, 108 U. S. 76, 2 Sup. Ct. 176, 27 L. Ed. 656; South Dakota v. North Carolina, 192 U. S. 286, 24 Sup. Ct. 269, 48 L. Ed. 448.

32 Oklahoma v. Gulf, etc., Co., 220 U. S. 290, 31 Sup. Ct. 437, 55 L. Ed. 469.

33 220 U. S. 1, 31 Sup. Ct. 330, 55 L. Ed. 353.

34

course. The court is accustomed to regulate and mold the process in such manner as in its judgment will best promote the purposes of justice.35 Process will issue as a matter of course, and in a suit against a state is required to be served on the governor and attorney-general,36 and it is returnable sixty days. after service.37 The most liberal principles of practice and pleading are adopted, especially in suits between states.38

49. Appellate jurisdiction over state courts.Although the Supreme Court was relieved of much of its power of review by the Appellate Courts Act of 1891, it has still a very large appellate jurisdiction. No federal court is beyond its supervisory power, to be exercised in some appropriate form. This may be by appeal or writ of error in certain cases, or by prohibition, mandamus, certiorari, or habeas corpus.

Writs of error to state courts. The original Judiciary Act of 1789,39 which was re-enacted in the Revised Statutes and Judicial Code,40 provides that a final judgment or decree in any suit of the highest court of the state, where there is drawn in question a federal treaty or statute, or any authority exercised under the United States, and the decision is against their validity; or where, if not drawn in question, the

34 Washington v. Northern Securities Co., 185 U. S. 254, 22 Sup. Ct. 623, 46 L. Ed. 897.

35 Kentucky v. Dennison, 24 How. 66, 98 (U. S.), 16 L. Ed. 717. 36 New Jersey v. New York, 3 Pet. 461 (U. S.), 7 L. Ed. 741.

37 Same.

38 Rhode Island v. Massachusetts, 13 Pet. 23 (U. S.), 10 L. Ed. 41. 39 Act of 1789, § 25.

40 U. S. Rev. Stats., § 709; Judicial Code, § 237.