A case which belongs to the jurisdiction of the Supreme Court on
account of the interest a state has in the controversy must be a
case in which a state is either nominally or substantially a party.
It is not sufficient that a state may be consequentially
affected.
Where a question of jurisdiction exists between different states
of the union, one state may file in this Court a bill against the
other praying to be quieted as to the boundaries of the disputed
territories, and the Court, in order to effectuate justice, may
appoint commissioners to report those boundaries. There being no
redress at law would be a sufficient reason for the interposition
of the equitable powers of the Court.
A certiorari is not a proper proceeding to issue from a superior
to an inferior court to remove a cause merely from a defect of
jurisdiction.
If a state is really a party to a suit in an inferior court, a
plea to the jurisdiction may be put in there, or perhaps without
such a plea this Court would revise the judgment on a writ of
error.
A decision between individuals upon the right of soil cannot
affect the right of a state to jurisdiction over the same.
A certiorari can only issue as original process to remove a
cause and change the venue where the superior court is satisfied
that a fair and impartial trial will not otherwise be obtained, and
it is sometimes used as auxiliary process where, for instance,
diminution is alleged on a writ of error, but in such cases the
superior court must have jurisdiction of the controversy.
A rule had been originally obtained in these actions (which were
depending in the Circuit Court for the District of Connecticut) at
the instance of the defendants requiring the plaintiff to show
cause why a venire should not be awarded to summon a jury from some
district other than that of Connecticut or New York, but it was
changed by consent into a rule to show cause why the actions should
not be removed by certiorari into the Supreme Court as exclusively
belonging to that jurisdiction. On showing cause, it appeared that
suits in the nature of ejectments had been instituted in the
Circuit Court for the District of Connecticut to recover a tract of
land, being part of the Connecticut gore which that state had
granted to Andrew Ward and Jeremiah Hasley, and by whom it had been
conveyed to the plaintiffs. The defendants pleaded that they were
inhabitants of the State of New York; that the premises for which
the suits were brought lay in the County of Steuben in the State of
New York, and that the Circuit Court for the District of New York
or the courts of the state, and no other court, could take
cognizance of the actions. The plaintiffs replied that the premises
lay in the State of Connecticut, and issue being joined, a venire
was awarded. On the return, however, the defendants challenged the
array because the Marshal of the District of Connecticut, a
resident and citizen of that state, had arrayed the jury by his
deputy, who was also a citizen of Connecticut and interested as a
purchaser or claimant in the Connecticut gore under the same title
as the plaintiffs. The plaintiffs prayed oyer of the record and
return, averred that the deputy marshal was not interested in the
question in issue, and demurred to the challenge for being double
and contrary to the record, which does not show that the jury was
returned by the deputy marshal. The defendants joined in demurrer.
The court overruled the challenge as it respected the general
interest of the marshal and his deputy owing to their being
citizens of Connecticut, but allowed it and quashed the array on
account of the particular
Page 3 U. S. 412
interest of the deputy, he being interested in the same tract of
land under color of the same title as the plaintiffs.
That amended rule was argued, by Lewis and Hoffman (the Attorney
General of New York), in favor of its being made absolute, and by
Hillhouse of Connecticut against it, on the question, whether the
suits ought to be considered as virtually depending between the
States of Connecticut and New York. And the following opinions were
delivered by the Court, THE CHIEF JUSTICE, however, declining, on
account of the interest of Connecticut, to take any part in the
decision, and CHASE and IREDELL, JUSTICES, being absent on account
of indisposition.
WASHINGTON, JUSTICE.
The first question that occurs from the arguments on the present
occasion respects the nature of the rights that are contested in
the suits depending in the circuit court. Without entering into a
critical examination of the Constitution and laws in relation to
the jurisdiction of the Supreme Court, I lay down the following as
a safe rule: that a case which belongs to the jurisdiction of the
Supreme Court on account of the interest that a state has in the
controversy must be a case in which a state is either nominally or
substantially the party. It is not sufficient that a state may be
consequentially affected, for in such case (as where the grants of
different states are brought into litigation) the circuit court has
clearly a jurisdiction. And this remark furnishes an answer to the
suggestions that have been founded on the remote interest of the
state in making retribution to her grantees upon the event of an
eviction.
It is not contended that the states are nominally the parties;
nor do I think that they can be regarded as substantially the
parties to the suits -- nay, it appears to me that they are not
even interested or affected. They have a right either to the soil
or to the jurisdiction. If they have the right of soil, they may
contest it at any time in this Court, notwithstanding a decision in
the present suits, and though they may have parted with the right
of soil, still the right of jurisdiction is unimpaired. A decision,
as to the former object between individual citizens can never
affect the right of the state as to the latter object -- it is
res inter alios acta. For suppose the jury in some cases
should find in favor of the title under New York, and in others it
should find in favor of the title under Connecticut, how would this
decide the right of jurisdiction? And on what principle can private
citizens, in the litigation of their private claims, be competent
to investigate, determine, and fix the important rights of
sovereignty?
Page 3 U. S. 413
The question of jurisdiction remaining, therefore, unaffected by
the proceedings in these suits, is there no other mode by which it
may be tried? I will not say that a state could sue at law for such
an incorporeal right as that of sovereignty and jurisdiction, but
even if a court of law would not afford a remedy, I can see no
reason why a remedy should not be obtained in a court of equity.
The State of New York might, I think, file a bill against the State
of Connecticut praying to be quieted as to the boundaries of the
disputed territory, and this Court, in order to effectuate justice,
might appoint commissioners to ascertain and report those
boundaries. There being no redress at law would be a sufficient
reason for the interposition of the equitable powers of the Court,
since it is monstrous to talk of existing rights without applying
correspondent remedies.
But as it is proposed to remove the suits under consideration
from the circuit court into this Court by writs of certiorari, I
ask whether it has ever happened in the course of judicial
proceedings that a certiorari has issued from a superior to an
inferior court to remove a cause merely from a defect of
jurisdiction? I do not know that such a case could ever occur. If
the state is really a party to the suit in the inferior court, a
plea to the jurisdiction may be there put in, or perhaps without
such a plea this Court would reverse the judgment on a writ of
error. And if the state is not a party, there is no pretense for
the removal.
A certiorari, however, can only issue as original process to
remove a cause and change the venue when the superior court is
satisfied that a fair and impartial trial will not otherwise be
obtained, and it is sometimes used as auxiliary process where, for
instance, diminution of the record is alleged on a writ of error.
But in such cases the superior court must have jurisdiction of the
controversy. And as it does not appear to me that this Court has
exclusive, or original jurisdiction of the suits in question, I am
of opinion that the rule must be discharged.
PATERSON, JUSTICE.
The rule to show cause why a venire should not be awarded to
summon a jury from some district other than that of Connecticut or
New York cannot be supported. It has indeed been abandoned. The
argument proceeds on the ground of removing the cause into this
Court, as having exclusive jurisdiction of it because it is a
controversy between states. The Constitution of the United States
and the act of Congress, although the phraseology be somewhat
different, may be construed in perfect conformity with each other.
The present is a controversy between individuals respecting their
right or title to a particular tract of land, and
Page 3 U. S. 414
cannot be extended to third parties or states. Its decision will
not affect the State of Connecticut or New York, because neither of
them is before the Court, nor is it possible to bring either of
them, as a party, before the Court in the present action. The
state, as such, is not before us. Besides, if the cause should be
removed into this Court, it would answer no purpose, for I am not
able to discern by what authority we could change the venue or
direct a jury to be drawn from another district. As to this
particular there is no devolution of power either by the
Constitution or law. The authority must be given; we cannot usurp
or take it.
If the point of jurisdiction be raised by the pleadings, the
circuit court is competent to its decision, and therefore the cause
cannot be removed into this Court previously to such decision. To
remove a cause from one court to another on the allegation of the
want of jurisdiction is a novelty in judicial proceedings. Would
not the certiorari to remove be an admission of the jurisdiction
below?
Neither of the motions is within the letter or spirit of the
Constitution or law.
How far a suit may with effect be instituted in this Court to
decide the right of jurisdiction between two states, abstractedly
from the right of soil, it is not necessary to determine. The
question is a great one, but not before us.
I regret the incompetency of this Court to give the aid prayed
for. No prejudice or passion, whether of a state or personal
nature, should insinuate itself in the administration of justice.
Jurymen especially should be above all prejudice, all passion, and
all interest in the matter to be determined. But it is the duty of
judges to declare, and not to make, the law.
CUSHING, JUSTICE.
These motions are to be determined rather by the Constitution
and the laws made under it than by any remote analogies drawn from
English practice.
Both by the Constitution and the Judicial Act, the Supreme Court
has original jurisdiction where a state is a party. In this case,
the state does not appear to be a party by anything on the record.
It is a controversy or suit between private citizens only -- an
action of ejectment in which the defendant pleads to the
jurisdiction that the land lies in the State of New York, and issue
is taken on that fact.
Whether the land lies in New York or Connecticut does not appear
to affect the right or title to the land in question. The right of
jurisdiction and the right of soil may depend on very different
words, charters, and foundations. A decision of that issue can only
determine the controversy as between the private citizens who are
parties to the suit, and the event only
Page 3 U. S. 415
give the land to the plaintiff or defendant, but could have no
controlling influence over the line of jurisdiction, with respect
to which, if either state has a contest with the other or with
individuals, the state has its remedy, I suppose, under the
Constitution and the laws, by proper application, but not in this
way, for she is not a party to the suits.
If an individual will put the event of his cause in a plea of
this kind on a fact which is not essential to his right, I cannot
think it can prejudice the right of jurisdiction appertaining to a
state.
I agree with the rest of the Court that neither of the motions
can be granted.
By the court:
Let the rule be discharged.
