National banks, although incorporated by the United States, are declared by statute to be citizens of the state in which they are located.70 § 36. Change of citizenship. The mere fact that a citizen of one state removed to another state for the purpose of qualifying himself to sue in a federal court under this section, does not oust the court of jurisdiction, where it was his bona fide intention to acquire a domicile in the state to which he removed. But it is otherwise if he had no such intention. It is the fact of citizenship, not the motive with which citizenship was acquired, that determines the question.71 Change after suit commenced. The question of jurisdiction on the ground of diversity of citizenship is determined by the state of things existing when the suit was brought. A change of citizenship during the pendency of the suit, which destroys the diversity, will not oust the federal courts of jurisdiction on the ground of diverse citizenship.72 § 37. Controversies involving conflicting land grants. The judicial power extends to controversies "between citizens of the same state claiming lands under grants of different states." Very few cases have arisen under this clause.73 § 38. Controversies between a state, etc., and foreign states, etc. By the last clause of this section the judicial power is extended to controversies "between a state, or the citizens thereof, and foreign states, citizens or sub Co. v. Texas, etc., R. Co. (1916), 36 70-Judicial Code, § 24, cl. 16; Continental Nat. Bank v. Buford, 191 U. S. 119. 71-Morris v. Gilmer, 129 U. S. 72-Anderson v. Watt, 138 U. S. 694; 4 Fed. St. Ann. 292. 73-Examples are Colson v. Lewis, 2 Wheat. 377; Town of Paulet v. Clark, 9 Cranch 292. See, also, Stevenson v. Fair, 195 U. S. 165. jects." This clause includes controversies between; (a) A state (as plaintiff or defendant) and a foreign state (not a state of the Union); (b) a state (as plaintiff only since Amendment XI) and a foreign citizen or subject; (c) a citizen of a state (as plaintiff or defendant) and a foreign state; (d) a citizen of a state and a foreign citizen or subject. Suits between aliens. The federal judicial power does not extend to suits between aliens, where no federal question is involved,74 though Chief Justice Marshall said: "Whatever doubts may exist in a case where the jurisdiction may be objected to, there ought to be none where the parties assent to it."75 46. 74-Montalet v. Murray, 4 Cranch 75-Mason v. Ship Blaireau, 2 Cranch 240. CHAPTER IV DISTRIBUTION OF JURISDICTION-FEDERAL AND STATE JURISDICTION § 39. Legislation affecting jurisdiction. § 40. Exclusive jurisdiction of federal courts. § 41. Concurrent jurisdiction-Administration of federal law by state courts. § 42. Administration of state law by federal courts. § 43. State laws and decisions as rules of decision. § 44. Effect of changes in decisions of state courts. § 39. Legislation affecting jurisdiction. The grant of federal judicial power as above discussed is in general terms, and the Constitution has left to Congress the establishment of the federal courts (other than the Supreme Court) and the distribution of the judicial power among them. The provisions of the Constitution, with a few exceptions, are not self-executing, but can be made operative only by legislation. In 1789 Congress passed the Judiciary Act, which forms the basis of the federal judicial establishment. This act has been several times amended.1 And numerous other statutes have conferred jurisdiction in particular cases upon the various federal courts. The most important 1-Speaking of the Judiciary Act, Mr. Justice Field in his opinion in Virginia v. Rives, 100 U. S. 313, 339, says: "That great act was penned by Oliver Ellsworth, a member of the convention which framed the constitution, and one of the early chief justices of this court. It may be said to reflect the views of the founders of the Republic as to the proper relations between the federal and state courts."' See also, Carson, History of the Supreme Court, 186. Mr. Carson refers to it as "that incomparable statute.” (Address at banquet of American Bar Association, 1914.) recent legislation on the subject is the Judicial Code of March 3, 1911, which took effect January 1, 1912. The federal courts have only such jurisdiction as is conferred upon them by Congress, or in the case of the Supreme Court, by the Constitution.2 It was declared by the Supreme Court in an early case that the provision of the Constitution that the judicial power shall be vested in one supreme court and in such inferior courts as Congress may from time to time ordain and establish, is mandatory, and that it is the duty of Congress to vest the whole judicial power in the federal courts. But this view has not prevailed. From an examination of the jurisdiction of the several courts as defined by Congress, it will be found that Congress has not yet fully exercised its power in this connection.* Many cases which, under the Constitution, come within the federal judicial power are not within the jurisdiction of any federal court. Thus, although the Constitution. extends the judicial power to all cases arising under the Constitution, laws and treaties of the United States, Congress has conferred jurisdiction of such cases upon the federal courts only where an amount exceeding a certain sum, at present fixed at $3,000, is involved. Cases of this class involving less amounts can be brought only in the state courts. § 40. Exclusive jurisdiction of federal courts. It would, perhaps, have been competent for Congress to have conferred upon the federal courts exclusive jurisdic 2-Railway Company v. Whitton, 133 Wall. 270. The courts of the United States are courts of limited jurisdiction, which must be exercised in the mode pointed out by the Constitution and Acts of Congress. Smith v. American Nat. Bank, 89 Fed. 832. 3-Per Story, J., in Martin v. Hunter, 1 Wheat. 330. See, generally, the article "The Delegation of Federal Jurisdiction to State Courts by Congress' in 43 American Law Review 852. 4-See In re Barry, 136 U. S. 597, 615. tion of all matters of federal cognizance. This, however, would have resulted in intolerable hardship, for under our dual system of jurisdiction (state and federal) it is inevitable that in almost any case that can arise there may be some feature which may bring it within the federal jurisdiction, and hence the state courts would be without jurisdiction if the jurisdiction of the federal courts were exclusive. The result would be that it would be practically impossible to maintain the state courts and it would be necessary to establish federal courts in every community where state courts are now maintained. Congress has wisely refrained from exercising its full power in this connection and has made the federal jurisdiction exclusive only in a few classes of cases, and these of a sort which may very well be left exclusively to the federal courts. These case are set out in Section 256 of the Judicial Code, which reads as follows:6 "Sec. 256. The jurisdiction vested in the courts of the United States in the cases and proceedings hereinafter mentioned, shall be exclusive of the courts of the several states: "First. [Crimes.] Of all crimes and offenses cognizable under the authority of the United States. [Note. The same act may be an offense against both the state and the federal laws, and be punished by both governments as two distinct offenses; e. g., counterfeiting.] "Second. [Penalties and Forfeitures.] Of all suits for penalties and forfeitures incurred under the laws of the United States. "Third. [Admiralty and Maritime Cases.] Of all civil causes of admiralty and maritime jurisdiction; sav 5-See The Moses Taylor, 4 Wall. 411; Claflin v. Houseman, 93 U. S. 130; Robb v. Connolly, 111 U. S. 624; Plaquemes Tropical Fruit Co. v. Henderson, 170 U. S. 511; Sho shone Mining Co. v. Rutter, 177 U. S. 505. 6-See Rev. St., § 711, 4 Fed. St. Ann. 493. |