this amendment, then, in the forms prescribed by the Constitution, is not the exercise of that ultimate right we have spoken of above.

§ 333. But, while it is affirmed that the Supreme Court is the ultimate tribunal, it must be borne in mind that the functions of a court are to say what the law is, and not to make it. They are judges, not lawgivers. "The judicial department has no will in any case. Judicial power, as contradistinguished from the power of the laws, has no existence. Courts are the mere instruments of the law, and can will nothing."

§ 334. In the clause above, the phrase is read “all cases in law or equity." The reference here is plainly to those common law distinctions of law and equity remedies, which before existed in the jurisprudence of England and this country. So far as the remedies go, the Constitution recognises the existence and the operation of the common law.2 And it would seem, as the reference is direct to the remedy at common law, that the principles upon which the remedy is to be applied must be the same; and such is the interpretation and mode of administering justice in such cases in the courts of the United States. What is a case as here contemplated? "A case is a suit in law, or equity, instituted according to the regular course of judicial proceedings; and when it involves any question arising under the Constitution, laws, or treaties of the United States, it is within the judicial power confided to the Union."

§ 335. To understand the jurisdiction of the Supreme Court, we must consider the next clause of this section, which is,

2d clause-In all cases affecting ambassadors, other public ministers, and consuls, and those in which a state shall be a party, the Supreme Court shall have original 1 Osborn vs. Bank United States, 9 Wheaton's Rep. 866.

23 Story's Comm. 506.

3 Id. 507; 1 Tucker's Blk. Comm. App. 418, 420; Madison's Vir ginia Resolutions, 1800.

jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions and such regulations as the Congress shall make.

§ 336. Jurisdiction may be considered, 1st, With reference to the parties; 2dly, In relation to the subject matter; and 3dly, In respect to realm or locality.

1st. Jurisdiction in reference to the parties. The parties who come within the jurisdiction of the Supreme Court, are, 1. Ambassadors, public ministers, and consuls; 2. The United States; 3. The States; 4. Citizens of different States; 5. Citizens of the same state; 6. Foreign states, citizens, or subjects.

suls.

§ 337. 1. Ambassadors, public ministers, and conThe grades of public ministers, and the laws which apply to them, we shall see in another place.1 The rights, duties, powers, and privileges of public ministers are determined, not by municipal constitutions, but by the law of nature and nations, which is equally obligatory upon all nations. Consuls are not strictly ministers, but merely commercial agents. The Constitution, however, has, in relation to the courts, placed them upon the same level as ministers. In cases against ministers and consuls, the jurisdiction is supposed exclusive.2

The indictments found against persons for offering violence to ministers, &c., and their servants, do not come within the scope of the phrase, affecting ambassadors, &c. &c. The minister is not a party to the record.3 Yet if he be not a party, the case may be one which affects him in interest, and the court has decided that in such a case it has jurisdiction.

§338. 2. The United States. To enforce the rights of the United States, they must sue either in their own courts, or those of the states. In the latter they would at once be subject to the states, the very end which the

1 Chapter on the Practical Operation of the Government. 21 Kent's Comm. 44.

3 3 Story's Comm. 524.

Constitution was formed to prevent. In their own courts they could enforce their own rights, and have a uniform rule of justice. The latter, therefore, was adopted. The clause which conferred this jurisdiction on the Supreme Court gave no power to individuals to bring suit against the United States, nor have they or the states any such power. It is inherent in the nature of sovereignty not to be amenable to any private person.1 The same exemption extends to every state in the Union. What remedy, then, has the citizen against the national government for injustice and injury? If it be an oppression exercised by public functionaries upon the body of the people, the people have, through the Constitution, the power of removing them. If the oppression be in the exercise of unconstitutional powers, the functionaries who wield them are amenable for their injurious acts to the judicial tribunals of the country, at the suit of the oppressed.3

§339. The government is, in itself, incapable of a personal wrong, such as assault and battery, and personal violence.1 In respect to property, the remedy lies against the immediate perpetrators, who cannot shelter themselves under an agency from the government. Such agent, like every other violator of the laws, must refund in damages to the injured party."

§ 340. In the case of contracts, however, the agent is not responsible when lawfully made, and the government cannot be sued; hence, the only remedy is by legislative interposition,-an appeal to Congress. This may be justly considered as a defect upon the part of Congress, who have the right to provide a mode of settling private rights. In this respect, as in every other concerning justice between public and private rights, the contrast between us and the government of England is strongly against us. There the subject is allowed to bring what is called a petition of right before

1 Story's Comm. 538. 2 Ibid. 3 Ibid. 539. 4 Ibid. 5 Ibid. /

the Chancellor, who as a matter of duty, hears it, and administers right according to the fact.'

§ 341. 3. Another class of parties under the jurisdiction of the Supreme Court are the States. The provision subjecting the states to the jurisdiction of the Supreme Court, brings them at once within the sovereignty of the Union, even if all the powers before vested in the national government had not. This jurisdiction is frequently exercised, and although the states have often been much irritated, yet they have uniformly submitted. As the amendment to the Constitution has taken the states out of the jurisdiction of the Supreme Court when the suit is against them by individuals, it becomes important to inquire when a state is to be deemed a party, so as to avail itself of this exemption? "A state is a party only when it is on the record as such, and sues or is sued in its political capacity." It is not sufficient that it has an interest in the suit, as between other persons, or that its powers and duties come incidentally in question. The same principle applies to incorporations under the state; thus an incorporated bank, in which the state is stockholder, is suable, although the state is exempt from the action.1 "As a member of a corporation, a government never exercises its sovereignty."

§ 342. It is laid down as "a rule, which admits of no exception, that in all cases under the Constitution of the United States, where jurisdiction depends upon the party, it is the party named on the record."

§ 343. 4. The next class of parties are "Citizens of different states." 99 The first inquiry here is, who is a citizen of a state, and how does he change his citizenship? Does it depend upon his domicil, or residence, or upon any other principle? Judge Story has answered

3 3 Dall. R. 411; United States vs. Planter's Bank of Georgia, 9 Wheaton, 904. 4 Story's Comm. 565.

these questions in his commentaries in a very satisfactory manner. "The Constitution," says the commentator, "having declared that the citizens of each state shall be entitled to all the privileges and immunities of citizens in the several states, every person, who is a citizen of one state, and removes into another, with the intention of taking up his residence and inhabitancy there, becomes in reality a citizen of the state where he resides; and he then ceases to be a citizen of the state from which he has removed his residence."1 What circumstances constitute such a change of residence? A removal from one state into another, with an intention of remaining, constitutes a change of residence, and consequently of citizenship. But a native citizen of one state never ceases to be a citizen thereof till he acquires a new citizenship elsewhere. Residence in a foreign country does not change his citizenship. Every citizen of a state is a citizen of the United States.1 A naturalized citizen, by a residence in any state in the Union, becomes a citizen of that state. So a citizen of a territory, by a residence in a state, acquires the character of the state where he resides.5

§ 344. But a naturalized citizen of the United States, or a citizen of a territory, does not become a citizen entitled to sue in the courts of the United States, by such residence in a territory, nor until he has acquired a residence in a particular state."

§ 345. 5. A corporation, as such, is not a citizen of a state in the sense of the Constitution: but if all the members of the corporation are citizens, their character will confer jurisdiction." A citizen may sue, who is trustee, executor, or administrator for another.

§ 346. Citizens of the same state may be parties,

13 Story's Comm. 565.

43 Story's Comm. 565.

2 Id.

31 Kent's Comm. Sect. 4. 5 Id. 566; 6 Peters' Supreme C. R. 761. 7 United States

61 Kent's Comm. 360; 1 Wheaton's R. 91. vs. Planter's Bank, 9 Wheaton, 410; 8 Wheaton, 668.