have the patience to follow me in this investigation.

I shall, in the first place, explain to you the true meaning of the word jurisdiction, and the various subjects to which it may be applied. Then I shall endeavour to disentangle from it the question now before us, and examine it with you in its different aspects, and in the various points of view in which in my opinion it ought to be considered.

JURISDICTION, in its most general sense, is the power to make, declare, or apply the law; when confined to the judiciary department, it is what we denominate the judicial power. It is the right of administering justice through the laws, by the means which the laws have provided for that purpose. In its more limited sense, which is that in which we are now viewing it, it is still the judicial power; but considered in relation to its extent and to the subjects which it embraces or upon which it acts.

Every human jurisdiction, without exception, rests on one of three foundations, or on several of them together.

1st. The place or territory over which it is exercised, and that is called jurisdiction over the place, in locum.

2d. The persons which are subjected to its action, and that is jurisdiction over the person, in

personam.

3d. The subjects of which it takes cognisance,

and that is jurisdiction over the subject matter, in subjectam materiam.

This last species of jurisdiction is sometimes limited by persons or places, by being restricted to cases in which certain persons are concerned, or to matters which arise or happen in certain localities. Thus the Constitution of the United States gives jurisdiction to the federal Courts of all suits between aliens and citizens, and between citizens of different states. This jurisdiction is general as respects the subjects of litigation; but is limited by the relative character of the litigant parties. It may therefore be considered as within the class of jurisdictional power over the subject matter, vesting only with respect to certain persons, ratione personarum. In like manner the Court of admiralty has cognisance of all things done on the high seas. This jurisdiction is also founded on the subject matter: it is not complete, however, until made so by the concurrent circumstance of locality; it is therefore jurisdictio in materiam, ratione loci rei

actæ.

These are the only species of jurisdiction that exist, as I may say, in rerum naturâ,* none will be found on the strictest investigation to exist any

* It may be asked, perhaps, whether there is not also a jurisdiction in rem, as we are accustomed to speak in reference to the Court of admiralty. Res, is but another word for materia; therefore, jurisdiction in rem, means no more than jurisdiction over the subject matter. It matters not whether it be a physical or a moral subject. The words in rem, are more properly applicable to the process than to the jurisdiction. Thus, in respect to ships, we may say that the admiralty has jurisdiction over the subject matter, and, in general, exercises it by a proceeding in rem.

where that does not fall within some one or other of the above divisions of place, person, and subject matter, either general, or limited by each other. All the powers vested in the federal Judges by our national Constitution belong to some one or other of these species; it would be wasting your time, and almost insulting your understanding, to attempt to demonstrate it. Permit me to say a few word's on each of these branches separately.

1. Jurisdiction over the place, or in locum. This is the most common kind of jurisdiction, and is sufficiently defined by its descriptive name. Under our particular forms of government, the state Courts alone possess it within the districts allotted to them by their own local laws; that of federal Courts is founded either on persons or subject matter, and although they exercise it within the state boundaries, yet it is not from the place that they derive their powers. It is otherwise in the forts, arsenals, and dock yards, in the District of Columbia, and in the territories belonging to the Union; there the jurisdiction of the federal Courts is strictly in locum, and there it is exclusive of every other authority not created by the national body. The admiralty, in common with those of other maritime nations, has a concurrent jurisdiction over the high seas, which must not be confounded with that of things done at sea, which I have above mentioned. This last is analogous to that which was anciently possessed by the Court of the constable and marshal in England. It took cognisance of things done

1

in foreign countries, but had no jurisdiction whatever in or over the territory of the foreign country, or over its subjects.

2. Jurisdiction in personam. This species of jurisdiction is to be traced, in Europe, to the pride and ambition of the privileged orders. The ecclesiastics and nobles, disdaining to submit to the authority of the ordinary tribunals of their country, claimed the right of being amenable only to special Judges, generally taken from their own body. Hence the ecclesiastical Courts, the right of Peers in England to be tried only by the House of Lords, and other similar institutions, which are found in every European country. Inferior bodies successively claimed, and obtained similar privileges ; hence corporate towns had their municipal Judges, and the two English Universities had an extensive judicial authority given to them, which they still possess over their members. "They have authority," says Blackstone, "to determine all causes of pro"perty, wherein a privileged person is one of the "parties, except only causes of freehold, and also "all criminal offences or misdemeanors, under the "degree of treason, felony, or mayhem."*

All these privileges are odious, except where they are confined to mere municipal police; because in every well regulated Commonwealth, every citizen ought to be amenable to the ordinary tribunals of his country. But it is otherwise with foreigners, and it is often a wise policy to establish a special

* Com. 276.

jurisdiction to try their causes; because the government is responsible for every injustice done to them. Thus, in the kingdom of Scotland, all foreign matters were formerly heard, and decided on by the King in council; in later times a special jurisdiction has been vested for that purpose, in the Court of Session, who decide all such causes on general principles of equity.*

On the same principle, the framers of our Constitution have, with great wisdom, granted to foreigners the personal privilege of suing, and being sued in the federal Courts, and with no less propriety have extended it to American citizens of different States in their controversies with each other, by this means securing in a great degree harmony at home, and giving to foreign nations a solid pledge of the national justice. Many are of opinion that this important branch of jurisdiction has been too much narrowed down by the early adjudications of the federal Courts, feeling their ground, as it were, and fearful of overstepping the barrier of their chartered rights. Later decisions, however, evince a disposition to construe this jurisdiction in a less technical manner, and to consider this subject in a mere liberal, and national point of view. Indeed, it is difficult to reconcile with the feelings of the present times, a principle which should assimilate the Courts of the American Union to the inferior tribunals of the English monarchy. It is difficult

E

Kaimes' Prin. of Eq. B. iii. c. 8.