Page images


in a

case was removed to the United States will be treated as a nullity even in a circuit court under the act of congress collateral proceeding. Munday v. of March 3rd, 1875 (18 St. U. S. 470), Vail, 34 N. J. L. 418. authorizing such removal of any suit of And in proceedings in habeas corpus, a civil nature, at law or in equity, in in many of the States, the courts at the which there shall be a controversy be- hearing have examined into the questween citizens of different States; and tion whether the statute creating the further providing "that if

it crime for which the sentence was imshall appear to the satisfaction of said posed was or was not constitutional. circuit court at any time after such suit Ex parte lIardy (Ala.), 13 Cent. L. has been . removed thereto, J. 50; McCarthy v. Hinman,

35 that such suit does not really and sub- Conn. 538; Ex parte Nightingale, 12 stantially involve a dispute or contro- Fla. 272, 277. So it has been held that versy properly within the jurisdiction the court is bound to discharge the of said circuit court, the said circuit prisoner where the act charged as crimicourt shall. . remand it.” nal is necessarily innocent or justifiaaccordance with the latter provision of ble, or where it is the mere assertion of said act, the United States court a constitutional right. People ex rel. manded the case, on the ground that Hackley v. Kelly, 24 N. Y. 75. Where they had no power to award a writ there was a total want or an excess of of mandamus, except as ancillary to jurisdiction. Ex parte Hardy (Ala.), some other proceeding before them es- 13 Cent. L. J. 50. While in the celetablishing a demand and reducing it to brated Tweed case it was held that the judgment. On writ of error to the su- jurisdiction of the court to render the preme court it was held that the case particular judgment is a proper subject had been properly remanded. Rosen- of enquiry. People ex rel. Tweed v. baum v. Bauer, 7 Supr. Ct. Rep. Liscomb, 60 N. Y. 559. To the same 633.

effect is Ex parte Page, 49 Mo. 291, In some of the State courts this idea where the court say that if the error in seems to have been included in their exercising jurisdiction was provable by definition of jurisdiction. Thus, “Juris- extrinsic evidence dehors the record, diction is the power or authority to pro. the court would not interfere nounce the law on the case presented, habeas corpus proceeding, but where and to pass upon and settle by its judg- the error was patent on the face of the ment the rights of the parties touching record they would interfere. In that the subject matter in controversy, and case the trial court had imposed a sento enforce such sentence.” Ex parte tence of ten years' imprisonment for Walker, 25 Ala. 81.

grand larceny, and the statute allowed A power constitutionally conferred seven years at most, and the prisoner upon a judge or magistrate, to take was discharged. cognizance of and decide causes ac- And in Wisconsin, in a divorce procording to law, and to carry his sen- ceeding, the custody of a child had been tence into execution.” Succession of awarded to the father, and the mother Weigel, 17 La. An. 70.

abducted the child, and was thereupon “The word 'jurisdiction’ is a term of adjudged guilty of a contempt of court large and comprehensive import and and ordered to restore the child, pay a embraces every kind of juidcial action fine of one dollar, and stand committed upon the subject matter, from finding to the county jail until she had comthe indictment to pronouncing the sen- plied with the order. The woman tence.” Hopkins v. Com., 3 Metc. failing to comply with this decree was (Mass.) 462.

accordingly imprisoned, but in a writ Jurisdiction is defined to be the au- of habeas corpus the supreme court rethority of law to act officially in the leased her, because under the State matter then in hand. Jones v. Brown, statute the court below had no au5+ Iowa 74, 79.

thority to enter such an order in the Jurisdiction in courts is the power proceeding for the contempt, that thereand authority to declare the law. fore the order was in excess of the Mills z'. Com., 13 Pa. St. 627,630. court's jurisdiction and void. RYAN,

And there are a number of decisions J., however, filed a strong dissenting which support this definition. Thus it opinion, on the ground that this was has been decided that a decree in confounding jurisdiction and judgment, equity, which is entirely aside of the and that the petitioner's remedy was issue raised in the record is invalid, and not a writ of habeas corpus, but an Wis. 411.

part of it.

appeal to the supreme court to reverse two papers which were attached to a the order. Re Ida Louisa Pierce, 44 former will as though they had been

In a still later case (1888) in Texas, The decisions in the State courts are, where A brought an action in a Texas however, not harmonious. Thus in court against B, a nonresident, by at- South Carolina, 1877, the court, relying taching his property, and causing a inter alia on the case of Ex parte citation to be published, all of which Brennan, 102 B. 492 (59 E. C. L.), cited was by statute made requisite to a valid supra, held that though a prisoner conjudgment against a nonresident, and victed of assault with intent to kill canafter the publication of the citation, B, not lawfully be sentenced to confinehaving entered no appearance. A filed ment in the penitentiary at hard labor, an amended petition, setting up an en- yet such sentence is not void, but only tirely new cause of action, on which voidable, and relief can be obtained by judgment by default was rendered appeal only and not by habeas corpus. without any further citation being pub- In re Bond, 9 S. Car. 80; s. C., 30 Am. lished or service had on B. In a sub- Rep. 20. sequent action to try title brought in a And in Indiana in 1885, in a criminal court of the same State, where plaintiff proceeding where the court had jurisclaimed title through a sale on the diction of the offence charged and of above judgment, it was held that the the defendant, the defendant entered a court had only acquired jurisdiction of plea of guilty of murder in the first dethe defendant as to the cause of action gree, and the court sentenced him to imset forth in the pleadings on file when prisonment for life, on a petition for a the citation was published; that the writ of habeas corpus, it was held that, , cause of action on which the judgment although the court erred in not calling was rendered in his favor was the cause a jury to say in their discretion whether of action stated in the pleadings on file the defendant should suffer the penalty the day the judgment was rendered; of death or be imprisoned for life, as and to answer that no notice by publi- required by the law of the State, the cation was given to B and he did not judgment was not, therefore, void, nor appear, and therefore the judgment was could it be assailed collaterally on void. Stuart et al. v. Anderson et al. habeas corpus proceedings. Lowery v. (Tex.), 8 S. W. Rep. 295.

Howard (Ind.), 1 West. Rep. 486; s. C., And in Pennsylvania, in 1889, in an 3 N. E. Rep. 124. action of ejectment, the plaintiff claimed And in 1886, in Illinois, where there under a will which had been duly is an act of assembly providing that in proved over fifty years since, and which case of a second conviction for certain he offered in evidence. The will was offences, the punishment shall be imnot signed, and the evidence set out in prisonment for not less than fifteen the record of the probate before the years. An indictment of one of said register of wills, did not prove that the offences set forth a former conviction, failure to sign the will was duly ac- and the record of such former conviccounted for in accordance with the tion showed that the accused had there Pennsylvania Statute of Wills. The waived his right to a trial by jury and will was therefore objected to on those was tried, adjudged guilty and sentenced grounds, and it was held that notwith- by the court. This record was objected standing the fact that the probate by to on the ground that the accused in the register of wills is, in Pennsylvania, such a case had no power to waive a judicial decree, and by statute conclu- trial by jury. This objection was held not sive as to realty after the lapse of five to be well founded, because, conceding it years without appeal; yet the register to be so, and that the judgment entered of wills has no jurisdiction over a in the case was irregular and erroneous, paper that is not a will within the it was not void and it could not be atPennsylvania statutes; that this paper tacked collaterally. Kelley v. People was not a will within such statutes, and (I11.), 3 West. Rep. 45; s. c., 4 N. E. could not be made so by the decree of Rep. 644. See the early case (1829) of probate, but that that decree, being en- Com. v. Curtis, Thach. Cr. C. (Mass.) tered without jurisdiction, was coram. 202. non judice and void. Wall v. Wall, 23 In a recent case in Ohio (1886), simiWeekly Notes (Pa.) 237. To the same lar to Windsor v. McVeigh, 93 U. S. effect is Bowlby 2. Thunder, 105 Pa. 274, cited supra, involving the title to St. 173, where the register had probated real estate based on a purchase at a sale

[ocr errors]

2. Various kinds of Jurisdictions, with Definitions Thereof.-There are various kinds of jurisdiction, which have been named and defined 1 as follows:

Appellate jurisdiction is that given by appeal from the judgment of another court.

Assistant jurisdiction is that afforded by a court of chancery in aid of a court of law; as, for example, by a bill of discovery, or for the perpetuation of testimony, and the like.

Jurisdiction of the cause is the power over the subject matter given by the laws of the sovereignty in which the tribunal exists.

Civil jurisdiction is that which exists when the subject matter is not of a criminal nature. Criminal jurisdiction is that which exists for punishment of crimes.

Concurrent jurisdiction is that which is possessed over the same parties or subject matter at the same time by two or more separate tribunals.

Exclusive jurisdiction is that which gives to one tribunal sole power to try the cause.

General jurisdiction is that which extends to a great variety of matters.

Limited jurisdiction (called also special and inferior) is that which extends only to certain specified causes.

Original jurisdiction is that bestowed upon a tribunal in the first instance.

made in pursuance of an order of the The question, therefore, cannot be probate court, it was held that even if said to be definitely decided. The great the said court had jurisdiction to order weight attached to the decisions of the the sale made, the decree of sale in supreme court of the United States this case was void, because no such makes it at least probable that if that jurisdiction of the court had been in- court continues to hold the views exvoked by the petition filed. The court, pressed in the late cases cited supra, however, say: "It is by no means in the courts of the various States will tended to question or impair the princi- sooner or later adopt them, but the deple that where jurisdiction has been ob- cisions thus far rendered scarcely autained over the subject matter of a thorize a stronger statement than that cause by a court competent to exercise there is a tendency in the later cases to .it, its judgment, however erroneous, hold that jurisdiction includes not only cannot be questioned in a collateral the power to hear and determine, but proceeding. A judgment so rendered also the power to render the particular can only be set aside or questioned in a judgment entered in the particular direct proceeding instituted for that case. purpose

But a judgment See an article by Mr. Sevmour D. rendered by a court of competent juris- Thompson entitled "The Modern Idea of diction in a case brought before it, how- Jurisdiction,” in The Central Law Jourever erroneously the jurisdiction may nal, vol. 19, p. 102; and an article by have been exercised, is one thing; and Mr. Rufus Waples entitled “Constitua judgment entered by a court of like al Statutory Jurisdiction,” in The jurisdiction in a case not before it, is an- American Law Register, vol. 26, p. other and a different thing. In the one 481. case its judgment may be erroneous; in 1. Bouvier's Law Dictionary (15th the other it is void.” Spoors v. Coen ed.), vol. 2, p. 26, title Jurisdiction. (Ohio), 6 West. Rep. 809, 812; s. c., 9 Rapalje & Lawrence's Law DicN. E. Rep. 132. See also Robertson v. tionary, vol. I, p. 702. See also OverState (Ind.), 7 West. Rep. 481; McCar- seers V. London & N. W. R. Co., L. rol z'. Weeks, 5 Hayw. (Tenn.) 246, 253. R., 4 App. Cas. 30. 5

Jurisdiction of the person is that obtained by the appearance of the defendant before the tribunal.

Territorial jurisdiction is the power of the tribunal considered with reference to the territory within which it is to be exercised.

Consultative. It is said that in some cases one court may assist another by giving its opinion on matter pending in the latter court; in such a case the former court is said to act in its consultative jurisdiction, as opposed to its ordinary or judicial jurisdiction.

3. Constitutional Limitations as to Jurisdiction.—The division of the government under the constitution of the United States into

1. Constitutional Limitations-Juris- The question came before the sudiction of the Judiciary Department preme court in the reconstruction period Over the President of the United States. following the civil war. The State of - See the constitution of the United Mississippi applied to the court by States, art. 2, § 4, and art. 1, $ 3, par. 7. motion for leave to file a bill in equity In the argument in the case of Mar- restraining the president and the genbury z'. Madison, 1 Cranch (U. S) 137, eral commanding in the district of it was admitted by the counsel for the Mississippi and Arkansas from exe

" relator that the writ asked for a manda- cuting or in any manner carrying out mus to compel the secretary of state to the reconstruction acts of congress. deliver a commission to a duly ap- The court held that the duty of the pointed officer could in no case go to president in enforcing those acts was the president, and in their opinion the not ministerial, but executive and court expressly disclaimed any inten- official, and that they had no jurisdiction of interfering with the prerogatives tion to enjoin the president in the perof the president. And MR. CHANCEL- formance of his official duties. The LOR KENT, in treating of the responsi- motion was, therefore, denied. Missisbility of the president, says: "In addi- sippi v. Johnson, 4 Wall. (U. S.) 475. tion to all the precautions which have On the trial of Aaron Bun at Richbeen mentioned to prevent abuse of the mond, an attempt was made to compel executive trust in the mode of the presi- the attendance of Mr. Jefferson, the dent's appointment, his term of office then president, as a witness. Mr. Jefand the precise and definite limitations ferson refused to attend, but offered to imposed upon the exercise of his power, be examined before a commissioner at the constitution has also rendered him Washington. No attempt was made directly amenable by law for malad- to secure his attendance, and the tacit ministration. The inviolability of any recognition thus given of the exemption officer of government is incompatible of the chief executive from attachment with the republican theory, as well as has been subsequently followed in with the principles of retributive jus- other courts. See Wharton's Comtice. The president, vice president, and mentaries on American Law, 391. all civil officers of the United States, Upon the extension of this principle to may be impeached by the house of rep- subordinate executive officers and to resentatives for treason, bribery and members of the legislative department other high crimes and misdemeanors, see Wharton on Evidence (2nd ed.), § and upon conviction by the senate re- 604. moved from office. If, then, neither Suits Against the United States. the sense of duty, the force of public While the principle is thoroughly esopinion nor the transitory nature of the tablished that the court will not enterseat are sufficient to secure a faithful dis- tain suits against the United States, yet charge of the executive trust, but the it has been decided that this exemption president wil use the authority of his is limited to suits against the United station to violate the constitution on law States directly and by name, and cannot of the land, the house of representatives be successfully pleaded in favor of can arrest him in his career by resort- officers and agents of the United States ing to the power of impeachment.” when sued by private persons for propKent's Com. (15th ed.), vol. 1, p. * 288. erty in their possession as such officers

three departments, the legislative, executive and judicial, has imposed certain limitations upon the jurisdiction of these three departments.

(a) Constitutional Limitations; Jurisdiction of the Judicial Department Over the Exccutive Department and State Officers.It has always been admitted that the judicial department of the United States government has no jurisdiction over the President of the United States in his official capacity, he being only amenable, under the constitution of the United States, to impeachment, and, after impeachment, to indictment, trial, judgment and punishment according to law. The heads of the various executive departments and the other executive officers of the United States have been held to be subject to the jurisdiction of the judiciary department, not in the performance of their official or discretionary duties, but in the performance of those duties which are purely ministerial. This

This jurisdiction has, however, been

and agents. United States v. Lee, 106 delicate, and excites some hesitation U.S. 196.

with respect to the propriety of enter1. Jurisdiction of the Judiciary Over ing into such investigation. ImpresOther Executive Officers.— What power sions are often received without much was conferred by the constitution of reflection or examination, and it is the United Staies on the judiciary not wonderful that in such a case as department to enquire into the con- this, the assertion, by an individual, of duct of the officers of the other de- his legal claims in a court of justice, to partments of the government was which claims it is the duty of that court discussed in the United States su- to attend, should at first view be conpreme court as early as 1803, in the sidered by some, as an attempt to ingreat case of Marbury v. Madison. trude into the cabinet, and to interIn that case Marbury claimed to have meddle with the prerogatives of the exbeen appointed a justice of the peace ecutive. It is scarcely necessary for for the county of Washington, in the the court to disclaim all pretensions to District of Columbia; that the ap- such a jurisdiction. The province of the pointment had been approved by the court is solely to decide on the rights senate; that a commission had been of individuals, not to enquire how the duly signed by the president and deliv- executive, or executive officers, perform ered to Mr. Madison, the then secre- duties in which they have a discretion. tary of state, to have the seal of the Questions, in their nature political, or United States attached thereto; that which are by the constitution and laws such seal was attached, but that Mr. submitted to the executive, can never Madison, though requested so to do, be made in this court refused to give up the commission. The “If one of the heads of departments complainant therefore asked for a man- commits any illegal act, under color of dainus to compel him to do so. The his office, by which an individual suscourt having first decided that the tains an injury, it cannot be pretended complainant had a right to his commis- that his office alone exempts him from sion, and that the refusal to deliver it being sued in the ordinary mode of to him was a violation of that right for proceeding, and being compelled to which the laws of the United States obey the judgment of the law. How, afforded him a remedy, then decided then, can his office exempt him from that the remedy was a writ of man- this particular mode of deciding on the damus, saying, in er alia, " The inti- legality of his conduct, if the case be mate political relation subsisting he- such a case as would, were any other tween the president of the United individual the party complained of, States and the heads of departments authorize the process ? necessarily renders any legal investiga- " It is not by the office of the person tion of the acts of one of those high to whom the writ is directed, but the officers peculiarly irksome, as well as nature of the thing to be done that the

« PreviousContinue »