has been case was removed to the United States circuit court under the act of congress of March 3rd, 1875 (18 St. U. S. 470), authorizing such removal of any suit of a civil nature, at law or in equity, in which there shall be a controversy between citizens of different States; and further providing "that if . . it shall appear to the satisfaction of said circuit court at any time after such suit removed thereto, that such suit does not really and substantially involve a dispute or controversy properly within the jurisdiction of said circuit court, the said circuit court shall . . remand it." In accordance with the latter provision of said act, the United States court remanded the case, on the ground that they had no power to award a writ of mandamus, except as ancillary to some other proceeding before them establishing a demand and reducing it to judgment. On writ of error to the supreme court it was held that the case had been properly remanded. Rosenbaum v. Bauer, 7 Supr. Ct. Rep. 633. will be treated as a nullity even in a collateral proceeding. Munday v. Vail, 34 N. J. L. 418. And in proceedings in habeas corpus, in many of the States, the courts at the hearing have examined into the question whether the statute creating the crime for which the sentence was imposed was or was not constitutional. Ex parte Hardy (Ala.), 13 Cent. L. J. 50; McCarthy v. Hinman, 35 Conn. 538; Ex parte Nightingale, 12 Fla. 272, 277. So it has been held that the court is bound to discharge the prisoner where the act charged as criminal is necessarily innocent or justifiable, or where it is the mere assertion of a constitutional right. People ex rel. Hackley v. Kelly, 24 N. Y. 75. Where there was a total want or an excess of jurisdiction. Ex parte Hardy (Ala.), 13 Cent. L. J. 50. While in the celebrated Tweed case it was held that the jurisdiction of the court to render the particular judgment is a proper subject of enquiry. Rosen- of enquiry. People ex rel. Tweed v. Liscomb, 60 N. Y. 559. To the same effect is Ex parte Page, 49 Mo. 291, where the court say that if the error in exercising jurisdiction was provable by extrinsic evidence dehors the record, the court would not interfere in a habeas corpus proceeding, but where the error was patent on the face of the record they would interfere. In that case the trial court had imposed a sentence of ten years' imprisonment for grand larceny, and the statute allowed seven years at most, and the prisoner was discharged. In some of the State courts this idea seems to have been included in their definition of jurisdiction. Thus, "Jurisdiction is the power or authority to pro nounce the law on the case presented, and to pass upon and settle by its judgment the rights of the parties touching the subject matter in controversy, and to enforce such sentence." Ex parte Walker, 25 Ala. 81. A power constitutionally conferred upon a judge or magistrate, to take cognizance of and decide causes according to law, and to carry his sentence into execution." Succession of Weigel, 17 La. An. 70. "The word 'jurisdiction' is a term of large and comprehensive import and embraces every kind of juidcial action upon the subject matter, from finding the indictment to pronouncing the sentence." Hopkins v. Com., 3 Metc. (Mass.) 462. Jurisdiction is defined to be the authority of law to act officially in the matter then in hand. Jones v. Brown, 54 Iowa 74, 79. law. Jurisdiction in courts is the power and authority to declare the Mills 7. Com., 13 Pa. St. 627, 630. And there are a number of decisions which support this definition. Thus it has been decided that a decree in equity, which is entirely aside of the issue raised in the record is invalid, and And in Wisconsin, in a divorce proceeding, the custody of a child had been awarded to the father, and the mother abducted the child, and was thereupon adjudged guilty of a contempt of court and ordered to restore the child, pay a fine of one dollar, and stand committed to the county jail until she had complied with the order. The woman failing to comply with this decree was accordingly imprisoned, but in a writ of habeas corpus the supreme court released her, because under the State statute the court below had no authority to enter such an order in the proceeding for the contempt, that therefore the order was in excess of the court's jurisdiction and void. RYAN, J., however, filed a strong dissenting opinion, on the ground that this was confounding jurisdiction and judgment, and that the petitioner's remedy was not a writ of habeas corpus, but an appeal to the supreme court to reverse the order. Re Ida Louisa Pierce, 44 Wis. 411. In a still later case (1888) in Texas, where A brought an action in a Texas court against B, a nonresident, by attaching his property, and causing a citation to be published, all of which was by statute made requisite to a valid judgment against a nonresident, and after the publication of the citation, B, having entered no appearance, A filed an amended petition, setting up an entirely new cause of action, on which judgment by default was rendered without any further citation being published or service had on B. In a subsequent action to try title brought in a court of the same State, where plaintiff claimed title through a sale on the above judgment, it was held that the court had only acquired jurisdiction of the defendant as to the cause of action set forth in the pleadings on file when the citation was published; that the cause of action on which the judgment was rendered in his favor was the cause of action stated in the pleadings on file the day the judgment was rendered; and to answer that no notice by publication was given to B and he did not appear, and therefore the judgment was void. Stuart et al. v. Anderson et al. (Tex.), 8 S. W. Rep. 295. And in Pennsylvania, in 1889, in an action of ejectment, the plaintiff claimed under a will which had been duly proved over fifty years since, and which he offered in evidence. The will was not signed, and the evidence set out in the record of the probate before the register of wills, did not prove that the failure to sign the will was duly accounted for in accordance with the Pennsylvania Statute of Wills. The will was therefore objected to on those grounds, and it was held that notwithstanding the fact that the probate by the register of wills is, in Pennsylvania, a judicial decree, and by statute conclusive as to realty after the lapse of five years without appeal; yet the register of wills has no jurisdiction over a paper that is not a will within the Pennsylvania statutes; that this paper was not a will within such statutes, and could not be made so by the decree of probate, but that that decree, being entered without jurisdiction, was coram non judice and void. Wall v. Wall, 23 Weekly Notes (Pa.) 237. To the same effect is Bowlby . Thunder, 105 Pa. St. 173, where the register had probated two papers which were attached to a former will as though they had been part of it. The decisions in the State courts are, however, not harmonious. Thus in South Carolina, 1877, the court, relying inter alia on the case of Ex parte Brennan, 102 B. 492 (59 E. C. L.), cited supra, held that though a prisoner convicted of assault with intent to kill cannot lawfully be sentenced to confinement in the penitentiary at hard labor, yet such sentence is not void, but only voidable, and relief can be obtained by appeal only and not by habeas corpus. In re Bond, 9 S. Car. 80; s. c., 30 Am. Rep. 20. And in Indiana in 1885, in a criminal proceeding where the court had jurisdiction of the offence charged and of the defendant, the defendant entered a plea of guilty of murder in the first degree, and the court sentenced him to imprisonment for life, on a petition for a writ of habeas corpus, it was held that, although the court erred in not calling a jury to say in their discretion whether the defendant should suffer the penalty of death or be imprisoned for life, as required by the law of the State, the judgment was not, therefore, void, nor could it be assailed collaterally on habeas corpus proceedings. Lowery v. Howard (Ind.), 1 West. Rep. 486; s. c., 3 N. E. Rep. 124. And in 1886, in Illinois, where there is an act of assembly providing that in case of a second conviction for certain offences, the punishment shall be imprisonment for not less than fifteen years. An indictment of one of said offences set forth a former conviction, and the record of such former conviction showed that the accused had there waived his right to a trial by jury and was tried, adjudged guilty and sentenced by the court. This record was objected to on the ground that the accused in such a case had no power to waive trial by jury. This objection was held not to be well founded, because, conceding it to be so, and that the judgment entered in the case was irregular and erroneous, it was not void and it could not be attacked collaterally. Kelley v. People (Ill.), 3 West. Rep. 45; s. c., 4 N. E. Rep. 644. See the early case (1829) of Com. v. Curtis, Thach. Cr. C. (Mass.) 202. In a recent case in Ohio (1886), similar to Windsor v. McVeigh, 93 U. S. 274, cited supra, involving the title to real estate based on a purchase at a sale 2. Various kinds of Jurisdictions, with Definitions Thereof.-There are various kinds of jurisdiction, which have been named and defined as follows: Appellate jurisdiction is that given by appeal from the judg ment 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. Furisdiction 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 said to be definitely decided. The great weight attached to the decisions of the supreme court of the United States makes it at least probable that if that court continues to hold the views expressed in the late cases cited supra, the courts of the various States will sooner or later adopt them, but the decisions thus far rendered scarcely authorize a stronger statement than that there is a tendency in the later cases to hold that jurisdiction includes not only the power to hear and determine, but also the power to render the particular judgment entered in the particular case. See an article by Mr. Seymour D. Thompson entitled "The Modern Idea of Jurisdiction," in The Central Law Journal, vol. 19, p. 102; and an article by Mr. Rufus Waples entitled "Constitutional Statutory Jurisdiction," in The American Law Register, vol. 26, p. 481. 1. Bouvier's Law Dictionary (15th ed.), vol. 2, p. 26, title Jurisdiction. Rapalje & Lawrence's Law Dictionary, vol. 1, p. 702. See also Overseers v. London & N. W. R. Co., L. R., 4 App. Cas. 30. 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.1 3. Constitutional Limitations as to Jurisdiction.-The division of the government under the constitution of the United States into 1. Constitutional Limitations-Jurisdiction of the Judiciary Department Over the President of the United States. -See the constitution of the United States, art. 2, § 4, and art. 1, § 3, par. 7. In the argument in the case of Marbury v. Madison, I Cranch (U. S) 137, it was admitted by the counsel for the relator that the writ asked for a mandamus to compel the secretary of state to deliver a commission to a duly appointed officer could in no case go to the president, and in their opinion the court expressly disclaimed any intention of interfering with the prerogatives of the president. And MR. CHANCELLOR KENT, in treating of the responsibility of the president, says: "In addition to all the precautions which have been mentioned to prevent abuse of the executive trust in the mode of the president's appointment, his term of office and the precise and definite limitations imposed upon the exercise of his power, the constitution has also rendered him directly amenable by law for maladministration. The inviolability of any officer of government is incompatible with the republican theory, as well as with the principles of retributive justice. The president, vice president, and all civil officers of the United States, may be impeached by the house of representatives for treason, bribery and other high crimes and misdemeanors, and upon conviction by the senate removed from office. If, then, neither the sense of duty, the force of public opinion nor the transitory nature of the seat are sufficient to secure a faithful discharge of the executive trust, but the president wil use the authority of his station to violate the constitution on law of the land, the house of representatives can arrest him in his career by resorting to the power of impeachment." Kent's Com. (15th ed.), vol. 1, p. *288. The question came before the supreme court in the reconstruction period following the civil war. The State of Mississippi applied to the court by motion for leave to file a bill in equity restraining the president and the general commanding in the district of Mississippi and Arkansas from executing or in any manner carrying out the reconstruction acts of congress. The court held that the duty of the president in enforcing those acts was not ministerial, but executive and official, and that they had no jurisdiction to enjoin the president in the performance of his official duties. The motion was, therefore, denied. Mississippi v. Johnson, 4 Wall. (U. S.) 475 On the trial of Aaron Bun at Richmond, an attempt was made to compel the attendance of Mr. Jefferson, the then president, as a witness. Mr. Jefferson refused to attend, but offered to be examined before a commissioner at Washington. No attempt was made to secure his attendance, and the tacit recognition thus given of the exemption of the chief executive from attachment has been subsequently followed in other courts. See Wharton's Commentaries on American Law, § 391. Upon the extension of this principle to subordinate executive officers and to members of the legislative department see Wharton on Evidence (2nd ed.), § 604. Suits Against the United States.While the principle is thoroughly established that the court will not entertain suits against the United States, yet it has been decided that this exemption is limited to suits against the United States directly and by name, and cannot be successfully pleaded in favor of officers and agents of the United States when sued by private persons for property 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 Executive 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.1 This jurisdiction has, however, been and agents. United States v. Lee, 106 delicate, and excites some hesitation U. S. 196. 1. Jurisdiction of the Judiciary Over Other Executive Officers.-What power was conferred by the constitution of the United States on the judiciary department to enquire into the conduct of the officers of the other departments of the government was discussed in the United States supreme court as early as 1803, in the great case of Marbury v. Madison. In that case Marbury claimed to have been appointed a justice of the peace for the county of Washington, in the District of Columbia; that the appointment had been approved by the senate; that a commission had been duly signed by the president and delivered to Mr. Madison, the then secretary of state, to have the seal of the United States attached thereto; that such seal was attached, but that Mr. Madison, though requested so to do, refused to give up the commission. The complainant therefore asked for a mandamus to compel him to do so. The court having first decided that the complainant had a right to his commission, and that the refusal to deliver it to him was a violation of that right for which the laws of the United States afforded him a remedy, then decided that the remedy was a writ of mandamus, saying, in er alia, "The intimate political relation subsisting between the president of the United States and the heads of departments necessarily renders any legal investigation of the acts of one of those high officers peculiarly irksome, as well as with respect to the propriety of entering into such investigation. Impressions are often received without much reflection or examination, and it is not wonderful that in such a case as this, the assertion, by an individual, of his legal claims in a court of justice, to which claims it is the duty of that court to attend, should at first view be considered by some, as an attempt to intrude into the cabinet, and to intermeddle with the prerogatives of the executive. It is scarcely necessary for the court to disclaim all pretensions to such a jurisdiction. The province of the court is solely to decide on the rights of individuals, not to enquire how the executive, or executive officers, perform duties in which they have a discretion. Questions, in their nature political, or which are by the constitution and laws submitted to the executive, can never be made in this court "If one of the heads of departments commits any illegal act, under color of his office, by which an individual sustains an injury, it cannot be pretended that his office alone exempts him from being sued in the ordinary mode of proceeding, and being compelled to obey the judgment of the law. How, then, can his office exempt him from this particular mode of deciding on the legality of his conduct, if the case be such a case as would, were any other individual the party complained of, authorize the process? "It is not by the office of the person to whom the writ is directed, but the nature of the thing to be done that the |