Supreme Court, the power must be found in an act of Con. gress.

It is a proposition which admits of no further debate, and needs the citation of no authorities at this day, that all courts of the United States, except the Supreme Court, being the mere creatures of Congressional statute, can exercise no jurisdiction but such as is given by those statutes; and even the Supreme is limited in all except the original jurisdiction given it by the Constitution-a very small portion, indeed, of the power which it exercises-by the will of Congress as expressed in its legislation.

We turn, then, to the Act of 1789, establishing the judici ary system of the United States, to which alone we can look for the requisite authority; for though there are many subse quent statutes conferring jurisdiction on the Federal courts, there are none which can affect the question before us.

The fourth section of that Act creates the Circuit Courts, and the eleventh defines their powers, and confers their juris diction. The latter declares that they shall have original cognizance, concurrent with the courts of the several States of all suits of a civil nature at common law or in equity where the matter in dispute exceeds, exclusive of costs, the sum or value of five hundred dollars, and the United States are plaintiffs, or petitioner, or an alien is a party, or the suit is between a citizen of the State where the suit is brought and a citizen of another State.

This is all that is to be found in this section conferring jurisdiction on the ground of the character of the parties, and we look here in vain for any jurisdiction where a State is a party. I do not know if the idea has ever been advanced that a State is a mere aggregation of its own citizens, and therefore has the same right to bring suit that any one of its citizens has.

It has not been asserted by counsel in the case before us. It certainly cannot be maintained upon any sound view of the Constitution. If the word State is used in that sense in the constitutional provision it is useless, because there is the provision that the judicial power extends to controversies

between citizens of different States, and if a State is but the aggregate of its citizens, then the other is unnecessary.

The clause in that instrument conferring original jurisdiction on the Supreme Court in cases where a State is a party, certainly does not confer jurisdiction when citizens of different States are parties.

In view, then, of the constitutional foundation on which alone a State can be a party in the Federal courts, no such construction of the statute defining the jurisdiction of the Circuit Court can be sound.

A like conclusion results from an examination of the thirteenth section of the Judiciary Act. It declares that the Supreme Court shall have exclusive jurisdiction of all controversies of a civil nature where a State is a party, except between a State and its citizens, and except, also, between a State and citizens of other States, or aliens, in which latter case it shall have original but not exclusive jurisdiction. Now, in all these cases Congress makes a very clear distinc tion between a State and its citizens, and it denies to the Supreme Court any original jurisdiction between a State and its own citizens, and confers on it jurisdiction original but not exclusive, as between a State and citizens of other States. This latter is the precise class of cases to which the one before us belongs; and it would be a violation of all sound rules of construction to say that the same jurisdiction exactly is conferred on the Circuit Court, by using the phrase, "controversies between citizens of different States "-a phrase applied both in this statute and in the Constitution to a very different class of controversies than the one under consideration.

This precise question was raised in the case of Osborne v. The Bank of the United States, 9 Wheaton 841, in which the jurisdiction conferred by the Constitution, where a State is a party, is held to apply only where a State in its corporate or sovereign character is by name an actual party to the record.

It is argued, however, that inasmuch as the Constitution in conferring original jurisdiction in this class of cases on the Supreme Court, did not make that jurisdiction exclusive, and

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the thirteenth section of the Act of 1789 declares expressly that it shall not be exclusive, that the concurrent jurisdic tion which is thus implied to be or remain in some other court must be in the Circuit Court. It would be a sufficient answer to this to say that if it must necessarily be in a court of the United States, it might as well be sought in the District Court as in the Circuit Court, for there is nothing in the statute defining the jurisdiction of either of those courts which refers to this jurisdiction even by implication.

But even if the language of the thirteenth section of the Judiciary Act does imply a concurrent jurisdiction in some other court, we have already seen that such a iurisdiction exists now, and has always probably existed in the State courts. And the probability that it was to this that the thirteenth section had reference is the stronger, because in many other cases that statute recognizes both in express terms, and by fair implication, such a concurrent power in the State courts with those of the United States. Such is the case with the great body of the jurisdiction of the Circuit Courts in regard to aliens, citizens of different States, and suits brought by the United States. So also of Admiralty Courts, where the common law furnishes a remedy and other grounds of jurisdic tion of the District Courts mentioned in the ninth section of the same statute.

There is every reason, therefore, to infer that Congress, in declaring that the original jurisdiction of the Supreme Court in this class of cases shall not be exclusive, had reference to the jurisdiction over the same class of cases intended to be left with the State courts, and which we have already seen, they have uniformly and constantly exercised without ob jection.

But if Congress can confer on the Circuit Courts an origi nal jurisdiction in this class of cases, concurrent with that of the Supreme Court, it is a sufficient answer to say that it has not done so. And in the face of the fact that Congress has not in any other instance whatever during a period of over eighty years that the government has existed, attempted to confer on those two courts a concurrent jurisdiction, is an ar

gument of great force against implying such exercise of the power, in the absence of words expressly granting it. It would indeed be curious if, when the Constitution which gave so limited an original jurisdiction to the Supreme Court, made a suit brought by a State against citizens of another State, one of that limited number, Congress had conferred the same jurisdiction on an inferior tribunal without an appeal to the former.

Looking at the question which we are considering, as it may be affected by the authority of judicial decisions, we have been unable to find, with the limited opportunity which the exigency of this case gives for an investigation, any case in which it has been decided that such jurisdiction exists in the Circuit Court.

Some reference is made to the remarks of the Supreme Court, and in the dissenting opinion of the Chief Justice, in the Wheeling Bridge Case, 13 How. 18, which are supposed to favor such a doctrine. But no such question was before the court, and both the Chief Justice and Judge MCLEAN said nothing more than that the merits of that case, which was an original suit in the Supreme Court, must be governed by the same rules of law as would govern the circuit court of the District of Virginia, if the case was pending before it; but it does not appear that the question whether the case with such parties could be sustained in that court had occurred to their minds. Such a suit, brought by the State of Indiana, was tried by Mr. Justice MCLEAN in the Circuit Court, without the question being raised. It is the case Indiana v. Miller, 3 McLean 151, and was removed by consent from the State court, and the facts stipulated for the judgment of the court on the case.

No thought seems to have been given, either by the court or counsel, to the question of jurisdiction.

On the other hand, we have the judgment of the circuit court for the District of Georgia, as stated by Judge IREDELL, in the case of the State of Georgia v. Brailsford, 2 Dallas 402. The case, as reported in Dallas, was a suit brought in the Supreme Court by the State of Georgia, by a bill in chan

cery. Judge IREDELL, in his opinion, says that in a suit about the same subject matter before him in the circuit, he had refused to permit the State of Georgia to intervene, because the Circuit Court could have no jurisdiction of a case in which a State was a party. He had then, at that early day, decided this question; and though Mr. Justice WILSON thought it was error, he gives no reason for it which at this day would have any weight.

The case of Gale v. Babcock, 4 Wash. C. C. R. 199, is also directly in point. Mr. Justice WASHINGTON in that case remanded it to the State court, on the ground that the Circuit Courts had no jurisdiction of a suit to which a State was a party. And in the very recent case of The State of North Carolina v. Trustees, etc., 5 National Bankruptcy Register 466, the Circuit Court of North Carolina decided the same way. These three are all the direct decisions we have found, and they all deny the jurisdiction.

We are well satisfied that such is the sound construction of the Constitution and the Acts of Congress bearing on the question; and we have the less reluctance in dismissing the bill, as we must for want of jurisdiction, in this court, because we have no doubt that both the State courts of Minnesota and the Supreme Court of the United States are open to the State of Wisconsin for such relief as she may be entitled to.

DILLON, J., concurred.

United States District Court-Southern District of New York.

BENJAMIN P. SHERMAN et al. v. JOHN W. MOTT et al.

Where a collision occurs in consequence of a vessel being cut loose from her moorings, in order to save her from sinking, it is not such an inevitable accident or vis major, as will exempt her from liability for damage resulting from the collision.

In voluntarily cutting herself loose she takes the risk of colliding, and hav ing collided must bear the consequence.