claim on behalf of the state, to the slaves remaining unsold, and to the proceeds of those which are sold. He states the slaves to be in possession of the executive, under the act of the legislature of Georgia, made to give effect to the act of congress on the subject of negroes, mulattoes, or people of colour, brought illegally into the United States; and the proceeds of those unsold to have been paid in the treasury, and to be no longer under his control. The case made, in both the libel and claim, exhibits a demand for money actually in the treasury of the state, mixed up with its general funds, and for slaves in possession of the government. It is not alleged, nor is it the fact, that this money has been brought into the treasury, or these Africans into the possession of the executive, by any violation of an act of The possession has been congress. acquired, by means which it was lawful to employ. The claim upon the governor, is as a governor: he is sued, not by his but by his title. The demand made upon him is not made personally, but officially. name, The decree is pronounced, not against the person, but the officer, and appeared to have been prosuccessor of nounced against the the original defendant, as the appeal bond was executed by a different governor from him who filed the information. In such a case, where the chief magistrate of a state is sued, not by his name, but by his style of office, and the claim made upon him is entirely in his official character, we think the state itself may be considered as a party on the record. If the state is not a party, there is no party against whom a decree can be made. No person in his natural capacity is brought before the court as defendant. This not being a proceeding against the thing, but against the person, a person capable of appearing as defendant, against whom a decree can be pronounced, must be a party to the cause before a decree can be regularly pronounced. But were it to be admitted, that the governor could be considered as a defendant in his personal character, no case is made which justifies a decree against him personally. He has acted in obedience to a law of the state, made for the purpose of giving effect to an act of congress, and has done nothing in violation of any law of the United States. The decree is not to be considered as made in a case in which the governor was a defendant, in his personal character; nor could a decree against him, in that character, be supported. The decree cannot be sustained as against the state, because, if the 11th amendment to the constitution, does not extend to proceedings in admiralty, it was a case for the original jurisdiction of the supreme court. It cannot be sustained as a suit, prosecuted not against the state, but against the thing; because the thing was not in possession of the district court. We are therefore of opinion, that there is error in so much of the decree of the circuit court, as directs that the said slaves libelled by Juan Madrazo, and the issue of the females now in the custody of the government of the state of Georgia, or the agent or agents of the said state, be restored to the said Madrazo, as the legal proprietor thereof, and that the proceeds of those slaves, who were sold by order of the governor, or the said state, be paid to the said Juan Madrazo, and that the same ought to be reversed; but that there is no error in so much of the said decree as dismisses the information of the governor of Georgia, and the claim of William Bowen. Christian Breithaupt & al. vs. the Bank of the State of Georgia. In this case, which was brought up on appeal from the Circuit Court for the district of Georgia, the only question was, whether the Circuit Court had jurisdiction of the cause. The complainants were citizens of the state of South Carolina, and the defendant was a body corporate, under an act of the Legislature of Georgia, but the citizenship of the individual corporators was not stated, although the bill averred that the President of the mother bank, and the President of the Branch Bank, were citizens of Georgia. Mr. M'Duffie argued in support of the jurisdiction of the Court, and Mr. Berrien and Mr. Wilde against it. The Court decided, that it had not jurisdiction, the record not showing the defendants to be citizens of Georgia, and there being no distinct allegations that the stockholders were citizens of that state. James D'Wolf vs. David J. Rabaud & al. In this case, the Court decided, (Justice Story delivering the opinion,) that the Court could not in any case order a nonsuit, without the consent and acquiescence of the plaintiff. It also declared, that the question of the citizenship of the parties constituted no part of the issue upon the merits, but must be brought forward by a proper plea of abatement. The American Insurance Company & al. vs. David Canter. THIS case was an appeal in Admiralty from the Circuit Court of the United States for the District of South Carolina. A libel was filed in the District Court, claiming certain bales of cotton, insured by the appellants, and wrecked on the coast of Florida, whence it was carried into Key West, and sold, without having been properly adjudicated upon. The appellee filed his answer, claiming as a bona fide purchaser under a decree of a certain Court, consisting of a Notary and five jurors, created by an act of the Legislative Council of Florida, passed July 4th, 1823, which awarded 76 per cent. salvage to the salvors of the cargo. The District Court declared the proceedings in the Court at Key West null; and, after deducting a salvage of 50 per cent., decreed restitution of such cotton as was identified by the libellants. The Circuit Court reversed this decree, and decreed the cotton, with costs, to the appellee, on the ground that the proceedings at Key West were legal, and transferred the property to the purchaser. Upon appeal to the Supreme Court, it was contended by Mr. Ogden, for the appellants, that the decision of the Circuit Court was erroneous, because the Court at Key West was not legally organized, and had not jurisdiction in the premises. Mr. Webster and Mr. Whipple replied in behalf of the appellees. Chief Justice Marshall delivered the opinion of the Court. After stating the facts, he proceeds: The cause depends, mainly, on the question whether the property in the cargo saved, was changed by the sale at Key West. The conformity of that sale to the order under which it was made, has not been controverted. Its validity has been denied, on the ground that it was ordered by an incompetent tribunal. The tribunal was constituted by an act of the territorial Legislature of Florida, passed on the 4th July, 1825, which is inserted in the record. That act purports to give the power which has been exercised, consequently the sale is valid, if the territorial Legislature was competent to enact the law. The course which the argument has taken, will require, that, in deciding this question, the Court should take into view the relation in which Florida stands to the United States. The constitution confers absolutely on the government of the Union, the powers of making war, and of making treaties; consequently, that government possesses the power of acquiring territory, either by conquest or by treaty. The usage of the world is, if a nation be not en irely subdued, to consider the holding of conquered territory as a mere military occupation, until its fate shall be determined at the treaty of peace. If it be ceded by the 'reaty, the acquisition is confirmed, and the ceded territory becomes a part of the nation to which it is annexed, either on the terms stipulated in the treaty of cession, or on such as its new master shall impose. On such transfer of territory, it has never been held, that the relations of the inhabitants with each other undergo any change. Their relations with their former sovereign are dissolved, and new relations are created between them and the government which has acquired their territory. The same act which trans fers their country, transfers the ailegiance of those who remain in it; and the law, which may be denominated political, is necessarily changed, although that which regulates the intercourse and general conduct of individuals, remains in force until altered by the newly created power of the state. On the 2d of February, 1819, Spain ceded Florida to the United States. The 6th article of the treaty of cession contains the following provision"The inhabitants of the territories which his Catholic Majesty cedes to the United States by this treaty, shall be incorporated in the Union of the United States, as soon as may be, consistent with the principles of the federal constitution, and admitted to the enjoyment of the privileges, rights, and immunities of the citizens of the United States." This treaty is the law of the land, and admits the inhabitants of Florida to the enjoyment of the privileges, rights, and immunities, of the citizens of the United States It is unneces. sary to inquire, whether this is not their condition, independent of stipulation. They do not, however, participate in political power, they do not share in the government, till Florida shall become a state. In the mean time, Florida continues to be a territory of the United States, governed by virtue of that clause of the constitution which empowers Congress "to make all needful rules and regulations respecting the territory, or other property belonging to the United States." Perhaps the power of governing a territory belonging to the United States, which has not, by becoming a state, acquired the means of selfgovernment, may result, necessarily, from the facts, that it is not within the jurisdiction of any particular state, and is within the power and jurisdiction of the United States. The righ to govern may be the inevitable con sequence of the right to acquire territory. Whichever may be the source whence the power is derived, the pos session of it is unquestioned. In execution of it, Congress, in 1822, passed "An act for the establishment of a territorial government in Florida;" and, on the 3d of March, 1823, passed another act to amend the act of 1822. Under this act, the territorial legislature enacted the law now under consideration. The 5th section of the act of 1823 creates a territorial legislature, which shall have legislative powers over all rightful objects of legislation; but no law shall be valid, which is inconsistent with the laws and constitution of the United States. The 7th section enacts, "That the judicial peer shall be vested in two Superior Courts, and in such inferior courts, and justices of the peace, as the Legislative Council of the territory may from time to time establish." After prescribing the place of cession, and the jurisdictional limits of each court, the act proceeds to say, "within its limits herein described, each court shall have jurisdiction in all criminal cases, and exclusive jurisdiction in all capital offences, and original jurisdiction in all civil cases of the value of one hundred dollars, arising under and cognizable by the laws of the territory, now in force therein, or which may, at any time, be enacted by the Legislative Council thereof.” The 8th section enacts," That each of the said Superior Courts shall moreover have and exercise the same jurisdiction within its limits, in all cases arising under the laws and constitution of the United States, which, by an act to establish the judicial courts of the United States, approved the 24th of September, 1789, and an act in addition to the act, entitled an act to establish the judicial courts of the United States, approved the 2d of March, 1793, was vested in the court of Kentucky District." The powers of the territorial legislature extend to all rightful objects of legislation, subject to the restriction, that their laws shall not be "inconsistent with the laws and constitution M of the United States." As salvage is admitted to come within this description, the act is valid, unless it can be brought within the restriction. The counsel for the libellants contend, that it is inconsistent with both the law and the constitution; that it is inconsistent with the provisions of the law, by which the territorial govern. ment was created, and with the emendatory act of March, 1823. It vests, they say, in an inferior tribunal, a jurisdiction which is, by those acts, vested exclusively in the Superior Courts of the territory. This argument requires an attentive consideration of the sections which define the jurisdiction of the Superior Courts. The 7th section of the act of 1829, vests the whole judicial power of the territory "in two Superior Courts, and in such inferior courts, and justices of the peace, as the Legislative Council of the territory may from time to time establish." This general grant is common to the superior and inferior courts, and their jurisdiction is concurrent, except so far as it may be made exclusive in either, by other provisions of the statute. The jurisdiction of the Superior Courts is declared to be exclusive over capital offences; on every other question over which those courts may take cognizance by virtue of this section, concurrent jurisdiction may be given to the inferior courts. Among these subjects, are "all civil cases arising under and cognizable by the laws of the territory, now in force therein, or which may at any time be enacted by the Legislative Council thereof." It has been already stated, that all the laws which were in force in Florida while a province of Spain, those excepted which were political in their character, which concerned the relations between the people and their sovereign, remained in force until altered by the government of the United States. Congress recognises this principle, by using the words "laws of the territory now in force therein." No laws could then have been in force, but those enacted by the Spanish government. If among these, a law existed on the subject of salvage, and it is scarcely possible there should not have been such a law, jurisdiction over cases arising under it, was conferred on the superior courts, but that jurisdiction was not exclusive. A territorial act, conferring jurisdiction over the same cases on an inferior court, would not have been inconsistent with this section. The 8th section extends the jurisdiction of the superior courts, in terms which admit of more doubt. The words are, "That each of the said superior courts shall, moreover, have and exercise the same jurisdiction, within its limits, in all cases arising under the laws and constitution of the United States, which, by an act to establish the judicial courts of the United States, was vested in the court of the Kentucky district." The 11th section of the act declares, "That the laws of the United States, relating to the revenue and its collection, and all other public acts of the United States, not inconsistent or repugnant to this act, shall extend to, and have full force and effect, in the territory aforesaid." The laws which are extended to the territory by this section, were either for the punishment of crime, or for civil purposes. Jurisdiction is given in all criminal cases, by the 7th section; but in civil cases, that section gives jurisdiction only in those which arise under and are cognizable by the laws of the territory; consequently, all civil cases arising under the laws which are extended to the territory by the 11th section, are cognizable in the territorial courts, by virtue of the 8th section; and, in those cases, the superior courts may exercise the same jurisdiction, as is exercised by the court for the Kentucky district. The question suggested by this view of the subject, on which the case under consideration must depend, is this: Is the admiralty jurisdiction of the district courts of the United States vested in the superior courts of Florida, under the words of the 8th section, declaring that each of the said courts "shall moreover have and exercise the same jurisdiction within its limits, in all cases arising under the laws and constitution of the United States," which was vested in the courts of the Kentucky district? It is observable, that this clause does not confer on the territorial courts all the jurisdiction which is vested in the court of the Kentucky district, but that part of it only which applies to cases arising under the laws and constitution of the United States." Is a case of admiralty of this description? The constitution and laws of the United States, give jurisdiction to the district courts over all cases in admiralty; but jurisdiction over the case, does not constitute the case itself. We are therefore to inquire, whether cases in admiralty, and cases arising under the laws and constitution of the United States, are identical. If we have recourse to that pure fountain from which all the jurisdiction of the federal courts is derived, we find language employed which cannot well be misunderstood. The constitution declares, that "the judicial power shall extend to all cases in law and equity, arising under this constitution, the laws of the United States, and treaties made, or which shall be made, under their authority; to all cases affecting ambassadors, or other public ministers, and consuls; to all cases of admiralty and maritime jurisdiction." The constitution certainly contemplates these as three distinct classes of cases; and if they are distinct, the grant of jurisdiction over one of them, does not confer jurisdiction over either of the other two. The discrimination made between them, in the constitution, is, we think, conclusive against their identity. If it were not so-if this were a point open to inquiry, it would be difficult to maintain the proposition that they are the same. A |