
    Fowler et al. vs. Lindsey, et al. Fowler et al. vs. Miller.
    A RULE- had been originally obtained in thefe actions (which were depending in the Circuit Comt fn the-Diftri<ft of Connecticut) at the inftance of the Defendants, requiring, the Plaintiff to ihew caufe, .why a Fenire fhould not be awarded to fummon a Jury from fame Diftritft, other than that Of Connecticut or New-York ; but it was changed, by con-fent, into a rule to ihew caufe why the aflimis fhould rot be' removed by Certiorari into'the Supreme Court,, as excluí! vely belonging to that jurifdirftion. On flawing caufe, it appeared,, that fiiits, in the nature of Ejeftments, had been inftituted in the Circuit-Court for the Diftriift of Connecticut-, to recover a trait of land, being'part of the Connecticut Gofo which that ftate had granted to Andrew Ward and Jeremiah Hajley, and by whom it had been conveyed to-the. Plaintiffs. The Defendants pleaded that they were inhabitants of the State of .'Nevj-Tork; that thepremifes, for which the fuits were brought,, ■lay in the County of .Steuben^, in the ftate of; Necv-York ; and . that the Circuit Court for the Dittriit of New-Vbrk, ■ or the Courts of the State, and no”other Court, could take cognizance of the actions. The Plaintiffs replied, that the premifes lay in the State of Connecticut; and, iffue being joined, a venire was awarded. On the return, however, the Defendants challenged the array, becaufe the Marfhall of the Diftriit of Connecticut,. a refident and citizen ot that State, had arrayed the Jury by his deputy, who was, alio, á citizen of Connecticut, and intereft- • ed as a purchafer, or claimant, in the Connecticut Gore% under the fame title as the Plaintiffs. The Plaintiffs prayed oyer of the record and return, averred that the deputy MarfhaM was not intérefted in the queftion in iffue, and demurred to the challenge for being double, and contrary to the record, which does, not ihew that the Jury was returned by the deputy Marfhall. ■ The ' Defendants joined in demurrer. The Court- over-ruled' the challenge, as it refpedled the general intereft of the Marfhall and his^deputy, owing to their being eitizens of Connecticut ; but allowed it, and quafhed the array, on account of the. par-ticdar intereft of the ■ deputy, he being interefted in the feme tiá' t of 'land, under colour of the feme title as- the Plaintiffs.
    The amended rule was argued, by Lewis and Hoffman (the " Attorney-General of -New^Tork-,)
    
    in favor of its being, made abfolute, and by' Atillhoufe of Connecticut agair.ibit, on the queftion, whether the fuits ought to be confidered as virtually ■depending'betwéen'the States of Connecticut z.na New-York\ Arid the following opinions were delivered by the Court, the Chief Justice, however^ declining, .on account of the in-tereft of Connecticut, to. take any part in the decifion, and Chase, and Ibedeli,., ‘jufticn, being abfent on account of-indifpofition.
    Washington:, j!uJUcc. The ftrft queftion that occurs, from the arguments on- the préfent occafion, refpedts the nature '.of th.e rights, - that are contefted in the fuits, depending in the Circuit Court. Without entering'Jnto a critical examination of the Conftitution and laws, in relation to the jurifdidiioh .of the Supreme Court, I lay down the following as a Cafe rule : That-a cafe winch belongs to the jurifdicüon of the Supreme' Court, op account of-the intereft that a ftate has in the contro-verfy, mult be a cafe, in which a State is either Pon inally, or - fhbftantial]ys the party. It is not fufficient, that a State'may be confequen'tiaily affedled ; for, in fuch cafe (as where thé grants of different States aré brought into litigation) tKe Circuit Court has clearly ajurifdidtion.' And this remark furnifhes-án anfwerto the fuggeftions, that have been founded on the remote intereft of .the State, in makingretiibution to her grantees, upon the event of aii evidtion.
    It is not contended that he States are nominally the parties ;, nor do I think that they can be regarded as fubftantially, the parties, to the fuits : nay, it'a'ppears to me, that they are not even interefted,' or affedL-d.- They have a right either to the foil, or to the'jurifdidlion. If they-have the right'of foil, they may'conteft :it, at arty time, in this Court, notwithftanding a' decifion in the prefetu.fuits -, and though they may have parted' with the right of foil, Hill the right of jurifdidfioni-s.unimpair-ed.- . A decifion, as to the former object, between individual ’ Citizens,' can never affedt the right of the State, as to the latter objedt: ;it is res inter' alios aña- -For, fuppofe the Jury in fome cafes.fliould find in favor of the title' under New-York; and, in others, they fliould find in fav.or of. the title under Connecticut^ how would this.decide the right of juriftliction-? And •on what principle can private citizens, in the litigation of their private claims, be competent to inveftigate, determine, and'fix, the important rights qf fovereignty ?. ■
    
      The queíHón of jurifdiition remaining, therefore, unaffected by the proceedings in thefe fuits, is there no other mode by which it may be tried ? I will not fay, that a State could, fue at law for fuch an incorporeal right, as that of fovereignty and jurifdidfion ; but even if a Court of law would not afford a, remedy, I can fee no reafori why a remedy fliould not.be obtained in a Court of Equity. The State of New-York might, I think, file .a bill againft the State' of Connecticut, praying to be quieted as to the boundaries of the difputed territory ; and this Court, in orderto effe<Suate:juftice, might appoint commiilioners to afcértain and report thofe boundaries.1 There being no-re*, drefs at law, would be a fufficient reafon for the interpofition of the equitable powers of the Court; fince, it is monftrous to talk of exulting rights, without applying correfpondent remedies.
    Rut as it is propofed to remove the fuits under confederation from the Circuit Court into this Court, by writs of certiorari¿ Xaik whether it has'ever happened, in- the cóurfe of judicial proceedings, that a certiorari has iffued from a fuperior, to an inferior, court,- to remové a caufe- merely from a defeit of jfi-rifdiction ? i do not know that fuch a cafe could ever occur. If the State is really a party to the fuit in the inferior Court, a plea to the jurifdicSion may be there put in'; or, pérhapsj without fuch a pjea, this Court would reverie the judgment on a writ of error; And if the State is not a party, there is no pre-tence for the removal. 1 . .
    - 1 A- certiorari, however, can only iffue, as original procefs, to remove a caufe,' and change the venue, when the Superior Court is fatisfied, that a fair arid impartial trial will not other-wife be obtained; and it is fqmetim.es ufed, as auxiliary procefs, where, for inftance, diminution of the record is alledged, on a ■writ of error; But in fuch cafes, the Superior Court mull have, jurifdidtion of the confroverfy. And as it does not appear to me, that this Court has exclufive,or original, jurifdicStion of the fuits in queftion, I am of opinion that the rule muft be difcharged.
    ■ Paterson, Juflice. The rule to fhew caufe, ■ why a ve~ ñire ihould not be awarded to fummon a jury.from fomedif-tridt, other than that of Connecticut or New-York) cannot be iupported. Jt has, indeed,-been abandoned. The argument proceeds on the ground of removing the caufe into this Court, ás having exclufive jurifdiitiqn of it, becaufe it is a controver-verfy between States.. The conflitution of the United States, and the a£t of Congrefs-, although the phrafeology be fomewhat different, may be conftrued in perfedf conformity with each other. The prefent is a controverfy between individuals re-fpedting their right or “title to a particular trait of land, and cannot he extended to third parties or Rates. Its decifion will not affect the State of Connecticut or Ncw-York-, becaufe neither of them is before the court, nor is it póiíible to bring either of them, as a party, before the Court, in the prefent aiSion. The ftate, as fuch, is not before us. Befides, if the caufe fhould be removed intothis Court, it would anfwer no purpofe; for I am not able to difcern by what authority, we could change the venué, or direft a jury to be drawn from another Diftricft. As to-this particular there is no divolution of power either by the Conftitution or law.' The authority mull be given we cannot ufurp or take it.
    If the point of jurifdidlion be railed by the pleadings, the Circuit Court is competent to its decifion; and, therefore, the caufe cannot-tie removed into this Court previoufiy to fuch de-cilion. To remove a caufe from one Court to another, on the allegation of the want of jurifditSion, is a.novelty in judicial proceedings. Would not the certiorari to.remove, be an ad-miffion of the jurifditSion below ?
    Neither of the motions is within the letter or fpirit of the conftitution or law.
    How f:ra fuit may, with effeS, be inftituted in this Court to decide the right of jurifditSion • between two States, abftrác-tedly fiom th; right of foil, it is not neceffary to determine. The queftion is a great one; but not before us.-
    I regret the incompetencv of this Court to give the aid prayed for. No prej-udice or palfion, -whether of a ftate or per-fon'al'nature, mould infinuate itfelf in. the adtniniftration of juf-tice. - Jurymen, efpecially, fhould be above all prejudice, all paffion, and all intereif in the matter to be determined. But it .is-the duty of -judges to declare, and not to. make the law,
    Cushing, JuJiice. Thefe motions are lo be determined, rather by th,e conftitution and the laws made under it, than, by any remote analogies drawn from Engliih pratSice.
    Both by the conftitution and the judicial a<S, the Supreme Court has original jurifditSion, where a State is a party. In this cafe, the State does not appear to be a party, by any thing on the record. It is a controverfy or fuit between private citizens. onlv;. an atSion of ejeiftment, in-which the defendant-■pleads to the jurifditSion, that'the land lies'in the State of New-York, and ¡flue is taken on that fatS.
    Whether the land lies in New-York or Connecticut, does not .appear toaffetS the right or title to the land in queftion. The right of jurifditSion and the right of foil may depend on very different .words-, charters, and foundations. A decifion cf that iflue, can only, determine the controverfy as between the private citizens, who are parties to the fuit, and the event, only give the land to the Plaintiff or Defendant; hut cduld have jo coi trouling influence over the line of jurifdi<Sion; with re-fpe£t to which, if either State has a conteft with the other, or with individuals, the State has its remedy, I fuppofe, under the coniiitution and the laws, by proper application, bu.t not in this way'; for ihe is not a party to the fuits.
    ■ If an individual will put the event of his caufe in a plea of this kind, on.afacff, which is not effential to his right; I cannot think, it can prejudice the right of jurifdiétioii appertain-;' ing to a State. ’ . . •
    I agree with the reft of the Court, that neither of the motions can be granted.
   By the Court :

Let the rule be difcharged.  