Page:Joseph Story, Commentaries on the Constitution of the United States (1st ed, 1833, vol III).djvu/564

 556 . The minister does not, by the mere arrest of his secretary, or his servant, become a party to this suit, but the actual defendant pleads to the jurisdiction of the court, and asserts his privilege. If the suit affects a foreign minister, it must be dismissed, not because he is a party to it, but because it affects him. The language of the constitution in the two cases is different. This court can take cognizance of all cases 'affecting' foreign ministers; and, therefore, jurisdiction does not depend on the party named in the record. But this language changes, when the enumeration proceeds to states. Why this change? The answer is obvious. In the case of foreign ministers, it was intended, for reasons, which all comprehend, to give the national courts jurisdiction over all cases, by which they were in any manner affected. In the case of States, whose immediate or remote interests were mixed up with a multitude of cases, and who might be affected in an almost infinite variety of ways, it was intended to give jurisdiction in those cases only, to which they were actual parties.

"In proceeding with the cases, in which jurisdiction depends on the character of the party, the first in the enumeration is, 'controversies to which the United States shall be a party.' Does this provision extend to the cases, where the United States are not named in the record, but claim and are actually entitled to, the whole subject in controversy? Let us examine this question. Suits brought by the postmaster-general are for money due to the United States. The nominal plaintiff has no interest in the controversy, and the United States are the only real party. Yet, these suits could not be instituted in the courts of the Union, under that clause, which gives jurisdiction in all cases, to which the United States are a party; and it was found necessary to give the court jurisdiction over them, as being cases arising under a law of the United States.

"The judicial power of the Union is also extended to controversies between citizens of different States; and it has been decided, that the character of the parties must be shown on the record. Does this provision depend on the character of those, whose interest is litigated, or of those, who are parties on the record? In a suit, for example, brought by or against an executor, the creditors or legatees of his testator are not, in such cases, sue under the clause giving jurisdiction, "in controversies, to which the United States shall be a party;" but under the clause extending the jurisdiction to cases arising under the laws of the United States.