This is an application made on the part of the defendants, for leave to file a bill of review, so far as respects the orders and decrees for costs heretofore rendered in the above case against them.
The court have already determined that the decree rendered for costs against the defendants was unaffected by the act of congress passed August 31, 1852, and with which determination it is entirely satisfied.
It is suggested, however, on the part of the applicant, that there is no act of congress expressly conferring power upon this court in the case of original jurisdiction, to award costs against either of the parties. This may be true, but it is equally true in respect to the circuit courts of the United States, and yet no one has doubted the power in those courts since their first organization; 1 Blatchford R. 652; and the grounds upon which that power rests apply with equal force to the supreme court in the cases mentioned. In the distribution of original jurisdiction between the supreme and circuit courts, there is nothing peculiar in the nature or character of that conferred upon the former, to distinguish it specially from the latter. Indeed, a large portion of this jurisdiction is concurrent with that of the circuit courts. It is exclusive only in a few cases having regard to the sovereign character of the party to the suit, or in cases where the interests of our foreign relations may be concerned, and principles of international law involved.
In the nature of the jurisdiction, therefore, or in the character of the suits in this court of original jurisdiction, we perceive nothing that should lead us to distinguish, on the question of costs, between this court and the circuit courts. And, as we have already said, the grounds for the exercise of the power namely, the repeated recognition by acts of congress of the right of the prevailing party to costs—is as applicable to the one court as the other.
It would be an endless task to refer to the various acts of congress passed from time to time recognizing the right of the party to costs in proceedings in the courts of the United States, and, of course, including this court. It will be sufficient to say, that they will be found in the laws of congress, running through its entire legislation on the subject of judicial proceedings, and regulation of the power and authority of the federal courts and its officers. Among the first acts is that of May 9, 1792, 'An act for regulating processes in the courts of the United States, and providing compensations for the officers of the said courts and for jurors and witnesses.' 1 Stats. at Large, 275. The compensation here provided for, on behalf of officers and persons concerned in the administration of justice, not payable out of the treasury of the United States, was recoverable as costs of the suit. § 6, p. 278.
The act of July 22, 1813, (2 Stats. at Large, 19,) 'An act concerning suits and costs in courts of the United States,' provided, (§ 1,) that where several actions against persons who might be joined in one action touching a demand in any court of the United States, if judgment be given for the plaintiff, such party shall not recover the costs of more than one action, &c. And the 3d section provided, that where causes of like nature, &c., shall be pending before a court of the United States, it is made the duty of the court to make rules or orders to avoid unnecessary costs, and consolidate the causes. It is also provided that if any attorney or person admitted to conduct causes in a court of the United States shall appear to have multiplied proceedings in any cause, so as to increase costs vexatiously, such person may be required to satisfy any excess of costs so incurred. But we shall not pursue this inquiry. We could multiply instances of similar recognition of the right of the party to costs, and power of the court to award them, to almost any extent. The instances we have referred to are but samples, and, we think, sufficient for the purpose designed.
But, independent of this, the constitution provides that the judicial power of the United States shall extend to all cases in equity between a State and the citizens of another State; and that, in cases in which a State shall be a party, this court shall have original jurisdiction. There is thus conferred by the constitution on this court original jurisdiction over 'cases in equity' between a State and citizens of another State; and this is the jurisdiction we have exercised in the matter now before us.