T C<)4l5j THE LIBRARY OF THE UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW (J) JURISDICTION, PRACTICE, AND PECULIAR JURISPRUDENCE OF THE COURTS OF THE UNITED STATES. BY BENJAMIN ROBBINS CURTIS, LL.D. Sccontj iStifttfln, REVISED AND ENLARGED. By HENRY CHILDS MERWLV, AUTHOR OB' "the PATENTABILITY OF INVENTIONS"; KDITOR OF " MER- WIN ON EQUITY AND EQUITY PLEADING," AND LECTURER IN THE LAW SCHOOL OF BOSTON UNIVERSITY, BOSTON: LITTLE, BROWN, AND COMPANY. 1896. Copyright, 1880, By Benjamin R. Curtis. Copyright, 1896, By Little, Bkown, and Company. T C94I5J )69^ University Press: John Wilson and Son, Cambridge, U.S.A. PKEFACE TO THE SECOND EDITION. The changes in the Statutory Law of the Federal Courts have been so great since the first edition of this book was published, that I have been obliged to omit a small part of it, and to add several new chapters and many new paragraphs. But my object has been — I need hardly say — to meddle as little as possible with the work of so great a lawyer and such a master of legal style as Judge Curtis. The notes to the first edition — with one or two exceptions — were added by the editors of that edition. Most of them have been preserved in the present edition, and the new notes are en- closed in brackets. And so as to the text ; — my additions are enclosed in brackets, and all that part of it not so enclosed is the work of Judge Curtis, entirely unaltered. 729243 IV PREFACE. By the kindness of Judge Thayer, of the Eighth Circuit, I have been permitted to make free use of his admirable monograph on the Ju- risdiction of the Federal Courts ; and I am also indebted to Frederic Dodge, Esq., and James J. Storrow, Jr., Esq., for valuable suggestions. The first edition of these lectures was edited by Judge Curtis's brother, Mr. G. T. Curtis, and by his son, who bore his name, who was also a judge, and whose early death cut off a life which was dear to his friends and of high value to the community. H. C. M. Boston, June 1, 1896. PKEFACE TO THE FIRST EDITION. These Lectures were delivered by the late Judo;e Curtis to a class of students in the Harvard Law School, in the academic year 1872-73. They were wholly oral and extem- poraneous, the lecturer making use of only a few brief notes, and relying chiefly upon his very strong memory, which never failed him in the statement of principles or the citation of authorities. A verbatim report was made of each Lecture by a short-hand writer, and from the manuscripts written out by him, and re- vised by Judge Curtis, the Lectures are now printed, without any change of the text. But as they were delivered before the Re- vised Statutes went into operation, it became necessary to refer to that revision in the notes, for the purpose of guiding the reader to the re-enactment or change of the various statutes Vi PREFACE. cited in the text. Such references to the most recent decisions of the Supreme Court of the United States have also been added as seemed to be called for. The Lectures, being addressed to a body of students just beginning their inquiries into the Jurisdiction, Practice, and Jurisj)rudence of the Federal Courts, are, of course, somewhat elementary. But it is believed that they are so comprehensive and accurate that they will form a useful handbook for practitioners of any standing. If future editions shall be required, any changes in the law, as well as the relevant decisions of the Supreme Court of the United States, from time to time, will be duly noted. An index of the cases cited, and a full index of the subjects treated, have been prepared. The latter, it is presumed, will greatly assist the reader in consulting the work on partic- ular points. GEORGE TICKNOR CURTIS. BENJAMIN R. CURTIS. Boston, October, 1880. C IS T E N T S. — * — Page Table of Cases i^ CHAPTER I. The Supreme Court ^ CHAPTER II. The Supreme Court (Continued) 23 CHAPTER III. Appeals from Federal Courts 64 CHAPTER IV. The Circuit Courts 10' CHAPTER V. The Circuit Courts (Continued) 160 CHAPTER VI. Removal of Suits 183 CHAPTER VII. Habeas Corpus 217 Vm CONTENTS. CHAPTER VIII. Page Procedure and Practice 228 CHAPTER IX. Procedure and Practice {Continued) 253 CHAPTER X. The District Courts. Admiralty 279 CHAPTER XL Admiralty (Continued) 294 Index 317 TABLE OF CASES. PAGE Ableman v. Booth (21 Howard, 506) 276 AUen V. Southern California Ry. Co. (70 Fed. Rep. 725) . . 144 Alley V. Edw. Hines Lumber Co. (64 Fed. Rep. 903) .... 216 Ambler v. Eppiuger (137 U. S. 480) 158 American Construction Company v. Jacksonville, Tampa & Key West Ry. Co. (148 U. S. 372) 66, 76, 78 American Finance Co. v. Bostwick (151 Mass. 19) 210 American Sugar Refining Co. v. Johnson (60 Fed. Rep. 503) . 71 Amory v. Amory (95 U. S. 187) 215 Amy V. Manning (144 Mass. 153) 188 Anderson v. Bowers (43 Fed. Rep. 321) 206 V. Carkins (135 U. S. 483) 52 Andrews v. Essex Company (3 Mason, 16) 305 Armstrong f. Ettlesohn (36 Fed. Rep. 209) 211,213 V. The Treasurer of Athens County (16 Peters, 281) . . 36 Arrowsmithu. Harmoning (118 U. S. 194) 58 V. Nashville & D. R. R. Co. (57 Fed. Rep. 165) . . . . 194 Assessor v. Osbornes (9 Wallace, 567) 178 Atlantic Works v. Tug Glide (157 Mass. 525 ; s. c. 159 Mass. 60) 289 Ayers, /n re (123 U. S. 443) 15 Aztec Mining Co. «. Ripley (151 U. S. 79) 79 Badaracco v. Cerf (53 Fed. Rep. 169) 81 Baker r. White (92 U. S. 176) 95 Balkam i\ Woodstock Iron Co. (154 U. S. 177) 234 Baltimore & Ohio R. R. Co. v. Baugh (149 U. S. 368) ... 235 r. Harris (12 Wallace, 65) 150 Bamberger u. Schoolfield (160 U. S. 149) 234 Bank of the United States v. Deveaux (5 Cranch, 61) . . . . 146 y. Planters Bank (9 Wheat. 904) 14 Bank of Vicksburg v. Slocomb (14 Peters, 60) 146 X TABLE OF CASES. PAGE Barling v. Bank of British North America (50 Fed. Rep. 260) 149, 157 Barrel v. Transportation Co. (3 Wallace, 424) 99 Barron y. Burnside (121 U. S. 186) 186 Barry v. Mercein (5 Howard, 103) 89 Barth v. Coler (60 Fed. Rep. 466) 192 Bellaire v. Baltimore & Ohio R. R. (146 U. S. 117) .... 192 Bennett y. Devine (45 Fed. Rep. 705) 211 Bensinger Self Adding Cash Register Co. v. National Cash Register Co. (42 Fed. Rep. 81) 134 Bergemanny. Backer (157 U. S. 655) 227 Berger v. County Commissioners of Douglas County (2 Mc- Crary, 483) 212 Bernheim y. Birnbaum (30 Fed. Rep. 885) 211 Berriau v. Chetvvood (9 Fed. Rep. 678) 207 Bicycle Stepladder Co. y. Gordon (57 Fed. Rep. 529) .... 116 Blake y. McKim (103 U. S. 336) 133 Blossom y. Railroad Co. (1 Wallace, 655) 97 Blyew y. The United States (13 WaU. 581) 14 Bogart y. The John Jay (17 Howard, 399) 303 Boles, In re (48 Fed. Rep. 75) 217 Bouahan y. Nebraska (125 U. S. 692) 41 Bonner, /n re (151 U. S. 242) 223 Borgmeyery. Idler (159 U. S. 408) 73 Bors y. Preston (111 U. S. 252) 9 Bowers v. Supreme Council, American Legion of Honor (45 Fed. Rep. 81) 198 Boyce v. Grundy (3 Peters, 210) 169, 170 Boyd, In re (49 Fed. Rep. 48) 226 Boyle y. Zacharie (6 Peters, 635) 94 Bradley v. Rhines Adm'rs (8 Wallace, 393) 159 Brewster v. Tuthill Spring Co. (34 Fed. Rep. 769) 265 Bridge Proprietors v. Hoboken Company (1 Wallace, 116) . . 41 Briggs, In re (61 Fed. Rep. 498) 102 Brisenden v. Chamberlain (53 Fed. Rep. 307) 207 Britton v. The Venture (21 Fed. Rep. 928) 303 Brodhead y. Shoemaker (44 Fed. Rep. 518) 209 Browne v. Strode (5 Cranch, 303) 139 Buchanan, /?i re (158 U. S. 31) 72 Bucher v. Cheshire R. R. Co. (125 U. S. 555) 234 Bucklin v. United States (No. 2), (159 U. S. 682) 269 Buckstaffy. Russell (151 U. S. 626) 91 Buell, /«re (3 Dillon, 116) 267 TABLE OF CASES. XI PAGE Burbank y. Bigelow (92 U. S. 179) 129 Burgess v. Seligman (107 U. S. 20) 2.-59 Buirus, /n re (136 U. S. 586) 218 BushuelU'. Kennedy (9 Wall. 387) 1.58 Busill Carpet Sweeper Co. v. Goshen Sweeper Co. (72 Fed. Rep. 545) 86 Butler V. Boston & Savannah Steamship Co. (130 U. S. 527) . 297 California y. Southern Pacific Co. (157 U. S. 229) 6,19 Campbell i-. Tlie City of Haverhill (155 U. S. 610) 229 Carey v. Houston & Texas Central Ry. (150 U. S. 170) . . . 73 Carico v. Wilmore (51 Fed. Rep. 196) 195 Carson, &c. Lumber Co. v. Holtzclaw (39 Fed. Rep. 578) 205, 211 Cary v. Curtis (3 Howard, 245) 135 Central Trust Co. of New York. v. Marietta, &c. R. R. Co. (48 Fed. Rep. 850) 74 Chapman f. Goodnow (123 U. S. 540) 58 Chappell V. United States (160 U. S. 499) 69,70 V. Waterworth (155 U. S. 102) 199 Charleston Bridge Co. c. The John C. Sweeney (55 Fed. Rep. 540) 285 Cherokee Nation I'. The State of Georgia (5 Peters, 1) ... 17 Chisholm r. The State of Georgia (2 Dallas, 419) 16 Church I'. Shelton (2 Curtis's C. C. R. 271) 288 Cilley, In re (58 Fed. Rep. 977) 209, 210 Cincinnati, Hamilton, &c. R. R. Co. v. McKeen (149 U. S. 259) 77 Citizens' Bank v. Board of Liquidation (98 U. S. 140) .... 55 City Bankof New Yorky. Skelton (2 Blatch. 14) 276 City of Detroit v. Detroit City Ry. Co. (54 Fed. Rep. 1) . 202, 205 City of Norwich (118 U. S. 468) 297 City of Ysleta y. Cauda (67 Fed. Rep. 6) 199 Claasen, In re (140 U. S. 200) 67 Claflin V. Houseman (93 U. S. 130) 272 Clark V. Bever (139 U. S. 96) 187 V. Pennsylvania (128 U. S. 395) 94 Clarke y. Mathewson (12 Peters, 164) 140 Clinton V. Englebrecht (13 Wallace, 434) 106 Coal Company I'. Blatchford (11 Wallace, 172) . ..... 138 Cohens ^J. The State of Virginia (6 W'heaton, 264) . . 25,30,212 Collins Mfg. Co. y. Ferguson (54 Fed. Rep. 721) 136 Columbus Watch Co. r. Robbins (148 U. S. 266) .... 77,86 V. Robbins (64 Fed. Rep. 384) 86 Colvinu. Jacksonville (158 U. S. 456) 69 xii TABLE OF CASES. PAGE Commonwealth of Kentucky v. Dennison (24 How. 66) . . . 20 Commouwealtli u. King (150 Mass. 221) 286 Connecticut Mutual Life Ins. Co. v. Union Trust Co. (112 U. S. 250) 254, 257 Conner v. Si^agit Cumberland Coal Co. (45 Fed. Rep. 802) . 201 Consolidated Store Service Co. v. Lamson Consolidated Store Service Co. (41 Fed. Eep. 833) 153 Continental Store Service Co. ;;■. Clark (100 N. Y. 365) ... 277 Cope u. Vallette Dry Dock Co. (119 U. S. 625) 291 Cross i;. Burke (146 U. S. 82) 220 Crowell V. Randall (10 Peters, 368) 36 Cunimings v. Jones (104 U. S. 419) 43 Cunningham v. Hall (1 Cliff. 43) 309 Cutler V. Rae (7 Howard, 729) 291 Danace v. The Magnolia (37 Fed. Rep. 367) 306 Dashiell v. Grosvenor (75 Off. Gaz. 507) 78 Davis y. Crouch (94 U. S. 514) 9.5 V. Geissler (162 U. S. 290) 70 V. Packard (7 Peters, 281) 274 Day I'. The Newark Manufacturing Co. (1 Blatch. 628) ... 123 De Grooty. The United States (5 Wallace, 419) 105 De Lovio v. Boit (2 Gallison, 398) 283, 290 Dennistoun u. Draper (5 Blatch. 336) 187 De Saussure v. Gaillard (127 U. S. 216) 53 Deshler 17. Dodge (16 Howard, 622) 158 Detroit v. Osborne (135 U. S. 492) 231 Devoe Manufacturing Co., Petitioner (108 U. S. 401) . ... 298 Dick V. Foraker (155 U. S. 404) 127 Diggs y. Wolcott (4 Cranch, 179) 174 Donnelly v. United States Cordage Co. (66 Fed. Rep. 613) . . 162 Dorr V. the Pacific Insurance Co. (7 Wheaton, 582) 293 Dower v. Richards (151 U. S. 658) 69 Doyle V. Continental Insurance Co. (94 U. S. 535) ... 185,187 Dravor. Fabel (25 Fed. Rep. 116) 257 Duncan !>. Darst (1 Howard, 301) 276 Dunn y. Clarke (8 Peters, 1) 140 Dupasscur Z7. Rochereau (21 Wall. 130) 212 Dupont y. Vance (19 Howard, 162) 290 Eastman v. Sherry (37 Fed. Rep. 844) 122 Edgerton v. Gilpin (3 Woods, 277) 194 TABLE OF CASES. XIU PAGE Elliott V. Slmler (50 Fed. Rep. 454) 210 EUis V. Page (1 Tick. 45) • 60 Erstein v. Kothschild (22 Fed. Rep. 61) 247 Eslava v. Mazange (1 Woods, 623) 256 Evans v. Dilliugham (43 Fed. Rep. 177) 214 £.r/>arteBeebes (2 WaU. Jr. 127) 258 Boyer (109 U. S. 629) 286 Clarke (100 U. S. 399) 218 Newmau (14 Wall. 152) 293 Pheuix Insurance Co. (lis U. S. 610) 297 Railroad Company (95 U. S. 221) 99 Royall(117 U. S. 254) 224 Schollenberger (96 U. S. 369) 153 Siebold (100 U. S. 371) 226 Tom Tong (108 U. S. 556) 217 Yerger (8 Wallace, 85) 219, 224 Zelluer (9 Wallace, 244) 105 Farney i'. Towle (1 Black, 350) 40 Ferguson v. Ross (38 Fed. Rep. 161) 207 Ferry Company v. Beers (20 How. 393) 303 Fidelity Trust & Safety Vault Co. v. Newport News & M. V. Co. (70 Fed. Rep. 403) 202 Fifty Thousand Feet of Timber (2 Lowell, Dec. 64) .... 291 Fisher v. Williams (67 Fed. Rep. 384) 88 Fisk y. Union Pacific Railroad (6 Blatch. 362; s. c. 8 Blatch. 243) 62 I'. Henarie (142 U. S. 459) 184, 185, 202, 207 Folsom I'. United States (160 U. S. 121) 82 Ford I'. Surget (97 U. S. 594) 27 Forgay I?. Conrad (6 Howard, 201) 97 Forsyth v. City of Hammond (71 Fed. Rep. 443) 239 Eraser r. Jennison (106 U. S. 191) 192 Frederich,/wre (149 U. S. 70) 225 Freeman r. Howe (24 Howard, 450) 140,141,276 Furman v. Nichol (8 Wallace, 44) 36, 41 Gaines I). Fuentes (92 U. S. 10) 129,208 Galveston, &c. Ry.r. Gonzales (151 U. S. 496) 154 Gann v. North Eastern R. R. Co. (57 Fed. Rep. 417) . . . . 206 Garner v. Second National Bank (66 Fed. Rep. 369) .... 193 Garuett, /nre(141 U. S. I) 294,297 xiv TABLE OF CASES. PAGE GasFloat WhittonNo. 2 ([1896] Prob. 42) 291 Gelpcke I'. Dubuque (I Wallace, 175) 238 Gelstou V. Hoyt (3 Wheaton, 246) 31, 274 Georgia?;. Grant (6 Wall. 241) 20 V. Madrazo (1 Peters, 110) 20 Gleason v. Florida (9 Wallace, 779) 42 Gloucester Insurance Co. v. Younger (2 Curtis C. C. R. 322) . 234 Godfrey ?;. Terry (97 U. S. 171) 144 Gold Washing & Water Co. v. Keyes (96 U. S. 199) .... 212 Gordon v. United States (2 Wallace, 561) 105 Governor of Georgia y. Madrazo (1 Peters, 110) 20 Graham v. Stucken (4 Blatch. 50) 273 Grand Trunk Ry. Co. v. Ives (144 U. S. 408) 235 V. Twitchell (59 Fed. Rep. 727) 200, 215 Graver u. Faurot (16 Sup. Ct. Rep. 799) 77 Greeley i;. Lowe (1.55 U.S. .58) 127 Greene v. Liter (8 Cranch, 229) 121 Gross V. George W. Scott M'fg. Co. (48 Fed. Rep. 35) ... 136 HabermanM'f'gCo., /nre (147U.S. 525) 83 Haire v. Rome R. R. Co. (57 Fed. Rep. 321) 206 Hale V. Akers (132 U. S. 5.54) 51 t;. Washington Insurance Co. (2 Story R. 176) .... 284 Hall V. Chattanooga Agricultural Works (48 Fed. Rep. 599) 201, 205 Haller v. Fox (51 Fed. Rep. 298) , .... 306 Hamblin V. Western Land Co. (147 U. S. 531) 58 Hammond u. Johnston (142 U. S. 73) 51 Hanrick v. Hanrick (1.53 U. S. 192) 184, 205 Harold v. Iron Silver Mining Co. (33 Fed. Rep. 529) .... 210 Hartell v. Tilghman (99 U. S. 547) 163 Harvey v. Richmond, &c. R. R. Co. (64 Fed. Rep. 19) ... 154 Hastings v. Ames (68 Fed. Rep. 726) 73 Havilah, The (48 Fed. Rep. 684) 74 Henderson Bridge Co. v. Henderson City (141 U. S. 679) . . 53 Henderson i>. Moore (5 Cranch, 11) 94 Hennessey v. The Versailles (1 Curtis's C. C. R. 3.53) ... 291 Henry u.Ricketts (1 Cranch C. C. 580) 258 Hermann V. Port Blakeley Mill Co. (69 Fed. Rep. 646) ... 285 Hess r. Reynolds (113 U. S. 73) 188 Hill V. Thompson (94 U. S. 322) 102 Hobart I'. Drogan (10 Peters, 108) 289 Hodgson V. Bower Bank (5 Cranch, 303) 131 TABLE OF CASES. XV PAGE Hohorst, /r;?-e (150U. S. 653) 154,162 Holmes v. Goldsmith (147 U. S. 150) 156 Holt y. Bergevin (60 Fed. Kep. 1) .245 Home Insurance Co. I'. Morse (20 Wall. 445) 185 Hope Insurance Co. v. Boardman (5 Cranch, 57) 146 Horner y. United States (143 U. S. 570) 73 Hotel Co. V. Wade (97 U. S. 13) 152 Houston?;. Moore (3 Wheat. 433) 29 Huff y. Hutchinson (14 Howard, 586) 140 Humboldt Lumber Manufacturers' Association v. Christopher- son (73 Fed. Rep. 239) 298 Huntington v. Saunders (72 Fed. Rep. 10) 102 Hyde y. Ruble (104 U. S. 407) 184 /n re Ayers (123 U. S. 443) 15 Boles ( 48 Fed. Rep. 75) 217 Bonner (151 U.S. 242) 223 Boyd (49 Fed. Rep. 48) 226 Briggs (61 Fed. Rep. 498) 102 Buchanan (158 U. S. 31) 72 Buell (3 Dillon, 116) 267 Burrus (136 U. S. 586) 218 Cilley (58 Fed. Rep. 977) 209, 210 Claasen (140U. S. 200) 67 Frederich (149 U. S. 70) 225 Garnett (141 U. S. 1) 297 Haberman MTg Co., Petitioner (147 U. S. 525) .... 83 Hohorst (150 U. S. 653) 154, 162 Lennon (150U. S. 393) 67,220,224 Loney (134 U. S. 372) 225 Mills (135 U. S. 263) 72 Morrison (147 U. S. 14) 283 Neagle (135 U. S. 1) 218 Palliser (136 U. S. 257) 267 Pennsylvania Company (137 U. S. 451) 190,204 Receivership of Iowa and Minnesota Construction Co. (6 Fed. Rep. 799) 20S Swan, Petitioner (150 U. S. 637) 227 The Jarnecke Ditch (69 Fed. Rep. 161) 210 The Louisville Underwriters (134 U. S. 488) 293 Tyler, Petitioner (149 U. S. 164) 228,227 Indianapolis, &c. R. R. Co. i;. Horst (93 U. S. 291) 247 XVI TABLE OF CASES. PAGE Insurance Company v. Dunham (11 Wall. 1) 290 Insurance Company f. Francis ( 1 1 Wall. 210) 153 Interior Construction & Improvement Co. v. Gibney (160 U. S. 217) 124, 141 Interstate Commerce Commission v. Atchison, Topeka, &c. R. II. Co. (149 U. S. 264) 106 Iowa V. Illinois (1.51 U. S. 238) 15 Ives V. Grand Trunk Ey. Co. (35 Fed. Rep. 176) 249 Jackson r. Chew (12 Wheaton, 167) 233 Jackson & Sharp Co. y. Pearson (60 Fed. Rep. 113) 206 Janney v. Columbian Insurance Co. (10 Wheaton, 411) . . . 293 Jaruecke Ditch, /h re (69 Fed. Rep. 161) 210 Jefferson y. Driver (117 U. S. 272) 188 Jenkins w. Loewenthal (110 U. S. 222) 51 Jewett V. Whitcomb (69 Fed. Rep. 417) 213, 214 Johnson i;. Risk (137 U. S. 300) 39,55 y. Sayre (158 U. S. 109) 226 Jones V. Andrews (10 Wallace, 327) 136, 142 — — V. Munger (50 Fed. Rep. 785) 86 I'. Robbins (8 Gray, 329) 72 I'. United States (137 U. S. 202) 280 Joy V. Adelbert College (146 U. S. 355) 195 Kanouse ?•. Martin (15 Howard, 198) 31,89,211 Kansas City R. R. r. Daughtry (138 U. S. 298) . . . . 197,201 Kansas City & T. R. R. Co. v. Interstate Lumber Co. (37 Fed. Rep. 3) 124, 210 Kankanna Water Power Co. v. Green Bay, &,c. Canal Co. (142 U. S. 254, 269) 58 Keith V. Clark (97 U. S. 454) 38 Kellum V. Emerson (2 Curtis's C. C. R. 79) 305 Kendall y. United States (12 Peters, 616) 135 Kennedy V. Gibson (8 Wallace, 498) 164 Kentucky v. Dennison (24 How. 66) 20 King ?•. McLean Asylum (64 Fed. Rep. 331) 208,223 Kitchen v. Randolph (93 U. S. 86) 252 Klinger v. State of Missouri (13 Wall. 257) 39, 54 Knox County !' Ninth National Bank (147 U. S. 91) .... 239 Kohl V. The T^nitod States (91 U. S. 367) 29 Kurtz y. Moffitt (115 U. S. 487) 208 TABLE OF CASES. xvii PAGE La Montagne v. Harvey Lumber Co. (44 Fed. Rep. 645) ... 211 Lamar I'. Micou (112 U. S. 452) 138 Lau OwBew (144 U. S. 47) 76,78,221,222 Leather Manufacturers' Natioual Bank ;-. Cooper (120 U. S. 778) 212 Lehigh Mining & Mfg. Co. v. Kelly (160 U. S. 327) .... 157 Lennon, In re (150 U. S. 393) 67, 220, 224 Leon f. Galceran (11 Wallace, 185) 275,288 Lewi.s, Trustee v. The United States (92 U. S. 618) 131 Life Insurance Co. v. Scliaefer (94 U. S. 457) 257 Lincoln (--. Power (151 U. S. 436) 247 Littlefield v. Perry (21 Wallace. 205) 1G3 Liverpool Steam Co. v. Phenix Insurance Co. (129 U. S. 397) . 235 Logan V. United States (144 U. S. 263) 267 Loney, /« 7-e (134 U. S. 372) 225 Louisville & Nashville R. R. Co. i'. Roehling (11 111. App. 264) 211 Louisville Underwriters, In re (134 U. S. 488) 293 Lowenstein y. Carey (12 Fed. Rep. 811) 265 McBurney f. Carson (99 U. S. 567) 127 McCartee v. Chambers (6 Wend. 649) 143 McClung V. Silliman (6 Wheat. 598) 276 McComb V. Commissioners of Knox County (91 U. S. 1) . . . 95 McCormick Co. r. Walthers (134 U. S. 41) 122,124 McDonald t;. Hovey (110 U. S. 619) 87 McGourkey I'. Toledo & Ohio Ry. (146 U. S. 536) 96 McKim V. Voorhies (7 Cranch, 279) 174, 276 McKinlay w. Morrish (21 Howard, 343) 315 McLish y. Roff (141 U. S. 661) 67,71,199 McMuUen v. Northern Pacific Ry. Co. (57 Fed. Rep. 16) . . . 197 McNutt i\ Bland (2 How. 9) 139 Macomber y. Thompson (1 Sumner, 384) 304 Maguire v. Card (21 Howard, 248) 289 V. Tyler (8 Wallace, 650) 38 Maisonnaire v. Keating (2 Gallison, 336) 292 Manchester i". Massachusetts (139 U. S. 264) 298,300 Mauley i;. Olney (32 Fed. Rep. 708) 187 Mannings. Amy (140 U. S. 137) 188,201 Mansfield Cold Water & Lake Michigan Ry. v. Swan (111 U. S. 379) 124 Marbury y. Madison (1 Cranch, 137) .... 7,8,9,11,272,273 Harden v. Campbell Printing Press, &c. Alfg. Co. (67 Fed. Rep. 809) 86 6 XVm TABLE OF CASES. PAGE Markliam y. United States (160 U. S. 319) 268 Markwood v. Southern Ry. Co. (65 Fed. Kep. 817) 187 Marquardt v. French (53 Fed. Rep. 603) 306 Marsh u. Nichols (140 U. S. 344) 163 Marshall I'. Plohiies (141 U. S. 589) 197,211 Martin o. Baltimore & Ohio R. R. Co. (151 U. S. 673) 197, 198, 202, 215 Martin v. Hunter (1 Wheatou, 304) 25, 61 y. Snyder (148 U. S. 663) 189 Mason v. The Blaireau (2 Cranch, 264) 132 Masterson y. Herndou (10 Wallace, 416) 98,99 Mattlngly v. North Western Virginia R. R. Co. (158 U. S. 53) 200 Maxwell v. Atchison, &c. R. R. Co. (34 Fed. Rep. 286) ... 211 y. Newbold, (18 Howard, 511) 40 Mayuard v. Hecht (151 U. S. 324) 69 Mayor y. Cooper (6 Wallace, 247) 62 Mercantile Trust Co. v. Kanawha, &c. Ry. Co. (39 Fed. Rep. 337) 155 Merchants' Bank V. State Bank (3 Cliff. 201) 265 V. (10 Wall. 635) 250, 252 Merchants' Cotton Press & Storage Co. v. Insurance Company of North America (151 U. S. 368) 192 Meriwether I'. Muhleu burg County Court (120 U. S. 354) . . 252 Messenger y. Mason (10 Wall. 507) 40 Mexican Central Ry. Co. v. Piukney (149 U. S. 194) . . 142, 245 Miller y. Joseph (17 Wall 655) 30 y. New York (109 U. S. 385) 286 y. Texas (153 U. S. .535) 54 Mills, /n re (135 U. S. 263) 72 Milner v. Meek (95 U. S. 252) 91, 102 Missouri Pacific Ry. Co. y. Chicago & Alton R. R. Co. (132 U.S. 191) 247 Mitchell y. Clark (110 U. S. 6.33) 31 y. Smale (140 U. S. 406) 212 Montalet v. Murray (4 Cranch, 46) 142 Moore r. Robhin.s (18 Wall. 588) 95 y. United States (160 U. S. 268) 268 Morewood v. Enequist (23 How. 491) 287 Morgan v. Morgan (2 Wheat. 21)0) 140 y. Thornhill (11 Wall. 65) 102 Morrison, /h re (147 U. S. 14) 283 y. Watson (154 U. S. Ill) 56 TABLE OF CASES. XIX PAGE Moses V. Lawrence County Bank (149 U. S. 298) 235 MuUer y. Dows (94 U. S. 444) 127,148,151,155 Mumm V. Oweus (2 Dill. 475) 256 Murdock v. The City of Memphis (20 Wall. 590) 32, 46, 48,51, 55, 58 Murray I'. Hobokeu Land Co. (18 How. 272) 166 Nash y. Lull (102 Mass. 60) 277 Nashua & Lowell R. K. v. Boston & Lowell R. R. (136 U. S. 356) l-''! National Bank of Aurora w. Basuier (65 Fed. Rep. 58) ... 235 National Typographic Co. v. New York Typographic Co. (44 Fed. Rep. 711) 153 Neagle, Znre (135 U. S. 1) 218 Neely. Pennsylvania Co. (157 U. S. 153) 200 Neilson v. Lagow (12 Howard, 98) 38, 54 Neves v. Scott (13 Howard, 272) 241 Nevittv. Clarke (Olcott's Admiralty R. 316) 316 Newgass v. City of New Orleans (33 Fed. Rep. 196) .... 156 New Jersey v. New York (5 Peters, 283) 21 New Jersey Steam Navigation Co. v. The Merchants' Bank (6 How. 344) 287 Newman, iixyjflrte (14 Wall. 152) 293 New Orleans u. Benjamin (153 U. S. 411) 157 y. New Orleans Water Works (142 U. S. 79) 58 y. Winter (1 Wheaton, 91) 138,216 New York y. Eno (155 U. S. 89) 225 Nichols V. Squire (5 Pick. 168) 60 Nimick v. Coleman (95 U. S. 266) 102 Nolde V. Mas.sachusetts Benefit Association (48 Fed. Rep. 337) 201 Northern Pacific R. R. Co. t-. Amato (49 Fed. Rep. 881) . . . 74 y. Hogan (63 Fed. Rep. 102) 235 Northwestern Insurance Company, The (2 Curtis C. C. R. 212) 123 Norton y. Shelby County (118 U. S. 425) 252 Norwich Company y. Wright (13 Wall. 104) 296 Oakesy. Richardson (2 Lowell's Dec. 173) 287 Oakley y. Goodnow (118 U. S. 43) 188 Ober V. Gallagher (93 U. S. 199) 127 Ohio & Mississippi R. R. Co. v. Wheeler (1 Black, 286) . ... 147 Ohio Life & Trust Co. y. Debolt (16 Howard, 432) . . . 236, 239 O'Neil y. Vermont (144 U. S. 323) 58 Ornelas v. Ruiz (161 U. S. 502) 225 XX TABLE OF CASES. PAGE Osborn v. The Bank of the United States (9 Wheat. 738) 11, 14, 15, 62, 161 Osborne v. City of Detroit (28 Fed. Rep. 385) 247 Pacific Removal Cases (115 U. S. 1) 210,214 Palliser, In re (136 U. S. 257) 267 Parcels r. Johnson (20 Wallace, 653) 29,94 Pasteur v. Blount (51 Fed. Rep. 610) 83 Peck V. Jenuess (7 Howard, 625) 174 Peele v. Merchants Insurauce Co. (3 Mason, 27) 284 Pennsylvania v. Kosloff (5 S. & R. 545) 273 Pennsylvania Company v. Bender (148 U. S. 255) 203 Pennsylvania Company, /n re (137 U. S. 451) .... 190,204 Pepke V. Cronan (155 U. S. 100) 225 Phipps y. Harding (70 Fed. Rep. 468) 235 Pierce v. Cox (9 Wallace, 786) 99 Pile-Driver E. 0. A. (69 Fed. Rep. 1005) 306 Piquiguot I). Pennsylvania R. R. Co. (16 Howard, 104) ... 132 Postal Telegraph Cable Co. v. Alabama (155 U. S. 482) ... 134 Postmaster Generals. Early (12 Wheat. 136) 130 Potts iJ. Accident Insurance Co. (35 Fed. Rep. 566) .... 12 Provident Savings Society r. Ford (114 U. S. 635) 212 Putnam v. Ingraham (114 U. S. 57) 188 Railroad Company r. Koontz (104 r. S. 5) 153 V. Maryland (20 Wall. 643) 50 Railway Company I!. Whitton's Adm'rs (13 Wallace, 270) . . 151 Receivership of Iowa & Minnesota Construction Co., In re (6 Fed. Rep. 799) 208 Reed v. Reed (31 Fed. Rep. 49) 189 Reeves v. Corning (51 Fed. Rep. 774) 205 Removal Cases (100 U. S. 457) 134 Rhode Island w. Mas.sachusetts (12 Peters, 657) 21 Rice V. Adler-Goldman Commi.ssion Co. (71 Fed. Rep. 151) . 240 V. Garnhart (34 Wis. 4.53) 277 Richmond i;. Atwood (52 Fed. Rep. 10) 86 r. The City of Milwaukee (21 Howard, 391) 93 Riggs V. Johnson County (6 Wallace, 166) 168 Rike y. Floyd (42 Fed. Rep. 247) 190 Ritchie v. Mauro (2 Peters, 243) 89 Rivers v. Bradley (53 Fed. Rep. 305) 216 Roach i;. Chapman (22 Howard, 129) 303 TABLE OF CASES. XXI PAGE Robertson v. Cease (97 U. S. 646) 144 Robluson V. Campbell (3 Wheaton, 212) 169 V. Maudell (3 Cliff. 169) 256 Roby V. Colehour (146 U. S. 153) 41, 55 Rogers v. Van Nortwick (45 Fed. Rep. 513) 188 Roilius V. Chaffee County (34 Fed. Rep. 91) 156 Romie v. Casanova (91 U. S. 379) 212 Root t\ Railway Company (105 U. S. 189) 163 Rosenbaum v. Bauer (120 U. S. 450) 210 Rouse ?;. Horusby (161 U. S. 588) 117,281 Rowe V. The Granite Bridge Co. (21 Pick. 344) 286 Royall, ^x/)arte (117 U. S. 254) 224 Ruby Canon Gold Mining Co. v. Hunter (60 Fed. Rep. 305) . 201 Rycroft v. Green (49 Fed. Rep. 177) 201 Sage y. Railroad Company (96 U. S. 712) 97 St. Clair County t;. Lovingston (18 Wall. 628) 29,95 St. Louis, &c. R. R. Co. v. McBride (141 U. S. 127) . . . . 124 St. Louis & San Francisco Ry. Co. v. James (161 U. S. 545) 149, 151 Sampson v. Welsh (24 Howard, 207) 92 Sargent v. Biddle (4 Wheaton, 508) 263 Sayles v. Northwestern Insurance Co. (2 Curtis, C. C. R. 212) . 123 Schackerv. Hartford Fire Ins. Co. (93 U. S. 241) 91 Schunk V. Moline, &c. Co. (147 U. S. 500) 122 Schwenk & Co. v. Strang (59 Fed. Rep. 209) 205 Scott V. Armstrong (146 U. S. 499) 245 u. The Ira Chaffee (2 Fed. Rep. 401) 287 Searl v. School District No. 2 (124 U. S. 197) 210 Second National Bank of Aurora v. Basuier (65 Fed. Rep. 58) . 235 Shattuck 0. North British & Mercantile Ins. Co. (58 Fed. Rep. 609) 194, 216 Shaw i;. Quincy Mining Co. (145 U. S. 444) 154 Sheffield Furnace Co. w. Witherow (149 U. S. 574) 12 Sheldon u. Sill (8 Howard, 441) 157,158 Shields y. Barrow (17 Howard, 141) 137 Shute V. Keyser (149 U. S. 649) 79 Simpson v. Greeley (20 Wallace, 152) 99 Sinclair y. Pierce (.50 Fed. Rep. 851) 188 Sipperley v. Smith (155 U. S. 86) 98 Slemmer's Appeal (58 Pa. St. 155) 277 Smale v. Mitchell (143 U. S. 99) 247 Smith y. Atchison, &c. R. R. Co. (64 Fed. Rep. 1) 141 XXU TABLE OF CASES. PAGE Smith?;. Gale (137 U. S. 577) 87 y Greenhow (109 U. S. 669) 213 U.Lyon (133 U. S. 315) 134 i;. McKay (16 Supr. Ct. Rep. 490) 69 y. Sargent Mfg. Co. (67 Fed. Kep. 801 ) 162 Socie'te' Auonyme du Filtre Chamberland Systeme Pasteur v. Blount (51 Fed. Rep. 610) 83 Southard v. Brady (36 Fed. Rep. 560) 310 Southern Pacific Co. ?;. Denton (146 U. S. 202) .... 125,215 Southwestern Telegraph & Telephone Company v. Robinson (48 Fed. Rep. 769) 200 Sowles V. First National Bank of St. Albans (46 Fed. Rep. 513) 214 V. Witters (43 Fed. Rep. 700) 213 Spies y. Illinois (123 U. S. 131) 259 Springer y. Howes (69 Fed. Rep. 849) 198 Stanbrough v. Cook (38 Fed. Rep. 369) 192 Starin y. New York (115 U. S. 248) 212 State of Georgian. Grant (6 Wall. 241) 20 State of Texas y. White (7 Wall 700) 17 Steamboat Orleans y. PhcEbus (11 Peters, 175) .... 288,296 Stephens v. Beruays (41 Fed. Rep. 401 ; s. c. 44 Fed. Rep. 642) 281 Stevens y. Nichols (130 U. S. 230) 215 Stewart y. Kahn (11 Wallace, 502) 4.5,60 W.Potomac Co. (12 Fed. Rep. 296) 275 Stokes V. United States (60 Fed. Rep 597) 72 Stone y. South Carolina (117 U. S. 430) 197,215 Stovall V. Banks (10 Wallace, 583) 97 Strauderi'. West Virginia (100 U. S. 303) 196 Swan, /n re (150 U. S. 637) 227 Swift 17. Tyson (16 Peters, 1) 235 Tarbel's Case (13 Wall. 397) 276 Tehan v. First National Bank (39 Fed. Rep. 577) 214 Telegraph Co. v. Rogers (93 U. S. 565) 91 Teunessee !'. Bank of Commerce (152 U. S. 454) 213 r. Davis (100 U. S. 257) 196 V. Union & Planters Bank (152 U. S. 454) 199 Terry v. Hatch (93 U. S. 44) 91 Texas v. Chiles (21 Wall. 488) 257 y. White (7 Wall. 700) 17 Texas & Pacific Ry. Co. y. Cox (145 U. S. 593) . ..... 213 The Amiable Isabella (6 Wheatou, 1 ) 313 TABLE OF CASES. XXUl PAGE The Baltimore & Ohio R. R. Corp. v. Harris (12 Wallace, 65) . 150 The Bank of the United States u. Deveaux (5 Cranch, 61) . . 146 v. The Planters Bank (9 Wheat. 904) 14 The Bank of Vicksburs c. Slocomb (14 Peters 60) 146 The Belfast (7 Wallace, 624) 274, 287, 289 TheBelgeuland (114 U. S. 355) 293 The Charles Morgan (115 U. S. 69) 315 The Cherokee Nation v. The State of Georgia (5 Peters, 1) . . 17 The City of Norwalk (55 Fed. Rep. 98 ; s. c. 61 Fed. Rep. 364) 299 TheCityof Norwich (118 U. S. 468) 297 The CitV of Pittsburgh (45 Fed. Rep. 699) 306 The City of Toledo (73 Fed. Kep. 220) 285 The Commander-in-Chief (MVallace, 43) 315 The Continental Store Service Co. r. Clark (100 N. Y. 365) . . 272 The Corsair (145 U. S. 335) 299,315 The D. R. Martin (91 U. S. 365) 92 The Daniel Ball (10 Wall. 557) 285 The Dos Hermanos (2 Wheaton, 76) 313 The Eagle (8 Wallace, 15) 284,285 The Eclipse (135 U. S. 599) 305 The Ferry Co. v. Beers (20 Howard, 393) 303 The Genesee Chief (12 Howard, 443) 285 The George Dumois (68 Fed. Rep. 926) 289 The Glenmont (34 Fed. Rep. 402) 303 The Great Western (118 U. S. 520) 297 The Harrisburg (119 U. S. 199) 299 The Havilah (48 Fed. Rep. 684) 74,311 The Hine v. Trevor (4 Wallace, 555) 284 The Hope Insurance Co. v. Boardman (5 Cranch, 57) . . . . 146 The Hungaria (41 Fed. Rep. 109 ; s. c. 42 Fed. Rep. 510) . . 298 Tlie Independence (2 Curtis C. C. R. 350) 291 The Insurance Co. «. Dunham (11 WaUace, 1) 290 The Invincible (1 Wheaton, 238) 300,301 The J. E. RumbeU(148U. S. 1) 289 The Jarnecke Ditch, Tn re (69 Fed. Rep. 161) 210 The Joseph Nixon (43 Fed. Rep. 926) 306 The Kate O'Neil (65 Fed. Rep. Ill) 303 TheLarch (2Curtis'sC. C. R. 427) 309 The Livius (47 Fed. Rep. 825) 293 The Lottawanna (21 Wallace, 558) 289, 303, 309 The Louisville Underwriters, In re (134 U. S. 488) . . • . 293 TheMabey (10 WaU. 419) 315 XXIV TABLE OF CASES. PAGE The MagnoUa (37 Fed. Eep. 367) 306 The Main (51 Fed. Rep. 954) 286 The Marengo (1 Lowell Dec. 52) 296 TheMonte A. (12red. Kep. 331) 287 The Montello (20 Wallace, 430) 286 The Moses Taylor (4 Wallace, 411) 288 The North Western Insurance Co. (2 Curtis's C. C. R. 212) . 123 The Norwich Co. v. Wright (13 Wallace, 104) 296 The Octavia (1 Mason, 149) 316 The Ohio & Mississippi Ry. Co. v. Wheeler (1 Black, 286) . . 147 The Phiiadelphian (60 Fed. Rep. 423) 312 The Plymouth (3 Wallace, 20) 297 The Progre.sso (46 Fed. Rep. 292) 306 The Rio Grande (19 Wallace, 178) 91 TheRoanoke(50Fed. Rep. 574) 292 The Sally (2 Cranch, 406) 302 The Sarah Ann (2 Sumner, 206) 306, 310 The Scotland (105 U. S. 24) 297 (118 IT. S. 507) 297 The Sewing Machine Companies (18 Wallace, 553) .... 133 The State of California (49 Fed. Rep. 172) 311 The State of Georgia y. Grant (6 Wallace, 241) 20 The State of Texas y. White (7 Wallace, 700) 17 The United States v. Adams (9 Wallace, 661) 105 V. Adams (6 Wallace, 101 ) 99 V. Avery (13 Wallace, 201) 94 V. Gomez (3 Wallace, 752) 99 1-. Jahn (155 U. S. 109) 71 y. La Vengeance (2 Dallas, 297) 302 ?;. Reid( 12 Howard, 391) 246 (See also United States.) The Wanata (95 U. S. 600) 297 The Water Witch (1 Black 494) 305 The Welhaven (55 Fed. Rep. 80) 293 The Willamette (70 Fed. Rep. 874) 299 The Wivauhoe (26 Fed. Rep. 927) 286 Thompson ;;. Butler (95 U. S. 694) 91 y. Dean (7 Wallace, 342) 97 V. Pool (70 Fed. Rep. 725) 117,213,281 Thurber V. Miller (67 Fed. Rep. 371) 192 Tod V. Cleveland & M. V. Ry. Co. (65 Fed. Rep. 145) 200, 203, 216 Todd V. Daniel (16 Peters, 521) 98 TABLE OF CASES. XXV PAGE Toland y. Sprague (12 Peters, 300) 123 Torrence v. Sliedd (144 U. S. 527) 192 Towu of Soutli Ottawa v. Perkius (94 U. S. 260) 252 Town of Venice v. Murdock (92 U. S. 494) 233 Townsend v. Todd (91 U. S. 452) 233 Trade-Mark Cases (100 U. S. 82) 278 Trebilcock v. Wilson (12 Wallace, 694) 46 Troy r. Evans (97 U.S. 1) 91 Twitchell f. The Commonwealth (7 Wall. 321) 41,42 Tyler, /« re (149 U.S. 164) 226,227 Union Mutual Life Insurance Co. i;. Kirchoff (160 U. S. 374) . 94 Union Pacific Ry. Co. v. Botsford (141 U. S. 250) 247 Union Pacific R. R. i'. McComb (1 Fed. Rep. 799) 214 United States v. Adams (6 Wallace, 101) 99 V. Adams (9 Wallace, 661) 105 V. American Bell Telephone Co. (29 Fed. Rep. 17) . . . 153 V. American Bell Telephone Co. (159 U. S. 548) .... 82 u. Arwo (19 Wallace, 486) 114 I'. Avery (13 Wallace, 251) 94 V. Bornemann (35 Fed. Rep. 824) 268 r. Church of the Holy Trinity (36 Fed. Rep. 303) ... 281 V. Davis (6 Fed. Rep. 682) 268 r. Dawson (15 Howard, 467) 113 V. Farragut (22 Wallace, 406) 302 V. Gomez (3 Wallace, 752) 99 V. Jackson (2 Fed. Rep. 502) 268 y. Jahn (155 U. S. 109) 71 r. Jones (131 U. S. 1) 281 W.Jones (119 U. S. 477) 105 V. La Vengeance (3 Dallas, 297) 302 r. Mooney (116 U. S. 104) 281 V. Morrissey (32 Fed. Rep. 147) 268 I-. Ortega (11 Wheat. 467) 9,13,273 I'. Pridgeon (153 U. S. 48) 222 r. Ralston (17 Fed. Rep. 895) 258 V. Ravara (2 Dallas 297) 272 y. Reid n 2 Howard 361) 246,269,270 i'. Rich (135 U. S. 467) 209 ?;. Sayard (160U. S. 493) 120 r. Shaw (39 Fed. Rep. 4.33) 120 V. Simmons (96 U. S. 36) 268 XXVI TABLE OF CASES. PAGE United States y. Slenker (32 Fed. Rep. 691) 268 V. Southern Pacific Ry. Co. (49 Fed. Rep. 297) . . 142, 154 V. Sutton (47 Fed. Rep. 129) 68 V. Texas (143 U. S. 621) 16 1-. Tynen (11 Wallace, 92) 60 V. Whitcomb Metallic Bedstead Co. (45 Fed. Rep. 89) . 281 Upshur County v. Rich (135 U. S. 467) 209 Venice v. Murdock (92 U. S. 494) 233 Virginia r. Paul (148 U. S. 107) 195 i;. West Virginia (11 Wallace, 39) 21 Walker y. The United States (4 Wallace, 163) 93 W^ard V. Peck (18 Ploward, 267) 294 Warner 2;. Fowler (4 Blatchf. 311) 195 Wear v. Mayer (6 Fed. Rep. 658) 248 Webster v. Cooper (14 Howard, 488) 231 Werner I'. Charleston (151 U. S. 360) 93 Weston V. Tlie City of Charleston (2 Peters, 464) 29 Whelan u. The United States (7 Cranch, 112) 301 White V. Larkin (144 U. S. 628) 163 Wickliffe V. Owings (17 Howard, 47) 143 Wilcox & Gibbs Guano Co. v. Phoenix Insurance Co. (60 Fed. Rep. 929) 201 Willard c. Dorr (3 Mason, 161) 288 Williams;,'. Bank (11 Wheaton, 414) 99 ?;. Bruffy (96U. S. 176) 27 V. Star Sand Co. (35 Fed. Rep. 369) 277 Wilson ?;. Daniel (3 Dall. 401) 121 Wilson y. Oswego Township (151 U. S. 56) 192,194 Wisconsin v. Pelicnn Insurance Co. (127 U. S. 265) .... 207 Wishart v. The Joseph Nixon (43 Fed. Rep. 926) 306 Wiswalli^. Campbell (93 U. S. 347) 102 Witters iJ. Sowles (28 Fed. Rep. 218) 257 Wood V. Two Barges (46 Fed. Rep. 204) . 306 Ysleta V. Canda (67 Fed. Rep. 6) 199 Yznaga v. Harrison (93 U. S. 233) 91 JURISDICTION, PRACTICE, AND PECULIAR JURISPRUDE]S"CE OF THE COURTS OF THE UNITED STATES. CHAPTER I. THE SUPREME COURT. Gentlemen of the Harvard Law School : — I HAVE been requested to come here and deliver some lectures upon a subject of which you have been, undoubtedly, already informed, — the juris- diction and practice, and some of the peculiar juris- prudence, of the courts of the United States. Before I speak directly of these topics, I wish to say a few words concerning their importance to you, and also concerning the method I shall pursue in these lectures. When I came to the bar, forty years ago, there were comparatively few cases tried in the courts of the United States. They were generally important cases, but they were few, and the number of prac- titioners engaged in those courts was small. The practice was in the hands of a few leaders of the bar in the great cities or large towns where the courts were held; gentlemen of the bar residing 1 2 JURISDICTION, PRACTICE, AND JURISPRUDENCE. elsewhere did not trouble themselves to acquire any knowledge, or they acquired but very slight knowl- edge, concerning either the jurisdiction or practice of those courts. In truth, they had nothing to do with them, except, perhaps, in some accidental way. Owing to the great increase in the wealth and population of our country, in its interstate as well as its foreign commerce, in the means of locomo- tion, which have brought the different parts of the country so much nearer together, and in the value of patent and copy rights granted by the United States, as well as, during the last ten years, the extension of the powers of Congress over many sub- jects previously left to the exclusive legislation of the States, and therefore left exclusively to the judicial power of the States, — owing to these and other causes, all co-operating, the business of the courts of the United States has greatly increased; and these same causes are likely in the future to operate with increased efficiency. You will readily understand, therefore, that a gentleman about to enter the profession, who neglects to inform him- self concerning the subjects of these lectures, neglects to obtain important means of usefulness and success. A few words concerning the method I propose to pursue in what I have to say to you. I do not come here prepared with elaborate written dissertations ; I have neither time nor inclination to prepare such; and in reference to these particular subjects, I can say with certainty that I think I can serve you better in the way I propose to treat them than I could by elaborate treatises; because my desire is, THE SUPREME COURT. 3 not SO much to endeavor to teach these things fully to you, as to induce you to learn them for your- selves, — to point out as well as I can what you are to look for and how you are to find it. Of course, it must depend upon yourselves whether you will look for it, whether you will find it, and what uses you will make of the information which I give you. But having confidence in your individual desires to make use of this information, I will endeavor, as well as I can, to show you how you can possess yourselves of these subjects by studying what I shall indicate to you. Nobody can teach them to you without your own study ; you cannot learn them in any other way ; and I do not enter- tain any doubt of your disposition to learn them in that way. Let me say, however, that, in order to do so, it will be necessary to take careful notes of the references I shall make, by which you will ascertain where you can go for knowledge of the different subjects which will bo indicated. In pursuing this method, of course it will be necessary to describe more or less fully all you are to look for, and thus to give, to some extent, a logical and clear account of the different topics, as well as of the authorities and sources from which they are to be derived. I have had some doubt how to begin, — and to make a good beginning is very important, — whether to begin by considering first the District Courts, which are the lowest courts of the United States in the several States, and then the Circuit Courts, which rank next above them, and then the Supreme Court, or to follow an inverse order. It 4 JURISDICTION, PKACTICE, AND JUKISPRUDENCIi. lias seemed to me most convenient, and that the system would be best understood by the student, if 1 begin at the top, and not at the bottom; and therefore I shall tirst ask your attention, in this lecture, to the Supreme Court of the United States. This court, which may truly be said to be the greatest court in the civilized world,i considering its duties and powers, and the field in which it exercises them, —this court was established by the Constitution, and not by Congress ; and if you refer to the first section of the third article of the Con- stitution, you will find the provision by which this court was established. I will read it to you : — "The judicial power of the United States shall be vested in one supreme court, and in such inferior courts as the Congress may from time to time ordain and establish." You will perceive that the Constitution estab- lishes "one supreme court," but leaves it for Con- gress to ordain and establish, from time to time, such inferior courts as it may think proper. In this connection, before I come to the article which distributes the jurisdiction among the courts, it is necessary to read the second section of the third article, which determines to what subjects the judicial power of the United States shall extend ; because you should bear in mind that, when this 1 ["The Supreme Court of the United States is not onlv a most interesting, but a virtually unique creation of the founders of the Con- stitution. The success of this experiment has blinded men to its novelty. There is no exact precedent for it either in the ancient or in the modern world." — Sir Henry Sumner Maine.] THE SUPREME COURT. 5 Constitution was formed, it assumed that all judi- cial power, as well as all legislative and executive power, was vested in the several States ; and this Constitution is a grant by the people of the States of certain powers to the national government, — - and, among other powers, a grant of judicial power; and inasmuch as the States did not intend to abdicate their judicial power, but only to grant to the United States certain enumerated powers, of a judicial character, this second section of the third article declares what are the judicial powers granted by the Constitution. I will now read it: — "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, other public ministers, and consuls; to all cases of admiralty and mari- time jurisdiction; to controversies to which the United States shall be a party; to controversies between two or more States, between a State and citizens of another State, between citizens of dif- ferent States, between citizens of the same State claiming lands under grants of different States, and between a State, or the citizens thereof, and foreign states, citizens, or subjects. " ^ This describes and enumerates all the judicial powers of the United States. Congress cannot confer any more than these upon the courts of the United States. It will be necessary in the course of these lectures to look with considerable minuteness into the diffcr- 1 Revised Statutes, § G87. 6 JURISDICTION, PKACTICE, a:ND JUKISPKUDENCE. eiit parts of this section, and to specify the subjects which are here described, and distinguisli between them. 1 only read it now that you may understand the next paragraph, which distributes this judicial power among the courts. "In all cases affecting ambassadors, other public ministers, and consuls, and those in which a State shall be a party, ^ the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions and under such regulations as the Congress shall make." Here you perceive that the Constitution has made a distinction between original and appellate juris- diction of the Supreme Court. You understand, doubtless, that " original jurisdiction " means, that, in the court which possesses it, a suit may be begun; and therefore, in these cases "affecting ambassadors, other public ministers, and consuls, and those in which a State shall Ije a party," the Supreme Court has original jurisdiction, and suits may be begun there. If, for instance, two States have a controversy upon the subject of boundary, or any other subject, that suit may be begun in the Supreme Court of the United States. So any case which arises affecting ambassadors, or other public ministers (I shall have occasion to speak to you as 1 [Tliis means, of course, those controversies already enumerated in the previous section, to wliich a vState may be a party. It does not give the Supreme Court jurisdiction of every case in which a State is a party. Hence the Supreme Court has no jurisdiction of a suit between a State and citizens of the same State. California v. Southern Pacific Company, Vol U. S. 229, 257.] THE SUPREME COUKT. 7 to what is meant by " affecting " them), is a case for the original jurisdiction of the Supreme Court of the United States. In the other cases to which the judicial power of the United States extends, the jurisdiction of the Supreme Court is appellate only ; the suits are not begun there ; they are begun in some other courts ; and it was left for Congress to determine what those other courts should be; and it did determine that they should be a Circuit Court and a District Court. Suits, therefore, in all cases except those which affect ambassadors, other public ministers, or consuls, and those in which a State is a party, are begun in one or the other of these inferior courts, and they go to the Supreme Court ^ by appeal or writ of error, as the nature of the case may require. I shall explain hereafter how that is. Now, the question arose very early whether Congress could confer upon the Supreme Court any original jurisdiction besides that which is here described; that is, incases affecting ambassadors, etc., or in which a State is a party. Congress had undertaken, by the Judiciary Act of September, 1789, to confer upon the Supreme Court of the United States other original jurisdiction ; it became necessary for the court to decide whether that was a constitutional law; and it was held in the case of Marhury v. 3Iadison, 1 Cranch, 137, that Con- gress could not confer on the Supreme Court any other original jurisdiction than that which was described and granted by the Constitution. You 1 [The appeal, in some cases, lies now to the new court, the Circuit Court of Appeals. See post, p. 74.] 8 JUKISDICTION, PRACTICE, AND JURISPRUDENCE. will find, on reading that case, — it is one of the great judgments of Chief Justice Marshall, not upon this point only, but covering a variety of sub- jects,^ — you will find, on reading that case, that the court came to the conclusion that the affirmative words, that the Supreme Court shall possess this jurisdiction, naturally and properly included a negative, — that they should not possess any other; and the reasoning by which that conclusion was arrived at is perfectly satisfactory. So that you will rest in this conclusion, that the Supreme Court has conferred upon it the original jurisdic- tion described by the Constitution, and no other; and that Congress cannot confer upon it any other original jurisdiction. ^ Then another question early arose, and it is a question which has never yet been finally deter- mined ; that is, whether Congress can confer upon either of the inferior courts, the Circuit Court or the District Court, any of this original jurisdiction which the Constitution says is to be conferred upon the Supreme Court. You will observe that the language of the Constitution contains no negative words ; it only says that the Supreme Court shall ^ [In this case it was held for the first time that an Act of Congress which conflicts with the United States Constitution is void.] 2 Strictly speaking, Congress does not confer any original juris- diction on the Supreme Court. All that it possesses was granted by the terms of the Constitution. The particular original jurisdiction ■which it was held in Marbury \. Madison that Congress could not confer on the Supreme Court was that embraced in the thirteenth section of the Judiciary Act of 1789, which had undertaken to em- power the Supreme Court to issue writs of mandamus in cases other than those cases of original jurisdiction conferred on that court by the Constitution. THE SUPREME COURT. \) have this original jurisdiction, and that in other cases the Supreme Court shall have appellate juris- diction from such courts as Congress may see fit to establish; but it does not say that Congress shall not confer the original jurisdiction given to the Supreme Court on other courts, and this is a ques- tion yet undetermined. If you refer to the case of the United States v. Ortega, 11 Wheaton, 467, you will find the question was raised there and left undecided ; and, so far as I know, it is undecided to this day. The reasons which induced the Supreme Court, in the case of Marhury v. 3Iadison, to say that the affirmative words carried a negative with them by implication, would lead me to think that Congress could not confer any of the original jurisdiction which is given to the Supreme Court upon the Circuit Court. But it is an open ques- tion ; 1 merely indicate it in passing, in order that you may know there is such a question. ^ But thouffh the Constitution established the Supreme Court of the United States, it was still necessary that Congress should act to organize that court, and determine what should be its terms and its methods of business, its number of judges, their salaries, etc. ; and this was done by the Act of September 24, 1789, which is found in the first 1 [This question has since been decided in a manner contrary to the view expressed by Judge Curtis. In Bors v. Preston, 1 1 1 U. S. 252, it was held that consuls may be sued in the Circuit Court, like other aliens, and that the Act of Congress giving jurisdiction of suits against consuls and vice-consuls to the District Courts is constitutional. 8ee Revised Statutes, § 563, cl. 17, and § 687. The State courts also are now at liberty to take jurisdiction of sucli suits. See Act of February 18, 1875, 18 Stat. 318.] 10 JURISDICTION, PRACTICE, AND JURISPRUDENCE. volume of the Statutes at Large, pp. 73-93. The first section of this act reads thus : — "That the Supreme Court of the United States shall consist of a Chief Justice and five Associate Justices, any four of whom shall be a quorum, and shall hold annually, at the seat of government, two sessions, the one commencing the first Monday of February, and the other the first Monday of August. That the Associate Justices shall have precedence according to the date of their commissions, or, when the commissions of two or more of them bear date on the same day, according to their respective ages. " ^ At the present time there are nine judges, there is one term instead of two, and that term begins on the second Monday of October. But the urgency of the business of the court is such that, for quite a number of years past, they have held an adjourned session, commencing usually, as it did this year, in October, — the second week in October ; so that, practically, the court is in session about six months, or six months and a half, in a year. They adjourn commonly early in the month of April, in season for the judges to go on the circuits; during the residue of the year, — from the middle of October to the middle of April, — they are in session. ^ 1 The organization of the Court is now regulated by Chap. IX., Title XIII., of the Revised Statutes. There are a Chief Justice and eight Associate Judges, any six of whom constitute a quorum. 2 Tlie meaning of this passage is, that the regular term of the court commences in the second week of October, and tlie term is ended about the middle of April ; but that, before the law direct- ing this earlier commencement of the regular term, there had some- times been adjourned terms, commencing in October. See Ilevised Statutes, § 684. THE SUPREME COURT. 11 The other section which relates to the establish- ment of the court is the thirteenth, and that is the section which, under the Constitution, confers on the court its jurisdiction, both original and appel- late ; and in the course of conferring it, Congress, as I have said, went beyond its authority, and gave the court more original jurisdiction than Congress could confer; and, in the case of Marhury v. Madison, to which I have referred, the court decided that, as to such additional original jurisdiction, it was not constitutional law, and they could not exercise that additional jurisdiction. ^ Now, turning back to the second section of the third article of the Constitution, allow me to read: "The judicial power shall extend to all cases, in law and equity." In the first place. What is meant by " cases " ? That you will find was discussed, and there is an opinion of Chief Justice Marshall thereon, in Oshorn v. The Bank of the United States, 9 Wheaton, 738. The conclusion to which the court came, and substantially the definition which was there given, is, that a "case," within the meaning of the Constitution, is a subject on which the judicial power is capable of acting, and which has been submitted to it by a party in the forms required by law. That is what is meant by the Constitution when it speaks of all "cases." It is a subject on which the judicial power is capable of acting, and which has been submitted to it by a party — that is, one who is interested in the sub- ject — in the forms required by law. 1 The thirteenth section of the Jndiciary Act is now embodied in Chap. XI., Title XIII., of the Revised Statutes, omitting the clause which was declared to be unconstitutional. 12 JURISDICTION, PRACTICE, AND JURISPRUDENCE. Then follows "in law and equity." That has been decided to refer to the known division exist- ing at the time the Constitution was formed, under the English system of jurisprudence, between the common law and the equity law; and this distinc- tion is preserved throughout in the practice and proceedings of the United States courts ; and it is of no moment whatever in those courts that some of the States have abolished this distinction. The States can pass no laws which affect either the jurisdiction or the practice of the courts of the United States, propria vigore.'^ Those laws may be adopted by Congress, or, in the absence of any law of Congress, some of them may be adopted by the courts themselves, by rules ; but, propria vigore, by their own force. State laws have no operation what- ever on the courts of the United States. The aboli- tion of the distinction between law and equity, for instance, to a certain extent, in the State of New York and some other States, has no operation in the courts of the United States.^ There, as you will see hereafter, if you are not already informed of it, the practice at law and in equity is perfectly distinct, just as much as it was in England at the time when the Constitution was formed; and the equity practice of the courts of the United States is the same everywhere in the United States, and they administer the same system of equity rules and equity jurisprudence through the whole of the United States, without regard to State laws. The State laws are operative, as rules of decision, in 1 [Sheffield Furnace Co. v. Wifherow, 149 U. S 574, 579 ] 2 [Potts V. Accident Insurance Co., 35 Fed. Rep. 566.] THE SUPREME COURT. 13 trials at law, because Congress has so enacted in the thirty-fourth section of the Judiciary Act, but not in trials on the equity side of the court. ^ Then comes, after the words 1 have read, "all cases in law and equity, arising under this Consti- tution, the laws of the United States, and treaties made, or which shall be made, under their author- ity." That is, the judicial power of the United States may extend to all cases in law and equity arising under this Constitution. Any case which depends, in part or in whole, upon this Constitu- tion, any case which depends, in part or in whole, upon the laws of the United States, or any treaty made by the United States, comes under the judi- cial power, and under the jurisdiction which has been, or may be, conferred upon the courts by Congress. Then comes the language, "to all cases affecting ambassadors, other public ministers, and consuls;" and a question arose, many years ago, concerning the meaning of that word "affecting." What is a case that "affects" an ambassador? The case is United States v. Ortega, already referred to (11 Wheaton, 467), in which the court held that an indictment for an assault upon a public minister was not a case "affecting" that minister, within the meaning of the Constitution. And there is a more recent case, in the 13th of Wallace, 581, where the same word occurs in a recent Act of Congress, and the court has reaffirmed the opinion 1 See Revised Statutes, § 721 ; and note the language and the limitations of this rule. See also Memoir, &c. of Judge Curtis, Vol. I. pp. 203, 204, 209, 210. 14 JURISDICTION, PRACTICE, AND JURISPRUDENCE. ill the 11th of Wheaton. In that case the question was, whether the right of a negro to be a witness in the State of Kentucky, Avliere he had been pre- viously disqualified, was a case "affecting" that witness, and the court held that it was not. The witness was not aiiected by the case, whether he was admitted to testify or excluded from testifying; that was no affair of his.^ The next phrase here which requires examination is, — "to controversies to which the United States shall be a party; to controversies between two or more States," etc. Under these words, it has been held that it is not sufficient that a State is interested in the suit ; a State may be even exclusively inter- ested in a suit, and yet it would not be a suit in which the State is "a party," within the meaning of the Constitution. Quite a number of decisions have been made on this point. I will refer you to two leading cases. The first is The Banlc of the United States v. The Planters' Bank, 9 Wheaton, 904, and the second is Oshorn v. The Bayik of the United States, in the same book, page 738. In the first of these cases, the State owned all the stock in a bank which it had established, and the question was whether, where a suit was brought either for or against such a bank the State was "a party," within the meaning of these words of the Constitu- tion; and it was held that the State was not a party, that it must be a party on the record, and that it was not sufficient that the State was even exclusively interested in the subject-matter of the suit. In the case of Oshorn v. The Bank of the 1 Blyew T. The United States, 13 Wallace, 581. THE SUPREME COUKT. 15 United States^ a tax-collector in Ohio, being of course a State officer, had undertaken to collect a tax from the Bank of the United States, which was provided for and levied upon that bank for the avowed purpose of driving that branch of the bank out of the State. The court held that the act was unconstitutional, and that the State was not a party ; for although its officer, Mr. Osborn, was to collect this money for the benefit of the State, and although the injunction against him which stopped its collection must prevent the money from going into the treasury of the State, and the State was thus exclusively interested, nevertheless the State was not a party upon the record, and therefore was not within the meaning of the language of the Constitution.^ This lansruage — "to controversies between two or more States" — requires no particular comment. One State may sue another State in the Supreme Court, under its original jurisdiction, either on a question of boundary ^ or any other question. Questions of boundary have been of more frequent occurrence; but there have been suits brought by 1 [The ground of this decision, as here stated by Judge Curtis, has since been disclaimed by the Supreme Court. It is now held that a State may be a party to a suit, although not a party upon the record ; and the decision in Oxhnrn v. The Bank of the United States is defended solely upon the ground that the defendant was a wrong-doer, a tres- passer, who had taken money from the bank unlawfully ; and this specific money was recovered from him. If the money had been paid into the treasury and mixed with other money of the State, it could not have been recovered in any form of action. See hi re Ayers, 123 U. S. 443, 487.] 2 [Such a case is Towa v. Illinois, 151 U. S. 238.] 16 JURISDICTION, PKACTICE, AND JURISPRUDENCE. one State against another of a different character. It matters not what the character of the suit is ; if it is brought by one State against another, the Supreme Court of the United States has original jurisdiction. "Between a State and citizens of another State." Well, under that language, it was held by the Supreme Court, immediately after the Constitution was formed, that a citizen of Massachusetts, for instance, could sue the State of Rhode Island, or any other State. That caused great dissatisfac- tion, i State sovereignty in those days was looked upon as more sacred, perhaps, than it is now. At all events, that interpretation which was placed upon the Constitution by the Supreme Court was a subject of great complaint ; and the result was the eleventh amendment to the Constitution, which is as follows : — "The judicial power of the United States shall not be construed to extend to any suit, in law or equity, commenced or prosecuted against one of the United States by citizens of another State, or by citizens or subjects of any foreign state." Therefore, this eleventh amendment withdraws the States from any liability to a suit by an indi- vidual, whether a citizen of another State or a citizen of a foreign state, but it leaves the State to be sued by another State,^ and it leaves the State 1 The reference here is to the case of Chisholm v. The State of Geor(]ia, 2 Dallas, 419. 2 [A State may also he snod by the United States, and the Supreme Conrt has exclusive jurisdiction of such a suit. United States v. Texas, 143 U. S. 621.] THE SUPREME COURT. 17 also to be sued by a foreign sovereign. ^ A foreign citizen or subject cannot sue a State ; but a foreign sovereign, as, for instance, the Queen of England, may bring a suit against the State of Massachusetts, or any other State in the Union, in the Supreme Court of the United States.^ A State, however, is capable of suing citizens of other States, although not suable by them, and such suits have not been unknown. You will find one, and it is a leading case, in the 7th of Wallace, 700, — The State of Texas v. White, — where the State of Texas brought suit against certain parties in the Supreme Court for the purpose of enjoining the negotiation of State bonds, a large amount of which had passed out of the control of the State officers during the confusion and trouble in that State ; and the State obtained an injunction, and finally, under a decree of the Supreme Court, obtained the bonds them- selves, to a large amount. I refer to it as an instance in which a State, under the Constitution, exerted its authority to bring a suit in that court against individuals. 1 Tlie term " foreign state," in this part of the Constitutiou, does not comprehend any Indian nation withiu the territorial limits of the United States. The. Cherokee Nation v. The State of Georgia, 5 Peters, 1. Nor does it comprehend any Indian tribe or nation resi- dent in the British dominions and under the pupilage of the Crown. See Memoir, &c. of Judge Curtis, Vol. I. p. 282. 2 I once advised a representative of the Queen (The Governor- General of Canada) that such a suit might be brought to ascertain the liability of the State of New York to certain tribes of Indians settled in Canada. There were obvious reasons why the Queen, at that time, should not become a suitor in our Supreme Court. But the time may come when such a suit may be brought. — B. R. C. See the opinion given by Judge Curtis in his Memoir, &c., Vol. I., and his article on the State Debts, in Vol. II. of the same work. 2 18 JUKISDICTIOX, PKACTICE, AND JURISPRUDENCE. I have gone through all I desire to say upon the subject of the jurisdiction of the Supreme Court, and 1 will now ask your attention for a few moments to the practice of that court in the exercise of its original jurisdiction, because you will find that the practice of the Supreme Court under its appellate jurisdiction is something entirely different from its practice under its original jurisdiction. There is no Act of Congress regulating the practice of the Supreme Court under its original jurisdiction ; but the third rule of the Supreme Court respecting its own practice is in these words : — " This court considers the former practice of the Courts of King's Bench and Chancery in England as affording outlines for the practice of this court; and will from time to time make such alterations therein as circumstances may render necessary. " That is a very old rule, made by the court imme- diately after its organization, and rules have been from time to time made by the court, under what it considers to be its power in the absence of an Act of Congress, in regard to a variety of subjects occurring in the course of its original jurisdiction. I shall have occasion to refer to some of them. The most important class of cases under this original jurisdiction — indeed, the only class which has been of any practical importance thus far in the history of the court — has been suits between States, or between a State and citizens of another State. I do not know that I can refer to any rule of the court, or to any decision which has fixed any rule by which the proceedings in such cases are abso- THE SUPKEME COURT. 19 lutely regulated, but the general understanding is, and the general practice — so far as I know, the universal practice, except in one or two very early cases — has been to resort to a bill in equity, and it is under the forms of proceeding in equity that this original jurisdiction for a great many years has been exercised. So that, when a State has had occasion to bring a suit, it has filed a bill in which it states its case in the same form, and under the same rules of pleading, as if it were suing in a court of equity, and there is a demurrer, or a plea, or an answer, or whatever is deemed to be a proper defence, regulated by rules of practice similar to those which would regulate the same suit if it were in the Circuit Court or a State court in equity, where equity practice was known. You may there- fore safely take it that in all cases between States, or between a State and an individual, where this original jurisdiction is to be exercised, unless it is a case in which the common law would afford a plain, adequate, and complete remedy, you are to file a bill in equity, as if you were prosecuting a claim in an equity court. ^ It is not to be forgotten that the original jurisdic- tion of the Supreme Court extends to cases both in law and equity; and that the division between the two systems is just as sharp and clear when this original jurisdiction is appealed to as when appli- cation is made to an inferior court, and that in cases remediable- by the common law, plainly and adequately, the remedy sought must be by the forms 1 [The procedure in cases of original jurisdiction is touched upon in California v. Southern Facijic Company, 157 U. S. 229 ] 20 JUniSDICTION, PRACTICE, AND JUEISPRUDENCE. of the common law in the Supreme Court as well as in the inferior courts. ] perhaps might mention here, in passing, though it is not a point of very much importance, that a suit against the Governor of a State, in his official capacity, is deemed by the court to be a suit against the State. 1 I should also mention, as a point of more importance, that the practice of the court requires that leave should be obtained before a bill is liled. Ordinarily, in a court of equity, you file your bill as a matter of right ; but the practice in the Supreme Court of the United States has always been to apply to the court on motion to obtain leave to file the bill. Whether that is by reason of the dignity of the parties, the importance of the subject- matter, or what not, I do not know, but the practice early obtained, and has always been adhered to. You will find it stated in the case of The State of G-eorgia v. Grrant, 6 Wallace, 241, where the Chief Justice says that it is necessary to obtain that leave. The question early arose how notice was to be given of a suit against a State, and on whom process was to be served. That was disposed of by a rule which the court adopted, and which is Rule 5. " All process of this court shall be in the name of the President of the United States. When pro- cess at common law or in equity shall issue against a State, the same shall be served on the Gov- ernor or chief executive magistrate, and Attorney- General of such State." 1 Commonwealth of Kentucky v. Dennison, 24 Howard, 66 ; Cover- nor of Georgia v. Madrazo, 1 Petera, 110. THE SUPREME COURT. 21 That is the mode in which service of the process must be made.^ Now, as a practical matter, I state to you, that all suits under the original jurisdiction of the Supreme Court are entered by the clerk on a sepa- rate docket, which is called "the original docket," and these cases are kept distinct from the cases which come there by appeal or writ of error. This original docket is a thing by itself, and all pro- ceedings in these cases on the original docket are on motion. No case is heard, unless the court makes a special order to have it heard. No pro- ceeding takes place in any of these original cases without a special order. If, for instance, a suit is brought by Virginia against West Virginia, as there was such a controversy not long since, the State of Virginia has to obtain leave to file a bill, to obtain process and have it served, and so get the State of West Virginia before the court. ^ The next thing is, to obtain from the court an order that West Virginia answer. That is done on motion, by a special order, and the time is fixed. Every step that is taken in the case is on some special motion. That, 1 suppose, is on account of 1 New Jersey v. New York, 5 Peters, 283. If a State fails to appear in obedience to the summons of the court, no compulsory- process will be resorted to, but the suit will proceed ex parte. Rhode Island V. Massachusettft, 12 Peters, 657. 2 The case of Virginia v. West Virginia, reported in 11 Wallace, 39, was a case of boundary. It was held that the original jurisdiction of the Supreme Court was not defeated because, in deciding the question of boundary, it was necessary to consider and construe con- tracts and agreements between the two States, nor because the judg- ment or decree of the court might affect the territorial limits of the juris liction of the States. 22 JURISDICTION, PllACTICE, AND JUKISPKUDENCE. the dignity of the parties, the nature of the agencies they must employ, and the importance of the subject-matter involved. I think I have now gone through with all that is needful for me to say to you at this time in regard to the original jurisdiction of the Supreme Court, its extent, and the manner in which it is exercised. In the next lecture, I shall speak to you concerning the appellate jurisdiction, as regulated by Con- gress, on writs of error and appeals, and other special modes of procedure. THE SUPREME COUIIT. 23 CHAPTER II. THE SUPREME COURT {continued). You will remember, gentlemen, that in the last lecture I endeavored to show that the Supreme Court of the United States was constituted by a provision in the Constitution of the United States, not by Congress; that its jurisdiction was divided into two distinct parts, its original and its appel- late jurisdiction ; and I further explained, or endeavored to explain, how this original jurisdic- tion is exercised, as well as what is its extent. In this lecture I desire to speak of the other branch of the jurisdiction of the Supreme Court, — its appel- late jurisdiction. You will remember, I explained the distinction between these two classes of cases, — the one depending upon the original, and the other upon the appellate jurisdiction. The Supreme Court's original jurisdiction allows you to begin a suit there; it has appellate jurisdiction, when you must institute a suit in some other court, and carry it to the Supreme Court by some process provided by law. The subject of this lecture is the appellate juris- diction of the Supreme Court; and this is divisible into two parts, distinct the one from the other, 24 JUKISDICTION, PKACTICE, AND JURISPRUDENCE. because the jurisdiction in one class of cases is exercised over courts of the several States ; in the other class of cases it is exercised over courts of the United States. It may seem somewhat surprising that, although the Constitution of the United States has not in terms gi-anted to the Supreme Court appellate power, in reference to courts of the several States, nevertheless such a power exists ; and I may men- tion to you, in passing, — although this is not a lecture upon the Constitution of the United States, nevertheless the matter is incidentally connected with the subject upon which I am speaking, — I may mention, I say, in passing, that at an early- day, and especially in the State of Virginia, all appellate power of the Supreme Court of the United States over courts of the several States was not only seriously questioned, but absolutely denied; and it required a repetition of instances, in which the Supreme Court of the United States vindicated its authoritv over courts of the several States, within certain well-defined limits, to convince the country that this power existed. It may not be inappropriate for me, in a few words, to call your attention to the source of this power. It is only an implied power, but its implication is necessary, and the reasons for it are satisfa.ctory. Its source will be found in the second clause of the sixth Article of the Constitution: "This Constitution, and the laws of the United States which shall be made in pursuance thereof, and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land." THE SUPREME COUKT. 25 The question at once arose, how this Constitu- tion, these treaties, and these laws could be the supreme law throughout the United States, unless the judicial power of the United States could take cognizance of all questions arising under them, and give final effect to them. This entire subject in all its bearings you will find discussed, with great ability, in the cases of Martin v. Hunter^ 1 Wheaton, 304, and Cohens v. The State of Virginia, 6 Wheaton, 264, in which the Supreme Court, with decisive effect, — I say decisive effect, because the country has always since that time acquiesced, — vindicated its jurisdiction over the courts of the several States in a limited class of cases. That jurisdiction was derived from an act of Congress, — as indeed all appellate jurisdiction must be under the Constitution, because it is pro- vided in the Constitution that the Supreme Court shall have certain original jurisdiction (as I explained in the last lecture), — and "in all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions and under such regulations as the Congress may make." "In all the other cases," — that is, in all other cases that have been previously described, — not in all cases, but in all other cases previously described, — they shall have appellate jurisdiction, "with such excep- tions, and under such regulations, as the Congress may make." Now, immediately after the organization of the government, there was passed, on the 24th day of September, 1789, what has been always since 26 JUKISDICTION, PEACTICE, AND JURISPRUDENCE. known as the "Judiciary Act," and perhaps the most important section of that act, certainly one that has had very great influence on the country through the judiciary, and which was absolutely essential to carry on the government of the United States as it was established by the Constitution, was the twenty- fifth section. I will read that section, because every part of it requires consideration : — " That a final judgment or decree in any suit, in the highest court of law or equity .of a State in which a decision in the suit could be had, where is drawn in question the validity of a treaty or statute of, or an authority exercised under, the United States, and the decision is against their validity; or where is drawn in question the validity of a statute of, or an authority exercised under, any State, on the ground of their being repugnant to the Constitution, treaties, or laws of the United States, and the decision is in favor of their validity ; or where is drawn in question the construction of any clause of the Constitution, or of a treaty or statute of, or commission held under, the United States, and the decision is against the title, right, privilege, or exemption specially set up or claimed by either party, under such clause of the said Con- stitution, treaty, statute, or commission, — may be re-examined, and reversed or affirmed, in the Su- preme Court of the United States upon a writ of error." ^ 1 The twenty-fifth section of the Judiciary Act of 1789 is now embotliod in § 709 of the Kevisod Statutes, with some slight changes of phraseology, and some additional clauses. The substance, how- ever, of this organic law remains the same. The modifications THE SUPREME COURT. 27 There you will perceive that, under the provision of the Constitution that Congress may regulate the appellate power of the Supreme Court, authority is given to the Supreme Court to send a writ of error to the highest court of the State to which one of the questions here described could be carried by a writ of error, and such question is to be brought up to the Supreme Court of the United States, to be there examined, and reversed or affirmed. It will be necessary, in the progress of our exami- nation of this important section, to notice the class of questions which may be thus transferred to the Supreme Court of the United States. were first introduced by an act passed February 5, 1867. As the law now stands, under the provisions of the last-named act, incor- porated into the Revised Statutes, the Supreme Court of the United States may review the final judgment or decree of the highest court of a State in which a decision could be had, in three classes pf cases : — 1st. Where is drawn in question the validity of a treaty or statute of, or an authority exercised under, the United States, and the decision is against their validity. 2d. Wliere is drawn in question the validity of a statute of, or an authority exercised under, any State, on tlie ground of their being repugnant to the Constitution, treaties, or laws of the United States, and the decision is in favor of their validity. 3d. "Where any title, right, privilege, or immunity is claimed under the Constitution, or any treaty or statute of, or commission held or authority exercised under, the United States, and the decision is against the title, right, privilege, or immunity specially set up or claimed by either party under such Constitution, treaty, statute, com- mission, or authority. Any enactment, from whatever source originating, to which a State gives the force of law, is a " statute" of the State, within the meaning of the law which regulates the appellate jurisdiction of the Supreme Court over the judgments and decrees of the State courts. Williams v. Brufy, 96 U. S. 176 ; Ford v. Surget, 97 U. S. 594. 28 JURISDICTION, PEACTICE, AND JUEISPRUDENCE. Now, there are certain requirements here, each of which demands attentive consideration. The act says, "a final judgment." Only a final judg- ment can thus be examined, and the reason for this is apparent. Suppose, for instance, that, in a suit in a State court, a defendant sets up a provision in the Constitution of the United States, — such, for instance, as that provision which has so often been relied upon, that the State law under which the suit is brought, or upon which it depends, violates the obligations of a contract, and therefore it was not within the power of the State to pass such a law ; or suppose the defendant says it is an ex post facto law, or relies upon any other limitation on the power of a State made by the Constitution. He sets that up in his defence, and the lower court decides against him ; he must not stop there, because, if he carries the case to a higher court, they may decide in his favor, and it may be wholly unnecessary to go beyond the judicial power of the State to have the question properly decided. It is therefore only "a final judgment" of the highest court of the State to which the party has the power to carry the question. There have been a great many decisions made upon the question of what judgment is "final," and what is not. They have more often been made under those provisions of the Judiciary Act which relate to the Circuit Courts of the United States, where the same requirement is found. Judgments of the Circuit Courts can be carried to the Supreme Court only when they are final, and under that clause of the statute a great many decisions have been made ; not so many under THE SUniEME COURT. 29 the twenty-fifth section, which contains the same requirement; but if you will look at the case of Houston V. Moore, 3 Wheat. 433, you will find a decision upon these words of the statute requiring the judgment to be final. ^ The next words are, "final judgment or decree in any s?«Y. " Well, it has been a subject of dis- cussion, What is a "suit," within the meaning of this law ? and that was settled in the case of Weston V. The City of Charleston, 2 Peters, 464. The con- clusion reached was, that it is any proceeding in a court of justice by which a remedy is sought for a right. It is not necessarily a proceeding according to the course of the common law or equity law; it may be a proceeding under a State statute. Under a State statute, for instance, there may be a par- ticular mode of proceeding in order to try a right; and a proceeding under such a statute, however it may differ from the usual modes of proceeding, is a "suit," within the meaning of this section.^ The next requirement is, that it must be a final judgment of the highest court of law or equity in which a decision can be had. I have already explained the reason for that, — because it might be unnecessary to go beyond the judicial power of a State to get the proper interpretation of the Con- stitution, or treaty, or statute' in question ; and until you have the decision of the highest court of ^ [See p. 93, infra, where this snhject is treated more fnlly in con- nection with appeals and writs of error taken from or to the inferior Federal Courts. St. Clair Countij v. Lovingston, 18 Wallace. 628; Parcels v. Johnson, 20 Ibid. 653.] 2 [See also Ko/d t. United States, 91 TJ. S. 367, 375.] 30 JURISDICTION, PRACTICE, AND JURISPRUDENCE. the State, and that decision is against the right thus claimed, you have no occasion and no power to appeal to the Supreme Court of the United States.^ What is "the highest court" of course depends entirely upon the laws of the State ; hut the details of the State law cannot prevent any party, whatever the form or mode of proceeding may be, from get- ting this remedy, if he claims a right under the Constitution, treaties, or statutes of the United States, or any authority exercised by virtue of either.''^ There are many cases arising under the laws of the States, in which a question can be carried to a higher court, and the record of the suit does not go there. For instance, in the Supreme Court of Massachusetts, a case is carried from a term of the Supreme Judicial Court, which sits for a county, to what we call the full court, the court for the Commonwealth, and enough of the proceedings is sent up for that court to see what question is to be decided ; when they have made a decision, they send a rescript to the lower court, informing it what the decision is, and in many cases directing them what judgment or order to enter in the case ; 1 In the Eevised Statutes, the words are "the highest court of a State," omitting the words " of law or e(}uity," apparently upon the idea that they are superfluous, or because the courts of many of tho States now exercise botii law and equity powers. - What is requisite is, that the highest court should he the one that has power to make a final decision ; and tliis may be an inferior court, if tlie highest court of all could not have jurisdiction. Miller V. Joseph, 17 Wallace, 655. See also Cohens v. Virginia, 6 Wheat. 264. THE SUPREME COURT. 31 but, all the time, the record remains in the lower court, and in case a writ of error is to be taken, inasmuch as the record remains in the lower court, and it is a copy of the record which is to be sent up under the writ of error, the writ of error must go to that lower court, where the record remains. It may remain in the Superior Court in Massachu- setts, it may remain in the Supreme Court for the county; but wherever the record is found, there the writ of error is to go, in order to bring up the record. You will find some decisions on this sub- ject, which may be interesting to you, in the case of Grehton v. Hoyt^ 3 Wheaton, 246, and Kanouse V. 3Iart{n, 15 Howard, 198. Passing beyond these points, we come to the grounds of jurisdiction ; that is, the grounds upon which the Supreme Court may take and exercise jurisdiction. They are specially described in the statute: "Where is drawn in question the validity of a treaty, or statute, of the United States, or an authority exercised under the United States, and the decision is against their validity ; or where is drawn in question the validity of a statute of a State, or an authority exercised under any State, on the ground of their being repugnant to the Con- stitution, treaties, or laws of the United States, ^ and the decision is in favor of their validity; or where is drawn in question the construction of any clause of the Constitution of the United States, or of a treaty, or statute of the United States, or com- 1 [The question whether a statute of a State conflicts with the Con- stitution of that State does not come within this act. Mitchell v. C/«?-/,-, noU. S. 633] 32 JURISDICTION, PKACTICE, AND JURISPRUDENCE. mission held under the United States."^ In all these cases, the party who has set up any right, privilege, or exemption by reason of the Constitu- tion, laws, or treaties of the United States, and the decision is against him, or where he has asserted that a State law is not binding, because it is in conflict with the Constitution of the United States, and the decision is in favor of the State law,^ then he may have the subject reviewed in the Supreme Court of the United States. Now, the first inquiry is. How shall it be made to appear to the Supreme Court of the United States that one of these things has been drawn in ques- tion, and that a decision has been reached such as is described in this section, for or against the privilege claimed, according to the nature of that privilege ? On this point very grave difficulties have been encountered, and a great number of decisions made. I will endeavor to state to you a few rules, which I think will afford sufficient guides in the inquiry whether either of these questions can be made to appear to the Supreme Court of the United States to have been drawn in question. And I must state, ' [This clause now reads as follows : " or where any title, right, privilege, or immunity is claimed under the Constitution, or any treaty or statute of, or commission held, or authority exercised under the United States." Rev. Stat. 709. See pp. 46-58, /?!/;•«.] 2 [It is important for the student to remember that in every case the decision must be against the right or immunity set up under the United States Constitution, laws, or treaties. Tlie fact that such a jurisdictional or " Federal^' question is raised, and is decided wrongly by the State court, is not sufficient to give the United States Supreme Court jurisdiction. The right, etc., must be decided against the party setting it up. Murdoch v. Memphis, 20 Wall. 590, 626.] THE SUrKEME COURT. 33 in the first place, that, in acting on the writ of error, the Supreme Court have before them only the record of the State court. They have nothing before them except the record, which includes — as you know — the pleadings and the verdict and judg- ment, if it is a case at law; and if there has been a trial by jury, the bill of exceptions, if any excep- tions were taken, showing what points were made at the trial, and what the rulings of the court below were upon them; and that bill of exceptions becomes, when properly taken and allowed, a part of the record. In equity, they have the bill, the answer, the replication, the evidence, and the decree, or decrees, if there were more than one. These are the records in law and in equity, and they are before the Supreme Court of the United States, from the State court, for them to examine, and thus determine whether any one of these ques- tions has arisen, which is described in this twenty- fifth section.-' Now, after the case is entered upon the calendar of the Supreme Court, if the opposing counsel, upon examination of the record, thinks it is doubt- ful whether the court has jurisdiction, because he thinks it is doubtful whether either of the questions designated in the twenty-fifth section has arisen, he is at liberty, on any motion day, to file a motion to dismiss the writ of error upon the ground that it does not disclose any question over which the court has jurisdiction ; that motion is heard as a pre- liminary question; and if the court, on looking into 1 [The record now includes the opinion of the court. See p. 48, infra.] 3 34 JURISDICTION, PRACTICE, AND JURISPRUDENCE. the record, find no qnestion there, under the twenty- fifth section, they dismiss the writ of error. On the other hand, if no such motion is made, and the case comes to a hearing on its own merits, if the court then find, on their own examination, that there is no question under the twenty-fifth section over which they have jurisdiction, they, ex mero motu, dismiss the writ of error; they are careful not to exercise jurisdiction in any case unless it has been given to them by some Act of Congress, their whole appellate jurisdiction being regulated by Congress. In what way is it to be made to appear on the record that a jurisdictional question has arisen ? How will you have the record framed, so that it shall be made to appear to the Supreme Court of the United States, when the record goes there on a writ of error, that one of these questions has arisen ? Suppose, for instance, that a suit is brought on a contract. A State law is set up, which, in effect, has done away with the contract, or modified it in such a way that the action would not lie in con- formity with the State law; but the promisee of that contract, the person contracted with, insists that this State law is invalid, because it impairs the obligation of his contract. In what way will you get that question on the record, so that it can be carried to the Supreme Court of the United States ? There are various ways, depending upon the nature of the proceeding. If it be an action at law, and there is a trial by a jury, you request the judge to instruct the jury, as a matter of law, that this State law has impaired the obligation of that THE SUPREME COURT. 35 contract, and therefore is invalid, under the Con- stitution of the United States, and is to be disre- garded by them. If he gives the instruction, of course he is bound to carry it out, and see that the jury do so; and if they find a verdict contrary to his instructions, he is bound to set it aside. On the other hand, if he refuses to give the instruction, if he says, " My opinion is, that this State law does not impair the obligation of that contract, and therefore is not invalid under the Constitution," you may take your exception to that ruling; he signs and seals that exception; it becomes a part of the record ; and when the case comes before the Supreme Court of the United States, there is on the record the evidence that that question was raised, and decided by that court. You may have been obliged to carry it to a higher court, to get their decision; but that is the way you get it on the record in an action at law, by a request for instruc- tion, a refusal of the request, and then the ques- tion whether the request was rightly or wrongly refused, may be carried to the Supreme Court. On the other hand, in a suit in equity, if the com- plainant has a case where he wishes to raise such a question, the bill itself, by the proper averments and charges, can raise the question, or, if the defendant intends to raise such a question, he can do it in his answer. And in the decree there always should appear, if there is such a question in the case, evidence that it was raised, that it was decided, and how it was decided. 1 ought to say here that, although it is the dictate of prudence, and a very obvious one, where 36 JURISDICTION, PRACTICE, AND JURISPRUDENCE. it is intended to carry a question of this kind to the Supreme Court of the United States, to take the measures I have spoken of, — to place upon record the fact that the question was made and decided, and how it was decided, — nevertheless, it has been settled that it is not necessary that the record should in terms state these things. It is only necessary that, when the court look into the record, they should find that, by necessary intendment, as it is called, — that is, by the natural and necessary meaning of what they read, — there was such a question raised, and that it was decided, and how it was decided. This subject was a great deal discussed in the case of Furman v. Nicliol, 8 Wal- lace, 44; so that if you are unfortunate enough to have any record which does not in terms state that one of these questions was raised, still, if you can satisfy the court that it was a necessary intend- ment that the State court could not have arrived at the result they did without coming in conflict with the Constitution of the United States, that may be sufficient. And perhaps I ought to say that dif- ferent judges have, at different times, attempted to make an enumeration of the different modes in which the record may show that such questions arose, and it may be very well for you to look at two of the leading cases on that subject. The first is Crowell v. Bandell, 10 Peters, 368, where Mr. Justice Story endeavored to enumerate the different modes in which the record may show that one of these questions arose, without stating it in terms; a later case is Armstrong v. The Treasure!' of Athens County, 16 Peters, 281. THE SUPREME COURT. 37 In this connection, I wish to ask your attention to a state of things which has given rise to many emharrassments in the Supreme Court. We will suppose a case where the record shows that a ques- tion was raised, under the twenty-fifth section, and that the highest court of the State decided against the right, or title, or claim, which was made under the Constitution, or treaties, or statutes of the United States; there is no doubt about that, and there is no doubt that they decided wrongly; and if the case turned wholly on that question, the judgment must be reversed, and the case sent back to be proceeded with, in conformity with the opinion of the Supreme Court. , But now let us suppose that in that case there is a question of State law, • — not one of these questions, under the twenty-fifth section, but a question of the local law of the State, and that the case might turn on that question, as well as on the other; that, even if the other was decided wrongly, there is a question of State law in the case, over which the highest court of the State has the ultimate control, on which they could have decided the case just as they did decide it, and enter the same judgment which was entered. Well, under that state of things, the Supreme Court have held that they cannot reverse the judgment, because it would be useless. If they reverse the judgment, and send the case back, the State court may say : " Well, we were wrong about that ques- tion of United States law, but here is another ques- tion upon which the judgment depends; we are right about that, and we will enter the same judg- ment we did before. " That has occurred more than 38 JUEISDICTION, PRACTICE, AND JURISPRUDENCE. once, and it is now settled, as you will find by looking at the cases of Neilson v. Lagoiv, 12 Howard, 98, and Maguire v. Tyler, 8 Wallace, 650, that on that state of facts the Supreme Court will not reverse the judgment. ^ But then there is another posture in which a case may come there, which is more embarrassing. We will suppose that, as in the other case, there was a question under the twenty-fifth section appearing on the record, which the State court decided wrongly; they did not give due effect to the Constitution, the treaty, the Act of Congress, or the authority claimed under the United States ; but the counsel in argu- ment in the Supreme Court say, " Here is another question, under the State law, which might be raised ; " they do not show that it was raised ; they do not show that the State court proceeded upon that other question ; but they simply say, " Here is a question of local law, and the court below might have proceeded upon that ; non constat but they did proceed upon it; and they had a right to decide that question, and they had a right to enter this judgment, if they thought that question ought to be decided in a particular way. " Now these cases to which I have just referred settle that, if it does not appear on the record that the State court did in truth decide on that question of local law, the Supreme Court will presume that they did not decide upon that question, provided the decision Would be wrong in the judgment of the Supreme Court. In the first of these cases — Neilson v. Lagow 1 See the case of Keith v. Clark, 97 U. S. 454. THE SUPRExME COUKT. 39 — there was a question under the twenty-fifth sec- tion. The Supreme Court held that the State court had not rightly interpreted the Act of Con- gress, and therefore that the judgment should be reversed. " But, " said the counsel for the defendant in error, "this deed which is relied upon by the plaintiff in error is not a deed that will carry a fee, according to the laws of Illinois ; for the word ' heirs ' is not mentioned in it, and therefore it may be that the Supreme Court decided this case in favor of the defendant below, by reason of that defect in the deed." The Supreme Court looked into that question of local law; they were satisfied that the insertion of the word "heirs" was not necessary, according to the local law, in that par- ticular case, it being a conveyance to a trustee, who had duties to perform which required him to take a fee ; therefore they said, " We will not believe, in the absence of direct evidence, that the court below decided this case on that question, because, if they did, they decided it wrong, and therefore we shall consider that no such decision was made. " ^ This, 1 believe, will put you in possession of these two points in regard to a case turning possibly on local law, in which case the highest court of the State of 1 [The converse of Neilson v. Latjow is found in Klinger v. State of Missouri, 13 Wall. 257. There, as in Neihon v. Lagow, two questions were involved, one question under the twenty-fiftli section, and another question relating to common law; and it did not appear upon which question the State court had based its judgment. But in this case the Supreme Court found that a right decision of the common-law point involved would justify the judgment of the State court, and accordingly the writ of error was dismissed. See also Johnson v. Risk, 137 U. S. 300, 307.] 40 JUKISDICTION, PRACTICE, AND JURISPRUDENCE. course has authority to determine, and which, ulti- mately, the Supreme Court of the United States has no authority to determine, when it comes from the State court, unless there has been a change in the legislation of Congress, to which I shall pres- ently ask your attention, but which need not be considered in this connection. There is one other thing which you ought to notice, and that is, whether it is necessary for the record to show that there was pointed out to the State court the particular Act of Congress, or particular clause in the Constitution, or particular clause in the treaty, on which reliance is placed; or whether it is sufficient to have the record show, generally, that some Act of Congress, or some treaty, or some provision of the Constitution, was relied upon. I am sorry to say that the decisions upon that subject are conflicting, and it will remain for the Supreme Court to endeavor to reconcile them, or overrule some, or affirm others. The only thing I can do to assist you on the subject is to give you a reference to the two classes of cases. There is one class of cases which affirms that you must bi'ing to the notice of the State court the particular Act of Con- gress on which you rely: Maxwell v. Newbold, 18 Howard, 511; Farney v. Towle, 1 Black, 350; Messenger v. Mason, 10 Wallace, 507. They are in the affirmative of the proposition, — that the record must show that the particular clause of the law, treaty, or Constitution was brought to the notice of the court. On the other hand, so far as respects the Constitution of the United States, the record need not show that the particular clause was THE SUPREME COURT. 41 brought to the notice of the court, as in the cases of Brid(je Proprietors v. Hohoken Company, 1 Wallace, 116, and Furman v. NicJiol, 8 Wallace, 44, to which I have already referred for another purpose. Perhaps a solution of the question may be found by inquiring in each case whether the record satis- factorily shows that one of the jurisdictional ques- tions was raised and decided, and how decided.^ It would generally be difficult to make these appear without evidence what statute, treaty, or consti- tutional provision was brought to the attention of the court, and relied on; but, as in the case of Furman v. NicJiol, it is not impossible, and so not technically and always necessary. Many decisions have been made upon the words, " where is drawn in question the validity of a treaty or statute of, or an authority exercised under, the United States." The decisions on this subject are so numerous that perhaps the best I can do will be to refer you to Curtis's Digest, p. 273, near the bottom of the page, where you will find the title under which these cases are collected. You should notice that the writ of error to the State court, under the twenty-fifth section, includes criminal ^ as well as civil cases, and is wholly irre- spective of the amount in controversy. When you come to look at the appellate jurisdiction of the 1 [The suggestion here made is a good statement of the law as it is now hxid down. See liobjj v. Colehour, 146 U. S. 153, and p. 54, et seq., infra ^ 2 [Twitchell v. The Commonwealth, 7 AYall. 321 ; Bonahan v Nebraska, 125 U. S. 692 ] 42 JURISDICTION, PRACTICE^ AND JURISPRUDENCE. Supreme Court over the Circuit Courts and District Courts, you will find it limited by the amount in controversy. There is no such limitation affecting writs of error to the courts of the State ; and that is a very just and necessary provision, because very important rights may depend upon a suit in a State court, where but a small amount is in controversy, and therefore any case, either civil or criminal, whatever may be the amount involved, can go up from a State court to the Supreme Court, under this twenty-fifth section. That subject was discussed, and the law stated, in the case of Twitehell v. The Commonwealth, 7 Wallace, 321. There are some requirements in regard to prac- tice which I think I may usefully mention. In the first place, a writ of error to the State court must be allowed, either by the presiding judge of the State court in which the final decision was made, or by some judge of the Supreme Court of the United States. That was decided in the case of Gleason v. Florida, 9 Wallace, 779, and it has always been the practice, and always understood to be the law, that a writ of error to a State court should not issue, except upon the allowance of the presiding judge of that court, or some justice of the Supreme Court of the United States. The writ is issued either by a clerk of the Circuit Court, or by the clerk of the Supreme Court of the United States. Usually, the clerk of the Circuit Court in the district where the decision of the State court was made is applied to, and issues the writ, because it is more convenient; but the clerk of the Supreme Court of the United States is equally competent to THE SUPREME COURT. 43 issue it. If you will refer to the Appendix to Curtis's Digest, you will find there the particular forms, — and directions how to proceed to obtain such a writ of error, — how the writ is to be allowed, how the required bond is to be given, and all the necessary directions for obtaining such writs of error. It is unnecessary for me to repeat them, because it is better that you should look at them yourselves. I wish, however, to give one caution, and that is, you will find it stated there, that if the judgment of the State court was rendered less than thirty days before the next session of the Supreme Court to which the writ of error must be return- able, — because the writ is always returnable to the next session after the case is decided, — if rendered less than thirty days before the next session of the Supreme Court, then it may be made returnable in term, so as to get the thirty days' notice ; and that was believed by me, at that time, to be law. Whether it was or not, the subject is now regulated, and it is important for you to know it. By the fourth clause of the eighth rule of the Supreme Court of the United States, they have regulated this whole matter of the returns of writs of error, and removed all doubts, if any existed before. ^ The writ of error is directed to the clerk of the court where the record is, and commands him to return an authenticated copy of that record to the 1 [The ■writ of error must be taken within two years after the judgment or decree complained of was rendered. See Rev. Stat. §§ 1003, 1008, as construed by the Supreme Court in Cummings v. Jones, 104 U. S. 419.] 44 JUKISDICTIOIf, PEACTICE, AND JURISPRUDENCE. Supreme Court of the United States. In obedience to that order, he makes out a copy of that record as it remains in his custody, certifies it, and annexes it to the writ of error, and returns it to the Supreme Court of the United States, and thus the proceeding gets before that court. If the writ of error is to act as a supersedeas, as it is called, — that is, to stay the execution of judgment, — then it is necessary to give a bond, and the bond must give adequate security for the performance of that judgment in case it should be affirmed by the Supreme Court of the United States. If it is reversed, of course the bond falls with the judg- ment; if it is affirmed, then the bond goes into operation, and is security that the judgment, what- ever it is, shall be satisfied. If, however, the judg- ment in the State court is in favor of the defendant, then there is nothing in issue except the costs, and the bond is only given by the plaintiff for the costs. If he fails to give that bond, the defen- dant may take out his execution, and collect his costs. If he chooses to give it, he stays that execution until there is a final decision by the court above. Now, there is one remaining question, which is an important one, and I will occupy the few moments which remain of the hour in stating to you what it is. This twenty-fifth section contains, at its close, this important restriction: "But no other error shall be assigned or regarded as a ground of reversal, in any such case as aforesaid, than such as appears on the face of the record, and immediately respects the before-mentioned ques- THE SUPREME COURT, 45 tions of validity or construction of the said Constitu- tion, treaties, statutes, commissions, or authorities in dispute." That is, according to that section, the Supreme Court of the United States can inquire into no error in the record except one of these questions under this twenty-fifth section ; and if they find there is no error of that kind, they affirm the judgment, and send the proceeding back to the State court, to have them execute their former judgment. But in 1867, in the Act of February 5, found in the Statutes at Large, Vol. XIV. p. 386, § 2, this twenty-fifth section was re-enacted in so many words, leaving out that clause which restricted the Supreme Court to inquiring into these par- ticular errors; it dropped that clause entirely. ^ Now the question is whether that clause is repealed, and on that question there is much to be said on both sides. I do not propose to detain you upon that, but I will refer you to the case of Stewart \. Kahn, 11 Wallace, 502, where you will find, not a decision, but a pretty strong intimation, that the court viewed that omission as being in the nature of a repeal of that restriction. There is another 1 [Soon after this lecture was delivered, — namel}-, December 1, 1873, — the Revised Statutes were enacted, and this Act of 1867, sect. 2, was embodied in Revised Statutes, § 709, with the same omission of the restrictive clause in the twenty -fifth section of the Act of 1789. February 15, 187.5, by 18 St. 318. Ch. 80, this section. Rev. Stat. 709, was verbally amended (without changing its meaning), so tliat the concluding part of it now reads as follows : " The writ shall have the same effect as if the judgment or decree complained of had been rendered or passed in a court of the United States. The Supreme Court may reverse, modify, or affirm the judgment or decree of such State court, and may, at their discretion, award execution, or remand the same to the court from which it was removed by the writ."] 46 JURISDICTION, PRACTICE, AND JURISPRUDENCE. case in 12 Wallace, 694/ where the same subject is touched ; but it is not a settled question whether or not that restrictive clause in the twenty-fifth section is or is not repealed. And still less is it settled what effect its repeal would have. The latter question, in my judgment, involves more difficult inquiries than the former; but this is not the place to enter into them. You perceive the great importance of these inquiries. They involve the question whether the Supreme Court of the United States, on such a record, can look into any error it could find, whether it was of local law, or whether it was one of these jurisdictional questions ; and there may be cases where they would decide that, although the highest court of the State had not committed any error in deciding a jurisdic- tional question, they had committed an error in deciding a question of local law, and therefore would reverse the judgment. Now, whether Con- gress has the power to grant this authority to the Supreme Court to review, on a writ of error, any question of local law, — any question out- side of those named in the twenty-fifth section, — is a grave question, on which I express no opinion. I believe, gentlemen, this finishes all I have to say on the appellate jurisdiction of the Supreme Court as respects the State courts. [Shortly after this lecture was delivered, — namely, in April, 1873, — the subject came be- fore the Supreme Court in the case of Murdoch V. The City of Memphis.^ The case was argued, 1 Trebikock v. Wilson. 2 [20 Wall. 590.] THE SUPKEME COURT. 47 and, at the request of the court, reargued by dis- tinguished counsel, and Judge Curtis, as amicus curioe, submitted a brief, which will be found at the end of this chapter. From this brief it will be seen that Judge Curtis had solved the doubt which he expressed in the preceding lecture, for he argues that the Act of 1867 did repeal the twenty-fifth section of the Act of 1789, and that the effect of this repeal was to give the Supreme Court authority to pass upon every question raised in a case of which they obtained jurisdiction by reason of its involving what Judge Curtis called a jurisdic- tional question; and finally he concluded that Congress had power under the Constitution to con- fer this additional jurisdiction upon the Supreme Court. The court deliberated long, for the opinion was not rendered till January, 1875, and then it was not unanimous. The Chief Justice did not sit in the case, and three justices dissented. The majority of the court took a view different from that advocated by Judge Curtis, although they agreed with him upon the first point arising in the case. They held that the Act of 1867, sect. 2 (Rev. Stat. 709), did indeed operate as a repeal of the twenty-fifth section of the Act of 1789, but they also held, with some hesitation, that it did not con- fer upon the Supreme Court any new or additional authority to pass upon questions of local or com- mon law arising in a case which came before the Supreme Court as one involving a Federal question. "Jurisdictional question," was the term employed by Judge Curtis, but " Federal question " is the 48 JUEISDICTION, PRACTICE, AND JURISPRUDENCE. term now in use, and it was originated, I believe, in Murdock v. Memphis. In short, the court held that the new act, the Act of 1867, enlarged the powers of the court in respect to cases brought before it by writ of error to the State courts, in two respects only. First, it gave the court authority to look at the opinion delivered by the State court, as well as at the technical record. This, practically, was the sole effect of omitting from the new act that clause of the old act which read as follows : " But no other error shall be assigned or regarded as a ground of reversal . . . than such as appears upon the face of the record, and immediately respects the before- mentioned questions of validity or construction of the said Constitution, treaties, statutes, commissions, or authorities in dispute." The Supreme Court had always looked at the opinion in cases brought from the State court of Louisiana, because under the peculiar practice of that State, the opinion is a part of the technical record ; but as to opinions of the court in cases arising in other States, the Supreme Court had always refused to examine them, inasmuch as they were not a part of that technical record to which the court was confined by the twenty-fifth section. Secondly, the Act of 1867 provided that "the Supreme Court may, at their discretion, proceed to a final decision [when the judgment or decree of the ^tate court is reversed], and award execution, or remand the case to the inferior court ; " whereas, in the old act, this power of proceeding to a final THE SUPREME COURT. 49 decision was given to the Supreme Court only " if the cause shall have once heen remanded before." These two, the court held, were the only changes introduced by the Act of 1867, sect. 2, which is now Revised Statutes, sect. 709; and they con- cluded by stating the following propositions: — 1. That it is essential to the jurisdiction of this court over the judgment or decree of a State court, that it shall appear that one of the questions men- tioned in the statute must have been raised and presented to the State court ; that it must have been decided by the State court against the right claimed or asserted by the plaintiff in error under the Con- stitution, treaties, laws, or authority of the United States, or that such a decision was necessary to the judgment or decree rendered in the case. 2. These things appearing, this court has juris- diction, and must examine the judgment so far as to ena])le it to decide whether this claim of rioht was correctly adjudicated by the State court. 3. If it finds that it was rightly decided, the judgment must be affirmed. 4. If it was erroneously decided against the plaintiff in error, then this court must further inquire whether there is any other matter or issue adjudged by the State court sufficiently broad to maintain the judgment, notwithstanding the error in the decision of the Federal question. If this be found to be the case, the judgment must be affirmed, without examination into the soundness of the decision of such other matter or issue. 5. But if it be found that the issue raised by the question of Federal law must control the whole 4 50 JURISDICTION, PRACTICE, AND JURISPRUDENCE. case, or that there has been no decision by the State court of any other matter which is sufficient of itself to maintain the judgment, then this court will reverse that judgment, and will either render such judgment here as the State court should have rendered, or will remand the case to that court for further proceedings, as the circumstances of the case may require. It will be noticed that, according to the above statement, the Supreme Court is bound to pass upon a Federal question properly raised, no matter what ultimate decision it may make of the whole case. But, supposing that the case contains some non-Federal question sufficient to maintain the judgment without regard to the Federal question; in that event, since the Supreme Court are bound to affirm the decision of the State court, why should they consider the Federal question at all ? This point was taken, and a motion to dismiss the writ of error was made in Railroad Company v. Maryland,^ decided at the same time as Murdoch v. MempJiis. But the court said that, however it might have been under the Act of 1789, the omis- sion of the restrictive words of that act from the Act of 18G7, had made it the duty of the court to pass upon the Federal question in all cases. They said : " The counsel of both parties in this court are entitled to be heard when the record shows the existence of a decision which gives us jurisdiction, on the soundness of that decision, on its sufficiency to control the judgment in the whole case, and on the sufficiency of any other point decided to affirm 1 [20 Wall. 643.] THE SUPREME COUKT. 51 the judgment even if the Federal question was erroneously decided." But this principle, though never expressly over- ruled, was very soon departed from, and has not since been observed. Thus in Hale v. Akers,^ the court say: "In JenJcins v. Loewenthal,'^ where two defences were made in the State court, either of which, if sustained, barred the action, and one involved a Federal question, and the other did not, and the State court in its decree sustained them both, this court said that . . . even though the Federal question was wrongly decided, it would affirm the decree, without considering the Federal question or expressing any opinion upon it, and that such practice was sustained by the case of Murdock V. Citi/ of Memphis.''^ A long list of authorities follows. See also Ilavimond v. Johnston.^ The law then, as now, interpreted by the Supreme Court, is, that if the case brought by writ of error from the State court contains a non-Federal ques tion sufficiently broad to maintain the judgment, however the Federal question might be decided, the Supreme Court will affirm the decision of the State court, without considering the Federal question, and without considering whether the decision of the non-Federal question was right or wrong. But if it be found that the Federal question must control the whole case, or that there has been no decision by the State court of any other matter which is sufficient of itself to maintain the judgment, then, if the Federal question was decided rightly, the Supreme Court will affirm the judgment; if it was 1 [132 U. S. 554, 565.] 2 [nO U. S. 222.] 3 [142 U. S. 73.] 52 JUEISDICTION, PKACTICE, AND JURISPRUDENCE. decided wrongly, the Supreme Court will either render such judgment as the State court should have rendered, or else remand the case to that court for further proceedings, as the Supreme Court shall direct. For example, there was a suit in Nebraska to compel specific performance of a contract to convey farm land acquired under the United States Home- stead Law. The defence contended that the con- tract was void under that law. But the State court, without in terms passing upon this question, held that the contract was good by virtue of a certain statute of Nebraska. The United States Supreme Court, however, held that the Federal question was conclusive of the case, because if the contract violated an United States law, it could not be made valid by a State law. They held, further, that the contract was in violation of the United States law, and therefore void, and they remanded the case to the State court for further proceedings in accordance with the opinion of which this is a summary.^ This case illustrates that class of cases where the Federal question is controlling. The following case illustrates that class, mentioned first above, where a non-Federal question is controlling. A State sued a bridge company to collect a tax levied under a law of the State. The bridge company raised a Federal question by asserting that the tax was void under the United States Constitution, because it impaired the obligation of a previous contract between the bridge company and the State. But 1 [Anderson v. Carkins, 135 U. S. 483] THE SUPREME COURT. 53 the State court found that the bridge company had voluntarily agreed, at the time of its incorporation, that the bridge should be liable to a tax; and this point being broad enough to maintain the decision, however the Federal question might be decided, the writ of error was dismissed.^ Finally, a case may arise where a Federal and a non-Federal question are involved, and where the Federal question is not conclusive of the case, or was decided wrongly by the State court, and where the non-Federal question is sufhcient to maintain the judgment, but it does not appear whether the State court decided it or not. In such an event, the Supreme Court will look to see how the non- Federal question ought to have been decided; and if they find that a right decision of it would support the judgment actually made by the State court, thev will infer that the State court so decided, and they will affirm the judgment. But if they find that the State court would have been obliged to decide the non-Federal question wrongly in order to reach the judgment which they made, they will not infer that the State court so decided. On the contrary, they will infer that the State court did not touch the non -Federal question; and therefore the Supreme Court will either decide the case it- self on the Federal question involved (if that be broad enough) or remand the case to the State court. Whereas, if it plainly appeared from the record that the State court had so decided, — that is, had 1 [Henderson Bridge Co. v. Henderson Citi/, 141 U. S. 679. See also De Saussure v. Gaillard, \H U. S. 216, 233.] 54 JURISDICTION, PRACTICE, AND JURISPRUDENCE. decided the non-Federal question, and decided it wrongly, — the Supreme Court would aflirm the judgment, provided, of course, that the non-Federal question was sufficient to maintain the judgment. This point, and it is a rather subtle one, is stated in substance on pp. 38, 39, supra, and it is illus- trated by the cases of NeiUon v. Lagow, and Klinger V. State of Missouri, there cited. It is very important that the record should clearly show that the Federal question was duly set up in the State court, and passed upon by that court, for otherwise the Supreme Court are at liberty to hold that there is no such question in the case, and to dismiss the writ of error. The proper time and the proper way of setting up the Federal question are stated by Judge Curtis {supra, pp. 34, 35). It has been held that it is too late to set up a Federal question upon a petition to the State court for a rehearing. ^ It is held also that the petition for the writ of error forms no part of the record, so far as the Supreme Court is concerned, and hence that the Federal question cannot first be set up in that petition. The opinion, as we have seen, is now a part of the record, but it docs not carry so much weight as the technical record ; and if the case really contains no Federal question, a statement in the opinion that it does so will not suffice. This remark is equally true of the whole record. The Supreme Court say: "It is not enough to give us jurisdiction over the judgments of the State courts for a record to show that a Federal question was 1 [Miller v. Texas, 153 U. S. 535.] THE SUPREME COURT. 55 argued or presented to that court for decision. It must appear that its decision was necessary to the determination of the cause, and that it actually was decided, or that the judgment as rendered could not have been given without deciding it." ^ When there is no opinion, or when the opinion does not mention the Federal question involved, this deficiency should be supplied by a certificate of the presiding justice of the State court, setting forth the Federal question involved. ^ But this certificate is not conclusive of the fact which it states. "While always regarded with respect," the Supreme Court declare, "it cannot confer juris- diction upon this court to re-examine the judgment below." In a recent important case ^ it did not appear from the opinion of the court below that a Federal ques- tion was raised or passed upon. The certificate of the presiding judge, however, stated such a ques- tion, and stated that it was decided adversely to the plaintiff in error. The Supreme Court there- fore looked into the record, and, finding that "the necessary effect of the decree " was to determine a Federal question, and to determine it adversely to the plaintiff in error, they held that the jurisdic- tion attached. They quoted with approval what had been said in a former case as to the office of the certificate; namely, that it is "to make more certain and specific what is too general and indefi- 1 [Citizens' Bank v. Board of Liquidation, 98 U. S. 140. See also Murdock V. City of Memphis, 20 Wall. 590, 633.] 2 [Johnson V. Risk, 137 U. S. 300.] 3 [Roby T. Colehour, 146 U. S. 153.] 56 JURISDICTION, PRACTICE, AND JURISPRUDENCE. nite in the record. " The question in this case was described by the court as a "close one," and the opinion is very instructive upon the subject. The Federal question should also be stated in the assignment of errors, which is required by Revised Statutes, sect. 997, in the following language : — "There shall be annexed to and returned with any writ of error for the removal of a cause, at the day and place therein mentioned, an authenticated transcript of the record, an assignment of errors, and a prayer for reversal, with a citation ^ to the adverse party." No. 21 of the United States Supreme Court Rules declares that "when there is no assignment of errors . . . counsel will not be heard except at the request of the court." It adds, however, that "the court at its option may notice a plain error not assigned or specified." The Supreme Court Rules require also that the Federal question or questions relied upon shall be stated in the brief of counsel for the plaintiff in error. The strictness of the rule requiring the Federal question relied upon in the United States Supreme Court to have been raised before the State court is shown by the case of Morrison v. Watso7i.^ This was an action of ejectment in a North Carolina court to recover 100 acres of land. The plaintiff, 1 [The citation must he " signed hy the Chief Justice or Judge or Chancellor of the Court rendering or passing the judgment or decree complained of, or by a Justice of the Supreme Court of the United States in the same manner ... as in a court of the United States." Rev. Stat. § 709. As to who should be parties to an appeal or writ of error, see infi-a, p. 98.] ^ [154 U. S. Ill] THE SUPREME COUKT. 57 to prove that he owned the land, produced a deed to him at sheriff's sale on execution. A statute of the State exempted from such levy and execution all homesteads of a value less than li'lOOO ; and the only defence in the State court was that this land was not worth 1^1000, But the act of exemption just stated was passed after the contracting of the debt for which the land was sold ; and in the United States Supreme Court it was argued that the State statute was void, so far as it applied to this debt, because it impaired the obligation of a contract. This was a valid defence and a good Federal ques- tion, but the Supreme Court held that the defendant had taken the point too late. They said : " If it was not claimed in any form before judgment in the highest court of the State, it cannot be asserted in this court." This rule, however, must be taken as limited to those cases where a Federal question might or might not have been present in the minds of the court. Sometimes the decision itself is of such a nature as to show that a Federal question must have been passed upon by the State court in coming to its conclusion ; and in such cases the Supreme Court are at liberty to consider it, if they see fit, although the record (including, of course, the opinion) is silent upon the subject. But they are not bound to consider it. Rule 21 (of the Supreme Court Rules), already cited, is declaratory of the law in this respect, for it provides that "when there is no assignment of errors . . . counsel will not be heard, except at the request of the court,'' and " the court, at its option, may notice a plain 58 JURISDICTION, PRACTICE, AND JURISPRUDENCE. error not asdjjned or specified,''^ And the Supreme Court have said : — " It is not always necessary that the Federal question should appear affirmatively on the record. or in the opinion, if an adjudication of such ques- tion were necessarily involved in the disposition of the case by the State court. " ^ And this is so even although the State court, in its opinion, puts the decision entirely upon non- Federal grounds. " A judgment which rejects the claim [as to a Federal question], but avoids all reference to it, is as much against the right, within the meaning of section 709 of the Revised Statutes, as if it liad been specifically referred to, and the right directly refused. " ^ On the other hand, the formal averment in the record of a specific Federal question is not sufficient to raise such a question when none really exists. " It must not be wholly without foundation. There must be at least color of ground for such averment, otherwise a Federal question might be set up in almost any case, and the jurisdiction of this court invoked simply for the purpose of delay. " ^ Here follows the brief submitted by Judge Curtis in Murdoch v. The City of Memphis^ supra.'\ 1 {^Kaukauna Water Power Co. v. Green Bay, ^-c, Canal Co., 142 U. S. 254, 269. See also Arrowsmiih v. Harmoning, 118 U. S. 194.] 2 {Chapman v. Goodnow, 123 U. S. 540, 548. See O'Neil v. Ver- mont, 144 U. S. 323, and especially the dissenting opinions which seem to be more logical than the opinion of the majority.] 3 [New Orleans v. New Orleans Water Works, 142 U. S. 79, 87. See also HamUin v. Western Land Co., 147 U. S. 531.] THE SUPREME COURT. 59 Some Observations concerning the Repeal of the Twenty-Fifth Section of the Judiciary Act o/'1789, by the Second Section of the Act of Feb- ruary blh, 1867 ( 14 Statutes at Large, 385). By Mr. B. R. Curtis, as Amicus Curia:. Three questions may be considered : — 1st. Does tlie later statute repeal the earlier ? 2d. If so, what changes in the previously existing law have been made by such repeal 1 3d. Had Congress power to make these changes 1 As TO THE First Question. The general subject of each law is the same. Each confers appel- late jurisdiction on the Supreme Court of the United States, over judgments of State courts, which, by reason of their subject-matter, are within the judicial power of the United States, under the first clause of the second section of the third article of the Constitution ; and each defines the cases in which that appellate power may be exercised, and regulates the mode of exercising that appellate power under the second clause of the same section. The two laws differ in the following particulars : — 1st. In defining the cases over which tliis appellate power shall extend. In the earlier law one class of cases was described as follows : " Or where is drawn in question the construction of any clause of the Con- stitution, or of a treaty or statute of, or commission held under the United States." lu the later law there is substituted the following description : " Or where any title, right, privilege, or immunity is claimed under the Constitution, or any treaty, or statute of, or commission held, or authority exercised under the United States," etc. The earlier law describes and includes only cases where some ques- tion of construction is drawn in question. The later law applies to and includes all cases where a title, etc. was claimed under the Con- stitution, etc., and the decision was against the validity of that title, whether that decision rested upon some question of construction of the Constitution, or some law or treaty of the United States, or upon any other question entering into the decision of the State court on the title capable of being assigned as erroneously made in contravention of law. This latter description may include cases other than those em- braced in the earlier law. The State court may have decided against the title, etc., without misconstruing the Constitution or any Act of 60 JUEISDICTION, PKACTICE, AND JUKISPRUDENCE. Congress, and yet have made a decision erroneous in point of law in the judgment of the appellate tribunal. It seems to have been intended to place titles, rights, privileges, or immunities claimed under the Constitution, laws, or treaties, of the United States under the final guardianship of this court, on whatever questions of law the same miglit depend. Suppose the State court ruled erroneously in admitting or reject- ing evidence, or any other question of local law, and tlie decision was against the right or title, not by reason of any misconstruction of the Constitution, but by reason of such erroneous ruling. It seems to have been the intention of Congress to enable this court to protect the right, etc., claimed under the United States from the effect of such errors. 2d. The laws differ in the regulations each prescribes for the regu- lation of the exercise of this appellate power. The former law restricts the assigument of errors to those appear- ing on the/ace of the record, and it had been construed strictly to refer to the technical record. The later law omits this provision. The former law further restricts the appellate power of this court to errors " which immediately respect the before-mentioned questions of construction," etc. The later law contains no such restriction, and any error in law made duly apparent to the court of errors is left assignable. The action of the appellate court on reversal is not required by each law to be the same. The earlier law confers discretion to pro- ceed to a final judgment, and award execution, — ''if the cause shall have been once remanded before." The later law confers tliis discretion without qualification. This is a case where the later statute was manifestly intended to cover and provide for the suliject-matter of the earlier law, and to qualify the provisions of the earlier law, not only by omission, but by addition and alteration ; and all authorities, I believe, agree that in such a case the later repeals the earlier act by necessary implication. Stewart v. Kahn, II Wallace, 502; United States v. Tijnen, 11 AVal- lace, 92; Ellis v. Page, 1 Pick. 45 ; Nichols v. Squire, 5 Pick. 168. II. The changes made by this repeal have already been pointed out, and it is unnecessary to repeat them. III. Had Congress power to make these changes ? The judicial power of tlie United States extends to all cases aris- ing under tlie Constitution, laws, and treaties of the United States, THE SUPREME COURT. 61 and the appellate jurisdiction over all these cases is to be exercised with such exceptions aud under such regulations as Congress may make. It is to be observed that the judicial power extends to cases, — not merely to particular questions arising in cases. And no distinction is made by the Constitution between the ex- tent of the judicial power which may be exercised by courts of the United States having original jurisdiction conferred by Congress, by reason of tlie subject-matter of the case, and the extent of that power which may be conferred by Congress, to be exercised by an appellate court. If the case is within the judicial power of the United States, the power of Congress is as plenary to confer appellate power over the whole case as to confer original jurisdiction over it. And from the origin of the government, appellate power has been conferred by Congress over entire cases (including all questions arising in them), which come within the judicial power of the iJnited States, by reason of tlieir subject-matter. This was true under the twelfth section of the Judiciary Act of 1789. in reference to lauds claimed under dif- ferent States. In Martin v. Hunter, 1 Wheaton, 349, Mr. Justice Story, speaking for the court, said: — "This power of removal is not to be found in express terms in any part of the Constitution ; if it be given, it is only given by implica- tion, as a jtower necessary and proper to carry into effect some ex- press power. The power of removal is certainly not, m strictness of language, a grant of original jurisdiction; it presupposes an exercise of original jurisdiction to have attached elsewhere. The existence of this power of removal is familiar in courts acting according to the course of the common law, in criminal as well as civil cases, and it is exercised before as well as after judgment. But this is always deemed, in both cases, an exercise of appellate, and not of original, jurisdiction. If, then, the right of removal be included in the appellate jurisdiction, it is only because it is one mode of exercis- ing tliat power; and, as Congress is not limited by the Consti- tution to any particular mode or time of exercising it, it may authorize a removal either before or after judgment. The time, the process, and the manner must be subject to its absolute legis- lative control. A writ of error is, indeed, but a process which removes the record of one court to the possession of another court, and enables the latter to inspect the proceedings, and give such judg- ment as its own opinion of the law and justice of the case may war- rant. There is nothing in the nature of the process which forbids it 62 JURISDICTION, PRACTICE, AND JURISPRUDENCE. from being applied by the legislature to interlocutory as well as final judgment. And if the right of removal from State courts exists before judgment, because it is included in the appellate power, it must, for the same reason, exist after judgment. And if the appel- late power by the Constitution does not include cases pending in the State courts, the right of removal, which is but a mode of exercising that power, cannot be applied to them. Precisely the same objections, therefore, exist as to the right of removal before judgment, as after, and both must stand or fall together; nor indeed would the force of the arguments on either side materially vary, if the right of removal were an exercise of original jurisdiction. It would equally trench upon tlie jurisdiction and independence of State tribunals." In Mayor v. Cooper, 6 Wallace, 247, it was held that this power of removal on account of the subject-matter was plenary, and rested on the same ground as tlie twenty-fifth section of the Act of 1789. In Osborne v. Bank of United States, 9 Wheaton, 823, the mean- ing and extent of the Constitution, and its inclusion of the entire case, if Congress saw fit to confer jurisdiction over it as a case, were demonstrated by Chief Justice Marshall, and his exposition of the plenary power of Congress over both original and appellate jurisdic- tion in such cases has been deemed settled. (See Fisk v. Union Pacific Railroad, 6 Blatch. 362 ; s. c, 8 Blatch. 243.) Unless, there- fore, some distinction can be made between the power of Congress to confer original and appellate jurisdiction, and neither the Constitu- tion nor the decisions of this court permit this distinction, it is clear that Congress may confer appellate power over all cases to which the judicial power of the United States extends, and is not restricted by the Constitution to particular questions, by reason of which the cases are brought within the judicial power of the United States. Nor Is it essential to the grant of appellate power over the State courts in the cases enumerated in the Constitution, that the State courts should have actually decided some question under the Constitution, laws, or treaties of the United States, against a right, title, or immunity claimed under them, or one of them If this were essential, there could be no removal, as provided by the twelfth section of the Ju- diciary Act of 1789, or any of the subsequent statutes which have conferred the right to remove suits from State courts before trial on account of their subject-matter ; all of which proceed on the assump- tion, that, though the right of removal depends on the subject-matter, the State court has not made anij decision thereon. But it may be argued, that if this court, on a writ of error, finds . the State court has rightly construed the Constitution, and each law THE SUPKEME COURT. 63 or treaty under which the right, title, privilege, or immnnity is claimed, and has only decided erroneously on some other question of law on wliicii that right, title, etc., depended, there can be no exercise of the appellate judicial power of the United States. But this would make the jurisdiction to try and decide the case dependent, not on its subject-matter, but on the decision of the appel- late court in the exercise of its jurisdiction concerning that subject- matter. This is wholly inadmissible. When the case comes into this court, it is within the judicial power of the United States by reason of its subject-matter ; and its subject-matter is not changed by any decision the court can make thereon. It is submitted that, by the Act of 1867, Congress intended to confer on this court appellate power over the " case," and that it had constitutional authority so to do. Respectfully submitted by B. R. CURTIS, Amicus Curice. 64 JURISDICTION, PRACTICE, AND JURISPRUDENCE. CHAPTER TIL APPEALS FROM FEDERAL COURTS. [The Constitution, after declaring what shall be the original jurisdiction of the Supreme Court, goes on to provide that " In all the other cases before men- tioned the Supreme Court shall have appellate juris- diction, both as to law and fact, with such exceptions and such regulations as the Congress shall make." Congress, therefore, and Congress only, has power to regulate the ajjpellate jurisdiction of the Supreme Court over the inferior Federal Courts. The earliest statute upon this subject was the Judiciary Act of 1789. This act divided the United States into Circuits, each Circuit being composed of two or more States, and, further, into Districts, each State forming a District, except that a few of the larger States were divided into two or more Dis- tricts. In every Circuit there was established a Circuit Court, and in every District a District Court ; and these are the inferior Federal Courts which Congress, pursuant to the power lodged in it by the Constitution, created by the Act of 1789. These courts are still in existence, and in fact, down to the year 1891, the Act of 1789, with some slight changes, remained in force. Under that act, an appeal lay from the District Court to the Circuit Court, and APPEALS FROM FEDERAL COURTS. 65 from the Circuit Court to the Supreme Court. In a few cases, such, especially, as patent and revenue suits, there was no money limit to this appellate jurisdiction ; but in most cases an appeal to the Supreme Court could not be had unless the amount involved exceeded $2000 ; and in 1875 this sum was raised to $5000. Under this system, it was easy to provide for the increasing business of the inferior Federal Courts by creating new Circuits and new Districts ; but there was no way of providing for the excess of cases with which the Supreme Court gradually be- came encumbered. By 1890, the business of that court was so much in arrears that, on the average, four years elapsed between the time when a case was appealed from the Circuit Court and the time when it was heard in the Supreme Court. To ob- viate this scandalous delay, and to relieve the Supreme Court, Congress, by the Act of March 3, 1891,1 created nine Circuit Courts of Appeal, — one for each Circuit, The Circuit and District Courts are described elsewhere in this book, but a few words about them here will be necessary to afford an understanding of the Circuit Courts of Appeal. There is one District Judge in every District, appointed, it need not be said, by the President. Originally, the Judges of the Circuit Court were the Justices of the Supreme Court, each of whom (and this practice still holds) was assigned to a particular Circuit, and he held court in that Circuit when the Supreme Court was not in session, — hence the title, " Circuit " Judge. 1 [26 Stat, at Large, 826, chap. 517.] 5 66 JUKISDICTION, PRACTICE, AND JURISPRUDENCE. By the year 1869, the business of the Circuit Courts * had increased so much that Congress authorized the President to appoint one Circuit Judge for each Circuit, to hear cases in the absence of the Supreme Court Justice, and to sit with him when he desired such assistance. Subsequent acts increased the number of Circuit Judges to two in several Circuits where the business of the Court was excessive. It was lawful also (and this is still the case) for any District Judge to hold the Circuit Court in his Cir- cuit, at the request of the Circuit Judge ; so that the Circuit Court might be composed at any time of a Supreme Court Justice, or of the Circuit Judge, or of a District Judge, or of any two of these. The act creating the new Circuit Courts of Appeal provided for the appointment of a second Circuit Judge in each Circuit ; and it declared that the court (one in each Circuit, be it remembered) should be composed of three Judges, any two of whom should make a quorum. These Judges, any two or three of whom may constitute the Circuit Court of Appeals, are the following : the Supreme Court Justice assigned to that Circuit ; the Circuit Judges ; the District Judges in that Circuit, who may sit in the absence of the Circuit Judges. The act further provides that no Justice or Judge shall sit in the Circuit Court of Appeals in any case which was tried before him as Judge of the Circuit or District Court ;i and this provision, it will readily be seen, makes necessary, as a rule, the presence of one or more District Judges on the bench of the Circuit 1 [See American Construction Co. v. Jacksonville, Tampa, and Key West Ri/. Co., 148 U. S. 372.] APPEALS FROM FEDERAL COURTS. 67 Court of Appeals, in cases appealed from the Circuit Court. Perhaps the most usual composition of the Appellate Court is one Circuit Judge and two Dis- trict Judges. It is quite conceivable that the court should be composed of three District Judges. The .Supreme Court Justices are usually engaged in Washington. Such is the new court created by the Act of 1891. The statute begins by taking away entirely the right of appeal from the District to the Circuit Court. The Circuit as well as the District Court is now purely a court of original jurisdiction. The act then divides all cases in those courts into two classes : the one, the smaller and more important class, is made appeal- able directly to the Supreme Court ; the other class is made appealable to the Circuit Court of Appeals, and the decision of that court is final, except in a few cases, and except also, that any new or difficult question of law arising in the Circuit Court of Appeals may be certified to the Supreme Court. This last provision enables the Supreme Court to harmonize those differences of opinion which inevi- tably occur between the various Circuit Courts of Appeal. I now take up the statute in detail. " Appeals or writs of error may be taken from the District Courts or from the existing Circuit Courts di- rect to the Supreme Court in the following cases : ^ " (a) In any case in which the jurisdiction of the Court 2 is in issue ; in such cases the question of 1 [The writ of error is a matter of right. In re Claascn, 140 U. S. 200. But it can be taken only after final judgment. McLish v. Rojf, 141 U. S. 661, 668.] 2 [See In re Lennon, 150 U. S. 393.] 68 JUEISDICTION, rKACTICE, AND JURISPRUDENCE. jurisdiction alone shall be certified to the Supreme Court from the court below for decision. " (5) From the final sentences and decrees in prize causes. " (^') In cases of conviction of a capital or other- wise infamous crime. ^ " (c?) In any case that involves the construction or application of the Constitution of the United States. " (e) In any case in which the constitutionality [not the construction] of any law of the United States, or the validity or construction of any treaty made under its authority, is drawn in question. "(/) In any case in which the constitution or law of a State is claimed to be in contravention of the Constitution of the United States." It is to be noticed in the first place that the act provides for appeals, as well as for writs of error ; whereas, as we have seen, the appellate jurisdiction of the Supreme Court over the State courts is exercised only by writs of error. The difference is an important one, for writs of error take up merely questions of law ; whereas an appeal carries up the whole case, evidence and all. In all equity and admiralty cases, therefore, — for these are the cases 1 [Upon this section Judge Sawyer has remarked, not without humor, as follows : — " Prior to the Act of 1879, there was no appeal in criminal cases, except on certificate of opposition of opinion, yet the country got along very well for a century under that sj'stem. Under the newly adopted system, since it costs the convicted party nothing to litigate, the government paying all the expenses on both sides, and often appointing counsel for the impecunious, no convict is likely to be hanged, or find his way into the penitentiary, till he gets to the end of the law at Washington." United Stales v. Sutton, i7 Fed. Eep. 129.] APPEALS FROM FEDERAL COURTS. 69 which go up by appeal, — the Supreme Court, if it has jurisdiction under any one of the foregoing clauses, reviews decisions of the inferior Federal Courts upon matters of fact as well as of law/ It is to be observed also that the limitation men- tioned in clause (a) does not apply to the other clauses. Consequently, in all cases except those of jurisdic- tion, the Supreme Court may review not only the Federal question involved, but also any other ques- tion in the cause which can be brought before it by writ of error or appeal, as the case may be.^ The questions of jurisdiction intended by this clause (a) are of course questions arising under the statute : a question as to whether the court below had legal or equitable jurisdiction of a particular matter does not come within this clause.^ A certi- ficate, from the court below, as to the question of jurisdiction involved, has been held by the Supreme Court to be indispensable. They said : " A certifi- cate ... is explicitly and in terms required. . . . The narrowness of range in the particular instance can make no difference in the application of the principle."* This rule, however, has been modified by subsequent decisions ; and " it is sufficient if there is a plain declaration that the single matter ^vhich is by the record sent up to this court for de- cision is a question of jurisdiction, and the precise 1 [See Dower v. Richards, 151 U. S. 658.] 2 [See Chappell v. United States, 160 U. S. 499.] 3 [Smith V. McKaji, 16 Supr. Ct. Rep. 490.] * [Matjnard v. Hecht, 151 U. S. 324. And the certificate must be granted at the same term during which the judgment or decree complained of was made : Colvin v. Jacksoncilie, 158 U. S. 456 ] 70 JUKISDICTION, PRACTICE, AND JURISPRUDENCE. question clearly, fully, and separately stated. No mere suggestion that the jurisdiction of the court was in issue will answer. This court will not of itself search, nor follow counsel in their search of the record, to ascertain whether the judgment of the trial court did or did not turn on some question of jurisdiction. " ^ Suppose, however, that you desire to appeal from the Circuit or the District Court, as the case may be, both on the question of jurisdiction, and also on the merits of the case ; and suppose further that the case is one which, on its merits, is made appeal- able, not to the Supreme Court, but to the Circuit Court of Appeals. In such a contingency can you first take your writ of error to the Supreme Court, on the question of jurisdiction, and then, if that be decided against you, have the case tried on its merits afterward in the lower court; or, supposing that the case has been decided against you in the lower court, can you then take your writ of error to the Supreme Court on the question of jurisdic- tion, and your writ of error (or appeal) to the Cir- cuit Court of Appeals on the merits of the case, so as to have an appeal pending at the same time in each court ? The Supreme Court have answered both of these questions in the negative. They say: "The writ of error or the appeal may be taken only after final judgment. When that judgment is rendeied, the party against whom it is rendered must elect 1 [See Chappell v. United States, 160 U. S. 499, where the cases are reviewed. The most receut case is Davis v. Geissler, 162 U. S. 290.] APPEALS FROM FEDERAL COURTS. 71 whether he will take his writ of error or appeal to the Supreme Court upon the question of jurisdiction alone, or to the Circuit Court of Appeals upon the whole case. "1 And in the latter event, the ques- tion of jurisdiction may be raised and decided in the Circuit Court of Appeals, along with the other questions involved, although the defendant might have carried it directly to the Supreme Court. ^ In a recent case,^ the Supreme Court sum up the law upon this subject as follows : " (1) If the juris- diction of the Circuit Court is in issue and decided in favor of the defendant, as that disposes of the case, the plaintiff should have the question certified . directly to this court. (2) If the jurisdiction is sustained, and then judgment or decree is ren- dered in favor of the defendant on the merits, the plaintiff . . . must appeal to the Circuit Court of Appeals, where, if the question of jurisdiction arises, that court may, in their discretion, certify it to the Supreme Court. (3) If the jurisdiction is sustained, and judgment on the merits is rendered in favor of the plaintiff, then the defendant can elect either to have the question of jurisdiction cer- tified directly to this court, or to carry the whole case to the Circuit Court of Appeals, where the question of jurisdiction can be decided, or whence it can be certified to the Supreme Court. (4) If in the last-mentioned case, the plaintiff complains of the judgment rendered in his favor, he may also carry the case on the merits to the Circuit Court of 1 \McLish V. Roff, 141 U. S. 661.] 2 [American Sugar Refining Co. v. Johnson, 60 Fed. Rep. 503.J 8 [United States v. Jahn, 155 U S. 109.] 72 JURISDICTION, PRACTICE, AND JURISPRUDENCE. Appeals, and this he may do by way of cross appeal or writ of error, if the defendant has taken the case there ; or independently, if the defendant has carried the case to the Supreme Court on the question of jurisdiction alone, and in this instance the Circuit Court of Appeals will suspend a decision upon the merits until the question of jurisdiction has been determined. (5) The same observations are appli- cable where a plaintiff objects to the jurisdiction, and is, or both parties are, dissatisfied with the judgment on the merits." The clause {h) requires no comment, and as to clause (c) it need be said only that an " infamous " crime means one punishable (not necessarily pun- ished 1) by imprisonment in a State prison or peni- tentiary, with or without "hard labor." A crime punishable by fine only or by imprisonment in a county jail or house of correction is not an "in- famous" crime. ^ It must be remembered that the jurisdiction of the Supreme Court in criminal cases is exercised only by a writ of error, not by appeal, and conse- quently they have authority to pass only upon questions of law, not upon questions of fact raised in such cases. ^ As to clause (d) one remark only need be quoted. The Supreme Court have said: "The construction or application of the Constitution of the United States must be involved as controlling, although on appeal or error all other questions would be 1 [Stokes V. Uni'ted States, CO Fed. Rep. 597.] 2 [Th re Mills, l.'i.'j IT. S. 263-, Jones v. liubbins, 8 Gray, 329, 347.] 8 [In re Buchanan, 158 U. S. 31.] APPEALS FROM FEDERAL COURTS. 73 open to determination, if inquiry were not rendered unnecessary by the ruling on that arising under the Constitution,"! and the latter part of this remark, as we have seen, applies to all cases except those which involve a question of jurisdiction alone. ^ As to clause {e) it should be noticed that the appeal lies only when the constitutionality of a law of the United States is drawn in question ; it does not lie when the construction merely of such a law is involved. Jurisdiction exists under clause (/), "If in a given suit, the ultimate question involved is whether a State statute is void, either because it impairs rights that are guaranteed by the Federal Constitution or because the legislature of a State has assumed to exercise powers that have been surrendered to the general government. " " This clause, it need hardly be said, does not cover those cases where the statute of a State is alleged to violate the Constitution of that State. One general remark should be made here. The Federal question which gives to the Supreme Court jurisdiction must appear at the outset from the pleadings. It is not sufficient that such a question arises in the course of the litigation.* And now as to cases appealable not to the Su- preme Court, but to the Circuit Courts of Appeal. Section 6 of the statute runs as follows: "The Circuit Courts of Appeal established by this Act 1 [Careii v. Houston S,- Texas Central Ri/., 150 U. S. 170, 181.] 2 [Horner v. United States, 143 U. S. 570, 577.] 8 [Hastings v. Ames, 68 Fed. Rep. 726.] * [Bnrgmeyer v. Idler, 159 U. S. 408.] 74 JURISDICTION, PRACTICE, AND JURISPRUDENCE. shall exercise appellate jurisdiction^ to review by appeal or by writ of error final decision'^ in the District Court and the existing Circuit Courts in all cases other than those provided for in the preceding section of this act [which is the one, already stated, dealing with the Supreme Court], unless otherwise provided by law, and the judgments or decrees of the Circuit Courts of Appeal shall be final in all cases in which the jurisdiction is dependent entirely upon the opposite parties to the suit or controversy being aliens and citizens of the United States or citizens of different States ; also in all cases aris- ing under the patent laws, under the revenue laws, and under the criminal laws, and in admiralty ^ cases; excepting that in every such subject within its appellate jurisdiction, the Circuit Court of Appeals at any time may certify to the Supreme Court of the United States any questions or proposi- tions of law concerning which it desires the instruc- tion of that court for its proper decision. And thereupon the Supreme Court may either give its instruction on the questions and propositions certi- fied to it, which shall be binding upon the Circuit Courts of Appeals [sic] in such cases, or it may require that the whole record and cause may be sent up to it for its consideration, and thereupon shall decide the whole matter in controversy in the ' [There is no money limit to the jurisdiction of the Circuit Court of Appeals. Northern Pacific Ri/. Co. v. Arnafo, 49 Fed. Rep. 8S1.] 2 [As to what is a final decision, .see Central Trust Co. of New York V. Marietta, /. Co., 65 Fed. Rep. 817.] 2 [Dennistoitn v. Draper, 5 Blatch. 336.] 8 [Manlei/ v. OlncT/, 32 Fed. Rep. 708.] 188 JURISDICTION, PRACTICE, AND JURISPRUDENCE. essary parties are joined as defendants.^ Other- wise, it is doubtful if a single defendant can remove a suit even when the other defendants have de- faulted. ^ He certainly cannot do so when the time within which the other defendants must petition for removal has expired.^ A purchaser pendente lite has no greater right of removal than his vendor had.* A merely colorable assignment does not confer the right to remove; but the Circuit Court cannot take jurisdiction of a case when a colorable assignment has been made expressly to prevent removal.^ A conditional application for removal has no legal effect.^ The removal is to the Circuit Court for that district where the suit is pending, although it may have originated in a different dis- trict.'^ Attachments of property, bonds of indem- nity, and writs of injunction are not dissolved by removal.^ As to waiver of the right to remove, see Amy V. Mammiy^ and the American and English Encyclopajdia of Law, vol. 20, p. 1010. I now proceed to state the substance of the Removal Acts which are at present in force, namely, 1 [See Infra, p. 194.] 2 [Sinclair v. Pierce, 50 Fed. Rep. 851 ; Putnam v. Ingraham, 114 U. S. 57.] 3 [lloqcrs V. VanNortwick, 45 Fed. Rep. 513.] 4 [Jefferson v. Driver, 117 U. S. 272 ] 5 [Odkleij V. Goodnow, 118 U. S. 43. This case was decided under sect. 5 of the act of March 3, 1875; aud that section, excejjting the ])art giving an appeal to the Supreme Court, was expressly saved by the present act.] c [Manninc] v. Amy, 140 U. S. 137.] 7 [I less V. Reynolds, 113 U. S. 73.] 8 [Revised Statutes, 646.] " [144 Mass. 153.] THE REMOVAL OF SUITS. 189 the Act of 1887-1888 (25 Stat. 433), and Revised Statutes, sects. 641, 642, 643. The Act of 1887- 1888 provides as follows: — Removal may be had of civil suits at law or in equity, which might have been begun in the Circuit Court, ^ in the following cases : — • (a) Where the case arises under the Constitution, laws, or treaties of the United States, and more than $2000, exclusive of interest and costs, are involved. The defendant only may remove. {b) Where the suit is between citizens of different States, and more than $2000, as aforesaid, are involved. The defendant, if a non-resident ^ of the State, may remove. (c) Where the suit is between citizens of a State and foreign states, citizens, or subjects, and more than '$2000, as aforesaid, are involved. The defend- ant, if a non-resident, may remove. (fZ) Where the United States are plaintiffs or petitioners. The defendant, if a non-resident, may remove without regard to the amount involved. (e) Where the suit is between citizens of the same State claiming lands under grants of different States, and more than $2000, as aforesaid, are involved. The plaintiff or defendant may remove.^ 1 [Reed v. Reed, 31 Fed. Rep. 49.] 2 [Martin v. Snyder, 148 U. S. 663.] 3 [The statute, in this case, provides that " any one or more of tH'e plaintiffs or defendants, before the trial " may advise the court " that he or they claim and shall rely upon a right or title to the laud, under a grant from a [particular] State," producing tlie grant or a copy thereof, " except where the loss of public records prevents its pro- duction." Thereupon lie or they may move " that auy one or more of the adverse parties inform the court wliether he or they claim a right or title to the land, under a grant from some other State. If 190 JURISDICTION, PRACTICE, AND JURISPRUDENCE. (/) Where a suit, involving more than -$2000,^ exclusive of interest and costs, is brought in a State court, by a citizen of that State, against a defendant who is neither a citizen of nor a resident in that State, such defendant may remove the suit "at any time before the trial thereof," if he can make it appear to the Circuit Court that owing to local influence or prejudice he cannot obtain justice in the State court in which the cause is pending, or to wliich it may he removed for trial under the laws of the State, by reason of such prejudice or local influence. 2 "Provided, that if it further appear that said suit can be fully and justly determined as to the other defendants in the State court, without being affected by such prejudice or local influence, and that no party to the suit will be prejudiced by a separation of the parties, said Circuit Court may direct the suit to be remanded, so far as relates to 'J the party so called upon gives information " that he or they do claim under such grant from some other State, any one or more of the parties moving for such information may then on petition and bond (as described in sec. 32) remove the cause to the Circuit Court of the United States next to be holden in such district." 25 Stat. 435, chap. 866, sect. 3.] 1 [The statute is obscure upon this point, and it was held at first, in some circuits, that the money limit did not apply to " local influence" cases. Tlie Supreme Court, however, have decided other- wise. See In re Pennsi/Ivania Co., 137 U. S. 451.] 2 [The sentence italicized contains a provision which was not found in the Act of 1867. It merely requires the defendant to make it appear to the Circuit Court, when the laws of the State provide for a change of venue from one county to another, that local preju- dice or influence would operate against him in any other State court tliat might be open to him, as well as in that where tlic suit is pend- ing. See Rike v. Flojd, 42 Fed. Rep. 247.] THE KEMOVAL OF SUITS. 191 such other defendants, to the State court, to be pro- ceeded with therein." The statute then provides that after a case has thus been removed, the Circuit Court shall, upon application of the other party, examine into the facts alleged in the affidavit for removal, and if it finds that the alleged prejudice or local influence does not exist, it shall remand the case to the State court whence it was removed, and from the decision so remanding there shall be no appeal. Many decisions have been made upon the con- struction of this part of the statute, the more impor- tant of which will be stated presently. There is one more class of cases made removable, namely, those which contain a "separable controversy," — which were first provided for by the Act of 1866. As to these the statute runs as follows : — "And when in any suit mentioned in this section [i. e., any of the suits made removable by the statute] there shall be a controversy which is wholly between citizens of different States, and which can be fully determined as between them, then either one or more of the defendants actually interested in such controversy may remove said suit into the Circuit Court of the United States for the proper district. " ^ Under this head the plaintiff cannot remove. There is a difference of opinion as to whether the defendant must be a non-resident in order to have 1 [The language of this section is precisely the same that it was in the Act of 1875, except that by that Act the right of removal was given to plaintiffs, as well as to defendants. So far as defendants are concerned, therefore, all decisions made under the Act of 1875 as to Separable Controversies, apply also to the present law.] 192 JURISDICTION, PEACTICE, AND JUPJSPRUDENCE. the right of removing a separable controversy.^ An alien defendant cannot remove under this clause.^ A suit removable on this ground is defmed by Judge Thayer as one " in which there are two or more controversies or causes of action capable of separa- tion into two or more independent suits, one of which controversies is ' wholly between citizens of different States. ' " ^ A separable controversy, it must be remembered, is not removable simply because it is separable. The statute provides only that a controversy which would under the statute be removable by defendants A. B., and not by their co-defendants C. D., may still be removed by A. B., provided that it can be separated, and can fully be determined against A. B. without the presence of C. D. But a further question arises, Does the "separa- tion " refer to the subject-matter or only to the parties ? Must there be, in effect, two causes of action, or may a single controversy be separated, so far as the defendants are concerned, and removed by the non-resident defendants ? A single controversy is certainly not removable according to the definition just quoted, or according to the opinion of the Su- preme Court upon which that definition is founded. So in Bellaire v. Baltimore ^ Ohio R. R.,^ the pro- 1 [Thurber v. Miller, 67 Fed. Rep. 371, holds that he must be. Contra, Stanhrough v. Cool; 38 Fed. Rep. 369.] '^ ^Merchants Cotton Pr-ess ^^ Storage Co. v. Insurance Co. of North America, 151 U. S. 368, 385.] 3 [See also Fraser v. Jenntson, 106 U. S. 191 ; Torrence v. Shedd, 144 U. S. 527; TF//.sow v. Osivcgo Township, 151 U. S. 56, 66; Mer- chants^ Cotton Press pll v. Citi/ of Ilnrerhill, 1.5.5 U. S. 610. The Circuit Courts were divided about equally upon this question.] 230 JURISDICTION, PRACTICE, AND JURISPRUDENCE. reason of the statute of frauds, or if the question be of any other character, with some exceptions, to which I shall presently ask your attention, the inquiry is. What is the law of the State? and that law is to be administered in trials at com- mon law in the Circuit Courts of the United States. It is to be observed, however, that this has reference only to civil cases; it has no applica- tion to criminal trials. It is for the government of rights between party and party, in civil cases, in trials at the common law, that this section was made. Now, the first inquiry which would be found to arise in practice is. Who is to determine what is the law of the State ? A question arises upon the construction of the statute of a State, or upon a rule of practice in a State, or upon a commercial contract made in a State, or in a great variety of other cases; who is to decide ultimately what is the law of the State upon that particular question arising in that case ? Well, you would naturally say the Supreme Court of the State, which has been intrusted by the constitution of the State with the ultimate decision of such questions, should be the tribunal to decide ultimately what the law of the State is upon any particular question; and that is in general true. The question being what the law of the State is which is to be administered in a particular case, if there can be found in the deci- sions of the highest court of that State, intrusted with the construction of its statutes and the inter- pretation and application of its common law, a well-settled rule, in general that is to be deemed PROCEDURE AND PRACTICE. 231 the law of that State. ^ But then it has been found, or supposed to be found, that on some subjects there has been such unsteadiness in the decisions of the State courts that the Supreme Court of the United States have been forced to adopt certain views in regard to the decisions of the highest courts of the State, when they come to be applied in the courts of the United States, to ascertain what the State law is ; and therefore it cannot be said to be a universal rule, that, because a question has been settled by the Supreme Court of a State, the decision will be adopted by the courts of the United States ; and I now propose to indicate to you the different classes of cases in which it is understood that the decisions of the State courts are final and binding upon the courts of the United States concerning what is the law of the States, and those in which they have not been considered to be final and binding. In the first place let me refer you to the case of Webster v. Cooper, 14 Howard, 488, 504, in which it is said : — "The thirty-fourth section of the Judiciary Act, as well as the rule of general jurisprudence as to the operation of the lex loci upon titles to land [that is the subject of inquiry here], requires us to determine this case according to the law of the State of Maine. In ascertaining what that law is, this court looks to the decisions of the highest court of that State ; and where the question turns 1 [Even in matters of local law, where there is no statute concerned, the Federal courts will follow the decisions of the State Courts. See Detroit v. Osborne, 135 U. S. 492, — an extreme case.] 232 JURISDICTION, PRACTICE, AND JURISPRUDENCE. upon the construction to be given to the constitu- tion of the State, and we find a construction made by the highest State court very soon after the con- stitution was formed, acquiesced in by the people of the State for nearly thirty years, and repeatedly confirmed by subsequent judicial decisions of that court, we cannot hesitate to adopt it and apply it to this case, to which, in our judgment, it is justly applicable. . . . The question has usually been concerning the construction of a statute of a State ; but we think there is no sound distinction between the construction of a law enacted by the legislature of a State, and the construction of the organic law ordained by the people themselves. The exposition of both belongs to the judicial department of the government of the State, and its decision is final and binding upon all other departments of that government, and upon the people themselves until thev see fit to change their constitution; and this court receives such a settled construction as part of the fundamental law of the State, " This, as you perceive, is in reference both to the construction of State statutes and constitutional questions ; the one being enacted by the legislature and the other by the people. You will find occur- ring in the course of this passage which I have read to you a reference to a decison made by the Supreme Court of the United States, that in the exposition of State statutes and of the constitutions of the States, the Supreme Court of the United States follow the decisions of the highest courts of the State ; and the same rule has been applied by the Supreme Court to questions concerning land, — PROCEDURE AND PRACTICE. 233 real property in a State ; and if you will refer to the case of Jackson v. Chew, 12 Wheaton, 167, you will find the rule there stated, that whenever there is a well-considered decision by the Supreme Court of a State concerning title to lands, that will be received as the official and final exposition of the law of the State upon that question. The question in Jackson v. Chew was whether the statute of uses existed, and should be applied, in the State of New York, I think it was; and the highest courts of the State of New York having decided that the statute of uses did exist there, although not enacted, — existed as part of its common law derived from the statute of Henry the Eighth, brought over by those who settled the State, — that rule would be applied by the Supreme Court of the United States, just as it would be applied by the Supreme Court of New York if the same question arose there. ^ We now come to a different class of cases, and the first of them is, cases which turn upon ques- tions of commercial law and general jurisprudence. You can easily perceive the distinction between this class of cases, — the exposition of the statutes and of the constitution of a State, and the decisions 1 On this class of questions, where the construction of State stat- utes affecting the title to lands is to be ascertained, the Supreme Court of the United States follows the last decision of the Supreme Court of the State. Toivnsend v. Todd, 91 U. S. 452. But in any case, there must be a real and direct construction of a State statute by the State court. If the decision of the State court was made upon general principles, and is not a declaration that the statute so declares the law, the Supreme Court of the United States will follow its own construction of the law. Town of Venice v. Murdoch, 92 U. S. 494. — See Note at the end of this Lecture, on the Existence of State Statutes. 234 JURISDICTION, PKACTICE, AND JURISPRUDENCE. of the highest court of a State concerning the rules of real property in the State, and questions of com- mercial law and general jurisprudence ;i and on these questions the courts of the United States do not hold themselves bound by the decisions of the courts of the States, where they are trying cases that do not belong any more to the jurisprudence of that particular State than they do to the jurispru- dence of any other State. They are questions which belong to the general law of all States and of the commercial world, and therefore the Supreme Court of the United States holds itself to be compe- tent to decide these questions as it conceives they are required by principle to be decided. As a statement of this view I will refer you to a short passage found in the case of the G-loucester Insurance Co. v. Younger., 2 Curtis's Circuit Court R. 322, as a convenient mode of turning your at- tention to the authorities on that subject: " This being a question not of mere local muni- cipal law, but arising under the law merchant, though this court must consider with unaffected respect the decisions of that court [that is, the Supreme Court of Massachusetts] on this question, yet they are not binding on our judgments, and we have no right to conform to them when we believe they do not announce the true rule. This is the settled doctrine of the Supreme Court of the United 1 [Balkam v. Woodstock Iron Co., 154 U. S. 177; Bamberger v. Schoolfield, 160 U. S. 149. In a case which arose in Massachusetts it was not easy to deterniiue whether the question at issue really depended upon a certain local statute, or upon a general principle of common law. Bucher v. Cheshire R. R. Co., 125 U. S. 555.] PEOCEDUEE AND PEACTICE. 235 States, and has been frequently applied in this court," — and then the decisions are cited, and are brought into convenient proximity, so that you can turn to them if you wish. This doctrine was first annouced authoritatively and explained in the case of Swift V. Tyson, 16 Peters, 1; but it is stated with sufficient distinctness in the passage which I have read to you from 2 Curtis's Circuit Courts Reports. ^ There is another subject upon which the Supreme Court of the United States does not hold itself bound, and of course the Circuit Courts of the United States also, by the decisions of the State courts. You are aware that, under the Constitu- tion of the United States, a State is prohibited from passing any law which impairs the obligation of a contract. Now the question whether there is a contract or not is a question arising under the 1 [See also Liverpool Steam Co. v. Phenix Insurance Co., 129 U. S. 397, 443 ; Baltimore c^- Ohio R. R. Co. v. Bamjh, 149 U. S. 368 ; Phipps V. Harding, 70 Fed. Rep. 468. But when the common law upon any given subject has been changed by a State statute, the Federal courts in that State are, as a rule, bound to follow the sta- tute. Thus in a Michigan case involving the question whether the employees of a certain railroad had been negligent in giving notice of an approaching train, there was a State statute which prescribed how such notice should be given, and in construing it the Supreme Court said : " If the construction of this statute by the Michigan courts be as claimed [sic] by the defendants, of course this court would feel constrained to adopt the same construction, even if we thought it in conflict with fundamental principles of the law of neg- ligence." Gra,id Trunk Ry. Co. v. Ires, 144 U. S. 408, 422. See also Northern Pacific R. R. Co. v. Horjan, 63 Fed. Rep. 102. So a State statute of frauds, even as applied to commercial instruments, such as promissory notes, is a rule of decision in the Federal courts. Moses V. Laurence County Bank, 149 U. S. 298. See also Second National Bank of Aurora v. Basuier, 65 Fed. Rep. 58.] 236 JURISDICTION, PRACTICE, AND JURISPRUDENCE. laws of the State where the contract is supposed to have been made ; and if the State courts were authorized to decide that question finally, you will readily see that this power of revision which resides in the Supreme Court of the United States to deter- mine whether the State law has impaired the obli- gation of a contract would be of very little utility, because it would be only for the State court to decide there was no contract, and that would be an end to the question. Therefore it has been held by the Supreme Court of the United States, that the question whether there is a contract is a ques- tion for them finally to decide ; and the decision of a State court, that upon the facts and upon the law of the State there was no contract, is not binding upon the Supreme Court of the United States. This is the doctrine of the court announced in the case of Ohio Life and Trust Company v. Debolt, 16 Howard, 432. I have not the book before me, but you will find by looking at the passage that the Chief Justice who gave that opinion says that it is the duty of the Supreme Court, in the first place, to determine whether there was a contract, and, second, to decide whether the law of the State com- plained of violated the obligation of that contract. Another class of cases in which the decisions of the State courts have been held not to be final has arisen out of changes in their decisions ; and per- haps I can make that plain to you better by stating a particular case in which the question arose, and concerning which there has been a great deal of litigation, which has finally resulted in the settle- ment of the principle which I will announce. The PEOCEDURE AND PRACTICE. 237 State of Iowa authorized its municipal bodies, its cities and its counties, to issue bonds to aid m the construction of railroads. The bonds were issued and sold in the market, were taken in good faith by those who had occasion to invest capital, or who were induced by other reasons to take the bonds, and the question arose whether that was a constitu- tional act, authorizing those municipal bodies to issue these bonds. It was held by the Supreme Court of the State that it was a constitutional act. Thereupon the sale of the bonds proceeded, and, under the authority of this decision, confiding in its soundness, very large amounts of these bonds were issued. They finally became very burdensome to the people of Iowa and those communities that had issued them, and there was a great change in the popular sentiment of the State; and in conse- quence of that, their judges being elective, new judges were elected, and a different decision made, — that the legislature of the State had no constitu- tional power to authorize the cities and towns and counties to issue those bonds. The question came before the Supreme Court of the United States, whether the bonds were valid, and these more recent decisions were relied upon to show that, by the law of Iowa, the legislature had no constitu- tional right to authorize these corporations to issue the bonds. The court, however, decided that, inas- much as at the time when the bonds were issued there was a decision of the highest court of that State that this constitutional authority did exist, no subsequent decision could affect the validity of those bonds, and therefore they must be held to be 238 JUKISDICTION, PRACTICE, AND JURISPEUDENCE. valid. This decision you will find in the case of Gelpcke v. Dubuque, reported in 1 Wallace, 175. Perhaps I may profitably read to you a short pas- sage which states the doctrine upon which the court finally settled, and to which they have ever since adhered, under great opposition, for the interests involved were so large and so important that the subject has frequently been brought before the court; and the doctrine which I will read to you is what the court has ever since adhered to, and what I suppose to be now the law. The judge who delivered the opinion, Mr. Justice Swayne, says : — " The late case in Iowa, and two other cases of a kindred character, also overruling earlier adjudica- tions, stand out, as far as we are advised, in unen- viable solitude and notoriety. . . . However we may regard the late case in Iowa as affecting the future, it can have no effect upon the past. " Now he comes to what the true rule is : — " The sound and true rule is, that if the contract, when made, was valid by the laws of the State, as then expounded by all departments of the govern- ment, and administered in its courts of justice, its validity and obligation cannot be impaired by any subsequent action of legislation or decision of its courts altering the construction of the law. The same principle applies where there is a change of judicial decisions as to the constitutional power of the legislature to enact the law. To this rule, thus enlarged, we adhere ; it rests upon the plainest principles of justice. It is the law of this court. To hold otherwise would be as unjust as to hold PKOCEDURE AND PRACTICE. 239 that rights acquired under statute may be lost by its repeal. The rule embraces this case. " ^ There is an earlier case which was the foundation of this one, — the same I referred to under the other head, — reported in 16 Howard, 432,2 where there is an opinion delivered by Chief Justice Taney, which states with great clearness the ground upon which the Supreme Court is obliged to disre- gard this change of decision in the State courts in regard to State statutes or State constitutions, when it affects the obligation of contracts made under the faith of a different interpretation by the courts of the State at the time when the contract was entered into. I believe that is all, gentlemen, which I need say upon the subject of the sources of jurisprudence. To decide cases at law in the courts of the United States, — civil cases, — you go to the law of the State, just as you would if you were to try the case 1 [In Burgess v. Selir/mnn, 107 D. S. 20, 33, the court said: " When contracts and transactions have been entered into and rights have accrued thereon under a particular state of the decisions, or ■when there has been no decision of the State tribunals, the Federal Courts properly claim the right to adopt their own interpretation of the law applicable to the case, although a different interpretation may be adopted by the State Courts after such rights have accrued. But even in such cases, for tlie sake of harmony, and to avoid con- fusion, the Federal Courts will lean towards an agreement of views with the State Courts if the question seems to them balanced with doubt." In this case the Supreme Court sustained the construction of a State statute made by the Circuit Court in that State, in spite of a contrary decision made by the State court after the decision of the Circuit Court, but bef(ire argument in the United States Supreme Court. See also Knox County v. Ninth Xotiotml Bank, 147 U. S. 91, 99 ; Forsi/th v. City of Hammond, 71 Fed. Rep. 443.] 2 [Ohio Life and Trust Co. v. Debolt.] 240 JURISDICTION, PRACTICE, AND JURISPRUDENCE. in the highest court of that State ; and, except in the class of cases to which I have adverted, — that is, commercial cases, and cases depending upon general jurisprudence, and questions concerning contracts, their existence, their validity, and ques- tions concerning the authority to make contracts, arisino; out of the constitution or laws of the State changing after the contracts were made, — with these exceptions, I think, you may take it to be true, if you can arrive at the law of the State as it would be administered in its own tribunals, you arrive at the same time at the law which would be administered in the trials of civil cases at common law in the courts of the United States.^ But it is very much otherwise when you come to the administration of equity law. The eleventh section of the Judiciary Act confers upon the courts of the United States jurisdiction to try all suits of a civil nature at common law or in equity. ^ In other words, it confers upon the Circuit Courts of the United States a general equity jurisdiction; and the same inquiry arises here as in reference to the common-law suits. Whence are the courts of the United States to derive their rules of decision ? The thirty-fifth section, which I have read. to you, applies to trials at common law only ; it has no reference to equity proceedings. Now, whence are the Circuit Courts, in the administration of this general equity jurisprudence, to derive their rules of decision ? The answer is, they are to derive 1 [Rice V. Adkr-Goldman Commission Co., 71 Fed. Eep. 151. See 2 Foster's Federal rractice, p. 776.] 2 lie-enacted iu § 629 of the Revised Statutes. PKOCEDURE AND PRACTICE. 241 them fora the equity law of England. At the time when the Constitution was formed, this dis- tinction between law and equity, as known in the country from which our ancestors came, was recog- nized by the Constitution; and the courts of the United States have uniformly held that the rules of decision in equity cases were the same in all the States, and they are the equity law which we derive from England. In the case of Neves v. Scott, 13 Howard, 272, there is a passage which I will read to you (and the authorities are there cited also) which expresses this doctrine. The counsel for one of the parties, in arguing this case, produced a decision of the Supreme Court of the State of Georgia, made between the same parties concerning the same subject-matter, but which was not binding as a bar, and could not be pleaded as a bar, for technical reasons, which it is unnecessary to advert to now ; and they insisted — the question arose between citizens of the State of Georgia and citizens of some other State, and the contract in question, a marriage contract, was made in Georgia — that the decision of the highest court of that State was binding as a precedent ; but the Supreme Court decided otherwise. They first state the nature of the questions, and show that the ques- tions were questions of trust, — of the extent and nature of the trust declared by the marriage settle- ment, — and that they belonged to general juris- prudence, and not to the law of Georgia any more than to the law of England or any other State ; and then they proceed in this way : — "Such being the nature of the questions, we do 16 242 JURISDICTION, PEACTICE, AND JUKISPEUDENCE. not consider this court bound by the decision of the Supreme Court of Georgia. The Constitution pro- vides that the judicial power of the United States shall extend to all cases in equity arising between citizens of different States. Congress has duly conferred this power upon all Circuit Courts, and, among others, upon that of the District of Georgia in which this bill was filed, and the same power is granted by the Constitution to this court as an appellate tribunal. " Now comes the principle which it is desirable you should bear in mind: — "Wherever a case in equity may arise and be determined under the judicial power of the United States, the same principles of equity must be applied to it, and it is for the courts of the United States, and for this court in the last resort, to decide what those principles are, and to apply such of them to each particular case as they may find justly applicable thereto. These principles may make part of the law of a State, or they may have been modified by its legislation or usages; or they may never have existed in its jurisprudence. Instances of each kind may now be found in the several States. But in all the States the equity law recognized by the Constitution and by acts of Congress, and modi- fied by the latter, is administered by the courts of the United States, and, upon appeal, by this court." That is, it is one uniform system throughout the whole United States, — the same in Massachusetts as in Georgia or California; and, in general, the sources of that law are to be found, first, in the decisions of the Supreme Court of the United PROCEDUEE AND PEACTICE. 243 States ; second, in the decisions of the Circuit Courts as reported in the reports of the Circuit Courts; and lastly, and perhaps I ought to say mainly, in the equity law of England, to which, as you know, you have constant reference in studying this subject; and whatever may have been the modifications made of the English equity law in the different States by statute or by custom, they have no effect in the courts of the United States. Another department of jurisdiction, as you know, is the admiralty law. It is administered on appeal in the Circuit Courts ^ of the United States, but not by any original jurisdiction except to some small extent, — nothing sufficient to be noticed. In some things arising out of the slave-trade they have an original jurisdiction, but it is of no importance in practice. The original jurisdiction in admiralty cases may be said to be exclusively in the District Court of the United States; and therefore it is, when I come to speak of that court, that I shall speak of the admiralty jurisprudence and practice and methods of pleading. I might say here in passing, however, that the jurisprudence which is administered both in the District Court, and on appeal in the Circuit Court [of Appeals], is the maritime law of the world. It is not any particular municipal system of law. Of course, it has been modified to some extent by statutes of Congress, which I shall notice when I come to discuss that part of the subject, but the modifications are com- paratively unimportant, and affect but a small part of the subject. 1 [The appeal lies now to the new Circuit Court of Appeals.] 244 JURISDICTION, PRACTICE, AND JURISPRUDENCE. Besides having the necessary rules of decision, which are commonly termed the jurisprudence, of the court, the court must have rules of pleading and practice in order to bring the subjects of the different suits regularly before the court in a manner to be dealt with and disposed of conven- iently and with sufficient certainty. Now, to follow out the same division which I have already indi- cated, and which is a natural and necessary division, we will begin with the practice and mode of plead- ing at law; and upon that, before the 1st of June, 1872, it might have been — I suppose would have been — necessary for me to say not a little. But by this Act of the 1st of June, 1872, in its fifth section, Congress has remitted this whole subject to the laws of the States ; so that all I can say upon that matter is, that under this Act of the 1st of June, 1872, which is found in 17 Statutes at Large, 197, you must learn what the practice and pleading and the mode of proceeding in the State courts are, and then, according to this law, if it should remain in force, you will know the laws that are applicable in suits in the United States courts. The reason why I intimate a doubt whether this law will be allowed to stand is, that the practice, pleading, and the forms and modes of proceeding in the State courts, in other than equity and admiralty causes, — for it applies only to the common law, ^ are really not adapted to the courts of the United States. For instance, in the State of Massachusetts we have departed as little from the old modes of proceeding at the common law, both in pleading and practice, as in any State, with some few excep- PROCEDURE AND PRACTICE. 245 tious, where they still retain the common-law modes of proceeding, and far less than they have in most of the States. When a case goes up from the Superior Court in Massachusetts to the Supreme Court, it goes up on the question of a new trial. It does not go on a technical writ of error. The necessities of the two modes of proceeding are totally different; and therefore, in my judgment, even the Massachusetts system would throw things into confusion if it should be applied to carrying cases from a Circuit Court to the Supreme Court of the United States.^ In some of the other States there is very much more looseness of proceeding, and the difficulties arising out of that looseness would be found, I think, to be insuperable. There is another difficulty in this law, and that is, it says, "the practice, pleadings, and forms and modes of proceeding, in other than equity and admiralty causes, in the Circuit and District Courts of the United States, shall conform as near as may be to the practice, pleadings, and forms and modes of proceeding existing at the time in like causes in the courts of record of the State. " "Existing at the time." So that if the legisla- ture of a State should alter, after the 1st of June, 1872, its own forms and modes of proceeding and practice and pleading, according to this law that 1 [It is held that the Federal Courts are not bound by State stat- utes in regard to pleading, the effect of -which would be to enlarge or restrict the jurisdiction of the Federal Courts. Mexican Central Railway v. Pinkney, 149 U. S. 194; Holt v. Berc/evin, 60 Fed. Eep. 1. So also State statutes permitting equitable defences to actions at law are not followed. Scott v. Armstrong, 146 U. S. 499, .512 J 24.6 JUEISUICTION, PRACTICE, AND JUEISPEUDENCE. would go into effect in the courts of the United States, whatever alterations the State legislatures might make. Now, the State legislatures have not, under the Constitution of the United States, any power to legislate respecting the practice, pleading, and modes of proceeding of the courts of the United States. They are entirely removed from their authority; and it is perfectly clear that Congress cannot confer on the legislatures of the States any authority to legislate for the United States courts. There is a case in 12 Howard, 361, ^ where that sul)ject came under the consideration of the Supreme Court, and it was held that Congress could not confer on a State legislature any power to make laws on a subject which was committed to Congress exclusively ; and it is committed to Congress to make laws for the practice of its own courts. That seems to me to he a great defect in this law. And that, and the practical difficulty which I have pointed out, I should think, would be likely to lead to a modification of it. The reason, I understand, why it was passed, — at least, the reason assigned by the gentleman who had most to do with its passage, — was, that the practice of the courts of the United States was a sealed book to all young- men, — to those who were trying to enter the pro- fession, and to do their duty in it. Well, as I stated to you at the commencement of these Lec- tures, that was true; and so are all other books sealed until they are opened. The only way is to open them, and find out what is in them. It is, in other words, an attempt to make things easy; 1 [The United States v. Reid.] PEOCEDURE AND PRACTICE. 247 but in making them easy, I think, great confusion will be likely to be introduced. ^ In reference to the practice in equity, the Act of August 23, 1842, found in 5 Statutes at Large, 517, authorizes the Supreme Court to make rules for the practice in equity. ^ Under that authority, a body of rules has been made by the Supreme Court, and the practice of the Circuit Court is conducted in conformity with those rules. And the ninetieth rule makes provision that, if the preceding rules are found insufficient to govern a particular case or question which arises, the • court will follow, as nearly as may be, the practice in the High Court of Chancery in England. So in looking into these rules, which are printed under the authority of the court, and are to be found in Mr. Phillips's recent book on the practice of the Supreme Court, ** if you 1 The fifth section of the Act of June 1, 1872, is re-enacted in § 914 of the Revised Statutes. [Tliis statute has been construed strictly. Thus it is held that the words " as near as may l)e " do not mean " as near as possible." Indianapolis, Sj-c. R. R. Co. v. Horst, 93 U. S. 291, 301 ; Osborne v. Citi/ of Detroit, 28 Fed. Rep. 38.5. It is held also that mere usage in matters of pleading in a State court, which is fixed neither by a State statute nor by a rule of tlie court, need not be followed in the Federal Courts. Osborne v. City nf Detroit, supra. The Federal Courts will construe for themselves State statutes in regard to pleading: tliey are not bound by decisions relating to them made by the State Courts. See Erstcin v. Rothschild, 22 Fed. Rep. 61, 64. Finally, motions for a new trial, and bills of exceptions are not " pleadings," and consequently are not included by the Statute. Alissonri Pacific Rij. Co. v. Chicago Sf Alton R. R. Co., 132 U. S. 191. See, generally, Union Pacijic Rt/. Co. v. Botsford, 141 U. S. 2.50, 256; Lincoln v. Power, 151 U. S. 436; Sviale v Mitchell, 143 U. S. 99.] 2 § 917 of the Revised Statutes repeats the provisions of the Act of August 23, 1842. ^ [The present rules will be found in Foster's Federal Practice, and in Desty's Federal Procedure ] 248 JUKISDICTION, PKACTICE, AND JURISPEUDENCE. should find a case which was not within them, you must resort to the practice of the High Court of Chancery in England which you will find exhibited in Mr. Daniell's book, and in other books on that subject. There are one or two points which I should like to call your attention to before the termination of this Lecture, which are of a special character, and which do not seem to fall under any general head. I think you will agree with me when I say that this whole subject is one which cannot be reduced to any scientific, or scarcely to any logical form. It is special, and depends, so to speak, upon many contingencies which grow out of the peculiar rela- tions of the State governments and the United States government. It is fragmentary and irregular in its character. I have endeavored, as well as I could, to reduce it to a logical form, but there are two or three special things which I ought to men- tion before quitting this part of the subject. There is an Act of March 8, 1865, found in 13 Statutes at Large, 501, § 4, which authorizes the judges to try the facts in a common-law case with the consent of the parties ; and this authority has been found to be of considerable importance in practice. ^ The seventeenth section of the Judiciary Act, 1 Statutes at Large, 83, authorizes the Circuit Courts of the United States to grant new trials where, according to the rules of the common law, they 1 This provision is continued by § 649 of the Revised Statutes. [Tt does not apply to trials in the District Court. Wear v. Mai/er, 6 Fe<\. Kep. 658.] PKOCEDURE AND PRACTICE. 249 should be granted. ^ But I ought to mention in connection with that, that the refusal of the Circuit Court to grant a new trial is no ground for a writ of error; because the application for a new trial is an appeal to the discretion of the court. A new trial may be granted or may be refused, not in accordance with the strict principles of law, but because the court finds, or is satisfied, that justice has or has not been done in the case ; whereas on a writ of error the court can decide only in conform- ity with strict principles of law. If the record shows they have been administered in the court below, then the judgment is to be affirmed ; if they have not been administered, the judgment is to be reversed ; although the court may be of opinion, perhaps, that strict justice was done, or was not done, in a particular case. In the one class of cases it is simply a question of strict law ; into the other an element of discretion enters, and therefore it is held there is no writ of error upon the refusal of a new trial, or for granting a new trial. The courts of the United States have no power to grant a motion for a nonsuit. Thev must submit every common-law case to a jury. But then that is rather a matter of form, because they have power, when the plaintiff has exhibited all his evidence, to receive a motion to instruct the jury that the evidence will not warrant the jury in finding a verdict in favor of the plaintiff; it being considered by the Supreme Court to be a question of law whether all the evidence exhibited will warrant the 1 Repeated in § 726 of the Revised Statutes. [See Ives v. Grand Trunk Ry. Co., 35 Fed. Rep. 176.] 250 JUKISDICTION, PKACTICE, AND JUEISPEUDENCE. jury in finding a verdict for the plaintiff, and if the judge gives or refuses that instruction, it is ground for a writ of error. But then it must be borne in mind, that if there is any evidence exhibited by tlie plaintiff which would or might, in the judg- ment of the jury, tend to support the claim of the plaintiff, — any evidence, no matter whether the judge would find that to be sufficient or not, — he must submit it to the jury ; so that the only case in which a judge can instruct a jury that the evidence exhibited does not warrant them in finding a ver- dict for the plaintiff is the same case where he would order a nonsuit. It is therefore merely a different mode of proceeding, arising out of some conception which the early judges had, that the Constitution having provided for a trial by jury in all cases at common law, the jury must somehow pass upon the question under such an instruction as I have spoken of; and if they find a verdict for the plaintiff contrary to the instruction, the judge is bound to set it aside, and he has power to set it aside. If the jury are found to be contumacious to that extent, the judge would take the matter into his own hands, and set the verdict aside, and order a new trial with the expectation of finding a jury that would be reasonable. You will find this subject discussed, and it is worth your while to look at the case, in 10 Wallace, 655.1 1 have referred you there to a dissenting opinion, but whether the dissent was right or wrong is of no consequence. The authorities that are there 1 Merchants' Bank v. State Bank, PROCEDURE AND PRACTICE. 251 cited upon this subject are unquestionably correct. If you look at page 655, you will find a collection by the judge of the authorities upon the question, what is meant by no evidence which would warrant a verdict, — whether a mere scintilla of evidence would warrant a verdict, or whether it must be something that a reasonable man could regard and be governed by. It often becomes a matter of great importance to stay an execution, as you may readily suppose. If a judgment has been obtained in a Circuit Court of the United States, the plaintiff has a right to an execution, and to obtain his money or his other satisfaction, whatever it may be; but if it is a case where there may be a writ of error or an appeal, then it is reasonable, and is provided for by law, that, on giving proper security, the plaintiff in error or the appellant shall be enabled to supersede that judgment temporarily, until the higher court can pass upon the question, and say whether it is correct or erroneous. This subject is provided for by the twenty-third section of the Judiciary Act, which provides that, within ten days after the judg- ment is rendered, the necessary steps should be taken to supersede the execution, and the principal step is to give security to prosecute the appeal or the writ of error, and to abide by the judgment of the court above. This time of ten days was enlarged by the Act of June 1, 1872, in its eleventh section, to sixty days ; so that now opportunity is given to the defendant or plaintiff, where there is a judgment against him, to stay the execution by giving the necessary security, and taking the other 252 JURISDICTION, PRACTICE, AND JURISPRUDENCE. necessary steps, at any time within sixty days of the rendition of the judgment. ^ THE EXISTENCE OF STATE STATUTES, WHEN DISPUTED. A QUESTION may arise in a court of the United States, and has arisen, whether a State statute, pleaded or cited as a law of the State, actually exists. This is a judicial question, to be determined by the court, without the intervention of a jury, although it may in form arise as a question of fact. Tiie question of the existence of a statute is, like the construction of an admitted statute, a question of what the law of the State is on a particular subject ; and the rule which is followed in the Supreme Court of the United Slates is to adopt tlie decision of the State court on the existence of tlie statute, when the State court has passed upon it. Thus, where the Constitu- tion of the State of Illinois made it necessary to the validity of a statute that the legislative journals should show that it was passed by a majority of all the members elect in each house of the General Assembly, and the Supreme Court of the State had held that under it a sup])Osed statute had never been constitutionally enacted, the Supreme Court of the United States held in conformity with the State decision. And it was also said that, if the State court had not passed upon the validity of the statute, it would have been the duty of a court of the United States to give the same construction and effect to the Constitution of Illinois, because, in the absence of a decision by the State court, the Federal Courts are bound to take judicial notice of the provisions of a State constitution. Town of South Ottawa v. Perkins, 94 U. S. 260. [So the decision of the highest court of a State as to the legality or illegality of an inferior State tribunal will be followed by the Federal Courts. Norton v. Shelbij Count ij, 118 U. S. 425, 439; Meriwether v. Muhlenhurg Count ij Court, 120 U. S. 354.] 1 See § 1007 of the Revised Statutes. [See also Kitchen v. Ran- dolph, 93 U. S. 86.] PKOCEDURE AND PRACTICE. 253 CHAPTER IX. PROCEDURE AND PRACTICE {continued). In the last Lecture, gentlemen, I brought before you, for consideration, the rules of law by which the courts of the United States are governed in exercising their jurisdiction upon certain subjects. I now advance to other subjects which it is neces- sary they should find rules of law to govern. And the first subject to which I ask your attention, under this head, is that of evidence. What are the rules of evidence which govern the Circuit Courts in trials either at law, or in equity, or admiralty? The original rule, so far as regards trials at law, was prescribed by that thirty-fourth section of the Judiciary Act to which I have had occasion several times to ask your attention, as follows : — "The laws of the several States, except where the Constitution, treaties, or statutes of the United States shall otherwise require or provide, shall be regarded as rules of decision in trials at common law in the courts of the United States, in cases where they apply." And it has been held, although it is not neces- sary for me to refer you to the decisions, — it has been held by the Supreme Court of the United 254 JURISDICTION, PRACTICE, AND JURISPRUDENCE. States, as well as repeatedly on the circuits, that this applied to, and included, rules of evidence, as well as other rules of decision ; so that, under this section, the laws of the States concerning evidence were the laws of the courts of the United States.^ And that remains true to this time, except so far as those rules of evidence, prescribed by State laws, have been modified by acts of Congress ; and to those acts of Congress, or what amounts to the same thing, to the rules made by the Supreme Court under the authority of acts of Congress, I will now ask your attention. The first question which arose was, whether these State laws apply in equity and admiralty, as well as in trials at common law. And it was held they did not ; and therefore the English rules of evidence in equity, and the rules in admiralty which are derived either from England or from a wider survey of admiralty law, were those which were practised on in equity and admiralty in the courts of the United States down to the time when Congress passed an act found in 12 Statutes at Large, 588. It is a short act, and I will read it. The date of it (and perhaps it would be well for you to observe the date) is the 16th of July, 1862. " The laws of the State in which the court shall be held shall be the rules of decision as to the com- petency of witnesses in the courts of the United States, in trials at common law [it was so before at common law], in equity, and admiralty." So that, by this statute, the same rules were to 1 Connecticut Mutual Life Insurance Co. v. Union Trust Co., 112 U. S. 250. PROCEDURE AND PRACTICE. 255 be applied in equity and admiralty as at the com- mon law, so far as regarded the competency of witnesses. But Congress apparently was not satisfied to have the laws of the State, as to the competency of wit- nesses, continue to be applied ; and therefore, in 13 Statutes at Large, 351, § 3, they passed another act which, curiously enough, you will find is a clause in an appropriation bill, and it has no con- nection whatever with what goes before or what comes after. It is a proviso to a section in an ap- propriation bill, in regard to the appropriation of the sum of one hundred thousand dollars for the trial and punishment of persons engaged in counterfeit- ing treasury notes ; '''■Provided^ That, in the courts of the United States, there shall be no exclusion of any witness on account of color, nor in civil actions because he is a party to, or interested in, the issue tried." That swept away, absolutely and entirely, all objections to witnesses, either because they had an interest in the subject, an interest in the question to be tried, or because they were parties to the suit. That was very hasty legislation, undoubtedly, as you might infer from the place where you find it; and Congress was obliged, afterwards, to modify it, which they did in the same book, 13 Statutes at Large, 533 : — "That the third section of an act, entitled ' An act making appropriations for sundry civil expenses of the government,' etc., be, and the same hereby is, amended by adding thereto the following pro- viso: Provided^ further, That in actions by or 256 JURISDICTION, PRACTICE, AND JURISPRUDENCE. against executors, administrators, or guardians, in which judgment may be rendered for or against them, neither party shall be allowed to testify against the other as to any transaction with, or statement by, the testator, intestate, or ward, unless called to testify thereto by the opposite party, or required to testify thereto by the court." This was intended to protect those who were in interest behind executors, administrators, or guar- dians from testimony given by surviving parties when the real opposing party was deceased, or when he was so removed from the controversy that he could not be expected to testify as a witness. And, therefore, it makes this very proper pro- vision: "That neither party shall be allowed to testify against the other as to any transaction with, or statement by, the testator, intestate, or ward, unless called to do so by the opposite party or required to do so by the court. " Precisely what is meant by being "required to do so by the court," it is difficult to see. There was a case^ in this Circuit before Mr. Justice Clifford and Judge Lowell, some years ago, of very great interest and magnitude, in which they held, that they would not make an order to examine a plaintiff in equity respecting any transactions with a deceased person, except in conformity to the laws of the State, — that they would follow these. And in that case they excluded the evidence ; and that exclusion was fatal to the plaintiff's claim, because she had no evidence, except her own, as to the material point 1 [Robinson v. ISlandell, 3 Cliff. 169. See also Eslava v. Mazange, 1 Woods, 623; Mitnnn v. Owens, 2 Dill. 475.] PROCEDURE AND PRACTICE. 257 involved in the case, which depended upon her con- versations and agreements with her deceased aunt. Whether that decision will be followed — whether the analogy between the State laws and the orders which the court may make in its discretion, if it has discretionary authority — is a subject on which I have no opinion. Now, that is the present state of the law as to the competency of witnesses. Parties in civil cases are competent in the courts of the United States, as witnesses, to every subject and on every topic in which they could be witnesses if they were disin- terested, except conversations and transactions with a deceased person, or with a ward who is repre- sented by a guardian. 1 The fifth section of the present Practice Act, which I have so frequently referred to, although it adopts the laws of the State as to practice, plead- ings, and forms and modes of proceeding, in other than equity and admiralty causes, in the Circuit and District Courts of the United States, has a proviso, " That nothing herein contained shall alter the rules of evidence, under the laws of the United States, and as practised in the courts thereof. " So that these acts of Congress, to which I have referred you, give the present law as to the competency of witnesses.^ 1 See § 858 of the Revised Statutes, in which the statutes above cited have been cousolidated. [For the construction of this section, see Life Insurance Co. v. Schaefer, 94 U. S. 457 ; Connecticut Mutual Life Insurance. Co. v. ZJyiion Trust Co., 112 IT. S. 255; Texas v. Chiles, 21 Wall. 488; Dravo v. Fabel, 25 Fed. Rep. 116; Witters v. Scmles, 28 Fed. Rep. 218.] 2 Section 5 of the Practice Act of 1872 is re-enacted in § 914 of the Revised Statutes, with tiie omission of the proviso. 17 253 JURISDICTION, PRACTICE, AND JURISPRUDENCE. It is material to observe what means are provided by Congress to compel witnesses to testify. In the Act of March 2, 1793, found in 1 Statutes at Large, 335, it is provided : — "Subpoenas for witnesses, who may be required to attend a court of the United States in any dis- trict thereof, may run into any other district ; pro- vided, that, in civil causes [it is limited, you perceive, to civil causes, — in criminal causes it may run anywhere], the witnesses living out of the district in which the court is holden do not live at a greater distance than one hundred miles from the place of holding the same."^ So that subpoenas are issued by the clerks of the Circuit and District Courts to compel witnesses to attend from any part of the district in which the court is held, and from any other district, provided the witness is not required to travel more than one hundred miles. ^ In other respects than those which I have noticed, you may consider that the laws of the State in respect to evidence govern in courts of the United States. There are some small differences in their practice, — so small that it is hardly worth while to notice them. There is one, however, of considerable impor- tance. Generally, in the practice of the State courts, it is admissible to cross-examine a witness 1 [Revised Statutes, § 876.] 2 [A witness who resides more than 100 miles from the place of trial, although within the district in which the court sits, cannot be brought in hy subpoena. Henry v. Ricketts, 1 Cranch C. C. 580. As to the manner in which the distance is determined, see Ex parte Beebees, 2 Wall. Jr. 127 ; United States v. Raiston, 17 Fed. Rep. 895.] PROCEDURE AND PRACTICE. 259 on any subject which is pertinent to the issue, whether he was examined in chief on that topic or not; but it was settled a great while ago, by the Supreme Court, that the strict English practice in respect to cross-examination prevailed in the Federal Courts; that a witness could be cross- examined only upon subjects on which he was examined in chief, and if the opposite party desired to examine him on other independent topics, al- though relevant to the issue on trial, he must call him as his witness and examine him in chief ; and that has been the practice, so far as my personal knowledge extends, in all the courts of the United States. Whether this recent act, which provided that the practice, pleadings, forms, and modes of proceeding shall conform to the laws of the States, would reach that, perhaps may be doubtful ; but my own impression is that it does not, because the proviso is, "That nothing herein contained shall alter the rules of evidence under the laws of the United States," and I take the mode of cross- examination of a witness to be one of the rules of evidence, so that, I suppose, it still remains true that, in the courts of the United States, you cannot cross-examine a witness on any topic upon which he was not examined in chief. ^ The next inquiry is. What is the mode of proof in equity and admiralty ? The orginal provision, found in the thirtieth section of the Judiciary Act, 1 Statutes at Large, 88, is, "That the mode 1 [This is not now the law. The practice of the particular State is followed in this matter, as in all others. Spies v. Illinois, 123 U. S. 131, 180.] 260 JURISDICTION, PEACTICE, AND JUEISPRUDENCE. of proof by oral testimony and examination of wit- nesses in open court shall be the same in all the courts of the United States, as well in the trial of causes in equity and of admiralty and maritime jurisdiction, as of actions at common law." But in 1842 Congress passed an act, which is found in 5 Statutes at Large, 518, which authorizes the Supreme Court of the United States to make rules concerning evidence in the courts of the United States. It is a very broad power, not limited at all. It confers upon the Supreme Court of the United States unlimited jursidiction over the subject of rules of evidence, among other things, in the courts of the United States. And from time to time, since that, the court has made rules on the subject of the mode of proof. It is not necessary to ask your attention to any of the early rules which are superseded ; but one was made at the December term, 1861, which you will find pub- lished among the rules of practice of the courts of equity in the United States, in which this whole subject is covered ; and although this thirtieth section of the Judiciary Act had said that the mode of proof in all the courts should be the same, and that witnesses should be produced and examined in court, under this rule, in equity and admiralty cases the witnesses are to be produced before an examiner, and examined and cross-examined, so that their evidence goes upon the record ; and in cases of appeal from the District Court in Admiralty to the Circuit Court, ^ and thence to the Supreme 1 [The reader will remember that the appellate power of the Cir- cuit Court is now lodged elsewhere.] PEOCEDURE AND PRACTICE. 261 Court, in case of an appeal from the Circuit Court to the Supreme Court, or in a case in equity, tlie evidence all goes up as part of the record ; and the questions of fact as much as the questions of law- are reconsidered by the appellate court. It is not necessary for me to read this rule. It covers the whole subject, — provides for compelling the attend- ance of witnesses, for the mode of their examina- tion, and for the manner in which the testimony, when obtained, shall be brought on to the record for the consideration of the court. Some difference of opinion has existed, from time to time, upon the subject of the power of the court to make a rule as broad as this, but I think it is quite safe to assume that their action, in that particular, will not be disturbed.^ There is one provision in this thirtieth section which is still occasionally practised upon, and wdiich is not repealed, as I understand it, by the rule of which I have been speaking. It is that provision by which a party on a trial in a District Coiirt, in an admiralty case, suggests to the judge that a particular witness, or more than one, if the fact be so, is about to go out of the country, or out of the jurisdiction of the court, or for some cause or other may not be present ; so that, if the case should be appealed, he cannot appear and testify ; and thereupon the judge is authorized to appoint somebody, the clerk being the proper person, to 1 As the law now stands, the power of the Snpreme Court to fix by rules the mode of proof in equity and admiralty cases is confirmed by § 862 of the Revised Statutes, excepting as provided in the sec- tions following. See §§ 863 et seq. 2G2 JURISDICTION, PRACTICE, AND JURISPRUDENCE. take down his evidence ; and that evidence has the same effect in the appellate court as if it was given by deposition out of court. It has become of com- paratively little consequence since this rule was made ; but I can remember when it was not an infrequent practice to have testimony taken in that way. ^ Of course, the laws of the United States upon the subject of evidence would be very incomplete, if provision were not made for taking depositions as well in trials at law as in equity and admiralty. The provisions which have been made in equity and admiralty I have already adverted to; but there are two kinds of depositions which may be taken and used in trials at law. The first is under this thirtieth section of the Judiciary Act, and I will read enough of it to bring before you the idea which I wish to convey. "When the testimony of any person shall be necessary in any civil cause depending in any dis- trict in any court of the United States, who shall live at a greater distance from the place of trial than one hundred miles, or is bound on a voyage to sea, or is about to go out of the United States, or out of such district, and to a greater distance from the place of trial than as aforesaid, before the time of trial, or is ancient or very infirm, the deposition of such person may be taken de bene esse," in the 1 See Eevised Statutes, § 863. [Depositions may be taken by a United States Commissionor, Notary Public, Clerk of tbe Circuit or District Court, or Judge of a County Court ; or, according to a rule of the court, by any person whom the court appoints as " special ex- aminer," for the particular case.] PROCEDURE AND PRACTICE. 26 Q manner pointed out; that is, it may be taken for the occasion, and if the supposed cause of his ina- bility to attend should continue until the day of the trial, then his deposition may be read. But it is only conditionally taken; and if the cause which led to its taking is removed before the time of the trial, then the witness, and not the deposition, must be produced. ^ On the other hand, there is recognized in the section, at the close of it, — though there is no express authority conferred, — there is recognized an authority in the courts of the United States to grant what is here called a dedimus potestatem, which we commonly, at the present day, call a commission to take evidence. And it is said here, that nothing herein contained " shall be construed to prevent any court from granting a dedimus potes- tatem to take depositions according to common usage, when it may be necessary to prevent a failure or delay of justice. "^ Now the Supreme Court has decided, in the case of Sargent v. Biddle, 4 Wheaton, 508, that these two classes of depositions — those taken de bene esse under the thirtieth section, and those taken under a commission — are wholly distinct; and though it is necessary that the cause which induced the taking of the deposition de bene esse must con- tinue down to the time of the trial, and be then existing, otherwise the witness must be produced, that is not true of depositions taken under a com- 1 See §§ 863-865 of the Eevised Statutes. 2 Power to grant a dedimus potestatem, or commi... •;■'!' ^.m-c: fi .'. •■.«.''•. 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