LECTURE L.

The Judiciary Act of 1789 as contrasted with subsequent Legislation. — Removal of Causes under the Force Bill," and the Revised Statutes.

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Jurisdiction under the Patent Laws, and as to Contracts for the Sale and Letting of Patents. Petitions for the Removal of Causes, and what they must set forth. The State Court cannot inquire into the Facts, but both Courts stand at the same Level as regards the Law; and neither can bind or conclude the other. The Circuit Court cannot take the Case, and the State Court should not let it go, unless the Record shows that the Circumstances justify and require the Change. — Both courts may proceed notwithstanding the Filing of the Petition, subject to a Writ of Error to the Supreme Court of the United States. — It is enough, when the Jurisdiction is original, that the parties should be from different States at the Time when the Judgment is entered; but the Cause cannot be Removed on the Ground of Citizenship, unless the requisite Conditions exist when the Suit is instituted, as well as when the Application is made. The Right of Removal cannot be circumscribed by State Legislation. — In determining whether the Right exists the Court will have Regard to the actual Relations of the Parties, and not to the Order in which they are ranged by the pleader. - Inconveniences incident to the Removal of Causes under the existing laws. Separable Controversies, and Removal for local Prejudice or Influence.

WE have seen how far reaching is the grant of judicial power, including as it does not only questions arising out of the principles and working of the government and the restraints imposed on the several States, but cases of admiralty and maritime jurisdiction, and every case which though founded on the State laws involves a federal question whether it is or is not controverted or put at issue, and still further controversies which though not concerning the Constitution or laws of the United States, are between citizens of different States, or where an alien is a party. While such potentially is the jurisdiction of the United States it does not follow that the full measure of the authority should be vested in the

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JUDICIARY ACT OF 1789.

federal tribunals. The Constitution declares how far the judicial power of the government shall extend, but the question whether it shall be exercised is left to Congress. If, as the language held in Martin v. Hunter 1 would seem to imply, the federal courts should, to carry out the intent of the Constitution, be empowered to take cognizance of every question arising under its provisions or the laws of the United States, the whole duty of Congress in the premises will be fulfilled by giving a writ of error to the Supreme Court of the United States. Such, as we have seen, was the method adopted at the outset of the government while it was inspired or guided by the framers of the Constitution; and we may believe that it was eminently wise. Save in the single instance of a controversy between citizens of the same State claiming under grants from different States, it was only where the character of the parties gave jurisdiction that a suit could be brought in the circuit courts of the United States under the Judiciary Act of 1789, and the power of removal was confined to cases where an alien, or a citizen of another State, was sued in a State court by a citizen of the State. Questions arising under the Constitution and laws of the United States, with the exception above noted, were relegated in the first instance to the State tribunals, and it was only when the decision of the highest court of the State was adverse to some right or privilege derived under the general government that the Supreme Court of the United States could be called on to correct the

error.

This system was well calculated to maintain the dignity of the court and give time and opportunity for the mature deliberation requisite for the performance of its exalted function as the guardian and interpreter of the national Constitution. Nec deus intersit nisi dignus vindice nodus is a maxim which applies in public life not less than on the stage, and should not be overlooked in regulating the intervention of the tribunal which is to act as the balance-wheel of the Constitution.

The jurisdiction conferred by the Constitution may, as we have seen, be original or appellate, and cases which are within

1 1 Wheaton, 328.

REMOVAL TO CIRCUIT COURT.

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the grant of judicial power may be brought before the federal courts in three different ways: first, in the ordinary mode, by the service of process, and filing a libel or declaration in a circuit or district court of the United States; secondly, by the removal of causes which have been commenced in the State tribunals into the circuit courts of the United States; thirdly, by a writ of error from the Supreme Court of the United States, or an appeal to that tribunal.

The power of removal, like that to proceed originally, was at first limited to cases where there might be a failure of justice if it were withheld. Under the Judiciary Act of 1789 a suitor who came voluntarily into a State court as plaintiff had to abide by his choice, whether the defendant was or was not a citizen of the State; and the cause could not be removed by the defendant unless he was an alien or a citizen of a different State from that in which he was sued. Such was the rule as it regarded the character of the parties, and there could be no removal for the nature of the cause of action except when the controversy lay between citizens of the same State, claiming under grants of land from different States. This reticence was not due to any doubt as to the existence or scope of the power, but from a well-founded belief that the great mass of private rights growing out of the customary and statute laws of the several States should be left to their tribunals, with the privilege of taking any federal question which might actually arise in the course of the proceedings to the Supreme Court of the United States; and when the occasion required it Congress did not hesitate to adopt a different and more stringent policy.

The Force Bill of March, 1833, provided, in view of the threatened resistance of South Carolina to the collection of the revenue, that whenever a suit or prosecution was commenced in a State court against an officer of the United States or other person, for an act done under the revenue laws of the United States, or under color thereof, or for or on account of any right, authority, or title set up or claimed by the defendant under any such law, the case might be removed before trial into the federal court of the proper district; and that a habeas corpus might issue for the relief of any person confined by

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REMOVAL UNDER THE "FORCE BILL"

any authority or decree for any act done in pursuance of an authority from the United States.1

It is noteworthy that so little were the United States inclined to enlarge their powers that down to the passage of this bill the collectors of the ports, the revenue officers, the marshals of the circuit courts, and all other persons in the civil and military service of the United States were left to the jurisdiction of the State tribunals, and might, like other individuals, be brought to trial and convicted, or made answerable in damages, for an alleged violation of the local laws, without any power on the part of the government to intervene for their protection except through a writ of error from the Supreme Court of the United States for the correction of any mistake that might be committed in point of law. The first material change in the relations of the State and national tribunals was recommended by Jackson, and, as I have already stated, was passed by Congress in response to a statute of South Carolina rendering the collection of duties in that State penal; and it is not surprising that when secession came thirty years afterwards from the same quarter the power of removal was carried to an extreme. The act of March 3, 1863, passed during the height of the Civil War, provided that any suit or prosecution instituted in a State court for an act done by virtue of any order given by the President or under color of his authority, or that of an act of Congress, might be removed to the circuit courts of the United States of the district, and that thereupon the jurisdiction of the State court should cease.2

1 See Tennessee v. Davis, 100 U. S. 257, 302; Passmore Williamson's Case, 26 Pa. St. 1.

2 Although the right of removal ought not to lie dormant when there is need for its exercise, it is nevertheless attended with serious inconveniences which should render Congress slow to substitute it for the longestablished method of appeal; and the decisions of the Supreme Court of the United States present numerous instances where the exercise of the power has led to a reversal on technical grounds, attended with delay, and ending in a failure of justice.

The operation of such statutes and the effect which they may have in hindering the ordinary course of justice are shown by the case of Hodgson v. Millward, 3 Grant, 406; 5 Phila. 243, 302. Suit was there brought

AND DURING THE CIVIL WAR.

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With these and some other exceptions of a like kind, the in the Supreme Court of Pennsylvania sitting at Nisi Prius against the marshal of the Circuit Court of the United States for a trespass committed by entering the premises of the plaintiff, who was the editor of a newspaper, and carrying away the type and printing-presses. The defendants justified under a warrant from the district-attorney of the United States, alleging that the property in question had been used in the publication of libellous and seditious articles against the government, and reciting an order from the President of the United States that it should be seized for confiscation under the act of 1861. This defence was overruled and a verdict found for the plaintiff on the ground that the alleged order was not proved or produced, and that the writing brought into court was not the due process of law required by the Fifth Amendment, and certainly not a justification for an unreasonable search and seizure contrary to the Fourth. A petition was then filed in the same tribunal for the removal of the cause to the Circuit Court of the United States under the fifth section of the act of March 3, 1863. It was contended on the plaintiff's behalf that the act was unconstitutional, and that even if Congress could establish a dictatorship, or confer despotic power on the President, there was no sufficient evidence that the trespass was committed by virtue or under color of authority from him, or of an act of Congress. Both objections were overruled. The record showed, agreeably to the view taken by the court, that the defendants acted under a warrant reciting an order from the President, signed by the district-attorney of the United States as such, and directed to William Millward, marshal. This was such a color of authority as the statute contemplated; an appearance of right might give color where there was no substance. It was not necessary to express an opinion with regard to the validity of the act of Congress. Whether constitutional or not, it raised a question which might be withdrawn from the State courts and referred to a federal tribunal. A motion subsequently made in the Circuit Court to set aside the order of removal, and remit the cause to the Court of Nisi Prius was dismissed by Judge Grier, who said that if the defendants had a justification it was under an act of Congress; and they might require that it should be heard and determined by the national tribunals.

A like question arose in Kulp v. Ricketts, 5 Phila. 305. The plaintiff had been arrested and imprisoned by the chief of police of the borough of Wilkesbarre, by virtue of an order from the Secretary of War for discouraging and endeavoring to prevent enlistments. He sued for damages in the Common Pleas of Luzerne County, and the defendant sought to have the case removed to the Circuit Court of the United States. The Common Pleas held that although the proceeding was on its face simply an action of trespass by one citizen of Pennsylvania against another, the petition of removal showed that the defence turned upon an act of Congress. The case was therefore clearly within the grant of judicial power to the United States, and the removal must be allowed.

VOL. II.-28