8 upon the United States Circuit Courts jurisdiction, concurrent with the courts of the several States, of suits that before its enactment were within the exclusive jurisdiction of the United States Circuit or District Courts, or of suits that were then within the exclusive jurisdiction of State courts, or of suits which all courts were forbidden to entertain. Section one of the act of 1875 as amended by the act of 1887-8,9 and the corresponding sections of earlier acts,10 so far as they concern civil suits, apply only to those suits of which, other restrictive statutes of the United States being in force, the Circuit Courts of the United States and the courts of the several States have, or may have, by State legislation as to State courts, concurrent jurisdiction, and do not repeal these other statutes of the United States granting or withholding jurisdiction." Those suits, as to which special provision is otherwise made by National law, are impliedly excepted out of the general grant of jurisdiction to United States Circuit Courts by section one; 12 but subject to this 7 Suits under patent laws, for ex-ing same case, sub nom. Atkins v. ample, post § 71. & Post § 74; Rev. St. U. S., §§ 720, 3224; Trester v. Missouri Pac. R. Co., 23 Neb. 242, 36 N. W. 502. Ante § 6. "Section one of the act of 1875, ante § 6, note 5, and section eleven of the act of 1789, ante § 6, note 2, re-enacted in the Revised Statutes as clauses 1 and 2 and a part of clause 3, of § 629, ante § 6, note 3. 11 Re Keasbey & Mattison Co., 160 U. S. 221, 16 Sup. Ct. 273, 40 L. 402; Re Hohorst, 150 U. S. 653, 14 Sup. Ct. 221, 37 L. 1211; Re Louisville Underwriters, 134 U. S. 488, 10 Sup. Ct. 587, 33 L. 991; United States v. Mooney, 116 U. S. 104, 6 Sup. Ct. 304, 29 L. 550, affirming United States v. Mooney, 11 Fed. 476; Atkins v. Fiber Disintegrating Co., 18 Wall. 272, 21 L. 841, affirm Fibre Disintegrating Co., 2 Fed. Cas. New England Mut. Ins. Co. v. Detroit & C. Steam Nav. Co., 18 Wall. 307, 21 L. 846, reversing s. c., 18 Fed. Cas. 64, 13 Int. Rev. Rec. 94, 10 Am. Law Reg. (N. S.) 383; Ames v. Hager, 36 Fed. 129, 13 Price v. Abbott, 17 Fed. 506; Cushing v. Laird, 6 Fed. Cas. 1017, 4 Ben. 70, 3 Am. Law T. Rep. U. S. Cts. 50, 4 Am. Law Rev. 615. 12 Ante § 6. exception, this section embraces all suits within its terms, so far as the United States Circuit Courts are concerned, and permits a like jurisdiction to be exercised by State courts when consistent with the State laws. This statute does not confer any judicial power upon State courts. The statute, as to State courts, is permissive. The State courts derive their jurisdiction and powers from the constitution or statutes of the States of their creation. A State court has only such jurisdiction as the laws of the State may confer upon it.13 13 In the following authorities may be found instructive discussions of the subject of the concurrent jurisdiction of the United States Courts and the State courts: The Federalist, No. 82, by Hamilton; Plaquemines Tropical Fruit Co. v. Henderson, 170 U. S. 511, 18 Sup. Ct. 685, 42 L. 1126; Cook v. Whipple, 55 N. Y. 150, 14 Am. R. 202. The case of Claflin v. Houseman, 93 U. S. 130, 23 L. 833, contains a learned and elaborate examination of the question of the concurrent and exclusive jurisdiction of the United States Courts and the State courts. Many au United States v. Jones, 109 U. S. thorities are cited; and as the 513, 3 Sup. Ct. 346, 27 L. 1015; Justices v. Murray, 9 Wall. 274, 19 L. 658; The Moses Taylor, 4 Wall. 411, 18 L. 397; question is an important one, the conclusions of the Court, after reviewing the authorities, are quoted: "Other analogous cases have occurred, and the same result has Dodge v. Woolsey, 18 How. 331, been reached; the general princi 15 L. 401; Teal v. Felton, 12 How. 284, 13 L. 990, affirming s. c., 1 N. Y. 537, which affirmed s. c., 3 Barb. 510, a case involving six cents damages for the detention of a newspaper; Fox v. Ohio, 5 How. 410, 12 L. 213; ple being that, where jurisdiction may be conferred on the United States Courts, it may be made exclusive where not so by the Constitution itself; but, if exclusive jurisdiction be neither express nor implied, the State courts have concurrent jurisdiction whenever, by Prigg v. Pennsylvania, 16 Pet. their own constitution, they are 539, 622, 10 L. 1060, 1091; competent to take it. Thus, the Houston v. Moore, 5 Wheat. 1, 5 United States itself may sue in the L. 19; State courts, and often does so. If Pennsylvania v. Shaffer, 4 Dall. this may be done, surely, on the App. xxvi, 1 L. 926; principle that the greater includes the less, an officer or corporation created by United States author United States Bank v. Roberts, 2 Fed. Cas. 728, 4 Conn. 323; Morgan v. Dudley, 57 Ky. (18 B. ity may be enabled to sue in such courts. Nothing in the Consti Mon.) 693, 68 Am. Dec. 735; § 68. To be removable from a State court to a United States Circuit Court, a suit must be one of which the United States Circuit Courts are given jurisdiction" concurrent with the courts of the several States.1"-Section two of the present judiciary act, as we have seen,3 gives a right of removal only in suits of which original jurisdiction is given to the United States Circuit Courts by section one.1 Section one gives original jurisdiction only in suits of concurrent jurisdiction; that is, in suits of the classes of tution, fairly considered, forbids | ing concurrent jurisdiction in the it. State; concurrent as to place and "The general question, whether persons, though distinct as to subState courts can exercise concur-ject-matter. Legal or equitable rent jurisdiction with the Federal rights, acquired under either sysCourts in cases arising under the tem of laws, may be enforced in Constitution, laws and treaties of any court of either sovereignty the United States, has been elabo- competent to hear and determine rately discussed, both on the Bench such kind of rights and not reand in published treatises; some- strained by its constitution in the times with a leaning in one direc- exercise of such jurisdiction. tion and sometimes in the other; Thus, a legal or equitable right but the result of these discussions acquired under State laws, may be has, in our judgment, been, as seen prosecuted in the State courts, and in the above cases, to affirm the also, if the parties reside in differjurisdiction, where it is not ex- ent States, in the Federal Courts. cluded by express provision or by So rights, whether legal or equitaincompatibility in its exercise aris- ble, acquired under the laws of the ing from the nature of the particu- United States, may be prosecuted lar case. in the United States Courts, or in the State courts, competent to decide rights of the like character and class; subject, however, to this qualification, that where a right arises under a law of the United States, Congress may, if it see fit, give to the Federal Courts exclusive jurisdiction. . . . This jurisdiction is sometimes exclusive by express enactment and sometimes by implication." § 68. "When we consider the structure and true relations of the Federal and State governments, there is really no just foundation for excluding the State courts from all such jurisdiction. "The laws of the United States are laws of the several States, and just as much binding on the citizens and courts thereof as the State laws are. The United States is not a foreign sovereignty as regards the several States, but is a concurrent and, within its jurisdiction, paramount sovereignty. Every citizen of a State is a subject of two distinct sovereignties, hay 1 Ante §§ 6, 7. 4 Ante § 6. which the United States Circuit Courts are thereby given original jurisdiction, and of which the State courts may take jurisdiction, if authorized so to do by State laws.5 It necessarily follows that none but suits of which the United States Circuit Courts have jurisdiction concurrent with the courts of the several States are removable from State courts to such United States Circuit Courts. There can be no removal of a suit commenced in a State court, the subject-matter of which is within the exclusive jurisdiction of the United States Courts or the State courts. Such suits are not within the removal statute-not within the letter or the spirit of the act. If the United States Circuit Courts are incompetent to take jurisdiction of the subjectmatter of a suit begun in a State court, the suit should remain in such State court. Where a suit is brought in a State court upon a subject of which the United States Courts have exclusive cognizance (or of which the defendant claims they have exclusive cognizance), the remedy of the defendant is to challenge the jurisdiction of the State court by demurrer, motion, or exception, as may be in conformity to the local practice, upon the ground that exclusive jurisdiction of suits of that character is vested in the United States Courts; and if the decision of the highest State court to which the cause may be taken is against the defendant, such decision may be reviewed by the Supreme Court of the United States 5 Ante § 67. 6 Post § 71. 7 Post § 74. 8 It would seem to be self-evident that a suit cannot properly be removed from a State court that has jurisdiction of it to a United States Court that has no jurisdiction, and can acquire none by the removal; but clear as it is, there are several cases in which the principle has been disregarded. These were suits removed from State courts on the ground of the diverse citizenship of the parties, and dismissed in the United States Circuit Courts for want of jurisdiction of the subject matter, thus depriving the plaintiffs of the right to a trial of their suits in either court. "Mr. Plaintiff, you can't try your suit in the State court because the defendant is a non-resident; and you can't try it in the United States Circuit Court for want of jurisdiction." What a ruling! Ferguson v. Ross, 38 Fed. 161, 3 L. R. A. 322; Perkins v. Hendryx, 40 Fed. 657; Cowley v. Northern Pac. R. Co., 46 Fed. 325, reversed upon appeal, s. c., 159 U. S. 569, 16 Sup. Ct. 127, 40 L. 263. See further post § 76. upon writ of error under § 25 of the judiciary act of 1789 (1 St. L. 73), as amended in 1867 (14 St. L. 385), and reenacted as § 709 of the Revised Statutes.9 § 69. A suit may be removable, although the State court in which it is begun has no jurisdiction thereof under the laws of the State.-If the State court in which a suit is begun has, under the laws of the State, no jurisdiction of the subject-matter of such suit, but the suit belongs to one of the general classes described in section one1 of the present judiciary act, of which State courts may have jurisdiction, the State court and the United States Circuit Court do not, in one sense, have concurrent jurisdiction thereof. But the judiciary act, in describing causes that are within the original jurisdiction of the United States Circuit Courts and therefore are removable to such Circuit Courts, refers to potential, not actual, jurisdiction of State courts. In the case stated, the deficiency is in the State court's jurisdiction arising from State laws; and the statute as to removals makes the original jurisdiction granted to United States Circuit Courts by section one the test of removability, and not the jurisdiction conferred upon a State court by the laws of the State.2 A This has been the practice. A contrary decision was made in 1 Ante § 6. 2 This doctrine is sustained by a Johnson v. Chicago & Pac. Elev. Co., 119 U. S. 388, 7 Sup. Ct. 254, 30 L. 447; Schoonmaker v. Gilmore, 102 U.S. dictum of the Supreme Court: 118, 26 L. 95; "The right of removal under the Claflin v. Houseman, 93 U. S. act of 1875 could not be made to 130, 23 L. 833; depend upon a preliminary inquiry Am. Steamboat Co. v. Chase, 16 as to whether the plaintiff had or Wall. 522, 21 L. 369; had not the right to sue in the Leon v. Galceran, 11 Wall. 185, 20 State court of original jurisdiction L. 74; from which it was sought to reThe Belfast, 7 Wall. 624, 19 L. move the suit." Metcalf v. Water266; town, 128 U. S. 586, 9 Sup. Ct. 173, The Moses Taylor, 4 Wall. 411, 18 32 L. 543. L. 397; The decisions upon analogous The Hine v. Trevor, 4 Wall. 555, questions foreshadow that the law 18 L. 451; will be decided to be as stated in Teal v. Felton, 12 How. 284, 13 the text. L. 990. Gerling (Martin's Adm'r) v. Bal |