the acts violating the Seventh Amendment to the Constitution.3 3 The Supreme Court held in Justices v. Murray, 9 Wall. 274, 19 L. 658, that so much of the 5th section of the act entitled "An Act relating to Habeas Corpus, and Regulating Proceedings in Certain Cases," approved March 3, 1863, 12 St. L. 755, as provided for the removal of a judgment in a State court, in a cause tried by a jury, to the Circuit Court of the United States for a retrial, on the facts and law, was in conflict with the 7th Amendment to the Constitution, ante § 4, and was therefore void. This decision approved gress has undertaken to authorize a second trial by jury to be had in a Court of the United States, while the verdict of a jury upon a former trial in a court of record has not been set aside, are to be found in two temporary acts passed during the last war with Great Britain, and in an act passed during the War of the Rebellion and continued in force for a short time afterwards, each of which provided that certain actions brought in a State court against officers or persons acting under the authority of the United States might, after final judgment, be removed by appeal or Wetherbee v. Johnson, 14 Mass. writ of error to the Circuit Court of the United States, and that Court 412; Patrie v. Murray, 43 Barb. 323, 29 should thereupon proceed to try How. Pr. 312. The Supreme Court in Justices v. Murray, supra, in an opinion by Justice Nelson reversed the order made by Justice Nelson at Circuit for the transfer of the cause to the United States Circuit Court. and determine the facts and the law in such action in the same manner as if the same had been there originally commenced, the judgment in such case notwithstanding.' Acts of February 4, 1815, chap. 31, §§ 8, 13, and March 3, Murray v. Patrie, 17 Fed. Cas. 1815, chap. 94, §§ 6, 8, 3 Stat. at L. 1061, 5 Blatchf. 343; 199, 200, 234, 235; act of March 3, see fuller statement of proceedings 1863, chap. 81, § 5, 12 Stat. at L. in 757; act of May 11, 1866, chap. 80, Fisk v. Union Pac. R. Co., 9 Fed. § 3, 14 Stat. at L. 46. But such a Cas. 149, 6 Blatchf. 362. In Capital Traction Co. v. Hof, 174 U. S. 1, at pp. 10, 11, 19 Sup. Ct. 580, 43 L. 873, the Supreme Court of the United States approved the decision of the supreme court of Massachusetts holding the acts of 1815 invalid. In that case the Supreme Court said: "The only instances that have come to our notice, in which Con provision, so far as it authorized the facts to be tried and determined in the Circuit Court of the United States in a case in which a verdict had been returned in the State court, was held to be inconsistent with the Seventh Amendment of the Constitution of the United States by the supreme judicial court of Massachusetts, in a case arising under the acts of 1815; and by the supreme court of New York and by this Court, in cases The State courts, too, have generally acquiesced in their validity, or expressly adjudged them valid. There are a few State decisions to the contrary.5 To be removable from a State court to a Court of the United States for trial, a cause must be within the judicial power that the Inferior Courts of the United States potentially possess under the Constitution. arising under the acts of 1863 and 1866. Wetherbee v. Johnson (1817) 14 Mass. 412; Patrie v. Murray (1864) 43 Barb. 323; s. c., nom. Justices v. Murray (1869) 9 Wall. 274, 19 L. 658; McKee v. Rains (1869) 10 Wall. 22, 19 L. 860." One case holds that a suit may be removed under § 5 of the act of 1863, supra, after verdict in the State court; but it is overruled, in effect, by the later decisions of the Supreme Court. Hodgson v. Millward, 3 Grant Cas. 412; s. c., 12 Fed. Cas. 285, 20 Leg. Int. 348, 5 Phila. 302, 3 Grant Cas. 418. + Meadow Valley Mining Co. v. Dodds, 7 Nev. 143, 8 Am. R. 709; Burson v. Nat. Park Bank, 40 Ind. 173, 13 Am. R. 285; But within this limit, the person or any principle. On the contrary, it would only be productive of great embarrassment, trouble and expense to these parties, and others similarly situated. For we well know that the Supreme Court of the United States, in the exercise of that jurisdiction which it assumes, would pronounce all the proceedings in the State court, after the application for removal was made, as coram non judice." In Whiton v. Chicago & N. W. R. Co., 25 Wis. 424, 3 Am. R. 101, the court held that so much of the act of Congress of March 2, 1867, 14 St. L. 558, codified as Rev. St. § 639, cl. 3, ante § 7, note 6, as provides for the removal of a cause McCormick v. Humphrey, 27 Ind. by the plaintiff, is invalid; but this decision was shortly thereafter 144; Tod v. Fairfield Common Pleas, overruled by the Supreme Court of 15 Ohio St. 377. the United States in 5 In Chicago & N. W. R. Co. v. Whit Moseley v. Chamberlain, 18 Wis. ton, 13 Wall. 270, 20 L. 571, affirm 700, the validity of section 12 of the judiciary act of 1789, ante § 7, note 3, is denied. But the court in Knorr v. Home Ins. Co., 25 Wis. 143, 3 Am. R. 26, overruled that case. The court was still of the opinion that it was correctly decided. "But," says Judge Cole, “my adhering to that opinion now would be of no earthly advantage, that I can see, to any ing Whiton v. Chicago & N. W. R. Co., 29 Fed. Cas. 1111, 2 Biss. 282. The supreme court of Wisconsin afterwards acquiesced in the decisions of the Supreme Court of the United States. Goodman v. Oshkosh, 45 Wis. 355. 6 Justices v. Murray, 9 Wall. 274, 19 L. 658; Smith v. Rines, 22 Fed. Cas. 639, 2 Sumn. 338. cases that may be removed for trial, and the time and manner of removal, are matters of legislative discretion, to be determined by Congress." § 34. By the removal of a cause from a State court, a United States Circuit Court indirectly acquires original jurisdiction thereof.-There has been some difficulty in determining the nature of the jurisdiction exercised by a United States Circuit Court upon the removal of a cause from a State court. Justice Story suggested that the jurisdiction is appellate. The Courts now assert a different doctrine. "The jurisdiction exercised upon the removal is original. Removal is only an indirect mode by which the Federal Court acquires original jurisdiction." 2 § 35. The jurisdiction of the United States Circuit Courts was greatly enlarged in the ten years succeeding the Civil War, for the benefit of non-resident creditors.— Section 12 of the original judiciary act1 was the only general 7" The judicial power of the United States extends by the Constitution to controversies between citizens of different States as well as to cases arising under the Constitution, treaties and laws of the United States; and the manner and conditions upon which that power shall be exercised, except as the original or appellate character of the jurisdiction is specially designated in the Constitution, are mere | 337, 25 L. 667, 676; matters of legislative discretion. In some cases, from their character, the judicial power is necessarily exclusive of all State authority; in other cases it may be made so at the option of Congress, or it may be exercised concurrently with that of the States." Chicago & N. W. R. Co. v. Whitton, 13 Wall. 270, 20 L. 571. $ 34. Knorr v. Home Ins. Co., 25 Wis. 143, 155, 3 Am. R. 26, and its character is considered as doubtful in Fisk v. Union Pac. R. Co., 9 Fed. Cas. 149, 6 Blatchf. 362. 2 Bigelow v. Nickerson, 34 U. S. App. 261, 17 C. C. A. 1, 70 Fed. 113, 30 L. R. A. 336. This language is justified by Chicago & N. W. Ry. Co. v. Whitton, 13 Wall. 270, 20 L. 571; Bushnell v. Kennedy, 9 Wall. 387, 19 L. 736; Woolridge v. McKenna, 8 Fed. 650, 658; Dennistoun v. Draper, 7 Fed. Cas. 488, 5 Blatchf. 336. A later case stating the same theory of the law is Ward v. Congress Const. Co., 39 1 Martin v. Hunter, 1 Wheat. 304, | C. C. A. 669, 99 Fed. 598. 349-350, 4 L. 97, 108. § 35. It is treated as appellate in 1 Ante § 7, note 3. statute for the removal of causes in force from the date of its enactment, in 1789, until after the close of the Civil War. Several acts were passed in the mean time to cover special cases.2 As a result of the animosities growing out of the war, the reconstruction acts, the legislation of some of the Southern and Western States, and the panic of 1873, Congress by several acts greatly enlarged the jurisdiction of the United States Circuit Courts, both by original process and by removal from State courts.3 The avowed purpose of such legislation was to aid non-resident creditors in enforcing their demands.4 § 36. The grant of judicial power to the United States Circuit Courts by the judiciary act of 18751 was very broad. It has been frequently asserted that by the judiciary act of 18752 Congress intended to extend the jurisdiction of the Circuit Courts of the United States as far as the Constitution would warrant (except to cases involving not over $500, cases of which the Supreme Court has exclusive jurisdiction, and certain assigned causes of action),1 whether such 2 The most important of these | to a Federal Court, when it apspecial acts is the "Force Bill" of peared that such influences ex1833, the removal section of which | isted." Gaines v. Fuentes, 92 U. S. became the basis of Rev. St., § 643, 10, 23 L. 524. post § 195. 3 Ante notes to §§ 6, 7. Hobby v. Allison, 13 Fed. 401; Fox v. Southern R. Co., 80 Fed. 945. "The experience of parties immediately after the late war, which powerfully excited the people of different States, and, in many instances engendered bitter enmities, satisfied Congress that further legislation was required fully to protect litigants against influences of that character. It therefore provided, by the act of March 2, 1867, 14 Stat. at L. 558, greater facilities for the removal of cases involving controversies between citizens of different States from a State court "It is well known as a part of the legislative and judicial history of the country, that this latter statute was passed to meet certain conditions and difficulties which had arisen out of the late civil war." Kingsbury v. Kingsbury, 14 Fed. Cas. 585, 3 Biss. 60, 3 Chi. Leg. News 330. § 36. 'Ante § 6, note 5, and § 7, note 7. 2 Ante § 6, note 5, and § 7, note 7. 8 Ante § 2. 4"The language of the act of 1875 in this particular is identical with that of the Constitution, and the evident purpose of Congress was to make the original jurisdiction of the Circuit Courts co-exten jurisdiction was based on the citizenship of the parties,5 or upon the fact that the suit involved a Federal controversy; 6 and the Supreme Court held that the exception as to such assigned causes of action applied only to original jurisdiction and not to jurisdiction by removal.7 The Supreme Court of the United States at first adopted this very broad construction of the act of 1875,8 but later it receded therefrom, deciding in effect that there are many cases within the judicial power of the Constitution, arising under the Constitution, laws or treaties of the United States, which fall within Rev. St. U. S., § 709, but not within the act of 1875.9 § 37. The increase of the jurisdiction of the United States Circuit Courts developed much bitter opposition; the abuses growing out of such increase became intolerable, and Congress sought to remedy them.-The increase of the jurisdiction of the United States Circuit Courts by the acts succeeding the Civil War, was resented by the people oppressed thereby. The feeling of bitter opposition to such sive with the judicial power in all | is as broad as the judicial power.” cases where the Supreme Court had Girardy v. Moore, 10 Fed. Cas. not already been invested by law 444, 3 Woods 397, 4 Am. Law T. with exclusive cognizance." Ames Rep. (N. S.) 387, 23 Int. Rev. Rec. v. Kansas, 111 U. S.449, 4 Sup. Ct. 294, 5 Cent. Law J. 78, 1 Month. 437, 28 L. 482. Jur. 344. Connor v. Scott, 6 Fed. Cas. 313, 4 Dill. 242, 3 Cent. Law J. 305; Jackson v. Mutual Life Ins. Co., 13 Fed. Cas. 230, 3 Woods 413. 5" Before this [the passage of the act of 1875], Congress had never invested the Federal Courts with the jurisdiction arising from diverse citizenship of litigant parties co-extensive with the judicial power conferred upon the general government. Subject to a limitation as to the amount in controversy, this was attempted to be done by that act. The jurisdiction given to the Circuit Court 6 “The act of 1875, so far as jurisdiction depends upon the nature of the litigation, makes the jurisdiction of the Circuit Court coextensive with the judicial power created by the Constitution, and therefore includes all suits in law or equity involving a Federal question." Hans v. Louisiana, 24 Fed. 55, affirmed, Hans v. Louisiana, 134 U. S. 1, 10 Sup. Ct. 504, 33 L. 842. 7 Post § 137. 8 Ames v. Kansas, as quoted in note 4 to this section. Carson v. Dunham, 121 U. S. 421, 7 Sup. Ct. 1030, 30 L. 992, quoted post § 104, note 17. |