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concurrent," as stated by Mr. Justice are enforceable in the federal court Bradley in Claflin v. Houseman, 93 U. alike with those arising at common law S. 130, 137, 23 L. Ed. 833, in an opinion or in equity jurisprudence. So, the juwhich should be carefully examined dicial powers of federal and state upon these propositions.

courts, in cognizable actions, either at The Federal Jurisdiction. The Con

law or in equity, are in every sense stitution (article III) extends the ju- concurrent, except that in the federal dicial power of the United States far

forum there can be no commingling of beyond the enforcement of national

law and equity, as allowed in many laws and maritime and other causes

states under code practice, and are in made exclusively cognizable in federal

no sense foreign in character. courts, embracing the entire field of In an important particular, however, controversies in law and equity be-, jurisdiction of the federal courts is distween parties therein classified; and tinguishable from the other system, in Congress has provided accordingly, in

that it is strictly limited to causes the Judiciary Acts, for the organization brought within the terms fixed by the of the federal courts with jurisdiction Constitution and acts of Congress conferred in respect of such causes

thereunder, and must in every instance which is concurrent with that of the appear of record. No presumptions state courts of general jurisdiction re

arise in favor of jurisdiction, nor can spectively, as well defined in Claflin v. it be conferred by consent of parties, Houseman, supra.

Thus controver- when not so brought. Laying aside sies, either involving federal questions for the present view, the various causes or between citizens of different states,

over which federal jurisdiction is made included in such jurisdiction, constitute

exclusive and those whereof it is conthe major part of the law and equity current with that of state courts, it is calendars of the federal court; and the to be noted that such jurisdiction of fact that judicial powers therein are civil cases is acquired in either of two concurrent with those of the state methods: (1) By the filing of suit and courts has given rise to occasional con- service of process, or pending such fusion and conflict between them in the service, in equity cases, when custody exercise of this jurisdiction. In the of res is involved and directed by the causes at law, the statute law of the court; and (2) by removal from a state--which includes the common law state court of suits over which jurisdicas adopted by the states, or the civil tion is concurrent, before issue joined, law as adopted in Louisiana—becomes as provided by the Judiciary Acts. Rethe rule of law to be observed and en- ferring, then, to the cases of concurforced as well in the federal court when rent jurisdiction wherein conflicts of applicable; and in equity causes, while serious nature have arisen between the practice is derived from and ad- federal and state courts-namely, conheres to that of the High Court of

troversies over rights in property Chancery in England, the rights of par- brought before the court, actually or ties are frequently governed by statute constructively, for adjudication—the and are thus brought within like rule well-settled doctrine, under which such of observance in the federal court. conflict is avoidable, may be briefly Rights of action created by state law stated:

The court first acquiring jurisdiction state courts are not subject to review over the res-either original or through by the federal courts, with this single removal pursuant to statute—becomes exception: That the Supreme Court is vested with exclusive jurisdiction to vested with appellate jurisdiction therethe end of complete adjudication and of, when a federal question is directly satisfaction thereof; and the property involved in the decision, and the court is thus "withdrawn from the jurisdic- of last resort in the state has denied tion of other courts,” so that no court, right asserted thereunder.

Nor are federal or state, can interfere therein they otherwise made subordinate in pending such conclusion of all contro- any sense, except in cases of bankruptversy in the court of primary jurisdic- cy, as provided by the Constitution. tion, federal or state. Moreover, it is While the orbit of jurisdiction in the no longer open to question that such federal courts, however, is carefully court of primary jurisdiction over the prescribed, the judicial powers of the property in suit—whether federal or Circuit Court of the United States are state-retains the power, through an- comprehensive and entire to afford all cillary proceedings, “to hear and de- the civil remedies existing at common termine all questions respecting the ti- law or in equity jurisprudence, or creattle, the possession, or the control of ed by statute, when the requirements the property” arising out of its adjudi- for its exercise are established. Its cation; and may thus enjoin adverse criminal jurisdiction extends only over proceedings in other courts. Riverdale federal crimes, prescribed by acts of Cotton Mills v. Alabama & G. Mfg. Congress, and not to those of the comCo., 198 U. S. 188, 195, 25 Sup. Ct. 629, mon law-except as adopted by Con632, 49 L. Ed. 1008; Wabash R. Co. v. gress in the District of Columbia and Adelbert College, 208 U. S. 38, 54, 28 other places subject to its legislationSup. Ct. 182, 188, 52 L. Ed. 379. The for no federal jurisdiction is derived exercise of this power by federal courts from the common law, though the has frequently been misunderstood, as courts proceed according to the comresting on “supposed superiority of one

mon-law course. court over the others”; but as clearly The Procedure and Practice of the pointed out in the Wabash Railroad federal courts is substantially uniform Case, supra, the rule preserving such throughout the Union, except that in control is of general application to ef- common-law cases “the practice, pleadfectuate the decrees of competent ings and forms and modes of proceedcourts, and must be upheld in favor of ing” are directed by act of Congress primary jurisdiction so acquired by ei- (Rev. St. § 914 [U. S. Comp. St. 1901, ther court.

p. 684]) to conform as near as may be Thus, the constitutional purpose of to that of the state within which the independence in the two judicial sys- court is held. In equity, as before stattems, co-operating respectively in the ed, the practice of the English High two systems of government, has been Court of Chancery is observed, but it carried out in the Judiciary Acts of is free from the technicalities and ficCongress and in the operations of both tions of pleading at common law, and courts, throughout the course of the in accord with the general system of American Union. Decisions of the code pleading which obtains in Wis

ex

consin, in that facts and not legal in- The Supreme Court, directly created by ferences are to be stated; and practi- the Constitution, with powers prescribtioners under the Code find their ex- ed, but organized thereunder by act of perience readily adaptable to this Congress; (2) a Circuit Court of Apbranch of federal practice, when the peals of each of the nine judicial cirdistinction is kept in view that law cuits into which the states are apporand equity are not joined. The admi- tioned; (3) Circuit Courts; and (4) ralty, however, is a special branch District Courts, either for a state or a of jurisprudence, with pleadings and portion thereof set apart by Congress practice which are models of simplici- as a district. Supplementing the courts ty, but not governed by common-law are United States commissioners and rules. Questions arising under the referees in bankruptcy, appointed by maritime law are peculiar, and practice the judges in each district, with prethereunder should not be attempted scribed powers. Other courts are spewithout careful preparation.

cially organized-such as the Court In reference to the criminal proce- of Claims, Courts of the District of dure it is sufficient to remark that the Columbia, territories, and insular posgeneral course at common law prevails sessions, and the like—which are apart in the federal courts, except as from the general scheme and not inpressly modified by statute. For capi- volved in our consideration. tal or infamous crimes, indictment by The Judiciary Act of 1789, adopted a grand jury is the constitutional re- by the first Congress under the Conquirement; but offenses punishable by stitution, established the present jufine only or by minor terms of impris- dicial system in its main features, and onment may be presented by informa- as a legislative landmark ranks second tion. The common-law right of trial only to that great instrument which by a jury is preserved by the Constitu- it supplements and interprets for fedtion, and the rules governing the trial, eral jurisdiction. Its plan of Circuit admission of evidence, and the saving and District Courts and their original of exceptions to the rulings or instruc- jurisdiction--wherein the matters of tions, do not differ substantially from exclusive federal cognizance and those the state practice-except that the in- of which the state courts had concurstructions to the jury may be oral and rent jurisdiction were well defined may include comment on the testi- and the general plan so commenced mony-so that the lawyer who is suf- has been preserved with singular fificiently versed in that practice and in delity. The changes which have been the general rules applicable to crimi- made relate mainly to details, supplenal trials, will be at home in the federal menting that act, without substantial procedure.

departure from the plan, except in the Such are the general features of the important act of 1891, which provided federal judicial establishment, to be a new appellate court for each circuit, kept in mind for detailed examination called the Circuit Court of Appeals. of the several courts organized by Con- Other notable acts are those of recent gress under the constitutional grant, years: (1) Increasing the jurisdictionand the boundaries of their jurisdiction al amount involved in the controversy and powers.

These courts are: (1) from $500 to $2,000; (2) providing for removal of causes from state courts ly; but, since the organization of the where the defendants are noncitizens Circuits Courts of Appeals under the of the state, or the controversy in- act of 1891, their service on the cirvolves a federal question; (3) autho- cuit has usually been limited to that rizing the practice in common-law bench and is there occasional only. cases to conform to that of the state While the new appellate court has mawhere suit is brought; and (4) the terially relieved the crowded calendars right (withheld prior to 1875) to sue of the Supreme Court, the work of the in the federal court where the case latter is still pressing and arduous. arises under the Constitution or laws The jurisdiction of the Supreme of the United States.

Court is original only in respect of The acts referred to are contained "cases affecting ambassadors, other in the Revised Statutes of the United public ministers and consuls, and those States (1878) under title XIII, “The in which a state shall be a party,” and Judiciary," with amendments publish- the occasions for its exercise are comed in Supplements and in Statutes at paratively infrequent. An instance of Large, and are also compiled, under the last-mentioned class appears in a like title, in 1 U. S. Compiled Statutes recent case–Minnesota v. Hitchcock, (1901) and a Supplement of 1907. 185 U. S. 373—where a bill was filed For details which cannot be incorpo- in that court, on behalf of the state rated in this outline, these acts must of Minnesota, to enjoin the Secretary be examined; and Bates on Federal

of the Interior from selling lands Equity Procedure (2 volumes) and

claimed by the state. The appellate Federal Procedure at Law (2 volumes) jurisdiction in its various branches are excellent and recent text-books on furnishes the bulk of its great work. the general topics of this paper.

As said by the Chief Justice, in Ex The Supreme Court.—The organiza- parte Yerger, 8 Wall. 85, 98, 19 L. Ed. tion and jurisdiction of the Supreme 332, "this jurisdiction extends to all Court are set forth in chapters 9 and

other cases within the judicial power 11 of title XIII, Rev. St., with amenda- of the United States" and is subject tory provisions as to jurisdiction com- only "to such exceptions and must be piled in chapters 8a and 11 of volume exercised under such regulations" as 1, U. S. Compiled Statutes. As orga- Congress has or may provide. By nized under the original Judiciary Act, acts of Congress, accordingly, appeals the court was composed of a Chief Jus- and writs of error were originally limtice and five Associate Justices. The ited to civil causes, and the general Associate Justices have since been in- jurisdiction was further limited by the creased to eight, in conformity with amount involved in the controversy, the increase in the number of circuits, which was placed at $2,000 under the so that the members, including the earlier acts, and subsequently at $5,000. Chief Justice, are assignable for cir. Certain classes of judgments were not cuit duty, one for each of the nine cir- included in the limitation as to the cuits. Prior to 1891 it was customary amount involved, but the requirement for the members to thus serve for a was one of necessity and was appliportion of the year as presiding jus- cable to the generality of cases. Crimtices in the Circuit Courts respective- inal cases in the Circuit and District

as

Courts were not reviewable prior to isting regulations, comprises: First, 1889, except upon questions arising in cases within the foregoing classificathe Circuit Court upon which the trial tions, taken directly from the trial judges were divided in opinion and so court; second, cases not made final in certified the question to the Supreme the Circuit Courts of Appeals—involvCourt for decision. An act of 1889 ing $1,000 in the controversy; third, confers authority for review when the cases from territorial and other proconviction involves the death penalty. visional courts, which are reviewable, Under the writ of habeas corpus, how- except such as are assigned to the juever, jurisdictional questions involved risdiction of a Circuit Court of Apin a criminal conviction could always peals; fourth, writs of error to the be raised and were reviewable.

highest court of a state for review of its The act of 1891, known the decision, a jurisdiction of great import"Evarts Act" (chapter 8a of title 13, ance, which is conferred only in cases 1 U. S. Comp. St., ante) which created involving a federal question and an adthe Circuit Court of Appeals, effected verse ruling thereupon; fifth, questions important changes in the appellate ju- arising in cases pending for review in risdiction, by substituting a new tribu- the Circuit Court of Appeals, and by nal for review of the great majority of

that court certified to the Supreme cases from the Circuit Courts, while the Court for instruction; sixth, on cerultimate authority of revision by the tiorari granted by the Supreme Court Supreme Court was preserved through for review of a decision by the Circuit certiorari for that purpose on certifi

Court of Appeals; seventh, in bankcation from the Circuit Court of Ap ruptcy, from a decision on appeal to peals. Under this act, with its amend- to the Circuit Court of Appeals allowments, the cases which are taken di- ing or rejecting a claim involving over rectly to the Supreme Court from the $2,000, either when the question is Circuit and District Courts are within the rule applicable to review of stricted as follows: (1) "Cases in decisions by the highest court of a which the jurisdiction of the court is state, or when a justice of the Supreme. in issue"-such questions alone being

Court shall certify that review seems certified by the court below; (2) prize

essential to a uniform construction of causes; (3) convictions of capital

the act. 'crime; (4) cases involving the con- The Circuit Court of Appeals was struction of the Constitution of the created by the Evarts act, for each of United States, or (5) the constitution

the nine judicial circuits, to consist of ality of any law thereof or construc- three judges--two constituting a quotion or validity of a treaty; (6) cases The qualified members of this in which the Constitution or law of a court are (1) the justice of the Sustate is claimed to contravene the fed- preme Court assigned for circuit duty, eral Constitution. Thus appeals from (2) the Circuit Judges, and (3) District and writs of error to the nisi prius Judges within the circuit-the latter courts were diverted in large measure being assignable, to supply the bench from the Supreme Court to the new when not filled by the Circuit Judges appellate court. Review by the Su- or Circuit Justice; but no justice or preme Court, therefore, under the ex

judge can sit in review of any cause

re

rum.

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