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concurrent," as stated by Mr. Justice Bradley in Claflin v. Houseman, 93 U. S. 130, 137, 23 L. Ed. 833, in an opinion which should be carefully examined. upon these propositions.

are enforceable in the federal court alike with those arising at common law or in equity jurisprudence. So, the judicial powers of federal and state courts, in cognizable actions, either at law or in equity, are in every sense concurrent, except that in the federal forum there can be no commingling of law and equity, as allowed in many states under code practice, and are in no sense foreign in character.

In an important particular, however, jurisdiction of the federal courts is distinguishable from the other system, in that it is strictly limited to causes brought within the terms fixed by the Constitution and acts of Congress thereunder, and must in every instance

appear of record. No presumptions
arise in favor of jurisdiction, nor can
it be conferred by consent of parties,
when not so brought. Laying aside.
for the present view, the various causes
over which federal jurisdiction is made
exclusive and those whereof it is con-
current with that of state courts, it is
to be noted that such jurisdiction of
civil cases is acquired in either of two-
methods: (1) By the filing of suit and
service of process, or pending such
service, in equity cases, when custody
of res is involved and directed by the
court; and (2) by removal from a
state court of suits over which jurisdic-
tion is concurrent, before issue joined,
as provided by the Judiciary Acts. Re-
ferring, then, to the cases of concur-
rent jurisdiction wherein conflicts of
serious nature have arisen between
federal and state courts-namely, con-
troversies over
over rights in property
brought before the court, actually or
constructively, for adjudication-the
well-settled doctrine, under which such
conflict is avoidable, may be briefly

The Federal Jurisdiction.-The Constitution (article III) extends the judicial power of the United States far beyond the enforcement of national laws and maritime and other causes made exclusively cognizable in federal courts, embracing the entire field of controversies in law and equity be-, tween parties therein classified; and Congress has provided accordingly, in the Judiciary Acts, for the organization of the federal courts with jurisdiction conferred in respect of such causes which is concurrent with that of the state courts of general jurisdiction respectively, as well defined in Claflin v. Houseman, supra. Thus controversies, either involving federal questions or between citizens of different states, included in such jurisdiction, constitute the major part of the law and equity calendars of the federal court; and the fact that judicial powers therein are concurrent with those of the state courts has given rise to occasional confusion and conflict between them in the exercise of this jurisdiction. In the causes at law, the statute law of the state-which includes the common law as adopted by the states, or the civil law as adopted in Louisiana-becomes the rule of law to be observed and enforced as well in the federal court when applicable; and in equity causes, while the practice is derived from and adheres to that of the High Court of Chancery in England, the rights of parties are frequently governed by statute and are thus brought within like rule of observance in the federal court. Rights of action created by state law stated:

The court first acquiring jurisdiction over the res-either original or through removal pursuant to statute-becomes vested with exclusive jurisdiction to the end of complete adjudication and satisfaction thereof; and the property is thus "withdrawn from the jurisdiction of other courts," so that no court, federal or state, can interfere therein pending such conclusion of all controversy in the court of primary jurisdiction, federal or state. Moreover, it is no longer open to question that such court of primary jurisdiction over the property in suit-whether federal or state-retains the power, through ancillary proceedings, "to hear and determine all questions respecting the title, the possession, or the control of the property" arising out of its adjudication; and may thus enjoin adverse proceedings in other courts. Riverdale. Cotton Mills v. Alabama & G. Mfg. Co., 198 U. S. 188, 195, 25 Sup. Ct. 629, 632, 49 L. Ed. 1008; Wabash R. Co. v. Adelbert College, 208 U. S. 38, 54, 28 Sup. Ct. 182, 188, 52 L. Ed. 379. The exercise of this power by federal courts has frequently been misunderstood, as resting on "supposed superiority of one court over the others"; but as clearly pointed out in the Wabash Railroad Case, supra, the rule preserving such control is of general application to effectuate the decrees of competent courts, and must be upheld in favor of primary jurisdiction so acquired by either court.

Thus, the constitutional purpose of independence in the two judicial systems, co-operating respectively in the two systems of government, has been carried out in the Judiciary Acts of Congress and in the operations of both courts, throughout the course of the American Union. Decisions of the

state courts are not subject to review by the federal courts, with this single exception: That the Supreme Court is vested with appellate jurisdiction thereof, when a federal question is directly involved in the decision, and the court of last resort in the state has denied. right asserted thereunder. Nor are they otherwise made subordinate in any sense, except in cases of bankruptcy, as provided by the Constitution. While the orbit of jurisdiction in the federal courts, however, is carefully prescribed, the judicial powers of the Circuit Court of the United States are comprehensive and entire to afford all the civil remedies existing at common law or in equity jurisprudence, or created by statute, when the requirements for its exercise are established. Its criminal jurisdiction extends only over federal crimes, prescribed by acts of Congress, and not to those of the common law-except as adopted by Congress in the District of Columbia and other places subject to its legislationfor no federal jurisdiction is derived from the common law, though the courts proceed according to the common-law course.

The Procedure and Practice of the federal courts is substantially uniform throughout the Union, except that in common-law cases "the practice, pleadings and forms and modes of proceeding" are directed by act of Congress (Rev. St. § 914 [U. S. Comp. St. 1901, p. 684]) to conform as near as may be to that of the state within which the court is held. In equity, as before stated, the practice of the English High Court of Chancery is observed, but it is free from the technicalities and fictions of pleading at common law, and in accord with the general system of code pleading which obtains in Wis

consin, in that facts and not legal inferences are to be stated; and practitioners under the Code find their experience readily adaptable to this this branch of federal practice, when the distinction is kept in view that law and equity are not joined. The admiralty, however, is a special branch. of jurisprudence, with pleadings and practice which are models of simplicity, but not governed by common-law rules. Questions arising under the maritime law are peculiar, and practice thereunder should not be attempted without careful preparation.

In reference to the criminal procedure it is sufficient to remark that the general course at common law prevails in the federal courts, except as expressly modified by statute. For capital or infamous crimes, indictment by a grand jury is the constitutional requirement; but offenses punishable by fine only or by minor terms of imprisonment may be presented by information. The common-law right of trial by a jury is preserved by the Constitution, and the rules governing the trial, admission of evidence, and the saving of exceptions to the rulings or instructions, do not differ substantially from the state practice-except that the instructions to the jury may be oral and may include comment on the testimony-so that the lawyer who is sufficiently versed in that practice and in the general rules applicable to criminal trials, will be at home in the federal procedure.

Such are the general features of the federal judicial establishment, to be kept in mind for detailed examination of the several courts organized by Congress under the constitutional grant, and the boundaries of their jurisdiction. and powers. These courts are: (1)

The Supreme Court, directly created by the Constitution, with powers prescribed, but organized thereunder by act of Congress; (2) a Circuit Court of Appeals of each of the nine judicial circuits into which the states are apportioned; (3) Circuit Courts; and (4) District Courts, either for a state or a portion thereof set apart by Congress as a district. Supplementing the courts. are United States commissioners and referees in bankruptcy, appointed by the judges in each district, with prescribed powers. Other courts are specially organized-such as the Court of Claims, Courts of the District of Columbia, territories, and insular possessions, and the like-which are apart from the general scheme and not involved in our consideration.

The Judiciary Act of 1789, adopted by the first Congress under the Constitution, established the present judicial system in its main features, and as a legislative landmark ranks second only to that great instrument which it supplements and interprets for federal jurisdiction. Its plan of Circuit and District Courts and their original jurisdiction-wherein the matters of exclusive federal cognizance and those of which the state courts had concurrent jurisdiction were well definedand the general plan so commenced has been preserved with singular fidelity. The changes which have been made relate mainly to details, supplementing that act, without substantial departure from the plan, except in the important act of 1891, which provided a new appellate court for each circuit, called the Circuit Court of Appeals. Other notable acts are those of recent years: (1) Increasing the jurisdictional amount involved in the controversy from $500 to $2,000; (2) providing for

removal of causes from state courts where the defendants are noncitizens of the state, or the controversy involves a federal question; (3) authorizing the practice in common-law cases to conform to that of the state where suit is brought; and (4) the right (withheld prior to 1875) to sue in the federal court where the case arises under the Constitution or laws of the United States.

The acts referred to are contained in the Revised Statutes of the United States (1878) under title XIII, "The Judiciary," with amendments published in Supplements and in Statutes at Large, and are also compiled, under like title, in 1 U. S. Compiled Statutes (1901) and a Supplement of 1907. For details which cannot be incorporated in this outline, these acts must be examined; and Bates on Federal Equity Procedure (2 volumes) and Federal Procedure at Law (2 volumes) are excellent and recent text-books on the general topics of this paper.

The Supreme Court.-The organization and jurisdiction of the Supreme Court are set forth in chapters 9 and 11 of title XIII, Rev. St., with amendatory provisions as to jurisdiction compiled in chapters 8a and 11 of volume. 1, U. S. Compiled Statutes. As organized under the original Judiciary Act, the court was composed of a Chief Justice and five Associate Justices. The Associate Justices have since been increased to eight, in conformity with the increase in the number of circuits, so that the members, including the Chief Justice, are assignable for circuit duty, one for each of the nine circuits. Prior to 1891 it was customary for the members to thus serve for a portion of the year as presiding justices in the Circuit Courts respective

ly; but, since the organization of the Circuits Courts of Appeals under the act of 1891, their service on the circuit has usually been limited to that bench and is there occasional only. While the new appellate court has materially relieved the crowded calendars of the Supreme Court, the work of the latter is still pressing and arduous.

The jurisdiction of the Supreme Court is original only in respect of "cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be a party," and the occasions for its exercise are comparatively infrequent. An instance of the last-mentioned class appears in a recent case-Minnesota v. Hitchcock, 185 U. S. 373-where a bill was filed in that court, on behalf of the state of Minnesota, to enjoin the Secretary of the Interior from selling lands claimed by the state. The appellate jurisdiction in its various branches furnishes the bulk of its great work. As said by the Chief Justice, in Ex parte Yerger, 8 Wall. 85, 98, 19 L. Ed. 332, "this jurisdiction extends to all other cases within the judicial power of the United States" and is subject only "to such exceptions and must be exercised under such regulations" as Congress has or may provide. By acts of Congress, accordingly, appeals and writs of error were originally limited to civil causes, and the general jurisdiction was further limited by the amount involved in the controversy, which was placed at $2,000 under the earlier acts, and subsequently at $5,000. Certain classes of judgments were not included in the limitation as to the amount involved, but the requirement was one of necessity and was applicable to the generality of cases. Criminal cases in the Circuit and District

Courts were not reviewable prior to 1889, except upon questions arising in the Circuit Court upon which the trial judges were divided in opinion and so certified the question to the Supreme. Court for decision. An act of 1889 confers authority for review when the conviction involves the death penalty. Under the writ of habeas corpus, however, jurisdictional questions involved. in a criminal conviction could always be raised and were reviewable.

The act of 1891, known as the "Evarts Act" (chapter 8a of title 13, 1 U. S. Comp. St., ante) which created the Circuit Court of Appeals, effected important changes in the appellate jurisdiction, by substituting a new tribunal for review of the great majority of cases from the Circuit Courts, while the ultimate authority of revision by the Supreme Court was preserved through certiorari for that purpose on certification from the Circuit Court of Appeals. Under this act, with its amendments, the cases which are taken directly to the Supreme Court from the Circuit and District Courts are restricted as follows: (1) "Cases in which the jurisdiction of the court is in issue"-such questions alone being certified by the court below; (2) prize causes; (3) convictions of capital 'crime; (4) cases involving the construction of the Constitution of the United States, or (5) the constitutionality of any law thereof or construction or validity of a treaty; (6) cases in which the Constitution or law of a state is claimed to contravene the federal Constitution. Thus appeals from and writs of error to the nisi prius courts were diverted in large measure from the Supreme Court to the new appellate court. Review by the Supreme Court, therefore, under the ex

isting regulations, comprises: First, cases within the foregoing classifications, taken directly from the trial court; second, cases not made final in the Circuit Courts of Appeals-involving $1,000 in the controversy; third, cases from territorial and other provisional courts, which are reviewable, except such as are assigned to the jurisdiction of a Circuit Court of Appeals; fourth, writs of error to the highest court of a state for review of its decision, a jurisdiction of great importance, which is conferred only in cases involving a federal question and an adverse ruling thereupon; fifth, questions arising in cases pending for review in the Circuit Court of Appeals, and by that court certified to the Supreme Court for instruction; sixth, on certiorari granted by the Supreme Court for review of a decision by the Circuit. Court of Appeals; seventh, in bankruptcy, from a decision on appeal to to the Circuit Court of Appeals allowing or rejecting a claim involving over $2,000, either when the question is within the rule applicable to review of decisions by the highest court of a state, or when a justice of the Supreme Court shall certify that review seems. essential to a uniform construction of the act.

The Circuit Court of Appeals was created by the Evarts act, for each of the nine judicial circuits, to consist of three judges-two constituting a quorum. The qualified members of this court are (1) the justice of the Supreme Court assigned for circuit duty, (2) the Circuit Judges, and (3) District Judges within the circuit the latter being assignable, to supply the bench when not filled by the Circuit Judges or Circuit Justice; but no justice or judge can sit in review of any cause

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