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civil cases in the federal courts. The judiciary act of 1789 had declared, (a) that the laws of the several states, except where the constitution, treaties, or statutes of the Union otherwise required, should be regarded as rules of decision in trials at common law in the courts of the United States, in cases where they applied. (b) The subsequent act of May 8th, 1792, for regulating processes in the courts of the United States, (c) confirmed the forms of writs, executions, and other pro- 342 cesses, except their style, and the forms and modes of proceeding then used in suits at common law in the federal courts, and declared that the modes of proceeding in suits in equity should be according to the principles and usages of courts of equity." But all these forms and modes were to be "subject to such alterations and additions as the said courts respectively should, in their discretion, deem expedient, or to such regulations as the Supreme Court of the United States should think proper from time to time to prescribe to any circuit or district court concerning the same." (d) Under those provis

States in New York, March 20th, 1843; (United States v. Mackenzie, 1 N. Y. Legal Observer, 371 ;) and, after a powerful discussion, he instructed and charged the grand jury, that the jurisdiction of the naval court-martial was exclusive, and that the civil tribunals had no jurisdiction in the case of Captain Mackenzie, then on trial in the harbor of New York, before a naval court-martial, on a charge of murder on the high seas, on board the United States sloop of war Somers, by hanging three of the crew for mutiny.1

(a) Act 24th September, 1789, c. 20, sec. 34.

(b) This provision was inapplicable to the practice of the national courts, and only furnishes a rule to guide them in the formation of their judgments. In the case of Swift v. Tyson, Sup. Court, U. S. 16 Peters's R. 1, it was decided, that the statute only extended to the statutes and permanent local usages of a state, and the construction thereof adopted by the local tribunals, and to rights and titles to real estates, and to other matters immovable and intra-territorial in their nature and character. It did not extend to contracts, or other instruments of a commercial nature.

(c) Ch. 36, sec. 2.

(d) The act of congress of May 19th, 1828, c. 68, rendered the forms of mesne process, except the style and the forms and modes of proceeding in the federal courts in those states admitted into the Union since September 29th, 1789, conformable to the supreme courts of law and equity in those states; and declared that writs of execution and other final process in the federal courts, should, except as to style, be the same in

1 Trespass may be maintained in the state courts against a naval officer for illegally assaulting and imprisoning one of his subordinates, though the act was done on the high seas, and under the color of naval discipline. Wilson v. Mackenzie, 7 Hill's R. 95.

ions, the court declared, in the case last referred to, that the remedies in the federal courts, at common law and in equity, were to be, not according to the practice of state courts, "but according to the principles of common law and equity, as dis

each state as were then (May, 1828,) used in the courts of such states, and with power in the federal courts, in their discretion, to alter their final process so far as to conform it to the future changes in that process in the state courts. The practice of the supreme courts of the state in use in September, 1789, was adopted, subject to alterations, by the federal courts. 1 Paine's Rep. 428, 429. Wayman v. Southard, 10 Wheaton, 1, 31, 32, 50. Bank of United States v. Halstead, 10 Wheaton, 51. 1 Peters's Cir. Rep. 1. Beers v. Haughton, 9 Peters's U. S. Rep. 329, 369–371. These modes and forms of proceeding remain unaffected by subsequent state regulations on the subject, for the act of congress did not adopt prospectively such alterations as the states might afterwards make. Lane v. Townsend, Ware's Rep. 286. Springer v. Foster, 1 Story's R. 601. Such parts only of the laws of a state as are applicable to the courts of the United States, are adopted by the process act of congress. A penalty is not adopted, being one given against a sheriff in default. Gwin v. Breedlove, 2 Howard U. S. Rep. 29. Mr. Justice Story doubted whether congress possessed constitutional authority to adopt, prospectively, state legislation on any given subject. 3 Sumner, 369. When, therefore, the state of Tennessee, by act, in 1820, allowed lands sold on execution to be redeemed on certain terms, it was held that lands thereafter sold on execution under federal process, were not redeemable under the provisions of the statute, for state legislation cannot interfere with the process of the federal courts. Polk v. Douglass, 6 Yerger, 209. Ross v. Duval, 13 Peters, 45, S. P. The federal courts follow the decisions of the state courts on the construction of state laws, unless they come in conflict with the constitution or laws of the United States. 10 Wheaton, 159. 1 Paine's Rep. 564. They follow, also, those statutes of the several states which prescribe rules of evidence in civil cases, in trials at common law. M'Neil v. Holbrook, 12 Peters, 84. The state laws which are made rules of decision in the federal courts, are those which apply to rights of person and property. United States v. Wonson, 1 Gall. 18. Mayer v. Foulkrod, 4 Wash. Cir. Rep. 349. See, also, infra, vol. iv. 278, note. State laws limiting actions and executions on judgments are rules of property, and become rules of decision in the federal courts. Ross v. Duval, 13 Peters, 45. By act of congress of August 23, 1842, c. 188, the Supreme Court has power to prescribe, regulate, and alter the forms of process in the District and Circuit Courts, the forms of pleading in suits at common law, or in admiralty, or in equity, and of taking testimony and of entering decrees, and generally to regulate the whole practice of the courts. The rules of practice in admiralty cases, on the instance side of the District Court, were established in pursuance of the act of 23d August, 1842, c. 188. See those rules in 3 N. Y. Legal Observer, 357. With respect to the common law as a part of federal jurisprudence, the Supreme Court declared, in Wheaton v. Donaldson, 8 Peters's R. 658, that there could not be a common law of the United States. Each of the states has its local usages, customs, and common law. There was no principle which pervades the Union, and has the authority of law, that is not embodied in the constitution and laws of the Union. The common law could be made a part of our federal system only by legislative adoption, and when a common-law right is asserted, the courts look to the state in which the controversy originated.

tinguished and defined in that country, from which we derived our knowledge of those principles." (a)

In this view of the subject, the common law may be cultivated as part of the jurisprudence of the United States. In its improved condition in England, and especially in its improved and varied condition in this country, under the benign influence of an expanded commerce, of enlightened justice, of republican principles, and of sound philosophy, the common law has become a code of matured ethics and enlarged civil wisdom, admirably adapted to promote and secure the freedom and happiness of social life. It has proved to be a system replete with vigorous and healthy principles, eminently conducive to the growth of civil liberty; and it is in no instance disgraced by such a slavish political maxim as that with which the Institutes of Justinian are introduced. (b) It is the common jurisprudence of the United States, and was brought with them as * colonists from England, and established here, so far as *343 it was adapted to our institutions and circumstances. It was claimed by the congress of the United Colonies, in 1774, as a branch of those "indubitable rights and liberties to which the respective colonies are entitled." (c) It fills up every interstice, and occupies every wide space which the statute law cannot occupy. Its principles may be compared to the influence of the liberal arts and sciences; adversis perfugium ac solatium prœbent; delectant domi, non impediunt foris; pernoctant nobiscum, peregrinantur, rusticantur. To use the words of the learned jurist, to whom I have already alluded, (d) "we live in the

(a) Though there be no equity state courts, that does not prevent the exercise of equity jurisdiction in the courts of the United States; they adopt and follow the equity jurisprudence existing in England. The District Court of Louisiana has accordingly equity powers, and it is bound to proceed in equity causes according to the principles, rules, and usages which belong to the courts of equity, as contradistinguished from courts of common law. Gaines v. Relf, 15 Peters's U. S. Rep. 9. Lorman v. Clarke, 2 McLean's R. 568, 571.1

(b) Quod principi placuit, legis habet vigorem. Inst. 1, 2, 6.

(c) Declaration of Rights of October 14th, 1774. Journals of Congress, vol. i. p. 28. (d) Du Ponceau on Jurisdiction, p. 91. See, also, 1 Story's Comm. on the Consti

1 Neves v. Scott, 13 How. U. S. 268. State of Pennsylvania v. Wheeling Bridge Co. 13 How. U. S. 519. Bennet v. Butterworth, 11 How. U. S. 669.

midst of the common law, we inhale it at every breath, imbibe it at every pore; we meet with it when we wake and when we lay down to sleep, when we travel and when we stay at home; and it is interwoven with the very idiom that we speak ; and we cannot learn another system of laws, without learning, at the same time, another language."

II. The jurisdiction of the federal courts ratione personarum, and depending on the relative character of the litigant parties, has been the subject of much judicial discussion. The constitution gives jurisdiction to the federal courts of all suits between aliens and citizens, and between resident citizens of different states, (a) and we have a series of judicial decisions on that subject. If the case arises under the constitution, laws or treaties of the Union, it is immaterial who may be parties, for the subject-matter gives jurisdiction; and if it arises between aliens and citizens, or between citizens of different states, it is immaterial what may be the nature of the controversy, for the character of the parties gives jurisdiction.

Jurisdiction when an

party.

*

In Bingham v. Cabot, (b) the Supreme Court held, that it was necessary to set forth the citizenship alien is a 344 of the respective parties, or the alienage, when a foreigner was concerned, by positive averments, in order to bring the case within the jurisdiction of the Circuit Court; and that if there was not a sufficient allegation for that purpose on record, no jurisdiction of the suit would be sustained. The same doctrine was maintained in Turner v. Enrille, (c) and in Turner v. The Bank of North America; (d) and it was declared, that the Circuit Court was a court of limited jurisdiction, and had cognizance only of a few cases specially circumstanced, and that the fair presumption was, that a cause was without

tution, 140, 141. Vol. ii. pp. 264-268. The learned commentator, in the volume last cited, ably, and, in my opinion, satisfactorily contends that the common law, in the absence of positive statute law, regulates, interprets, and controls the powers and duties of the Court of Impeachments under the constitution of the United States; and though the common law cannot be the foundation of a jurisdiction not given by the constitution and laws, that jurisdiction, when given, attaches, and is to be exercised according to the rules of the common law. Were it otherwise, there would be nothing to exempt us from an absolute despotism of opinion and practice. (a) Lessee of Butler v. Farnsworth, 4 Wash. Cir. Rep. 101. (b) 3 Dallas, 382.

(c) 4 Dallas, 7.

(d) 4 Ibid. 8.

its jurisdiction till the contrary appeared. Upon that principle the rule was founded, making it necessary to set forth, upon the record of the Circuit Court, the facts or circumstances which gave jurisdiction, either expressly or in such manner as to render them certain by legal intendment. It is necessary, therefore, where the defendant appears to be a citizen of one state, to show, by averment, that the plaintiff is a citizen of some other state, or an alien; or, if the suit be upon a promissory note, by the indorsee, to show that the original payee was so; for it is his description, as well as that of the indorsee, which gives the jurisdiction. But an alien cannot sue a citizen in the Circuit Court of the United States, if the latter be at the time a resident in a foreign country, notwithstanding he has property in the district which might be attached. No compulsory process, under the judiciary act of 1789, lies against a person who is not at the time an inhabitant of, or is not found in the district in which the process issues. This goes to exclude from the federal courts the proceeding by foreign attachment under the local laws of the states. (a)

citizens of

The judiciary act of 1789, sec. 11, gives jurisdic- Between tion to the Circuit Court when an alien is a party; different and it was decided, in Mossman v. Higginson, (b) that states. the jurisdiction was confined to the case of suits between citizens and foreigners, and did not extend to suits between alien and alien; and *that if it appeared on record that *345 the one party was an alien, it must likewise appear affirmatively that the other party was a citizen. So, again, in Course v. Stead, (c) it was decided to the same effect. The principle is, that it must appear upon the record, that the character of the parties supports the jurisdiction; and the points in that case were reasserted in Montalet v. Murray,(d) and in Hodgson v. Bowerbank, (e) and in Sullivan v. The Fulton Steam

(a) Picquet v. Swan, 5 Mason's Rep. 35. Toland v. Sprague, 12 Peters, 300. (b) 4 Dallas, 12.

(c) 4 Dallas, 22. The omission of the above averments, or any other requisite to give jurisdiction, is matter of substance, and not cured by verdict, nor amendable after verdict. 1 Paine's Rep. 486, 594. Jackson v. Twentyman, 2 Peters's U. S. Rep. 136.

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