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the suit is brought and a citizen of another State, or against an alien; and the matter in dispute must exceed $500.

The expressions of the Judiciary Act refer to the systems of law prevailing in the country from which the Colonies mainly derived their jurisprudence; but in England there were several laws. Goold, J., in Regina v. Paty et als., 2 Ld. Raym. 1106.

Lex terroe is not confined to the common law, but takes in all the other laws which are in force in this realm, as the civil and canon law,” &c. Id. 1108.

Probate proceedings were not matters either of common-law or equity cognizance, but appertained to the canon or ecclesiastical law.

“ The executor must prove the will of the deceased, which is done either in common forin, which is only upon his own oath before the ordinary or his surrogate, or per testes, in more solemn form of law, in case the validity of the will be disputed. When the will is proved, the original must be deposited in the registry of the ordinary.” 2 Bl. Com. 508. “The prerogative court is estab lished for the trial of all testamentary causes where the deceased has left bona notabilia in two different dioceses; in which case the probate of the wills belongs to the archbishop of the province, by way of special prerogative," &c. Id. 3, 65, 66.

It follows, therefore, that this proceeding is not a suit or controversy at common law or in equity, and hence not within the jurisdiction conferred upon the courts of the United States. This court has, in effect, so decided. Mr. Justice Davis, in delivering its opinion in Gaine: v. New Orleans, 6 Wall. 642, uses this striking language:

“ The attempt to impeach the validity of this will shows the importance attached to it by the defence in determining the issue we are now considering. But the will cannot be attacked here. When a will is duly probated by a State court of competent jurisdiction, that probate is conclusive of the validity and contents of the will in this court.

“ But why, if the will is invalid, has the probate of it rested for twelve years unrecalled, when express liberty was given by the Supreme Court of Louisiana for any one interested to contest it in a direct action with the complainant? If, with this clear indication of the proper course to be pursued, the probate of the will still

remains unrevoked, the reasonable conclusion is that the will itself could not be successfully attacked.”

The defendants in error, being thus advised, brought this direct proceeding for revocation in the Probate Court. No other State court had jurisdiction. McComb: v. Dunbar, 1 La. 21; Graham's Heirs v. Gibson, 14 id. 150; Aden v. Cabouret, 1 La. Ann. 171. The right of removal cannot apply. Notwithstanding the decree admitting the will to probate authorized any person to contest the will and its probate as a means of defence by way of answer or exception, whenever it should be set up as a muniment of title, yet, when the case actually arose, the courts of the United States, for want of jurisdiction, denied the parties a hearing upon such a defence by way of answer, and declared that we must resort to a proceeding which could be only maintained in a State court of a peculiar and limited jurisdiction. When this opinion was given, the act of March 2, 1867, was in force, and it does not authorize the removal of

any suits not provided for by former legislation. This court would not have declined to allow us to contest the validity of this pretended will in a Federal court, if jurisdiction over such a matter could have been subsequently acquired by removing under that act a case involving the identical questions. If the Federal courts have no original jurisdiction whatever in matters of probate, can it be exercised by them in a suit removed thereto from a State court merely on account of alleged local influence and prejudice? Such jurisdiction must be derived from express grant, and not from implication or inference. Before it can be wrested from the courts of probate, and be thus indirectly conferred upon the courts of the United States, the jurisprudence established by the following decisions of this and of other tribunals must be overthrown. Case of Broderick's Will, 21 Wall. 503; Gaines v. New Orleans, 6 id. 642; Gaines v. Chew f Relf, 2 How. 619; Fonvergne v. City of New Orleans, 18 id. 473; Tarver v. Tarver, 9 Pet. 179; Adams v. Preston, 22 How. 488; Florentine v. Barton, 2 Wall. 216; Thompson v. Tolmin, 2 Pet. 166; Osgood v. Breed, 12 Mass. 533; Gelston v. Hoyt, 3 Wheat. 316; Tompkins v. Tompkins, 1 Story, 552; Armstrong v. Lear, 12 Wheat. 175; Laughton v. Atkins, 1 Pick. 541; Inhabitants of Dublin v. Chadbourne, 16 Mass.

441; Lalanne Heirs v. Moreau, 13 La. 436; Lewis': Heirs v. His Executors, 5 id. 391; Derbigny v. Pierce, 18 id. 551; Graham Heirs v. Gibson, 14 id. 149; Box v. Lawrence, 14 Tex. 545; Tibbatt: v. Berry et al., 10 B. Mon. 490.

MR. JUSTICE FIELD, after stating the case, delivered the opinion of the court.

In the view we take of the application of the plaintiff in error to remove the cause to the Federal court, no other question than the one raised upon that application is open for our consideration. If the application should have been granted, the subsequent proceedings were without validity; and no useful purpose would be subserved by an examination of the merits of the defence, upon the supposition that the State court rightfully retained its original jurisdiction.

The action is in form to annul the alleged will of 1813 of Daniel Clark, and to recall the decree by which it was probated; but as the petitioners are not heirs of Clark, nor legatees, nor next of kin, and do not ask to be substituted in place of the plaintiff in error, the action cannot be treated as properly instituted for the revocation of the probate, but must be treated as brought against the devisee by strangers to the estate to annul the will as a muniment of title, and to restrain the enforcement of the decree by which its validity was established, so far as it affects their property. It is, in fact, an action between parties; and the question for determination is, whether the Federal court can take jurisdiction of an action brought for the object mentioned between citizens of different States, upon its removal from a State court. The Constitution declares that the judicial power of the United States shall extend to “ troversies between citizens of different States," as well as to cases arising under the Constitution, treaties, and laws of the United States; but the conditions upon which the power shall be exercised, except so far as the original or appellate character of the jurisdiction is designated in the Constitution, are matters of legislative direction. Some cases there are, it is true, in which, from their nature, the judicial power of the United States, when invoked, is exclusive of all State authority. Such are cases in which the United States are parties,

cases of 2

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VOL. II.

admiralty and maritime jurisdiction, and cases for the enforcement of rights of inventors and authors under the laws of Congress. The Moses Taylor, 4 Wall. 429 ; Railway Co. v. Whitton, 13 id. 288. But, in cases where the judicial power of the United States can be applied only because they involve controversies between citizens of different States, it rests entirely with Congress to determine at what time the power may be invoked, and upon what conditions, — whether originally in the Federal court, or after suit brought in the State court; and, in the latter case, at what stage of the proceedings, — whether before issue or trial by removal to a Federal court, or after judgment upon appeal or writ of error. The Judiciary Act of 1789, in the distribution of jurisdiction to the Federal courts, proceeded upon this theory. It declared that the circuit courts should have original cognizance, concurrent with the courts of the several States, of all suits of a civil nature, at common law or in equity, involving a specified sum or value, where the suits were between citizens of the State in which they were brought and citizens of other States; and it provided that suits of that character by citizens of the State in which they were brought might be transferred, upon application of the defendants, made at the time of entering their appearance, if accompanied with sufficient security for subsequent proceedings in the Federal court. The validity of this legislation is not open to serious question, and the provisions adopted have been recognized and followed with scarcely an exception by the Federal and State courts since the establishment of the government. But the limitation of the original jurisdiction of the Federal court, and of the right of removal from a State court, to a class of cases between citizens of different States involving a designated amount, and brought by or against resident citizens of the State, was only a matter of legislative discretion. The Constitution imposes no limitation upon the class of cases involving controversies between citizens of different States, to which the judicial power of the United States may be extended; and Congress may, therefore, lawfully provide for bringing, at the option of either of the parties, all such controversies within the jurisdiction of the Federal judiciary.

As we have had occasion to observe in previous cases, the

provision of the Constitution, extending the judicial power of the United States to controversies between citizens of different States, had its existence in the impression that State attachments and State prejudices might affect injuriously the regular administration of justice in the State courts. It was originally supposed that adequate protection against such influences was secured by allowing to the plaintiff an election of courts before suit; and, when the suit was brought in a State court, a like election to the defendant afterwards. Railway Co. v. Whitton, 13 Wall. 289. But 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. 558), greater facilities for the removal of cases involving controversies between citizens of different States from a State court to a Federal court, when it appeared that such influences existed. That act declared, that where a suit was then pending, or should afterwards be brought in any State court, in which there was a controversy between a citizen of the State in which the suit was brought and a citizen of another State, and the matter in dispute exceeded the sum of $500, exclusive of costs, such citizen of another State, whether plaintiff or defendant, upon making and filing in the State court an affidavit that he had reason to believe, and did believe, that from prejudice or local influence he would not be able to obtain justice in the State court, might, at any time before final hearing or trial of the suit, obtain a removal of the case into the Circuit Court of the United States, upon petition for that purpose, and the production of sufficient security for subsequent proceedings in the Federal court. This act covered every possible case involving controversies between citizens of the State where the suit was brought and citizens of other States, if the matter in dispute, exclusive of costs, exceeded the sum of $500. It mattered not whether the suit was brought in a State court of limited or general jurisdiction. The only test was, did it involve a controversy between citizens of the State and citizens of other States ? and did the matter in dispute exceed a specified

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