Judiciary Act of 1789, in its distribution of jurisdiction to the several federal courts, recognizes and is framed upon the theory that in all cases to which the judicial power of the United States extends, Congress may rightfully vest exclusive jurisdiction in the federal courts. It declares that in some cases, from their commencement, such jurisdiction shall be exclusive; in other cases it determines at what stage of procedure such jurisdiction shall attach, and how long and how far concurrent jurisdiction of the state courts shall be permitted. Thus, cases in which the United States are parties, civil causes of admiralty and maritime jurisdiction, and cases against consuls and vice-consuls, except for certain offenses, are placed, from their commencement, exclusively under the cognizance of the federal courts.

"On the other hand, some cases, in which an alien or a citizen of another state is made a party, may be brought either in a federal or a state court at the option of the plaintiff; and if brought in a state court may be prosecuted until the appearance of the defendant, and then, at his option, may be suffered to remain there, or may be transferred to the jurisdiction of the federal courts.

"Other cases, not included under these heads, but involving questions under the Constitution, laws, treaties, or authority of the United States, are only drawn within the control of the federal courts upon appeal or writ of error, after final judgment.

"By subsequent legislation of Congress, and particularly by the legislation of the last four years, many of the cases, which by the Judiciary Act could only come under the cognizance of the federal courts after final judgment in the state courts, may be withdrawn from the concurrent jurisdiction of the latter courts at earlier stages, upon the application of the defendant.

"The constitutionality of these provisions cannot be seriously questioned, and is of frequent recognition by both state and federal courts."

§ 575. Statutory Provision for Removal from State to Federal

Courts.

By the original Judiciary Act of 1789 it was provided that suits brought in state courts might be removed into the federal courts only in case all the necessary defendants were aliens or all the necessary plaintiffs were citizens of the State and all the necessary defendants were citizens of another State and all joined in the petition for removal. By the act of 1866 individual defendants were permitted to remove if their interests could be properly adjudicated without the presence of the other defendants.

By act of 1867 either a plaintiff or defendant could remove upon affidavit that local prejudice would prevent a fair trial. By act of 1887 this right was limited to the defendant. By act of 1875 it was declared that either defendant or plaintiff might remove any case of which the federal circuit and the state courts had concurrent jurisdiction. By acts of 1887 and 1888 the jurisdiction of the circuit courts was considerably reduced, which of course had the effect of reducing the rights of removal provided for by the act of 1875.

The laws at present governing removal of suits to the federal circuit courts are the act of August 13, 1888,53 and sections 641, 642, 643 of the Revised Statutes. Section 2 of the act of 1888 provides:

"§ 2. That any suit of a civil nature, at law or in equity, arising under the Constitution or laws of the United States, or treaties made, or which shall be made, under their authority, of which the circuit courts of the United States are given original jurisdiction by the preceding section, which may now be pending, or which may hereafter be brought, in any state court, may be removed by the defendant or defendants therein to the circuit court of the United States for the proper district.54 Any other suit of a civil nature, at law or in equity, of which the circuit courts of the United States are given jurisdiction by the pre

53 25 Stat. at L. 433.

54 For section 1 of this act see ante, p. 980, footnote.

ceding section, and which are now pending, or which may hereafter be brought, in any state court, may be removed into the circuit court of the United States for the proper district by the defendant or defendants therein, being non-residents of that State. And when in any suit mentioned in this section there shall be a controversy which is wholly between citizens of different States, and which can be fully determined as between them, then either one or more of the defendants actually interested in such controversy may remove said suit into the circuit court of the United States for the proper district. And where a suit is now pending, or may be hereafter brought, in any state court, in which there is a controversy between a citizen of the State in which the suit is brought and a citizen of another State, any defendant, being such citizen of another State, may remove such suit into the circuit court of the United States for the proper district, at any time before the trial thereof, when it shall be made to appear to such circuit court that from prejudice or local influence he will not be able to obtain justice in such state court, or in any other state court to which the said defendant may, under the laws of the State, have the right, on account of such prejudice or local influence, to remove said cause: Provided, That if it further appear that said suit can be fully and justly determined as to the other defendants in the state court, without being affected by such prejudice or local influence, and that no party to the suit will be prejudiced by a separation of the parties, said circuit court may direct the suit to be remanded, so far as relates to such other defendants, to the state court, to be proceeded with therein. At any time before the trial of any suit which is now pending in any circuit court or may hereafter be entered therein, and which has been removed to said court from a state court on the affidavit of any party plaintiff that he had reason to believe and did believe that, from prejudice or local influence, he was unable to obtain justice in said state court, the circuit court shall, on application of the other party, examine into the truth of said affidavit and the grounds thereof, and, unless it shall appear to

the satisfaction of said court that said party will not be able to obtain justice in such state court, it shall cause the same to be remanded thereto. Whenever any cause shall be removed from any state court into any circuit court of the United States, and the circuit court shall decide that the cause was improperly removed, and order the same to be remanded to the state court from whence it came, such remand shall be immediately carried into execution, and no appeal or writ of error from the decision of the circuit court so remanding such cause shall be allowed."

"55

By section 641 of the Revised Statutes it is provided that: "When any civil suit or criminal prosecution is commenced in any state court, for any cause whatsoever, against any person who is denied or cannot enforce in the judicial tribunals of the State, or in the part of the State where such suit or prosecution is pending, any right secured to him by any law providing for the equal civil rights of citizens of the United States, or of all persons within the jurisdiction of the United States, or against any officer, civil or military, or other person, for any arrest or imprisonment or other trespasses or wrongs, made or committed by virtue of or under color of authority derived from any law providing for equal rights as aforesaid, or for refusing to do any act on the ground that it would be inconsistent with such law, such suit or prosecution may upon the petition of such defendant, filed in said state court at any time before the trial or final hearing of the cause, stating the facts and verified by oath, be removed for trial, into the next circuit court to be held in the district where it is pending." 56

55 Mere allegation of local influence or prejudice is not sufficient. There must be presented some legal proof, as, for instance, the affidavit of a creditable person. In re Pennsylvania Co., 137 U. S. 451; 11 Sup. Ct. Rep. 141; 34 L. ed. 738.

56 This section goes on to provide that it shall be the duty of the clerk of the state court to furnish the defendant, petitioning for removal, with copies of the process against him, all pleadings, depositions, testimony, etc., and that if the clerk shall neglect or refuse to do this, the federal court may require the plaintiff to file a declaration, petition, or complaint in the cause, and in case of his default, may order a nonsuit and dismiss the case at the costs of the plaintiff, and that such dismissal shall be a

Section 643 of the Revised Statutes provides also that: "When any civil suit or criminal prosecution is commenced in any court of a State against any officer appointed under or acting by authority of any revenue law of the United States now or hereafter enacted, or against any person acting under or by authority of any such officer, on account of any act done under color of his office or of any such law, or on account of any right, title or authority claimed by such officer or other person under such law; or is commenced against any person holding property or estate by title derived from any such officer, and affects the validity of any such revenue law, the said suit or prosecution may, at any time before the trial or final hearing thereof, be removed for trial into the circuit court next to be holden in the district where the same is pending, upon petition of such defendant to said circuit court." The section goes on to provide for issuance of writ by habeas corpus by the federal court to obtain the custody of the defendant.5

§ 576. Congress May not Confer Jurisdiction upon State Courts. As has been pointed out in Section 574 the state courts possess jurisdiction over certain cases concurrently with that possessed by the federal courts. This, however, is not a jurisdiction which is conferred upon them by federal statute, but one which they possess under state law and which they are permitted to retain even after the same jurisdiction is by act of Congress conferred the inferior federal tribunals. Congress, indeed, is without power to confer jurisdiction upon any courts not created by itself.58

upon

bar to any further suit touching the matter in controversy. Section 642 provides for the issuance of the writ of habeas corpus to obtain the custody of the defendant. A valuable discussion of the scope and intent of these sections is to be found in Kentucky v. Powers, 201 U. S. 1; 26 Sup. Ct. Rep. 387; 50 L. ed. 633.

57 For further consideration of this law see in this treatise, Chapter VII. 58 Houston v. Moore, 5 Wh. 1; 5 L. ed. 19.