CRANE v. REEDEE.

the plaintiff to the course of the circuit court will appear to be nearly if not quite unanswerable. Still the question is so vitally important that any additional suggestion possessing even the merit of being only pertinent may be excused. And as there are some considerations which bear upon the matter that do not appear to have been noticed, it is deemed admissible to glance at one or two of them in connection with a few observations upon the form and meaning of the acts of congress.

In dealing with statutes intended to affect or claimed to affect the continuance of jurisdiction in courts of original and general authority the law has always recognized a principle of construction which served to favor the retention of jurisdiction. As long ago as Charles II., it was laid down as something well settled and understood, that the jurisdiction of the King's bench could not be ousted without particular words in acts of parliament (per Kelynge, C. J., in Smith and others, Commissioners of Sewers, 1 Mod., 44); and in Cates v. Knight, 3 T. R., 442, it was declared that the court could not be deprived of its jurisdiction but by express words or by necessary implication, any more than an heir at law of his inheritance. The same view is repeated in Rex v. Moreley, 2 Burr., 1040, in Shipman v. Henbest, 4 T. R., 109, and in Crisp v. Bunbury, 8 Bing., 394, and in many other books. In Ex parte Heath and others, 3 Hill, 42, it was said by the supreme court of New York that the language of an act designed to divest that court of its jurisdiction over the proceedings of inferior tribunals must express the intent with such clearness as to leave no room for doubt. Indeed the authorities are very numerous and striking, that before it can be claimed that an act is to have the effect to absolutely divest a jurisdiction which has regularly and fully vested, the law in favor of it must be clear and unambiguous.-Parsons v. Bedford, 3 Pet., 440.

Whatever presumptions are permitted are in favor of the retention of the authority, are in favor of the usual and ordinary course, as opposed to what is unusual and excep

CRANE . REEDER.

tional; and it is very natural and reasonable to suppose that the legislature, in so far as they should think it needful to authorize interruptions and the shiftings of jurisdiction, would express themselves with clearness and leave nothing for the play of doubt and uncertainty.

The adjudged cases which serve to illustrate this doctrine and explain its application are abundant. There are several relating to the recent stamp act which have a bearing on the point. It was held that notwithstanding the generality of the words, the acts were not intended to apply to the state courts.-Clemens v. Conrad, 19 Mich., 170; Green v. Holway, 101 Mass., 243; Carpenter v. Snelling, 97 Mass., 452; Griffin v. Ranney, 35 Conn., 239; Haight v. Grist, 64 N. C., 739; People v. Gates, 43 N. Y., 40; Craig v. Dimock, 47 Ill., 308.

There are also several decisions confining the early, and some of the late amendments of the constitution of the United States, notwithstanding the breadth of their language, and holding them inapplicable to the states; and these cases are not unworthy of attention in connection with this subject.-Barron v. The City of Baltimore, 7 Pet., 243; Twitchell v. The Commonwealth, 7 Wall., 321; Bradwell v. The State, 16 Wall., 130; Slaughter-House Cases, ib., 36; Livingston's Lessee v. Moore, 7 Pet., 551; Fox v. Ohio, 5 How., 434.

The authorities which in one form or another bear more or less upon and recognize or imply the validity and importance of the principle in question, are too great in number and various in character to be introduced into an opinion or even to be cited. And when we consider that the state courts are within its influence, and give attention to the relations subsisting between the tribunals of the state. and Union, and also to the relations of the two political systems, we shall find abundant reason to favor the application of the principle in order to prevent conflict and confusion. We may now notice the terms of the acts of congress relating to the removal of causes.

CRANE V. REEDER.

The act of 1789 literally and expressly confines the application to remove, to the time of the appearance by the defendant in the state court. The right is also expressly given to alien defendants and citizen defendants residing in some state other than that in which the suit is commenced. The conditions upon which the exercise of the right is to depend are thus laid down, and they prescribe the lawful occasion and limits of the right. The application sanctioned by the court below was not warranted by the law of 1789. It was not made at the stage to which that law confines it. Neither is one of the causes or grounds mentioned in the application, namely, the danger of injustice in the state court, a cause or ground for removal under the law of 1789.

The main purpose of the law of 1966 appears to have been the prevention of a practice which took advantage of a construction of the act of 1789 and served in many cases to defeat the benign purpose of the law. It came to be held that alien and non-resident citizen defendants could not take steps to remove when impleaded with others who were citizens of the state in which the suit was brought; and on the footing of this interpretation plaintiffs were led to implead or join a resident citizen with no other real object than to preclude the right of removal. To remedy this mischief and carry out the original policy of the act of 1789, congress intervened in 1866 and passed the act of that year. By this law also the right to promote a transfer was confined to defendants, and the ground or cause prescribed was the same as in the act of 1789, namely, the status of the particular defendant, and not the probability of injustice in the state court as a consequence of local or judicial hostility or prejudice. It likewise expressly and absolutely required the application to be made before "the trial" or final hearing.

In this legislation touching the proceedings of courts we must presume that congress was acquainted with the course of judicial action and had knowledge of the practice

CRANE 0. REEDER.

which had prevailed. We must also suppose that they understood the meaning of the words they chose to employ, as that meaning had become generally fixed and settled.Parsons v. Bedford, 3 Pet., 440; Robinson v. Campbell, 3 Wheat., 212; King v. Judd, 2 T. R., 255; Beaden v. King, 9 Hare, 499; Pollard v. Patterson's Admr., 3 Hen. & Mun., 67; Lowenberg v. The People, 27 N. Y., 336; Com. v. Churchill, 2 Met., 118; Merchants' Bank v. Cook, 4 Pick., 405; Snell v. Company, 24 Pick., 296; Thornly v. Fleetwood, Strange, 318, 377.

The act was intended to provide for the removal of causes at law and in equity, and it is well known to every lawyer, and must have been understood in congress, that according to general usage by the bench and bar, the term "trial" is uniformly, though perhaps not universally applied to the actual litigation of the merits in an action at law, as contradistinguished from the debate on the merits in a case in equity, and that a "hearing" is a term more precisely applied to equity cases, and others savoring of civil-law forms, as contradistinguished from those proceedings which are either grounded on the common law, or are shaped by analogy to its forms and methods.-See Parsons v. Bedford, before cited; United States v. Wonson, 1 Gall., 4; United States v. Goodwin, 7 Cranch, 108.

It is, then, reasonable to suppose, that in using the term "trial," congress referred to proceedings of a common-law nature, and in using the term "hearing," had in contemplation cases of equitable cognizance, and any others of a civil-law nature within the reason of the enactment, and that in using both terms they intended to mark and preserve the distinction which exists between them, and prescribe and confine their application to their respective subjects.

The term "trial" as used in the act of 1866 should therefore be held to apply to a case like the present, and the associated term "hearing" should be referred to proceedings of a different nature. Keeping this in view, and

CRANB 0. REEDER.

recalling the circumstance that the act of 1866 required. the application to be made before "the trial," the conclusion follows that the case at bar was not within that law. "The trial" had certainly taken place, and a condition which was indispensable, in order to make the act attach, was impossible. Three trials upon the merits had occurred.

Some observations were made on the policy and occasion of the act of 1867 which are undoubtedly correct, but as in my judgment the terms of the law on settled principles of construction exclude the case before us, it is not considered necessary to look particularly at that subject.

The law of 1867, which is the last and remaining one providing for transferring causes, literally and expressly applies to citizens, and has no application whatever to cases where the ground of removal is the alienage of defendants. It contemplates on its face a distinct class of cases, a class of cases originating in the anomalous state of things produced by the civil war. It provides for the transfer of suits between citizens of different states where the abuse or denial of justice is apprehended in the state tribunal. This is all. If the act had been designed to meet the case of alien defendants they would have been expressly named. They were the special objects of the two former acts, and these acts were present to the attention of congress when the law of 1867 was passed. One of them is referred to in the title and in the body of the law. Still aliens are not mentioned at all. This silence manifests that congress did not intend to make any change concerning alien defendants. The act of 1867, then, afforded no foundation for the application of the defendants or the decision of the circuit court. The conditions to enable the act to attach had no existence.

But it may be said that this result may follow if these laws are taken severally and successively, and not follow if they are brought together and interwoven and blended, and that they are entitled to be fused and consolidated into one consistent whole.