133

and action in the state, and have all the effect of law, and which it would be wrong to disturb. This is especially true with regard to the law of real estate and the construction of state constitutions and statutes. Such established rules are always regarded by the federal courts, no less than by the state courts themselves, as authoritative declarations of what the law is. But when the law has not been thus settled, it is the right and duty of the federal courts to exercise their own judgment, as they also always do in reference to the doctrines of commercial law and general jurisprudence." 132 Thus when the question concerns the construction or effect of any provision of the constitution of the state or of a state statute, and it has been authoritatively decided by the court of last resort in the state, the federal courts will consider themselves bound to adopt and apply the doctrine so laid down." For instance, the question of the construction and effect of a statute of a state regulating assignments for the benefit of creditors is a question upon hich the decisions of the highest court of the state, establishing a rule of property, are of controlling authority in the courts of the United States.134 So, also the construction given by the supreme court of a state to a statute of limitations of the state will be followed by the federal courts. 185 In case of changes of opinion in the state courts, "if the highest judicial tribunal of a state adopts new views as to the proper construction of such a statute, and reverses its former decisions, this court [the supreme court of the United States] will follow the latest settled adjudications." 136 But the federal courts "cannot be expected to follow oscillations in the process of settlement," and where it is not clear that the supreme court of the state regards the question as decided, they will be free to follow their own opinions.137 But if the construction of the state constitution or statute, as set

132 Burgess v. Seligman, 107 U. S. 20, 2 Sup. Ct. 10; Townsend v. Todd, 91 U. S. 452; Atlantic & G. R. Co. v. Georgia, 98 U. S. 359; Sims' Lessee v. Irvine, 3 Dall. 425; Walker v. Commissioners, 17 Wall. 648.

183 Cornell University v. Fiske, 136 U. S. 152, 10 Sup. Ct. 775; McElvaine v. Brush, 142 U. S. 155, 12 Sup. Ct. 156.

134 South Branch Lumber Co. v. Ott, 142 U. S. 622, 12 Sup. Ct. 318.

135 Bauserman v. Blunt, 147 U. S. 647, 13 Sup. Ct. 466; Leffingwell v. Warren, 2 Black, 599.

136 Leffingwell v. Warren, 2 Black, 599.

137 Myrick v. Heard, 31 Fed. 241.

tled by its courts, conflicts with or impairs the efficacy of some provision of the constitution or a law of the United States, or a rule of general commercial law, the federal courts will not be bound to follow it.138 Thus, when, at the time of creating and issuing a negotiable evidence of indebtedness of a municipal corporation in a state, the highest court of the state has construed the law under which it purports to have been issued, rights accruing under that construction will not be affected merely by subsequent decisions of the same court, varying or departing from it.189 For similar reasons, the federal courts will follow the decisions of the state courts on questions of real-property law, especially those involving the nature or validity of titles. 140 And the same thing is true of questions of purely local law, such as the rate of interest borne by a note after maturity and until paid.141

But the federal courts sitting in any state have equal and co-ordinate jurisdiction with the state courts in determining questions of general commercial law, although they will, in case of doubt, lean to an agreement of views with the state courts.142 For example, on the question of the extent to which a common carrier may legally limit his liability,143 or on questions as to the rights and liabilities of an indorser of commercial paper,1 144 the courts of the United States are not bound to follow the decisions of the state courts, but may judge for themselves. Such, also, and necessarily, is the rule when the question concerns the construction of the federal constitution, or a treaty or act of congress, or the determination of a federal question.145 And where the question is one of general equity jurispru dence, the national courts, having an equity system of their own,

138 Stutsman Co. v. Wallace, 142 U. S. 293, 12 Sup. Ct. 227; Gelpcke v. City of Dubuque, 1 Wall. 175; Olcott v. Supervisors, 16 Wall. 678.

139 Anderson v. Santa Anna Tp., 116 U. S. 356, 6 Sup. Ct. 413.

140 St. Louis v. Rutz, 138 U. S. 226, 11 Sup. Ct. 337; McKeen v. Delancy's Lessee, 5 Cranch, 22.

141 Ohio v. Frank, 103 U. S. 697.

142 Clark v. Bever, 139 U. S. 96, 11 Sup. Ct. 468; Swift v. Tyson, 16 Pet. 1; Roberts v. Bolles, 101 U. S. 119; Thompson v. Perrine, 103 U. S. 806.

143 New York Cent. R. Co. v. Lockwood, 17 Wall. 357.

144 Van Vleet v. Sledge, 45 Fed. 743.

145 Louisville & N. R. Co. v. Palmes, 109 U. S. 244, 3 Sup. Ct. 193.

will be under no obligation to accept the judicial decisions of the state wherein they sit.146

Practice.

99 147

An act of congress provides that "the practice, pleadings, and forms and modes of procedure in civil causes, other than admiralty and equity causes, in the circuit and district courts, shall conform as near as may be to the practice, pleadings, and forms and modes of procedure existing at the time in like causes in the courts of record of the state within which such circuit or district courts are held, any rule of court to the contrary notwithstanding." The effect of this provision is that the federal courts conform their practice, in all cases at common law, to that of the state in which they sit. If the state has adopted a code of procedure, proceedings in the federal courts, in actions at law, are governed by the code. If the state adheres to the common-law pleading and practice, the federal courts will do the same. But proceedings in equity are not affected by this rule. In regard to the jurisdiction in equity, the acts of congress provide that the practice in equity in the federal courts shall be substantially the same throughout the Union. And accordingly the federal courts have a uniform and complete system of equity procedure which is administered without reference to the system prevailing in the particular state.148 This practice is founded on the chancery practice in England, but modified by the rules in equity made by the supreme court. Alterations in the equity jurisdiction of the states cannot affect the jurisdiction of the federal courts in equity.149 And under the constitution, the distinction between actions at law and suits in equity must be preserved in the federal courts, even where the distinction has been abolished in the state where the court is sitting.150 And so in Louisiana, where the civil law forms the basis of the jurisprudence of the state, and the distinction between law and equity never was known, the fed

146 Neves v. Scott, 13 How. 268.

148 Hurt v. Hollingsworth, 100 U. S. 100.

147 Rev. St. U. S. § 914.

149 In re Broderick's Will, 21 Wall. 503; Holland v. Challen, 110 U. S. 15, 8 Sup. Ct. 495; Reynolds v. Bank, 112 U. S. 405, 5 Sup. Ct. 213.

150 Bennett v. Butterworth, 11 How. 669; Scott v. Neeley, 140 U. S. 106, 11 Sup. Ct. 712.

BL.CONST.L.-11

eral courts must still have distinct branches for such causes as would be cognizable at common law and such as would belong to the jurisdiction of equity.151

Adjunct Powers.

The federal courts possess all the incidental powers which are necessary to enable them to exercise their jurisdiction and fulfill their appropriate functions. Thus, they may appoint their inferior officers and see that they discharge their duties; they may admit and disbar attorneys; they may preserve order in their proceedings and maintain their own authority by punishing contempts against them; they may make rules of practice; they may issue the writs of attachment, execution, injunction, and mandamus; they may keep records; and their judgments operate as a lien upon the lands of the judgment debtor.

Habeas Corpus.

The power to issue the writ of habeas corpus, for the purpose of an inquiry into the causes of restraint of liberty, has been granted by statute to the various federal courts and their judges in certain classes of cases where its employment may be necessary to the discharge of their business, or where the deliverance of the prisoner may be necessary for the vindication of federal law or of the right of those courts to pass upon it finally. This grant of authority is subject to the following limitation: "The writ of habeas corpus shall in no case extend to a prisoner in jail, unless where he is in custody under or by color of the authority of the United States, or is committed for trial before some court thereof, or is in custody for an act done or omitted in pursuance of a law of the United States, or of an order, process, or decree of a court or judge thereof, or is in custody in violation of the constitution or of a law or treaty of the United States, or, being a citizen or subject of a foreign state, and domiciled therein, is in custody for an act done or omitted under any alleged right, title, authority, privilege, protection, or exemption claimed under the commission, or order, or sanction of any foreign state, or under color thereof, the validity and effect whereof depends upon the law of nations, or unless it is necessary to bring the pris oner into court to testify." 152

151 Fenn v. Holme, 21 How. 481.

152 Rev. St. U. S. §§ 751-753.

REMOVAL OF CAUSES.

97. In order to secure the ends for which the grant of judicial power to the federal system of courts was made by the constitution, provision has been made, by statute, for the removal of many kinds of actions from the state courts in which they were begun into the federal courts, for trial and decision, subject to certain conditions and limitations.

It is competent for congress to authorize the removal to the federal courts of all classes of cases to which the federal judicial power of the United States, as defined by the constitution, extends, and to give them jurisdiction of the cases so removed; and it is no objection that a case authorized to be so removed is not one of which, under any act of congress, the federal courts would have had original jurisdiction.153 Many acts of congress have been passed at different times on the subject of the removal of causes. But they were almost all repealed or superseded by the act of August 13, 1888,154 which was designed to stand as the sole general law on the subject of removals, and must be looked to as furnishing the whole system in that regard, except in a few peculiar cases to be presently mentioned. This statute provides that any suit of a civil nature, at law or in equity, arising under the constitution or laws. of the United States, or treaties, in which the amount in dispute exceeds $2,000, and which is instituted in a state court, may be removed by the defendant to the proper circuit court of the United States. But if the suit, without involving a federal question, is between citizens of different states, or citizens of the same state claiming lands under grants of different states, or between citizens of a state and aliens, it may be removed by the defendant, provided he is not a resident of the state where the suit is brought. If there is a separable controversy in any such suit, which is wholly between citizens of different states and can be fully determined as between them, then the suit may be removed on the application of either one or more of the defendants actually interested in such contro153 Gaines v. Fuentes, 92 U. S. 10.

154 25 Stat. 433.