"the forms of writs, executions, and other processes, 342 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." (a) Under those provisions, the court declared,

(a) 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 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 C. C. 428, 429; Wayman v. Southard, 10 Wheaton, 1, 31, 32, 50; Bank of United States v. Halstead, 10 Wheaton, 51; 1 Peters C. C. 1; Beers v. Haughton, 9 Peters U. S. 329, 369–371. These modes and forms of proceedings 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 How. U. S. 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 U. S. 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 C. C. 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 U. S. 94. 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 Gallison, 18. Mayer v. Foulkrod, 4 Wash. C. C. 349. Sce, 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 U. S. 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

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

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. (c) It is the common jurisprudence of the United States, and *343 was brought with them as colonists from England, and established here, so far as it was adapted to our institu

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 U. S. 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.

(b) 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 U. S. 9; Lorman v. Clarke, 2 McLean, 568, 571.1

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

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

tions 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." (a) 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 præbent; delectant domi, non impediunt foris; pernoc tant nobiscum, peregrinantur, rusticantur. To use the words of the learned jurist, to whom I have already alluded, (b) "we live in the 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." 1

2. 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, (c) 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.

(a) Declaration of Rights of October 14th, 1774; Journals of Congress, vol. i. p. 28. (b) Du Ponceau on Jurisdiction, p. 91. See, also, 1 Story's Comm. on the Constitution, 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. (c) Lessee of Butler v. Farnsworth, 4 Wash. C. C. 101.

1 The United States courts are courts of special jurisdiction, and derive all their powers from the constitution and the laws of Congress. But in the construction of the acts of Congress, the rules and principles of the common law are the true guide.

Jurisdiction

is a party.

In Bingham v. Cabot, (d) the Supreme Court held, that it was necessary to set forth the citizenship of the rewhen an alien * 344 spective * 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, (a) and in Turner v. The Bank of North America; (b) 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 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. (c)

zens of different states.

The Judiciary Act of 1789, sec. 11, gives jurisdiction to the Between citi- Circuit Court when an alien is a party; and it was decided in Mossman v. Higginson, (d) that the jurisdiction was confined to the case of suits between citizens and foreigners, and did not extend to suits between alien and alien; and

(d) 3 Dallas, 382.

(a) 4 Dallas, 7.

(b) 4 Dallas, 8.

(c) Picquet v. Swan, 5 Mason 35; Toland v. Sprague, 12 Peters U. S. 300.

(d) 4 Dallas, 12.

1 Judiciary Act of 1789, sec. 11.

*that if it appeared on record that the one party was an *345 alien, it must likewise appear affirmatively that the other party was a citizen. So, again, in Course v. Stead, (a) 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, (b) and in Hodgson v. Bowerbank, (c) and in Sullivan v. The Fulton Steamboat Company. (d) In Maxfield v. Levy, (c) the question of jurisdiction, arising from the character of the parties, was discussed in the Circuit Court of Pennsylvania, and the court animadverted severely upon an attempt to create a jurisdiction by fraud, contrary to the policy of the constitution and the law. The suit was an ejectment between citizens of the same state, to try title to land; and, to give jurisdiction to the Circuit Court, a deed was given, collusively, and without any consideration, to a citizen of another state, for the sole purpose of making him a nominal plaintiff, in order to give the federal court jurisdiction. The court dismissed the suit, and observed, that the constitution and laws of the United States had been anxious to define, by precise boundaries, and preserve with great caution, the line between the judicial authority of the Union and that of the individual states. No contrivance to defeat the law of the land, and create jurisdiction by fraud, could be tolerated. (f) But if a citizen of one state thinks proper to change his domicil, and remove with his family to another state, not colorably, but permanently, and with a bona fide intention to reside there, even though *346 his object was to avail himself of the jurisdiction of the

*

(a) 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 C. C. 486, 594. Jackson v. Twentyman, 2 Peters U. S. 136. (b) 4 Cranch, 46.

(c) 5 Cranch, 303.

(d) 6 Wheaton, 450; Dodge v. Perkins, 4 Mason, 435, S. P.

(e) 4 Dallas, 330. This case was repudiated by Mr. Justice Story, in Briggs .. French, 2 Sumner, 257, as being erroneously decided.

(f) The same doctrine was held by Judge Washington, in Hurst v. McNeil, 1 Wash. C. C. 70, 83; Starling v. Hawks, 5 McLean, 318. But in Briggs v. French, 2 Sumner, 251, it was pointedly condemned; and the Judge held, that a conveyance of land by a citizen of one state to a citizen of another, for the purpose of enabling the latter to maintain a suit on it in the courts of the United States, vested a legal title, and a stranger not claiming under either of the parties had no right to inquire into the motive of the conveyance.