1

If compelled to make the first decision, even in a matter of title, the court will do so as if it was within its own province." And where the Supreme Court of the United States announces such a pioneer decision, the Circuit courts will be expected to follow it, until revised and changed by the Supreme Court, even if the State court afterward announces a contrary decision on the same point.2

It

This notion of the common law of the United States has been taken up by some of the State courts. will be seen that the result of this doctrine, so far as the matters in which it applies are concerned, would be that the State courts would follow the law of the Federal Court. For, in most cases, there is a right of removal, and the party who would profit by the federal ruling would not fail to have the cause removed. The State court would either come into line or lose its jurisdiction.3

In conflicts for jurisdiction between the courts in matters of interstate commerce, there cannot fail to be developed, in the national tribunals, principles which the State court must follow or at times be in open

1 Loring v. Marsh, 2 Cliff. 469; see Springer v. Foster, 2 Story, 386. 2 Neal v. Greene, 1 McLean, 18. The New York Legislature of 1904 was influenced in its action upon the Jerome Witness Bill by the decision in Brown v. Walker, 161 U. S. 591.

3 See Bay v. Coddington, 5. Johns. Ch. 54; s. c., 20 Johns. 637; Swift v. Tyson, 16 Pet. 1; Kent, 3 Commentaries, 81, n.; Dillon, Laws and Jurisprudence of England and America, 246. The fatal defect in the system of legal reform inaugurated by David Dudley Field was that the State was taken as the basis of crystallization of common law into statutory form. Mr. Field denied that the courts of New York should be guided by the decision of the Supreme Court upon the commercial contract in Bay v. Coddington. See Dillon, ubi supra. The same fallacy is pursued to-day in the attempt to secure uniformity of law by State legislation.

conflict with the final or concurrent tribunal and with itself. Nor is it surprising that, in the general preference of parties for the advantages of the federal tribunal, there should be a desire upon the part of State judges to conform. So, in removals and in appeals to the Federal courts, if the holding of the Federal Court is manifest, it will in the long run be adopted by the courts of the States. The greater the opportunities for comparison, the greater the result of this ordering of the national law by the orderly principle of natural selection.

$191. THE EVARTS ACT. The long evolutionary process in this direction culminated in the passage of the Evarts Act, "An Act to establish circuit courts of appeals and to define and regulate in certain cases the jurisdiction of the courts of the United States, and for other purposes."

"1

The court was to be the appellate court of final resort, subject to reserving and referring special questions to the Supreme Court, of all cases where jurisdiction in the district and circuit courts depended entirely upon opposite parties, patent laws, revenue laws, criminal laws, and in admiralty cases. That is, all the matters pertaining to the jurisdiction of the District courts such as admiralty and bankruptcy, and all the matters in common law and equity where the jurisdiction of the Circuit court is concurrent with that of the State courts, and all removed causes, are to be decided by a court of final appeal, sitting in the district

1 Acts of 51st Congress, Sess. II, Ch. 517, as amended by 27 Stat. at L. 183; 28 Stat. at L. 666; 29 Stat. at L. 536; 31 Stat. at L. 660. 2 In connection with concurrent jurisdiction, it is well to consider the complaint which is made in patent matters. It is said that a single circuit is needed to bring the circuits into harmony.

in which one, at least, of the parties lives, and performing the same function that the Supreme Court of the United States might perform, if the matter were brought on appeal, or the State court might perform, if the parties were different or had chosen the State forum. The effect of this measure, in bringing the local law and the common law of the nation into harmony, will only be seen when the real facts are shown with regard to the determination of forum. The makeup of the court shows the same joining of the local with the national forum as took place when the itinerant justices nationalized the law of England upon the basis of local jurisdiction.

Section 2. This circuit court of appeals exists in each circuit, and is made up of three judges of whom two shall constitute a quorum.

"Section 3. The Chief-Justice and the associate justice of the Supreme Court assigned to each circuit, and the circuit judges within each circuit, and the several district judges within each circuit, shall be competent to sit as judges of the circuit court of appeals within their respective circuits. . . . A term shall be held annually by the circuit court of appeals in the several judicial circuits at the following places" - the places are nine large citiesand in such other places in each of the above circuits as said court may from time to time designate."

44

$192. CITIZENSHIP AS CITIZENSHIP AS A BASIS OF UNIFORMITY. CORPORATIONS AS PERSONS AND CITIZENS. We have seen that it had always been conceived that the citizens of other States had a right to the national forum. It was not, however, until a comparatively recent date

The conflicts do not arise from difference of law but from the

facts peculiar to patent cases. See Judge Townsend on Patents, Two Centuries of Growth of American Law, 417.

that the right had been recognized in any but a natural person. It had often been held, however, that a corporation was a person,' but the question of citizenship In the earlier cases it was not squarely faced at first. was held that the citizenship of a corporation for purposes of suit was determined by the citizenship of its members. But this would not give to many corporations the right to action in the Federal Court, for if any of the opposing parties was of the same State, the rule was that the Federal Court had no jurisdiction. But the corporation came to be considered a citizen. A corporation is not now a citizen of a State within the meaning of many of the provisions of the Constitution, but where the rights of property are concerned and are sought to be enforced, it is treated as a citizen of the State where it was created, within the clause of the Constitution extending the judicial power of the United States to controversies between citizens of different States.'

A municipal corporation is likewise treated as a citizen of the State within which it is situated." And by the 4th section of the Judiciary Act of 1887, it was provided,

1 Railroad v. Ellis, 165 U. S. 150, 165.

2 Hope Ins. Co. v. Boardman, 5 Cranch, 57; Curtis, Jurisdiction of United States Courts, 127. Statutes which apply to "persons" generally apply to corporations. Proprietors, etc. v. Inhabitants of Ipswich, 153 Mass. 42; People v. Utica Ins. Co., 15 Johns.(N. Y.) 358. For a collection of cases, see Cook on Corporations, II, sec.

700,

notes.

Elliott on Private Corporations, sec. 31; Muller v. Dows, 94 U. S. 444.

Nashua Ry. Co. v. Lowell Ry. Co., 136 U. S. 356; Paul v. Virginia, 8 Wall. 168; Steamship Co. v. Tugman, 106 U. S. 118; Shaw v. Quincy Mining Co., 145 U. S. 444.

5 Cowles v. Mercer County, 7 Wall. 118; City of Ysleta v. Canda, 67 Fed. 6.

"that all national banking associations established under the laws of the United States, shall, for the purposes of all actions by or against them, real, personal, or mixed, and all suits in equity, be deemed citizens of the States in which they are respectively located; and in such cases the circuit and district courts shall not have jurisdiction other than such as they would have in cases between individual citizens of the same State. The provisions of this section shall not be held to affect the jurisdiction of the Courts of the United States in actions. commenced by the United States."

Here was a recognition of the common position of a corporation existing under the laws of the United States, and the corporation existing under the laws of the States, an implication of the existence of corporations under that system of law which is common to the whole country. We may say that the disposition is also shown; on the part of Congress, to recognize the courts of the States as concurrent administrators of this common law, for it cannot be conceived that it was the purpose of Congress to subject its creature to a system of law which the national courts might regard as wanting basis in reason.

Indeed, the theory of the decisions holding that a corporation is a citizen, in the contemplation of the provision of the Constitution with regard to diverse citizenship, is one which must be taken to mean that there is a common law for all citizens. According to this theory a corporation is conclusively presumed to be composed of citizens of the state or nation which chartered it or from which it derived its power.1

1 Louisville C. & C. R. Co. v. Letson, 2 How. 314; Muller v. Dows, 94 U. S. 446; Steamship Co. v. Tugman, 106 U. S. 118; Ohio & Mississippi R. R. v. Wheeler, 1 Black. 286; Insurance Co. v.