It has been much doubted whether the constitution intended to allow an appellate jurisdiction from the State courts. But inasmuch as the federal judiciary was designed to be the interpreter of federal powers, and as these powers may be brought into discussion in the State courts, it is reasonable to presume that in such cases, at least, the constitution intended that the supreme court should exercise a supervisory power over the decisions of the State courts; for otherwise, the federal government would be thus far at the mercy of the State governments. Accordingly, the judiciary act has wisely provided, that the final decisions of the highest court of law or equity in any State may be revised by the supreme court, on writ of error, in the two following classes of cases: 1. Where the validity or construction of the federal constitution, laws, or treaties, or of any commission or authority derived therefrom, shall be drawn in question, and the decision shall be against it. 2. Where the validity of a State constitution, law, or authority, shall be drawn in question, on the ground of repugnancy to federal power, and the decision shall be in its favor. This appellate jurisdiction has been exercised in some of the most important cases that have as yet been brought before the federal judiciary; and though it even now meets with strenuous opposition from the advocates of State supremacy, yet no one can doubt that the consequences have thus far been in the highest degree salutary. (a)

(a) As to the jurisdiction of this court over the State courts, see Piqua Bank v. Knoup, 6 Ohio State, 342. It has no jurisdiction of the question whether a law of a State and its constitution are in conflict. Withers v. Buckley, 20 How. 84. Nor of cases where the validity of a territorial law is drawn in question. Messenger . Mason, 10 Wall. 507. The construction given to a statute of a State by the highest court thereof is held by the federal courts to be a part of the statute and as binding upon them. If such State court subsequently adopts new views of the construction, and reverses the former ruling, the federal courts follow the latest decision. Leffingwell v. Warren, 2 Black, 599. Even when the supreme court of the United States has followed the earlier State decision, it will, in a subsequent case, follow the later State decision and reverse its own former rule of construction. Green v. Neal, 6 Pet. 291. But where rights have been acquired, contracts made, or municipal bonds negotiated, upon the faith of the first State decision, the federal courts will not concede to the subsequent contradictory State decision any retroactive effect, but will hold valid all such transactions made between the dates of the two decisions. Gelpcke v. Dubuque, 1 Wall. 202; Havemeyer v. Iowa County, 3 Wall. 294; Thompson v. Lee County, 3 Wall. 327; Mitchell v. Burlington, 4 Wall. 270; Larned v. Burlington, 4 Wall. 275; Lee v. Rogers, 7 Wall. 181; Douglass v. County of Pike, 101 U. S. 677. And where, in the absence of a construction given by the State court, the supreme court of the United States gives a construction, and, years after, the highest court of the State gives an opposite construction, the same rule is held as to the validity of transactions made between the dates of the two decisions. Rowan v. Runnels, 5 How. 134. But if, when the supreme court of the United States construes a State statute, the highest court of the State had already given a contrary construction, such State decision being not yet reported, and not cited, and such State decision is affirmed by subsequent decisions of the same State court, the su preme court of the United States will follow, in subsequent cases, the decisions of the State court, and reverse its own. Fairfield v. County of Gallatin, 100 U. S. 47. The federal courts are not bound by the decisions of the State courts upon questions of general commercial law. Swift v. Tyson, 16 Pet. 1; Oates v. National Bank, 100 U. S. 239.

The statutes of the United States authorize the removal of causes, in certain cases, from State courts to the circuit courts of the United States. This right is given in special cases, as in causes, civil and criminal, in any State court, against persons

Jurisdiction of the Circuit Court. This is both original and appellate. The circuit court has original jurisdiction of all civil

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denied civil rights-U. S. Rev. Stats. §§ 641, 642; suits civil and criminal against revenue officers of the United States, and against officers and other persons acting under the registration laws-§ 643; suits by aliens against civil officers of the United States under specified circumstances -§ 644; and suits against corporations organized under a law of Congress, other than national banks, where the defendant has a defence arising under the constitution, or any treaty or law of the United States - § 640. Under § 639, which consolidates section 12 of the Judiciary Act, the act of July 27, 1866, and the act of March 2, 1867, in any suit commenced in any State court, wherein the amount in dispute, exclusive of costs, exceeds $500, (1) brought against an alien, or by a citizen of the State against a citizen of another State, may be removed by the defendant; (2) if the suit is against an alien and a citizen of the State, or is by a citizen of the State against another citizen thereof and a citizen of another State, it may be removed by the non-resident, if, so far as it relates to him, it is brought to enjoin him, or is a suit in which there can be a final determination of the controversy so far as concerns him without the presence of the other defendants as parties in the cause; (3) if the suit is between a citizen of the State and a citizen of another State, it may be removed by the latter, whether plaintiff or defendant, if he files in the State court an affidavit stating that he has reason to believe and does believe that, from prejudice or local influence, he will not be able to obtain justice in such State court. The act of March 3, 1875, 18 Stats. at Large, 470, provides that any suit of a civil nature, at law or in equity, in any State court, where the matter in dispute exceeds, exclusive of costs, $500, and arising under the constitution, treaties or laws of the United States, or in which the United States shall be plaintiff, or in which there shall be a controversy between citizens of different States, or a controversy between citizens of the same State claiming lands under grants of different States, or a controversy between citizens of a State and foreign States, citizens or subjects, either party may remove the suit; and when in any such suit there shall be a controversy which shall be wholly between citizens of different States, and which can be fully determined as between them, then either one or more of the plaintiffs or defendants, actually interested in such controversy, may remove the suit.

In cases arising under § 639, the party desiring to remove the suit or controversy must file his petition therefor under division 1, at the time of entering his appearance in the State court; under divisions 2 and 3, at any time before trial or final hearing. Under the act of 1875, the petition for removal must be filed in the State court before or at the term at which said cause could be first tried, and before the trial. The petition must be accompanied by a bond as prescribed by statute.

The jurisdiction of the circuit court in such case is not appellate, but is original jurisdiction, acquired indirectly by a removal from the State court. Justices v. Murray, 9 Wall. 274, and Nelson, J., in Dennistoun v. Draper, 5 Blatch. 336; Fisk v. Railroad Co., 6 Blatch. 362, 367. Accordingly, as was said by Chief Justice Gray of Massachusetts, now associate justice of the supreme court of the United States, "it is, to say the least, a matter of grave doubt whether the circuit court of the United States, in such a case as this, could issue a writ of mandamus or certiorari to the State court; and if it could, it would only be when no copy of the record had been filed in the circuit court, and to obtain such copy for the purpose of guiding its own proceedings, and not to restrain or control the judicial discretion of the State court." Stone v. Sargent, 129 Mass. 503, see 505; Hough v. Western Transportation Co., 1 Biss. 425; in re Cromie, 2 Biss. 160; Osgood v. Railroad Co., 6 Biss. 330, see 343; Scott v. Railroad Co., 6 Biss. 529, see 537.

If, upon a petition being filed within the prescribed time, the State court refuses to order a removal, but retains the case, the petitioner may still file a transcript of the record in the circuit court. If it is a proper case for removal, the circuit court has thereupon jurisdiction, and the State court cannot lawfully proceed further. The State court is governed by the averments in the petition, as it does not hear evidence to ascertain whether or not such averments are true. In the circuit court the party opposing the removal may move that the cause be remanded, if he relies upon the petition being insufficient. If he desires to controvert its allegations, he files a plea in abatement.

The jurisdiction of the State court or of the circuit court is, of course, determined, not by the assertion or denial of jurisdiction by either, but by the actual existence of cause for removal. The State court must, unless the petition be filed in vacation, examine whether or not the petition for removal presents cause. Stone v. Sargent, 129 Mass. 503; National Bank v. Adams, 130 Mass. 431. The decision of the nisi

suits at law and equity, where the value in dispute exceeds five hundred dollars, and the United States are plaintiffs; or one party is an alien; or the suit is between a citizen of the State where it is brought, and a citizen of another State; or against a citizen of the same State, claiming lands under a grant from another State. But this jurisdiction is concurrent with the State. courts; and provision is made for removing such suits commenced in the State courts, at the instance of the defendant, into the circuit court. It also has original jurisdiction of all suits involving copyrights and patents; and of all crimes punishable under the federal authority. And this criminal jurisdiction is final, unless there be a disagreement between the judges, to be certified to the supreme court. The circuit court has appellate jurisdiction from the district court by writ of error or appeal, in the following cases; First, in civil actions at law, where the value in dispute exceeds fifty dollars, by writ of error; and secondly, in admiralty cases, where the value in dispute exceeds three hundred dollars, by appeal. But it has no appellate jurisdiction in cases of equity or in criminal cases. In these cases of appellate jurisdiction, if the judges differ in opinion, that of the supreme judge prevails, since these cannot be certified to the supreme court.

Jurisdiction of the District Court. This court has jurisdiction of the following cases: first, of all admiralty cases; secondly, of

prius State court, whether in favor of or against removal, can be reviewed by the highest court of the State. If the highest court of the State decide against removal, its decision can be reviewed by the supreme court of the United States. In the following cases the supreme court of the United States affirmed the action of the State court in refusing removal. Grover & Baker Co. v. Florence Sewing Machine Co., 18 Wall. 553; Vannevan v. Bryant, 21 Wall. 41; Pechner v. Phoenix Ins. Co., 95 U. S. 183; Amory v. Amory, 95 U. S. 186; Railroad Co. v. McKinley, 99 U. S. 147. If the State court improperly denies the petition to remove, the petitioner may contest the action on the merits without waiving his objection to the jurisdiction, and the supreme court of the United States will, in error to the supreme court of the State, set aside all proceedings subsequent to the filing of the petition and order removal. Insurance Co. v. Dunn, 19 Wall. 214; Removal Causes, 100 U. S. 457; Railroad Co. v. Mississippi, 101 U. S. 135. In a later case that court has decided that in such case all such subsequent proceedings, including the judgment on the merits rendered by the State court, are absolutely void. Kern v. Huidekoper, 103 U. S. 485. And where, in such a case, the petitioner filed a transcript in the circuit court, and there obtained a judgment on the merits, while the other party obtained a judgment on the merits in the State court, the circuit court can enjoin all proceedings under the judgment of the State court. Deitzsch v. Huidekoper, 103 U. S. 494.

Where the petition for removal of a suit is on the ground that there is, in the suit, a controversy between citizens of different States, all on one side of such controversy must be citizens of different States from all on the other side; but the position of the litigants to such controversy is not determined by the title of, or by the order of, filing, the pleadings in the State court, but by the actual interest of the parties. Meyer v. Construction Co., 100 U. S. 457; Ayers v. Chicago, 101 U. S. 184. When a suit is removed, the res, whether real or personal, goes with it; as do all ancillary remedies, as injunctions, attachments, receiverships. The supreme court has a revisory jurisdiction over the State courts only when it appears on the record that some one of the questions described in the act of 1789 actually did arise in the State court, and was decided there in the manner required by that act. Furman v. Nichol, 8 Wall. 44; Gibson v. Chouteau, 8 Wall 314. And although a writ of error has been issued by one of the judges of that court, still, if the necessary facts do not appear upon the record, it will be assumed by the State court that it was improvidently issued, and will be dismissed. Nauer v. Thomas, 13 Allen, 572.

all seizures, penalties, and forfeitures under the laws of the United States; thirdly, of all injuries in violation of the law of nations, or of treaties, where an alien sues; fourthly, of suits brought by the United States where the value in dispute amounts to one hundred dollars; fifthly, of suits against consuls, suits to repeal patents, and suits concerning captures; and sixthly, of crimes punishable under the federal authority, when the punishment does not exceed a fine of five hundred dollars, or imprisonment for six months, or thirty-nine lashes. In some of these cases, the jurisdiction is exclusive both of the circuit court and of the State courts; and in others, it is concurrent with both.

§ 50. Jurisdiction of the State Courts. Here there is very great diversity. In Ohio, the distribution of jurisdiction very much resembles that of the federal courts. The supreme court has no jury and no original jurisdiction except that of issuing those writs which, like mandamus and quo warranto, are peculiar to the highest court. Its chief business is to hear and determine cases on petition in error, and such cases as may be reserved by the district court, either from an equal division of opinion, or because of the novelty or importance of the questions involved. The district court has appellate jurisdiction from the common pleas in all civil cases in which that court has original jurisdiction, that is, in all cases above the jurisdiction of a justice of the peace. The common pleas has exclusive original jurisdiction in criminal cases, with the exception of some minor offences assigned to the probate court, and of divorce and alimony. It has appellate jurisdiction from the probate court, from justices of the peace, and from county commissioners, in certain cases. The probate court has exclusive jurisdiction of all probate and testamentary matters, the appointment and supervision of administrators and guardians, inquests of lunacy, appropriations of private property by corporations, and sundry offences below the degree of penitentiary. Justices of the peace have jurisdiction of all civil cases within the value of three hundred dollars, with the exception of a few specified cases, which peculiarly require the verdict of a jury. With a few special exceptions their civil jurisdiction is confined to their respective townships. Their criminal jurisdiction, which is merely preliminary, and confined to examination and commitment for trial, comprehends all offences, and extends through the county. (a) They likewise have jurisdiction of some special cases, as controversies between masters and apprentices; trials of the right of property taken on execution or attachment; and actions of forcible. entry and detainer. They also have the general power to administer oaths, and take acknowledgment of deeds.

(a) The defendant may demand a trial by jury, in all cases where the justice has jurisdiction to try and punish by fine or otherwise. Act of March 26, 1859. For the civil jurisdiction of justices of the peace, see act of March 14, 1853, and act of March 10, 1860.

LECTURE IX.

ENUMERATED POWERS. (a)

§ 51. Power as to Revenue. In the three preceding lectures we have examined those provisions of the constitution which relate to the organization of the three great departments of government. I have already remarked, that all the remaining provisions may be classed under the general head of limitations of delegated power; but that they are subdivided as follows: first, enumerated powers of the federal government; secondly, incidental powers; thirdly, powers prohibited to the federal government; and fourthly, powers prohibited to the States, by the federal constitution, and by their respective constitutions. These provisions likewise admit of a more general subdivision as follows: first, direct limitations, whether by enumeration or prohibition; and secondly, indirect limitations, by declarations of rights. But instead of following strictly either of these classifications, I shall adopt the arrangement suggested by the subject-matter, to which these provisions relate. Accordingly, while I commence with the enumerated powers of the federal government, I shall discuss in connection therewith, all the federal and State prohibitions relating to the same subject

matter.

The revenue power is conferred in the following words: "Congress shall have power to lay and collect taxes, duties, imposts, and excises, to pay the debts and provide for the common defence and general welfare of the United States; but all duties, imposts, and excises shall be uniform throughout the United States." (b) It is of course indispensable to the very existence of government, that it should have the power of raising a revenue adequate to its

(a) It would seem that the convention did not at first contemplate a specific enumeration of the powers of Congress. The first proposition was, that Congress should have power to legislate in all cases where the Congress of the confederation could legislate; and in all cases to which the States were incompetent, or where State legislation might interrupt the harmony of the Union; and to negative all State laws contravening the constitution or treaties. Mad. Pap. 759-61, 859. This proposition was then modified by striking out the power to negative State laws, adding the power to legislate in all cases for the general interests of the Union, and declaring the supremacy of treaties and acts of Congressid. 1114-19, 1221. The resolution was then referred to the committee of detail, who reported a specific enumeration of the powers of Congressid. 1221, 1232. Propositions were made to extend this enumeration much further than it actually goes; as to create corporations; to establish a national university and other seminaries of learning; to grant premiums for the promotion of useful knowledge; to encourage agriculture, commerce, and manufactures, by establishing public institutions, rewards, and immunities; to regulate stages on post-roads id. 1354-5; to pass sumptuary laws-id. 1369, 1568; to regulate damages on protested bills-id. 1448; and to construct canals-id. 1576. See also, 1 Kent, Com. lec. 12, 18, 19.

(b) See Mad. Pap. 1339-43, 1485, 1549, 1611. I have put a comma, instead of a semicolon, after the word "ercises," because it appears that the clause was so reported to the convention by the committee. See 1 Story, Const. § 907; 1 Kent, Com. 254.