second section of the Act of March 3, 1875, passed since the Revised Statutes, have introduced some radical changes in the law relative to the removal of suits on account of the matter in dispute. This section makes the broad provision that "any suit of a civil nature, at law or in equity, . . . brought in any State court, where the matter in dispute exceeds, exclusive of costs, the sum or value of five hundred dollars, and arising under the Constitution or laws of the United States, or treaties made, or which shall be made, under their authority, either party may remove said suit into the Circuit Court of the United States for the proper district." This provision has received the following construction by the Supreme Court: 1. A cause cannot be removed from a State court simply because, in the progress of the litigation, it may become necessary to give a construction to the Constitution and laws of the United States. The decision of the case must depend upon that construction. The suit must, in part at least, arise out of a controversy between the parties in regard to the operation and effect of the Constitution and laws of the United States upon the facts involved. 2. The petition for the removal must set forth in due form, such as is required in good pleading, the essential facts not otherwise appearing in the case, which, under this statute, are conditions precedent to the change of jurisdiction. Gold Washing and Water Company v. Keyes, 6 Otto, 199.]

VIII.

Rules of Decision, in Trials at Law. - How the Law of a State is to be ascertained. Finality of State Decisions. Questions of Commercial Law and General Jurisprudence. - Cases in which

the Obligation of a Contract is involved.

Conflicting Decisions of a State Court. Rules of Decision in Equity, and in Admiralty. Pleadings and Practice at Law. - Practice in Equity. Trials of Facts by the Court, on Consent of Parties.-New Trials. Technical Nonsuits not allowed. Supersedeas.

THE subject of several of the last Lectures has been, as you know, the jurisdiction of the Circuit Courts of the United States, and jurisdiction, as you also know, is the power to entertain a suit. Whatever is done in the exercise of that jurisdiction must be done in accordance with different rules of law from those which prescribe the jurisdiction itself. The first question which a court has to consider, always, is the question whether it has the power to entertain the suit at all. The second question is, if it has the power to entertain it, what shall be the rules of decision by which the result in favor of the one party or the other shall be reached.

Having gone through with the consideration of the jurisdiction of the Circuit Courts, I now come

to the other inquiry, By what rules of decision are the results of suits over which they have jurisdiction to be reached? Here it will be necessary for you to bear in mind that the Constitution of the United States, and the acts of Congress framed in accordance with it, have recognized three distinct kinds of jurisprudence to be administered in their courts in civil cases. The first is the common law, the second is equity law, and the third is admiralty law; and in inquiring what are to be the rules of decision administered by the Circuit Courts of the United States, it is necessary to keep this distinction constantly in view.

In the first place, I will ask your attention to what are the rules of decision in trials at the common law. That is provided for by this Judiciary Act, to which I have had occasion so often to call your attention, in its thirty-fourth section, which reads as follows:

"That the laws of the several States, except where the Constitution, treaties, or statutes of the United States shall otherwise require or provide, shall be regarded as rules of decision in trials at common law in the courts of the United States in cases where they apply." 1

in

So that in accordance with this act of Congress, trial which at common law occurs in a Cir

any

1 [Re-enacted, in the same words, in § 721 of the Revised Statutes.]

cuit Court, what the practitioner has to inquire, or what the court has to know, is what is the law of the State. If it is a question whether a claim is barred by the statute of limitations, or if it is a question whether a contract is valid or invalid by reason of the statute of frauds, or if the question be of any other character, with some exceptions, to which I shall presently ask your attention, the inquiry is, What is the law of the State? and that law is to be administered in trials at common law in the Circuit Courts of the United States. It is to be observed, however, that this has reference only to civil cases; it has no application to criminal trials. It is for the government of rights between party and party, in civil cases, in trials at the common law, that this section was made.

Now, the first inquiry which would be found to arise in practice is, Who is to determine what is the law of the State? A question arises upon the construction of the statute of a State, or upon a rule of practice in a State, or upon a commercial contract made in a State, or in a great variety of other cases; who is to decide ultimately what is the law of the State upon that particular question arising in that case? Well, you would naturally say the Supreme Court of the State, which has been intrusted by the constitution of the State with the ultimate decision of such questions, should be the tribunal to decide ultimately what the law of the State is upon any

particular question; and that is in general true. The question being what the law of the State is which is to be administered in a particular case, if there can be found in the decisions of the highest court of that State, intrusted with the construction of its statutes and the interpretation and application of its common law, a well-settled rule, in general that is to be deemed the law of that State. But then it has been found, or supposed to be found, that on some subjects there has been such unsteadiness in the decisions of the State courts that the Supreme Court of the United States has been forced to adopt certain views in regard to the decisions of the highest courts of the State, when they come to be applied in the courts of the United States, to ascertain what the State law is; and therefore it cannot be said to be a universal rule, that, because a question has been settled by the Supreme Court of a State, the decision will be adopted by the courts of the United States; and I now propose to indicate to you the different classes of cases in which it is understood that the decisions of the State courts are final and binding upon the courts of the United States concerning what is the law of the States, and those in which they have not been considered to be final and binding.

In the first place let me refer you to the case of Webster v. Cooper, 14 Howard, 488, in which it is said: