LAW, CONSTITUTIONAL. 



tho provision that this removal may bo had, on 

 tiling tho general affidavit of prejudice or local 

 influence, 'at any time before trial or final 

 hearing of the suit.' " 



Tho act of March 8, 1875, made another 

 very material enlargement of I-Yderal at tho 

 DM of State jurisdiction. By all previous 

 legislation, tlie right of removal was limited to 

 cases in which cither tho plaintiff or the de- 

 fendant was a citizen of the State in which 

 the suit was originally brought. The act of 

 1875 abolishes this limitation and authorizes 

 the removal of cases in which neither party is 

 a citizen of the State in which the action was 

 begun. It is enough if they are citizens of 

 different States. They need not be citizens of 

 that in which tho suit is brought, and the 

 right of removal is given to either plaintiff or 

 defendant. Besides thus increasing the class 

 of cases that may bo removed into the Federal 

 courts on the ground of citizenship, the act 

 also materially widens the circle of those that 

 may be removed on the ground of subject- 

 matter independently of citizenship. 



The constitutional validity of all these acts 

 has been affirmed or recognized by the Su- 

 preme Court, and on controverted points, as 

 to the meaning and effect of the acts, the de- 

 cisions of the court, which have not always 

 been unanimous, have tended greatly to ex- 

 tend the jurisdiction of the Federal judiciary, 

 and hence to limit that of the State courts. 

 Thus, in construing the act of 1867, the ma- 

 jority of the court held that a suit to annul a 

 will as a muniment of title, and to restrain the 

 enforcement of a decree admitting it to pro- 

 bate, was a suit in equity which might be re- 

 moved to the Federal court when the parties 

 were citizens of different States. Three of the 

 judges dissented from this conclusion, and 

 maintained that the question involved was 

 simply one relating to the probate of a will, 

 and that, under the act of Congress, the Fed- 

 eral tribunals had no jurisdiction of such a case. 

 (Gaines against Fuentes, 92 United States Re- 

 ports, 10.) And so, in the case of a Railroad 

 Company against Mississippi, decided in 1880, 

 and reported in 102 United States Reports, Jus- 

 tice Miller maintained, in a dissenting opinion, 

 that the act of 1875 did not authorize a re- 

 moval of a suit which was not founded on a 

 Federal law, but in which a Federal law was 

 incidentally involved in the defense merely. 

 While Congress "intended to allow the re- 

 moval of a suit where the very foundation 

 and support thereof was a law of the United 

 States, it did not intend to authorize a re- 

 moval where the cause of action depended 

 solely on the law of the State, and when the 

 net of Congress only came in question incident- 

 ally as part (it might be a very small part) of 

 the defendants 1 plea in avoidance." The ma- 

 jority of the court, however, consisting in this 

 case of six justices, held that " it is not suffi- 

 cient to exclude the judicial power of the 

 United States from a particular case, that it 



involves questions that do not at all depend 

 on the Constitution or laws of the United 

 States ; but when a question to which the judi- 

 cial power of the Union is extended by the 

 Constitution forms an ingredient of the origi- 

 nal cause, it is within the power of Congress 

 to give the Circuit Courts jurisdiction of that 

 cause, although other questions of fact or of 

 law may be involved in it." The court has 

 also held (Insurance Company against Morse, 

 20 Wallace, 445) that the right to remove cases 

 into the Federal court pursuant to the acts of 

 Congress can not be defeated by State legisla- 

 tion. In accordance with this view it declared 

 that a State statute allowing a foreign corpora- 

 tion to do business in the State only on condi- 

 tion that it would agree not to remove suits 

 against it to the Federal courts, was unconsti- 

 tutional, and the agreement void. 



A striking development of Federal power 

 may also be traced in the decisions of the 

 Supreme Court interpreting that clause of the 

 Constitution which vests in Congress power 

 to regulate commerce among the States and 

 with foreign nations. For more than a third 

 of a century after the adoption of the Consti- 

 tution it was a much-debated question what 

 were the respective rights of the national and 

 the State governments under this clause. In 

 1824 the Supreme Court declared, in the case 

 of Gibbons against Ogden, that the power to 

 regulate foreign and interstate commerce was 

 exclusive in Congress. This, however, left 

 many important questions unsettled. For a 

 quarter of a century after its announcement 

 it was maintained, not only by leading public 

 men and constitutional lawyers, but also by 

 several of the Supreme Court justices, that in 

 the absence of congressional legislation a State 

 had the power to legislate on the subject, and 

 two decisions of the Supreme Court during 

 that period are in harmony with this doctrine, 

 if they do not directly support it. In 1851, 

 however, the court denied to the States most 

 of the power that had been claimed for them, 

 and conceded it to the Federal Government. 

 It held that in all matters of national character 

 and concern the power was exclusive in Con- 

 gress, whether exercised or not, and hence 

 that even in the absence of congressional ac- 

 tion no State had authority to pass laws in 

 matters of that kind. It conceded, however, 

 that in the absence of Federal legislation a 

 State might deal with certain strictly local 

 matters pertaining to foreign and interstate 

 commerce, but held that even in such case 

 State legislation must give way to or at least 

 harmonize with any acts that Congress might 

 choose to pass on the subject. 



The theory that in purely internal commer- 

 cial affairs the authority of the State is supreme 

 has never been denied. But even here the 

 Federal power has been steadily carried by the 

 logic of events and judicial decisions into the 

 domain of every State, and corresponding in- 

 roads have been made upon State sovereignty. 



