The Act of September 24, 1789 (1 Stats. at Large, 79), styled by way of eminence the Judiciary Act, was passed the same year in which the Constitution went into effect, and organized the National or Federal Judicial System, substantially as it exists to-day. No structural changes have since been made in that system, and considering the complex and highly artificial nature of the Federal jurisdiction, the Judiciary Act is justly to be regarded as one of the most remarkable instances of wise, sagacious, thoroughly considered legislative enactments in the history of the law. But while the National Judicial System as established by that act remains without organic changes, yet changes of a minor, though important character have been made from time to time. This has been done, however, without disturbing the nice adjustments and skillful arrangements of the original plan. The system of 1789 is, in form and essence, the system of 1876. If we consider the intricate nature of the relations of the Federal and State governments; that each has a judicial system of its own; that the two classes of courts sit in the same territory, and exercise day by day jurisdiction over the same subjects and the same

persons; that the judicial system provided by the Judiciary Act was untried and experimental; that serious conflicts between the State and Federal courts have been almost wholly avoided; that the Judiciary Act remains, after the lapse of nearly a century, almost intact,-it will appear that the admiration with which it has been regarded by statesmen, lawyers and judges, is not undeserved. And the changes which have been made are those which have been demanded by convenience, by the increase of the population and business of the country, and, during and since the War of the Rebellion, by circumstances brought about by that unanticipated event, and they are not changes made necessary by want of foresight in the great minds which devised and enacted the original scheme. The altered condition of the country has made still further changes, or rather enlargements, of the plan necessary, such as, for example, an intermediate court of appeals, for the relief of the Supreme Court and the convenience of suitors, and more judicial force in the districts, etc.; but it is not the purpose of this paper to enter upon this topic.

The amendments to the Judiciary Act made from time to time by Congress concerning the Federal courts, and notably those made during and since the Rebellion, have tended uniformly in one direction, namely, an enlargement of their jurisdiction. And the recent act of March 3, 1875, in connection with the legislation then existing, has amplified the Federal judicial power almost to the full limits of the constitution. The history of the Federal jurisdiction is one of constant growth; slow, indeed, during the first half-century and more, but very rapid within the last few years. For various reasons, which we need not stop to indicate, the small tide of litigation that formerly flowed in Federal channels has swollen into a mighty stream. Certain it is that of late years the importance of the Federal courts has rapidly increased, and that much, perhaps most, of the great litigations of the country is now conducted in them. This is noticeably so in the Western states. These observations

have been made, because they are a fitting introduction to the special topic we have placed at the head of this article,Removal of Causes from the State Courts. They have, indeed, been suggested by that topic; for, as will be seen as we proceed, the limited right in this regard given by the Judiciary Act has been enlarged from time to time, until a very considerable portion of the contested cases in the Federal courts now reach them through this channel.

The editor of the SOUTHERN LAW REVIEW, in consequence of the recent changes in the legislation on this important subject, and the uncertainty which many lawyers suppose to surround it in consequence of those changes, has requested the writer to prepare a practical article which shall exhibit the present state of the law concerning the Right to removal and the Mode of making that right available.

The cognizance over cases removed to the Federal court has sometimes been referred to the appellate jurisdiction, on the ground that, as the suit is not instituted in the Federal court by original process, the jurisdiction of that court must be appellate ; but Mr. Justice Nelson accurately characterized the jurisdiction in such cases" original jurisdiction, acquired indirectly by a removal from the State court.'

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SECTION II.

THE PRINCIPAL STATUTES ON THE SUBJECT OF REMOVALS

ACTS OF 1789, 1866, 1867 AND 1875.

There are some statutes giving the right of removal in special cases which we shall only mention generally, such as the right to remove causes, civil and criminal, in any State court, against persons denied Civil Rights; and suits, civil

1 Martin v. Hunter's Lessee, 1 Wheat. 304, 349, 350.

2 Dennistoun v. Draper, 5 Blatchf. 336; Fisk v. U. P. R. R. Co., 6 Blatchf. 362, 367.

3 U. S. Rev. Stats., secs. 641, 642, construed. State v. Gaines, 2 Woods C. C. 342, (1874); Gaughan v. N. W. Fertilizing Co., 3 Bissell, 485, (1873); Fowlkes v. Fowlkes, 8 Chicago Legal News, 41; Commonwealth v. Artman, 3 Grant (Pa.), 436; Hodgson v. Milward, 3 Grant (Pa.), 418.

and criminal, against Revenue Officers of the United States, and against officers and other persons acting under the Registration Laws;* and suits by Aliens against Civil Officers of

4 Rev. Stats., title XXVI, "The Elective Franchise." Rev. Stats., sec. 643.

Act of March 2, 1833 (4 Stats. at Large, 633), known as the "force act." This act provided for the removal of suits and prosecutions commenced in a court of any state, against any officer of the United States, for any act done under the revenue laws of the United States, or under color thereof. See. Rev. Stats., sec. 643. This statute, as re-enacted, applies to the removal of revenue cases under "any revenue law of the United States." Rev. Stats., sec. 643. It was previously held to be in force as to removal of revenue cases, except those arising under the internal revenue system. Peyton v. Bliss, 1 Woolw. 170 (1868), Miller, J.; Stevens v. Mack, 5 Blatchf. 514 (1867), Benedict, J.

Construction of act of 1833, see Dennistoun v. Draper, 5 Blatchf. 336, Nelson, J.; Abranches v. Schell, 4 Blatchf. 256; Wood v. Matthews, 2 Blatchf. 370. The removal may be had without regard to the amount in controversy. Wood v. Matthews, 2 Blatchf. 370.

A suit against an officer of the United States is not removable under the act of 1833 on the ground that the act complained of was done under the instructions of the treasury department. Vietor v. Cisco, 5 Blatchf. 128-but see Rev. Stats., sec. 643. See Benchley v. Gilbert (Act of July 13, 1866, sec. 67), 8 Blatchf. 147; Salt Co. v. Wilkinson, 8 Blatchf. 30.

Cases arising under direct tax law are removable under act of 1833. Peyton v. Bliss, 1 Woolw. 170, Miller, J.

What are 66 revenue laws" under the act of March 2, 1833? That Act extends to an action in the State court against a postmaster for a wrongful refusal to deliver a letter to the plaintiff, and such an action was held to be removable into the Federal court. Warner v. Fowler, 4 Blatchf.

311 (1859), Ingersoll, J.

An action of slander begun in a State court against a collector of customs, for words spoken while in the discharge of his official duty and explanatory of it, may be transferred to the Federal court under the "force act" of March 2, 1833 (4 Stats. at Large, 633), which provides, "that any case where suit or prosecution shall be commenced in a court of any state against any officer of the United States, for or on account of any act done under the revenue laws of the United States, or under color thereof," may be removed by the defendant to the Federal court. The question arose on a motion to remand; and as it appeared from the petition for the removal that the words complained of were spoken by the defendant, while in the discharge of his official duties as collector, and in connection with a seizure of goods for an alleged violation of the revenue laws (which fact the motion to remand necessarily admitted to be true), the court held that words thus spoken were to be

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the United States under specified circumstances; and suits against certain Federal Corporations, or their members as such members, may be removed upon verified petition, "stating that such defendant has a defense arising under or by virtue of the Constitution or of any treaty or law of the United States.''

This act is not repealed by the act of March 3, 1875.7

It applies, in its true construction, only to corporations

considered, under the statute, as an act done under the revenue laws of the United States. Woods, Circuit Judge, says: Words spoken in connection with the act of seizure, and in explanation or justification thereof, become part of the act, and together with the seizure form one transaction." Buttner v. Miller, 1 Woods C. C. 620 (1871).

Act of March 3, 1863 (12 Stats. at Large, 757), and act of March 2, 1867, as to removability of suits for acts done during the late rebellion under Federal authority. See Milligan v. Hovey, 3 Bissell, 13; s. C., 3 Ch. Legal News, 321; Clark v. Dick (limitation), 1 Dill. C. C. 8; Woodson v. Fleet, 2 Abb. U. S. 15; Bigelow v. Forrest (ejectment suit not removable), 9 Wall. 339 (1869); Murray v. Patrie (removal after judgment), 5 Blatchf. 343 (1866), reversed in The Justices v. Murray, 9 Wall. 274 (1869). This last case holds that so much of the 5th section of the Act of March 3 (1863), as provides for the removal of a judgment in a State court, where the cause was tried by a jury, for re-trial on the facts and law in the Circuit court, is in conflict with the seventh amendment of the Constitution, and void. McKee v. Rains, 10 Wall. 22; Galpin v. Critchlow, 112 Mass. 341 (1873); Wetherbee v. Johnson, 14 Mass. 412; The Mayor v. Cooper, 6 Wall. 247; Lamar v. Dana, 10 Blatchf. 34; Bell v. Dix, 49 N. Y. 232; Anthon v. Morton, 15 Am. Law Reg. (N. S.), 556; Hodgson v. Milward, 3 Grant (Pa.), 418. Criminal case can not be removed before indictment found in the State court. Commonwealth v. Artman, 3 Grant (Pa,), 436.

5 Rev. Stats., sec. 644.

6 Act of July 27, 1868. (15 Stats. at Large, 227; Rev. Stats., sec. 640.) This statute, as found in sec. 640 of the Revised Statutes, is as follows: "Any suit commenced in any court other than a Circuit or District court of the United States against any corporation other than a banking corporation, organized under a law of the United States, or against any member thereof as such member, for any alleged liability of such corporation, or of such member as a member thereof, may be removed, for trial, in the Circuit court for the district where such suit is pending, upon the petition of such defendant, verified by oath, stating that such defendant has a defense arising under or by virtue of the Constitution or of any treaty or law of the United States. Such removal, in all other respects, shall be governed by the provisions of the preceding section."

7 Kain v. Texas Pacific R. R. Co., 3 Cent. L. J. 12, Duval, J.