visions, the court declared, in the case last referred to, that the remedies in the federal courts, at common law and in equity, were in those states admitted into the Union since September 29, 1789, conformable to the supreme courts of law and equity in those states; and declared that writs of execution and other final process in the federal courts should, except as to style, be the same in each state as were then (May, 1828) used in the courts of such states, and with power in the federal courts, in their discretion, to alter their final process so far as to conform it to the future changes in that process in the state courts. The prac tice of the supreme courts of the state in use in September, 1789, was adopted, subject to alterations, by the federal courts. 1 Paine, 428, 429; Wayman v. Southard, 10 Wheaton, 1, 31, 32, 50; Bank of United States v. Halstead, 10 Wheaton, 51; 1 Peters C. C. 1; Beers v. Haughton, 9 Peters, 329, 359–361. These modes and forms of proceeding remain unaffected by subsequent state regulations on the subject, for the act of Congress did not adopt prospectively such alterations as the states might afterwards make. Lane v. Townsend, Ware, 286; Springer v. Foster, 1 Story, 601. Such parts only of the laws of a state as are applicable to the courts of the United States are adopted by the Process Act of Congress. A penalty is not adopted, being one given against a sheriff in default. Gwin v. Breedlove, 2 How. 29. Mr. Justice Story in accordance with their view; post, 419, n. 1; and it was said to be immaterial whether the case came there from the Supreme Court of the state or from the Circuit Court. x2 When the question is to be determined by common-law rules only, the decisions of the state courts are not binding: as, with regard to the construction of a deed, Foxcroft v. Mallett, 4 How. 353; or to r2 The Supreme Court follows the law as declared by the state court at the time when the rights accrued. Taylor v. Ypsilanti, 105 U. S. 60. 23 Federal courts are not bound by state decisions on questions depending upon commercial law or upon general common-law principles. Oates v. National Bank, 100 U. S. 239; Railroad Co. v. National Bank, 102 U. S. 14. In Town of Pana v. Bowler, 107 U. S. 529, the Supreme Court, while. assuming that they would be bound to follow the decision of the Illinois court, that certain bonds issued under the law of that state were irregularly issued and void, yet held that they were not bound to follow it to the extent of holding them void as against a bona fide purchaser for value, a that of a private act, Williamson v. Berry, 8 How. 495; or as to liability for a nuisance, Chicago v. Robbins, 2 Black, 418; or on a question of equity law, Neves v. Scott, 13 How. 268; infra. See further, Gloucester Ins. Co. v. Younger, 2 Curt. 322. x3 Rules of Practice under the former Acts. — That state laws cannot proprio vigore affect the process of the courts of the United question of commercial law being here involved. Myrick v. Michigan Central R. R. Co., 107 U. S. 102. United States courts recognize and protect rights given by state statutes. Dennick v. Railroad Co., 103 U. S. 11; Brine v. Insurance Co., 96 U. S. 627; Orvis v. Powell, 98 U. S. 176. Where the United States courts have jurisdiction, they exercise an independent judgment, unless some rule has become established by state decisions. Hence the Supreme Court refused to follow a state decision construing a statute which was not rendered until after judgment was given in the Circuit Court. Burgess v. Seligman, 107 U. S. 20. See cases cited. to be, not according to the practice of state courts, "but according to the principles of common law and equity, as distinguished and doubted whether Congress possessed constitutional authority to adopt, prospectively, state legislation on any given subject. 3 Sumner, 369. When, therefore, the State of Tennessee, by act, in 1820, allowed lands sold on execution to be redeemed on certain terms, it was held that lands thereafter sold on execution under federal process were not redeemable under the provisions of the statute, for state legislation cannot interfere with the process of the federal courts. Polk v. Douglass, 6 Yerger, 209; Ross v. Duval, 13 Peters, 45, s. p. The federal courts follow the decisions of the state courts on the construction of state laws, unless they come in conflict with the Constitution or laws of the United States. 10 Wheaton, 159; 1 Paine, 564. They follow, also, those statutes of the several states which prescribe rules of evidence in civil cases, in trials at common law. M'Neil v. Holbrook, 12 Peters, 84. The state laws which are made rules of decision in the federal courts are those which apply to rights of person and property. United States v. Wonson, 1 Gallison, 18; Mayer v. Foulkrod, 4 Wash. 349. See also infra, iv. 278, note. State laws limiting actions and executions on judgments are rules of property, and become rules of decision in States, see further, The Mayor v. Lord, 9 Wall. 409; Catherwood v. Gapete, 2 Curt. 94; Matter of Hopkins, ib. 567; Matter of Freeman, ib. 491; Duncan v. Darst, 1 How. 301; New England Screw Co. v. Bliven, 3 Blatchf. 240; Pomeroy v. N. Y. & N. H. R. R. Co., ib. 120; Goodyear v. Providence Rubber Co., 2 Fisher, 499; ante, 248, n. 1. But a law allowing a party to a suit to testify on his own behalf is a rule of decision and not of practice, and must be followed. Dibblee v. Furniss, 4 Blatchf. 262. On the other hand, the statute of limitations of a state does not apply to an action for the infringement of a patent, Collins v. Peebles, 2 Fisher, 541; Parker v. Hallock, ib. 543; contra, Parkes v. Hawk, ib. 58; Parker v. Hall, ib. 62; and state laws of set-off do not affect cases in the United States courts, Watkins v. United States, 9 Wall. 759, 765. As to equity, see 346, note 1. The jurisdiction and rules of decision in equity are the same in every state, for the reason stated in note (b); and it is no objection to the jurisdiction that there is a remedy under the local law. Dodge v. Woolsey, 18 How. 331, 347; Noonan v. Lee, 2 Black, 499; Barber v. Barber, 21 How. 582; Cropper v. Coburn, 2 Curt. 465; Hunt v. Danforth, ib. 592. But where Powers not judicial, exercised by the chancellor merely as the representative of the sovereign, and by virtue of the king's prerogative as parens patriæ, are not possessed by the circuit courts. Fontain v. Ravenel, 17 How. 369, 384. The Practice Act of June 1, 1872, § 5, provides that the practice, pleadings, and forms and modes of proceeding in other defined in that country, from which we derived our knowledge of those principles." (b) In this view of the subject, the common law may be cultivated as part of the jurisprudence of the United States. In its in the federal courts. Ross v. Duval, 13 Peters, 45. By act of Congress of August 23, 1842, c. 188, the Supreme Court has power to prescribe, regulate, and alter the forms of process in the district and circuit courts, the forms of pleading in suits at common law, or in admiralty, or in equity, and of taking testimony and of entering decrees, and generally to regulate the whole practice of the courts. The rules of practice in admiralty cases, on the instance side of the District Court, were established in pursuance of the act of 23d August, 1842, c. 188. See those rules in 3 N. Y. Legal Observer, 357. With respect to the common law as a part of federal jurisprudence, the Supreme Court declared, in Wheaton v. Donaldson, 8 Peters, 658, that there could not be a common law of the United States. Each of the states has its local usages, customs, and common law. There was no principle which pervades the Union, and has the authority of law, that is not embodied in the Constitution and laws of the Union. The common law could be made a part of our federal system only by legislative adoption, and when a common-law right is asserted, the courts look to the state in which the controversy originated. (b) Though there be no equity state courts, that does not prevent the exercise of equity jurisdiction in the courts of the United States; they adopt and follow the equity jurisprudence existing in England. The District Court of Louisiana has accordingly equity powers, and it is bound to proceed in equity causes according to the principles, rules, and usages which belong to the courts of equity, as contradistinguished from courts of common law. Gaines v. Relf, 15 Peters, 9; Lorman v. Clarke, 2 McLean, 568, 571. than equity and admiralty causes in the circuit and district courts of the United States shall conform, as near as may be, to those existing at the time in like causes in the courts of record of the state within which such circuit or district courts are held, except that the rules of evidence under the laws of the United States and as practised in the courts thereof are not altered. Section 6 gives remedies by attachment or other process against the property of the defendant in common-law The Practice Act of 1872 (Rev. St. § 914) does not abolish the distinction between legal and equitable remedies, even though the state law may have done 30. La Mothe Manufacturing Co. v. National Tube Works Co., 15 Blatchf. 432. Van Arsden v. Morton, 99 U. S. 378; Thompson v. Railroad Companies, 6 Wall. 134. Nor does it extend to questions of causes in the circuit and district courts similar to those given under state laws in the courts of the state where the United States court is held; and the circuit and district courts may from time to time, by general rules, adopt such state laws as may be in force on the matter. There are like provisions as to execution, &c. There are many other important provisions, especially as to criminal pleading and practice. x1 evidence. Connecticut Mutual Life Ins. Co. v. Schaefer, 94 U. S. 457. And whereever Congress has provided a specific method of procedure, of course that governs. Easton v. Hodges, 7 Biss. 324; Sage v. Tanszky, 6 Cent. L. J. 7. For further limitations of the operation of the statute, see Newcomb v. Wood, 97 U. S. 581. proved condition in England, and especially in its improved and varied condition in this country, under the benign influence of an expanded commerce, of enlightened justice, of republican principles, and of sound philosophy, the common law has become a code of matured ethics and enlarged civil wisdom, admirably adapted to promote and secure the freedom and happiness of social life. It has proved to be a system replete with vigorous and healthy principles, eminently conducive to the growth of civil liberty; and it is in no instance disgraced by such a slavish political maxim as that with which the Institutes of Justinian are introduced. (c) It is the common jurisprudence of the United States, and was brought with them as colonists * 343 from England, and established here, so far as it was adapted to our institutions and circumstances. It was claimed by the Congress of the united colonies, in 1774, as a branch of those “indubitable rights and liberties to which the respective colonies are entitled." (a) It fills up every interstice, and occupies every wide space which the statute law cannot occupy. Its principles may be compared to the influence of the liberal arts and sciences, adversis perfugium ac solatium præbent; delectant domi non impediunt foris; pernoctant nobiscum, peregrinantur, rusticantur. To use the words of the learned jurist, to whom I have already alluded, (b) "We live in the midst of the common law, we inhale (c) Quod principi placuit, legis habet vigorem. Inst. 1, 2, 6. (a) Declaration of Rights of October 14, 1774; Journals of Congress, i. 28. (b) Du Ponceau on Jurisdiction, 91. See also 1 Story's Comm. on the Constitation, 140, 141; ii. 264-268. The learned commentator, in the volume last cited, ably, and, in my opinion, satisfactorily contends that the common law, in the absence of positive statute law, regulates, interprets, and controls the powers and duties of the court of impeachments under the Constitution of the United States; and though the common law cannot be the foundation of a jurisdiction not given by the Constitution and laws, that jurisdiction, when given, attaches, and is to be exercised according to the rules of the common law. Were it otherwise there would be nothing to exempt us from an absolute despotism of opinion and practice.1 1 Professor Theodore W. Dwight, in an able article in 6 Am. Law Reg. N. s. 257, maintains the view that the Constitution only adopts impeachment as a mode of procedure, and that there can be no impeachment except for a violation of a law of Congress, or for the commission of a crime named in the Constitution. On another page (641) of the same volume Mr. Justice Lawrence, of Ohio, presents the opposite view, which was acted upon, as is well known, in framing the articles against President Johnson. See points and authorities submitted by the same author, Johnson's Trial. See also the arguments of counsel in that case on the one side and the other. it at every breath, imbibe it at every pore; we meet with it when we wake and when we lay down to sleep, when we travel and when we stay at home; and it is interwoven with the very idiom that we speak; and we cannot learn another system of laws without learning, at the same time, another language." The jurisdiction of the federal courts ratione personarum, and depending on the relative character of the litigant parties, has been the subject of much judicial discussion. The Constitution gives jurisdiction to the federal courts of all suits between aliens and citizens, and between resident citizens of different states, (e) and we have a series of judicial decisions on that subject. If the case arises under the Constitution, laws, or treaties of the Union, it is immaterial who may be parties, for the subject-matter gives jurisdiction; and if it arises between aliens and citizens, or between citizens of different states, it is immaterial what may be the nature of the controversy, for the character of the parties gives jurisdiction. 3. Jurisdiction when an Alien is a Party. In Bingham v. Cabot, (d) the Supreme Court held, that it was necessary *344 to set forth the citizenship of the respective parties, or the alienage, when a foreigner was concerned, by positive averments, in order to bring the case within the jurisdiction of the Circuit Court; and that if there was not a sufficient allegation for that purpose on record, no jurisdiction of the suit would be sustained. The same doctrine was maintained in Turner v. Enrille, (a) and in Turner v. The Bank of North America; (b) and it was declared, that the Circuit Court was a court of limited jurisdiction, and had cognizance only of a few cases specially circumstanced, and that the fair presumption was, that a cause was without its jurisdiction till the contrary appeared. Upon that principle the rule was founded, making it necessary to set forth, upon the record of the Circuit Court, the facts or circumstances which gave jurisdiction, either expressly or in such manner as to render them certain by legal intendment. It is necessary, therefore, where the defendant appears to be a citizen of one state, to show, by averment, that the plaintiff is a citizen of some other state, or an alien; or, if the suit be upon a promissory note, by (c) Lessee of Butler v. Farnsworth, 4 Wash. 101. (d) 3 Dallas, 382. |