to declare the law, as to all subject-matters of legislative and judicial determination, which have not been delegated by the Constitution to the United States; and any subjectmatter of which a court of the United States can only take jurisdiction by reason of the diverse citizenship of the parties is necessarily a subject-matter as to which the United States cannot legislate, and over which it ought not to exercise judicial jurisdiction otherwise than by applying the law of the state. It is is true that the federal tribunals exercise as to such subject-matters an independent though concurrent jurisdiction, but it does not follow that the federal judges should be at liberty to ascertain and declare the law of the state according to their own judgment, not of what that law is, but of what that law ought to be. On the contrary, the law of the state like the law of a foreign country should be proven and found as a fact by the federal judges. The Judiciary Act of 1789 65 declares 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." This statutory requirement ought to have been construed to require the application of state rules of law as evidenced by state constitutions, statutes, and judgments of state courts of last resort, in all cases where the jurisdiction attaches solely by reason of diverse citizenship, but the court has held otherwise, and it is settled law, that while the courts of the United States will accept and follow a fixed construction by the judicial department of a state of its constitution and statutes,66 yet, when the decisions

Rev. Stat., sec. 721.

Webster v. Cooper, 14 How. 488; Jackson v. Chew, 12 Wheat. 153, 167; Townsend v. Todd, 91 U. S. 452; H. F. I. Co. v. C., M. & St. P. Ry., 175 id. 91, 100; Dooley v. Pease, 180 id. 126.

of the state's court of last resort are not consistent the United States courts do not feel bound to follow the last decision; 67 nor will the federal courts follow a state decision rendered after the cause of action has accrued.

Upon questions of general commercial law,68 and questions of real property law depending upon general principles of law,69 and in actions upon contracts or upon questions of "general jurisprudence of national or universal application" 70 the court will determine the law for itself and it will not follow state decisions which, in the judgment of the court, do not lay down the law as the federal courts hold that it ought to be laid down.

The fundamental objection to this rule of the court is that, as Congress cannot under the Constitution legislate on any other than a federal subject-matter, the enforcement by the federal court, in controversies as to contracts, or commercial obligations, or title to real property, of a law different from the state law, as formulated in its acts of legislation and in the judgments of its courts, is nothing else than the establishment and enforcement of a body of judge-made law with no statutory basis, and without possibility of legislative amendment."1

In causes of civil cognizance, where the federal court has acquired original jurisdiction under the Constitution and laws of the United States, it may protect rights and admin

67 Pease v. Peck, 18 How. 595; Cross v. Allen, 141 U. S. 528; Burgess v. Seligman, 107 id. 20, 33; Carroll County v. Smith, 111 id. 556; S. T. Co. v. B. R. N. Bank, 187 id. 211.

6s Swift v. Tyson, 16 Pet. 1.

69 Town of Venice v. Murdock, 92 U. S. 494.

70

Gelpcke v. Dubuque, 1 Wall. 175; O. L. & T. Co. v. Debolt, 16 How. 416, 432; R. Co. v. Lockwood, 17 Wall. 357; Oates v. Nat. Bank, 100 U. S. 239; R. Co. v. Nat. Bank, 102 id. 14, 30, 31; Myrick v. M. C. R., 107 id. 102, 109; Pana v. Bowler, ibid. 529; Bolles v. Brimfield, 120 id. 759; Clark v. Bever, 139 id. 96.

71 This subject is ably discussed in Mr. George Wharton Pepper's brilliant The Borderland of Federal and State Decisions,'' 1887.

essay upon

ister remedies not only under the Constitution, laws, and treaties of the United States, but also under the common law, as adopted by the state within which the court sits,72 the principles of equitable jurisprudence, "as distinguished and defined in that country from whence we derive our knowledge of those principles," 78 and the statutes of the state.74

In admiralty the maritime law is administered, “with such amendments and modifications as Congress may from time to time have adopted." 75

Courts martial and impeachments.

110. The judicial jurisdiction of the United States, except as regards offenses of soldiers and sailors against the Articles of War, and crimes punishable by impeachment, can only be exercised by courts duly constituted under the Constitution and the laws. Congress, therefore, cannot invest courts martial or military commissions with jurisdiction to try, convict, or sentence for any offense, a citizen not being a resident of a state in rebellion, nor a prisoner of war, nor in the military or naval service of the

"Parsons v. Bedford, 3 Pet. 433; Wheaton v. Peters, 8 id. 591; Parish v. Ellis, 16 id. 451; Ex parte Bollman and Swartwout, 4 Cr. 75; Cross v. Allen, 141 U. S. 528; Dooley v. Pease, 180 id. 126; W. U. T. Co. v. C. P. Co., 181 id. 92; cf. Swift v. Tyson, 16 Pet. 1; Bucher v. C. R., 125 U. S. 555; L. & G. W. S. Co. v. P. I. Co., 129 id. 397, 443; Clark v. Bever, 139 id. 96; T. & P. Ry. v. Cox, 145 id. 593; Ellenwood v. M. C. Co., 158 id. 105. See also Pepper: "Borderland of Federal and State Decisions.'

"Robinson v. Campbell, 3 Wheat. 222; Livingston v. Story, 9 Pet. 632; Pennsylvania v. W. & B. Bridge Co., 13 How. 563; Holland v. Challen, 110 U. S. 15; Ridings v. Johnson, 128 id. 212; Mississippi Mills v. Cohn, 150 id. 202; Hollins v. B. C. & I. Co., ibid. 371; cf. Scott v. Neely, 140 id. 106.

"Edwards v. Elliott, 21 Wall. 532; The Lottawanna, ibid. 558; Ry. Co. v. Whitton, 13 id. 270; Ex parte Gordon, 104 U. S. 515; Ex parte Ferry Co., ibid. 519; Case v. Kelly, 133 id. 21; Turner v. Wilkes County Commissioners, 173 id. 461; H. F. I. Co. v. C., M. & St. P. Ry., 175 id. 91; cf. Friedlander v. T. & P. Ry., 130 id. 416; C., M. & St. P. Ry. v. Solan, 169 id. 133. 75 In re Garnett, 141 U. S. 1, 14; supra, sec. 93.

United States.76 That which may be termed the extraordinary judicial power of the United States is exercised only by courts martial and in the trial of impeachments. Courts martial may exercise judicial jurisdiction with regard to offenses against the Articles of War by soldiers, sailors, and militiamen when called out for service."

The relevant provisions of the Constitution, as to impeachments, are that, "the House of Representatives shall . . . have the sole power of impeachment;" 78 "the Senate shall have the sole power to try all impeachments. When sitting for that purpose, they shall be on oath or affirmation. When the President of the United States is tried, the Chief Justice shall preside; and no person shall be convicted without the concurrence of two-thirds of the members present. Judgment in cases of impeachment shall not extend further than to removal from office, and disqualification to hold and enjoy any office of honour, trust, or profit under the United States; but the party convicted shall nevertheless be liable and subject to indictment, trial, judgment and punishment, according to law." 79 "The President, Vice-President and all civil officers of the United States, shall be removed from office on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors." 80 "The President shall . . . have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment." 81 "The trial of all crimes, except

7 Ex parte Milligan, 4 Wall. 2.

"Wise v. Withers, 3 Cr. 331; Houston v. Moore, 5 Wheat. 1; Martin v. Mott, 12 id. 19; Dynes v. Hoover, 20 How. 65; Ex parte Mason, 105 U. S. 696; Keyes v. U. S., 109 id. 336; Wales v. Whitney, 114 id. 564; Johnson v. Sayre, 158 id. 109.

78 Art. I, Sec. 2.

TO Art. I, Sec. 3. so Art. II, Sec. 4. 81 Art. II, Sec. 2.

in cases of impeachment, shall be by jury." 82 "No bill of attainder or ex post facto law shall be passed.'' 88 The Supreme Court of the United States has never decided any question as to impeachment, but a consideration of the constitutional provisions shows clearly that, under them, the House of Representatives is the prosecutor; any civil officer of the United States may be the defendant; the Senate of the United States is the court, its members being first sworn or affirmed, the Chief Justice of the Supreme Court of the United States presiding in the case of a trial of the President, and a concurrence of two-thirds of the members present being necessary to a conviction; the offenses for which an impeached officer may be tried being "treason, bribery, or other high crimes and misdemeanors," as defined by laws of the United States enacted before the commission of the offense; the punishment extending only "to removal from office and disqualification to hold and enjoy any office of honour, trust, or profit under the United States," but without prejudice to indictment, trial, and conviction at law for the same offense; and a presidential pardon not being pleadable in bar of the impeachment nor efficacious in satisfaction of a conviction after impeachment, or in mitigation of the punishment.

The IV Amendment.

111. The exercise of judicial power by the United States is, in some respects, limited by certain other of the provisions of the Constitution and its Amendments. In the most important case that ever came before the Supreme Court,84 it was held that neither the President, nor

82 Art. III, Sec. 2.

82 Art. I, Sec. 9.

Ex parte Milligan, 4 Wall. 2.