grants of different states, and between a state, or the citizens thereof, and foreign states, citizens or subjects.' "1 Case Defined. A "case" within the meaning of this section of the Constitution is any subject on which the judicial power is capable of acting, and which has been submitted to it by a party in the forms required by law. A case may consist of the right of either party, plaintiff or defendant, and the provision embraces alike civil and criminal cases.2 Controversy Defined. A "controversy" in the above connection is any dispute concerning rights or wrongs cognizable by law, and which may, therefore, be the subject of an action or involved therein. It is a less comprehensive term than "case" and seems to be included therein. It applies to civil matters only.3 § 2. Analysis of jurisdiction-Two classes of causes. The jurisdiction conferred by the above comprises two general classes of causes: (1) Those in which the jurisdiction depends upon the nature of the subject matter involved, and, (2) Those in which the jurisdiction depends upon the character or citizenship of the parties to the suit. Causes of the first class comprise "all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority," and "all cases of admiralty and maritime jurisdiction." The former group, that is, cases arising under the Constitution, laws, and treaties of the United States, are known generally as cases "involv 1-Const. Art. III, § 2. 2-Cohens v. Virginia, 6 Wheat. 264; Osborn v. Bank, 9 Wheat 738; Tennessee v. Davis, 100 U. S. 257; Smith v. Adams, 130 U. S. 167; La Abra Silver Mining Co. v. United States, 175 U. S. 423. 3-Fish v. Henarie, 32 Fed. 423; In re Pacific R. Commission, 32 Fed. 241. See, also, Interstate Commerce Com. v. Brimson, 154 U. S. 447. ing a federal question," that is, a question of federal law. The federal judicial power extends to all causes of this first class without regard to the character of the parties to the suit. The second class of causes embraces all the other subjects to which the federal judicial power extends, and in this class the jurisdiction, as stated above, depends entirely upon the character or citizenship of the parties to the suit, without reference to the nature of the issues involved or the law to be implied. This class includes "all cases affecting ambassadors, other public ministers, and consuls," and "controversies" to which the United States shall be a party, controversies between two or more states, controversies between a state and citizens of another state, etc. The situation may also be stated in the language of Chief Justice Marshall as follows: 4 "The second section of the third article of the Constitution defines the extent of the judicial power of the United States. Jurisdiction is given to the courts of the Union in two classes of cases. In the first their jurisdiction depends upon the character of the cause, whoever may be the parties. This class comprehends 'all cases in law and equity arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority.' This clause extends the jurisdiction of the court to all the cases described, without making in its terms any exception whatever, and without any regard to the condition of the party. If there be any exception, it is to be implied against the express words of the article. "In the second class the jurisdiction depends entirely on the character of the parties. In this are comprehended 'controversies between two or more states, between a state and citizen of another state,' and 'between a state 4-Cohens v. Virginia, 6 Wheat. and foreign states, citizens, or subjects.' If these be the parties, it is entirely unimportant what may be the subject of controversy. Be it what it may, those parties have a constitutional right to come into the courts of the Union." It will be observed that the instances given by the chief justice are not exhaustive but simply illustrative of each class of cases. The distinction between the two classes will appear more clearly when the particular instances of jurisdiction are considered. The jurisdiction includes the familiar divisions, jurisdiction at law, jurisdiction in equity, criminal jurisdiction, etc. § 3. Distinction between law and equity. The Constitution preserves the familiar distinction between law and equity in the language "The judicial power shall extend to all cases, in law and equity, arising," etc. This distinction has been observed in practice in all the federal courts throughout the United States notwithstanding the fact that in many states the distinction between actions at law and suits in equity has been abolished by statute. But while the distinction is maintained in the federal courts, there are not, as formerly in England and still in a few of the states, separate courts of law and equity, but the same court sits in both capacities. It may be worthy of remark that although the Constitutional provision clearly means that the federal judicial power shall extend to the adjudication of rights involving both legal and equitable principles, it does not necessarily mean that separate forms of action shall be preserved. It is doubtless competent for Congress to abolish this distinction, as has been done in the so-called "code states, and establish a single system of judicial procedure, provided that in so doing the Constitutional right to a jury 5-See Irvine v. Marshall, 20 How. 558; Smith v. American Nat. Bank, 89 Fed. 832. 6-Bennett v. Butterworth, 11 How. 669; Fenn v. Holme, 21 How. 481. trial guaranteed by the Seventh Amendment be not impaired. As a matter of fact, however, the single form of procedure is a modern innovation and was unknown when the federal judicial system was established, and the legislation of Congress has always recognized the double system of procedure." § 4. Jurisdiction at law-In general. The Constitution provides that "The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority." Taken literally, this language would seem to include cases of a legal nature in the technical sense, such as were within the jurisdiction of the courts of common law, arising under the Constitution, laws and treaties of the United States, that is, cases of a legal nature arising under the federal written law. Under this construction, while the principles of the common law as to procedure, evidence, construction, etc., might be applied in the determination of causes arising under the federal Constitution, laws and treaties, there would be no room for the contention that by this clause the judicial power is extended to cases at common law generally unconnected with the Constitution, laws or treaties of the United States. In other words, this clause, so construed, does not amount to an adoption for the United States at large of the common law generally in the same sense in which the several states, by constitutional provision or statute, have adopted the common law. In those cases of which the federal courts have jurisdiction because of the citizenship or character of the parties, the character of the suit, as at law, in equity, etc., and the nature of the subject matter involved, are immaterial, and in all such cases, of course, the judicial power extends 7-See Street, Fed. Eq. Prac., §§ 11, 12. to cases at law, as well as to those in equity, etc., provided the requirement as to citizenship or character of the parties is satisfied. § 5. The federal common law-In general. In view of the fact that the federal government is a government of delegated powers and may exercise only such powers as are granted to it in the Constitution, and the further fact that the Constitution has nowhere in terms formally extended the judicial power of the United States to the common law as a whole, but only to cases at law arising under the Constitution, etc., of the United States, it has long been customary to declare that there is no national or federal common law. Thus in 1834 the Supreme Court, by McLean, J., said: 8 "It is clear there can be no common law of the United States. The federal government is composed of twentyfour sovereign and independent states, each of which may have its local usages, customs, and common law. There is no principle which pervades the Union and has the authority of law that is not embodied in the Constitution or laws of the Union. The common law could be made a part of our federal system only by legislative adoption. When, therefore, a common law right is asserted, we must look to the state in which the controversy originated." Again, Mr. Justice Miller, in 1887, declared: " "There is no common law of the United States, and yet the main body of the rights of the people of this country rest upon and are governed by principles derived from the common law of England and established as the laws of the different states." Such declarations, however, do not accurately state the law as it has now been developed by the Supreme Court. 8-Wheaton v. Peters, 8 Pet. 591, 658. 9-Bucher v. Cheshire R. Co., 125 U. S. 555, 583. See, also, Smith v. |