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JURISDICTION AND PROCEDURE

OF THE

COURTS OF THE UNITED STATES.

CHAPTER I.

THE ORIGIN AND THE LIMITS OF THE JURISDICTION OF THE FEDERAL COURTS.

1. Introduction.

In an ideal State there would be only one set of courts. If a controversy is one with which the law can deal at all, there should be no room for difference of opinion as to what tribunal may pass upon it. If there are different kinds of Courts, the limits of their jurisdiction with respect to each other must be defined. The affairs of men are of infinite variety. No one can foresee all their possible complexities and combinations. No statute can draw the line which separates the cases of which one Court may take cognizance from those which may be passed upon only by another, so accurately and so minutely as to foreclose the possibility of dispute as to whether a particular controversy lies upon one side or the other of it. Time, money, learning and professional experience and skill will be spent in finding out, not what the substantial rights of the parties are, but merely what Court may pass upon them. When there are two or more systems of Courts, it is almost inevitable that their procedure will differ in some respects. Their pleading and practice will not be quite the same. Moreover, mutually independent tribunals will, probably sometimes come to different conclusions as to what is the substantive law. Each will be prone to hold to its own view. It may follow that the result of a particular suit will turn altogether upon whether it is tried in one Court or in another. It is possible

to conceive of a case which the plaintiff will be bound to win in a State Court sitting perhaps on one side of a street and which he will as certainly lose if it be determined by the United States Court which may hold its sessions on the other side of the same thoroughfare. Such a state of things does not increase popular respect for either the law or the persons or tribunals administering it.

This little book seeks to state and briefly to explain the general rules which determine the jurisdiction of the Federal Courts; to give some account of the organization of the Federal judicial system; to point out the more important respects in which the procedure of these tribunals differs from those of the States; and to say a little about those subjects of general law upon which they do not feel themselves bound to follow the decisions of the State Courts, and in which in consequence they may upon the same state of facts reach an opposite conclusion.

A number of volumes, everyone larger than this, have been written on these subjects. Many others will be. Thousands of decisions relate to them. Most industrial processes are, in a scientific sense, wasteful. They fail to turn to the best theoretical advantage much of the material consumed and much of the energy exerted. No furnace as yet constructed is able to make profitable use of all the power latent in the fuel burned. The money, the time, the learning, the ability and the nervous force which have been laid out in answering such questions as those with which this treatise deals. represent in a way, the same sort of economic loss as that which is incurred when all the power, which for countless centuries has been stored up in a ton of coal, is expended in order that a small percentage of it may be put to the use of man. Within the present limits of our knowledge we can do no better. Waste is part of the cost of use. So the necessity of dealing with the problems herein discussed is a portion of the price we pay for our dual system of government. That system has been worth all that in this and other ways it has cost us. Without a system of Federal Courts independent of those of the States, and, in the case of the Supreme Court

when dealing with a certain class of questions paramount to them, our Federal Government would not be what it today is. Very probably it would ere this have been dissolved.

Nevertheless, no good purpose can be served by shutting our eyes to the fact that in some respects that system is costly; this must be generally recognized before much can be done to reduce such expenditure to its theoretical minimum. The activities of the Federal Government are now far greater than they were in earlier years. It is not unlikely that for sometime to come they will still further increase. It does not necessarily follow that there must be a proportionate expansion of the volume of litigation in the Federal Courts. The duty of enforcing Federal Rights may by Congress be imposed upon the State Courts.1 Local and sectional prejudice is much less general and intense than it once was. Doubtless it will still further abate. There will be correspondingly less occasion to seek in the Federal Courts protection from it.

We have become in fact one people. We none the less still clearly recognize the paramount importance of maintaining and, if possible, of developing every existing instrument of local self government even though it be at the cost of some temporary sacrifice of efficiency in administration. No considerable body of opinion in this country has ever sought centralization for its own sake. There are no longer any large number of persons who cherish any intense jealousy of the Federal Government. It should be easier than it has been to agree upon what should be the limits of the respective jurisdictions of the State and of the Federal Courts.

The pages which follow deal with the Courts of the United States as they now exist. Such reference is made to past conditions as may help to a more accurate understanding of the present.

2. Nature of the Questions Discussed.-Questions of jurisdiction, of pleading and of practice are not usually interesting. They deal with none of those touches of nature, whether great or trivial, which make all the world akin. Nor

1 Second Employers' Liability Cases, 223 U. S. 1.

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