cording to the principles of common law and equity, as distinguished and defined in that country from which we derive our knowledge of these principles."

"So marked is the distinction between the jurisdiction of the courts of the United States in equity and at law with respect to procedure that the blending together in one suit in a Federal court of essentially legal and equitable remedies cannot be authorized or justified by any State statute or practice on the subject."79 So firmly is this principle imbedded in our Federal judicial system and the difference between a proceeding at law and in equity so carefully observed, in the Federal courts, that State legislation cannot confound the principles of law and equity, or authorize the blending in one suit of legal and equitable claims, or permit an equitable defense in an action at law.80

Mr. Justice Miller has treated this subject in the following manner: "This extension of power over all cases is, however, qualified by the words immediately following: 'in law or in equity.' These cases must be in law or in equity, with the exception of admiralty, as to which there is a separate clause further on in the section. Under this provision an attempt has been made to exclude a very large class of cases arising in the State and other courts, which were of an anomalous character. Some actions where remedies were given by peculiar modes of proceeding, by summary proceedings, by attachment, and others at variance with the common law, were said not to be suits at law, and yet did not come under any head of equity jurisprudence. But the decisions of the Supreme Court of the United States are abundant to the effect that, with the exception of admiralty, all modes of procedure for the assertion of rights must be arranged under the one class or the other, either law or equity, within the meaning .of this clause.

"Equity is a limited jurisdiction which has grown up by the side of the common law, which is in some sense a restriction of, and departure from that law. There is not much difficulty as to what are cases in equity, and

79 Jones v. Mutual Fidelity Co., 123 F. R., 506, 518. 80 Anglo, etc., v. Lombard, 132 F. R., 721, 731.

it is sufficient to say, that the Federal courts have held that all the cases that are neither properly cognizable in admiralty or equity are, within this clause of the Constitution, cases at law. Indeed, the Supreme Court have held, as they have been compelled to do, that when the Federal courts come to administer the rights or the remedies claimed under what I may venture to term the improvements in the modes of procedure which have been adopted by the codes of the various States, in most of which equity and law have been consolidated, as well as under many new statutes giving new rights, appointing new modes of procedure, and fixing new remedies, they must range the actions in those courts upon the equity or law side as the nature of the right asserted, or the remedy given may require. They do this, as equity is understood and was understood in the English courts at the time of the Revolution. Their equity jurisdiction is independent of the local law of any State, and no rules at law or in equity, which have been adopted in any State court, can abolish the separate and distinct jurisdiction. That must be administered on the chancery side of the Federal court which has taken charge of it."'81

Criminal Cases Included.-The provision that the judicial power shall extend to all cases in law and equity includes criminal cases as well as civil. Such cases are equally within the domain of the judicial power of the United States, and "whatever power may be exerted over a civil case may be exerted as fully over a criminal one. A case is not merely where one party comes into court to demand something conferred upon him by the Constitution, or by a law, or a treaty, but consists of the right of one party as well as the other."'82

81 Miller on the Constitution, 317-319.

82 Tennessee v. Davis, 100 U. S., 257-264.

CHAPTER XLII.

THE JUDICIAL POWER, CONTINUED.

To all Cases arising under the Constitution. The provision extending the judicial power to cases arising under the Constitution was not in the report of the Committee of Detail, but was inserted by the Convention on motion of Dr. Johnson. Madison doubted whether it was not going too far, to extend the jurisdiction of the court generally to cases arising under the Constitution, and whether it ought not to be limited to cases of a judiciary nature. "The right," said he, "of expounding the Constitution, in cases not of this nature, ought not to be given to that department." Madison's suggestion did not meet with support and the motion was agreed to without objection.1

A case arises under the Constitution whenever its correct decision depends upon the construction of that instrument.2 So whenever a benefit or right which the Constitution confers upon a person, is taken away from him, or is denied him, whatever may be its nature, then a case arises under the Constitution. Commenting upon this particular language, Mr. Justice Miller says: "A case arises under the Constitution whenever some constitutional right is denied, some right which this instrument gives, whether it be a right to property, a right of liberty, a right to vote, or any other right which can be traced to this Constitution. If that right be infringed, denied, or imperilled, it can be brought into

1 Journal, 617.

It will readily be seen how far reaching Madison's suggestion was. It would be difficult to determine what the effect on the republic would have been had his suggestion prevailed and a provision inserted in the Constitution, limiting the jurisdiction of the court to cases of a strictly judicial character.

2 Tennessee v. Davis, 100 U. S., 257, 264.

the courts of the United States by virtue of this provision."'

A suit arises under the Constitution and laws of the United States only when the plaintiff's statement of his cause of action shows it to be based upon the laws or the Constitution. It is not sufficient (as the law now stands) that the defendant may find in the Constitution or the laws a ground of defense.3a

To all Cases arising under the Laws of the United States. As this clause was reported by the Committee of Detail it read, "The jurisdiction of the Supreme Court shall extend to all cases arising under laws passed by the Legislature of the United States." We have seen that the term "judicial power" was substituted in this section for "jurisdiction of the Supreme Court;" so the expression, "to cases arising under the laws of the United States," was substituted for the language, "shall extend to all cases arising under laws passed by the legislature of the United States." Cases arising under the laws of the United States are such as grow out of the legislation of Congress, whether they constitute the right or privilege, or claim or protection, or defense of the party, in whole or in part, by whom they are asserted. A case arises under the laws of the United States when it arises out of the implication of the law." Chief Justice Jay, in Chisholm v. Georgia," said, "The judicial power of the United States" extended to five descriptions of cases, viz.: "First, To all cases arising under this Constitution; because the meaning, construction, and operation of a compact ought always to be ascertained by all the parties, or by authority derived only from one of them. Second, to all cases arising under the laws of the United States; because as such laws, constitutionally made, are obligatory on each State, the measure of obligation and obedience ought not to be decided and fixed by the party from whom they are due, but by a tribunal deriving authority from both the

3 Miller on the Constitution, 320.

3a In re Winn, 213 U. S., 458-465. 4 Journal, 458.

5 100 U. S., 264.

62 Dallas, 475.

parties. Third, to all cases arising under treaties made by their authority; because as treaties are compacts made by, and obligatory on the whole nation, their operation ought not to be affected, or regulated by the local laws or courts of a part of the nation. Fourth, to all cases affecting ambassadors, or other public ministers, and consuls; because, as these are officers of foreign nations, whom this nation are bound to protect and treat according to the laws of nations, cases affecting them ought only to be cognizable by national authority. Fifth, to all cases of admiralty and maritime jurisdiction; because, as the seas are the joint property of nations, whose right and privileges relative thereto are regulated by the law of nations and treaties, such cases necessarily belong to national jurisdiction."

In Starin v. New York, Chief Justice Waite, in considering the question whether that suit was one which arose under the Constitution or laws of the United States, said, "The character of a case is determined by the questions involved," and laid down the following test by which such questions could be determined: "If, from the questions it appears that some title, right, privilege, or immunity, on which the recovery depends, will be defeated by one construction of the Constitution or a law of the United States, or sustained by the opposite construction, the case will be one arising under the Constitution or laws of the United States, within the meaning of that term as used in the act of 1875, otherwise not."

From this rule it would seem that in any case where a title, right, privilege or immunity, on which the right of recovery depended, would be defeated, or sustained according to the construction to be placed upon the Constitution, or laws, the case is one which arises under the Constitution or laws of the United States within the act of 1875.

Concerning this clause, Mr. Justice Miller expressed himself thus: "The Constitution itself is a very general instrument. The rights which it confers and the duties which it imposes, are stated in very general language; but these rights and duties, and the obligations growing out of 7 115 U. S., 257.