actions are made a matter of right by the Constitution, one which Congress cannot impair."5 In Wheaton v. Peters 96 a copyright was claimed under the common law, but it was held there could be none except under the common law of some state, or depending upon a federal statute. "When a common law right is asserted we look to the state in which the controversy originated." "7

The common law in criminal cases. The federal courts do not exercise any common law jurisdiction in criminal cases. Many of their incidental powers, such as punishment for contempt, and interpretation of indictments, are derived from the common law practice; but there can be no crime against the United States unless by some federal statute.98 There are no common law offenses against the United States.99 Offenses on navigable waters are punishable by the government only when made so by some federal statute. They are not included in the constitutional grant of admiralty jurisdiction.1

43. The federal law of evidence. The federal courts apply the law of evidence of the state where they sit almost as closely as do the state courts. Prior to the Act of 19062 the competency of witnesses to testify in federal courts was partly gov

95 Amend. VII.

96 Note 94.

97 Note 94.

98 United States v. Hudson, 7 Cranch 32, 3 L. Ed. 259. This was a prosecution for libeling the government, not covered by any statute. A similar case arose in United States v. Smith, 173 Fed. 227, in the District of Indiana (decided on a question of venue).

99 United States v. Eaton, 144 U. S. 677, 12 Sup. Ct. 764, 36 L. Ed. 591. 1 United States v. Bevans, 3 Wheat. 336 (U. S.), 4 L. Ed. 404.

2 34 Stats. at Large, p. 618.

3

erned by the state law and partly by statute, but by the act referred to competency now depends entirely on the state law. Thus the right of husband and wife to testify against each other, of a surviving party to a contract to testify against the deceased contractor, and the right of attorneys, doctors and ministers to disclose confidential communications, all rest entirely on local laws.

There are many federal statutes regulating evidence in special cases, mostly relating to documentary proofs. Depositions and commissions to take testimony and letters rogatory (request to a foreign court to issue a commission to a foreign officer to take a deposition) are fully covered. By the recent equity rules these acts are not fully applicable to equity suits.

44. Equity in the federal courts.-The wellknown distinction of the English legal system between civil cases at law and in equity is fully preserved in the federal system, through the provision of the Constitution extending the judicial power to all cases in law and equity arising under the Constitution, laws and treaties of the United States.5 For this reason state practice codes abolishing the distinction between legal and equitable remedies have no force in the federal courts. The Constitution also preserves and enforces this distinction by providing that the right of trial by jury shall be pre

3 U. S. Rev. Stats., § 858.

4 U. S. Rev. Stats., §§ 861-8.

5 Art. III, § 2.

• Sheffield Furnace Co. v. Witherow, 149 U. S. 574, 13 Sup. Ct. 936, 37 L. Ed. 853.

8

served in trials at common law, involving more than $20, and that no fact tried by a jury shall be reexamined in any federal court otherwise than according to the rules of the common law. But this provision does not prevent the judge from directing a verdict when it would be his duty to set aside a contrary one, from granting a nonsuit," from commenting on the evidence,10 nor from granting a new trial.11 It does not allow a compulsory reference of the case to a referee or auditor, because this would prevent a jury trial,12 but matters of account in actions at law may be referred to an auditor or like officer, who may testify before the jury as to his computations.13

45. Equity jurisdiction when there is a common law remedy. The Judiciary Act of 1789 gave effect to the two constitutional provisions stated in the preceding section, by providing that suits in equity shall not be sustained in any federal court in any case where a plain, adequate and complete remedy may be had at law.1 Such a legal remedy in order to oust the equity jurisdiction, must be as practical and efficient to the ends of justice and its prompt administration as the equitable remedy.15 The common law remedy

7 Amend. VII.

8 Treat Mfg. Co. v. Standard Steel, etc., Co., 157 U. S. 674, 15 Sup. Ct. 718, 39 L. Ed. 853.

9 Coughran v. Bigelow, 164 U. S. 301, 17 Sup. Ct. 117, 41 L. Ed. 442. 10 United States v. Fourteen Packages, Gilp. 235 (U. S. Dist.), Fed. Cas. No. 15,151.

11 Parsons v. Bedford, 3 Pet. 433 (U. S.), 7 L. Ed. 732.

12 Howe Machine Co. v. Edwards, 15 Blatchf. 402 (U. S.).

13 Simmons v. Morrison, 13 App. Cas. 161 (Dist. Col.), Chicago, M. & St.

P. R. Co. v. Clark, 178 U. S. 353, 20 Sup. Ct. 924, 44 L. Ed. 1099.

14 U. S. Rev. Stats., § 723, Judicial Code, § 267.

15 Oelrichs v. Spain, 15 Wall. 211 (U. S.), 21 L. Ed. 43.

intended is the one existing at the date of the original judiciary act, and does not refer to remedies thereafter given in state courts.16 New equitable remedies created by the states may, however, be enforced in the national courts if there is no adequate remedy at law. Thus, a suit to quiet title to land when neither party is in possession, given by state statute, may be in the federal court, but not if defendant is in possession, since ejectment is then an adequate remedy." The right to a jury trial is one which defendant may waive by not insisting on it before answering or pleading to the merits, subject to the power of the court to raise the objection if the case is plainly unsuitable for the exercise of equity jurisdiction. Thus, an injunction restraining a rival patent claimant from injuring plaintiff's business by publishing matter stating that its computing scale was a false and dishonest one, is as suitable a remedy as damages, if not more so.1 18 It is a theoretical inadequacy which is referred to, and not a practical inability to get results. The fact that mandamus to compel a tax levy to pay a judgment on county bonds was fruitless because the county officers would not qualify as such, did not authorize a suit in equity.19

16 McConihay v. Wright, 121 U. S. 201, 7 Sup. Ct. 940, 30 L. Ed. 932. 17 Frost v. Spitley, 121 U. S. 552, 7 Sup. Ct. 1129, 30 L. Ed. 1010; Jones v. Mutual Fidelity Co., 123 Fed. 506.

18 Toledo Computing Scale Co. v. Computing Scale Co., 142 Fed. 919, 74 C. C. A. 89.

19 Thompson v. Allen Co., 115 U. S. 550, 6 Sup. Ct. 140, 29 L. Ed. 472.

CHAPTER III.

THE VARIOUS UNITED STATES COURTS AND THEIR JURISDICTION.

46. The Supreme Court.-As the one court created by the Constitution, and in view of its great powers, reasons for the prominence of this tribunal are not far to seek. A few men of genius, and many of great ability, have been connected with it. Speaking of the federal judiciary, Mr. Bryce says:20

"Yet one man was so singularly fitted for the office of chief justice, and rendered such incomparable service in it, that the Americans have been wont to regard him as a special gift of favoring Providence. This was John Marshall, who presided over the Supreme Court from 1801 till his death in 1835 at the age of seventy-seven, and whose fame overtops that of all other American judges more than Papinian overtops the jurists of Rome or Lord Mansfield the jurists of England. No other man did half so much either to develop the Constitution by expounding it, or to secure for the judiciary its rightful place in the government as the living voice of the Constitution."

In some form or other it has supervisory authority over all other federal courts, and may also review decisions of the state courts, so far as necessary to secure the supremacy of the national Constitution and laws over all state laws. It is also the final arbiter

20 Bryce, American Commonwealth, p. 261.