General courts martial consist of from five to thirteen officers.53 There are also regimental and garrison courts martial, and field officers specially detailed, who may try offenses involving not more than one month's pay or imprisonment not exceeding one month.54 A court of inquiry, to examine into the nature of any transaction of or accusation or imputation against, any officer or soldier, may be ordered by the President, but not by a commanding officer unless upon demand of the accused.55 General and summary courts martial for the trial of naval offenses are also provided for in the Navy Articles, and their jurisdiction fixed.56 Courts of inquiry may also be ordered by the President, the Secretary of the Navy, or the commander of a fleet or squadron.57

Courts martial are statutory courts, and must therefore be convened and constituted in complete conformity with the statute, otherwise they are without jurisdiction.58 All persons in the military or naval service are amenable to trial in these courts, and have no right of trial in the civil courts.59 The jurisdiction of courts martial over crimes of violence is not exclusive of the civil courts in time of peace, nor in war time if the civil courts of loyal states are open, as in the case of Tennessee during the civil Sentences of courts martial must be approved

war.

53 Articles of War, 75-79.

54 Same, 83.

55 Same, 115.

56 U. S. Rev. Stats., § 1624.

57 Articles of War, 55; U. S. Rev. Stats., § 1624.

58 McClaughry v. Deming, 186 U. S. 49, 22 Sup. Ct. 786, 46 L. Ed. 1049.

59 Ex parte Milligan, 4 Wall. 2 60 Coleman v. Tennessee, 97 U.

(U. S.), 18 L. Ed. 281. S. 509, 24 L. Ed. 1118.

before being executed. In some cases this approval must be by the President, in some by the officer ordering the court, and in others by the commanding officer, unless the offender is pardoned by the President.61

Removal of Cases from State Courts to the District Court.

122. History of removal acts.-As a large part of the jurisdiction of the district court, and formerly of the circuit court, consists of cases in the concurrent state and federal jurisdiction, provision has always been made for the removal of such cases from state to federal courts. The judiciary act of 1789 provided that suits against aliens or by a citizen of the state in which the suit was brought against a citizen of another state, involving more than $500, exclusive of costs, might be removed to the circuit court. That act also provided for the removal of suits under diverse state land grants. The law remained in this condition until the Act of July 27, 1866, when it was somewhat modified and extended, but was still confined to the cases specified in the Act of 1789, and still confined the right of removal to the defendant.62 By the judiciary act of March 3, 1875, the right of removal was very much extended, and both plaintiff and defendant were given the right of removal of suits in the concurrent jurisdiction involving more than $500, exclusive of costs. If there were several defendants, one or more of them might remove any controversy in a suit brought in a state

61 Articles of War, 104-106.

62 14 Stats. at Large, p. 306.

court if it were separable from the other parts of the suit. Earlier laws had made removable cases against federal corporations other than banks, or against members of a corporation for any alleged liability thereof,63 and also suits arising under the civil rights legislation growing out of the war.64 An act of 1866 also provided for the removal of suits against officers acting under revenue laws, or persons acting under or by authority of any such officer, and also suits against any officer of the United States on account of acts done by him under the civil rights laws. The right of removal, however, was considerably restricted by the judiciary act of 1887.66 This act confined the right of removal to the defendant, and generally made removable any suit in the concurrent jurisdiction of which the federal courts were given jurisdiction by the act. Separable controversies were also made removable, as well as controversies between a citizen of the state where the suit was brought and a citizen of another state, in which it should be made to appear to the court that from prejudice or local influence defendant would not be able to obtain justice in the state court, or in any other state court to which the defendant might under the laws of the state remove the case. This act also for the first time provided that whenever a removed case should be remanded to the state court there should be no review of any kind from the remanding order. No substantial change has been made in 63 15 Stats. at Large, p. 227. 64 16 Stats. at Large, p. 144. 65 14 Stats. at, Large, p. 27. 66 25 Stats. at Large, p. 433.

the law of removal since 1887, the judicial code merely re-enacting and clearing up the law as it stood before.

123. What cases now removable.-Any case of a civil nature in the concurrent jurisdiction of the state and federal courts, of which the district court is given jurisdiction by §24,67 may be removed by the defendant into the district court. Cases of separable controversies, prejudice or local influence, diverse state land grants and civil rights cases, and suits and prosecutions against revenue officers and other United States officers, are also provided for.68

124. Separable controversies. In order that a suit may be removed from the state to the district court on this ground it must appear that the suit embraces two or more controversies, and that one of them at least is entirely separable from the rest of the case, upon which a separate and distinct suit might properly have been brought and complete relief afforded, and all the parties to which on one side are citizens of different states from those on the other 69 The case must be one which can be fully determined as between the parties on each side of such separable controversy. Thus, a suit was brought in the state court to quiet title to land. Two persons were admitted in the state court as parties defendant. They then filed a petition for removal on the ground that the three defendants owned and claimed separate and distinct portions of the land,

67 Judicial Code.

Gs Judicial Code, §§ 28-33.

70

69 Fraser v. Jennison, 106 U. S. 191, 1 Sup. Ct. 171, 27 L. Ed. 131.

70 Judicial Code, § 28.

and the right of removal was upheld." If the controversy is joint and several there can be no removal on this ground.72 Comparatively few cases in proportion to the number brought have been decided to cover separable controversies.73

74

125. Prejudice or local influence.-It is provided by the statute that if a case brought in the state court involves more than $3,000, exclusive of interest and costs, in which there is a controversy between the defendant and a citizen of another state, any defendant being such citizen of another state may remove the suit to the district court at any time before the trial when it shall be made to appear to the district court that from prejudice or local influence he will not be able to obtain justice in the state court. It is further provided that when the case has been removed, if it shall appear that other defendants not affected by such prejudice or local influence can be properly heard in the state court, the district court may remand that part of the case. At any time before the trial in the district court the latter is required to examine into the truth of the affidavits showing prejudice or local influence, and unless it appears to the satisfaction of the court that the removing party will not be able to obtain justice in the state court, the case shall be remanded. As to what will amount to such prejudice or local influence as to justify the removal it is established by the decisions that there must be a prejudice in favor of

71 Connell v. Smiley, 156 U. S. 335, 15 Sup. Ct. 353, 39 L. Ed. 443. 72 Louisville & N. R. Co. v. Ide, 114 U. S. 52, 5 Sup. Ct. 735, 29 L. Ed. 63. 73 Anderson v. Appleton, 32 Fed. 855.

74 Judicial Code, § 28.