Page:The Green Bag (1889–1914), Volume 12.pdf/146

 Federal Jurisdiction in Eqtuty. sylvania, had no system of equity, not having adopted the English Chancery sys tem, which was regarded by our ancestors with odium as being unfavorable to liberty. The courts of the United States, in cases at law, constantly disregard the command of Section 34 of the Judiciary Act, refuse to conform to the " laws of the several States," with respect to what they are pleased to call '.'general jurisprudence," which is a body of law which they have built up for .themselves, to be administered as between citizens of different States whose accidental circumstances of residence give the Federal courts jurisdiction of actions and suits be tween them; and, as already shown, in cases inequity, they have generally disclaimed any obligation to follow either the rules of sub stantive right, statutory or case-made, pre vailing in the States where the cause of action arose, but have asserted that they administer a system of equity uniform throughout the United States independently of State de cisions; with the result that, in many of the States, they erect a different kind of law from that enacted by the legislature of the State or settled by its local adjudications; so that an alien or a citizen of another State, when suing a citizen of any particular Statein equity, and often when suing him at law, has the advantage of being above the law of that State. The rule not only works the in congruity of erecting two kinds of law in the same State, according to the forum in which the action is brought, but it works the gross injustice of giving to the alien, or to the citi zen of another State of the Union, an advan tage in litigation over the domestic citizen. Under this rule the alien, or the citizen of another State, can choose the forum accord ing to the law which is the most favorable to him, and the domestic citizen, who is the de fendant in the action, must submit to the choice. For instance, a citizen of New York, who thinks he has a cause of action against a citizen of Louisiana, will cast about to find out what the local law of Louisiana

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is, with reference to his claim, and what the rule of the courts of the United States is with reference to the same matter; or what their " general jurisprudence" is with refer ence to it. He may be able to recover under the Federal rule and not under the local law, and he will select the Federal forum, override the law of the State, and prosecute his de mand to success. On the other hand, he may find that the rule administered by the courts of the United States in equity will pre clude his recovery, but that the local law of the State will allow him to recover; and he will therefore bring his action in the State court and prosecute it to success. No such advan tage of choice is allowed the local citi zen. Now, %vhen we consider that the laws of many of the States allow every kind of busi ness to be incorporated, even farming, and with the smallest appreciable capital, as will appear by an examination of the new statute of Delaware; and when we further consider that, for the purposes of Federal jurisdiction, every corporation is conclusively presumed to be a " citizen " of the State under whose laws it is incorporated, without reference to. the real residence of its corporators or mem bers, so that the country literally swarms with fictitious "citizens," artificially created under the laws of New Jersey, West Virginia, Delaware and other States, by citizens re siding outside of those States, for the pur pose of doing business in the States of their residence, — we see that, under this rule of Federal jurisdiction, these dishonest corpora tions enjoy an advantage in litigation over honest citizens. This abuse of having two kinds of law, of which the dishonest corpora tion may take its choice while the honest citizen cannot, has grown to enormous pro portions and demands the immediate action of Congress. Opinions differ as to the form which that action should take. Many be lieve in laying the axe at the root of the tree and in repealing the whole structure of Fede ral jurisdiction based upon diverse state citi