Removal of Cause to Federal Court. The fact of the plaintiffs removal to Vermont in good faith six months before the bringing of this petition was established in the court below by the admission of the parties. The plaintiff desired to have that fact adjudicated in some way, in order that upon error to the judgment of this court in the supreme court of the United States it might appear as part of the record; and the motion incorporated in the case was made with that view. Undoubtedly the fact of the plaintiff's removal to Vermont must in some way appear at the hearing on error, otherwise the question we are to decide will not be before the supreme court at all. But it seems unnecessary to consider this very unusual motion, because, as error must be brought to the judgment of this court, the record must show the facts upon which our present decision is based, as they appear in the statement sent here by the circuit court.
I am of opinion that the petition to remove the cause to the federal court should be denied; and I base my judgment on the broad reason that by the constitution of the United States the federal court had, and could have, no jurisdiction of the parties or the cause at the time the motion was made.
Under the judiciary act of 1789 the right to remove was confined to *Page 377 defendants, and the application must be made at the first term. It was then thought to be wise and just that the plaintiff, by bringing suit in the state court, should be held to have made his election in what tribunal to proceed, and to have thereby waived his constitutional right to sue in the federal court; while the defendant, by omitting to apply for a removal at the first term, should be held in the same way to have waived his constitutional right to have the controversy settled in a different tribunal. Whatever doubts may have been entertained as to the constitutionality of the acts of 1866 and 1867 whereby this long established course of practice was interrupted and changed, those doubts are now to be regarded as settled in favor of the acts. But in interpreting and administering those acts, which merely regulate the mode in which a party may avail himself of his constitutional right in that regard, no construction can be given them which shall have the effect to create jurisdiction in the federal courts, or in any way impair or trench upon the jurisdiction of the several states. That is matter entirely beyond legislative interference or control, always to be determined by a just interpretation of the constitution of the United States. Congress may regulate the enjoyment of the right, but the right itself rests upon the higher guaranties of the constitution.
Here was a suit commenced in August, 1872, by a citizen of New Hampshire against a citizen of Vermont. At the first term, September, 1872, the defendants' right was absolute, under the constitution and the act of 1789, to have the cause removed to the federal court upon furnishing the securities thereby required: not choosing to avail themselves of that absolute right, they still had a qualified right under the act of 1867 to have the cause thus removed, upon filing the affidavit required by that act. Three terms of the state court, separated by intervals of six months, passed, and no application for removal was made. During all this time there was a right, which rested upon the provisions of the constitution as to jurisdiction, because the parties were all the time citizens of different states; and this existing right was doubtless of such a character that its exercise might legally be regulated by act of congress. But then the plaintiff moved into and became a citizen of the same state with the defendants. What is there any longer to uphold the right? The controversy is not now between citizens of different states, but between citizens of the same state. The right was not exercised while it was in existence by virtue of the constitutional which alone created it. Jurisdiction was never vested in any federal court. Any different conclusion, drawn from an inspection of the record or a consideration of the state of things existing at the time the suit was commenced, seems to me to rest on ground quite too narrow: an important constitutional right is hardly to be determined by technicalities. If the right had been exercised before the very condition upon which its existence depended was destroyed, and the plaintiff had afterwards removed to Vermont, an entirely different question would be presented. In that case, there would be a foundation for the jurisdiction of the federal court; and when that jurisdiction *Page 378 has once attached, it clearly cannot be ousted by the subsequent act of either party. The trouble here is, the jurisdiction ever attached, and no move was made in the direction of establishing it until the right upon which it must be based was gone.
I have looked into all the cases decided by the supreme court of the United States, supposed to bear upon this question, to which our attention has been called by counsel, but have not been able to find anything which, in my judgment, call be regarded as in conflict with these views. Kanouse v. Martin, 15 How. 198, is clearly and broadly distinguishable from the present case by the fact that the amendment reducing the amount claimed below five hundred dollars was allowed after the motion to remove had been made and the power of the state court over the cause was at an end.
CUSHING, C. J., concurred.