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The Federal Courts, Localism, and the National Economy, 1865–1900*

Published online by Cambridge University Press:  11 June 2012

Tony A. Freyer
Tony A. Freyer
Affiliation:
Assistant Professor of History, University of Arkansas, Little Rock
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Abstract

It is a truism of American constitutional history that the federal judiciary was expected to facilitate interstate commerce. The right of individuals to remove cases to a federal court from locally prejudiced state courts was recognized under a wide range of circumstances. But it seemed less and less natural, as more and more of the nation's business came to be transacted by the “trusts” on a national basis, for corporations to be accorded the same rights. Professor Freyer shows that a major campaign, which had some success in the 1880s, was mounted to deny corporations the right of escape to federal courts. In the end, however, the nation's lawmakers recognized that the problem of the growing concentration of capital would have to be solved by something more sophisticated than frontier justice.

Type
Research Article
Information
Business History Review , Volume 53 , Issue 3: Legal and Business History , Autumn 1979 , pp. 343 - 363
Copyright
Copyright © The President and Fellows of Harvard College 1979

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References

1 Hays, Samuel P., The Response to Industrialism, 1885–1914 (Chicago, 1957)Google Scholar; Wiebe, Robert H., The Search for Order, 1877–1920 (New York, 1967)Google Scholar; Ginger, Ray, Age of Excess: The United States from 1877 to 1914 (New York, 1975)Google Scholar; Tarbell, Ida M., The Nationalization of Business, 1878–1898 (Chicago, 1971)Google Scholar; Porter, Glenn, The Rise of Big Business, 1860–1910 (New York, 1973)Google Scholar; Kirkland, Edward C., Industry Comes of Age: Business, Labor, and Public Policy 1860–1897 (Chicago, 1961)Google Scholar; and especially, Chandler, Alfred D. Jr., “The Beginnings of ‘Big Business’ in American Industry,” Business History Review, XLIII (Spring, 1959), 3–31.Google Scholar

2 Wiebe, Search for Order, is the best statement of the shift from a local community orientation to one essentially national and urban. Hays, Response to Industrialism, and Tarbell, Nationalization of Business, offer support for Wiebe's thesis. The work of Chandler, Porter, and Kirkland all fit easily into Wiebe's interpretation of the period.

3 Hays, Response to Industrialism, 158–162; Weibe, Search for Order, 80–83, 291–295; Ginger, Age of Excess, 110, 116, 264–266, 303–307; Tarbell, Nationalization of Business, 97, 100, 105, 139, 217–218; Paul's, ArnoldThe Conservative Crisis and the Rule of Law (Los Angeles, 1960)Google Scholar is the best statement by a constitutional historian of this view. And two valuable studies treating the commerce power and the Fourteenth Amendment are Roche's, John P. “Entrepreneurial Liberty and the Fourteenth Amendment,” Labor History, VII (Winter 1963), 3–31CrossRefGoogle Scholar, and “Entrepreneurial Liberty and the Commerce Power: Expansion, Contraction, and Casuistry in the Age of Enterprise,” University of Chicago Law Review, XXX (Spring 1963), 680–703. See also, Mendelson, Wallace, Capitalism, Democracy, and the Supreme Court (New York, 1960)Google Scholar, Miller, Arthur S., The Supreme Court and American Capitalism (New York, 1968).Google Scholar

4 Although their focus is neither localism nor congressional politics, studies by several legal-economic historians suggest useful alternative approaches to Paul and others. See McCurdy, Charles W., “Justice Field and the Jurisprudence of Government-Business Relations: Some Parameters of Laissez-Faire Constitutionalism, 1863–1897,” Journal of American History, LXI (March 1975), 970–1005CrossRefGoogle Scholar; Hurst, James W., Law and the Conditions of Freedom in the Nineteenth-Century United States (Madison, 1956)Google Scholar; and, especially, Scheiber, Harry N., “Federalism and the American Economic Order, 1789–1910,” Law & Society Review, X (Fall 1975), 57–118.CrossRefGoogle Scholar For an interesting case study see Martin, Albro, “Railroads and the Equity Receivership: An Essay on Institutional Change,” The Journal of Economic History, XXXIV (September 1974), 685–709.CrossRefGoogle Scholar

5 Frankfurter, Felix and Landis, James M., The Business of the Supreme Court: A Study in the Federal Judicial System (New York, 1928), 86–93, 134–145Google Scholar, was a pioneering study of reform of federal judicial administration. The thrust of the present study is to reconsider the work of Frankfurter and Landis in a broader context and thus to suggest conclusions relevant to the general history of the period.

6 Haynes, Frederick Emory, “The New Sectionalism,” Quarterly Journal of Economics, X (April 1896), 265–295Google Scholar; Dunn, J. P. Jr., “The Mortgage Evil,” Political Science Quarterly, V (March 1890), 64–83.Google Scholar Note that the following come from weekly news journals in which topics were untitled and often grouped under some general title such as “Corporate News.” Also, I have used the short form of Central Law Journal (CLJ) and Railroad and Corporation Law Journal (RCLJ) throughout this study: RCLJ, I (January 1889), 21, 26–27; RCLJ, I (May 1887), 456; RCLJ, II (December 1887), 527; RCLJ, III (June 1888), 576; RCLJ, II (November 1887), 456; RCLJ, V (February 1889), 188; RCLJ, V (June 1889), 596; RCLJ, IX (March 1891), 220; RCLJ, IX (April 1891), 279; CLJ, IX (August 1879), 160; see also note 13.

7 Taft, William H., “Criticisms of the Federal Judiciary,” American Law Review, XXIX (September-October 1895), 651.Google Scholar

8 RCLJ, II, (November 1887), 456.

9 Cochran, Thomas C., Railroad Leaders, 1845–1890: The Business Mind in Action (Cambridge, 1953), 184–185Google Scholar; Cochran, , Business in American Life: A History (New York, 1972), 196Google Scholar; Marcus, Robert D., Grand Old Party: Political Structure in the Gilded Age, 1880–1896 (New York, 1971), 50–53Google Scholar, 153, 195, 256, 263; Kirkland, Edward C., Dream and Thought in the Business Community 1860–1900 (Ithaca, 1956), 135Google Scholar; Kirkland, , Men, Cities, and Transportation: A Study in New England History, 1820–1900 (Cambridge, Mass., 1918), 19Google Scholar; Frankfurter and Landis, Supreme Court, 65, 89, 90, 292.

10 Kirkland, Dream and Thought, 135; Marcus, Old Party, 50–53, 153, 195, 256, 263.

11 As quoted in Marcus, Old Party, 51.

12 As quoted in Kirkland, Dream and Thought, 135.

13 RCLJ, I (January 1887), 26–27; and for other examples of local sentiment see, “Memorial from Iowa Legislature,” 15 Congressional Record, Part 3, 1st, sess., 2917, 2939, 2955; Taft, , “Criticism of Federal Judiciary,” American Law Review, XXIX (September-October 1895), 643–644Google Scholar; McGrady, Edward, “Reorganization of the Federal Courts,” CLJ, III (May 1876), 311.Google Scholar

14 CLJ, XVIII (April 1884), 281–282; RCLJ, VII (Aprii 1890), 282.

15 See Freyer, Tony, “Unity From Diversity: Commercial Stability and Swift v. Tyson (1842)” (Doctoral Dissertation, Indiana University, 1975), 197–198Google Scholar for citations and discussion.

16 Ibid.

17 RCLJ, I (January 1887), 21.

18 “Township Bonds,” Monthly Western Jurist, I (April 1875), 558–560; CLJ, I (July 1874), 359; CLJ, II (January 1875), 34; CLJ, V (October 1877), 499; CLJ, VIII (January 1879), 3–5; CLJ, IX (August 1879), 160; CLJ, I (March 1874), 123; CLJ, III (May 1876), 338; CLJ, VII (October 1878), 262–264, 321–322; CLJ, VIII (April 1879), 323; CLJ, X (March 1880), 194; CLJ, XII (January 1881), 36; CLJ, I (May 1874), 225.

19 Fleishmann, Simon, “The Influence of the Bar in the Selection of Judges Throughout the United States,” American Law Review, XXXIX (May-June 1905), 354, 356Google Scholar; Cochran, Business in American Life, 196, and note 9. See also CLJ, I (October 1874), 486; CLJ, I (November 1874), 550; CLJ, III (July 1876), 443; CLJ, IV (January 1877), 73; CLJ, XV (August 1882), 81; CLJ, XV (September 1882), 221–222; CLJ, XXIII (September 1886), 242.

* Litigation involving the liability of employers for injuries attributable to the negligence of their employees.

20 CLJ, X (January 1880), 17. For further discussion concerning the uncertainties of jury verdicts see: RCLJ, IX (June 1891), 461; “Jury Trials,” CLJ, II (April 1875), 261; CLJ, VI (March 1878), 240; “Unanimity of Juries,” CLJ, X (June 1880), 483–485; “Jury Trials in Civil Cases,” CJC, XXIII (October 1886). 361; “The Jury System,” CLJ, II (November 1875), 730. For the condition of tort law in America and its relation to the jury see Friedman, Lawrence, A History of American Law (New York, 1973), 409–427.Google Scholar For the changing nature of the fellow-servant rule, and of negligence generally, see the three editions of the treatise, Shearman, Thomas G. and Bedfield, Amasa A., A Treatise on the Law of Negligence (New York, 1869, 1st ed.), 1–15, 65–128, 121Google Scholar; Shearman, and Redfield, , Law of Negligence (4th ed., 2 vols., New York, 1888) I, 1–24, 61–70, 230–249Google Scholar; Shearman, and Redfield, , Law of Negligence (6th ed., 3 vols., New York, 1913), I, 2–46, 104, 347–716, 685–688.Google Scholar In the 1888 edition the authors say, “It would be difficult to name any branch of the law which has had greater or more interesting growth during that last forty years, and especially during the last twenty” (iii).

21 Pritchett, B. Micharel, “Northern Institutions in Southern Financial History: A Note on Insurance Investments,” Journal of Southern History, XLI (August 1975), 391.CrossRefGoogle Scholar Fitz Hugh McMaster, Life Insurance Companies Should be Compelled to Invest in the Securities of those States in which the Funds Originate (1914), copy Library of Congress (I am indebted to Professor Harry N. Scheiber for this source). Dunn, , “Mortgage Evil,” Political Science Quarterly, V (March 1890), 64–83Google Scholar; Ginger, Age of Excess, 64–68. RCLJ, V (June 1889), 552, 596.

22 Fletcher, William Meade, Cyclopedia of the Law of Private Corporations (8 vols., Chicago, 1917), VIII, 9442–9446Google Scholar; Henderson, Gerard C., The Position of Foreign Corporations in American Constitutional Law (Cambridge, Mass., 1918), 132–147.Google Scholar

23 Hollander, Stanley C., “Nineteenth Century Antidrummer Legislation in the U.S.,” Business History Review, XXXVIII (Winter 1964), 479.Google Scholar For the function of these agents see, Kirkland, Industry Comes of Age, 264–266; Porter, Glenn and Livesay, Harold C., Merchants and Manufacturers; Study in the Changing Structure of Nineteenth-Century Marketing (Baltimore, 1971).Google Scholar

24 Warren, Charles, The Supreme Court in United States History (3 vols., Cambridge, Mass., 1923), II, 532.Google Scholar See also Freyer, “Unity From Diversity.”

25 Holt, George C., The Concurrent Jurisdiction of the Federal and State Courts (New York, 1888), 180–181Google Scholar; Shearman and Redfield, Law of Negligence (4th ed.), I, 230–429.

26 The principle of diversity jurisdiction was included in Article III of the Constitution and the Judiciary Act of 1789. Diversity applied to those cases in which the state or national citizenship of. one party to a suit was different from the state or national citizen ship of the other party. Under the Judiciary Act of 1789 cases in which diversity existed were removable from state courts under certain limited criteria. By 1875 the right of removal and the range of diversity jurisdiction was broadened. (See notes 33 and 34.) Swift v. Tyson, 18 Peters 1 (1842) established the doctrine. For discussion and sources concerning the legal and political implications of the doctrine and section 34 see Freyer, “Unity from Diversity,” 65–255, and esp., 189–91, 197–201. See also notes 24 and 25.

27 See note 23.

28 In Re Spain, 47 Fed. Rep. 208 (USCCNC, 1891).

29 Some leading decisions on this question are: Ex parte Stockton, 33 Fed. Rep. 95 (FCC CCED Tex., 1887); Robbins v. Taxing District of Shelby County, 120 U.S. 489 (1887); Corson v. Maryland, 120 US 502 (1887); Asher v. Texas, 128 U.S. 1 (1888); Stoutenburgh v. Hennick, 129 U.S. 141 (1888). And several state decisions: Simmons Hardware Co. v. Sheriff, 39 La. Ann. 850, (1887); Ex parte Rosenblatt, 19 Neo. 441, 3 Am. St. Rep. 901 (1887); State v. Bracco, 103 N.C. 350 (1889); State v. Rantin, 11 S. Dak. 144 (1898).

30 See note 22. It should be noted that the doctrine of constitutional limitations be came entangled with another jurisprudential assumption of the age: that a state could exclude, as an exercise of sovereignty, a foreign corporation from its borders, a principle established in Paul v. Virginia, 8 Wallace 168 (1868). The complexity of this problem was such that the precise scope of the doctrine of unconstitutional limitations was not established until 1906. The leading cases on the doctrine are: Home Insurance Co. v. Morse, 20 Wallace 445 (1874), Insurance Co. υ. Doyle, 94 U.S. 535 (1876), Barron v. Burnside, 121 U.S. 186 (1887); Insurance Co. v. Prewitt, 202 U.S. 246 (1906); Terral v. Burke Construction Co., 257 U.S. 529 (1922).

31 See citations and discussion in Freyer, “Unity from Diversity,” 1–27, 65–126, and also 65–255. William M. Meigs “Speech of Townshend of Illinois,” 15 Congressional Record, Part 6, 1st Session, Appendix, 360–366. See also notes below on judicial reform, CLJ, XVI (May 1883), 381. The cost is in 1875 dollars.

32 Frankfurter and Landis, Supreme Court, 61–64. See also Kutler, Stanley I., Judicial Power and Reconstruction Politics (New York, 1968).CrossRefGoogle ScholarDillion, John F., Renewal of Causes from State Courts (St. Louis. 1889), 27–31, 32–39.Google ScholarCurtis, Benjamin R., Jurisdiction, Practice, and Peculiar Jurisprudence of the Courts of the United States (Boston, 1880), 109, 173Google Scholar; Anonymous, “Removal of Causes from State to Federal Courts,” Monthly Western Jurist, II (May 1875), 56–64; Freidman, American Law, 337; Frankfurter and Landis, Supreme Court, 65.

33 Ex parte Shollenberger, 96 U.S. 369 (1877); see also Osgood v. The Chicago, Danville & Vincennes R.R. Co., (CCNDI, 1875), as reported in The Monthly Western Jurist, II, 56–64, which is the first lower court construction of the act.

34 H.W.N., “Effect of Recent Act Increasing the Jurisdiction of the Federal Circuit Court,” CLJ, II (April 1875), 274–275Google Scholar; “An Act to Determine the Jurisdiction of the Circuit Courts of the United States, and to Regulate the Removal of Causes from State Courts, and for other Purposes,” Monthly Western Jurist, II (May 1875), 41–42; JNOF Kelly, “The Test of the Citizenship of a Corporation with the Judiciary Article of the Constitution of the United States and the Judiciary Acts,” CLJ, XIII (December 1881), 482–485Google Scholar; Dillion, Removal of Causes, 103–104; Henderson, Foreign Corporations, 77–99; Curtis, Peculiar Jurisdiction, 127, 132–135; see also note 32. The cases on the fiction, in addition to those given in note 33 are: Bank of the United States v. Deveau, 5 Cranch 61 (1809); Bank of Augusta v. Earle, 13 Peters 519 (1839); Louisville, Cincinnati, and Charleston Ry. Co. v. Letson, 2 Howard 497 (1844); (for how Letson was modified see especially, Northern Indiana R.R. v. Michigan Cent. R.R., 15 Howard 233 [1854]; Marshall v. Baltimore and Ohio R.R., 16 Howard 314 (1854). For a thorough, though not unbiased, analysis of the fiction, see McGouney, Dudley O., “A Supreme Court Fiction: Corporations in Diverse Citizenship Jurisdiction of the Federal Courts,” Harvard Law Review, LVI (1943), 853–898, 1090–1124, 1225–1260.CrossRefGoogle Scholar

35 Article III of the Constitution; The Judiciary Act of 1789, U.S. Statutes at Large, I, 73 ff.

36 Curtis, Peculiar Jurisdiction, 108; Frankfurter and Landis, Supreme Court, 1–45, 69; see also note 38. CLJ, VI (January 1878), 34–35.

37 See notes 7, 13, 14.

38 Hill, Walter B., “Relief of Suitors in Federal Court,” Atlantic Monthly, LXVI (November 1890), 671–680Google Scholar; Strong, William, “Relief for the Supreme Court,” North American Review, 151 (November 1890), 567–575Google Scholar; Coxe, Alfred G., “Relief of the Supreme Court,” VI, The Forum (February 1889), 567–578Google Scholar; “Report of the Committee on Federal Legislation,” VI, Report of the American Bar Association (May 1889), 69–98; Rossington, W. H., “Federal and State Jurisdiction,” V, Kansas Bar Association Report (January 1883), 34–53Google Scholar; R.C.M. “The Supreme Court of the United States and the Schemes for Relieving It,” II, Current Comment and Legal Miscellany (January 1890), 11–17Google Scholar; Fuller, M. W., “Annual Address,” X, Kansas Bar Association Proceedings (January 1887), 65–66Google Scholar; Harlan, John M., “The U.S. Supreme Court,” Chicago Legal News, XX (February 1888), 208Google Scholar; “Remarks of Chief Justice Waite,” XXXVI, Albany Law Journal (October 1887), 318; Hughes, Robert M., “Reorganization of the Federal Courts,” X, Viriginia Law Journal (April 1886), 193–200Google Scholar; Hill, Walter B., “The Federal Judicial System,” XII, American Bar Association Report (August 1889), 289–324Google Scholar; “Goodbar, White & Co., Tennent, Walker & Co., and other businessmen and merchants of Saint Louis, Mo.,” 15 Congressional Record, Part 5, 1st Session, 1884, 5171; “Board of Trade & Transportation of the City of Cincinnati,” 15 Cong. Rec., Part 5, 1st Sess., 1884, 5324; “Alms & Doepke of Cincinnati, Ohio,” 15 Cong. Rec., Part 5, 1st Sess., 1884, 5378; “Large number of businessmen, lawyers, and others in Toledo Ohio,” 15 Cong. Rec., Part 6, 1st Sess., 1884, 5469; “Diamond Match Co. of Akron, Ohio,” 15 Congress. Rec., Part 6, 1st Sess., 1884, 5513; John Shillito Co. of Cinn., Ohio,” 15 Cong. Rec., Part 6, 1st Sess., 1884, 5611; II, CLJ (January 1875), 2–3; II, CLJ (February 1875), 101–102, 180; II, CLJ (August 1875), 551–555; III, CLJ (February 1876), 68 70; III, CLJ (April 1876), 311; V, CLJ (October 1877), 337; VI, CLJ (January 1878), 34–35; XII, CLJ (January 1881), 25; XIII, CLJ (September 1881), 167–169; XIV, CLJ (May 1882), 381; XVI, CLJ (January 1883), 1–2; XVI, CLJ (May 1883), 381; XVIII, CLJ (October 1883), 281; XVII, CLJ (November 1883), 480; XVIII, CLJ (April 1884), 282; XX CLJ (March 1885), 241–242; XXIII, CLJ (September 1886), 242; XXV, CLJ (July 1887), 73–74; XXVIII, CLJ (February 1889), 129; Cahill, Edward, “How can the Supreme Court Docket be Relieved?” XXIX, CLJ (October 1889), 329–233Google Scholar; XXX, CLJ (April 1890), 297; “The New Federal Judiciary Act,” XXXII, CLJ (May 1891), 392–294; XXXIII, CLJ (July 1891), 1; II, RCLJ (January 1887), 73?74; VI, RCLJ (December 1889), 462; IX, RCLJ (March 1891), 238.

39 “First Annual Message of Dec. 3, 1889,” as quoted: Frankfurter, Felix and Landis, James M., The Business of the Supreme Court; A Study in the Federal Judicial System (New York, 1928), 97Google Scholar; XXI, CLJ (December 1885), 518.

40 The Davis Bill was first introduced in 1877 by David Davis (former justice of the U.S. Supreme Court turned Senator). The bill was discussed in CLJ, V (October 1877), 337. After nearly fifteen years of Congressional wrangling the bill, with few major changes, became law. The bill was reported in full in “The New Federal Judiciary Act,” CLJ, XXXII (May 1891), 392–394.

41 13 Congressional Record, Part 1, 1st Session (1882), 427; 14 Congressional Record, Part 2, 2nd Session, (1883), 1244–1255.

42 These and other points are evident after a consideration of the debate over the bill between February 4 and March 4, 1880: 10 Congressional Record, Part 1, 2nd Session (1880), 699–703, 723–725, 813–820, 846–850, 950–954, 990–993; 10 Congressional Record, Part 2, 2nd Sess., (1880), 1010 1015, 1082–1084, 1276–1281, 1304–1305. The leaders of the debate in support of the bill, with one exception (Lapham of N.Y.), were from the West and the South: Knott of Kentucky, Weaver of Iowa, New of Indiana, Herbert of Alabama, Waddill of Missouri, Townshend of Illinois, Humphrey of Wisconsin. The leading speakers against the bill were George R. Robinson of Massachusetts and Barber of Chicago, Illinois.

43 Dillion, Removal of Causes, 37, 58. See also note 32, 33, 34, 56.

44 7 Congressional Record, Part 4, 2nd Session (1878), 4000; 10 Cong. Rec., Pt. 1, 2nd Sess. (1880), 681; 14 Cong. Rec., Pt. 2, 2nd Sess. (1883), 1244; 15 Cong. Rec., Pt. 5, 1st Sess. (1884), 4879; 23 Cong. Rec., Pt. 2, 1st Sess., (1892), 1070; 26 Cong. Rec., Pt. 4, 2nd Sess., (1894), 3408.

45 30 Cong. Rec., Special Session (1897), 14, introduced by Allen of Texas; 33 Cong. Rec., 1st Sess. (1900), 86, by Burke of Texas; 35 Cong. Rec., 1st Sess. (1902), 453, by McRae of Arkansas; 36 Cong. Rec., 2nd Sess. (1902), 62, by Pattern of Colorado; 37 Cong. Rec., 1st Sess. (1903), 151, Stephens of Texas; 40 Cong. Rec., Part 1, 1st Sess. (1905), 1670, Patterson, Colorado; 41 Cong. Rec., Part 1, 2nd Sess., (1906), 329; 42 Cong. Rec., Part 1, 1st Sess. (1907), 115; 44 Cong. Rec., Part 1, 1st Sess. (1909), 101, 114; 45 Cong. Rec., Part 1, 2nd Sess. (1909), 140, by Thomas of Kentucky; 45 Cong. Rec., Part 1, 2nd Sess. (1909), 180; 45 Cong. Rec., Part 2, 2nd Sess. (1910), 2150.

46 Frankfurter and Landis, Supreme Court, 89–91.

47 10 Congresstonal Record, Pt. 1, 2nd Sess., 850.

48 lbid., 820. During the debates over the Culberson bill petitions from St. Louis, Cincinnati, Akron, and Toledo came to Congress against the bill. See: “Goodbar, White & Co., Tennent, Walker, and other businessmen and merchants of Saint Louis, Mo.,” 15 Cong. Rec., Part 5, 1st Sess. (1884), 5171; “Board of Trade & Transportation of the City of Cincinnati,” 15 Cong. Rec., Part 5, 1st Sess. (1884), 5324; “Alms & Doepke of Cincinnati,” 15 Cong. Rec., Part 5, 1st Sess. (1884), 5378; “Large number of businessmen, lawyers, and others in Toledo, Ohio,” 15 Cong. Rec., Part 5, 1st Sess. (1884), 5469; “Diamond Match Co., of Akron, Ohio,” 15 Cong. Rec., Part 5, 1st Sess. (1884), 5513; “John Shillito Co.,” 15 Cong. Rec., Part 5, 1st Sess. (1884), 5611.

49 10 Cong. Rec., Part 1, 2nd Sess. (1880), 724.

50 10 Cong. Rec., Part 2, 2nd Sess. (1880), 1278.

51 13 Cong. Rec., Part 4, 1st Sess. (1882), 336–337.

52 14 Cong. Rec., Part 2, 2nd Sess. (1883), 1248, 1246.

53 See U.S. Statutes at Large, XXIV, 552, for Act of 1887 and the revised Act of 1888, U.S. Statutes at Large. XXV, 433. The provisions of the act were to increase jurisdictional amount from $500 to $2000 and to eliminate the right of the plaintiff to remove his case from state to federal court except where it could be proven conclusively that local prejudice was present. For the original bill proposed by Culberson, and the rejoinder from the Senate, see: 18 Cong. Rec., Part 1, 2nd Sess., (1887), 2542–46. See also, CLJ, XXIV (April 1887), 313; “Removal of Causes – Powers of State Courts,” CLJ, XXIV (May 1887), 435–436; Dillion, Removal of Causes, 40–49.

54 County of Yuba v. Pioneer Gold Mining Co., 32 1 Fed. Cases 183 (FCCND Calif., 1887), construed the act of 1887 very narrowly, so as to prevent virtually any removal. For comment on this decision see RCLJ, II (November 1887), 481. Almost immediately, however, the Yuba decision was disapproved of, and a broader interpretation established in the midwest circuits. See Bank of Winona v. Avery, 34 Fed. Cases 81 (1888); Tiffany v. Wilce, 34 Fed. Cases 230 (USCC Mich., 1888); Short v. Chicago; M & St. P.R.R., 34 Fed. Cases 225 (USCC Minn., 1888); Falcs v. Chicago M. & St. P.R.R.; 32 Fed. Cases 673 (1887). For others see, Dillion, Removal of Causes, 47. For comment, see RCLJ, III (January 1888), 1–2.

55 Maxwell, Samuel “Removal of Causes for Prejudice or Local Influence,” CLJ, XXVIII (January 1889), 113.Google Scholar See also Ware, E. F. “Removal of Causes on Account of Prejudice or Local Influence,” CLJ, XXX (January 1890), 29–31.Google Scholar

56 Frankfurter and Landis, Supreme Court, 101–102. See also note 45 and notes 3 and 4. For growth of the Swift doctrines and the corporate fiction see Freyer, “Unity from Diversity,” 214–234, and note 34. There were numerous comments on Swift. See for example: Pepper, George Wharton, The Border Land of Federal and State Decisions (Philadelphia 1889)Google Scholar; Meigs, William M., “National Common Law,” Southern Law Review, VIII (December 1882), 414–493Google Scholar; Mills, Henry M., “Should Fiderai Courts Ignore State Laws,” American Law Review, XXXIV (January-February 1900), 51–69Google Scholar; Hornblower, William B., “Conflict Between Federal and State Decisions,” American Law Review, XIV (March 1880), 211–223Google Scholar; Heikskell, J. B., “Conflict Between Federal State Decisions,” American Law Review, XVI (June 1882), 743–760.Google Scholar

57 Wiebe in Search for Order says: “To the degree a general government policy existed in the years following reconstruction, Federal courts had usually supplied it. Disorganizing change during the late nineteenth century had encouraged exactly the kind of broad, outlined guidance the judiciary could provide” (81). In a perceptive and detailed analysis, Harry Scheiber, while noting exceptions to the Court's centralizing tendencies during the period, draws a similar conclusion in his “Federalism and American Economic Order,” L&SR, X (Fall 1975), 57–118. That contemporaries noted the same thing is evidenced by Powers, Frederick Ferry, “Recent Centralizing Tendenices in the Supreme Court,” Political Science Quarterly, V (September 1890), 389–410.CrossRefGoogle Scholar See Cochran, Thomas C., “The Paradox of American Economic Growth,” JAH, LXI (March 1975), 935Google Scholar, for the impact of local legal resistance to interstate business on economic growth during the period.