Ex parte Tweedy

• Decision Date: 01 November 1884
• Citation: 22 F. 84
• Parties: Ex parte TWEEDY.
• Court: U.S. District Court — Western District of Tennessee

22 F. 84

Ex parte TWEEDY.

United States District Court, W.D. Tennessee.

November 1, 1884

A. H Douglass, for applicant.

HAMMOND J.

The applicant presents a duly-authenticated certificate showing that on May 20, 1881, he declared his intention to become a citizen before the probate court of Shelby county, and the question is whether that is a court 'having common-law jurisdiction ' as required by section 2165 of the Revised Statutes of the United States. It seems to be settled that it is not necessary that the court should have general common-law jurisdiction; but if any part of its jurisdiction answers that designation the requirement of the statute is fulfilled. U.S. v. Power, 14 Blatchf. 223; Ex parte Cregg, 2 Curt. 98; Ex parte Gladhill, 8 Metc. 168; State v Whittemore, 50 N.H. 245; Ex parte Conner, 39 Cal. 98.

In Tennessee, by constitutional and statutory provisions, our courts are divided into courts of law and equity, but by numerous statutes they respectively exercise concurrent jurisdiction in many matters not strictly belonging to them in their congenital capacities. The probate court of Shelby county has its jurisdiction regulated by the act of 1870, c 86, Tenn. Code (T. & S.) Sec. 316h. No trace of any common-law jurisdiction can be found in that statute, unless it may be the concurrent jurisdiction for 'the allotment of dower,' its 'original jurisdiction over bastardy and bastards,' or its concurrent jurisdiction 'for the partition or sale of estates. ' Its general jurisdiction is that formerly belonging to the ecclesiastical courts, but the assignment of dower is not incident to the administration of estates of deceased persons, nor analogous to any proceeding of a court of ecclesiastical jurisdiction. Smith, Prob. Law, 5, 257. Common-law courts did have inherent jurisdiction of the assignment of dower, but it will be found that the common-law right to and the remedies for the recovery of dower have been abrogated and superseded by our Tennessee statutes, so that it is no longer of 'common-law jurisdiction' in any of our courts to allot dower, but one of purely statutory jurisdiction, of which the circuit courts of law, the chancery courts of equity, and the county or probate courts, all have concurrent jurisdiction; and, in this matter of the allotment of dower, by the act creating its jurisdiction, the probate court of Shelby county 'is vested with all the powers of a chancery court. ' The inherent jurisdiction of a chancery court over the subject of dower is of equitable cognizance, as contradistinguished from that common-law jurisdiction which a court of law formerly exercised; and if the probate court jurisdiction should be relegated to either, it is, by the language of the statute above quoted, placed on the basis of that of the equity courts. But this is, I think, quite immaterial, since the result of our statutes and judicial decisions is to establish on this subject of dower an entirely uniform jurisdiction, so far as concerns this case, in all the courts having concurrent power over it, so essentially different, in the right and the remedy known to the common law, that in none of them can this jurisdiction serve as a foundation to support the authority to naturalize aliens under the laws of the United States.

To show this, suppose we consider the provisions of the Code defining the right of dower, and prescribing the peculiar remedy for its enforcement, to have been repealed, but the act establishing the probate court of Shelby county to remain as it now is. What is the result? Laying aside embarrassment of mere detail not pertinent here, it is clear that, the common-law right and remedy for dower being restored, necessarily, under our judicial system, the circuit courts of law would exercise the common-law jurisdiction, and enforce the common-law remedies, while the chancery courts of equity would retain the equitable jurisdiction and remedies belonging to a court of equity, and the probate court of Shelby county could exercise only the latter by the very language of the statute, and in the very nature of its organization, not being provided with the machinery of a court of law. Smith, Prob. Law, 5, 257; 2 Scrib.Dower, 91, 120, 200; Tenn. Code, (T. & S. Ed.) 316h, 2398-2403, 2407-2419; London v. London, 1 Humph. 1; Thompson v. Stacy, 10 Yerg. 493; and other cases cited in notes to the Code.

The jurisdiction of the probate court 'over bastardy and bastards' comes nearer being a 'common-law jurisdiction' than that just considered. Tenn. Code, (T. & S. Ed.) 4208, 5354-5375, and notes. The whole jurisdiction is divided between justices of the peace and the probate court, but will, for the purposes of this case, be considered together. This jurisdiction had no place in the common law of England, but is similar in many respects to that given to justices of the peace and the quorum court of general sessions of the peace, by the statute of 18 Eliz.c. 3; 2 Bac.Abr. (Bouv.Ed.) tit.'Bastardly,' 95.

I would be disposed to hold that, under the rules established for construing this clause of our naturalization laws, by the above-cited cases, this is a matter of 'common-law jurisdiction,' if the statute of Elizabeth had been common law in this state, but I am of opinion it never was a part of our common law, and that it has always been and remains statutory. It may be a question whether the act of congress should not be construed wholly with reference to the common law of England, and in this respect without regard to that peculiar 'common law' which has been established in some of the states as including those English statutes which our forefathers brought with them. But waiving this consideration, which would certainly defeat any power claimed by the probate court of Shelby county to act under the naturalization laws, and the result is the same. It is very difficult to determine with satisfaction whether any given English statute is a part of the common law of Tennessee, or is enforced by virtue of...