centralization of power. Is it not in line with this thought that as far as possible the final settlement of all controversies which are in themselves local shall be by the immediate friends and neighbors of the litigants? Was not that the underlying thought of the jury as first established? And while we boast that the jury system is the great bulwark of our liberties, are we not in danger of undermining its strength and impairing its influence by the freedom of appeal? Is not the implication therein that the jury and the trial judge cannot be trusted, and is not the sense of responsibility taken away from both when they understand that no matter what they may decide, some superior and supposed wiser tribunal is going to review their decisions and correct whatever of mistakes they may make?" We publish in this issue of the LAW JOURNAL an article written by Hon. Horatio Seymour, Jr., formerly State engineer and surveyor, one of the most earnest advocates of the improvement of the canal provided for in the bill to be submitted in the form of a referendum at the next election. Mr. Seymour was formerly State engineer and surveyor, and although this plan was first originally suggested by the late Samuel J. Tilden, it has since been taken up and warmly advocated by Mr. Seymour, who at present resides at Marquette, Mich. It can readily be seen that he is anxious still for the success of the canal improvement project. Although the subject is not strictly legal, yet it involves important interests which are akin to our profession, and we must for a moment turn aside from the strict consideration of legal principles to the consideration of vital interests of the State and country. After the adjournment of the American Bar Association at Detroit, the Rev. Lyman Abbott, successor to the Rev. Henry Ward Beecher as pastor of Plymouth Church, delivered before the members of the Association a most interesting and cultured address. In giving his definition of law, he said: Law is not a command addressed from a superior to an inferior. It is the corporate will of the nation addressed to the individual. A comparison of the nation to the individual is | as old as Plato. The nation is an individual and when it has decided puts itself in position to enforce that decision. Law is the "I will” of the American people. Law is to transmute half formed purpose into resolute purpose; it is to convert aspiration into life. The nation has its body which must be fed; its mind; its emotions; its will which must be carried out. The different forces that administer to the corporate individual were eloquently cited. The man whose body is fed and whose intellect is brightened is unavailing unless he has a definite purpose and pursues that purpose with definite resolution. It is the same with the nation if it means to accomplish anything. The nation is what its executed laws are no higher, no better. no more, Not long ago the Populists in Kansas decided not to have any more lawyers in the Legislature. More than fifty per cent. of the legislators in Congress have been lawyers. It ought so to be. They are fitted to shape the national will, to give it definite resolve. We need continuous sessions of the law. The legislature represents the superficial will of the people, the whims of partisan feeling or prejudice. The courts are to represent the deeper purpose of the nation. They understand and interpret the trend of national life. By way of illustration, the great waterways of the nation were given to the nation, the great railways were subject to federal jurisdiction and protection, the great lakes are also under federal jurisdiction. No act of the Legislature has produced the effect of Lincoln's signing the document that set slaves free. The hand of the people held the pen. The lawyer is not merely one to settle disputes or to prevent them. Beyond is the function he performs in the American commonwealth. He converts creed into deed. We are measured by what we do far more than by what we think. Deed is the measure of the creed. The threads out of which the pattern is to be woven are living threads. The lawyer works them into the national fabric. Blackstone is right; there is an analogy between laws of nature and laws of jurisprudence. Laws of right and wrong exist; they are. Webster said it was useless to re-enact the laws of God. The temporary and the human laws will not stand. opposed to divine principle. Deep in the the clerk of his chambers. The latter underheart are written the principles of truth, justice, stood that a copy was required, but he failed honor. It is not true we want dishonest money; to see what the copying book had to do with we want honest money; and the question is, it. At last, when it dawned upon him, he said, What is honest money? The education of the with much disdain: "I am sorry, sir, but there lawyer can not be too broad or too deep. The is no copying press in the temple. Solicitors great principles of our national jurisprudence take letter-press copies of their letters, but barrun back to the time of the great Mosaic period. risters have their opinions written out in fair The lawyer must discern the principles of social hand." In other words, the clerk plainly intilife. He must trace the trend of history to see mated that barristers had no connection with what the future holds. The religions of the business, that was an affair of solicitors only. world are two classes. Pagan religions picture He was, in the main, correct. Solicitors do God as an angry God. The Hebrews showed what in America is known as "chamber work." He was a just God. Then came the belief They see the client, and act for him in every that He was a merciful God. Our prisons are possible way, performing services in this rereformatory. It is ours to present the highest spect which an American lawyer would never ideals, said the speaker, referring to his own dream of consenting to do, and charging therecalling. The function of the minister is to fore feee of "six-and-eight pence" and "thirhold up the highest pictures. It is the duty of teen-and-four pence," and other small sums the lawyer to shape the aspiration into a living, which would be too trivial to figure on the determined and powerful resolution. books of your lawyers, as well as larger and more imposing amounts. And now, of recent years, they are encroaching upon the preserves of the barrister to an extent which is most alarming to the latter. They may appear as advocates in the county courts and before referees, masters and judges in chambers. In the county courts they don a gown and wear bands at the neck, and, but for the absence of the wig, would pass in appearance for the barristers. In almost every respect, except in high court work, they are taking the places of those who are popularly spoken of as belonging to the "upper branch" of the profession. But the barrister has exclusively the right of audience in the higher courts. In the English letter to the Green Bag appears a most comprehensive distinction between solicitors and barristers, a subject which is rather hazy and uncertain to many Americans. It appears that the distinction is gradually disappearing from various causes, and especially for the reason that English practice is coming more and more to allow the solicitors to practice in some of the inferior courts, while barristers in many instances have done away with the services of solicitors in the arrangement of the case and the preparation of evidence in the cause. The letter is well worth printing, and is as follows: The line which divides the barrister from the solicitor in the English practice is so shadowy in some respects, although so distinct in others, that it is hardly to be wondered at that confusion exists on the subject in America. In fact there are a good many professional men in England who would be puzzled to know where the function of the solicitor stops and the practice of the barrister begins. An American who was recently called to the bar desired to retain a copy of a letter on private and personal business, which, therefore, he had taken pains to write in copying ink. He handed it, with a letter-press copying book, to In addition to this he is called upon by the solicitors to "settle" the pleadings, that is to say, to draft them; and to pass upon all the formalities in a case which is the subject-matter of litigation up to the point where issue is joined. He is also "instructed to give an opinion upon evidence and such technical questions of law as may arise. This he is supposed to do only upon a "brief" submitted. to him by a solicitor. But, fortunately for him, and as a set-off to the encroachments upon his functions by the solicitor, he is now beginning to see the lay client directly, and not solely, as heretofore, through the intervention of the solicitor. When Sir Richard Webster was attorney-general sometime ago, and therefore the leader of the bar and the custodian of its prerogatives, he decided that a barrister might advise a layman in all matters which were not in litigation or likely to result immediately in litigation. It cannot be said in truth that in consequence of this clients are tumbling over each other in their mad eagerness to get access to the sacred precincts of a barrister's chambers; but it is true that more and more, each year, consultations are being held with those who seek legal advice, and opinions are being written without the intermediary of solicitors' briefs. documents. It is feared that if an official trustee is appointed he will not allow these charges, and in consequence there will be so much the less business to do. The argument in favor of the official trustee is based upon the fact that he will be an officer of the court and that he will be obliged to give a bond and will be compelled to report at stated intervals to the court the result of his transactions. It is urged that the irresponsibility of trustees under the present system encourages malversations and misappropriations of money. The other day five solicitors were struck off the rolls for wrong-doing. Lord Halsbury, now again the Lord Chancellor, says that no less than seventyseven solicitors were disqualified during his last administration as Lord Chancellor, and that, in which never come to light is enormous. Just now both branches of the profession are agitated over matters which affect them most closely. The lord chancellor has brought in a bill to create the office of legal trustee. | his opinion, the number of breaches by trustees At present there is no such office. Trustees act independently of all control, and are only answerable, in case of breach of trusts, to their cestuis que trust, who must apply to the Chancery Courts for relief. Most of the trustees are solicitors, and all of them serve without compensation. On the other hand it is claimed that, as there are more than 15,000 solicitors on the rolls, the proportion of those who are dishonest to the entire number is infinitesimally small. Where the matter would have ended cannot be safely predicted, but it will be hung off for a while, as The idea of fees or commissions is abhorrent the recent change in government will suspend to the English courts, and they are never al- legislation on the subject for some time to come. lowed. It is sometimes the case that when The matter which has interested the other branch solicitors are appointed the instrument creating of the profession, the bar, concerns its domestic the trust provides that they shall be allowed to or internal management. A large majority of the charge for such work as they may professionally barristers, particularly the younger members, perform, but otherwise even such services re- are desirous of forming an organization for the ceive no compensation. Notwithstanding this purpose of directing, controlling and governing rule the solicitors make money out of trusts and their own affairs; and to this end a general trustees. A trustee is not simply the holder of council of the bar was formed. But it cannot a legal title or the administrator of a fund. get on without funds, and the barristers who He is a family friend and confidant, a repre- before being called are obliged to pay large sentative of a deceased father, or a grantor of sums to the already wealthy bodies which are a marriage settlement. He sympathises with known as the Inns of Court, naturally object to the beneficiary of the trust-but he takes no put their hands in their pockets to provide these step without consulting the solictor, and the funds. There are four Inns of Court - the solictor permits no consultation without enter- Middle Temple, the Inner Temple, Lincoln'sing up a charge for it. An aggrieved party inn and Gray's-inn. Conjointly they have a stated in one of the newspapers a few days ago revenue approximating $500,000 a year. Their that the appointment of an additional trustee of affairs are administered by a board of governhis estate, although there was no opposition, and ors or managers or trustees, called "Benchers." the proceedings were of the friendliest charac- They make no report of their income or their ter, had cost a little over £80. In other expenditures. Of course, they are men of inwords, nearly $400 had been expended in tegrity and high character, and no one ques"consultations," "conferences,' ""visits," "in- tions the honesty of the administration of the structions," and the "fair copying" of formal | funds they handle. There is simply the feel ing that they might do more to advance the interests and the professional success of the men for whom they administer the big trust. They have offered to subscribe something towards the Bar Council but the amount is small, and the conditions which accompany the offer render it almost impossible of acceptance. However, there is a general desire for peace and compromise, and the difficulty may be solved. If so, I will have great pleasure in telling you later on in what manner a revolution or strike of the largest professional trades union the world has ever seen has been accomplished, and what results have been attained. IS THERE A FEDERAL COMMON LAW? (All rights reserved by the Author.) § 1. Preliminary.-The question whether there is a common law of the United States, as distinct from the common law of each or any particular State, has recently been mooted quite frequently, both in the decisions of the courts and in discussions in the law magazines.' and as the subject seems to be of considerable present importance, I venture to present the following extracts from a chapter upon the common law in a work which I am now preparing and in which chapter I am inclined to think that I have reached and stated the correct conclusion upon this interesting question: § 2. Is there a common law of the Federal Union?— Strangely enough it is said that the Federal Union -the United States as such-has no common law except as it is found in the several States. At least such has been the current doctrine. Of late, however, a new statement of the rule has been The Supreme Court of Illinois, in the recent case of Wright v. Hutchinson, held that a deed of trust of real property to secure creditors who agree to a compromise of their claims ac-made, and, while it is not supposed to change the companied by a pledge of personal property as additional security, with a provision that any piece of property shall be released to the grantor whenever he shall place in the hands of the trustee its value as fixed and set opposite its description attached to the agreement, does not constitute an assignment for the benefit of creditors. On this point the court said: law, yet in effect it makes what may be regarded as an advance in the Federal jurisprudence in the direction of a general common law of the United States which shall be administered alike by State and Federal tribunals in all matters not of a charac ter local to a particular State.3 This may be heresy now, but it is the inevitable orthodoxy of the future, and the author is not of those who see in the fact a sign of danger, although his training has made him in most respects a strict constructionist of the Federal Constitution and a believer in the autonomy of the States within the Union.* law The development of a general common through the Federal Courts is not in conflict with the complete preservation of the right of every 1 University Law Review, vol. II, No. 7; p. 236; American Law Review, vol. 27, p. 614; N. Y. Law Journal, Sept. 20, 1895, p. 1462; Swift v. Philadel phia, etc., R. Co., 64 Fed. Rep., 59. "The question then is, do the provisions of the agreement and the pledge as set out in the bill, taken in connection with such a deed of trust, when constructed in the light of the facts alleged in the bill, constitute an assignment for the benefit of creditors? We are clearly of the opinion that this question must be answered in the negative. A defeasible, and not the absolute, title to both the real and personal property is conveyed. The payment of the notes is secured by the deed of trust, and the personal property is pledged as 'additional security.' The provision in the agreement that any piece of property should be released to the grantor or pledgor, whenever he should place in hands of the trustee its value as fixed and set opposite its description attached to the agreement, was a mere provision for a partial redemption, and, so far from converting the writings into an asThe Constitution in all its provisions looks to signment for the benefit of creditors, shows an indestructible Union, composed of indestructithat not only was the equity of redemption reble States." Chase, Chief Justice, in Texas v. tained the grantor, but that he reserved the White, 7 Wall. 700, 725. "The American flag right to redeem each piece or parcel of property separately, as he might be able." Wheaton v. Peters, 8 Pet. 591; Smith v. Alabama, 124 U. S. 465, 478. But compare 3 Political Science Quarterly, 136; art. on State Statute and Common Law. 3 Smith v. Alabama, 124 U. S. 465, 478, 479; Baltimore, etc., R. Co. v. Baugh, 149 U. S. 368; Moore v. United States. 91 U. S. 270, 273; Gelpcke v. Dubuque, 1 Wall. 175, 206; Murray v. Chicago, etc., R. Co., 62 Fed. Rep. 24. 4 must wave over States not over provinces." Rutherford B. Hayes. State to make its own local laws and administer them as between its own citizens who appeal to its tribunals; and this the Federal Courts fully recognize.1 But perhaps the day will come when the same common law will be, in fact as well as in theory, administered by the courts of all the States and by the Federal Courts as well, in all matters not purely local to the several States.* In this way only can the rights of citizens of the United States be adequately protected in every State. It is an anomaly that in adjacent States of our Federal Union, upon states of fact and relations of status or of contract exactly alike, an entirely different application of the common law should be made. Yet, as has been pointed out in a recent decision of the Supreme Court of the United States, such a condition of things exists when the common law, as administered in different States, is applied to cases arising out of the relation of master and servant.3 4 § 3. The United States Courts and the Common Low.--That in all the States of the Federal Union, except Louisiana, the common law is the prevaling system has been shown, and why the Federal Courts should have denied that the United States, as such, have any "common law," in the strict sense of the term, as they have always done, while at the same time they hold that the Federal Courts have full equity powers as administered by the English High Court of Chancery, is one of the anomalies of judicial reasoning which must be traced to the peculiar form in which the question at issue was first presented to the Supreme Court of the United States, and to the legislation of Congress regarding the Federal Judiciary." 5 1 Railroad Co. v. Georgia, 98 U. S. 359; see, also: 92 U. S. 289; 91 U. S. 452. 2 See Article: Uniformity of Laws Through National and Inter-State Codification: Leonard A. Jones, 28 Am. Law Rev. 547. 3 Baltimore, etc., R. Co. v. Baugh, 149 U. S. 368. 4 Wheaton v. Peters, 8 Pet. 591, 658, 659; United States v. Hudson, 7 Cranch, 32; United States v. Coolidge, 1 Wheat. 415; Bucher v. Cheshire R. Co., 125 U. S., 555, 582; Smith v. Alabama, 124 id. 478; but see 3 Political Science Quarterly, 136. ⚫ United States v. Howland, 4 Wheat. 108; Neves v. Scott, 13 How. 268; Pennsylvania v. Wheeling Bridge, 13 id. 518; Kirby v. Lake Shore, etc., R. Co., 120 U. S. 130, 137; Curtis on U. S. Cts. 13; Scott v. Neely, 140 U. S. 106; Watts v. Camors, 115 id. 353, 362; Payne v. Hook, 7 Wall. 425, 430. Wheaton v. Peters, 8 Pet. 591, 658, 659. But consult judiciary act of 1789, containing the clause as to the laws of the several States being regarded That form and legislation were such that the Supreme Court, reasoning by analogy, held that the United States, as such, deriving all their powers from a written Constitution, could have no common or unwritten law." § 4. The "general" common law. That there might be a general common law of the United States which it would be necessary to apply as between individual litigants in the Federal courts, in cases clearly "arising" at common law, does not appear to have been mooted in the early case of Wheaton v. Peters. But a little later, in the leading case of Swift v. Tyson, the question was raised, and it was cautiously held by the court that the general com. mercial law or the customs of the law merchant would be applied by the Federal courts without regard to the holdings upon cases calling for its application by the courts of the State in which the controversy arose.8 And in later decisions this doctrine has been extended, the court, however, speaking always of the principles of "the general law as guiding them, but not until very recently plainly declaring that the United States courts, in a certain class of cases, will administer the common law principles as they understand them, without regard to the decisions npon the subject in the State where the controversy arose." § 5. A doctrine necessarily implied.--The doctrine of these cases, which it has taken the United States Supreme Court about half a century to elaborate through the slow process of successive decisions upon new cases as they have been presented, might have been found clearly implied in the language of as "rules of decision in trials at common law." It has been held that the decisions of the State courts on questions of common law are not "laws" within the meaning of the clause in question. Baltimore, etc., R. Co. v. Baugh, 149 U. S., 368, 371. Wheaton v. Peters, 8 Pet. 591, 658; Bucher v. Cheshire R. Co., 125 U. S. 555. Swift v. Tyson 16 Pet. 1; s. c., 1 Am. L. C. 411. 9 Watson v. Tarpley, 18 How. 517, 520, 521; Gelpcke v. Dubuque, 1 Wall. 175, 206; Delmas v. Ins. Co, 14 id. 665; Boyce v. Tabb, 18 id. 546, 548 ; Olcott v. Supervisors, 16 id. 678, and brief of Matt. H. Carpenter therein, 681, 684; Hough v. Ry. Co., 100 U. S. 213, 226; Carpenter v. Ins. Co., 16 Pet. 495, 511; Jackson v. Chew, 12 Wheat. 153, 167; Foxcroft v. Mallett, 4 How. 353, 379; see generally: Gould & Tucker's Notes to R. S. U. S. 194, 195, 196; Baltimore & Ohio R. Co. v. Baugh, 149 U. S. 368, and cases therein collected; Smith v. Alabama, 124 id. 465, 478; Murray v. Chicago, etc., R. Co., 62 Fed. Rep. 24. Compare: Swift v. Philadelphia, etc., R. Co., 64 id. 59. |