« AnteriorContinuar »
centralization of power.
Is it not in line with as old as Plato. The nation is an individual this thought that as far as possible the final and when it has decided puts itself in position settlement of all controversies which are in to enforce that decision. Law is the “I will" themselves local shall be by the immediate of the American people. Law is to transmute friends and neighbors of the litigants? Was half formed purpose into resolute purpose ; it not that the underlying thought of the jury as is to convert aspiration into life. The nation first established? And while we boast that the has its body which must be fed; its mind; its jury system is the great bulwark of our liber- emotions ; its will which must be carried out. ties, are we not in danger of undermining its The different forces that administer to the strength and impairing its influence by the corporate individual were eloquently cited. freedom of appeal? Is not the implication The man whose body is fed and whose inteltherein that the jury and the trial judge cannot lect is brightened is unavailing -unless he has a be trusted, and is not the sense of responsibility definite purpose and pursues that purpose with taken away from both when they understand definite resolution. It is the same with the that no matter what they may decide, some nation if it means to accomplish anything. The superior and supposed wiser tribunal is going nation is what its executed laws are — no more, to review their decisions and correct whatever no higher, no better. of mistakes they may make ?"
Not long ago the Populists in Kansas decided
not to have any more lawyers in the LegislaWe publish in this issue of the LAW JOURNAL ture. More than fifty per cent. of the legislaan article written by Hon. Horatio Seymour, tors in Congress have been lawyers. It ought Jr., formerly State engineer and surveyor, one so to be. They are fitted to shape the national of the most earnest advocates of the improve- will, to give it definite resolve. We need conment of the canal provided for in the bill to be tinuous sessions of the law. The legislature submitted in the form of a referendum at the represents the superficial will of the people, the next election. Mr. Seymour was formerly State whims of partisan feeling or prejudice. The engineer and surveyor, and although this plan courts are to represent the deeper purpose of was first originally suggested by the late Samuel | the nation. They understand and interpret J. Tilden, it has since been taken up and the trend of national life. By way of illustrawarmly advocated by Mr. Seymour, who attion, the great waterways of the nation were present resides at Marquette, Mich. It can given to the nation, the great railways were readily be seen that he is anxious still for the subject to federal jurisdiction and protection, success of the canal improvement project. the great lakes are also under federal jurisdicAlthough the subject is not strictly legal, yet it tion. No act of the Legislature has produced involves important interests which are akin to the effect of Lincoln's signing the document our profession, and we must for a moment turn that set slaves free. The hand of the people aside from the strict consideration of legal held the pen. principles to the consideration of vital interests The lawyer is not merely one to settle disof the State and country.
putes or to prevent them. Beyond is the
function he performs in the American comAfter the adjournment of the American Bar monwealth. He converts creed into deed. We Association at Detroit, the Rev. Lyman Ab- are measured by what we do far more than by bott, successor to the Rev. Henry Ward what we think. Deed is the measure of the Beecher as pastor of Plymouth Church, deliv-creed. The threads out of which the pattern ered before the members of the Association a is to be woven are living threads. The lawyer most interesting and cultured address. In works them into the national fabric. Blackgiving his definition of law, he said:
stone is right; there is an analogy between laws Law is not a command addressed from a of nature and laws of jurisprudence. Laws of superior to an inferior. It is the corporate will right and wrong exist; they are. Webster said of the nation addressed to the individual. A it was useless to re-enact the laws of God. The comparison of the nation to the individual is 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 re
cent years, they are encroaching upon the preIn the English letter to the Green Bag ap- serves of the barrister to an extent which is pears a most comprehensive distinction be most alarming to the latter. They may appear tween solicitors and barristers, a subject which as advocates in the county courts and before is rather hazy and uncertain to many Ameri-referees, masters and judges in chambers. In cans. It appears that the distinction is grad- the county courts they don a gown and wear ually disappearing from various causes, and bands at the neck, and, but for the absence of especially for the reason that English prac- the wig, would pass in appearance for the bartice is coming more and more to allow the risters. In almost every respect, except in solicitors to practice in some of the inferior high court work, they are taking the places of courts, while barristers in many instances have those who are popularly spoken of as belongdone away with the services of solicitors in the ing to the “upper branch ” of the profession. arrangement of the case and the preparation of But the barrister has exclusively the right of evidence in the cause. The letter is well worth audience in the higher courts. printing, and is as follows:
In addition to this he is called upon by the The line which divides the barrister from the solicitors to “settle" the pleadings, that is to solicitor in the English practice is so shadowy say, to draft them; and to pass upon all the in some respects, although so distinct in others, formalities in a case which is the subject matter that it is hardly to be wondered at that con- of litigation up to the point where issue is fusion exists on the subject in America. In joined. He is also "instructed "to give an fact there are a good many professional men in opinion upon evidence and such technical England who would be puzzled to know questions of law as may arise. This he is where the function of the solicitor stops and supposed to do only upon a "brief " submitted the practice of the barrister begins. An to him by a solicitor. But, fortunately for American who was recently called to the bar him, and as a set-off to the encroachments desired to retain a copy of a letter on private upon his functions by the solicitor, he is now and personal business, which, therefore, he had beginning to see the lay client directly, and not taken pains to write in copying ink. He solely, as heretofore, through the intervention handed it, with a letter-press copying book, to of the solicitor. When Sir Richard Webster
was attorney-general sometime ago, and there documents. It is feared that if an official trusfore the leader of the bar and the custodian of tee is appointed he will not allow these charges, its prerogatives, he decided that a barrister and in consequence there will be so mueh the might advise a layman in all matters which less business to do. The argument in favor
in litigation or likely to result of the official trustee is based upon the fact immediately in litigation. It cannot be said in that he will be an officer of the court and that truth that in consequence of this clients are he will be obliged to give a bond and will be tumbling over each other in their mad eager- compelled to report at stated intervals to the ness to get access to the sacred precincts of a court the result of his transactions. It is urged barrister's chambers; but it is true that more that the irresponsibility of trustees under the and more, each year, consultations are being present system encourages malversations and held with those who seek legal advice, and misappropriations of money. The other day opinions are being written without the inter- five solicitors were struck off the rolls for mediary of solicitors' briefs.
wrong-doing. Lord Halsbury, now again the Just now both branches of the profession Lord Chancellor, says that no less than seventyare agitated over matters which affect them seven solicitors were disqualified during his last most closely. The lord chancellor has brought administration as Lord Chancellor, and that, in 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 which never come to light is enormous. act independently of all control, and are only On the other hand it is claimed that, as there answerable, in case of breach of trusts, to their are more than 15,000 solicitors on the rolls, the cestuis que trust, who must apply to the Chan- proportion of those who are dishonest to the cery Courts for relief. Most of the trustees entire number is infinitesimally small. Where are solicitors, and all of them serve without the matter would have ended cannot be safely compensation.
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 trustecs. 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 in- IS THERE A FEDERAL COMMON LAW ? terests and the professional success of the men
(All rights reserved by the Author.) for whom they administer the big trust. They § 1. Preliminary.—The question whether there is have offered to subscribe something towards a common law of the United States, as distinct from the Bar Council but the amount is small, and the common law of each or any particular State, the conditions which accompany the offer ren- has recently been mooted quite frequently, both in der it almost impossible of acceptance. How the decisions of the courts and in discussions in the ever, there is a general desire for peace and law magazines.' and as the subject seems to be of compromise, and the difficulty may be solved. considerable present importance, I venture to preIf so, I will have great pleasure in telling you
sent the following extracts from a chapter upon the
common law in a work which I am now preparing later on in what manner a revolution or strike
and in which chapter I am inclined to think that I of the largest professional trades union the
have reached and stated the correct conclusion upon world has ever seen has been accomplished, and this interesting question : what results have been attained.
§ 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 The Supreme Court of Illinois, in the recent
except as it is found in the several States. At case of Wright v. Hutchinson, held that a deed least such has been the current doctrine.? Of late, of trust of real property to
secure creditors however, a new statement of the rule has been 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 law, yet in effect it makes what may be regarded additional security, with a provision that any as an advance in the Federal jurisprudence in the piece of property shall be released to the direction of a general common law of the United grantor whenever he shall place in the hands of States which shall be administered alike by State the trustee its.value as fixed and set opposite and Federal tribunals in all matters not of a characits description attached to the agreement, does
ter local to a particular State.3
This may be heresy now, but it is the inevitable not constitute an assignment for the benefit of Orthodoxy of the future, and the author is not of creditors. On this point the court said:
those who see in the fact a sign of danger, although "The question then is, do the provisions of his training has made him in most respects a strict the agreement and the pledge as set out in the constructionist of the Federal Constitution and a bill, taken in connection with such a deed of believer in the autonomy of the States within the trust, when constructed in the light of the facts Union."
law alleged in the bill, constitute an assignment for
The development of a general common the benefit of creditors? We are clearly of the through the Federal Courts is not in conflict with opinion that this question must be answered in the complete preservation of the right of every the negative. A defeasible, and not the abso- University Law Review, vol. II, No. 7; p. 236 ; lute, title to both the real and personal property Journal, Sept. 20, 1895, p. 1462; Swift v.
American Law Review, vol. 27, p. 614; N. Y. Law
Philadelis conveyed. The payment of the notes is
phia, etc., R. Co., 64 Fed. Rep., 59. secured by the deed of trust, and the personal
? Wheaton v. Peters, 8 Pet. 591; Smith v. Alaproperty is pledged as `additional security.' bama, 124 U. S. 465, 478. But compare 3 Political The provision in the agreement that any piece Science Quarterly, 136; art. on State Statute and of property should be released to the grantor Common Law. or pledgor, whenever he should place in hands 3 Smith v. Alabama, 124 U. S. 465, 478, 479; of the trustee its value as fixed and set opposite Baltimore, etc., R. Co. v. Baugh, 149 U. S. 368 ; its description attached to the agreement, was
Moore v. United States. 91 U. S. 270, 273; Gelpcke
v. Dubuque, 1 Wall. 175, 206; Murray v. Chicago, a mere provision for a partial redemption, and,
etc., R. Co., 62 Fed. Rep. 24. so far from converting the writings into an as
4 " The 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 re
ble 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 must wave over States not over provinces.” separately, as he might be able."
Rutherford B. Hayes.
State to make its own locai laws and administer That form and legislation were such that the Suthem as between its own citizens who appeal to its preme Court, reasoning by analogy, held that the tribunals; and this the Federal Courts fully recog- United States, as such, deriving all their powers nize.
from a written Constitution, could have no common But perhaps the day will come when the same or unwri:ten law.? common law will be, in fact as well as in theory, $ 4. The “general" common lau.— That there administered by the courts of all the States and by might be a general common law of the United States the Federal Courts as well, in all matters not purely which it would be necessary to apply as between inlocal to the several States."
dividual litigants in the Federal courts, in cases In this way only can the rights of citizens of the clearly “ arising" at common law, does not appear United States be adequately protected in every to have been mooted in the early case of Wheaton v. State. It is an anomaly that in adjacent States of Peters. But a little later, in the leading case of our Federal Union, upon states of fact and rela- Swift v. Tyson, the question was raised, and it was tions of status or of contract exactly alike, an en-cautiously held by the court that the general com. tirely different application of the common law mercial law or the customs of the law merchant should be made. Yet, as has been pointed out in a would be applied by the Federal courts without rerecent decision of the Supreme Court of the United gard to the holdings upon cases calling for its apStates, such a condition of things exists when the plication by the courts of the State in which the common law, as administered in different States, is controversy arose.s applied to cases arising out of the relation of mas- And in later decisions this doctrine has been exter and servant.3
tended, the court, however, speaking always of the $ 3. The United States Courts and the Common principles of “the general law” as guiding them, Lnw.-- That in all the States of the Federal Union, but not until very recently plainly declaring that except Louisiana, the common law is the prevaling the United States courts, in a certain class of cases, system has been shown, and why the Federal Courts will administer the common law principles as they should have denied that the United States, as such, understand them, without regard to the decisions
“common law,” in the strict sense of the npon the subject in the State where the controversy term, as they have always done, * while at the same
arose, time they hold that the Federal Courts have full § 5. A doctrine necessarily implied.---The doctrine equity powers as administered by the English High of these cases, which it has taken the United States Court of Chancery, is one of the anomalies of ju- Supreme Court about half a century to elaborate dicial reasoning which must be traced to the pecu- through the slow process of successive decisions liar form in which the question at issue was first upon new cases as they have been presented, might presented to the Supreme Court of the United | bave been found clearly implied in the language of States, and to the legislation of Congress regarding the Federal Judiciary.
rules of decision in trials at common law." It
has been held that the decisions of the State courts Railroad Co. v. Georgia, 98 U. S. 359; see, on questions of common law are not "laws" within also: 92 U. S. 289; 91 U. S. 452.
the meaning of the clause in question. Baltimore, ? See Article : Uniformity of Laws Through etc., R. Co, v. Baugh, 149 U. S., 368, 371. National and Inter-State Collification : Leonard A. ? Wheaton v. Peters, 8 Pet. 591, 658: Bucher v. Jones, 28 Am. Law Rev. 547.
Cheshire R. Co., 125 U. S. 555. 3 Baltimore, etc., R. Co. v. Baugh, 149 U. S. 368. 8 Swift v. Tyson 16 Pet. 1; s. C., 1 Ain. L. C. 411.
* Wheaton v. Peters, 8 Pet. 591, 658, 659; United Watson v. Tarpley, 18 How. 517, 520, 521; States v. Hudson, 7 Cranch, 32; United States v. Gelpcke v. Dubuque, 1 Wall. 175, 206; Delmas v. Coolidge, 1 Wheat. 415; Bucher v. Cheshire R. Co., Ins. Co , 14 id. 665; Boyce v. Tabb, 18 id. 546, 548; 125 U. S., 555, 582; Smith v. Alabama, 124 id. Olcott v. Supervisors, 16 id. 678, and brief of Matt. 478; but see 3 Political Science Quarterly, 136. H. Carpenter therein, 681, 684; Hough v. Ry. Co.,
• United States v. Howland, 4 Wheat. 108; Neves 100 U. S. 213, 226; Carpenter v. Ins. Co., 16 Pet. v. Scott, 13 How. 268; Pennsylvania v. Wheeling 495, 511; Jackson v. Chew, 12 Wheat. 153, 167; Bridge, 13 id. 518; Kirby v. Lake Shore,' etc., R. Foxcroft v. Mallett, 4 How. 353, 379; see generCo., 120 U. S. 130, 137; Curtis on U. S. Cts. 13; ally: Gould & Tucker's Notes to R. S. U. S. 194, Scott v. Neely, 140 U.S. 106; Watts v. Camors, 115 | 195, 196; Baltimore & Ohio R. Co. v. Baugh, 149 id. 353, 362; Payne v. Hook, 7 Wall. 425, 430. U. S. 368, and cases therein collected; Smith v.
6 Wheaton v. Peters, 8 Pet. 591, 658, 659. But Alabama, 124 id, 465, 478; Murray v. Chicago, etc., consult judiciary act of 1789, containing the clause R. Co., 62 Fed. Rep. 24. Compare: Swift v. Philaas to the laws of the several States being regarded | delphia, etc., R. Co., 64 id. 59.