the Federal Constitution itself, unless the writer mistakes its meaning. The Constitution of the United States, Art. III, § 2, provides that: "The judicial power shall extend to all cases, in law and equity, arising under the Constitution, the laws of the United States, and treaties made, or which shall be made under their authority." And then the same section proceeds to define the persons and the class of cases of which the Federal courts shall have jurisdiction at law and in equity under the above quoted provision.' Then by the seventh amendment of the Constitution, the right of the Federal courts to apply the rules of the common law is expressly recognized, and in certain cases they are peremptorily required to apply them.2 When § 6. Equity jurisdiction of Federal courts. the question was raised as to the equity powers of the Federal judiciary, it was held, without hesitation, that they were the same as those of the High Court of Chancery in England, and that the principles of equity jurisprudence were to be administered by the Federal courts as an independent judiciary, without regard to the manner of their application or the statement of the doctrines of equity by the courts of any State of the Union.3 Doubtless similar would have been the holding regarding the common law and its administration in the Federal courts, but for a section in the Federal judiciary act of 1789, which provides "that the laws of the several States, except where the Constitution, treaties or statutes of the United States shall otherwise require or provide, shall be regarded as rules of decision in trials at common law in the courts of the United States in cases where they apply," and also the mistaken notion that the United States could have no common law, because all its laws must be derived from the written Constitution.+ This very train of reasoning overlooks the fact that the decisions of the English High Court of Chancery establishing the doctrines of equity, are a part of the unwritten law of England, and have 1 Const. U. S., Art. III, § 2; Murray v. Chicago, etc., R. Co., 62 Fed. Rep. 21, 28; 3 Political Science Quarterly, 136. Const. U. S. Amendments, Art. VII; Root v. Ry. Co., 105 U. S. 189, 206; Ex parte Boyd, 105 U. S. 647, 656; 1 Fost Fed. Pract. (2d ed.), § 4. 3 Robinson v. Campbell, 3 Wheat. 212; U. S. v. Howland, 4 Wheat. 108; Green v. Creighton, 23 How. 90; Payne v. Hook, 7 Wall. 430; Kirby v. Lake Shore, etc., R. Co., 120 U. S. 130, 137; Mississippi Mills v. Cohn, 150 U. S. 202, 205. Wheaton v. Peters, 8 Pet. 591; Swift v. Philadelphia, etc., R. Co., 64 Fed. Rep. 62, 64, 65. been adopted, as we have seen, as a part of the common law of the several States. It is thus a train f reasoning inconsistent with itself and not in harmony with the language of those provisions of the Federal Constitution which are above quoted upon this subject.5 § 7. A national common law. That all the laws of the United States need not be written, and that a common law of the United States as such, is growing up, cannot be longer questioned. Its evidences are found in many recent decisions of the Federal courts, and have been thus stated in an opinion of the Supreme Court of the United States, delivered by the late Mr. Justice Matthews: "There is, however, one clear exception to the statement that there is no national common law. The interpretation of the Constitution of the United States is necessarily influenced by the fact that its provisions are framed in the language of the English common law, and are to be read in the light of its history. The code of constitutional and statutory construction which, therefore, is gradually formed by the judgments of this court, in the application of the Constitution and the laws and treaties made in pursuance thereof, has for its basis so much of the common law as may be implied in the subject, and constitutes a common law resting on national authority." § 8. The true principle stated.—The true principle is that the Federal courts have no common law jurisdiction; but when a case comes before them based on a state of facts conferring jurisdiction under the Federal Constitution and the acts of Congress and triable as a case at common law, it should be a matter of necessary implication that it is to be tried in accordance with the common law, which the Federal courts must administer in such case, and for which they do not have to look to the courts of the State in which the controversy arose, unless the question at issue is one of a character local to the State. When it is of a general character it should be determined by the general common law." § 9. The question one of jurisdiction. The jurisdiction of the Federal courts is wholly dependent upon the provisions of the Federal Constitution and Ante, § 5; Baltimore, etc., R. Co. v. Baugh, 149 U. S. 368, 371. 6 Smith v. Alabama, 124 U. S. 478; Moore v. United States, 91 U. S. 270, 273; 3 Political Science Quarterly, 136. 'See dissenting opinion of Clifford, J., U. S. v. Cruikshank, 92 U. S. 564; Moore v. United States, 91 U. S. 270, 273; Smith v. Alabama, 124 U. S. 465, 478; Murray v. Chicago, etc., R. Co., 62 Federal Rep. 24; Sec Article by Leonard A. Jones, 28 Am. Law Rev. 547, 552-553. the laws of Congress pursuant thereto. That is, it is wholly statutory.' 66 "Jurisdiction is the power to hear and determine" a case or controversy. It is the right to adjudicate concerning the subject matter in a given case." 2 It is not a rule for the determination upon the merits, of the questions submitted to the tribunal, but it is a right, a power, which the court, by its inherent constitution, has, or has not, to consider and decide the particular controversy between the particular parties before it." Clearly, therefore, the Federal Courts have no jurisdiction conferred upon them by the common law, in the sense that the common law courts of England had.+ But just as clearly they have the right, and it is their duty, in cases both at law and in equity, where they have or acquire jurisdiction under the express provisions of the Federal Constitution, and which cases are not purely local in character, to apply the rules of the common law, and the doctrines of courts of equity, as such rules and doctrines existed in England when our Declaration of Independence, and successful Revolution made us the United States of America, except in so far as those rules and doctrines are not applicable to our changed conditions and circumstances or are expressly abrogated by Federal or State Constitutions or statutes.5 § 10. Common law a part of our constitutional system. The common law is in fact a part of the unwritten Constitution of the United States. It lies at the foundation of all our institutions. Its principles are the basis of our Federal Constitution and the Constitutions of the several States, and its reason is the reason upon which our judges build and broaden the jurisprudence of our country." 1 Grace v. Am. Cent, Ins. Co., 109 U. S. 278, 283; ex parte Smith, 94 U. S. 455; Brown on Jurisdiction, § 88. § 11. Conclusions regarding the common law. — From the foregoing discussion of the character, history and origin of the common law and its inheritance by this country from England, we reach the following definite conclusions : I. The Common Law of England is the basis of our common law. II. Statutes passed by the English parliament prior to our separation from the mother country, and of such character as to be applicable to our situation and institutions at or prior to the American Revolution, have been recognized, in whole or in part, as forming a part of the common law of this country. III. The unwritten law as it prevailed in England, whether administered by courts of law, by courts of equity or by courts ecclesiastical, constitutes our common law so far as our courts find it suited to our conditions and in harmony with our institutions. IV. The common law as it prevails with us has heretofore been held to be such law only for the several States treated as independent sovereignties, and no general common law of the whole country, and no national common law has been recognized. But of late, the tendency is toward a uniform system of law upon all subjects not of a purely local character, and the Federal courts have emphasized this tendency by recent decisions, carrying to its logical conclusion the doctrine of certain early Fed eral cases that in controversies between citizens of different states, in the Federal courts, the principles of the common law, as understood by those courts, will be applied in all cases where the question is one of general jurisprudence, not of merely local law in the particular State where the controversy arose. V. It has also come to be recognized that, while there is no national common law in the sense of a "national customary law" distinct from the common law of England, yet the interpretation of the Federal Constitution is necessarily influenced by the 2 Brown on Jurisdiction, § 1; Bishop's Code fact that its provisions are framed in the language Practice, $116. of the English common law, and are to be read in 3 Rhode Island v. Massachusetts, 12 Pet. 718; the light of its history. Hence the code of constiBrown on Jurisdiction, § 1 & notes. 41 Bl. Com. (Sharswood's Ed.) Intro. *68. 5 In such cases the common law is a rule for the exercise of the jurisdiction which the Constitution or the statute gives. See Brown on Jurisdiction, § 88. 6 Smith v. Alabama, 124 U. S. 478; Moore v. United States, 91 U. S. 270, 273. The common law existed as such before either the States or the United States existed and: "Both the States and the United States existed before the Constitution" Chase, Chief Justice, in Lane v. Oregon, 7 Wall. 71, 76; cited in re Debs, 158 U. S. 564, 578. It clearly tutional and statutory construction which is gradually framed by the judgments of the United States Supreme Court, in the application of the Constitution and the laws and treaties made in pursuance thereof, has for its basis so much of the common follows that: "We are bound to interpret the Constitution in the light of the law as it existed at the time it was adopted ;" Mattox v. United States, 156 U. S. 237, 243; De Camp v. Archibald, 50 Ohio St. 618 S. C. 40 Am. St. Rep. 692. Reno Smelting Works v. Stevenson, 20 Nev. 269; 19 Am. St. Rep. 364. law as may be implied in the subject, and constitutes, to that extent, a common law resting upon national authority. In a sentence, then, my conclusion is, that the Federal courts are without common law jurisdiction, but that in cases involving questions of general common law, which come before those courts under their constitutional and statutory jurisdiction, they have the right and it is their duty to declare and apply the common law as they understand it to be. WM. HEPBURN RUSSELL, 253 Broadway, New York. J' ROBERT DESTY. editor and author, died at St. Mary's hospital, Rochester, aged 68 years. Judge Desty was born in Canada of parents who were refugees from France, and whose real name was D'Estimauville. The elder D'Estimauville was a wealthy French nobleman who was forced to flee from France during the revolution. He escaped across the English channel in the garb of a priest. legal literature, and his law works aggregate over twenty volumes and are standard throughout the country. His "Federal Practice" is the handbook of every lawyer and judge in the Federal courts, and the work on "Contracts," upon which he was engaged at the time of his death, was intended by him to be the crowning work of his life. Judge Desty went to St. Paul and was with the West Publishing Co. a few years up to ten years ago, when he engaged with the Lawyers' Co-operative Publishing Co., of Rochester, N. Y., being a trusted and efficient member of the company's staff till his death occurred. In 1891 he had an attack of the grip, from the effects of which he had suffered somewhat ever since. Last December he thought that it might be better for him to change climate and he took up his residence in Trenton, N. J. He returned to Rochester a few weeks ago with the intention of remaining to complete his four volume work on "Contracts," upon which he had been engaged in the interest of the Co-operative Publishing Co. for the past four years. The material has been that extent that the first volume is now in the hands of the printer and the others are nearly complete. Upon taking up his residence in the United gathered and organized and the work progressed to States the younger D'Estimauville altered his aristocratic name, preferring to be called plain Desty. His numerous given names were also put aside for plain Robert. Judge Desty spent his boyhood in Quebec, where he got the foundation for his education, afterward living in Brooklyn and Philadelphia. In 1849 he went to California in search of gold. He had then been admitted to the bar and there gained such eminence that he was employed by the law publishers, Bancroft, Sumner, Whitney & Co., in preparation of books for publication, which, twenty-five years ago, became standard and known throughout the country. During his residence in California he was elected to the State Senate on an independent ticket, but his election was contested by the opposing candidate on the ground that Judge Desty ran under an assumed name. to California. Mr. Desty leaves a wife and adopted son to whom he was much attached, and who are at present in California. Previous to the election last fall, Justice Desty was reported as being a candidate for member of Congress on an independent ticket. At that time Hon. O. F. Williams, in a published interview, paid Judge Desty the following tribute: "I have been personally acquainted with Judge Desty for a number of years, and also through his authorship of standard law books, especially Desty on Admiralty. In personal appearance Judge Desty is one of the class identified by President Cleveland as plain people,' and he is so ardently an American that he has practically discarded one of the best titled French names of nobility. "Hundreds of years ago, when the French nobles The legislative committee ap-maintained themselves by the sword, one of Desty's pointed to decide the contest learned that Judge ancestors, and of whom he is a direct descendant, Desty had never procured the legal right to change was asked by Francis I, king of France, for the his name, and on that ground unseated him. He was elected a minor court judge soon after going stands. Justice Desty's ancestor yielded to the redeed of the territory where the city of Havre now quest, but stipulated that there should be a street or rue constructed parallel to the Rue Notre Dame, now known as the Rue De Paris, which should bear forever the name Rue D'Estimauville: also that on the right-hand door post of the Hotel De Ville, the city hall of Havre, should be placed the armorial bearings of the noble house of D'Estmauville. These conditions were carried out so far at least as the street was concerned, and while at Havre I had At the outbreak of the Mexican war Judge Desty enlisted as a volunteer and served throughout the war. He was afterward granted a government pension. Since that time he devoted his entire attention to Smith v. Alabama, opinion by Matthew, J., 124 U. S. 478 (1888). Moore v. United States, 91 U. S. 270, 273. the pleasure of making an investigation of the matter as stated. "French historians believe that during the revolution of a hundred years ago, in the destruction of the Hotel De Ville ended a part of the observance of the contract on the part of the king of France. Judge Desty placed in my hands a large packet of legal documents signed by Henry IV, Francis I and other sovereigns of France, proving beyond question the distinguished character of his ancestral name and family. I took these documents to France with me, and they were examined by the historians and attorneys of France with great interest. "As an American citizen, Judge Desty has become well known and his services are highly regarded." Correspondence. IMPROVEMENT OF THE ERIE CANAL. At a time of great poverty, the citizens of New York built the Erie Canal. It was an event in its history of which all citizens may be proud, not only for the self-sacrifice of their ancestors, but because it has proved to be such a lasting benefit to the State and the entire Northwest. Not only did New York build the Erie Canal, but it constructed branches both North and South, which, although they have not proved a financial success, have developed the regions through which they passed. The burden of constructing these lateral canals was borne by the entire State, but chiefly by what are known as the canal counties, because in these counties there existed the greatest wealth. In later days, although the canals have done their part, the State has not maintained the high position which it took in 1819 in regard to its public works. The canals, instead of being improved by science and made the pride of the State, have remained as they were in 1850, except for the deterioration which time has produced. They have greatly filled up, so that to-day, instead of being seven (7) feet deep they are more nearly six (6) feet. In spite of the neglect of this artery of commerce, through which passes a large amount of the product of the West, it has proved of immense value to the State, and has brought into its lap millions of dollars in actual money, to say nothing of the benefit which it has been to all classes of the community. By competition with other routes, it has kept down the price of transportation, so that to-day the railroads are forced to give better rates to the farmer than are enjoyed in other States. Not only does it affect points along the canals, but every station on the line of the railroads throughout the State, because these lines of transportation dare not make a better rate for the canal towns than they do for other places at a like distance from the market. While the Western part of the Union is aroused for cheap transportation and convention after convention meet for cheap waterways, the State of New York seems to take no interest in the plan to deepen its canals. Without an effort to sustain them it would allow the railroads to drive this valuable competing route from the field, and like Pennsylvania, become the prey of its enemies, that built up towns like Baltimore, Richmond and other points. In order to save a few cents in taxes New York State would throw away its chief hold on the commerce of the nation, and that which gives it control over every railroad line from the West. With every reason why the State should improve its waterways it has done nothing for them for half a century. But while this is going on, and the question of cheap transportation is growing more and more important, it would seem as if nothing should be left undone to improve it. The friends of the canal are encouraged by those living outside of the State, who have seen the importance of this channel of commerce, and who are buiding iron boats, fully up to the merits of the times, and who expect to reap a harvest in their use, which those who have been most familiar have neglected. The thing which threatens the usefulness of this venture, so full of importance to the State, is the lack of depth in the canals. The wheel of the propeller and the bottom of the boat are dragging the mud, because the canals are not dug out or not deepened so as to give free passage to the boats. With a foot more depth each boat could carry fifty (50) tons more cargo, an increase that would insure a profit to the venture. But this is not the only advantage of an increased depth. It so expedites the passage of the boats that more trips could be made in a season, and thus a gain could be realized. While every effort is being made by the friends of the canal to improve their waterways, to increase their depth, and to lengthen their locks, the enemies of the canals are at work to lessen its merits in the eyes of the public. They talk of a ship canal, and of government control, both of which would be destructive to the interests of New York. It is a well-known fact that ship canals should never be entered into except for short distances from the ocean to connect great seas, or to cut short isthmuses. But even these attempts have not proved successful. The Manchester ship canal, the only one that in any way compares with our water route, has not proved that it can transport merchandise from Liverpool to Man chester, its terminus, only thirty-five (35) miles dis- is eminently military. Commerce and war cannot tant, cheaper than the railroads. go hand in hand. The route and the method that would promote commercial supremacy of the country cannot afford to be linked with any plan that contemplates war. This canal, thirty-five and a half (354) miles long, and only overcoming an elevation of sixty (60) feet, has cost the immense sum of Seventy-five Million Dollars ($75,000,000) or more than two million ($2,000,000) a mile. What would it cost to overcome a distance of 352 miles from the ocean to Lake Erie, with a height of five hundred and sixty-eight (568) feet. But the price is not the most difficult feature of the problem. With the Chicago canal, that is to reduce the water of the great lakes six inches, and perhaps more; with the Niagara Falls canal, that is drawing down the waters for its immense mills, it is suggested that a ship canal either entering Lake Ontario, as proposed by United States engineers, or taking its water by the way of Buffalo and Rochester, in a like manner, shall be constructed. How long would the interests of the great lakes tolerate this folly, when millions of dollars are being | spent to deepen them? When every effort is being made on the one hand to make a twenty (20) foot channel throughout their entire length, it is proposed by a party in one State to take steps which would lessen even the present depth an amount that it would be difficult to calculate. While New York, with its immense commerce and great wealth, hesitates over the expenditure of nine million dollars ($9,000,000), it is proposed to enter upon a work that would cost six hundred millions of dollars ($600,000,000). But where shall this money come from? New York does not propose to spend it—it is to be raised by the general government. So the enemies of the canals of the State (which have been its crowning glories for almost a century) are to allow them to pass out of its control into the hands of the general government, no longer to be carried on for the benefit of New York, but to suit the whim of Congress, although the State must pay a larger amount than any other both for its construction and maintenance. Has New York lost its reason, and has it lost its power to look after its own affairs, that it must entrust them to others? What power would it have with its two Senators and its thirty-four Congressmen against that large. body of men composed of representatives from other States in the Senate and the House of Representatives? The public works of the United States are under the control of the engineering department, a branch of the military service. While they contemplate this route for commerce, they also consider a ship canal to the sea as a war project. Their education Why should New York seek to gratify the vanity of Chicago and Duluth to be seaports to her own disadvantage? The commerce of the country does not demand it. People are led away with the idea that the majority of our products go abroad; but this is not the case. Only a small amount of what we produce in the most favorable seasons is exported. The balance is used by our own people. There has grown up within the country commercial enterprises that would not be ashamed to stand before the trade of Europe. The products of the West, the corn, the wheat, the flour, the iron and the copper are carried to the lower lake ports and here they are distributed to supply the States of the East, whose people are engaged in manufactory. They meet there coal and supplies which are needed to build up new countries and thousands of tons of iron to carry railroads throughout the West. In this way not only does the East get cheap food and raw material, but the West obtains what it needs at a low figure. There has grown up upon the lakes a fleet of wonderful vessels, large in size, and expensive in construction. They are the development of years, and are suited to the purposes for which they are constructed. By what reasoning should they be put upon the narrow waters of a canal, where they would compete with the cheap-made barges? They would move a little faster than two miles an hour, and while they were making a trip from Buffalo to New York, a distance of five hundred (500), miles they could have gone to Chicago and returned, nearly twice the distance, at a less cost. Three (3) fleets of barges which cost 50 per cent less would have carried the same amount of grain in the same time. For whose benefit is this six hundred million dollars ($600,000,000) to be expended? Not for the commerce of the West, for it does not need it. The State of New York does not call for it, neither do the vessel owners upon the great lakes. Let New York still keep its faith in its canals, improve them from time to time as science dictates and it will reap its reward. The railroads, because of their great wealth, may be able for a time to so lower their rates that they can compete, but this will not be so always. The cheapest route must prevail in the end. For a time the railroads sought to compete in transportation with the great lakes, but they had to abandon it, and to day all the great |