In conclusion, I have to say a word with special reference to foreign insurance companies, as these seem to feel more aggrieved at the passage of these acts than any other class of corporations. In the first place, it was held, in the case of State v. Phoenix Fire Insurance Company of Brooklyn, decided at Nashville, in March last, that the act of 1891 included foreign fire insurance companies. So that the latter have to comply with Chapter 47 of the act of 1891, applying to all fire insurance companies, as well as with Chapter 122, applying only to foreign companies. By the former act these companies are required, among other things, to file schedules of their assets, make a deposit of a certain sum of securities, and obtain from the insurance commissioner a certificate authorizing them to transact business in this State. A certified copy of the charter must be filed with the insurance commissioner. Under Chapter 122, they must file their charters with the Secretary of State, and have an abstract of the same registered in each county in which they do business. Under the revenue bill of 1893, they must pay a privilege tax of two and one-half per cent. on gross premiums. Furthermore, each insurance agent must pay a license tax of twenty dollars per annum in counties of fifty thousand inhabitants or over, and in counties of less than fifty thousand inhabitants, ten dollars per annum. When all this has been done, the companies may feel reasonably sure that they are within the bounds of the law, at least until our next Legislature shall have met and woven another skein of red tape for them to untangle.

IS A CIRCUIT JUDGE A FACTOR IN THE TRIAL OF A JURY CASE?

CHAS. D. PORTER.

Our circuit courts are patterned after the Court of Common Pleas of England, where judges were certainly factors in the trial of all cases, and this fact alone was sufficient to inspire not only the lawyers and litigants, but the public with feelings of great respect for the court and the law, which it is to be regretted does not exist to-day. It is a sad truth, when we seriously think of it, that our circuit judges of to-day are more figureheads than potent factors in the trial of jury cases. This is calculated to bring the courts in ill repute, and affects that confidence which the public ought to have. Not only do that class known as corporation lawyers feel this, but those in the general practice realize it very forcibly; the corporation lawyer knows it, or else he would not carry every case to the Federal court for justice when he can get within its jurisdiction. The lawyer fighting the corporation knows it, or else he would not, when the Federal judge has said to the jury, "There is neither law nor evidence to support a verdict," immediately jump to his feet and take a non-suit, and lay his damages at less than $2,000, when he has formerly put it at $50,000, for the purpose of taking it out of the jurisdiction of the Federal court and placing it in that of the State court. If the Federal judge is wrong in his instructions to the jury, why is it that no appeal is ever taken? Why is it that the litigant, in his efforts to recover $50,000, so readily surrenders what he claims is justly due him, and seeks another tribunal, confessing that his original allegation is erroneous by the sum of $48,000, unless it is that he does not regard the circuit judge as a factor in the trial of the cause?

We find the Federal judge charging that the jury are the exclusive judges of the facts, and that the judge is exclusively so of the law. In the State court we find the judge charging the jury that it is the exclusive judge of the law and the facts in the criminal cases, and that the judge is a mere witness, not a factor.

It may be that the same judge, on the same day, will instruct the same jury, in civil cases, that he is the sole judge of the law, so that we have a judge, almost in the same breath, telling "twelve good and lawful men" that he is a mere figure-head when a life is at stake, and is to be regarded as a factor when property rights are involved. To the jury it is a distinction without a difference. It is impossible for any man or set of men to accept the judge as a witness in one case and accept him as a factor in the other.

The cast-iron rule that a verdict will not be disturbed when the circuit judge has charged correctly, and refuses to disturb the same, is very often a hardship to litigants. The fact that a Federal judge, a man learned in the law and of the highest integrity, can, on his oath, determine that a case is without merit and dismiss the same, when the same suitor for the same cause of action will proceed in a State court and recover a judgment, certainly supports the position that a circuit judge is not a factor in the trial of a jury case.

The circuit judges of Tennessee are men of learning and integrity, and whenever a case is to be tried without the intervention of a jury, no lawyer for a moment thinks of removing it to the Federal court, clearly demonstrating the fact that it is not for the want of confidence in the integrity and learning of the circuit judge. The jury cases will be removed as often as the opportunity is presented, until the circuit judge shall assert his right and independence as such, and establish clearly to lawyers, litigants, and the public that he is a factor in the trial of cases before him, and is to be respected as such.

The circuit court judge should be a potent factor in the trial of jury cases as well as in the trial of non-jury cases, and he should be held responsible for every verdict upon which a judgment is based, and greater weight ought not to attach to a verdict which he permits to stand, than is given to a judgment pronounced by him without the intervention of a jury.

I believe every citizen who steps into the sacred temple of justice should be awed with the feeling of great respect for the court and the law, but this will never be until the judge can say that the verdict must be in accordance with the law as laid down in the charge of the court.

*

EVOLUTION OF A CONSTITUTIONAL POINT.

J. B. HEISKELL.

At the meeting of the Tennessee Bar Association at Memphis, in 1888, I read a paper, which was published in the proceedings of that year, under the title of "Retrospective Decisions." This was subsequently revised and published in the American Law Review, in the July-August number of 1888. Afterwards Mr. Reno, of Boston, published in the Review a review of my article, and what I am about to read was prepared as a reply, but it was not published. The name under which it has been announced would have better fitted the original article.

I am pleased to see that the article on "Retrospective Decisions" has attracted the attention of one of your contributors, and brought out a reply. I am sorry that the reply evidences so clearly that I have not expressed my thought, or made the leading motive of my article apparent. Mr. Reno has no doubt intended fairly to state in the article in your number of MarchApril, 1889, the question involved, but his statement is subject to the objection that it is not an accurate expression of the exact point. It is stated thus:

"If a contract, when made, be valid and enforcible according to the latest decision of the highest court of the State, in view of which the contract was made, any subsequent decision of the same court which operates to invalidate the contract, and to render it non-enforcible, impairs the obligation of the contract, and is reversible [reviewable?] by the Federal Supreme Court."

*This article was written long before the recent decision in the case of the Baltimore and Ohio Railroad Company v. Baugh, and my first knowledge of that case reached me on Lookout Mountain too late for any examination of it. I have since made it the subject of a separate article, read at the World's Fair Congress of Jurisprudence and Law Reform, in which I have, in a very concise paper, endeavored to fathom, theoretically, the depths of the question. J. B. HEISKELL

This statement of the question assumes, as far as it is possible to do in stating it, the elements of prejudice to an impartial consideration of it. It assumes that a reversal of a decision operates to invalidate a contract, and renders it non-enforcible. To speak with precision, a decision holding a contract void is not the cause of its invalidity, but merely the judicial ascertainment of it. It is not what renders it non-enforcible. It is the mere announcement of a result of something in the contract itself, or the mode of its making, or the authority to make it, which something operated to invalidate and render it non-enforcible.

We must distinguish between the cause of a thing and the declaration of its existence. To say that the law of optics renders the vibrations of luminiferous ether operative to cause the phenomena of light, would be to confuse cause with declaration of theory. The error of this statement goes to the root of the whole matter. That which operates to invalidate a contract, makes something void which was once valid. It must therefore be vicious by the very statement. It will be seen at once that this statement puts upon the matter of decision a false similitude to a legislative act. A law impairing the obligation of a contract, is one which finds a contract in existence and valid, and operates to invalidate it or render it non-enforcible, or materially less readily enforcible. A decision that there was never any valid contract to enforce, stands on a footing as different as we can well conceive. One operates to invalidate what was valid before; the other declares, as a pre-existing fact, the invalidity of a contract which was never binding.

It is, therefore, not hypercriticism to object to this statement of the question, which it is fair to modify thus:

If a contract, when made, be valid and enforcible according to the decisions of the highest court of the State in which the contract was made, does a subsequent decision of the same court, holding the contract to be void, impair the obligation of the contract, and is it reviewable in the Federal Supreme Court?

It would, perhaps, not be unfair to add to this statement the words," without regard to whether the first or last decision is right," for this is clearly the question as stated by Chief Justice Waite in Douglas Co. v. Pike, 101 U. S., 677. Thus, as is said in the article on retrospective decisions, page 531, making