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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.

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 accompanied 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 On this point the court said:

creditors.

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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 made, and, while it is not supposed to change the 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

orthodoxy of the future, and the author is not of This may be heresy now, but it is the inevitable 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.

The development of a general common law 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

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 Journal, Sept. 20, 1895, p. 1462; Swift v. Philadelis 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 as"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 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."

2 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.

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.

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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

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§3. The United States Courts and the Common Law.--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."

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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

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$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.

8 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.

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.?

§ 6. Equity jurisdiction of Federal courts.— When 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.4

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. 24, 28; 3 Political Science Quarterly, 136.

2 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 qnoted 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 Euglish 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 à 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

5 Ante, § 5; Baltimore, etc., R. Co. v. Baugh,

149 U. S. 368, 371.

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; See Article by Leonard A. Jones, 28 Am. Law Rev. 547, 552-553.

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the laws of Congress pursuant thereto. That is, it is wholly statutory.'

"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." ?

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

§ 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, consti

tutes 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,

of equity, as such rules and doctrines existed in Eng and no general common law of the whole country, land 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."

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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.

+1 Bl. Com. (Sharswood's Ed.) Intro. *68.

In such cases the common law is a rule for the exercise of the jurisdiction which the Constitution or the statute gives. See Brown ou Jurisdiction, § 88.

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.

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WM. HEPBURn Russell, 253 Broadway, New York.

ROBERT DESTY.

UDGE ROBERT DESTY, the veteran law

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

Jeditor and author, died at St. Mary's hospital, since, fusim to charge climate und he took up

Rochester, aged 68 years. Judge Desty was born in Canada of parents who were refugees from France, and whose real name was D'Estimauville.

his residence in Trenton, N. J. He returned to Rochester a few weeks ago with the intention of

The elder D'Estimauville was a wealthy French remaining to complete his four volume work on

nobleman who was forced to flee from France dur

T ing the revolution. He escaped across the English channel in the garb of a priest.

Upon taking up his residence in the United 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. The legislative committee pointed to decide the contest learned that Judge Desty had never procured the legal right to change his name, and on that ground unseated him. He

ap

was elected a minor court judge soon after going

to California.

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 1 Smith v. Alabama, opinion by Matthew, J., 124 U. S. 478 (1888). Moore v. United States, 91 U. S. 270, 273.

"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 gathered and organized and the work progressed to

that extent that the first volume is now in the hands of the printer and the others are nearly complete.

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 authorship of standard law books, especially Desty Desty for a number of years, and also through his 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.

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"Hundreds of years ago, when the French nobles maintained themselves by the sword, one of Desty's

ancestors, and of whom he is a direct descendant, was asked by Francis I, king of France, for the 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 ou 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

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