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the Federal Constitution itself, unless the writer | been adopted, as we have seen, as a part of the mistakes its meaning. The Constitution of the common law of the several States. It is thus a train United States, Art. III, § 2, provides that: “The -f reasoning inconsistent with itself and not in harjud.cial power shall extend to all cases, in law and mony with the language of those provisions of the equity, arising under the Constitution, the laws of Federal Constitution which are above qnoted upon the United States, and treaties made, or wliich this subject.5 shall be made under their authority." And then $7. A national common law. That all the laws of the same section proceeds to define the persons and the United States need not be written, and that a the class of cases of which the Federal courts shall common law of the United States as such, is growhave jurisdiction at law and in equity under the ing up, cannot be longer questioned. Its evidences ubove quoted provision.'

are found in many recent decisions of the Federal Then by the seventh amendment of the Constitu- courts, and have been thus stated in an opinion of tion, the right of the Federal courts to apply the the Supreme Court of the United States, delivered rules of the common law is expressly recognized, by the late Mr. Justice Matthews: and in certain cases they are peremptorily required “There is, however, one clear exception to the to apply them.”

statement that there is no national common law. $ 6. Equity jurisdiction of Federal courts. — When The interpretation of the Constitution of the the question was raised as to the equity powers of United States is necessarily influenced by the fact the Federal judiciary, it was held, without hesita- that its provisions are framed in the language of the tion, that they were the same as those of the High English common law, and are to be read in the light Court of Chancery in England, and that the prin- of its history. The code of constitutional and ciples of equity jurisprudence were to be almin- statutory construction which, therefore, is gradually istered by the Federal courts as an independent ju- formed by the judgments of this court, in the applidiciary, without regard to the manner of their ap-cation of the Constitution and the laws and treaties plication or the statement of the doctrines of equity made in pursuance thereof, has for its basis so much by the courts of any State of the Union.”

of the common law as may be implied in the subDoubtless similar would have been the holding ject, and constitutes a common law resting on regarding the common law and its administration national authority.” in the Federal courts, but for a section in the Fed- $8. The true principle stated.— The true principle eral judiciary act of 1789, which provides that is that the Federal courts have no common laro juristhe laws of the several States, except where the diction; but when a case .comes before them based Constitution, treaties or statutes of the United on a state of facts conferring jurisdiction under the States shall otherwise require or provide, shall be Federal Constitution and the acts of Congress and regarded as rules of decision in trials at common triable as a case at common law, it should be a matlaw in the courts of the United States in cases ter of necessary implication that it is to be tried in acwhere they apply," and also the mistaken notion cordunce with the common law, which the Federal that the United States could have no common law, courts must administer in such case, and for which because all its laws must be derived from the writ. they do not have to look to the courts of the State ten Constitution."

in which the controversy arose, unless the question at This very train of reasoning overlooks the fact issue is one of a character local to the State. When it that the decisions of the English High Court of is of a general character it should be determined by Chancery establishing the doctrines of equity, are a the general common law.? part of the unwritten law of England, and have $ 9. The question one of jurisdiction. -- The juris

diction of the Federal courts is wholly dependent Const. U. S., Art. III, S 2; Murray v. Chicago,

upon the provisions of the Federal Constitution and etc., R. Co., 62 Fed. Rep. 21, 28; 3 Political Science Quarterly, 136.

5 Ante, § 5; Baltimore, etc., R. Co. v. Baugh, ? Const. U. S. Amendments, Art. VII; Root v. 149 U. S. 368, 371. Ry. Co., 105 U. S. 189, 206; Ex parte Boyd, 105 U. 6 Smith v. Alabama, 124 U. S. 473; Moore v. S. 647, 656; 1 Fost Fed. Pract. (2d ed.), $ 4. United States, 91 U. S. 270, 273; 3 Political Science

3 Robinson v. Campbell, 3 Wheat. 212; U. S. v. Qurterly, 136. Howland, 4 Wheat. 108; Green v. Creighton, 23 See dissenting opinion of Clifford, J., U. S. v. How. 90; Payne v. Hook, 7 Wall. 430; Kirby v. Cruikshank, 92 U, S. 564; Moore v. United States, Lake Shore, etc., R. Co., 120 U. S. 130, 137; Mis- 91 U. S. 270, 273; Smith v. Alabama, 124 U. S. sissippi Mills v. Colin, 150 U. S. 202, 205.

465, 478; Muuray v. Chicago, etc., R. Co., 62 Fed* Wheaton v. Peters, 8 Pet. 591; Swift v. Phila- eral Rep. 24; See Article by Leonard A. Jones, 28 delphia, etc., R. Co., 64 Fed. Rep. 62, 64, 65, Am. Law Rev. 547, 552-553.

"72 case.

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the laws of Congress pursuant thereto. That is, it § 11. Conclusions regarding the common lau. is wholly statutory.'

From the foregoing discussion of the character, "Jurisdiction is the power to hear and deter- history and origin of the common law and its inmine" a case or controversy. It is “the right to heritance by this country from England, we reach adjudicate concerning the subject matter in a given the following definite conclusions :

I. The Common Law of England is the basis of It is not a rule for the determination upon the our common law. merits, of the questions submitted to the tribunal, II. Statutes passed by the English parliament but it is a right, a power, which the court, by its prior to our separation from the mother country, inherent constitution, bas, or has not, to consider and of such character as to be applicable to our and decide the particular controversy between the situation and institutions at or prior to the Ameriparticular parties before it,

can Revolution, have been recognized, in whole or Clearly, therefore, the Federal Courts have no in part, as forming a part of the common law of this jurisdiction conferred upon them by the common country. law, in the sense that the common law courts of

III. The unwritten law as it prevailed in EngEngland had.

land, whether administered by courts of law, by But just as clearly they have the riglit, and it is

courts of equity or by courts ecclesiastical, constitheir duty, in cases both at law and in equity, where

tutes our common law so far as our courts find it they have or acquire jurisliction under the express

suited to our conditions and in harmony with our

institutions.? provisions of the Federal Constitution, and which cases are not purely local in character, to apply the

IV. The common law as it prevails with us has rules of the common law, and the doctrines of courts

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 England when our Declaration of Independence, and

and no general common law of the whole country, successful Revolution made us the United States of and no national common law bas been recognized. America, except in so far as those rules and doc

But of late, the tendency is toward a uniform systrines are not applicable to our changed conditions

tem of law upon all subjects not of a purely local and circumstances or are expressly abrogated by character, and the Federal courts have emphasized Federal or State Constitutions or statutes, 5

this tendency by recent decisions, carrying to its $ 10. Common law a part of our constitutional logical conclusion the doctrine of certain early Fed

eral cases that in controversies between citizens of system.- The common law is in fact a part of the

different states, in the Federal courts, the principles unwritten Constitution of the United States. It lies at the foundation of all our institutions. Its prin: will be applied in all cases where the question is one

of the common law, as understood by those courts, ciples are the basis of our Federal Constitution and the Constitutions of the several States, and its reason

of general jurisprudence, not of merely local law in is the reason upon which our judges build and

the particular State where the controversy arose. broaden the jurisprudence of our country.“

V. It has also come to be recognized that, while

there is no national common law in the sense of a Grace v. Am. Cent, Ins. Co., 109 U. S. 278, 283; 1 national customary law” distinct from the comex parte Smith , 94 U. S. 455; Brown on Jurisdic. mon law of England, yet the interpretation of the tion, $ 88.

Federal Constitution is necessarily influenced by the 9 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.

tutional and statutory construction which is gradu*1 Bl. Com. (Sharswood's Ed.) Intro. *68. ally framed by the judgments of the United States

5 In such cases the common law is a rule for the Supreme Court, in the application of the Constituexercise of the jurisdiction which the Constitution tion and the laws and treaties made in pursuance or the statute gives. See Brown on Jurisdiction, thereof, has for its basis so much of the common $ 88.

• Smith v. Alabama, 124 U. S. 478 ; Moore v. follows that : We are bound to interpret the ConUnited States, 91 U. S. 270, 273. The common stitution in the light of the law as it existed at the law existed as such before either the States or the time it was adopted ;” Mattox v. United States, 156 United States existed and : “Both the States and U. S. 237, 243 ; De Camp v. Archibald, 50 Ohio St. the United States existed before the Constitution ;"618 : S. C. 40 Am. St. Rep. 692. Chase, Chief Justice, in Lane v. Oregon, 7 Wall, 71, * Reno Smelting Works v. Stevenson, 20 Nev. 76 ; cited in re Debs, 159 U.S.564, 578. It clearly | 269 ; 19 Am. St. Rep. 364.

the past

law as may be implied in the subject, and consti- legal literature, and his law works aggregate over tutes, to that extent, a common law resting upon na- twenty volumes and are standard throughout the tional authority.

country. His “ Federal Practice” is the handbook In a sentence, then, my conclusion is, that the of every lawyer and judge in the Federal courts, Federal courts are without common law jurisdiction, and the work on “Contracts,” upon which he was but that in cases involving questions of general com- engaged at the time of his death, was intended by mon law, which come before those courts under him to be the crowning work of his life. their constitutional and statutory jurisdiction, they Judge Desty went to St. Paul and was with the have the right and it is their duty to declare and ap- West Publishing Co. a few years up to ten years ply the common law as they understand it to be. ago, when he engaged with the Lawyers' Co-opera

WM. HEPBURN RUSSELL, tive Publishing Co., of Rochester, N. Y., being a 253 Broadway, New York. trusted and efficient member of the company's staff

till bis death occurred.

In 1891 he had an attack of the grip, from the ROBERT DESTY.

effects of which he had suffered somewhat ever UDGE ROBERT DESTY, the veteran law J editor and author, died at St. Mary's hospital, better for him to change climate and he took up

since. Last December he thought that it might be Rochester, aged 68 years. Judge Desty was born

his residence in Trenton, N. J. He returned to in Canada of parents who were refugees from

Rochester a few weeks ago with the intention of France, and whose real name was D'Estimauville. The elder D’Estimauville was a wealthy French remaining to complete his four volume work on

“Contracts," upon which he had been engaged in nobleman who was forced to flee from France during the revolution. He escaped across the English

the interest of the Co-operative Publishing Co. for

four channel in the garb of a priest.

The material has been

years. Upon taking up his residence in the United gathered and organized and the work progressed to

that extent that the first volume is now in the hands States the younger D’Estimauville altered his

of the printer and the others are nearly complete. aristocratic name, preferring to be called plain

Mr. Desty leaves a wife and adopted son to whom Desty. His numerous given names were also put

he was much attached, and who are at present in aside for plain Robert.

California. Judge Desty spent his boyhood in Quebec, where

Previous to the election last fall, Justice Desty he got the foundation for his education, afterward

was reported as being a candidate for member of living in Brooklyn and Philadelphia. In 1849 he

Congress on an independent ticket. At that time went to California in search of gold. IIe had then

Hon. O. F. Williams, in a published interview, paid been admitted to the bar and there gained such eminence that he was employed by the law publishers,

Judge Desty the following tribute: Bancroft, Sumner, Whitney & Co., in

"I have been personally acquainted with Judge

preparation of books for publication, which, twenty-five years authorship of standard law books, especially · Desty

Desty for a number of years, and also through his ago, became standard and known throughout the

on Admiralty. In personal appearance Judge Desty country. During his residence in California he was elected

is one of the class identified by President Cleve

land is plain people,' and he is so ardently an to the State Senate on an independent ticket, but

American that he has practically discarded one of his election was contested by the opposing candi

the best titled French names of nobility, date on the ground that Judge Desty ran under an assumed name.

“ 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 Desty had never procured the legal right to change ancestors, and of whom he is a direct descendant,

was asked by Francis I, king of France, for the his name, and on that ground upseated him. He was elected a minor court judge soon after going stands. Justice Desty's ancestor yielded to the re

deed of the territory where the city of Havre now to California

At the outbreak of the Mexican war Judge Desty quest, but stipulated that there should be a street enlisted as a volunteer and served throughout the

or rue constructed parallel to the Rue Notre Dame, He was afterward granted a government

now known as the Rue De Paris, which should bear

forever the name Rue D'Estimauville; also that ou pension.

the right-hand door post of the Hotel De Ville, the Since that time he devoted his entire attention to

city ball of Havre, should be placed the armorial Smith v. Alabama, opinion by Matthew, J., 124 bearings of the noble house of D’Estmauville. U. S. 478 (1888). Moore v. United States, 91 U. S. These conditions were carried out so far at least as 270, 273.

the street was concerned, and while at Havre I had


the pleasure of making an investigation of the mat- not make a better rate for the canal towns than ter as stated.

they do for other places at a like distance from the “French historians believe that during the revo- market. lution of a hundred years ago, in the destruction of While the Western part of the Union is aroused the Hotel De Ville ended a part of the observance for cheap transportation and convention after conof the contract on the part of the king of France. vention meet for cheap waterways, the State of Judge Desty placed in my hands a large packet of New York seems to take no interest in the plan to legal documents signed by Henry IV, Francis I and deepen its canals. other sovereigns of France, proving beyond ques- Without an effort to sustain them it would allow tion the distinguished character of his ancestral the railroads to drive this valuable competing route name and family. I took these documents to France from the field, and like Pennsylvania, become the with me, and they were examined by the historians prey of its enemies, that built up towns like Baltiand attorneys of France with great interest. more, Richmond and other points.

“As an American citizen, Judge Desty has be- In order to save a few cents in taxes New York come well known and his services are highly re- State would throw away its chief hold on the comgarded."

merce of the nation, and that which gives it control

over every railroad line from the West. Correspondence.

With every reason why the State should improve IMPROVEMENT OF THE ERIE CANAL. its waterways it has done nothing for them for half

a century. But while this is going on, and the At a time of great poverty, the citizens of New

question of cheap transportation is growing more York built the Erie Canal. It was an event in its and more important, it would seem as if nothing history of which all citizens may be prond, not only should be left undone to improve it. for the self-sacrifice of their ancestors, but because The friends of the canal are encouraged by those it has proved to be such a lasting benefit to the living outside of the State, who have seen the imState and the entire North west.

portance of this channel of commerce, and who are Not only did New York build the Erie Canal, buiding iron boats, fully up to the merits of the but it constructed branches both North and South, times, and who expect to reap a harvest in their use, which, although they have not proved a financial wbich those who have been most familiar have negsuccess, have developed the regions through which lected. The thing which threatens the usefulness they passed. The burden of constructing these of this venture, so full of importance to the State, lateral canals was borne by the entire State, but is the lack of depth in the canals. The wheel of chiefly by what are known as the canal counties, the propeller and the bottom of the boat are because in these counties there existed the greatest dragging the mud, because the canals are not dug wealth. In later days, although the canals have out or not deepened so as to give free passage to done their part, the State has not maintained the the boats. With a foot more depth each boat could high position which it took in 1819 in regard to its carry fisty (50) tons more cargo, an increase that public works. The canals, instead of being im- would insure a profit to the venture. But this is proved by science and made the pride of the State, not the only advantage of an increased depth. It have remained as they were in 1850, except for the so expedites the passage of the boats that more trips deterioration which time has produced. They have could be made in a season, and thus a gain could be greatly filled up, so that to-day, instead of being realized. seven (7) feet deep they are more nearly six (6) While every effort is being made by the friends feet.

of the canal to improve their waterways, to increase In spite of the neglect of this artery of commerce, their depth, and to lengthen their locks, the enethrouglı which passes a large amount of the product mies of the canals are at work to lessen its merits in of the West, it has proved of immense value to the the eyes of the public. State, and bas brought into its lap millions of dol- They talk of a ship canal, and of government lars in actual money, to say nothing of the benefit control, both of which would be destructive to the which it has been to all classes of the community. interests of New York. It is a well-known fact

By competition with other routes, it has kept that ship canals should never be entered into except down the price of transportation, so that to-day the for short distances from the ocean to connect great railroids are forced to give better rates to the seas, or to cut short isthmuses. But even these at. farmer than are enjoyed in other States. Not only tempts have not proved successful. The Manchesdoes it affect points along the canals, but every ter ship canal, the only one that in any way comstation on the line of the railroads throughout the pares with our water route, has not proved that it State, because these lines of transportation dare can transport merchandise from Liverpool to Man

the case.

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 This canal, thirty-five and a half (354) miles long, would promote commercial supremacy of the counand only overcoming an elevation of sixty (60) feet, try cannot afford to be linked with any plan that has cost the immense sum of Seventy-five Million contemplates war. Dollars ($75,000,000) or more than two million Why should New York seek to gratify the vanity ($2,000,000) a mile. What would it cost to over- of Chicago and Duluth to be seaports to her own come a distance of 352 miles from the ocean to Lake disadvantage? The commerce of the country does Erie, with a height of five hundred and sixty-eight not demand it. (568) feet.

People are led away with the idea that the maBut the price is not the most difficult feature of jority of our products go abroad; but this is not the problem. With the Chicago canal, that is to

Only a small amount of what we produce reduce the water of the great lakes six inches, and in the most favorable seasons is exported. The perhaps more; with the Niagara Falls canal, that is balance is used by our own people. There has drawing down the waters for its immense mills, it grown up within the country commercial enteris suggested that a ship canal either entering Lake prises that would not be ashamed to stand before Ontario, as proposed by United States engineers, or the trade of Europe. The products of the West, taking its water by the way of Buffalo and Roches the corn, the wheat, the flour, the iron and the ter, in a like manner, shall be constructed.

copper are carried to the lower lake ports and here How long would the interests of the great lakes they are distributed to supply the States of the tolerate this folly, when millions of dollars are being Erst, whose people are engaged in mar

nanufactory. spent to deepen them? When every effort is being They meet there coal and supplies which are needed made on the one hand to make a twenty (20) foot to build up new countries and thousands of tons of channel throughout their entire length, it is pro-iron to carry railroads throughout the West. In posed by a party in one State to take steps which this way not only does the East get cheap food and would lessen even the present depth an amount that raw material, but the West obtains what it needs at it would be difficult to calculate.

a low figure. While New York, with its immense commerce There has grown up upon the lakes a fleet of wonand great wealth, hesitates over the expenditure of derful vessels, large in size, and expensive in connine million dollars ($9,000,000), it is proposed to struction. They are the development of years, and enter upon a work that would cost six hundred are suited to the purposes for which they are conmillions of dollars ($600,000,000). But where shall structed. By what reasoning should they be put this money come from ? New York does not pro- upon the narrow waters of a canal, where they pose to spend it—it is to be raised by the general would compete with the cheap-made barges? They government.

would move a little faster than two miles an hour, So the enemies of the canals of the State (which and while they were making a trip from Buffalo to have been its crowning glories for almost a century) | New York, a distance of five hundred (500), miles are to allow them to pass out of its control into the they could have gone to Chicago and returned, hands of the general government, no longer to be nearly twice the distance, at a less cost. carried on for the benefit of New York, but to suit Three (3) Hects of barges which cost 50 per cent the whim of Congress, although the State must pay less would have carried the same amount of grain a larger amount than any other both for its con- in the same time. struction and maintenance.

For whose benefit is this six hundred million dolHas New York lost its reason, and has it lost its lars ($600,000,000) to be expended? Not for the power to look after its own affilirs, that it must en

commerce of the West, for it does not need it. The trust them to others ?

State of New York does not call for it, neither do What power would it liave with its two Senators the vessel owners upon the great lakes. and its thirty-four Congressmen against that large

Let New York still keep its faith in its canals, body of men composed of representatives from improve them from time to time as science dictutes other States in the Senate and the House of Repre- and it will reap its reward. The railroads, because sentatives ?

of their great wealth, may be able for a time to so The public works of the United States are under lower their rates that they can compete, but this the control of the engineering department, a branch will not be so always. The cheapest route must of the military service. While they contemplate prevail in the end. For a time the railroads sought this route for commerce, they also consider a ship to compete in transportation with the great lakes, canal to the sea as a war project. Their education | but they had to abandon it, and to day all the great

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