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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 renture 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 an ed 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
At case of Wright v. Hutchinson, held that a deed except as it is found in the several States.
least such has been the current doctrine.? Of late, of trust of real property to
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.*
The development of a general common alleged in the bill, constitute an assignment for 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. Philadel
American Law Review, vol. 27, p. 614; N. Y. Law is 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 L'. 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 a mere provision for a partial redemption, and,
v. Dubuque, 1 Wall. 75, 206; Murray v. Chicago,
etc., R. Co., 62 Fed. Rep. 24. so far from converting the writings into an as
t" 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. lained 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 local 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 unwritten law.? common law will be, in fact as well as in theory, § 4. The “general” common law.— 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 ev- 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. 8 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, Law.--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, t while at the same time they hold that the Federal Courts bave 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 présented, might presented to the Supreme Court of the United | bave been found clearly implied in the language of States, ind to the legislation of Congress regarding the Federal Judiciary.
"rules of decision in trials at common law." It
has been beld 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, 2 See Article : Uniformity of Laws Through etc., R. Co. v. Baugh, 149 U. S., 368, 371. National and Inter-State Codification : 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 Am. L. C. 411.
4 Wheaton v. Peters, 8 Pet. 591, 658, 659; United 9 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.
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 harjudicial 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,
growhave jurisdiction at law and in equity under the ing "P, cannot be longer questioned. Its evidences above 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
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 stateil. — The true principle eral judiciary act of 1789, which provides “that is that the Federal courts have no common law 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 cordance 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 l'act 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 1 Const. U. S., Art. III, § 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'. • 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. Quarterly, 136. Howland, 4 Wheat. 108; Green v. Creighton, 23 See dissenting opinion of Clifford, J., U. S. v. How. 90; Payne v. Ilook, Î 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. Cohn, 150. U. S. 202, 205.
465, 478; Murray v. Chicago, etc., R. Co., 62 Fed* Wheaton v. Peters, 8 Pet. 591; Swift v. Phila- eral Rep. 21; See Article by Leonard A. Jones, 28 delphia, etc., R. Co., 64 Fed. Rep. 62, 64, 65. Am. Law Rev. 547, 552–553.
the laws of Congress pursuant thereto. That is, it
Conclusions regarding the common law. is wholly statutory.'
From the foregoing discussion of the character, “ Jurisdiction is the power to her 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.3
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 jurisiliction 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 right, 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 jurisiliction under the express
suited to our conditions and in harmony with our provisions of the Federal Constitution, and which
institutions. 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 of equity, as such rules and doctrines existed in Eng, and no general common law of the whole country,
several States treated as independent sovereignties, land when our Declaration of Independence, and successful Revolution made us the United States of and no national common law has 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 unwritten Constitution of the United States. It lies
different states, in the Federal courts, the principles at the foundation of all our institutions. Its prin- of the common law, as understood by those courts, ciples are the basis of our Federal Constitution and
will be applied in all cases where the question is one 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; "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 2 Brown
on Jurisdiction, $ 1; Bishop's Code fact that iis 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 gradu11 BI. Com. (Sharswood's Ed.) Intro. *68. ally framed by the judgments of the United States
• In such cases the common law is a rule for the Supreme Court, in the application of the Constituexercise of the jurisdiction which the Coustitution 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.
6 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, 158 U.S. 561, 578. It clearly | 269 ; 19 Am. St. Rep. 364.
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 lan 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 bim to be the crowning work of his life. their constitutional and statutory jurisiliction, 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. ILEPBURN 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. ROBERT DESTY.
In 1891 he had an attack of the grip, from the
effects of which he had suffered somewhat ever UDGE ROBERT DESTY, the veteran law
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.
remaining to complete his four volume work on The elder D’Estimauville was a wealthy French
“ Contracts," upon which he had been engaged in nobleman wlio wils forced to flee from France clur
the interest of the Co-operative Publishing Co. for ing the revolution. He escaped across the English
the past four years.
The material has been channel in the garb of a priest. Upon taking up his residence in the United gathered an«l 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 1819 be
Congress on an independent ticket. It that time went to California in search of gold. He had then
Hon. (). F. Williams, in a published interview, paid been admitted to the bar and there gained such cminence that he was employed by the law publishers,
Judge Desty the following tribute : Bancroft, Sumner, Whitney & Co., in preparation Desty for a number of years, and also through his
“I have been personally acquainted with Julge of books for publication, which, twenty-five years ago, becume standard and known throughout the anthorship of standard law books, especially · Desty country
on Admiralty. In personal appearance Judge Desty During his residence in California he was elected and is plain people,' and he is so ardiently an
is one of the class identified by President Cleveto the State Senate on an independent ticket, but his election was contested by the opposing candi
American that he has practically discarded one of
the best titler French names of nobility. date on the ground that Judge Desty ran under an
Hundreds of years ago, when the French nobles The legislative committee appointed to decide the contest learned that Judge
maintained themselves by the sword, one of Desty's 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 name, and on that ground unseated him. Ile was elected a minor court judge soon after going
deed of the territory where the city of Ilavre now to California.
stands. Justice Desty's ancestor yielded to the reAt 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 pension.
forever the name Rue D'Estimauville; also that on Since that time he devoted his entire attention to
the right-hand door post of the Hotel De Ville, the
city hall of Ilavre, 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 C. S. These conditions were carried out so far at least as
the street was concerned, and while at Havre I had