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contend for a moment that Congress has any constitutional authority to legislate for any particular State, or to dictate to any State what kind or character of laws shall be enacted for the government of its own domestic affairs, for the Federal Constitution expressly declares that all power not directly given to Congress is reserved to the States and the people.

But while this is true, it is further true that the same Federal Constitution that erects all the States into so many separate sovereignties expressly declares that Congress not only has the power, but is charged with the special duty of "providing for the general welfare" of all the States and all the people. | This is perhaps one of the grandest powers confered upon the general government, and is coupled with a duty as noble and conservative as grand. When the thirteen colonies agreed to become thirteen sovereign States, operating under one general government, which was to be supreme so far as the few limited powers confered upon that parent government was concerned, leaving the States and the people to be supreme as to the exercise of all other powers, it was but just and natural that in consideration of the surrender of the powers by the States and the people the Federal government should agree and bind itself for all time to come to promote the general welfare" of all the States and all the people.

This solemn duty has rested upon the general government for more than 100 years, during which time it has often had occasion to step forward in various ways to discharge, in some degree at least, this obligation which it owed to the States and the people-not to any particular State or individual, but alike to all the States and all the people. Instances need not be mentioned. It was a grand compromise when the States, by surrendering a few, to them, immaterial powers, procured in consideration thereof the solemu promise of the general government to diligently promote, for all time to come, and in every emergency that future centuries might engender, the general welfare of all the States and all the people.

And this brings us face to face with the striking feature of the age of which we wish to speak: an emergency in which the entire population of nearly fifty States and Territories are alike interested: and a complicated condition of business affairs in which the entire people have the right not only to invoke, but to expect the much needed action of Congress to promote the general welfare, without in the least encroaching upon any of the rights or privileges so carefully and jealously reserved to the States and the people.

It is a significant fact that while the framers of the Federal Constitution, in a spirit of true patriot

ism and compromise, were willing to cede to the general government such powers as would enable it to exist for the common good and benefit of all, reserving all other powers to the States and the people, they were careful to specifically enumerate in detail each and every power thus delegated to Congress; and it is equally significant that the power, coupled with the duty of Congress, to provide for the general welfare, is expressed in the very first of the eighteen sub-sections of section 8 of the first article of the Federal Constitution, in these words; "The Congress shall have power to lay and collect taxes, duties, imposts and excises: to pay the debts and provide for the common defense and general welfare of the United States."

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How natural that thoughts for the common defense and general welfare" of the new government should fill the minds of the good and great men who were then about to create it. The defeated British armies had just left our shores and might return. The merciless Indian savages still hovered around the outposts of our little armies of patriots. No wonder the first thoughts of the framers of the general government under such surroundings were for the "common defense and general welfare." And these are the first thoughts of all true friends of the Republic even down to the present hour. They wrote as they thought; the blood shed in recent battles and the still impending danger from the savages caused them to think of their common danger, and hence the grant of power was written common defense and general welfare," showing that the general government was to first provide for the common defense, and after that for the general welfare. To the credit of the greatest republic that ever honored the world be it said, that up to this good hour the Federal government has at all times most gallantly and successfully discharged its entire duty in providing for the common defense. No hostile fleet now threatens our shores ; we are at peace with all the world; and even the States and people lately in rebellion have returned to their faithful allegiance, and are now honestly efforts to advance the growing prosperity and secure vieing with those who never rebelled in laudable the perpetuity of the Union.

But in the closing years of the nineteenth century we find our government no longer consisting of thirteen feeble States, with a sparse population scattered along the sea-shores, with here and there small towns in the more fertile spots where our forefathers delivered their simple crops from ox-carts and carried home in exchange, and in the same conveyances, the rude supplies for their families. Now we have nearly fifty States and territories stretching from the Atlantic to the Pacific, and from the

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Penobscot to Puget's Sound, teeming with nearly
70,000,000 of the most enterprising people known
to civilization. Railroads connect Portland in
Maine with Portland in Oregon, and the telegraph
and telephone now girdle all the States and terri-
tories in one. The merchant in Boston ships his
goods and draws his bills on San Francisco, and the
cotton planter in the south sends his crops and
keeps his bank account in New York; and in a
word, our business and commercial transactions with
each other have grown and multiplied and enlarged
and become so interwoven, that we can hardly rea-
lize that we are in fact but one people, while resid-
ing and doing business in nearly half a hundred
separate States. While we are practically, from a
business point of view, but one people, with one
set of hopes and one common destiny, our business
relations are hampered, compressed and oftentimes
retarded by the fact that we are at the same time
the inhabitants of States and territories, each having
local statutes which are and must continue to be
supreme within the local jurisdiction of each State,
as different and distinct from the local laws of the
other States, and even of the adjoining States, as
the enlightened laws of England and the edicts of
the czar.
Now these States have the right to enact
all these local laws to suit the pleasure and purposes
of their citizens, and no one claims that there is
any power in congress to nullify or repeal a single
one of them. The State is supreme on this subject,

marriage and divorce, and regulating the duties and obligations of husband and wife and parent and child, and the general laws of descent, were substantially the same in every State; that is, uniform throughout the United States. Then there would be no such thing as flocking in droves to one particular State on account of the loose laws on the subject of divorce in that jurisdiction. There would be no such thing as divorce lawyers advertising to guarantee a divorce in ninety days. It seems to me that if the law on this entire subject was reasonable, but fixed and certain and substantially the same everywhere, the general result would be better husbands, better wives and better citizens. A similar line of remark is applicable to the laws governing the limitation of actions, the legal rate of interest, bills of exchange and promissory notes, and the homestead and other laws exempting the property of the debtor from the payment of his debts. When strange merchants from a dozen States in the west go to New York to open accounts for supplies of goods on credit from year to year, that wholesale merchant ought not to be required to search through the statutes of as many States as he has customers to find out what the law is in each State before he will open an account with the proposed customer. How much better it would be, both for the wholesale merchant and the retail one desiring credit, if there was but one statute to consult, with a similar statute to be found in every State in the Union!

And what may be said of the law of common carriers? A man in Rhode Island takes passage on some railroad train from Providence to Puget's Sound; or he ships goods from and to the same places. He purchases his ticket or ships his freight, as the case may be, at Providence for a trip across the continent. I have not examined the map to be sure about it, but at a guess I would say his train would likely pass through between ten and twenty States to reach the Pacific coast. Each one of these States has a separate local State law governing the liabilities of common carriers for negligence in all probability. If he loses his life or goods in the State of New York as he passes through that State, on account of some supposed negligence or imperfection of the railroad company, he may be able to find some New York statute allowing him to recover for that particular kind of negligence; but if the same injury is sustained, and by the same class of negligence, while passing through the State of Indiana, on his trip to the Sound, he may not be able to find any statute to enable him to recover, and his case may not fall within the general law governing the liabilities of common carriers. A case might arise even worse than the one above

and so long as each State preserves a republican
form of government, Congress has no constitutional
right to interfere. But when it is ascertained
beyond a reasonable doubt that the "general wel-
fare of all the States" would be promoted by har-
monizing some of these conflicting statutes relating
to such general subjects as affect the interests and
commercial pursuits of the people of all the States
alike, can there be anything wrong in reminding
Congress that it not only has the express power, but
that the solemn duty rests upon it to adopt some
friendly and persuasive means of "promoting the
general welfare," by establishing a bureau or com-
mission, if need be, whose duty it shall be for the
next five or ten years to gather information on the
subject, and correspond in a friendly and respectful
manner with the authorities in each State, and in this
way ascertain what general laws in the States
are in conflict with each other to the extent that
any general rights of citizenship or commerce are
impeded or denied, with a view to bringing about
a harmonious system of general laws in all the
States; and all this by the free and independent
action of the States themselves? To particularize:
No one will deny that it would promote "the gene-
ral welfare" of all the States if it could be so
brought about that the general laws governing | supposed.

It is known to all lawyers that the

Federal courts have jurisdiction of such cases where the parties are citizens of different States. It is also known that the Federal courts often go by the laws of the State in which the suit is brought or the injury sustained, and that it sometimes happens that the same Federal judge holds court in two or more adjoining States. Now suppose an injury has been done and suit is brought for damages in the Federal court of such a judge, in a State where the State law allowed a recovery for the particular kind of negligence of which Smith, the plaintiff in that case, complains. Smith gets his judgment for $10,000 damages, and goes home satisfied and praising the law and the just judge who administered it. Ther suppose that on the very next train from the east comes his neighbor, Jones, who is also going to the Sound; and he meets with exactly the same injury by the same sort of negligence of the same railroad company, but his injury was received a few feet across the line of another State. He brings suit before the same Federal judge in the adjoining State, where there may be no statute authorizing him to recover; and the same judge who gave Smith a $10,000 judgment turns Jones out of court because the statutes of the two States on the subject are not alike.

The same line of remark will apply, in a degree at least, to a large number of other business transactions in which the people all have similar interests in common with each other, especially in the general laws governing the making and recording of wills, deeds and mortgages, and assignments for the benefit of creditors, and the creation of trusts. What a grand consummation it would be for the business world if there could be brought about by the free action of all the States such a uniform system of statutes on these subjects, in all the States, that a deed or will or mortgage or other recordable instrument that was valid in Dakota would be equally valid and enforcible in Connecticut and Florida; and what an achievement for enlightened justice and progress would be attained, now that the whole human family have, in a degree, become bankers and brokers, and dealers in railroad, bank and municipal bonds and corporate stocks, if the same uniformity of laws could be obtained governing all these transactions, so that all bonds, stocks and securities that were genuine and valid as to all the forms of law in one State would be equally valid and enforcible wherever found in all the States. What I here desire to suggest is that there may, in certain cases, under the diversified and contradictory laws of different States, be doubts as to the validity, while if the laws of all the States were harmonious on all these subjects, and this was known from one end of the Union to the other, the poor widow who is only able to purchase one bond or one share of

stock as an investment of her pittance, would rest as easy and sleep as well as the millionaire who has had time and opportunity to examine the entire statutes of all the States before purchasing his blocks of bonds and stocks to lay away in his strong vaults for after years.

It may be said that there is no power to force the passage of such uniform laws, even on these general subjects, affecting all the people of all the States. I readily grant that no such power resides anywhere, and that all the States are free and sovereign alike, and Congress has no power, even if it had the desire, to compel a single sovereign State to alter, repeal or change a single law on her statute books. Then how can such a herculean task as harmonizing the general laws in the States be accomplished? The answer is, go at it in a business-like way. Acknowledge the absolute sovereignty of the States. Convince them that Congress does not claim the right to interfere in any way with their right to pass and enforce such laws as the States think proper. But show them, at the same time, the great good to all the people that would result from a uniform system of laws on these leading subjects. Appoint good and enlightened men to conduct so important an enterprise; men who believe that such a result is desirable, and that it ought to be, and can be accomplished; not in one year, and, perhaps, not in ten; but that it may be reached at least by the time this government has sixty States and 300,000,000 of people. Then let the commissioners go to work as though they were engaged in getting donated to them the right of way to build a trunk line railroad from Boston to San Francisco, or a telegraph and telephone line from Duluth to San Augustine, and the people will not be slow in seeing that the whole thing is but a praiseworthy effort on the part of the general government to comply with and discharge that high duty so long resting on Congress, to provide, in a practical way, for "the general welfare" of all the people of all the States of the Union. Commissions expire, and men die, but their good work, properly begun and set in motion for the common good, lives after them; and while it may be true that the closing years of the present century will not witness the entire accomplishment of all the high purposes you have in view, is it not within the bounds of reasonable expectation to hope that in coming years not only our own people but the inhabitants of all civilized nations will have reason to rise up and bless the Congress of this great republic for making it possible for fifty or sixty sovereign States to dwell together and prosper under such a uniform system of general State laws. JOHN L. SCOTT.

Frankfort, Ky.

Attorney.

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The Albany Law Journal.

ALBANY, AUgust 3, 1895.

Current Topics.

[All communications intended for the Editor should be addressed simply to the Editor of THE ALBANY LAW JOURNAL. All letters relating to advertisements, subscriptions, or other business matters, should be addressed to THE ALBANY LAW JOURNAL COMPANY.]

WE publish in this issue the opinion of Judge

the human race that one who cannot be convicted by fair play, should not be convicted at all."

While we are on this subject it will be well to comment on the opinion of the Supreme Court of Oregon in the matter of Schmidt v. The Oregon Gold Mining Company. The decision is a grievous mistake and if allowed to stand must weaken the respect for the courts and the confidence of

citizens, in the security for their rights of prop

erty and previous investments in that State of capital from other States and from foreign countries. The very bad case, in question, shows to what abuses this remarkable deliverance may lead. A parcel of property sold for $9,000, the attorneys took $5,500, and after other costs were paid, the mortgagor received but a little over $2,500; this certainly was

scandalous. The interest was in default and the mortgage might be foreclosed, but the attorneys, instead of taking a decree in favor of their clients, took it in their own favor and against their client for the amount claimed as fees, insisted upon it as the first lien and were upheld by the Supreme Court of the State. Hon. Joseph N. Dolph, U. S. Senator from Oregon, who was one of the attorneys for the appellant, writes a very proper criticism to the Oregonian, in which he comments on the opinion as follows and says:

Gaynor at Special Term in the matter of the People v. McLaughlin. Edward C. James, Abraham I. Elkus and Edward E. McCall appeared for the defendant, while John R. Fellows, district attorney, Daniel G. Rollins and Barton S. Weeks appeared for the people. The application was for a certificate of reasonable doubt, and the facts seemed so unusual and the opinion is so able that we think it is more than worthy of space in our columns. It is unfortunate that in many instances popular prejudice enters too largely in the judgment of the jury and that their verdict is influenced by matters extraneous to the facts presented for their consideration on the trial. But when it is considered that the courts themselves appear in some cases to feel the weight of popular opinion it is not to be wondered at that individuals unskilled in legal procedure and without training in law, render a verdict which is founded practically more on public sentiments than on the evidence presented for consideration. By this we do not intimate that the verdict in the McLaughlin trial was brought about in this way or was based on public feeling alone but we merely call attention to the frailty of human nature, which, unfortunately, has to a more or less degree deprived many individuals of their rights. Judge Gaynor's opinion is very scholarly, while he echoes the sentiments we have expressed, that "history in almost every genera-profession into disrepute, and is such a transtion affords instances of trials conducted without due calmness and attention in which some times the innocent and some times the guilty were convicted; but invariably in either case with the like effect in the end, that the conviction was deemed unjust and proved more demoralizing and detrimental to social order than acquittal would have been. It is the maxim of manliness and healthy human nature as old as VOL. 52 No. 5.,

I call attention of the legal profession in Oregon to the recent decision of the Supreme Court of this State, in the case of A. L. Schmidt, appellant, v. The Oregon Gold Mining Company, respondent, not on account of my own or my client's interest in the matter, but because I believe the transaction which the court in that decision sanctioned, to the extent at least of holding that the wrong committed could not be corrected upon appeal, is calculated to bring the legal

action that no honest man or upright judge can approve of it, and because the court, in my judgment, in supposing that relief could not be given the party injured upon appeal, has mistaken the law, and made a decision which will not commend itself to the bar of this State, or to the profession at large, and which it is to be hoped will not be followed as a precedent by other courts.

This is the first time during an experience of over a third of a century at the bar, I have felt it my duty to discuss a decision of a court of justice in the press.

The case briefly stated is this: The appellant, A. L. Schmidt, was the trustee named in certain mortgages executed by the Oregon Gold Mining Company on mining property in Union county, Or., to secure issues of bonds by the company.

Default having been made in payment of the interest on the bonds, the trustee brought suit in Union county, Or., to foreclose the mortgages.

.

The mortgages contained the usual provision that, in case of foreclosure, the trustee should be entitled to recover from the mortgagor such sum as costs of foreclosure, including attorneys' fees, as the court should adjudge reasonable.

The complaint contained allegations sufficient to authorize the court to decree to the plaintiff attorney's fees.

The defendant answered, denying some or all the allegations of the complaint, but afterwards, in open court, consented that the plaintiff might have judgment and decree as prayed for in the complaint.

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Butcher, of counsel.
Said defend-
ant, by his said attorneys, in open court, here
now consents that a judgment and decree may
be here now made and entered in this cause in
favor of said plaintiff, A. L. Schmidt, trustee,
and against the said defendant, the Oregon
Gold Mining Company, as prayed for in plain-
tiff's complaint, and that in said judgment and
decree the court shall fix the referee's fees at the
sum of $200; the court stenographer's fees at the
sum of $, and the plaintiff's attorneys' fees
at such sum as the court may find reasonable for
the services performed, and that the referee's
fees, stenographer's fees and the plaintiff's at-
torneys' fees shall be a preferred lien upon the
mortgaged property of the defendant, and the
proceeds thereof in favor of the said referee,
stenographer and the plaintiff's said attorneys
for the respective amounts found due each as
found and settled by the parties and the court,
and that they or either of them may have exe-
cution therefor against the said mortgaged
property.

"Eighteenth The court further finds that the sum of $5,500 is a reasonable attorneys' fee in this suit for the foreclosure of the said several mortgages and trust deeds, and that of said sum plaintiff's attorney, T. Calvin Hyde, should receive the sum of $2,750, and plaintiff's attorney, T. H. Crawford, should receive the sum of $2,750, and that said amounts so allowed each of said attorneys should be a preferred lien upon the said mortgaged premises and upon the funds arising from the sale of the said mortgaged property for the payment of the same, for the enforcement of which either of said attorneys should have execution."

Instead of taking a decree in favor of their client, the plaintiff, as prayed for in the complaint, for the foreclosure of the mortgages, with costs and attorneys' fees, the plaintiff's attorneys, without pleadings and without notice to their client, procured a decree in their favor and against their client, for the amount they claimed against their client for fees in the case. There was nothing in the case concerning the right of the attorneys to fees, or the meas- "It is therefore ordered, considered adure of their compensation. There was no agree-judged and decreed that plaintiff A. L. ment between them and the plaintiff as to the amount of their compensation. There was nothing in the case upon which a decree in their favor could be based.

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Schmidt, as trustee for the holders of said
bonds, have and recover of and from the
defendant;
and the further sum of
$5,500 reasonable attorneys' fees herein in
trust for T. Calvin Hyde and T. H. Crawford,
plaintiff's attorneys herein; and for the further
sum of $150, stenographer's fees herein in
trust for John Wheeler, court stenographer.

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