KF 
 536 
 
 Cornell University Law Library 
 
 THE GIFT OF 
 
 Dean Robert Sproule Stevens 
 
 Cornell... Law School 
 
 Date Jwie.,2^...1?58 
 
R. s.srtVD'.is 
 
 Cornell University Library 
 KF 213.S36 
 v.1 
 Essays on constitutional law and equif 
 
 lal law and equity 
 
 3 1924 024 341 996 
 
 =*.. 
 
 (fflnwll ICam ^rfyoiil Hibtanj 
 
The original of this book is in 
 the Cornell University Library. 
 
 There are no known copyright restrictions in 
 the United States on the use of the text. 
 
 http://www.archive.org/details/cu31924024341996 
 
THE EDITORIAL COMMITTEE DESIRE TO MAKE IT KNOWN 
 
 THAT THE PUBLICATION OF THESE VOLUMES HAS BEEN MADE FEASIBLE 
 
 THROUGH THE GENEROUS INTEREST OF 
 
 PROFESSOR HENRY SCHOFIELD'S BROTHER 
 
 Mr. JOHN SCHOFIELD 
 
 OF CHICAGO 
 
HENRY SCHOFIELD 
 
 Late Professor of Law in Northwestern University 
 From a painting by A void Nyholm 
 
ESSAYS ON 
 
 CONSTITUTIONAL LAW AND EQUITY 
 
 AND OTHER SUBJECTS 
 
 BY 
 
 HENRY J3CHOFIELD 
 
 LATE PROFESSOR OF LAW 
 
 IN NORTHWESTERN 
 
 UNIVERSITY 
 
 EDITED BY 
 
 THE FACULTY OF LAW 
 
 NORTHWESTERN UNIVERSITY 
 
 VOL. I 
 
 BOSTON 
 
 PUBLISHED FOR NORTHWESTERN UNIVERSITY LAW SCHOOL, BY 
 
 THE CHIPMAN LAW PUBLISHING COMPANY 
 
 1921 
 
£*%/3» 
 
 COPYRIGHT 1921 
 By The Chipman Law Publishing Company 
 
 The Riverdale Press, Brookline, Mass., U. S. A. 
 
IN TRIBUTE TO THE MEMORY 
 OF 
 
 8jettrij g>rl]oftel& 
 
 A WISE AND FEARLESS ADVOCATE 
 
 AN ACCOMPLISHED SCHOLAR 
 
 A BELOVED ANn INSPIRING TEACHER 
 
 A LOYAL AND UNSELFISH ASSOCIATE 
 
 AND 
 
 A CONSUMMATE MASTER OF AMERICAN CONSTITUTIONAL LAW 
 
 THESE PAGES 
 
 RECORDING HIS CONTRIBUTIONS TO OUR LEGAL SYSTEM 
 
 ARE COLLECTED BY 
 
 HIS COLLEAGUES IN NORTHWESTERN UNIVERSITY 
 
FOREWORD 
 
 Henry Schofield became a member of the Faculty of 
 Northwestern University Law School in 1901. He died 
 in 1918. 
 
 He was a native of Dudley, Massachusetts; prepared 
 for college at Nichols Academy in that town; graduated 
 from Harvard College in 1887 with the degree of A.B., 
 and from Harvard Law School in 1890 with the degrees 
 of LL.B. and A.M. He served for a year as clerk in the 
 law office of Messrs. Herrick and Allen, Chicago; then 
 went for a year to Washington as assistant to Charles 
 H. Aldrich, Solicitor General of the United States. In 
 1892 he returned to Chicago, and was later associated 
 in practice with Mr. Henry M. Bacon; from 1900 to 
 1902 was Assistant Corporation Counsel to the City of 
 Chicago. During the years 1899-1900 and 1900-1901 
 he was a lecturer in the John Marshall Law School. In 
 1901 he was appointed instructor in Equity and Con- 
 stitutional Law in the Law School of Northwestern Uni- 
 versity, and in 1902 he was appointed professor of law 
 and gave up his position in the City Hall. 
 
 The period of his service as legal adviser to the City 
 was one when the City's relations to the local traction 
 systems involved the most weighty controversies over 
 corporate franchises and the City's powers under its char- 
 ter. Constitutional provisions and successive statutory 
 measures raised complex issues calling for great accuracy 
 of research and large understanding of fundamental 
 principles. His absolute mastery of the whole intricate 
 subject was soon acknowledged by all who knew of his 
 work. Not even his extreme modesty and self-effacement 
 
vi FOREWORD 
 
 could prevent this recognition of his talents. No man 
 of his time at the bar was more respected for his ability 
 in this field; and after his accession to the Faculty of 
 the Law School his advice continued to be sought as that 
 of a disinterested master of the subject. 
 
 His position in the Law School now gave his mind 
 ample opportunity to range fully through that domain 
 which became its conquest by natural affinity — the 
 domain of Constitutional Law. The essays here collected 
 are a rich revelation of a genius at once critical and con- 
 structive in the highest degree — critical to the minutest 
 detail of a judicial expression and to the slightest element 
 of doctrine — and constructive in its consistent and 
 constant presentation of an entire constitutional scheme 
 and standard for testing the validity of the current de- 
 cisions. No modern writer in that field has excelled 
 him — and only one or two have equalled him — in mas- 
 tery of the entire complex of Federal decisions and in 
 firm grasp of constitutional principles. That his treatise 
 on Constitutional Law was never completed is an im- 
 measurable loss. 
 
 His other favorite subject was Equity. In his hands 
 the traditional dogmas of this classic subject received 
 new life and meaning. In their practical applications 
 to modern problems he took endless satisfaction. Noth- 
 ing seemed to give him more of the true scientist's pleas- 
 ure than to bring to bear upon some apparently dry and 
 commonplace decision the heavy artillery of Equity's 
 fundamental ideas. In his treatment of such a problem, 
 new dignity was added to it, and the practical importance 
 of a scientific consistency was convincingly revealed. 
 
 To whatever theme he vouchsafed his pen, the style 
 of his presentation was unique and inimitable, lucid and 
 trenchant in every page. It never flags into a mere 
 exposition of the obvious. Judicial of mind and candid 
 
FOREWORD vii 
 
 in argument, his essays nevertheless are mainly contro- 
 versial in their spirit; for they take usually some current 
 judicial fallacy, state plainly the true and preferable 
 solution, and proceed to defend the issue thus raised. 
 Once entered upon his text the reader is carried along 
 irresistibly by the sheer pleasure of following the reason- 
 ing. The tang of his gentle irony, the enthusiasm of 
 his mere logic, the sustaining swing of his rhythmical 
 clauses, and even the frequent long parentheses of subtle 
 differentiation, only add to the fascination. No modern 
 law writer has a style at once so personal and yet so 
 purely scientific. 
 
 Though his enthusiasms for his themes were thoroughly 
 realistic, in that he was drawn always to write upon 
 questions of practical moment, yet he never had the im- 
 pulse of making propaganda; and his retiring disposi- 
 tion — almost that of a recluse — kept him from seeking 
 or accepting personal prominence in the profession. Many 
 hundreds of his disciples, scattered in the various States 
 in practice, know and value the stimulus of his thought. 
 But the profession at large knew of his work only occas- 
 ionally through the pages of the Illinois Law Review. 
 
 It would have been not merely an injustice to his 
 memory, but a great loss to American legal literature, 
 not to preserve these contributions in collected and per- 
 manent form for wider perusal. Hence this volume. 
 
 It will serve to perpetuate for the benefit of the pro- 
 fession the work of one of the wisest, most original, and 
 most trustworthy legal thinkers of our time. 
 
 John H. Wigmore. 
 
ANOTHER FOREWORD 
 
 Professor Schofield came from a self-contained, a self- 
 mastering, a perdurable stock, the stock of New England, 
 schooled in clean living, high thinking, moderation, and 
 a philosophy of conduct summed up in the words "medio 
 tutissimus ibis." A brother who had been a state court 
 judge in Massachusetts was elevated to the federal bench 
 by President Taft, but died before assuming office. An- 
 other brother is the executive of one of the country's 
 great commercial enterprises. From such an ancestry 
 one expects no self-pity or turning aside in the face of 
 the most grievous difficulties or afflictions. Professor 
 Schofield did not once let it be known from his own lips, 
 while he was still able to carry his burden, that he was ill 
 and suffering. He "carried on," as he felt was his duty, 
 to the end of his courses in May, when he suddenly 
 collapsed. The power of mind over matter had reached 
 the breaking-point, and it was then feared he would die 
 in a few hours. But his powerful will again asserted 
 itself, and in a few days (in June) it was reported to his 
 colleagues that Professor Schofield would be quickly 
 restored and would be able to continue his regular courses 
 in the law school at the beginning of the next academic 
 year (September, 1918). At that time, when he was worn 
 down to a shadow of himself, when physical exhaustion 
 was upon him, when silence no longer concealed the true 
 situation, and when it was perfectly clear to all of us 
 that he had for months made a sacrifice which no one 
 would have asked or permitted of him, he confessed the 
 tortures he had endured in bringing to completion his 
 law school labors. He had the blood and the spirit 
 of the Pilgrim Fathers; nay, he was a Spartan of the 
 Spartans. 
 
x . ANOTHER FOREWORD 
 
 He continued to improve in physical vigor, and in 
 July it seemed that the happy promise, given to blind 
 the eyes of his associates, would be realized, that he 
 would return to us in September. But early in August 
 it became known to a few of his colleagues that a relapse 
 had set in, and on the morning of August 15 he died. 
 
 So few of the host interested in his life suspected the 
 desperateness of the case even in the last days of his ill- 
 ness, that the announcement of the death of Professor 
 Schofield came as a great shock. It was the quality of his 
 malady that his mind remained unimpaired up to within a 
 few minutes of the moment of dissolution, when a merciful 
 coma stilled the pain of a racked and uneasy body. His 
 clearness of mental vision is shown in the last contribution 
 made to the Illinois Law Review, and printed in the May 
 number (Vol. XIII, pp. 43 seq.) At that time, as was 
 to be seen in his countenance, and as is now confirmed by 
 medical opinion, Professor Schofield was virtually dying. 
 What suffering of body and agony of mind that piece of 
 writing cost him no one will ever know. 
 
 We have remarked that serenity of Professor Scho- 
 field's life. An observant associate has often spoken of 
 him as "the ideal professor," meaning that he was little 
 interested in or affected by things outside the orbit of 
 his own studies, and often forgetful, though he lived in 
 the midst of it, that there was a barratous, surging world 
 about him. 
 
 He was little devoted to the habit of writing, but he 
 filled the measure of time by constant reading. At almost 
 any hour in the day, if one would look across the court 
 from Hurd Hall, Professor Schofield could be seen with 
 a mass of books on his table and with his face buried in a 
 volume which absorbed all his faculties. One might even 
 have entered his office without attracting his attention 
 from what for the moment engaged him. It has often 
 
ANOTHER FOREWORD xi 
 
 happened that he was so preoccupied in his work that it 
 would be necessary to send a messenger to inform him that 
 a class or a faculty meeting was awaiting his attendance. 
 No doubt, Mr. Schofield in the latter years had developed 
 many of the habits which are associated with the lay- 
 man's notion of the "ideal professor," a person very 
 much unaware of anything but his own reflections, but 
 Mr. Schofield was also an ideal professor in the stricter 
 and better meaning of the term. 
 
 One of the most competent judges in such matters 
 even though sometimes too liberal in his estimate of the 
 abilities of others, no other than Professor Wigmore, dean 
 of the law school, once stated that in the field of consti- 
 tutional law, Professor Schofield was the peer of the elder 
 Thayer. Another colleague of the former, and once a 
 student under the latter, has made an interesting observa- 
 tion on the two men. Thayer, he said, had an involved, 
 parenthetical, and hesitant delivery in the classroom, 
 but his writing was clear, direct, and elegant. Professor 
 Schofield, he continued, reversed the literary merits on 
 one hand and the demerits on the other, of Thayer. 
 The writer of this note has no first-hand knowledge of 
 Thayer's oral presentation, but as to the elements of the 
 comparison within his experience, he agrees that the 
 observation is essentially correct, and for the rest of it, 
 accepts its conclusions. The convolutions in Professor 
 Schofield's writing may be seen in nearly any one of his 
 contributions. The reader must at times be very alert 
 if he wishes to follow him in some of the mazes which he 
 has constructed. Like the Cretan labyrinth, his writing 
 not infrequently needs a Daedalus that a puzzled Ariadne 
 might find her way into the depth of it. 
 
 So far as this criticism is well-founded, and in any event 
 it does not detract from the importance and usefulness 
 of what Professor Schofield has written, it has perhaps 
 
xii ANOTHER FOREWORD 
 
 a perfectly natural explanation. Professor Schofield 's 
 thinking processes would not always calmly await the 
 slower movements of mechanical expression. He saw 
 his whole subject at a glance. In fact, he never under- 
 took to write anything until his mind was overflowing with 
 what he had gathered from wide reading and much reflec- 
 tion. It was not his practice to act on the counsel in 
 Amiel's Journal, "it is by writing that one learns." 
 When he was ready to put his ideas on paper the pen 
 could not follow, producing in consequence the impression 
 of a plurality of notions moving in parallel or contrasting 
 lines of development, — a polyphonic effect ■ — a verbal 
 counterpoint. 
 
 In the lecture hall it was different. We doubt if any 
 contemporary of Professor Schofield in any American 
 law school excelled him in the capacity of making legal 
 problems interesting by the lecture method. He seemed 
 to make small use of notes or memoranda, but spoke 
 informally, and with the most remarkable ease, clearness, 
 and attraction. He did not make the mistake of taking 
 too much for granted either in the direct or collateral 
 information of his auditors. His discussions were com- 
 plete and well-rounded. He exhausted his subject when 
 he undertook to speak at length. Collateral and pre- 
 liminary points were tactfully explained where a more 
 pedantic person would be silent. He never sought in the 
 classroom or elsewhere to make an impression. His 
 object was to make himself understood, and in this he 
 undoubtedly succeeded. 
 
 Of course, this is not the Socratic method; it does not 
 provide the discipline which goes with a dialectic. Pro- 
 fessor Schofield was temperamentally unfitted for the 
 drill-master type of legal education. The casuistic 
 method by which a student is led from the brink of one. 
 bottomless pit to another, and from the frying-pan to 
 
ANOTHER FOREWORD xiii 
 
 the fire, must have seemed to one of Mr. Schofield's type 
 of mind either an impertinence or a lesson in intellectual 
 dishonesty. Nor yet did he lecture in the formal sense 
 as is done in colleges of liberal arts and in European law 
 schools. With the requirements of a case-book to guide 
 him, he adopted a via media. 
 
 We do not underrate his writings. They are acknow- 
 ledged to be contributions to the doctrinal side of our law, 
 and on a par with the best writing ever done in this coun- 
 try in the fields which Professor Schofield entered. In 
 constitutional law especially, he was reputed to know his 
 subject (as we have heard it put) "inside and out." 
 His attachment to that subject is shown in the very last 
 words which he wrote (Illinois Law Review, XIII, 59), 
 "Our federal constitution is constantly revealing to us 
 from time to time our own littleness and its own greatness 
 of view." He was not a promoter of his own talents; 
 and had he not been so retiring in his scholarship, it can 
 not be seriously questioned that he would long ago have 
 occupied publicly a distinguished place among the author- 
 ities on constitutional law and theory. 
 
 He seems never to have written or compiled a book or 
 even to have introduced one — activities ordinarily 
 characteristic of professorial life. It may be that to 
 some extent he shared the severe (and as we think and 
 as many will hope, incorrect) view which we have heard 
 a distinguished jurist express about books — that only 
 asses write them. We are more inclined to believe that he 
 lacked the native impulse and interest in that kind of 
 labor. From the standpoint of the witticism of Jhering 
 about professors and libri, 1 Mr. Schofield would have 
 made a poor showing in his academic career, but his 
 
 '"No inheritance without liberi; no professorship without libri." — "Scherz 
 und Ernst, 1 ' p. 113. 
 
xiv ANOTHER FOREWORD 
 
 abilities were too solid to be impeached for the want of 
 the legitimate enough and laudable enough trumpeting 
 from the print-shop. 
 
 About four years ago the managing board of the Review 
 appointed a committee to gather up Professor Scho- 
 field's writings with a view to their classification- and 
 publication as an independent volume. Much of the 
 preliminary work had already been done when the increas- 
 ing violence of the war which has so profoundly affected 
 the currents of thought and action of the entire world 
 put a stop to the undertaking in hand. Professor Scho- 
 field had no intimation of what was projected. No 
 doubt he would have sincerely depreciated the value of 
 his labors; but if the plan of publication had been con- 
 summated in regular course, it would have come in his 
 lifetime. It would have been a deserved token of the 
 esteem and respect of those who have worked with him 
 and under him. It would have been a balm to his 
 troubled mind in his numbered last days. Though 
 the kind of man who would not raise his finger to attain 
 an honor, he would still as a human being have been 
 delighted to know that his work, whatever might be his 
 own valuation of it, had the approval of those close to 
 him. There is no self-effacement so intense, or any 
 dignity of mind so austere, as to be insensible to the 
 human heart-touch of friendship and good will. 
 
 An incident may be here recalled when the sand in the 
 glass had well-nigh run" out in Professor Schofield's life. 
 Some years ago a graduating class in the law school pre- 
 sented to the faculty of law an excellent portrait of Pro- 
 fessor Schofield which was hung in the corridor of the law 
 school alongside many notables — orators, judges, chan- 
 cellors, canonists, civilians. Professor Schofield no doubt 
 made the usual polite acknowledgments, but if the honor 
 thrust upon him was anything more than an embarrass- 
 
ANOTHER FOREWORD xv 
 
 ment to one of his modesty, he did not show it. It was 
 necessary for him several times a day to pass his own 
 illuminated likeness on his way to and from the lecture 
 halls, but if he was aware of the existence of the portrait, 
 he showed no more interest in it than one would take in a 
 gargoyle. When his physical strength was ebbing away, 
 giving free rein to his mind to wander through the seven- 
 teen years spent in and about the classroom, when he 
 pondered whether after all he had not lived in vain, he 
 remembered the portrait. With a childlike simplicity 
 and appeal he turned to an associate who was with him 
 in the chamber where death stood close by and said, 
 "I wish you could get for me a photograph of that picture 
 the boys gave me. I would like to have it." It will 
 deeply gratify those students of his who participated in 
 the presentation of Professor Schofield's portrait to know 
 that his wish was fulfilled and that he carried with him to 
 his grave the happy recollection of an honor which could 
 not have been more eloquently or solemnly acknowledged. 
 Mr. Justice Holmes has somewhere classified men as 
 either internal or external. Waiving the question whether 
 this dichotomy can ordinarily have an accurate applica- 
 tion, it exactly fitted Professor Schofield. He was an 
 internal man. We believe we have rarely known one of 
 comparable attainments who was less informed about 
 the hard, sharp-edged, and resistent things of life. This 
 further confirms what has been noted of him as an "ideal" 
 professor. It is said that in the early days of the auto- 
 mobile he was riding with a friend and innocently asked 
 if the fuel of the car came in sticks. Later, by some 
 beguilement, the story of which is unknown to us, he 
 became owner of an automobile. He then of course dis- 
 covered to what must have been his amazement that 
 gasoline is not provided in sticks or chunks. We have 
 heard him say, of this for him baroque and unnatural 
 
xvi ANOTHER FOREWORD 
 
 proprietorship, that he never felt any joy in it except 
 when the car was installed in the garage. The compen- 
 sation for this lack of interest in and even ordinary know- 
 ledge of the clamorous world was found in a secluded 
 mental life. Not only did Professor Schofield attach 
 himself by bent of character to one side of a dichotomy, 
 but on the side which he selected, he concentrated his 
 efforts in one or two preferred lines of study. 
 
 On the record as we find it, Professor Schofield 's 
 greatest distinction lay in his classroom labors. Had he 
 written as widely as he discoursed, he would have 
 achieved enduring fame as a writer. He chose not the 
 lesser way but yet the way that would least do justice to 
 his talents. He needed a Plato to repeat his sayings 
 where none was to be found. How his unorganized 
 lecture materials would read in cold print, of that we have 
 no idea; but if in that form they made the same impression 
 as on the ear sense, it must be regretted that they have 
 not been preserved in the ipsissima verba of the lecturer. 
 We are constrained to believe that especially in the 
 departments of constitutional law and equity, his lectures 
 would have shown a mine of penetrating analysis, of 
 suggestive points of view, and of valuable reflections. 
 
 With respect to the charm and learning of his discourse, 
 the writer recalls very well the last time he was privileged 
 to meet Professor Schofield in an idle hour for a chat — 
 and a chat with him was always a one-sided affair. He 
 invariably selected the topic of conversation, and carried 
 on the dialogue on his own terms. One had no need or 
 opportunity of saying more than was permitted to 
 Melesias or a Nicias in their "chat" with Socrates on 
 Courage. One might hear a thorough discussion on a 
 difficult legal topic by occasionally interjecting at the 
 proper places the words "certainly," "to be sure," "that 
 is true," "I do not understand." On the occasion men- 
 
ANOTHER FOREWORD xvii 
 
 tioned, Professor Schofield was interested in an Illinois de- 
 cision which touched the notable case of Tulk v. Moxhay. 
 He began with the servitudes of Roman law and carried 
 the idea of the case down historically, ending with a socio- 
 economic explanation of the principle involved, with its 
 related points of contact as in Spencer's case. If that 
 particular lecture, or conversation as Professor Schofield 
 regarded it, could have been reduced to writing, it would 
 have proved a valuable essay. 
 
 In concluding our remarks we cannot put aside the 
 reflection that it seems a strange principle of life that just 
 as a man has reached his best years, at the time when he 
 has gathered the richest store of knowledge which the 
 mind can contain, and when he is best fitted to impart 
 and apply the treasures painfully and laboriously gathered 
 in many years of industry, he either declines, or, as in 
 Professor Schofield 's case, is stricken down. Such, how- 
 ever, is the rule of Nature. That is sufficient. After all, 
 Professor Schofield has been disseminating his wealth 
 of knowledge for many years. The grave has claimed 
 only the form. The substance lives in the minds and 
 practices of hundreds of students who have listened at 
 his feet. Mr. Schofield's name may or may not long 
 endure in legal doctrine; caprice and contingency have 
 much to do with that. But it is verifiably certain that he 
 will long be remembered, by many of the present genera- 
 tion, bien entendre, as an ideal professor. 
 
 A. K. 
 
CONTENTS 
 
 PART I 
 
 CONSTITUTIONAL LAW 
 
 Topic I 
 
 The Relations of the Federal and State Courts Under 
 the Constitution 
 
 I. The Supreme Court of the United States and the 
 
 Enforcement of State Law by State Courts . 5 
 
 II. Swift v. Tyson: Uniformity of Judge-Made State 
 
 Law in State and Federal Courts . . 38 
 
 III. Federal Courts and Mob Domination of State 
 
 Courts ... . . . . 63 
 
 IV. The Claim of a Federal Right to Enforce in One 
 
 State the Death Statute of Another . . 102 
 
 V. Collected Comment ... ... . 113 
 
 1. Appellate Jurisdiction of United States 
 Supreme Court not defeated by Grounds 
 upon which Decision in State Court is 
 
 rested 113 
 
 2. Jurisdiction of Federal Supreme Court to 
 Review State Decisions under the Federal 
 
 Safety Appliance Act 117 
 
 3. Unreviewable Wrong or Doubtful State 
 Decisions of Questions of Federal Con- 
 stitutional Law — Their Effect on Private 
 Interests and on the Reserved Powers 
 
 of the States 119 
 
 4. Federal Judgments and Decrees: What 
 Law Governs Effect as to Privies of a 
 Federal Equity Decree Rendered in One 
 
 State and Exhibited in Another State . 128 
 
 5. Federal Injunctions to Stop Suits in State 
 Courts and State Injunctions to Stop Suits 
 
 in Federal Courts 140 
 
xx CONTENTS 
 
 Topic II 
 
 The Full Faith and Credit Clause 
 
 I. The Doctrine of Haddock v. Haddock .... 153 
 II. Full Faith and Credit v. Comity and Local Rules 
 
 of Jurisdiction and Decision 183 
 
 III. Collected Comment 211 
 
 1. A Suggestion for a National Divorce Act 211 
 
 2. Indiana Marriages in Contravention of the 
 
 Illinois Act of 1905 226 
 
 3. Actions on Judgments of Other States . 228 
 
 4. Actions on Judgments of Other States — 
 Presumption as to Local Law of Other 
 
 States 233 
 
 5. Interstate Enforcibility of Money Judg- 
 ments 243 
 
 Topic III 
 
 Trial by Jury 
 
 I . New Trials and the Seventh Amendment — Slocum 
 
 v. New York Life Insurance Co 251 
 
 II. Jury Trials in Original Proceedings for Mandamus 
 
 in the State Supreme Court .... 344 
 
 III. Collected Comment . .... 363 
 
 1. The Judge's control over the Jury in Civil 
 
 Cases in Illinois Courts 363 
 
 2. Trial by Jury in Civil Cases in the Chicago 
 Municipal Court: Advance Fee not a Clog 
 
 on Right to 367 
 
 3. Criminal Jury of the County or District 
 in the City Court of a City situated in Two 
 Counties . 370 
 
 4. Eminent Domain — The Right of Appeal 
 and Trial De Novo on a Justice's Judg- 
 ment Under Sections 19 and 20 of the 
 
 Farm Drainage Act . ... 374 
 
 5. Eminent Domain — Jury Trial of the 
 Question of Just Compensation . . . 381 
 
 6. Eminent Domain — Jury Trial on the 
 Assessment of Benefits 389 
 
CONTENTS xxi 
 
 Topic IV 
 
 Interstate Commerce 
 
 I. The State Tax on Illinois Central Gross Receipts 
 
 and the Commerce Power of Congress . . 399 
 
 II. Collected Comment 407 
 
 1. Railway Co. v. Texas: State Taxation of 
 Railway Gross Receipts 407 
 
 2. Constitutionality of the Federal Em- 
 ployers' Liability Act . . . 409 
 
 Topic V 
 
 Punishment 
 
 I. Cruel and Unusual Punishment .... 421 
 
 II. Petit Larceny as an Infamous Crime Involving 
 Infamous Punishment — Comment on People 
 vs. Russell 441 
 
 Topic VI 
 
 Religious Liberty and Liberty of the Press 
 
 I. Religious Liberty and Bible Reading in Illinois 
 
 Public Schools .... 459 
 
 II. Freedom of the Press in the United States 510 
 
 Topic VII 
 
 The Obligation of Contracts Clause 
 
 The Street Railroad Problem in Chicago . . 575 
 
 Topic VIII 
 
 The Power of Appointment to Public Office 
 
 The State Civil Service Act and the Power of Ap- 
 pointment . ... 683 
 
xxii CONTENTS 
 
 - Topic IX 
 Due Process of Law 
 
 Collected Comment 705 
 
 1. Power of Illinois, under the 14th Amend- 
 ment, to Aid Owners of Wet Lands to Drain 
 
 them for Agricultural Purposes . . . 705 
 
 2. Due Process of Law as applied to Inform- 
 ing a Corporation that it has been Sued 715 
 
 3. Does Legislative Power exist to Confirm 
 and Legalize a Majority Plan of Reorgan- 
 ization on Insolvency? 717 
 
 4. Constitutionality of Statute Penalizing 
 
 Deceit in Hiring Workmen Abroad . . 721 
 
 5. Remedial or Civil and Punitive or Criminal 
 Proceedings for Contempt of Court . . 726 
 
 PART II 
 
 EQUITY 
 
 Topic I 
 
 Specific Performance 
 
 I. The word "Not" as a Test of Equity Jurisdiction 
 
 to enjoin a Breach of Contract . 739 
 
 II. Collected Comment ... . 774 
 
 1. The Rule of Mutuality in General . . 774 
 
 2. Mutuality — Validity of Covenant in 
 Brewer's Lease to Sell only Beer of Lessor 776 
 
 3. Mutuality — Effect of a Power to Ter- 
 minate the Contract 782 
 
 4. 'Mutuality — Oil and Gas Lease as an 
 
 Executed Contract or Grant .... 787 
 
 5. Mutuality — Oil and Gas Lease as an 
 Executory Contract 798 
 
 6. Mutuality — Risk of Loss by Fire as be- 
 tween Vendor and Vendee 810 
 
 7. Enforcement of Contract to Convey For- 
 eign Real Property 812 
 
CONTENTS xxiii 
 
 Topic II 
 
 Construction, Reformation, and Rescission of Written 
 
 Instruments 
 
 I. So-Called Equity Jurisdiction to Construe and 
 
 Reform Wills ... 817 
 
 II. Collected Comment . . 841 
 
 1. Construction of Will as Giving Jurisdiction 
 to Determine Rights in Foreign Real 
 Property . 841 
 
 2. Mistake of Law as a Title to Property . 845 
 
 3. Jurisdiction to Correct Mistakes in a Vol- 
 untary Deed ... . . . 852 
 
 4. Donor's Mistake of Fact — Correction for 
 
 Donee after Donor's Death . . 854 
 
 5. Rescission of Contract for Seller's Mistake 856 
 
 Topic III 
 
 Relief Against Torts 
 
 I. Equity Jurisdiction to Abate and Enjoin Illegal 
 
 Saloons as Public Nuisances . ... 863 
 
 1 1 . Right of Workmen to Enj oin a Threatened Strike — 
 
 Comment on Kemp v. Division No. 41 . . 893 
 
 Topic IV 
 
 Relief Against Proceedings at Law 
 
 I. Irregularity in an Execution Sale as a Foundation 
 
 of Equity Jurisdiction in Illinois . . 907 
 
 II. Jurisdiction to set aside Judgment in Proceedings 
 under Tuley Act — Comment on West Chicago 
 Park Commissioners v. Riddle 932 
 
 Topic V 
 Subrogation and Exoneration 
 
 Collected Comment .... . .... 945 
 
 1. The Principal's "Promise in Law" to In- 
 demnify his Surety 945 
 
 2. Right of Holder of Invalid Tax Deed to 
 
 be Subrogated to Lien of the Public . . 951 
 
xxiv CONTENTS 
 
 Topic VI 
 
 Administration of Assets 
 
 Jurisdiction of Federal Courts to Manage Insolvent 
 Public Service Corporations — Comment on 
 Re Metropolitan Receivership . ... 957 
 
 Index 963 
 
 Appendix 
 
 Conflict of State Laws and the Full Faith and Credit 
 
 Clause i-xxvi at end of Vol. I 
 
PART I 
 CONSTITUTIONAL LAW 
 
TOPIC I 
 
 THE RELATIONS OF THE FEDERAL AND STATE 
 COURTS UNDER THE CONSTITUTION 
 
 I. The Supreme Court of the United States and the 
 Enforcement of State Law by State Courts. 
 
 ^ 
 
 II. Swift v. Tyson: Uniformity of Judge- Made State 
 Law in State and Federal Courts. 
 
 III. Federal Courts and Mob Domination of State Courts: 
 
 Leo Frank's Case. 
 
 IV. The Claim of a Federal Right to Enforce in one State 
 
 the Death Statute of Another. 
 
 V. Collected Comment. 
 
I 
 
 THE SUPREME COURT OF THE UNITED STATES 
 
 AND THE ENFORCEMENT OF STATE 
 
 LAW BY STATE COURTS 3 
 
 The proposition I wish to advance is this: 
 The prohibition of the Fourteenth Amendment of the 
 Constitution of the United States, declared in force 
 July 28, 1868 — "Nor shall any State deprive any person 
 of life, liberty, or property, without due process of law" — 
 so enlarged the scope of the Act of Congress, now Section 
 709, R. S., enacted December 1, 1873, regulating and 
 limiting the appellate jurisdiction of the Supreme Court 
 of the United States to review the judgments of State 
 Courts, as to authorize and require that Court to review 
 the judgment of a State Court, in a case involving private 
 rights, depending upon State law, to determine whether 
 the State Court, in arriving at its judgment, did or did 
 not give due effect to the existing, established law of the 
 State, whether common law or statute law, regulating 
 the private rights in question; and, in order to arrive at 
 that determination, the Supreme Court of the United 
 States must decide for itself, independently, what the 
 existing, established law of the State is. 
 
 Borrowing a compact sentence from the consolidated 
 report of the arguments of Messrs. W. I. Scott and J. B. 
 Heiskell, counsel for plaintiff in error, and Messrs. P. 
 Phillips and B. R. Curtis, amici curiae, in Murdock v. 
 Memphis, 1 the proposition may be stated thus: One 
 
 a [3 III. Law Rev., 195, November, 1908.] 
 1 20 Wallace, 590, 605. 
 
6 CONSTITUTIONAL LAW 
 
 effect of the above prohibition of the Fourteenth Amend- 
 ment on Section 709, R. S., was "to place the whole juris- 
 prudence of the country under the protection of this 
 great Federal Tribunal of the Nation, and to let all 
 citizens feel everywhere and always, as a fixed reality, 
 the fact that the Constitution of the United States and 
 the laws of Congress passed in pursuance thereof, are the 
 'supreme law of the land.' " 
 
 In Sauer v. New York, 2 on error to the Supreme Court 
 of New York, wherein it was assigned for error, that 
 "plaintiff has been deprived," by the judgment of the 
 New York Court, "of his property without due process 
 of law, in violation of Sec. 1 of the Fourteenth Amend- 
 ment of the Constitution of the United States," Mr. 
 Justice Moody before taking up this assignment of 
 error, said: 
 
 "But, as has been said, we are not concerned primarily with the 
 correctness of the rule adopted by the Court of Appeals of New 
 York and its conformity with authority. This court does not 
 hold the relation to the controversy between these parties which 
 the Court of Appeals of New York had. It was the duty of that 
 court to ascertain, declare and apply the law of New York, and its 
 determination of that law is conclusive upon this court. This 
 court is not made, by the laws passed in pursuance of the Consti- 
 tution, a court of appeal from the highest courts of the States, 
 except to a very limited extent, and for a precisely defined purpose. 
 The limitation upon the power of this court in the review of the 
 decisions of the courts of the States, though elementary and 
 fundamental, is not infrequently overlooked at the Bar and unless 
 it is kept steadily in mind much confusion of thought and argument 
 result. It seems worth while to refer to the provisions of the Con- 
 stitution and laws which mark and define the relation of this court 
 to the courts of the State. Article III of the Constitution ordains, 
 among other things, that the judicial power shall extend to all 
 cases in law and equity, arising under this Constitution, the laws of 
 the United States, and treaties made, or which shall be made, under 
 
 2 206 U. S., 536. 
 
ENFORCEMENT OF STATE LAW 7 
 
 their authority, and that the appellate jurisdiction of the Supreme 
 Court shall be exercised under such regulation as Congress shall make. 
 
 "It was from this provision of the Constitution that Marshall 
 in Cohens v. Virginia, 6 Wheat., 264, derived the power of this court 
 to review the judgments of the courts of the States, and, in defining 
 the appellate jurisdiction, the Chief Justice expressly limited it to 
 questions concerning the Constitution, laws, and treaties of the 
 United States, commonly called Federal questions, and excluded 
 altogether the thought that under the Congressional regulation 
 the jurisdiction included any power to correct any supposed errors 
 of the State courts in the determination of the State law. Such was 
 the expressed limitation of the original judiciary act, in its present 
 form found in section 709 of the Revised Statutes, which has been 
 observed by this court in so many cases that the citation of them 
 would be an idle parade. It is enough to refer to Murdock v. 
 Memphis, 20 Wall., 590, where, after great consideration, it was 
 held that under the Judiciary Act, as amended to its present form, 
 this court was limited to the consideration of the Federal questions 
 named in the Constitution. 3 This court, whose highest function 
 it is to confine all other authorities within the limits prescribed for 
 them by the fundamental law, ought certainly to be zealous to 
 restrain itself within the limits of its own jurisdiction and not be 
 insensibly tempted beyond them by the thought that an unjustified 
 or harsh rule of law may have been applied by the State courts in 
 the determination of a question committed exclusively to their care. 
 
 "In the case at bar, therefore, we have to consider solely whether 
 the judgment under review has denied to the plaintiff any right 
 secured to him by the Federal Constitution." 4 
 
 Mr. Justice Moody says truly that the central idea of 
 his exposition of the appellate jurisdiction of the Supreme 
 
 s In Murdock v. Memphis, the words used are "questions mentioned in the 
 act." See 20 Wallace, on p. 636, top. "The appellate powers of this court are 
 not given by the judicial act; they are given by the Constitution. But they 
 are limited and regulated by the judicial act." Marshall, C. J., in Durousseau 
 ». United States, quoted in 20 Wallace on p. 603. 
 
 4 See also the effect given to Murdock v. Memphis in Leathe v. Thomas, 207 
 U. S., 93, on error to the Illinois Supreme Court, the claim being made that the 
 Illinois Court rendered a judgment without any evidence, and so without due 
 process of law. Note that McKenna and Day, JJ., dissented in Sauer v. New 
 York, and Harlan and Day, JJ., dissented in Leathe v. Thomas. 
 
8 CONSTITUTIONAL LAW 
 
 Court of the United States over State Courts may be 
 found in expressions in opinions in many cases after 
 Murdock v. Memphis, that central idea being that Sec- 
 tion 709, R. S. — not the Constitution — excludes alto- 
 gether the thought that the appellate jurisdiction of the 
 Supreme Court of the United States over State Courts 
 includes any power to correct any alleged errors of the 
 State Courts in the determination and application of 
 State law. In all of such cases the writer of the opinion 
 rests the idea, just as Mr. Justice Moody rests it, upon 
 an inference from the proposition laid down in Murdock 
 v. Memphis, that Section 2 of the Act of February 5, 
 1867, in its present form, Section 709, R. S., limits the 
 Supreme Court of the United States in the exercise of its 
 appellate jurisdiction over State Courts, to a considera- 
 tion of the questions "mentioned in the Act." Is it a 
 legitimate inference from that proposition that the Act — 
 not the Constitution — • forbids the Supreme Court of 
 the United States, absolutely and in all cases, in the 
 exercise of its appellate jurisdiction over State Courts, 
 to examine and correct alleged errors of the State Courts 
 in the determination and application of State law? 
 
 An affirmative answer to that question requires the 
 laying down of the proposition that there is no question 
 "mentioned in the Act" the correct solution of which 
 throws upon the Supreme Court of the United States 
 the duty of examining and correcting alleged errors of 
 the State Courts in the determination and application of 
 State law. But that proposition cannot be laid down 
 as a sound proposition, consistent with the Constitution, 
 with the Act, and with decided cases, including Murdock 
 v. Memphis itself. 
 
 At the October term, 1879, in Virginia v. Rives, 8 and 
 
 6 100 U. S., 313, 318, 319. 
 
ENFORCEMENT OF STATE LAW 9 
 
 in Ex parte Virginia, 6 the Supreme Court of the United 
 States first enunciated the principle that the prohibition 
 of the Fourteenth Amendment — "Nor shall any State 
 deprive any person of life, liberty, or property, without 
 due process of law," — operates to restrain State Judges. 
 In Ex parte Virginia, on pp. 346 and 347, Mr. Justice 
 Strong, speaking for the Court, said: 
 
 That prohibition has "reference to actions of the political body 
 denominated a State by whatever instruments or in whatever 
 modes that action may be taken. A State acts by its egislative, 
 its executive, or its judicial authorities. It can act in no other 
 way. The constitutional' provision, therefore, must mean that no 
 agency of the State, or of the officers or agents by whom its powers 
 are exerted, shall" deprive any person of life, liberty, or property, 
 without due process of law. "Whoever, by virtue of public posi- 
 tion under a State Government, deprives another of property, life, 
 or liberty, without due process of law, . . . violates the con- 
 stitutional inhibition; and as he acts in the name and for the State, 
 and is clothed with the State's power, his act is that of the State. 
 This must be so, or the constitutional prohibition has no meaning." 
 
 This principle that the due process of law clause of the 
 Fourteenth Amendment operates to restrain State Judges 
 in the exercise of the judicial power of the State has been 
 reaffirmed often, and is now a fixed canon of constitu- 
 tional law. 7 
 
 Transposing this principle into terms of the constitu- 
 tional rights of citizens, it means that every citizen has a 
 right, title, or privilege, recognized, declared, and pro- 
 tected, but not granted or created, by the due process of 
 law clause of the Fourteenth Amendment, to have State 
 Judges, when adjudicating upon his private rights of life, 
 liberty, or property — "which include all civil rights 
 
 6 100 U. S., 339, 346, 347. 
 
 7 See Scott v. McNeal, 154 U. S., 34; C. B. & Q. R. Co. v. Chicago, 166 U. S., 
 226; Raymond v. Chicago Traction Co., 207 U. S., 20; and cases cited in the 
 opinions. 
 
10 CONSTITUTIONAL LAW 
 
 that men have" 8 — conduct themselves in conformity 
 to the requirement of due process of law; in short, it 
 declares and protects the citizen's immunity from law- 
 lessness, or want of due process of law, in State Courts. 9 
 
 Evidently, then, in a case in a State Court involving 
 matters of private right, depending for their solution 
 wholly upon a correct judicial determination and applica- 
 tion of State law, the question may arise on the due 
 process of law clause of the Fourteenth Amendment, 
 whether the State Judges, in arriving at their judgment, 
 broke through the restraint of due process of law. laid 
 upon them by that clause, or in other words, whether the 
 State Judges denied the right, title, privilege, or immun- 
 ity aforesaid. That that question may arise, and that, 
 when it does arise, it becomes one of the questions "men- 
 tioned in the Act" of February 5, 1867, Section 2, now 
 Section 709, R. S., and so falls within the appellate juris- 
 diction of the Supreme Court of the United States over 
 State Courts, was adjudged' in Scott v. McNeal 10 and in 
 Chicago, Burlington & Quincy R. Co. v. Chicago, 11 here- 
 inafter stated. 
 
 Does that question, namely, whether State Judges, 
 when passing upon matters of private right, broke through 
 the restraint of due process of law laid upon them by the 
 Fourteenth Amendment, or, in other words, denied the 
 right, title, privilege, or immunity, aforesaid, impose upon 
 the Supreme Court of the United States, in the exercise 
 of its appellate jurisdiction over State Courts, the duty 
 of examining and correcting alleged errors of the State 
 Courts in the determination and application of State 
 law? The solution of that must turn upon the true 
 
 8 Civil Rights Cases, 109 U. S., 1, 13, Bradley, J. 
 
 9 See Logan v. United States, 144 U. S., 263, Gray, J. 
 » 154 U. S., 34. 
 
 11 166 U. S., 276. 
 
ENFORCEMENT OF STATE LAW 11 
 
 meaning of due process of law as a restraint upon Judges 
 generally, when passing upon matters of private right, 
 and then upon whether that restraint, as applied to 
 Judges generally, has any different meaning when it is 
 applied to State Judges in particular in the Fourteenth 
 Amendment. 
 
 We must keep in mind the fixed differences between due 
 process of law as a restraint upon the Supreme Executive, 
 the Supreme Judges, and the Supreme Legislators, when 
 dealing, in their respective spheres, with the private 
 rights of life, liberty, or property. 
 
 Chapter 39 of Magna Charta said: 
 
 "No freeman shall be arrested or detained in prison, or deprived 
 of his freehold, or outlawed, or banished, or in any way molested; 
 and we will not set forth against him, nor send against him, unless 
 by the lawful judgment of his peers or by the law of the land (vel 
 per legem terrae)." 
 
 That restrained the King and the King's Judges — 
 "the King's substitutes" — "to render complete justice 
 to every individual." 12 The lex terrae of Magna Charta 
 that restrained the King and the Judges included the 
 whole body of the existing, established law of England, 
 common and statute. 13 There was a practical difference 
 in the way the lex terrae operated to restrain the King 
 and the Judges respectively. In a case between party 
 and party in a Court of Justice, if either party brought 
 
 12 1 Bl. Com., 266, 267. 
 
 13 In the Matter of Cavendish, 1 Anderson, 152, where Anderson, C. J., reports 
 how he, for all the Justices of the Common Bench, laid down the lex terrae to 
 Queen Elizabeth. All of which, he says, "her Majesty, as I have heard, well 
 accepted." Prohibitions Del Roy, 12 Co. Rep. 63, where Coke, C. J., tells how 
 he, "with the clear consent of all the Justices of England," laid down the lex 
 terrae to King James I. "With which the King was greatly offended, and said, 
 that then he should be under the Law, which was Treason to affirm, as he said ; 
 to which I said, that Bracton saith, Quod Rex non debet esse sub homine, sed 
 sub Deo & Lege." 
 
12 CONSTITUTIONAL LAW 
 
 forward by way of claim or defense an Act of the King, it 
 was the right and duty of the Judges to disregard it as null 
 and void, if it appeared to be repugnant to, or forbidden by, 
 the law of the land, common or statute. 14 But if the ulti- 
 mate Judges, in a case between party and party, did do an 
 act, that is to say, render a judgment, in disregard of the 
 existing, established law, common or statute, applicable to 
 the case, and the effect of that was to deprive a party of 
 rights of life, liberty, or property, the illegal act or judgment 
 of the ultimate Judges was binding upon the parties. Prac- 
 tically speaking, the aggrieved party had no remedy, cer- 
 tainly no judicial remedy. This species of extra legal quasi 
 prerogative of Judges to violate the law is commonly ex- 
 pressed by the rule that if a Court of Justice has jurisdiction 
 of the parties and of the subject-matter, its judgment on 
 the merits, right or wrong, binds the parties. 15 
 
 Coke says: "Nisi per legem terrae. But by the law 
 of the land. For the true sense and exposition of these 
 words, see the statute of 37 E. 3, Cap. 8, where the words 
 by the law of the land are rendered without due process 
 of law." 16 The usual provision in our Constitutions: 
 "No person shall be deprived of life, liberty, or property, 
 without due process of law," means: "No person shall 
 be deprived of life, liberty, or property, unless by the law 
 of the land." — Nisi per legem terrae. 17 
 
 14 Case of Monopolies, 11 Co. Rep., 846; Slaughter House Cases, 16 Wallace, 36,65. 
 
 15 See C. B. & Q. R. Co. v. Chicago, 166 U. S., 226, 234; Central Land Co. v. 
 Laidley, 159 U. S., 103, 112. The abuse of this judicial quasi prerogative in 
 the Case of Ship-Money, 3 How. St. Tr., 825, helped to bring Charles I to the 
 block, and in Godden v. Hales, Comberbach, 21, S. C, 2 Shower, 475, to drive 
 James II out of the country, and caused the provision in the Act of Settlement 
 in 1700 that "judges' commissions be made Quamdiu se bene gesserint, and their 
 salaries ascertained and established; but upon the address of both Houses of 
 Parliament it may be lawful to remove them." 
 
 16 2 Inst., 50. 
 
 "See Davidson v. New Orleans, 96 U. S., 97; Murray's Lessee v. Hoboken 
 L. & I. Co., 18 How., 272; Hurtado v. California, 110 U. S., 516, 520, et. seq. 
 
ENFORCEMENT OF STATE LAW 13 
 
 The lex terrae laid as a restraint upon United States 
 Judges by the clause in the Fifth Amendment of the 
 Constitution of the United States saying: "No person 
 shall ... be deprived of life, liberty, or property 
 without due process of law," is the whole body of the 
 existing, established law of the United States, and Article 
 VI, Clause 2, of the Constitution of the United States 
 expressly so says : "This Constitution, and the laws 18 of the 
 United States which shall be made in pursuance thereof; 
 and all treaties made, or which shall be made, under 
 the authority of the United States, shall be the supreme 
 law of the land." And the lex terrae laid as a restraint 
 upon State Judges by the same clause when it is found 
 in a State Constitution, as it usually is, is the whole 
 body of the existing, established law of the State, in- 
 cluding, of course, the laws of the United States, for 
 Article VI, Clause 2, supra, of the Constitution of the 
 United States concludes: "And the Judges in every State 
 shall be bound thereby, anything in the Constitution 
 or laws of any State to the contrary notwithstanding." 
 
 The above clause in an American Constitution lays 
 lex terrae as a restraint upon Legislators, as well as upon 
 Judges, when dealing with the private rights of life, 
 liberty, or property. But lex terrae laid as a restraint 
 upon Legislators by that clause includes only a very 
 small part of the lex terrae that restrains Judges, namely 
 a very few principles traditionally regarded as funda- 
 mental, much easier to think of and talk of than to write 
 down and apply. 19 
 
 And so in the United States, under the clause in our 
 Constitutions, "No person shall be deprived of life, 
 
 18 See In re Neagle, 135 U. S., 1, as to what is a law of the United States. 
 
 19 See Slaughter House Cases, 16 Wallace, 36; Hurtado o. California, 110 U. 
 S„ 516; Holden v. Hardy, 169 U. S., 366. And see Thayer, Evidence, 199-201, 
 for a discussion of lex terrae. 
 
14 CONSTITUTIONAL LAW 
 
 liberty, or property, without due process of law," or, in 
 other words, "unless by the law of the land," the law 
 of the land, or lex terrae, means one thing when applied 
 to restrain Legislators and another thing when applied 
 to restrain Judges. 20 
 
 If due process of law as a restraint upon Judges gener- 
 ally in England and the United States, when passing 
 upon matters of private right, means the whole body of 
 the existing, established law, and not that very limited, 
 extraordinary part of it that restrains Legislators, does 
 it have any different meaning when it is applied to State 
 Judges in particular, when passing upon matters of 
 private right, in the Fourteenth Amendment of the Con- 
 stitution of the United States? It is difficult to see how 
 it can be made out that it does. And the Supreme 
 Court of the United States has said that it does not. 
 In the Matter of Kemmler, 21 the Court, speaking by 
 Chief Justice Fuller, said : 
 
 "In the Fourteenth Amendment, the . . . words" due 
 process of law "refer to that law of the land in each State which 
 derives its authority from the inherent and reserved powers of the 
 State, exerted within the limits of those fundamental principles 
 of liberty and justice which lie at the base of all our civil and political 
 institutions." 22 
 
 The great, fundamental principle of liberty and justice, 
 
 20 The idea that some of the principles included in the phrase lex terrae are 
 so universal and eternal that even the English Parliament was forbidden to go 
 against them was, as is well known, the basis of the argument of Otis in Pax- 
 ton's case, relying largely on Coke, which argument foreshadowed our consti- 
 tutional law. See Quincy's Rep., 51, and note by Mr. Justice Gray, while at 
 the Bar, reprinted in Thayer's Cases on Const. Law, 48. Matthews, J., cites the 
 note in Hurtado v. California, 110 U. S., 516, 526. And see Thayer's Legal 
 Essays, 6, 7, and note 2. 
 
 » 136 U. S., 436. 
 
 22 And see Hurtado v. California, 110 U. S., 516; Leeper v. Texas, 139 U. S., 
 462; Marchant v. Pa. R. Co., 153 U. S., 380; Hodgson v. Vermont, 168 U. S.; 
 262; Bolln v. Nebraska, 176 U. S., 83. : 
 
ENFORCEMENT OF STATE LAW 15 
 
 not lying at the base, but constituting the base, of all our 
 civil and political institutions is the rule or supremacy of 
 law — the whole body of existing, established law, and 
 not merely that small, extraordinary part of it restrains 
 Legislators. 23 And it is that principle, above all others, 
 that State Judges are forbidden by the Fourteenth 
 Amendment to disregard in adjudicating upon the 
 private rights of citizens, and to protect and guard that 
 principle from invasion by State Judges to the injury 
 of a citizen in respect of his life, liberty, or property, is 
 one of the duties laid upon the Federal Government, in 
 all its departments, by the same Amendment — a 
 secondary duty to protect only — after the State, through 
 its Judges, fails to perform its primary like duty to pro- 
 tect its citizen in respect of his life, liberty, or property. 
 
 It seems plain, then, that the restraint of due process 
 of law laid upon State Judges in the Fourteenth Amend- 
 ment only provides the citizen with an additional security, 
 that State Judges, when passing upon his private rights, 
 will recognize and give effect to the existing, established 
 State law applicable to the private rights in question, by 
 enabling him, when injured in respect of his life, liberty, 
 or property, by their failure to do so, whether through 
 
 23 "Two features have at all times since the Norman Conquest characterized 
 the political institutions of England. The first of these features is the omnipo- 
 tence or undisputed supremacy throughout the whole country of the central 
 government. . . . The second of these features, which is closely connected 
 with the first, is the rule or supremacy of law. This peculiarity of our polity 
 is well expressed in the old saw of the courts, "La ley est le plus haute inheri- 
 tance, que le roy ad; car par la ley, il meme et toutes ses sujets sont rules, et 
 si la ley ne fuit, nul roi, et nul inheritance sera." — Dicey, Law of the Const., 
 4th ed., c. IV., 173. 
 
 See Article VI, Sec. 1, CI. 2, Constitution of the United States. All of our 
 written Constitutions, State and Federal, in all their parts, are designed to put 
 everybody sub Deo et Lege, as Bracton put it in note 13, supra, or, as it was 
 phrased later by Harrington and incorporated into some of our State Consti- 
 tutions, "to the end it may be a government of laws and not of men." See 135 
 U. S., 744, per Miller, J. 
 
16 CONSTITUTIONAL LAW 
 
 want of scientia only, or through want of bona fides as 
 well, to invoke the aid of the Government of the United 
 States, particularly its Judicial Department, to correct 
 and undo the wrong unwittingly or wittingly done. 
 And Scott v. McNeal 24 decides, I think, that the aid of 
 the Supreme Court of the United States may be invoked 
 by him under Section 709, R. S. 
 
 In that case, the matter in dispute was the ownership 
 of a parcel of land in the State of Washington. Scott 
 originally owned the land. Upon averment and proof 
 that Scott had been absent and unheard of for over seven 
 years, a Probate Court of the State found that Scott was 
 "dead to all legal intents and purposes," and issued 
 letters of administration upon Scott's estate to a judg- 
 ment creditor of Scott. Under these letters the parcel of 
 land in question was sold at public auction to one Ward, 
 and by him sold to McNeal. Scott was in fact alive, 
 and never had any notice of the probate proceedings until 
 he reappeared, when he demanded his land from McNeal 
 and filed an action of ejectment in a State Court to get 
 it. The questions in the case arose upon objections by 
 Scott to the admission in evidence of the proceedings in 
 the Probate Court,, the ground of his objections being 
 that they were absolutely void, because no administra- 
 tion on the estate of a live man could be valid, and the 
 Probate Court had no jurisdiction to order the sale of 
 the land. The Trial Court held the probate proceedings 
 valid and admitted them in evidence. On appeal to the 
 Supreme Court of the State it was argued in Scott's be- 
 half "that to give effect to the probate proceedings under 
 the circumstances would be to deprive him of his property 
 without due process of law." But the Supreme Court 
 of the State held the probate proceedings to be valid as 
 
 " 154 u. s., 34. 
 
ENFORCEMENT OF STATE LAW 17 
 
 against Scott on a collateral attack and affirmed the 
 judgment of the trial Court. 
 
 The grounds upon which the -State Supreme Court 
 rested its judgment are stated by Mr. Justice Gray on 
 pp. 44-45 of 154 U.S., thus: 
 
 "The grounds of the judgment of the Supreme Court o r the State 
 of Washington in the case at bar, as stated in its opinion, were that 
 the equities of the case appeared to be with the defendants; that 
 the court was inclined to follow the case of Roderigas r. East River 
 Sav. Inst., 63 N. Y., 460, 26 and that, under the laws of the terri- 
 tory, the probate court, on an application for letters of adminis- 
 tration, had authority to find the fact as to the death of the inter- 
 state; the court saying: 'Our statutes only authorize administra- 
 tion of the estate of deceased persons, and before granting letters 
 of administration the court must be satisfied by proof of the death 
 of the intestate. The proceeding is substantially in rem, and all 
 parties must be held to have received notice of the institution 
 and pendency of such proceedings, where notice of such proceedings 
 is given as required by law. Section 1299 of the 1881 Code gave 
 the Probate Court exclusive original jurisdiction in such matters, 
 and authorized such court to summon parties and witnesses, and 
 examine them touching any matter in controversy before said 
 court or in exercise of its jurisdiction.' " 
 
 At the end of this statement, the learned Justice said: 
 
 'Such were the grounds upon which it was held that the plain- 
 tiff had not been deprived of his property without due process of 
 law. 5 Wash. St., 309, 317, 318." 
 
 Scott took the case to the Supreme Court of the United 
 States by writ of error under Sec. 709, R. S., and the error 
 he assigned was "that the probate proceedings, as re- 
 garded him and his estate, were without jurisdiction 
 over the subject-matter, and absolutely void; and that 
 
 25 Decided in 1875, and said by Gray, J., on p. 43, to be one of the two "only 
 judicial opinions cited at the bar (except the judgment below in the present case) 
 which tend to support the validity of letters of administration upon the estate 
 of a living person." 
 
18 CONSTITUTIONAL LAW 
 
 the judgment of the Supreme Court, and the judgment 
 of the Supreme Court of the State affirming that judg- 
 ment, deprived him of his property without due process 
 of law, and was contrary to the Fourteenth Amendment 
 of the Constitution of the United States." The Supreme 
 Court of the United States took jurisdiction, reviewed 
 the whole case, reversed the judgment of the Supreme 
 Court of the State of Washington and remanded the case 
 to that Court for further proceedings not inconsistent with 
 the opinion of the Supreme Court of the United States. 
 
 The case turned entirely upon a correct determination 
 of questions of State law; namely: (1) Whether letters 
 of administration issued by a Probate Court of the State, 
 authorized to administer the estates of dead persons only, 
 upon the estate of a person who is in fact alive, have any 
 validity or effect as against him. (2) Whether the State 
 statutes authorized the Probate Court to administer 
 the estate of a living absentee upon the basis of a judicial 
 finding of death from proof that the living absentee was 
 unheard of for over seven years. 
 
 As respects the first question, Mr. Justice Gray said: 
 
 "By the law of England and America, before the Declaration 
 of Independence, and for almost a century afterwards, the abso- 
 lute nullity of such letters was treated as beyond dispute." 
 
 And as respects the second question: 
 
 'The local law on the subject, contained in the Code of 1881 of 
 the Territory of Washington, in force art the time of the proceed- 
 ings now in question, and since continued in force by article 27, 
 section 2, of the Constitution of the State, does not appear to us 
 to warrant the conclusion that the Probate Court is authorized 
 to conclusively decide, as against a living person, that he is dead, 
 and his estate therefore subject to be administered and disposed 
 of by the Probate Court." 
 
 A determination of a rule of the common law and a 
 determination of the meaning of a State statute by the 
 
ENFORCEMENT OF STATE LAW 19 
 
 highest Court of a State were held to be wanting in due 
 process of law, because the law was against the State 
 Court so plainly and palpably as not to admit of rational 
 and sane legal discussion. The State Court's disposition 
 of the case involved an exertion of the legislative power 
 of the State to make and apply a rule that would reach 
 and hit Scott, and thus give effect to the personal views 
 of the State Judges that "the equities of the case appeared 
 to be with" Scott's adversaries, no provision being made, 
 as none could be made, by the State Court, to safeguard 
 the rights of other absentees on their return. The full 
 force and effect of the decision as enforcing upon the 
 State Courts of Washington a due observance of existing, 
 established rules of the ordinary common law and statute 
 law of the State included in the lex terrae, as distinguished 
 from the extraordinary part of the lex terrae that restrains 
 Legislators, is made manifest by the opinion of Mr. 
 Justice White in the subsequent case of Cunnius v. Read- 
 ing School District, 26 wherein the whole Court agreed 
 that "the Pennsylvania statute of 1885, Public Laws, p. 
 155, providing for the administration of the property 
 of persons absent and unheard of for seven or more 
 years, is a valid enactment, and is not repugnant to the 
 Fourteenth Amendment because it deprives the absentee 
 of his property without due process of law," and that 
 Scott v. McNeal was sound and consistent with the 
 present ruling. 
 
 It may, perhaps, be urged that though the questions 
 of common and statute State law involved in Scott v. 
 McNeal went to, and controlled, the merits of the action 
 of ejectment under consideration, yet they really were 
 questions of State law governing the jurisdiction of the 
 State Probate Court, and that the part of the ordinary, 
 
 26 198 U. S., 458. 
 
20 CONSTITUTIONAL LAW 
 
 existing, established law of a State governing the juris- 
 diction of its Courts may very well be held to be pro- 
 tected by the due process of law clause of the Fourteenth 
 Amendment from invasion and overthrow by State 
 Judges to the injury of a citizen in respect of his life, 
 liberty, or property, and that the ordinary, existing, 
 established law of the State governing the merits of con- 
 troversies concerning life, liberty, or property, may be 
 held to be left unprotected by that clause. In other 
 words, that the clause controls the results of the delibera- 
 tions of State Judges over their power, under the State 
 law, to deliberate at all over the merits, but leaves the 
 results of their deliberations over the merits uncon- 
 trolled. The very statement of the supposed diversity 
 refutes it. And Chicago, Burlington & Quincy R. Co. 
 v. Chicago, 27 lays the supposed diversity to rest. There 
 condemnation proceedings by Chicago to put a street 
 across a railroad track resulted in a judgment of just 
 compensation in favor of the railroad in the sum of one 
 dollar in the Supreme Court of Illinois. The judgment 
 was assailed by the railroad in the Supreme Court of the 
 United States under Section 709, R, S., as having been 
 rendered in disregard of (1) the provision of the Illinois 
 Constitution that "private property shall not be taken 
 or damaged for public use without just compensation," 28 
 and (2) of the alleged principle of the extraordinary lex 
 terrae restraining Legislators that private property taken 
 for public use must be paid for, and was, therefore, ren- 
 dered without due process of law under the Fourteenth 
 Amendment. The Court disposed of the question of 
 its appellate jurisdiction on the assumption that the 
 above provision was not in the Constitution of Illinois, 
 
 27 166 U. S., 226. 
 
 28 Illinois Constitution, Art. II, Sec. 2. 
 
ENFORCEMENT OF STATE LAW 21 
 
 and also on the assumption that an Illinois statute ex- 
 pressly authorized private property to be taken for public 
 use without just compensation, and decided that the 
 rule that private property shall not be taken for public 
 use without just compensation is "a settled principle of 
 universal law, reaching back of all constitutional pro- 
 visions," and therefore is included in the phrase due 
 process of law in the Fourteenth Amendment. 29 In 
 reply to the point of counsel that the railroad company 
 had due notice, appeared and defended in the State 
 Court, and therefore the one dollar State judgment was 
 ■not wanting in due process of law, the Court, speaking 
 by Mr. Justice Harlan, said: 
 
 "But a State may not, by any of its agencies, disregard the pro- 
 hibition of the Fourteenth Amendment. Its judicial authorities 
 may keep within the letter of the statute prescribing forms of 
 procedure in the Courts and give the parties interested the fullest 
 opportunity to be heard, and yet it might be that its final action 
 would be inconsistent with that Amendment. In determining 
 what is due process of law, regard must be had to substance, and 
 not to form." 
 
 That is to say, the judgment of a State Court on the 
 merits must be tested by the settled, applicable rules 
 of law, and if, so tested, the judgment appears to be 
 stone, and not bread, it must be vetoed by the Supreme 
 Court of the United States in the exercise of its appellate 
 jurisdiction over State Courts under the Fourteenth 
 Amendment and under Section 709, R. S. 30 
 
 29 Notice that the provision in the Illinois Constitution ("taken or damaged") 
 is more extensive than the principle of universal law laid down "(taken"). 
 See Chicago v. Taylor, 125 U. S., 161. 
 
 30 While considering Chicago, Burlington & Quincy R. Co. v. Chicago, it is 
 well to remember that prior to the Fourteenth Amendment the judgment of 
 the Illinois Supreme Court would have been final and not reviewable by any 
 Judicial Tribunal. See Barron v. Baltimore, 7 Pet., 243. The same is true of 
 the State judgment in Scott v. McNeal. While perhaps prior to the Fourteenth 
 Amendment, the probate proceedings in Scott v. McNeal couW have come inlo 
 
22 CONSTITUTIONAL LAW 
 
 In Raymond v. Chicago Traction Co., 31 Mr. Justice 
 Holmes, dissenting, said: 
 
 "We all agree, I suppose, that it is only in most exceptional cases 
 that a State can be said to deprive a person of his property without 
 due process of law merely because of the decision of a court with- 
 out more. The discussion in Chicago, Burlington & Quincy R. R. 
 Co. v. Chicago, 166 U. S., concerned a judgment assumed to be 
 authorized by a statute of the State, and in that case the judgment 
 of the state court was affirmed, so that no very extensive conclu- 
 sion can be drawn from it." 
 
 That statement was made by way of criticism of the 
 majority opinion of Mr. Justice Peckham. As such, 
 it seems to me to be correct enough. The jurisdiction 
 in question in that case was the original jurisdiction 
 of the Circuit Court of the United States over cases 
 "arising under the Constitution and laws of the United 
 States," under Section 1 of the Judiciary Act of 1887-8, 
 and not the appellate jurisdiction of the Supreme Court 
 of the United States over State Courts under Section 
 709, R. S. It is difficult to see how, in any case, under 
 existing Congressional legislation, the principle that 
 the due process of law clause of the Fourteenth Amend- 
 ment restrains State Judges can be used to sustain the 
 original jurisdiction of the Circuit Court. That Amend- 
 ment authorizes negative action only by the Federal 
 Government after the State has acted, when, only, the 
 final result of its action may be seen and judged. But 
 the fact that the Court, by a vote of seven to two, did 
 
 the Supreme Court of the United States in a roundabout way on the question 
 of their effect in other States under the Full Faith and Credit Section, and the 
 Act of Congress of 1790, now R. S., Sec. 905, yet there can be no doubt that the 
 State decision in Scott v. McNeal would have been conclusive as to their effect 
 in other States, because the point concerning the jurisdiction of the Probate 
 Court went to its jurisdiction in the local sense, and not in the international 
 sense, of the word jurisdiction. See Cunnius v. Reading School District, supra, 
 and the part of the opinion in Scott v. McNeal, 154 U. S., on p. 45, last paragraph . 
 81 207 U. S., 20. 
 
ENFORCEMENT OF STATE LAW 23 
 
 see a way to use the above principle to sustain the 
 original jurisdiction of the Circuit Court in Raymond 
 v. Chicago Traction Company indicates that the Court 
 is inclined favorably to enforcing the citizen's immunity 
 from lawlessness, or want of due process of law, in 
 State Courts, in cases involving rights of life, liberty, or 
 property. 
 
 Turning to Murdock v. Memphis, 32 the whole of the 
 foundation of the view that the Supreme Court of the 
 United States cannot concern itself with the administra- 
 tion of State law by State Courts, it will be noticed that 
 it was first argued January 21, 1873, reargued April 2, 
 1873, and held under advisement nearly two years, the 
 opinion coming down January 11, 1875. The Slaughter 
 House Cases, 33 in which the Court was called on for the 
 first time to give a construction to Section 1 of the Four- 
 teenth Amendment as a restraint on State Legislatures, 
 was first argued January 11, 1872, reargued February 3, 
 4, and 5, 1873, and decided April 14, 1873. In the state- 
 ment of Murdock v. Memphis, apparently made by Mr. 
 Justice Miller, on p. 592 reference is made only to the 
 first prohibition in Section 1 of the Fourteenth Amend- 
 ment, namely: "No State shall make or enforce any law 
 which shall abridge the privileges or immunities of 
 citizens of the United States." The majority opinion of 
 Mr. Justice Miller in the Slaughter House Cases proceeds 
 on the footing that the whole substance of Section 1 of 
 the Fourteenth Amendment was comprehended in that 
 first prohibition, scarcely touches the succeeding two 
 prohibitions, namely: (1) "Nor shall any State deprive 
 any person of life, liberty, or property, without due process 
 of law"; (2) "Nor deny to any person within its juris- 
 
 32 20 Wallace, 590. 
 33 16 Wallace, 36. 
 
24 CONSTITUTIONAL LAW 
 
 diction the equal protection of the laws," and decides 
 that the said first prohibition restrained only the making 
 and enforcing by States of laws abridging the privileges 
 or immunities of men, ^— as citizens of the United States, 
 and not as citizens of a State, which decision stands. 34 
 But when, in 1879, the Court decided that those two 
 prohibitions applied to State Judges, and that, conse- 
 quently, every citizen's immunity from lawlessness, or 
 want of due process of law, in State Courts, was under 
 the shield of the United States, the question whether 
 the highest Court of a State, in adjudicating upon private 
 rights, denied that immunity, naturally and easily became 
 one of the questions "mentioned in the Act" of February 
 5, 1867, Section 2, now Section 709, R. S., and so within 
 the appellate jurisdiction of the Supreme Court of the 
 United States over State Courts; and Murdock v. Mem- 
 phis itself so decides. 
 
 And Mr. Justice Moody's denial in Sauer v. New York 
 of power in the Supreme Court of the United States in 
 the exercise of its appellate jurisdiction over State Courts 
 under Section 709, R. S., to review and correct alleged 
 errors of the State Courts in the determination and appli- 
 cation of State law, seems to me to be opposed directly 
 by the judgment in the case of Sauer v. New York itself. 
 In the previous cases of Muhlker v. Harlem R. R. Co., 35 
 Birrell v. Harlem R. R. Co. 36 and Kierns v. Harlem R. R., 36 
 the Court decided, by a vote of five to four, McKenna, 
 J., writing the opinion, and Holmes, J., the dissenting 
 opinion, Brown, J., concurring only in the result of the 
 opinion of McKenna, J., that judgments of the Courts 
 of New York refusing to give land owners, whose land 
 abutting on a street was damaged by the erection of a 
 
 « Maxwell v. Dow, 176 U. S., 561. 
 » 197 U. S., 544. 
 39 198 U. S„ 390. 
 
ENFORCEMENT OF STATE LAJV 25 
 
 steel viaduct in the street in front of the land by a steam 
 commercial railroad, the benefit' of. the doctrine of the 
 New York Elevated Railroad Cases, were wanting in due 
 process of law under the Fourteenth Amendment, and, 
 therefore, void. There the Court, unquestionably, did 
 review and correct alleged errors of the New York Courts 
 in the determination and application of State law, and 
 imposed upon the New York Courts its own view of the 
 law of New York. In Sauer v. New York, Sauer claimed 
 that a judgment of the New York Courts refusing him 
 compensation for damage to his land abutting on a 
 street, caused by the erection of a viaduct in the street 
 in front of his land by the City of New York, was wanting 
 in due process of law, and, therefore, void, under the 
 Fourteenth Amendment, because rendered in disregard 
 of the law of New York as declared in the New York 
 Elevated Railroad Cases. The Court, by a vote of 
 seven to two, McKenna, J., writing a dissenting opinion, 
 decided that the judgment of the New York Courts 
 refusing to give Sauer the benefit of the doctrine of 
 the New York Elevated Railroad Cases was not want- 
 ing in due process of law, and said that its judgment 
 in Sauer's Case is consistent and reconcilable with its 
 judgments in the cases of Muhlker, Birrell, and Kierns. 
 But how can the judgment in Sauer's Case be con- 
 sistent and reconcilable with the cases of Muhlker, 
 Birrell, and Kierns except upon the theory that the Court 
 did review for itself the determination and application 
 by the New York Courts of the New York law, and 
 did conclude for itself that the New York Courts deter- 
 mined and applied the New York law correctly? Do not 
 these recent cases growing out of the New York Elevated 
 Railroad Cases furnish additional and cogent proof that 
 the power of the Supreme Court of the United States, in 
 the exercise of its appellate jurisdiction over State Courts, 
 
26 CONSTITUTIONAL LAW 
 
 to decide for itself independently questions of State law, 
 exists? 37 
 
 The only question of substantial law under Section 
 709, R. S., 38 left open, therefore, is: What constitutes 
 
 37 Whether, in a given case, the Court decided the questions right is another 
 and very different matter. I think that Sauer's Case was decided right, and 
 that the cases of Muhlker, Birrell, and Kierns were decided wrong. If those 
 cases had gone up from Illinois, or from any other State, whose Constitution 
 or statutes provided that "private property shall not be taken or damaged for 
 public use without just compensation," the whole Court doubtless would have 
 reversed the State's judgments refusing compensation. The truth is, I think 
 the Supreme Court believes the New York Court of Appeals went against estab- 
 lished principles of law in the Elevated Railroad Cases, and exerted, not the power 
 of the New York Legislature merely, but the sovereign power of the people of 
 New York, acting in a Constitutional Convention and at an election to ratify 
 the work of the Convention, to reach a desirable result. What Sauer wanted 
 and did not get, and what Muhlker, Birrell, and Kierns wanted and did get 
 was an order from the Supreme Court of the United States compelling the New 
 York Courts to again violate the law of the State so as to make their violation 
 of State law equal and uniform. See the dissenting opinion of Holmes, J., in 
 Muhlker's Case. In Raymond v. Chicago Traction Co., supra, the Court did 
 compel tax assessors of Illinois to violate the State tax laws for the benefit of 
 the parties to that case, because the assessors had violated it for other parties 
 similarly situated in relation to the State's taxing power. But I suppose equality 
 and uniformity in State judicial and executive violation of State law is due 
 process of law only when it comes to valuing property for taxation, where, as 
 Mr. John Fiske says in the first chapter of his "Civil Government in the United 
 States,'' the rule that it takes five quart bottles to make a gallon, uniformly 
 applied, makes the taxpayers feel better. 
 
 In Muhlker's Case, on p. 574, Holmes, J., says: "I know of no constitutional 
 principle to prevent the complete reversal of the Elevated Railroad Cases to- 
 morrow, if it should seem proper to the Court of Appeals. See Central Land Co. 
 v. Laidley, 159 U. S., 103." Can the Supreme Court of the United States now 
 reverse the rule they lay down? If the judgments had been taken up when they 
 were rendered, I do not see why, under these later cases, the Court could not then 
 have reviewed and reversed them. Possibly the rule of the Elevated Railroad 
 Cases could be regarded as a part of the New York Constitution. But on that 
 view the decision in Sauer's Case is wrong, I think. 
 
 38 As to the way to raise the question, see the way it was done in Scott v. McNeal, 
 154 U. S., 34, and in C. B. & Q. R. Co. v. Chicago, 166 U. S., 226. In a contested 
 case each party is always specially setting up and claiming his immunity from 
 want of due process of law. There ought not to be any charm in the use of 
 the words "without due process of law." If the question is in the record, the 
 absence of those words ought not to be held to take it out. And if it is not in the 
 record, their presence cannot put it in. 
 
ENFORCEMENT OF STATE LAW 27 
 
 lawlessness, or want of due process of law, in State Courts 
 in cases involving rights of life, liberty, or property? In 
 the face of Scott v. McNeal, it cannot be confined to a 
 non-observance or disregard of those extraordinary prin- 
 ciples that make up the part of the lex terrae that restrains 
 Legislators, for, as above stated, it was there decided 
 that an error of a State Court in the determination and 
 application of a rule of the common law, alterable by 
 the State Legislature, and an error of a State Court in 
 the construction and application of a State statute, both 
 so plain and palpable as not to admit of fair legal discus- 
 sion, constituted lawlessness, or want of due process of 
 law. 39 A substantial, practical, working difference be- 
 tween error, even reversible error, in a State Court's 
 determination and application of State law, and lawless- 
 ness or want of due process of law, in a State Court's 
 determination and application of State law, may be con- 
 ceded. 40 But when a State Court disregards or misap- 
 plies established principles of State law and makes John 
 Doe suffer for the commonwealth's sake, the cases show, 
 I think, that its action may be vetoed by the Supreme 
 Court of the United States. 
 
 The recent Illinois decisions in Illinois Glass Co. v. 
 Chicago Telephone Co., 41 criticized in a note in this 
 
 39 In Bradley v. Lightcap, 195 U. S., 1, the fundamental ground of reversal, 
 under the Fourteenth Amendment, was that the Court did not agree with the 
 Illinois Court's view of the meaning and application of a State statute, though 
 the Court accepted the Illinois Court's view of the statute and held the" statute 
 was constitutional. 
 
 40 See Leathe v. Thomas, 207 U. S., 93. "But Courts often have to recognize, 
 especially in the region of constitutional law, that there is more than one reason- 
 able and allowable interpretation of a thing." Thayer's Legal Essays, Essay 
 entitled: "Gelpcke v. Dubuque; Federal and State Decisions," 141, 150, i. e., 
 under the obligation of contracts clause, where the Federal Supreme Court 
 always has decided questions of State law for itself. 
 
 «234 III., 535. 
 
28 CONSTITUTIONAL LAW 
 
 number of the Review, 42 and the recent Massachusetts 
 decision in Old Dominion Copper Mining & Smelting 
 Co. v. Bigelow, 43 directly contradicted by the recent 
 decision of the Supreme Court of the United States in 
 Old Dominion Copper Mining & Smelting Co. v. Lewi- 
 sohn, 44 may be cited as types of State decisions enunci- 
 ating and applying rules of the State law fairly open to 
 challenge as being rendered in disregard of the restraint 
 of due process of law laid upon State Judges by the due 
 process of law clause of the Fourteenth Amendment. 
 
 In the Illinois case, involving the ownership of a sum 
 of money, the highest Court of the State rules that, where 
 the rates chargeable for telephone service are fixed by 
 law, and the law prohibits the charging of higher rates, 
 a man who is given his choice by a telephone company 
 bound by the law between paying an illegal overcharge 
 of fifty dollars a year and giving up the use of a tele- 
 phone, 45 and who elects to pay, and does pay, the illegal 
 overcharge; parts with his money voluntarily, and, 
 therefore, the telephone company may keep it as against 
 the man who paid it. According to the note above 
 mentioned in this number of the Review, it has been 
 the law for over a century, not open to fair dispute, that 
 a man who parts with his money under such circum- 
 stances may get it back. What difference, then, is there 
 between this Illinois case and Scott v. McNeal, supra? 
 
 The Massachusetts case also involved the ownership 
 of a sum of money. The highest Court of the State 
 
 42 [3 111. Law Rev., 235.] 
 
 43 188 Mass., 315. 
 
 "210 U. S., 206; 28 Sup. Ct. Rep., 634. 
 
 45 In the case it appears the company offered a "grounded circuit" telephone 
 at the legal rate, but this was an illusory offer, and was so adjudged in People v. 
 Chicago Tel. Co., 220 111., 238, not helpful, and if anything, damaging, to the 
 company's claim of right to keep the illegal overcharges. 
 
ENFORCEMENT OF STATE LAW 29 
 
 • 
 
 decided that a sale of property to a corporation by its 
 promoters, at a large profit, while they owned all the 
 stock in the corporation, the corporation not being repre- 
 sented in the negotiations by independent persons but 
 by the promoters themselves or their nominees, the pro- 
 moters contemplating at the time of the sale and purchase 
 a large issue of stock — 20,000 shares, or two-fifteenths 
 of the whole — to the public as original subscribers, could 
 be avoided in equity by the corporation, after the public 
 came in, though, admittedly, the corporation could not 
 avoid the sale before the public came in, and though, 
 admittedly, the avoidance of the sale by the corporation 
 would benefit the owners of thirteen-fifteenths of the 
 stock to which blame for the transaction attached, just 
 as much as it would benefit the public who owned the 
 20,000 shares, or two-fifteenths of the stock, to which no 
 blame for the transaction attached. 
 
 According to the Supreme Court of the United States, 
 this Massachusetts decision is just as repugnant to estab- 
 lished principles of the common law as the above Illi- 
 nois decision is said to be in the note above mentioned 
 in this number of the Review, but for a somewhat 
 different reason. In Old Dominion Copper Mining & 
 Smelting Co. v. Lewisohn, a case arising out of the same 
 facts as the Massachusetts case, begun in the Circuit 
 Court of the United States for the Southern District of 
 New York, and coming up on writ of certiorari to the 
 United States Circuit Court of Appeals for the Second 
 Circuit, the Supreme Court of the United States reached 
 a conclusion directly opposed to that reached by the 
 Massachusetts Supreme Judicial Court, and, having the 
 Massachusetts decision before it, said that it could not 
 reach a different conclusion without making "a strictly 
 legislative determination." The words of the whole 
 Court, written by Mr. Justice Holmes, are as follows: 
 
30 CONSTITUTIONAL LAW 
 
 "Of course, it is competent for legislators, but not, we think, 
 for judges, except by a quasi legislative declaration, to establish 
 that a corporation shall not be bound by its assent in a transaction 
 of this kind, when the parties contemplate an invitation to the 
 public to come in and join as original subscribers for any portion 
 of the shares. It may be said that the corporation cannot be 
 bound until the contemplated adverse interest is represented, 
 or it may be said that promoters cannot strip themselves of the 
 character of trustees until that moment. But it seems to us a 
 strictly legislative determination. It is difficult, without inventing 
 new and qualifying established doctrines, to go behind the fact 
 that the corporation remains one and the same after once it really 
 exists. When, as here, after it really exists, it consents, we at 
 least shall require stronger equities than are shown by this bill 
 to allow it to renew its claim at a later date because its internal 
 constitution has changed." 
 
 "A strictly legislative determination," and a retro- 
 active application, of State law by a State Court when 
 adjudicating upon private rights is, of course, without 
 due process of law. 46 
 
 Does the Supreme Court of the United States lack the 
 power to review and reverse either the above Illinois 
 decision, or the above Massachusetts decision? I think 
 not. 47 If it is the law that any kind of a new proposition 
 
 46 See Scott v. McNeal, and Cumins ». Reading School District, supra; Con- 
 stitution of the United States, Article IV, Section 1, Clause 2; Constitution of 
 Massachusetts, Part I, Article 30. And see the sixth assignment of error and 
 the observations of Moody, J., upon it in Londoner v. Denver, 210 U. S., 373; 28 
 Sup. Ct. Rep., 708, 711. But see Dreyer v. Illinois, 187 U. S„ 71, 83-84, Harlan, J. 
 
 47 In Abbott v. Tacoma Bank of Commerce, 175 U. S., 409, 413, on a motion to 
 dismiss or affirm, the Court refused to dismiss, deciding that it had jurisdiction 
 under the due process of law clause of the Fourteenth Amendment and under 
 Section 709, R. S., to review a judgment of the Supreme Court of the State of 
 Washington dismissing plaintiff's action for damages for alleged defamatory 
 words in a pleading in a lawsuit. (20 Wash., 552) The motion to affirm was 
 allowed, and was dealt with as raising two questions: (1) Is reputation prop- 
 erty, as against a State Legislature, semble? (2) Did the judgment of the Wash- 
 ington Court deprive plaintiff of his reputation? The true questions for con- 
 sideration were, it is submitted: (1) Under the established law of Washington, 
 existing at the time of the pleading in question, did plaintiff have a cause of ac- 
 
ENFORCEMENT OF STATE LAW 31 
 
 of State law, or any kind of a new application of an old 
 proposition of State law that goes, or is put through the 
 highest Court of a State, stands and sticks, immune from 
 attack by the victim in respect of his life, liberty, or 
 property, in the Supreme Court of the United States and 
 from overthrow by that Court, it must not be forgotten 
 that the sole and only foundation of that law is the Act 
 of Congress, Section 709, R. S., limiting the appellate 
 jurisdiction of the Supreme Court of the United States 
 over State Courts, and that the Act may be altered 
 and amended. 48 
 
 The reports show that writs of error to the highest 
 Courts of the States, based upon the assigned error that 
 the decision of the State Court upon a point of State law, 
 ex proprio vigore, without reference to any State Legis- 
 lative Act, deprived the complaining party of his life, 
 
 tion ex delicto? (2) Was that cause of action property, as against the Courts 
 of Washington? (3) Did the State Court so far disregard, and refuse to give 
 effect to, the established law of Washington that its judgment was without 
 due process of law, i. e., repugnant to the law of the land in Washington. 
 
 Subsequently, in Wade v. Bank, 114 Fed. Rep., 377, Hanford, J., decided 
 that the law of Washington does give an action for damages for defamatory 
 words in a pleading in a lawsuit. How can two laws of the land co-exist on 
 that question in a State like Washington, admitted after the Fourteenth Amend- 
 ment, expressly adopting the common law as the rule of decision? See Scott v. 
 McNeal, 154 U. S., 34, 47; Wade v. Bank, 114 Fed. Rep., 377, 379. 
 
 Judge Alton B. Parker ought to have pursued his subject — "The Common 
 Law Jurisdiction of the United States Courts," 17 Yale Law Journal, 1 — logic- 
 ally out to the point of considering whether the American people have not lodged 
 in the Supreme Court of the United States authority to protect the "common 
 law,'' or "common justice,'' from disintegration, chaos, and destruction at the 
 hands of State Judges. 
 
 Take a general substitution of Statute Law for Common Law, like the uni- 
 form Negotiable Instruments Law, for example: Have we forty-seven final 
 judicial interpreters of that Law, or only one? In other words, have we forty- 
 seven different kinds of the reason of mankind in the United States inside the 
 Courts, or only one? See Mr. Amasa M. Eaton's review of State decisions under 
 that Law in 31 Reports of American Bar Association, 1164, and at the last (1908) 
 meeting at Seattle, now in pamphlet form, and to appear in 32 Reports of 
 American Bar Association. 
 
 48 See Murdock v. Memphis, 20 Wallace, 590; Ex parte Virginia, 100 U. S., 339. 
 
32 CONSTITUTIONAL LAW 
 
 liberty, or property, without due process of law, are 
 becoming more and more frequent. Such cases are 
 tending toward an overt of struggle for supremacy between 
 the oft-repeated judicial declaration, resting on the 
 opinion of Mr. Justice Miller in Murdock v. Memphis, 
 that, under the due process of law prohibition of the 
 Fourteenth Amendment, the Supreme Court of the United 
 States has nothing whatever to do with the way the State 
 Courts deal with the State law, but must accept the 
 determination and application of it by the State Courts 
 as final, binding, and conclusive, and the established 
 constitutional principle that the due process of law 
 prohibition of the Fourteenth Amendment restrains State 
 Judges. The effort of Mr. Justice Moody in Sauer v. New 
 York, supra, to prove that the supremacy rightfully belongs 
 to that judicial declaration overlooks completely that com- 
 peting constitutional principle, not in the mind of Mr. 
 Justice Miller in Murdock v. Memphis, and so, with due 
 respect, as I have tried to show, supra, goes round and 
 round in a circle, proving nothing. 49 
 
 49 The opinion of Mr. Justice Miller in Murdock v. Memphis should be read 
 not only in connection with his opinion in the Slaughter Houses Cases, 16 Wal- 
 lace, 36, but also in connection with his opinion in Davidson v. New Orleans, 96 
 U. S., 97. This latter opinion is often cited (see Rose's Notes under Davidson v. 
 New Orleans), but it is a loose opinion and many of the assertions on pp. 105-106, 
 where the opinion gets down to the case in hand, have been either overruled or 
 qualified. See C. B. & Q. R. Co. v. Chicago, 166 U. S., 226; Norwood v. Baker, 
 172 U. S., 269, as explained in French & Barber Asphalt Paving Co., 181 U. S., 
 324; Dewey v. Des Moines, 173 U. S., 193. 
 
 It is not likely now that a majority ever could arise in Congress so wrong- 
 headed, intolerant and arbitrary as to undertake to act on the principle that 
 the last Amendments of the Federal Constitution authorize the Federal Govern- 
 ment to protect the black citizens of a State by the affirmative method and 
 process of killing and robbing the white citizens, or vice versa. Mr. Justice 
 Miller, though generally sound as to his results, was not always careful in his 
 enunciation of the principles on which to rest them, and the reports furnish ample 
 reasons for the lament attributed to Mr. Justice Gray in 17 Yale Law Jour- 
 nal on p. 429 "that a mind of such power and aptitude (as Mr. Justice Miller's) 
 had not been duly grounded in the law." 
 
ENFORCEMENT OF STATE LAW 33 
 
 There can be little doubt that the repeated emphatic 
 judicial declaration of Federal judicial impotency under 
 the due process of law prohibition of the Fourteenth 
 Amendment to correct State judicial errors of State law 
 has been, and is being, perverted in actual practice in 
 some of the States into meaning that State Judges hold 
 a sort of constitutional grant of a Federal license to solve 
 questions of State law on the. principle of a new Lex 
 Regia: — Quod judici placet, legis vicem habet. 
 
 The due process of law prohibition of the Fourteenth 
 Amendment secures and protects at least "the substance 
 of original justice" 50 against hostile State action. Does 
 not "the substance of original justice" forbid State 
 Judges, when adjudicating upon matters of private right, 
 to disregard the established law of the State, at least to 
 such an extent that their judgments, purporting to be 
 authorized by the State law, cannot stand with the 
 reason of mankind when they are debated abroad? 51 
 And does "the substance of original justice" allow State 
 Judges, when adjudicating upon matters of private right, 
 to promulgate, and enforce retrospectively, any rule of 
 State law the State Legislature constitutionally could 
 promulgate for prospective operation and application? 
 Was not "local justice," or "local common law," or 
 whatever else one may choose to call it, abolished by the 
 authoritative command "of the American people, and, 
 if gentlemen please, of the American States," on July 28, 
 1868. 52 As respects "the substance of original justice" 
 touching the private rights of life, liberty, or property, 
 
 60 Burke, quoted in Hurtado v. California, 110 U. S., 516, 532. 
 
 51 Lord Nottingham, in The Duke of Norfolk's Case, 3 Ch. Cas., 1, 33: "Pray 
 let us so resolve cases here, that they may stand with the Reason of Mankind, 
 when they are debated abroad. Shall that be Reason here that is not Reason 
 in any part of the world besides?" 
 
 52 Marshall, C. J., Cohens v. Virginia, 6 Wheaton, 264, 381. 
 
34 CONSTITUTIONAL LAW 
 
 have not the American people deliberately chosen to be 
 one people for the purpose of protecting those rights? 53 
 
 If the Supreme Court of the United States would 
 apply the restraint of due process of law — in the tradi- 
 tionally accepted sense of it as applied to Judges — to 
 State Judges, with a fraction of the rigor with which a 
 majority of the Court to-day are applying the restraint 
 of due process of law — in its new, American sense as 
 applied to Legislators — to State Legislatures, 54 and to 
 Congress, 55 the Court would touch, and could help prac- 
 tically and powerfully to heal, the sorest juridical spot 
 in the body politic to-day easily within the legitimate 
 reach of its constitutional authority. 56 
 
 The wise and clear command of the American people 
 forbidding State Judges to carry the localization of jus- 
 tice at least to unreasonable extremes, and their equally 
 
 "Marshall, C. J., Cohens v. Virginia, 6 Wheaton, 264, 413, 414; Gibbons 
 v. Ogden, 9 Wheaton, 1, 223, Johnson, J.; 187-189, Marshall, C. J. It is reason- 
 able to believe that, if the due process of law prohibition of the Fourteenth 
 Amendment had been in the Federal Constitution from the start, the difference 
 between "general common law" and "local common law" never would have been 
 allowed to grow up and flourish, except perhaps to the very limited, narrow 
 extent indicated by Mr. Justice Story in Swift v. Tyson, 16 Peters, 1. 
 
 Perhaps it would have been better if the phrase "unless by the law of the land" 
 had never been rendered "without due process of law." The word "process" 
 seems to be the basis of the idea that State Judges have an uncontrolled independ- 
 dence to alter, amend, and repeal the established, substantive law of the State, 
 provided they go about it under, and agreeably to, the established State forms 
 and modes of judicial procedure. For example: No one would think, I suppose, 
 that State Judges can hang a man under an information, when the State Law 
 says they must proceed under an indictment. Yet it appears to be thought 
 that when they get hold of a man under an indictment, whatever they may do 
 then with the substantive law of the State must stand uncorrectable by an earthly 
 judicial tribunal. 
 
 "Lochren „. New York, 198 U. S., 45. 
 
 66 Adair v. United States, 280 U. S., 161, and see Mr. Richard Olney's criticism 
 of the opinion of the Court in the American Law Review for April-May, 1908. 
 
 56 A rather poor lot of cases, taken as a whole, for the application of the due 
 process of law prohibition of the Fourteenth Amendment to State Judges has 
 been taken up thus far. As a rule, there was either nothing to the point that 
 the State Judges disregarded the State Law, or no sufficient showing that the 
 
ENFORCEMENT OF STATE LAW 35 
 
 wise and clear plan of giving effect to that command by 
 the negative method and process of subjecting the inde- 
 pendence of State Judges to resolve questions of State 
 law wrong to external, national judicial supervision and 
 control, leaving untouched the independence of State 
 Judges to resolve questions of State law right, i. e., agree- 
 ably to the dictates of the substance of original justice, 
 cannot be defeated forever by a judicial obiter dictum 
 that, in the first place, has no real existence hi a point of 
 actual fact, and that, in the second place, plainly pro- 
 ceeds from a self conjured up political specter of centrali- 
 zation. In England, where popular institutions were 
 originated and moulded into form by lawyers, un- 
 purchaseable lawyers, of whom Edward Coke is facile 
 princeps, have been carried as far, and are destined to 
 be carried as far, as they ever have been or are ever likely 
 to be in this country, "the centralization of English 
 justice, costly to suitors, has contributed to make law 
 more pure as well as more scientific," and, therefore, 
 more supreme. 67 
 
 complaining party was hurt, or the point was not raised right under "the rule" 
 respecting so-called "non-Federal grounds" sufficient to sustain the State judg- 
 ment. Murdock v. Memphis does not appear at this date to have been a fit case 
 for the disposal of the" public question," as Bradley, J., dissenting, called it, in the 
 sweeping way the majority tried to dispose of it. 
 
 67 Bryce, the American Commonwealth, in a footnote near the end of the chap- 
 ter on "The Bench." The costliness of English justice is not an indispensable 
 incident of its centralization. See Lord Bowen's essay on "The Progress in the 
 Administration of Justice during the Victorian Period, 1 Select Essays in Anglo- 
 American Legal History, 516, 541. 
 
 Apply The Federalist, Nos. 78-83, to the due process of law prohibitions of 
 the Fourteenth Amendment. 
 
 The position taken at the Bar in Murdock v. Memphis by Mr. B. R. Curtis, 
 as amicus curiae, appears to me to furnish additional and striking confirmation 
 of Mr. Justice Harlan's reference to him in Sparb and Hansen v. United States, 
 156 U. S., 51, 78, as "that eminent jurist, whose retirement from judicial station 
 has never ceased to be a matter of deep regret to the Bench and Bar of this 
 country." 
 
 In Patterson v. Colorado, 205 U. S., 454, in an answer to a rule to show cause 
 why he should not be punished for contempt for publishing articles, and a car- 
 
36 CONSTITUTIONAL LAW 
 
 toon impugning the motives of the Judges of the Colorado Supreme Court in 
 the decision of certain cases pending on petitions for rehearing, Patterson claimed 
 the right to prove the truth of his charges. The Colorado Court refused to let 
 him. Patterson claimed the right was secured to him by the Fourteenth Amend- 
 ment of the Federal Constitution in two ways: (1) Directly, without any refer- 
 ence to the State law. (2) Indirectly, by the process of forbidding the State 
 Court to violate the 10th Section of Article II of the State Constitution, which 
 said: "That no law shall be passed impairing the freedom of speech; that every 
 person shall be free to speak, write, or publish whatever he will on any subject, 
 being responsible for all abuse of that liberty; and that in all suits and prosecu- 
 tions for libel the truth thereof may be given in evidence, and the jury, under the 
 direction of the Court, shall determine the law and the fact." The Court con- 
 sidered only the first way Patterson relied on to get under the protection of the 
 Federal Constitution, and the majority, per Holmes, J., said there was not 
 enough to it to justify them in taking jurisdiction. Harlan, J., thought Patterson 
 was right, and Brewer, J., thought there was enough to his claim to require the 
 Court to take jurisdiction. As respects the second way Patterson relied on to 
 get under the protection of the Federal Constitution, the dissenting opinions, and 
 the majority opinion, leave a fair doubt as to whether any member of the Court 
 really got a full grasp of the point. Strictly, under Burt v. Smith, 203 U. S., 
 129, 135, cited by Holmes, J., the point was not open, coming too late in the 
 assignment of errors in the Federal Supreme Court. But the majority do not 
 raise the technical point, at least expressly. Holmes, J., says on p. 461: "The 
 defense upon which the plaintiff in error most relies is raised by the allegation that 
 the articles complained of are true and the claim of the right to prove the truth. 
 He claimed this right under the Constitutions both of the State and of the United 
 States, but the latter ground alone comes into consideration here, for reasons 
 already stated."- The "reasons already stated" are on p. 459 thus: "The diffi- 
 culties with those (errors) most pressed is that they raise questions of local law, 
 which are not open to re-examination here. The requirement in the Fourteenth 
 Amendment of due process of law does not take up the special provisions of the 
 State Constitution and laws into the Fourteenth Amendment for the purposes of 
 the case, and in that way subject a State decision that they have been complied 
 with to revision by this Court." Holmes, J., applied this particularly to get rid 
 of Patterson's points that the contempt information was not verified, and that 
 the cases referred to in the article were not pending — points of procedure trivial 
 in their nature in Patterson's Case. The learned Justice makes no attempt to 
 prove that the proposition was applicable to Patterson's claim of right to prove 
 the truth. It is perfectly evident that the mind of the Court was not in this 
 case, nor in any other case, adequately directed to an able challenge of the propo- 
 sition that the Court has nothing whatever to do with State law except to swallow 
 State decisions however repugnant to, and violative of, the State law they may 
 be. In Delmar Jockey Club ». Missouri, 210 U. S., 324, 28 Sup. Ct. Rep., 732, 
 735, the point that the State Court arbitrarily violated the State law, raised in the 
 State Court on petition for rehearing, was treated as a good "Federal question," 
 but in that case White, J., said: "We fail to perceive the slightest semblance of 
 ground for such contention," which is quite different from saying, "we can't look 
 into it at all," and implies that the Court can, and will, look into it. The dissent 
 of Holmes, J., in Muhlker v. Harlem R. Co., supra, concurred in by Fuller, C. J., 
 
ENFORCEMENT OF STATE LAW 37 
 
 White and Peckham, JJ., proceeds on the footing that it could make no difference 
 whatever whether the New York Elevated Railroad Cases were decided right or 
 wrong, claiming support for that in Central Land Co. v. Laidley, 159 U. S., 103, 
 112. But the opinion of Gray, J., in that case can hardly bear the interpretation 
 that State Courts are free to play whatever tricks they please with the State law. 
 Evidently, in spite of the very local nature of the questions of State law raised 
 on the merits, if Gray, J., had thought the State decisions challenged as plainly 
 wrong as the State decision challenged in Scott v. McNeal, it is not conceivable 
 that he, at least, would have subscribed to the petitio principii fallacy of "day in 
 court and opportunity to be heard," exploded by the Court in C. B. & Q. R. Co. v. 
 Chicago, supra. McKenna, J., asserts the immunity of State decisions of questions 
 of State law from review and reversal in Howard v. Kentucky, 200 U. S., 164, 
 Harlan, J., not satisfied, and in Ballard v. Hunter, 204 U. S., 241, Brewer, J., not 
 satisfied, but in Muhlker v. Harlem R. Co., supra, speaking also for Harlan, 
 Brewer and Day, J. J., and in Sauer v. New York, supra, speaking also for Day, J., 
 the learned Justice got over the controlling effect of that immunity of State 
 decisions on the expressed ground of a common sense superior to legal principle. 
 Evidently, lawyers cannot be expected, fairly and reasonably in justice to them- 
 selves and to their clients, to yield to, and acquiesce in, the statement of Moody, J., 
 in Sauer v. New York, supra, that "the limitation upon the power of this court in 
 the review of the decisions of the Courts of the States, though elementary and 
 fundamental, is not infrequently overlooked at the Bar." The crude, practical 
 equity of Muhlker v. Harlem R. Co., supra, and of Raymond v. Chicago Traction 
 Co., supra, obviously cannot do at all as a rule of judicial action. A retrograde 
 movement to free-handed State judicial iconoclasm is impossible. 
 
38 CONSTITUTIONAL LAW 
 
 II 
 
 SWIFT v. TYSON: UNIFORMITY OF JUDGE- 
 MADE STATE LAW IN STATE AND 
 FEDERAL COURTS a 
 
 In Griffin v. Fairmont Coal Co., 1 the Supreme Court of 
 West Virginia decided that a grantor of "all the coal" 
 underlying a tract of land had no cause of action against 
 the grantee for a subsidence of the surface caused by the 
 failure of the grantee to leave sufficient support. The 
 question was fresh in West Virginia. The court divided 
 four to one, two of the majority and the dissenting 
 judge delivering long opinions. The majority went on 
 the principle that a party may make a contract giving 
 up the right of subjacent support, and decided that in 
 this instance the grantor did make such a contract, basing 
 the conclusion on a literal interpretation of the world 
 "all" in the phrase "all the coal." The dissenting judge, 
 and the author of the note in 2 L. R. A., N. S., 1115, say 
 that this West Virginia decision is repugnant to the 
 reason of mankind in England and in the United States as 
 evidenced by the current of judicial decisions. 
 
 In Kuhn v. Fairmont Coal Co., 2 a case arising between 
 citizens of different states in the federal court sitting in 
 West Virginia, on a like West Virginia grant of all the 
 underlying coal, made before this West Virginia decision 
 was rendered, Judge Dayton held himself bound to accept 
 the West Virginia opinion as his rule of decision. 3 The 
 
 a [4 111. Law Rev., 533, March, 1910.] 
 x 59 W. Va. 480, 2 L. R. A. N. S., 1115. 
 * 215 U. S., 349, 30 Sup. Ct. Rep., 140. 
 8 152 Fed. Rep., 1013. 
 
JUDGE-MADE STATE LAW 39 
 
 grantor took the case to the Circuit Court of Appeals for 
 the Fourth Circuit, and that court certified up to the 
 Supreme Court of the United States the question whether 
 it was bound to accept and apply this West Virginia 
 decision. The Supreme Court answered that it was not 
 so bound; Harlan, J., writing the opinion, and Holmes, 
 J., delivering a dissenting opinion concurred in by White 
 and McKenna, J J. The case raised the question whether 
 the West Virginia decision fell within the word "laws" 
 in section 34 of the Judiciary Act of 1789, now R. S., Sec. 
 721, reading: 
 
 "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." 
 
 The opinion of Harlan, J., lays down again the doc- 
 trine announced by Story, J., in Swift v. Tyson, 4 in 1842, 
 that state decisions are not "laws" within the meaning of 
 this section. The dissenting opinion aligns White, Mc- 
 Kenna, and Holmes, J J., on the side of the numerous critics, 
 on and off the bench, of the original soundness of the 
 opinion of Story, J., in Swift v. Tyson. Holmes, J., says: 
 
 "I suppose it will be admitted on the other side that even the 
 independent jurisdiction of the circuit courts of the United States 
 is a jurisdiction only to declare the law, at least in a case like the 
 present, and only to declare the law of the state. It is not an 
 authority to make it. Swift v. Tyson was justified on the ground 
 that that was all that the state courts did. But, as has been 
 pointed out by a recent accomplished and able writer, that fiction 
 had to be abandoned and was abandoned when this court came 
 to decide the municipal bond cases beginning with Gelpcke v. 
 Dubuque, 1 Wall., 175. Gray, Nature and Sources of the Law, 
 Sees. 535-550. 
 
 "It is said we must exercise our independent judgment — but 
 as to what? Surely, as to the law of tlje state. Whence does that 
 
 * 16 Pet., 1. 
 
40 CONSTITUTIONAL LAW 
 
 law issue? Certainly not from us. But it does issue, and has been 
 recognized by this court as issuing, from the state courts as well 
 as from the state legislatures. When we know what the source 
 of the law has said that it shall be, our authority is at an end. The 
 law of a state does not become something outside of the state court, 
 and independent of it, by being called the common law. What- 
 ever it is called, it is the law as declared by the state judges, and 
 nothing else." 
 
 On the basis of this distinction between judicial power 
 to declare state law, and judicial power to make state 
 law, assigning to the federal courts the judicial power to 
 declare state law, and to the state courts the judicial 
 power to make state law, Holmes, J., logically concluded 
 that the West Virginia decision in question was binding 
 on the federal courts. In his conclusion, solely in defer- 
 ence to the authority of Swift v. Tyson and the long line 
 of decisions following it, the learned Justice drew another 
 distinction, to- wit: between (1) "a kind of case that, by 
 nature and necessity, is peculiarly local," i. e., a land-law 
 case like the one in hand ; and (2)' a kind of case involving 
 "those principles which it is desirable to make uniform 
 throughout the United States, and which the decisions 
 of this court tend to make uniform." He said, if I under- 
 stand the learned Justice, that in the latter kind of case the 
 federal courts have judicial power to make state law, but 
 in the former kind of case they have only judicial power 
 to declare the state law that the judges of a state make. 
 
 The dissenting opinion adopts Professor Gray's recently 
 published criticism 5 of the opinion of Story, J., in Swift v. 
 Tyson ; though Professor Gray does not draw the distinc- 
 tion of Holmes, J., between federal judicial power to 
 make and to declare state law, that distinction being an 
 original effort of Holmes, J., to draw a line across which 
 the doctrine of Swift v. Tyson ought not to be carried. 
 
 6 Gray, The Nature and Sources of the Law, Sees. 479, 482, 535-544. 
 
JUDGE-MADE STATE LAW 41 
 
 It may be inferred, perhaps, from some of the notes to 
 the edition by Holmes, J., of Kent's Commentaries, and 
 from his dissent in Muhlker v. New York & Harlem 
 R. Co., 6 and in Fall v. Eastin, 7 that the dissenting opinion 
 only gives official expression to its author's views of long 
 standing on the way to draw the line separating the ju- 
 dicial power of the United States from that of the states 
 in the region of state law. 
 
 The dissenting opinion seems to have stirred the ma- 
 jority to arms in defense of Story, J., in Swift v. Tyson. 
 If the opinion of Harlan, J., uses the power of authority, 
 of the big stick and the steam roller, more than the power 
 of reason from first principles, it is by no means clear 
 that the occasion called for anything more than that, 
 for there seems to be plenty of reason from first prin- 
 ciples to sustain Swift v. Tyson in the long line of prior 
 decisions of the court following Swift v. Tyson, cited by 
 Harlan, J. The usual, conscious and intended effect 
 of a dissenting opinion is to shake and weaken the author- 
 ity of the majority opinion. Sometimes, however, a 
 dissenting opinion has the opposite effect, and that is 
 so in this instance. The dissent of Holmes, J., strengthens 
 Swift v Tyson, because it brings out, and exhibits in all 
 its bare nakedness, how completely the opposition to 
 Swift v. Tyson ignores the practical common sense and 
 foresight of the statesman, displayed in the judiciary 
 arrangements of the constitution of the United States. 
 
 Professor Gray's criticism of Story, J., in Swift v. Tyson 
 is partly personal, but not wholly so. 8 
 
 6 197 U. S., 544. 
 
 7 215 U.S., 1. 
 
 8 ' Among the causes which led to the decision in Swift v. Tyson, the chief 
 seems to have been the character and position of Judge Story. He was then by 
 far the oldest judge in commission on the bench; he was a man of great learning, 
 and of reputation for learning greater even than the learning itself; he was occu- 
 pied at the time in writing a book on bills of exchange, which would, of itself, lead 
 
42 CONSTITUTIONAL LAW 
 
 "In the ordinary use of language," says Story, J., in Swift v. 
 Tyson, 9 "it will hardly be contended that the decisions of courts 
 constitute laws." 
 
 Professor Gray objects to that as an adoption of the 
 fiction that judges only declare pre-existing law; he 
 insists that the fact is that judges make new law. As 
 Holmes, J., supra, puts it: 
 
 "The law of the state . . . does issue . . . frorfi the 
 state courts as well as from the state legislatures." 
 
 In sections 267 and 268 Professor Gray says: 
 
 "Is the power of the judges, then, absolute? . . . Not so, 
 the judges are but organs of the state; they have only such power 
 as the organization of the state gives them; and what that or- 
 ganization is, is determined by the wills of the real rulers of the 
 state. Who are the rulers of a state is a question of fact and not 
 of form. In a nominal autocracy, the real rulers may be a number 
 of court favorites, or the priests of a religion; and in a democracy 
 the real ruler may be a demagogue or a political boss." 
 
 The "real rulers" of the several states of this Union 
 received the foil of the constitution of the United States, 
 for the benefit of the "nominal rulers," or the people 
 of the several states, from Story, J., in Swift v. Tyson, 
 who left it to his successors to complete the work, but 
 up to the present time they have failed to perform the 
 task of the Story legacy. 
 
 Story, J., probably knew as well as John Austin that 
 judges make law. But he probably knew better than 
 John Austin the legal and constitutional restraints im- 
 posed on judges in the United States when engaged in 
 the process of making law. The legislative process of 
 making law and the judicial process of making law are, 
 
 him to dogmatize on the subject; he had had great success in extending the 
 jurisdiction of the Admiralty; he was fond of glittering generalities; and he was 
 possessed by a restless vanity. All of these things conspired to produce the 
 result." The Nature and Sources of the Law, Sec. 539. 
 9 16 Pet., 1, 18. 
 
JUDGE-MADE STATE LAW 43 
 
 of course, widely different. Both are subject to like 
 constitutional and legal restraints, but there are other 
 and different constitutional and legal restraints peculiar 
 to the judicial process, and especially peculiar to it in 
 the United States. No judge in England or in the United 
 States ever did need to be told, I think, that he has power 
 to make law, but many judges in England and in the 
 United States have needed to be reminded from time to 
 time, vi et armis, of the constitutional and legal restraints 
 binding upon them, when engaged in the judicial process 
 of making law; and few, indeed, have been the judges, 
 especially in the United States, who have shown a sound 
 understanding as to when those restraints are rigid, and 
 when they are elastic and flexible. When you say judges 
 only declare pre-existing law, and do not make new law, 
 you emphasize those restraints and keep them fresh in 
 the memory better than when you say judges make law. 
 I cannot see any substantial difference between the two 
 forms of expression; but if there is a substantial differ- 
 ence between them, then it seems very plain that the 
 theory of judge-made law you find in Coke, Hale, and 
 Blackstone — the theory that judges only declare pre- 
 existing law and do not make new law — is, I think, 
 the right theory to be applied as an extrinsic aid to the 
 true judicial interpretation of the word "laws" in section 
 34 of the Judiciary Act of 1789, now R. S., Sec. 721, unless 
 it leads to a result inconsistent with the objects of the 
 constitution as declared in its preamble, because that the- 
 ory of judge-made law is the one the framers of the con- 
 stitution and the Judiciary Act of 1879 are known to have 
 accepted and to have tried to enforce in their work of 
 founding "a government of laws and not of men." 10 
 
 10 In the course of a brief discussion of the phrase lex terrae in Thayer, Evi- 
 dence, 199-201, the author quotes an observation of Sir H. Maine to the effect 
 that it must have been a man of legal genius, who first made the discovery that 
 
44 CONSTITUTIONAL LAW 
 
 But when you have exploded that theory of judge- 
 made law as pure fiction, then, as it seems to me, the opin- 
 ion of Story, J., in Swift v. Tyson still stands solid, un- 
 shaken, and untouched. Fundamentally, Swift v. Tyson 
 rests upon a principle of federal constitutional law. The 
 court always has so declared. Swift v. Tyson was un- 
 animously reaffirmed by Bradley, J., wholly on con- 
 stitutional grounds in Burgess v. Seligman. 11 The at- 
 tack on Swift v. Tyson by Field, J., dissenting, in B. & 
 O. R. Co. v. Baugh, 12 goes entirely on the learned Jus- 
 tice's individual views of the true constitutional relation 
 of state and federal courts as declarers or makers of state 
 law. 
 
 When Holmes, J., and Professor Gray assign to the 
 judicial power delegated to the United States to hear and 
 decide controversies between citizens of different states 
 the humble task of automatically echoing the declara- 
 tions of a state court as to what the law of the state is, or 
 shall be in the future, they are out of step with the con- 
 stitution of the United States, and out of step with the 
 opinions of the Supreme Court as they stood in 1842 
 when Swift v. Tyson was decided. Whatever complete, full, 
 and plenary authority a state court may have to declare 
 or make state law, whether it is state land law, or any other 
 
 law is capable of being thought of, and set forth, apart from the courts of justice 
 that administer it, on the one hand, and apart from the classes of persons to whom 
 they administer it, on the other hand. The thing the man discovered may be a 
 "fiction"; but it is the beginning and the end of the modern democratic state. 
 Marshall, in Marbury v. Madison, 1 Cranch, 137, 176, following Hamilton in the 
 Federalist, Nos. 78 and 81, founded the extraordinary judicial power to declare 
 acts of a co-ordinate legislature void, on the single sentence: "It is emphatically 
 the province and duty of the judicial department to say what the law is." The 
 "fiction 1 ' that judges only declare law is all that stands between us and a judicial 
 autocracy, the remedy of impeachment being, as Jefferson said, only a "scare- 
 crow," that, perhaps, as has been said, ought to be galvanized into life, and put 
 i nto play at least once in a generation. 
 
 » 107 U. S., 20. 
 
 12 149 U. S., 368. 
 
JUDGE-MADE STATE LAW 45 
 
 kind of state law, not being criminal law, however "pecul- 
 iarly local," "by nature and necessity," it may be, a 
 federal court asked to hear and decide a civil case at 
 law or in equity between citizens of different states has 
 the same identical, complete, full, plenary authority to 
 declare or make the state law applicable to the subject 
 in controversy. The federal court derives this equal, 
 complete, full, plenary authority direct from the whole 
 united American people by grant, made in the constitu- 
 tion. The constitution confers the judicial power. Con- 
 gress can only limit and regulate the judicial power 
 already granted by the constitution. 
 When, therefore, the constitution says, 
 
 "The judicial power shall extend ... to controversies . . 
 between citizens of different states," 
 
 it grants the whole judicial power of the united American 
 people as a complete power, adequate as any judicial 
 power can be, per se, to attain the declared ends — "to 
 establish justice," and "to form a more perfect Union." 
 This complete judicial power granted by the American 
 people to the United States is not a power to echo any 
 rule of state law, right or wrong, declared or made by a 
 state court. It is an equal, complete, original, and inde- 
 pendent judicial power to declare or make the state law 
 that rules the controversy in hand, using the same sources 
 that a state court properly could use. The judicial power 
 conferred by the constitution on federal courts to hear and 
 decide civil cases at law or in equity arising between citi- 
 zens of different states, is analogous to the judicial power 
 granted by the constitution to the Supreme Court to hear 
 and decide controversies between two or more states, as 
 recently expounded by Brewer, J., in Kansas v. Colorado. 13 
 
 13 206 U. S., 46, 80-85 ; see Judge Baldwin's criticism. The Extent of the Judicial 
 Power of the United States, 18 Yale Law J., 1. 
 
46 CONSTITUTIONAL LAW 
 
 The judicial power of the United States in controversies 
 between citizens of different states, like the judicial power 
 in controversies between two or more states, extends to 
 a region of government in the United States, where the 
 legislative power of Congress may not enter to the same 
 extent, though the general principle is that the legislative 
 and judicial powers of the United States are potentially 
 co-extensive, but not actually co-extensive, because Con- 
 gress may limit, and always has limited very greatly, the 
 extent of the judicial power as granted by the constitu- 
 tion. Congress has never allowed the judicial power to 
 be used to its fullest constitutional limit. 14 
 
 While reading the opinion of Story, J., in Swift v. Tyson, 
 and the argument of Mr. Fessenden, from which the 
 opinion was written and practically copied, it must always 
 be remembered, I think, that the learned Justice assumed, 
 and was justified, it is believed, in assuming, the prin- 
 ciple to be firmly established, and fully expounded in 
 prior decisions, and to be self-evident, that a federal 
 court always takes its judicial power as a complete, plen- 
 ary, original, independent judicial power, as complete and 
 adequate as any judicial power can, per se, to establish 
 justice, and to form a more perfect Union, direct from the 
 whole united American people, and that the Judiciary 
 
 14 "The sovereignty of the states is surrendered in many instances where 
 the surrender can only operate to the benefit of the people and where, perhaps, 
 no other power is conferred on Congress than a conservative power to maintain the 
 principles established in the constitution. The maintenance of these principles 
 in their purity is certainly among the great duties of the government. One of 
 the instruments by which this duty may be peaceably performed, is the judicial 
 department. ... It would be hazarding too much to assert that the judi- 
 catures of the states will be exempt from the prejudices by which the legislatures 
 and people are influenced, and will constitute perfectly impartial tribunals. In 
 many states the judges are dependent for office and for salary on the will of 
 the legislature. The constitution of the United States furnishes no security 
 against the universal adoption of this principle. When we observe the impor- 
 tance which that constitution attaches to the independence of judges" . . . 
 Cohens v. Virginia, 6 Wheat., 264, 382, 386-387, Marshall, C. J. 
 
JUDGE-MADE STATE LAW 47 
 
 Act of 1789 only limited and regulated the judicial power 
 of the courts of the United States, and did not, and could 
 not, do anything more; did not, and could not, grant 
 judicial power to the courts of the United States. Story 
 was a pupil of Marshall, and Marshall taught and empha- 
 sized that constitutional lesson of the true source and 
 extent of the judicial power of the United States over and 
 over again. 15 
 
 Dealing with section 34 of the Judiciary Act of 1789, 
 then, as Story, J., did in Swift v. Tyson, as a Congressional 
 limitation and regulation of the complete, original, and 
 independent judicial power to hear and decide contro- 
 versies between citizens of different states granted by the 
 constitution to federal courts, the question in Swift v. 
 Tyson whether state decisions are 'laws," within the 
 meaning of section 34, clearly seems to have been answered 
 right. At least, the answer given by Story, J., is plainly 
 an allowable and sustainable one upon sound, established 
 principles of constitutional and statutory construction. 
 A different answer would have abridged unduly, if it 
 would not have nullified and destroyed utterly, the 
 constitutional grant of judicial power to federal courts 
 over controversies between citizens of different states, by 
 making it a dependent power. Moreover, a different 
 answer would have drawn a peculiar and anomalous dis- 
 tinction between state decisions in equity cases, and state 
 decisions in common-law cases. Section 34 is expressly 
 confined to trials at common law in the courts of the 
 United States, and those courts never had regarded from 
 the foundation of the government down to Swift v. Tyson, 
 and do not now regard, state decisions in equity cases as 
 "laws" binding upon them. 16 
 
 15 See the opinion of Story, J., in Martin v. Hunter's Lessee, 1 Wheat., 304, 327, 
 et seq. 
 
 16 See Rowan v. Runnels, 5 How., 134, 139, Taney, C. J.; Ohio Life Ins. & T. 
 
48 CONSTITUTIONAL LAW 
 
 Story, J., in Swift v. Tyson, simply declared that the 
 American people laid the duty upon federal judges, and 
 that section 34 of the Judiciary Act of 1789 did not relieve 
 them of the duty, when asked to hear and decide a con- 
 troversy between citizens of different states, to make an 
 independent examination of the sources of the state law 
 applicable to the controversy in question, and to declare 
 or make the state law by the light of their own intelligence 
 
 Co. t. Debolt, 16 How., 416, 431-2, Taney, C. J.; Neves v. Scott, 13 How., 272, 
 Curtis, J. 
 
 The doctrine that the rendition of a decision by a state court is not the passing 
 of a law, within the meaning of the contracts clause — "No state shall 
 pass any . law impairing the obligation of contracts — supports Story, 
 
 J., in Swift v. Tyson. Professor Gray alludes to this doctrine in section 550. As 
 an original question, the doctrine does not seem to be necessarily a sound one. 
 Miller, J., seems to have originated the doctrine in the Iowa municipal bond 
 case of R. R. Co. v. Rock, 4 Wall., 177, Dec. 7, 1866 (see N. O. Waterworks Co. 
 v. La. Sugar Ref. Co., 125 U. S., 18, 30), in a most unsatisfactory opinion, that 
 does not touch the contracts clause, and only applies rather arbitrarily, section 
 25 of the Judiciary Act of 1789, now R. S., sec. 709, as a legislative limitation on 
 the judicial power of the United States to enforce the contracts clause. The 
 doctrine has ceased to be of great importance, however, because the doctrine 
 that an indefensible state judicial ruling, on a point of state law, that impairs 
 the obligation of a contract, encounters the property clause of the fourteenth 
 amendment, seems likely to prevail and grow. See Muhlker v. Harlem R. Co., 
 197 U. S., 544; Sauer v. New York, 206 -U. S., 536. 
 
 The true question the doctrine of Swift v. Tyson puts before a federal court for 
 decision seems to be this, always: Is the state decision right? In the solution of 
 which question by the federal court, the maxim, Communis error facit jus, 
 plays an important part under existing Judiciary Acts of Congress — more 
 important in some cases than in others — because a federal court cannot always 
 get its hand on an error of a state court so as to be able to correct it while the 
 error is fresh. The West Virginia decision in question, in Kuhn v. Fairmont Coal 
 Co., seems as wrong as the Washington decision that was reversed in Scott v. 
 McNeal, 154 U. S., 34, on direct writ of error, as being wanting in due process of 
 law, which means, as applied to judicial proceedings, a due intellectual process 
 in making a determination and application of state law — a judicial intellectual 
 process in due harmony with the traditions, habits, and usage peculiar to the 
 common-law system of administering justice in the courts. See C, B. & Q. R. 
 Co. v. Chicago, 166 U. S., 226; Muhlker v. Harlem R. Co., 197 U. S., 544; Stare 
 Decisis and Contractual Rights, 22 Harv. L. R., 182; The Due Process Clauses 
 and the Substance of Individual Rights, 58 Am. L. Reg., 191; The Supreme 
 Court of the U. S. and the Enforcement of State Law by State Courts, 3 111. Law 
 Rev., 395, [ante, p. 5]. 
 
JUDGE-MADE STATE LAW 49 
 
 applied to those sources, and not to declare or make it by 
 way of an automatic echo, as the state judges may have 
 declared or made it from the same sources. 
 
 The municipal bond cases, beginning with Gelpcke v. 
 Dubuque, but affirm the same constitutional power and 
 duty of federal judges, unlimited by act of Congress. 
 The doctrine of those cases does not mean, it is believed, 
 that federal judges are bound to follow a state decision 
 on a question of state law on which the municipal bonds 
 depend for their validity, however wrong in point of state 
 law the validating state decision may be. The doctrine 
 of those cases does not, it is believed, compel federal 
 judges to aid and abet municipal dishonesty under the 
 forms of state law through the instrumentality of a state 
 court endowed with power to "make" state law, or out 
 of which state law issues just as it issues out of the state 
 legislature. The theoretical and practical purpose and 
 effect of the doctrine of the municipal bond cases is just 
 the other way: to enable the federal judges to show the 
 people of a state that the state law must be obeyed. 
 The federal judicial intellectual process of "following" 
 a state decision is the same as the federal judicial intellect- 
 ual process of "refusing to follow" a state decision. Only 
 the outward, visible results of the process are different. 
 No fiction is employed in the process, or to sustain the 
 results of the process. 17 
 
 What the framers of the constitution of the United 
 States and the Judiciary Act of 1789 did not know about 
 the thing the Stuart Kings called "kingcraft," or "state- 
 craft," and the utility of judges and courts as hand- 
 organs of "kingcraft," or "statecraft," is not worth 
 knowing. They had that in their minds in arranging 
 their "checks and balances." Story, J., simply gave 
 
 17 See Gelpcke v. Dubuque; Federal and State Decisions, Thayer's Legal 
 Essays, 141. 
 
50 CONSTITUTIONAL LAW 
 
 practical effect in Swift v. Tyson to their worldly wisdom 
 as expressed and declared in the constitution, by making 
 a new application of it for the purpose both of estab- 
 lishing justice and of forming a more perfect Union by 
 bringing about steadiness, stability, consistency, and uni- 
 formity, when uniformity is important and desirable, 
 in the judicial administration of purely private judge- 
 made state law. 
 
 I do not quite understand whether Professor Gray 
 means to intimate that Taney, C. J., did not agree with 
 Story, J., in Swift v. Tyson. Taney, C. J., did not 
 dissent. That must mean that he agreed. He was a 
 watchful, extremely careful and conscientious judge, a 
 great statesman and lawyer, in every way a worthy suc- 
 cessor of Marshall, C. J. Taney, C. J., had a thorough 
 and firm statesman's and lawyer's grasp of the idea that 
 the principle of decentralization, declared and preserved 
 by the tenth amendment to the constitution, was allowed 
 by the framers of the constitution a very much more 
 limited and restricted scope in its application to the in- 
 herently non-political subject of the judicial adminis- 
 tration of justice between party and party than it was 
 allowed by them in its application to other subjects and 
 objects of the care of government more inherently polit- 
 ical in their nature. 
 
 Professor Gray's criticism of Story, J., in Swift v. 
 Tyson is not a criticism of the opinion of Story, J., on the 
 question of constitutional and statutory construction 
 involved in the case. Professor Gray says that Swift v. 
 Tyson is neither for nor against the theory that judges 
 make new law. He says in Sec. 543: 
 
 "The doctrine of Swift v. Tyson is an anomaly and does not lend 
 a support to either theory." 
 
 That is, (1) the fiction that judges only declare pre- 
 existing law, or (2) the fact that judges make new law. 
 
JUDGE-MADE STATE LAW 51 
 
 But once you recognize fully, and look it squarely in the 
 eye, as Story, J., did in Swift v. Tyson, that the federal 
 courts have complete judicial power, in controversies 
 between citizens of different states, to declare or make 
 the judge-made state law of the state that rules the con- 
 troversy in hand, the anomaly vanishes, it is believed. 
 And Professor Gray may, I think, use Story, J., in Swift 
 v. Tyson, to prove the theory that judges make new law, 
 with quite as much effect as Dr. Johnson used the big 
 stone in the highway to refute idealism, kicking it with 
 his foot, uttering the res gesta exclamation, "I refute it 
 thus." Professor Gray cut off his pursuit of truth pre- 
 maturely. He should have gone further back than 
 Swift v. Tyson. If the doctrine of Swift v. Tyson is an 
 anomaly, the explanation of it must be sought in the 
 constitution of the United States. Professor Gray should 
 have inquired whether the framers of that instrument 
 of government, reputed the wisest among men, allowed 
 the Polandic folly of two courts in every state of the 
 Union, of equal authority, derived from different sources, 
 to declare or make state law, with no superior to decide 
 which one is right when they declare or make opposing 
 and conflicting state law on the same subject; knowing, 
 as the makers of the constitution did know, that for the 
 good of mankind le bon Dieu predisposed lawyers and 
 judges to fall out and fight each other like lions for truth 
 and justice under and agreeably to the law. 
 
 What Professor Gray really objects to is a supposed 
 necessary and inevitable consequence of the opinion of 
 Story, J., in Swift v. Tyson. The consequence of Swift 
 v. Tyson complained of by Professor Gray is the intro- 
 duction into every state of the Union of two judge-made 
 state laws of the land, making the judge-made state law 
 of the land in every state, which in truth ought to be 
 singular, plural; and so not the state law of the land 
 
52 CONSTITUTIONAL LAW 
 
 at all, but the law of the judges and of the courts, one 
 thing in the state courts and another thing in the federal 
 courts; so that there is no judge-made state law of the 
 land in any state, except of the land underneath the 
 state and federal courthouses in each of the several 
 states; so that happy is the man who has no business 
 on that land of judge-made state law. 
 
 That the American people are living under such plu- 
 rality or Mormonism of judge-made state law of the land 
 in every state is, of course, a fact known to every lawyer 
 and judge in the United States. This plurality of judge- 
 made state law deserves all the ridicule and scorn that 
 Professor Gray pours out upon it. 
 
 "It seems a recurrence to barbarism, to the times when Bur- 
 gundians, Visigoths, and Romans living beside each other, had 
 their own separate and tribal laws. And how did this state of 
 things have its origin? Professor Hammond truly says that it was 
 by Story, J., in Swift v. Tyson." 18 
 
 Let us pause on the last sentence. Was it "by Story, J., 
 in Swift v. Tyson"? Is Professor Hammond right when 
 he says "it was by Story, J., in Swift v. Tyson"? Is 
 Professor Gray right when he says the same thing? 
 I think they are both wrong. Their error flows, it is 
 believed, from a gratuitous assumption of established 
 constitutional law that is not, it is believed, established 
 at all, and, if it is established, Story, J., did not help to 
 establish it, and, I think, Story, J., would not have con- 
 curred in its establishment, if he had been alive and 
 able to participate in the conference in the case that 
 established it, whatever may be the name, book, and 
 page of that case. If this "recurrence to barbarism" 
 fairly can be charged to a single man, the man to charge 
 it up against is, it is believed, Miller, J., in Delmas v. 
 
 18 The Nature and Sources of the Law, sees. 481-482. 
 
JUDGE-MADE STATE LAW 53 
 
 Merchant's Mutual Ins. Co., 19 in 1872, and not Story, 
 J., thirty years before, in 1842, in Swift v. Tyson. 
 
 It must be agreed that Story, J., cannot be held respon- 
 sible for the views of his successors, formed when he was 
 in his grave, and in disregard of his own teachings and of 
 the teachings of his master, Marshall, on the true con- 
 stitutional relation established between state and federal 
 courts as parts of a single judicial system, one united 
 whole, co-operating when right, checking each other 
 when wrong, so that wide judicial departures from the 
 right line of law may not long prevail, to the end that the 
 judicial administration of law, i. e., of all the law, between 
 party and party in the United States, may be as fair 
 and impartial as the lot of humanity will admit of. 
 
 In Brine v. Hartford Fire Ins. Co., 20 cited in the dissent 
 of Holmes, J., Miller, J., conceding that we have two 
 courts in every state, a federal court and a state court, of 
 equal authority to declare or make state law from the same 
 sources, says, by way of a self-evident truth, there is 
 "no superior to decide which is right," when they declare 
 or. make state laws on the same subject that collide, so 
 that the two colliding judge-made state laws may con- 
 stitutionally co-exist and operate on men and things in 
 the same state. Is that sound constitutional law? 
 Holmes, J., assumes that it is. Professor Gray assumes 
 that it is. 21 The dissent of Miller, J., in Gelpcke v. 
 
 19 14 Wall., 661. 
 
 » 96 U. S., 627. 
 
 21 The Nature and Sources of the Law, Sees. 530-531. It will be noticed that 
 Professor Gray (see Sees. 260, 265, 528, 529, 530, 481, 422) adopts the constitu- 
 tional theory of the states and of the United States as different, and separate, 
 judicial organizations, found in the dissenting opinion of Miller, J., in Gelpcke v. 
 Dubuque. When Miller, J., wrote that opinion, it had not been judicially deter- 
 mined that the judicial power delegated to the United States, and the judicial 
 power reserved to the states, to declare or make state law, are totally distinct, 
 independent powers, equal and co-ordinate, and not united, and not related 
 to each other as superior and inferior. The drift and tendency of the opinions 
 
54 CONSTITUTIONAL LAW 
 
 Dubuque, pronounced "masterly" by Professor Gray, 
 proceeds on this assumption as its pivot. Every criti- 
 cism of Story, J., in Swift v. Tyson I have ever seen makes 
 
 of Taney, C. J., in Rowan v. Runnels, 5 How., 134, and in Ohio Life Ins. & T. Co. 
 v. Debolt, 16 How., 416, were in the direction of a declaration of the supremacy 
 of the federal judicial power; and those opinions plainly suggest that the court 
 was, perhaps, then prepared to make a declaration that the state courts were 
 constitutionally bound to follow Groves v. Slaughter, 15 Pet., 449, and any other 
 considered, reasonably right, judgment of the Supreme Court of the United 
 States on a question of state law rendered in a case between citizens of different 
 states. Note that Taney, C. J., was on the court when Gelpcke v. Dubuque 
 was decided. He died Oct. 12, 1864. In a group of nearly contemporaneous 
 cases in 1872, from which Delmas v. Insurance Co., 14 Wall., 661, is selected in 
 the text as the leading one, the court declined to take jurisdiction of writs of 
 error drawing in question refusals of state courts to follow Thorington v. Smith, 
 8 Wall., 1. Then and there, and not till then and there, I think, was the judicial 
 power of the United States to declare or make state law in controversies between 
 citizens of different states reduced to a separate, practically inferior, anarchic 
 power; then and there, I think, the "anarchic condition,'' or plurality, of our 
 judge-made state law arose. Tracing back this group of cases through Bethell 
 v. Demaret, 10 Wall., 537, to R. R. Co. v. Rock, 4 Wall., 177, Miller, J., and to 
 Gelpcke v. Dubuque, 1 Wall., 175, Miller, J., dissenting, and forward to the 
 Slaughter-House Cases, 16 Wall., 21, Miller, J., first argued Nov. 18, 1870 (10 
 Wall., 273; 19 L. Ed., 915), again argued in Jan., 1872, and again argued in Feb. 
 1873, and to Murdock ». Memphis, 20 Wall., 592, Miller, J., first argued Jan. 21, 
 1873, Miller, J., is seen battling continuously, with all the power of his command- 
 ing will, voice, and physique, for his conception of the extent of the reserved 
 powers of the states. See the opinion of Miller, J., in Davidson v. New Orleans, 
 96 U. S., 97, and his Memorial Oration, 135 U. S., 723, 739. It seems quite appar- 
 ent that Miller, J., did not discriminate, at this time, between the extent of the 
 legislative power reserved to the states, and the extent of the judicial power 
 reserved to the states. He seems to have thought the two co-extensive; he did 
 not consider whether the judicial organization of the states and the United States 
 may not be closer and more of a unit than their legislative and executive organi- 
 zations. Miller, J., let the constitution severely alone. He did not try to reach 
 the constitution; he did not try to touch the constitution; and, consequently, 
 he did not disfigure the constitution — in so far as the constitution delegates 
 judicial power to the United States and reserves judicial power to the several 
 states, and interlaces them into a single, peculiarly united, judicial organization. 
 In N. O. Waterworks Co. v . La. Sugar Ref. Co., 125 U. S., 18, 33-36, Gray, J., 
 makes a report of the points of practice under R. S., sec. 709, for which the group 
 of cases herein alluded to are accepted as standing. The learned Justice's pro- 
 test, on p. 36, of the consistency or harmony of these cases with the true spirit 
 of earlier cases, recognizes that these cases gave a new, contracting twist to the 
 appellate jurisdiction under R. S., sec. 709. "The result of the authorities," 
 as stated by Gray, J., on pp. 38-39, is somewhat qualified by the Virginia coupon 
 
JUDGE-MADE STATE LAW 55 
 
 the same gratuitous assumption. Is the assumption 
 sound? I do not think Story, J., thought it sound. 22 
 
 Taking up the text of the federal constitution, we find 
 that it expressly provides in Article VI for the case of a 
 collision between a law made by Congress and a law made 
 by a state legislature on the same subject, declaring that 
 the law made by Congress must prevail. Does not 
 Article VI equally provide for the case where state law 
 declared or made by the federal courts, in exercise of their 
 jurisdiction over controversies between citizens of differ- 
 ent states, collides with state law declared or made by a 
 state court on the same subject, by declaring that the 
 former must prevail? I think it does; and I think 
 Hamilton expresses that view with sufficient clearness 
 in No. 82 of the Federalist; and I think that view is the 
 necessary and logical consequence of the views expressed 
 by Marshall and Story in famous, familiar cases. In all 
 cases where the federal government is empowered to act 
 at all, its power, and the whole of the results that flow 
 from the exercise of its power, are supreme. 
 
 "This principle is a part of the constitution; and if there be any 
 who deny its necessity, none can deny its authority." 
 
 The courts of the United States are empowered to act 
 in controversies between citizens of different states; to 
 determine, declare or make, and apply the right law, 
 whether it be the law of Turkey, or the law of Illinois, 
 or of New York. If a state court may declare or make a 
 different rule of judge-made state law, and the state 
 judge-made rule of state law and the federal judge- made 
 rule of state law may co-exist and operate side by side 
 in the same state, meeting as equal opposing forces, then 
 
 case, on error to the Virginia Court of Appeals, of McCullough v. Virginia, 172 
 U. S„ 102, 116, Brewer, J. 
 22 See his opinion in Martin v. Hunter's Lessee, 1 Wheat., 304. 
 
56 CONSTITUTIONAL LAW 
 
 the principle of equality enforced by the declaration in 
 Article IV, that the citizens of each state shall be entitled 
 to all privileges and immunities of citizens in the several 
 states, and by the declaration in the fourteenth amend- 
 ment that no state shall deny to any person within its 
 jurisdiction the equal protection of the laws, is over- 
 thrown and destroyed in the resulting confusion and 
 chaos of inequality of burdens and benefits — a result 
 quite as bad as, and that never will be differentiated 
 from, one kind of judge-made state law for the rich 
 and another kind of judge-made state law for the 
 poor. 23 
 
 Assuming the right view of the constitution of the 
 United States, taken in all its parts, to be that it declares 
 for the supremacy of federal judge-made state law, de- 
 clared or made in controversies between citizens of differ- 
 ent states, as against state judge- made state law on the 
 same subject, then we must leave the text of the consti- 
 tution and go to the acts of Congress passed to carry the 
 constitution into effect. Has Congress provided any 
 means by which practical effect may be given to the pre- 
 scribed constitutional supremacy of the state law as 
 declared or made by the courts of the United States, in 
 exercise of their judicial power over controversies between 
 citizens of different states? If Congress ever has provided 
 any means for giving practical effect to the constitution- 
 ally declared supremacy of federal judge-made state law, 
 Congress must have done it in and by section 25 of the 
 Judiciary Act of 1789, now R. S., Sec. 709, limiting and 
 regulating the appellate jurisdiction of the Supreme Court 
 of the United States over state courts. 
 
 It was decided in Delmas v. Merchant's Insurance Co., 
 in 1872, Miller, J., writing the opinion, that said section 25, 
 now R. S., Sec. 709, forbids the Supreme Court of the 
 
 23 See Cohens v. Virginia, 6 Wheat., 314 381-389 
 
JUDGE-MADE STATE LAW 57 
 
 United States to review a refusal of the highest court of a 
 state to follow a prior decision of the Supreme Court of 
 the United States on a question of state law, rendered in 
 exercise of its jurisdiction to hear and decide controversies 
 between citizens of different states. At least, the case 
 has been accepted as so deciding. 24 It may be doubted 
 whether the point was made in strict accord with the 
 rules of practice under section 25, now R. S., Sec. 709, but 
 certain it is that the court missed the constitutional 
 significance and importance of the point. The cases 
 relied on by Miller, J., were cases that arose before 
 any ruling on the questions of state law involved in 
 them had been made by the Supreme Court of the 
 United States. It seems plain enough, on principle, 
 that a party who asks a state court to give him the 
 benefit of a decision of the Supreme Court of the United 
 States on a question of state law, rendered in exercise 
 of its jurisdiction over controversies between citizens 
 of different states, specially sets up and claims a title, 
 right, or privilege under the constitution of the United 
 States, or under an authority exercised under the 
 United States, within the meaning of said section 25, 
 nOw R. S., Sec. 709. 26 But the Supreme Court of the 
 United States has declared or made the law the other 
 way. But the law so made or declared, it should be 
 observed, does not belong in the region of constitutional 
 law, drawing a permanent line of division between the 
 judicial power reserved to the states and the judicial 
 power granted to the United States, but falls exclusively 
 within the region of statute law, alterable and amendable 
 by Congress. 26 
 
 24 See Pennsylvan'a R. Co. v. Hughes, 191 U. S., 477, 485-486. 
 
 25 See the two sections in Murdock v. Memphis, on p. 593. 
 
 26 Delmas v. Insurance Co., 14 Wall., 661, arose on error to the Louisiana Su- 
 preme Court, drawing in question a Louisiana decision denying validity to a 
 
58 CONSTITUTIONAL LAW 
 
 It seems as if the Supreme Court of the United States 
 ought to be able to display legal wit and courage enough, 
 and it does not require very much of either, to extricate 
 itself, and the country, out of the barbarism of the separ- 
 ate and tribal judge-made state laws of the Burgundians, 
 Visigoths, and Romans, into which it blindly plunged itself 
 and the country, headlong, after the death of Story, J., 
 contrary to the opinion of Story, J., in Swift v. Tyson. 
 If it is not able, or lacks the courage, to extricate itself, 
 and the country, out of the mess of barbaric plurality of 
 judge-made state law it has inflicted on the country, 
 then Congress ought to lend a helping hand by enlarging 
 the court's appellate jurisdiction over, the state courts, 
 enabling it to give practical effect to Article VI of the 
 constitution, and to the privileges and immunities clause 
 and equal protection of the laws clause of the constitu- 
 tion as applied to the conflicting judge-made state laws 
 
 private debt contracted in Louisiana during the Civil War, because the debt 
 was made payable in Confederate money. In Thorington v. Smith, 8 Wall., 1, 
 19 L. Ed., 361, Nov. 1, 1869, a case between citizens of different states, coming 
 up from Alabama, private debts contracted in the states of the Confederacy 
 during the Civil War, payable in Confederate money, were held valid and enforce- 
 able in the federal courts. I assume the Louisiana decision in Delmas v. Insur- 
 ance Co. was rendered after the federal decision in Thorington v. Smith. The 
 Louisiana decision is referred to in Smith v. Henderson, 23 La. An., 649, 651, under 
 the name of Henderson ». Mutual Ins. Co , as being reported in 23 La. An., but 
 I have not been able to find the Louisiana report of the case. All the cases in 
 23 La. An. were decided after Jan. 1, 1871. In the like case of Bank of Tennessee 
 v. Citizens' Bank of Louisiana, 14 Wall., 9, Swayne, J., the Louisiana decision 
 in question was rendered Dec. 14, 1869, i. e., a liLtle over a month after the decision 
 in Thorington ». Smith. In Bank of Tennessee v. Citizens' Bank of Louisiana, 
 the writ of error was dismissed, but the court retained the writ of error in Delmas 
 v. Insurance Co , because the Louisiana opinion rested the court's judgment 
 on Article 127 of the Louisiana constitution of 1868, giving it a retroactive effect 
 to invalidate past contracts, thus bringing the case under the contracts clause, 
 and directly within the letter of the opinion of Taney, C. J., in Ohio Life Insur- 
 ance and T. Co. D. Debolt, 16 How., 411, and of Miller J., Co. in R. R. v. Rock, 
 4 Wall., 177, and drawing a thin distinction between statute law and judge-made 
 law. See the statement of these cases by Gray, J., in N. 0. Waterworks Co. v. 
 La. Sugar Ref. Co., 125 U. S., 18, 33 34, 35. See McCullough v. Virginia, 172 
 U. S., 102, 116-125. In Gelpcke v. Dubuque, 1 Wall., 175, 214, Miller, J , said 
 
JUDGE-MADE STATE LAW 59 
 
 of state and federal courts. In Gelston v. Hoyt, 27 in 
 1818, speaking of the limitation to so-called "federal 
 questions" imposed on the appellate jurisdiction of the 
 Supreme Court of the United States over state courts by 
 section 25 of the Judiciary Act of 1879, in its present 
 form, R. S., Sec. 709, Story, J., said: 
 
 "Whether such a restriction be not inconsistent with sound policy, 
 and does not materially impair the rights of other parties as well 
 as of the United States, is an inquiry deserving of the most serious 
 attention of the legislature. We have nothing to do but to expound 
 
 he was utterly unable to see any distinction, as related to the judicial power of 
 the United States, between the case of an Iowa man who acquires by deed a 
 homestead for himself and family in Iowa, and the case of "a gambling stockbroker 
 of Wall Street" who "buys at twenty-five percent of the value" the bonds issued 
 to a railroad company in Iowa. It is submitted there is no constitutional distinc- 
 tion; that the distinction between the contract law of a state and the land law 
 of a state is an invidious, unconstitutional one; that both the Iowa farmer and 
 the gambling Wall Street broker, and not neither one of them, as Miller, J., con- 
 cluded, are entitled to invoke, or ought to be entitled to invoke under new legis- 
 lation, at different times and in different ways it may be, the protection of the 
 shield and panoply of the judicial power of the United States. 
 
 The idea that the constitution of the United States compels federal courts 
 to follow state decisions on questions of "state law" in exactly the same way, 
 and to exactly the same extent, that it compels state courts to follow federal 
 decisions on questions of "federal law," appears to be founded entirely and 
 exclusively upon the analogical argument of Marshall, C. J., in Elmendorf v. 
 Taylor, 10 Wheat., 152, 159, 160, so confidently relied on by Mr. Bibb in Rowan 
 v. Runnels, 5 How., 134, 136, 137, to get Groves v. Slaughter, 16 Pet., 449, rejected. 
 That analogical argument of Marshall, C. J., in Elmendorf ». Taylor means 
 no more and it has been so held repeatedly as a statement of the law, than his 
 statements, stripped of false analogies, in McKeen v. Dalancy's Lessee, 5 Cranch, 
 22, 32, Polk's Lessee v. Wendel, 9 Cranch, 87, 98, and Thatcher v. Powell, 6 
 Wheat., 119, 197, wherein the question of following state decisions expounding 
 the statute law of a state affecting titles to real estate first came before the court. 
 See the complete collection of cases by Bradley, J., in Burgess v. Seligman, 107 
 U. S., 20, 34, and the cases used by Miller, J., in Gelpcke v. Dubuque, 1 Wall., 175, 
 210, and especially the opinion of McLean, J., in Green v. Neal, 6 Pet., 219, 297, 
 298, 299. 
 
 Pennsylvania R. Co v. Hughes, 191 U. S., 477, 485-486, is a simple, interest- 
 ing, and important case, that admits of extended comment that cannot be entered 
 upon here. 
 
 "3 Wheat., 246, 309. 
 
60 CONSTITUTIONAL LAW 
 
 the law as we find it; the defects of the system must be remedied 
 by another department of the government." 
 
 I submit that there is nothing the matter with the 
 opinion of Story, J., in Swift v. Tyson; that it gives a 
 sound construction to the constitution, and to section 
 34 of the Judiciary Act of 1789, now R. S., Sec. 721; 
 that the whole of the growing, and fast becoming intoler- 
 able, trouble, mischief, and barbarism in our plurality 
 of judge-made state law, tending directly to create just 
 dissatisfaction with the constitution, to throw all private 
 business transactions into demoralized confusion, and so 
 to break up or alter the Union, does not arise at all out 
 of the opinion of Story, J., in Swift v. Tyson, but arises 
 wholly, solely, and exclusively, out of the failure of the 
 successors of Story, J., to carry his opinion in Swift v. 
 Tyson to its logical, just, proper, beneficial, and con- 
 stitutional result, so as to make actual, for the benefit 
 of the American people, the potentiality of the opinion 
 of Story, J., in Swift v. Tyson, to establish justice, and to 
 form a more perfect Union, in the wholly non-political 
 topic of the judicial administration of justice between 
 party and party by state and federal courts, as parts 
 of one whole, united, single, judicial system. 
 
 Lest it may be thought that the constitution leaves 
 no independence to the states, if it means that the rules 
 of judge-made state law declared or made by the Supreme 
 Court of the United States, in exercise of its jurisdiction 
 over controversies between citizens of different states, 
 may be made to prevail in a given state over opposing 
 rules of judge-made state law declared or made by the 
 highest court of that state, it may be observed that the 
 constitution secures to the legislatures of the several 
 states complete and perfect freedom to legislate any 
 federal rule of judge-made state law out of their states, 
 and to legislate in the opposing rule of judge-made state 
 
JUDGE-MADE STATE LAW 61 
 
 law declared or made by the state court. 28 Of what 
 practical use is the recent labor of the legislatures of 
 the several states to enact the Uniform Negotiable In- 
 struments Law, if we have no constitutional means of 
 securing a uniform judicial interpretation of it? Com- 
 petent observers are pointing out that the highest courts 
 of the several states are undoing the work of the legis- 
 latures of the several states to give the country the bene- 
 fits of uniformity in the law of commercial paper, by their 
 displays of judicial independence and originality as 
 declarers or makers of judge-made state law. I submit 
 the Supreme Court of the United States has played the 
 part of the flexible leaning judicial tower of Pisa on ques- 
 tions of state law long enough. 
 
 It is to be hoped that the Justices of the Supreme Court 
 of the United States may be able to unite their talents 
 on the work before the court and Congress of constructing 
 and delivering, on the basis of Swift v. Tyson, as hard 
 and strong a blow as the constitution allows for steadi- 
 ness, stability, and consistency, and for uniformity in 
 regions of the law where uniformity is important and 
 desirable, in the declaring or making, and administering, 
 of the judge-made law of every state, whether it be 
 "local law," or "general jurisprudence," by state and 
 federal courts operating in the same state. Even if a 
 minority of the court does privately think Swift v. Tyson 
 was wrongly decided, yet it was decided; is not a fiction, 
 and is a fact; was approved by Congress by re-enacting 
 section 34 of the Judiciary Act of 1789, as Brewer, J., 
 says in B. & O. R. Co. v. Baugh 29 ; and, as Professor Gray 
 says, the doctrine of Swift v. Tyson "is now too firmly 
 settled to be shaken." Let the whole of the potential 
 
 28 Curtis, Jurisdiction of U. S. Courts, 2 ed., note 1. And compare Scott v. 
 McNeal, 154 U. 5., 38, and Cunnius v. Reading School District, 198 U. S., 458. 
 29 149 N. S., 368. 
 
62 CONSTITUTIONAL LAW 
 
 good in the doctrine of Swift v. Tyson be made an actual 
 good to the full limit by the constitution; and to that 
 end, let there be an examination of the taken-for-granted 
 doctrine, that the framers of the constitution of the 
 United States made the monumental blunder of allowing 
 two courts in every state of equal authority, deriving 
 their authority from different sources, one from the 
 people of the state, and the other from the people of the 
 United States, to declare or make the judge-made state 
 law, with no superior to decide which of them is right 
 when they disagree. 
 
MOB DOMINATION 63 
 
 III 
 
 FEDERAL COURTS AND MOB DOMINATION 
 OF STATE COURTS: LEO FRANK'S CASE a 
 
 After Frank's trial, conviction, and sentence of death 
 for murder, by a Georgia trial court consisting of judge 
 and jury, and after confirmation of the conviction and 
 sentence by the highest court of Georgia authorized by 
 the local law of Georgia to review the trial, conviction, 
 and sentence, i.e., the Georgia Supreme Court, Frank 
 made an effort to remove his case to the federal courts by 
 means of a petition for the writ of habeas corpus under 
 the federal Habeas Corpus Act. His petition was founded 
 in part upon the following claim of fact, viz.: that his 
 trial in the Georgia trial court took place in the midst 
 of mob disorder and demonstrations so hostile to him, 
 and so calculated to influence and prejudice the judge 
 and jury against him, that his conviction and sentence 
 fairly must be called mob-produced, or in other words, 
 that the state trial tribunal — judge and jury — fairly 
 must be called mob-dominated. From this claim of 
 fact he drew the following legal inference as a claim of 
 federal law or federal right, viz.: a mob-produced con- 
 viction and sentence by a mob-dominated state trial 
 court of a person accused of violating the state criminal 
 law, when confirmed by the highest court of the state, 
 is an act of the state depriving the accused person of his 
 life or liberty without "due process of law" in contraven- 
 tion of the second prohibition of the fourteenth amend- 
 ment — "Nor shall any state deprive any person of life, 
 
 a [10 111. Law Rev., 479, February, 1916.] 
 
64 CONSTITUTIONAL LAW 
 
 liberty, or property, without due process of law" — and 
 hence the accused person in the custody of a state officer 
 under such mob-produced conviction and sentence is 
 "in custody in violation of the constitution ... of 
 the United States," within the meaning of those words 
 in the federal Habeas Corpus Act. 
 
 Putting aside the issue of fact tendered by Frank's 
 claim of mob disorder and demonstrations in and about 
 his trial in the Georgia trial court, or of mob domination 
 of the Georgia trial court, by assuming the claim to be 
 true in point of fact, is there any merit in his inferential 
 or consequential claim of federal law or federal right? 
 Is mob domination of a state trial court a test of "due 
 process of law" in the fourteenth amendment, when ap- 
 plied to restrain the exercise of the state judicial power 
 to administer the local state law? Does the due-process 
 prohibition of the fourteenth amendment recognize and 
 declare as a fundamental right, the right of litigants in 
 state courts in cases arising under the local state law to 
 have state tribunals as free, fair, and impartial as the 
 lot of humanity admits of, and place the right under the 
 protection of the United States to guard and preserve 
 it from denial or abridgment by the state? If the due- 
 process prohibition of the fourteenth amendment does 
 recognize and declare such federal right, there can be no 
 question that existing legislation of Congress concerning 
 the jurisdiction of the federal courts devolves upon those 
 courts the judicial duty of guarding and preserving the 
 right from denial or abridgment by the state, as, e.g., 
 the federal Habeas Corpus Act and federal Judicial Code, 
 Section 237, authorizing writs of error from the United 
 States Supreme Court to the highest court of a state in 
 which a decision in the suit could be had. 1 
 
 'See Logan v. United States (1892), 144 U. S., 263, where Gray, J., explains 
 the difference between (1) rights created by the federal constitution; and (2) 
 
MOB DOMINATION 65 
 
 To avoid becoming too abstractly speculative about 
 "justice," "fair trial," "due process of law," "life," 
 "liberty," or "property," it is well to keep in mind the 
 restraint of the facts of Frank's case. 
 
 It must be borne in mind throughout that Frank's case 
 arose in the Georgia state courts under the local law of 
 Georgia, and called upon the Georgia state courts to 
 administer only the local state law prescribed by the 
 state itself forbidding homicide and fixing the penalty. 
 No part of the local law of Georgia was drawn in question 
 as being in conflict with the constitution, laws, or treaties 
 of the United States. The case did not call upon the 
 Georgia state courts to administer any federal law, con- 
 stitutional, statutory, treaty, or judiciary, prescribed by 
 the United States, the same in every state and supreme 
 in every state. 
 
 No claim was made by Frank in his petition for the 
 federal writ of habeas corpus that the Georgia state 
 courts fell into any error of law or fact on the merits of 
 the issue of his guilt or innocence, that a federal court 
 could review, re-examine, and correct. His petition 
 proceeded on the basis of an admission that the verdict 
 of guilty and sentence of death rendered by the Georgia 
 trial court and confirmed by the Georgia Supreme Court 
 were so far correctly rendered under, through, and agree- 
 ably to the local law and usage of Georgia, that he had 
 and could have no claim they were rendered in violation 
 of the due-process prohibition of the fourteenth amend- 
 ment, or of any other part of the federal constitution and 
 laws. Frank's challenge of his conviction and sentence 
 by the Georgia courts went exclusively to the bias of 
 the state trial tribunal as having been produced by mob 
 
 rights which it recognizes and declares and protects from denial or abridgement 
 by states only, not by individuals, as in the due-process and equal-protection 
 prohibitions of the fourteenth amendment. 
 
66 CONSTITUTIONAL LAW 
 
 disorder and demonstrations, and not to the result on the 
 merits of the issue of his guilt or innocence arrived at 
 by the state trial tribunal. In other words, while claim- 
 ing that the Georgia trial court was dominated by a mob, 
 Frank admitted the mob frightened the tribunal, judge 
 and jury, into a verdict of guilty and sentence of death 
 that a free, fair, and impartial Georgia trial court, undom- 
 inated by a mob and dominated only by truth as shown 
 by the law and the evidence, could or might have ren- 
 dered under, through, and agreeably to the local law and 
 usage of Georgia, and hence correct in point of law and 
 justice, so far as the constitution, laws, and courts of 
 the United States are concerned. 
 
 Nor did Frank's petition for the federal writ of habeas 
 corpus make any claim that his conviction and sentence 
 by the Georgia courts discriminated against him person- 
 ally or as a member of a class, so as to be an act of the 
 state of Georgia denying or abridging his fundamental 
 right to the equal protection of the local laws of Georgia, 
 recognized and declared and placed under the protection 
 of the United States by the third prohibition of the 
 fourteenth amendment — "Nor shall any state deny to 
 any person within its jurisdiction the equal protection 
 of the laws" — and perhaps also in a case like Frank's by 
 the due-process prohibition. He made no claim what- 
 ever that the state of Georgia either in its local laws or in 
 its executive or judicial administration of its local laws 
 discriminated against him along race, religious, political, 
 or other illegal and corrupt lines, so that he was denied 
 or could not enforce in the courts of Georgia his federal 
 right to the equal protection of the local laws of Georgia. 
 Though his race or religion was noticed as a relevant 
 fact in newspaper and periodical comment on the case 
 while it was pending, yet his race or religion was not 
 shown in the case and was not a fact in the case at all. 
 
MOB DOMINATION 67 
 
 Frank did not even claim that the alleged disorderly and 
 demonstrative mob of Atlanta people was moved by 
 anything more unequal, illegal, and corrupt than horror 
 of the crime charged and its details. So far as appears, 
 any person within or outside the jurisdiction of Georgia, 
 whatever his race, color, or previous condition of servitude, 
 accused and put on trial for the crime charged against 
 Frank, would or might have encountered the same popu- 
 lar feeling of horror. The passion, feeling, prejudice, 
 or local influence, or whatever else it may be called, of the 
 alleged disorderly and demonstrative mob of Atlanta 
 people, excited by the crime charged and its details, was 
 one of those obstacles to the administration of justice 
 in the courts everywhere and at all times that litigants, 
 especially those accused of crime, always have had to 
 take their chances of meeting and removing. The line 
 of decisions of the United States Supreme Court com- 
 mencing with the "jury cases" in 1879 2 and reviewed 
 by the court in 1906 in Kentucky v. Powers, 3 correcting 
 unequal local state laws, and the unequal executive 
 and judicial administration of equal local state laws, dis- 
 criminating against individuals and classes along race, 
 religious, political, or other illegal and corrupt lines, were 
 not and could not be invoked by Frank, and have no 
 application to his case. 4 
 
 On the issue of fact of Frank's guilt or innocence, it 
 seems the evidence was such that a verdict of not guilty 
 would have been more satisfactory to the Georgia trial 
 judge, but the verdict of guilty was not so unsatisfactory 
 
 2 Strauder v. West Virginia, 100 U. S., 303; Ex parte Virginia, 100 U. S., 339; 
 Virginia v. Rives, 100 U. S., 313. 
 
 3 201 U. S., 1. 
 
 4 1 do not mean to say anything at all about whether the race or religious line 
 was or was not drawn against Frank, but only to say if the race or religious line 
 was drawn against him the thing was done in a way beyond the reach of any 
 existing earthly law or judicial tribunal, state or federal. 
 
68 CONSTITUTIONAL LAW 
 
 that the Georgia trial judge should or could have felt at 
 liberty to set it aside as being against the evidence, 
 without unlawfully substituting his own judgment for 
 the judgment of the jury, to whom the decision of the 
 issue of fact of guilt or innocence was confided by the 
 local law of Georgia. In criminal cases in the Georgia 
 state courts, as in like cases in the courts of the other 
 states, the jury has a wide range of discretion in the de- 
 cision of the issue of fact of guilt or innocence — an 
 uncontrollable, arbitrary discretion to find a verdict of 
 not guilty, but a judicially controllable discretion to find 
 a verdict of guilty, the judicial control of the jury's dis-, 
 cretion to find a verdict of guilty being exercisable before 
 the verdict by directing a verdict of not guilty, and after 
 a verdict of guilty by granting a new trial, if the trial 
 judge thinks the evidence is such that no jury could act 
 on it by finding a verdict of guilty. Also on a motion for 
 a new trial after a verdict of guilty, the trial judge has 
 a wide range of discretion to grant or refuse the motion 
 on other grounds than the weight of the evidence, his 
 order granting a new trial not being reviewable and his 
 order refusing a new trial being reviewable, in Georgia 
 as I understand it, as in most of the states. A motion 
 for a new trial after a verdict of guilty in a Georgia trial 
 court, as in other state trial courts, is a sort of a bill 
 in equity calling upon the trial judge to re-examine the 
 whole trial touching its general equity and fairness to 
 the accused in all respects, and not merely in respect of 
 the weight of the evidence. 5 
 
 6 See Blackstone's observations (3 Comra., 379, 380, 393) on the scope left 
 for the play and action of bias, partiality, and prejudice in the decision of issues 
 of law and of fact, whether tried by a judge alone or by judge and jury. Though 
 in legal theory the functions of judge and jury in the decision of issues of fact 
 have not changed since Blackstone's day, yet in point of fact the motions for a 
 directed verdict and for a new trial, and the practice of assigning error on their 
 disposition by the trial judge against the accused, have enlarged the functions 
 
MOB DOMINATION 69 
 
 The claim of mob domination of the Georgia trial 
 court set forth in Frank's petition for the federal writ of 
 habeas corpus, then, reduces itself to this: The alleged 
 disorderly and demonstrative mob of Atlanta people so 
 frightened the trial judge and jury that their minds and 
 hearts were hardened against Frank, so that he and his 
 counsel found it difficult or impossible to persuade and 
 move them to exercise their discretion in his favor on the 
 issue of fact of his guilt or innocence, and on his motion 
 for a new trial, conceding that their actual exercise of 
 their discretion against him by finding him guilty, deny- 
 ing his motion for a new trial, and sentencing him to 
 death, was not so unwarranted by the local law and usage 
 of Georgia and the evidence as to render his trial, con- 
 viction, and sentence so unfair as to be wanting in "due 
 process of law" under the fourteenth amendment, so far 
 as that phrase has to do with the trial of the merits of 
 the issue of his guilt or innocence as distinguished from 
 the bias of his trial tribunal, judge and jury. His claim 
 of mob domination of the Georgia trial court tendered 
 
 of the judges, giving them more control of the decision of the issues of fact in 
 jury-trial cases. The declaration of the rights of the accused in federal courts, 
 including an "impartial jury," in the sixth amendment of the federal constitution 
 is typical of the like declaration in the constitutions of the several states. The 
 declaration is not so much declaratory, as by way of fulfillrnent of the English 
 common law. See the historical article on "Early Opposition to the Petit Jury 
 in Criminal Cases," 30 Law Quar. Rev., 97. The Massachusetts declaration -of 
 rights of 1780, still in force, has the following in addition to the usual impartial- 
 jury and due-process declarations: "It is essential to the preservation of the 
 rights of every individual, his life, liberty, property, and character, that there be 
 an impartial interpretation of the laws and administration of justice. It is the 
 right of every citizen to be tried by judges as free, impartial, and independent 
 as the lot of humanity will admit. It is therefore not only the best policy, but 
 for the security of the rights of the people, and of every citizen, that the judges 
 of the Supreme Judicial Court should hold their offices as long as they behave 
 themselves well; and that they should have honorable salaries ascertained and 
 established by standing laws" (Part 1, Art. 29). See the observations of Mar- 
 shall, C. J., on the importance which the federal constitution attaches to the in- 
 dependence of federal judges, in Cohens v. Virginia, 6 Wheaton (1821), 264, 386, 
 387, 388. 
 
70 CONSTITUTIONAL LAW 
 
 to the state of Georgia what may be called an adminis- 
 trative issue of fact touching the bias of the state trial 
 tribunal, collateral to the issue of fact of his guilt or 
 innocence; and his inferential or consequential claim of 
 federal law or federal right was that this collateral admin- 
 istrative issue of fact on the bias of the state trial tribunal 
 is triable by a federal court on a petition for the federal 
 writ of habeas corpus as an issue separate and distinct 
 from the issue of guilt or innocence, because the due- 
 process prohibition of the fourteenth amendment recog- 
 nizes and declares as a fundamental right, the right of 
 litigants in state courts in cases arising under the local 
 state law to have tribunals free from mob domination, 
 and places this right under the protection of the United 
 States, acting through the federal courts, to guard and 
 preserve it from denial or abridgment by the state — as 
 a distinct, separate and independent right. 
 
 Pitney, J., said for the majority of the United States 
 Supreme Court: 
 
 "We of course agree that if a trial [in a state court] is in fact 
 dominated by a mob, so that the jury is intimidated and the trial 
 judge yields, and so that there is an actual interference with the 
 course of justice, there is, in that [state] court, a departure from 
 due process of law in the proper sense of that term in the fourteenth 
 amendment. And if the state, supplying no corrective process, 
 carries into execution a judgment of death or imprisonment based 
 upon a verdict thus produced by mob domination [even though 
 the verdict of guilty is one that may not be set aside by any judge 
 as being against the law and the evidence on the issue of guilt or 
 innocence], the state deprives the accused of his life or liberty 
 without due process of law [in contravention of the second 
 prohibition of the fourteenth amendment: 'Nor shall any state 
 deprive any person of life, liberty, or property, without due 
 process of law']." 
 
 And Holmes, J., said for himself and Hughes, J., dis- 
 senting from the majority's result: 
 
MOB DOMINATION 71 
 
 "Whatever disagreement there may be as to the scope of the 
 phrase 'due process by law' [in the fourteenth amendment], there 
 can be no doubt that it embraces the conception of a fair trial [in 
 a state court administering the local state law], with opportunity 
 to be heard. Mob law does- not become due process of law by 
 securing the assent of a terrorized jury [even though the terrorized 
 jury's verdict of guilty is one that may not be set aside by any 
 judge as being against the law and the evidence on the issue of 
 guilt or innocence]. We are not speaking of mere disorder, or mere 
 irregularities in procedure, but of a case where the processes of jus- 
 tice are actually subverted. To put an extreme case and show what 
 we mean, if the trial [in the state trial court] and the later hearing 
 before the [state] Supreme Court had taken place in the presence 
 of an armed force known to be ready to shoot if the result was 
 not the one desired [even though the desired result is one an un- 
 terrified court could reach under, through and agreeably to the 
 local state law], we do not suppose that this court would allow itself 
 to be silenced by the suggestion that the record showed no flaw. 
 To go one step further, suppose that the trial had taken place [in 
 the state trial court] under such intimidation, and that the Supreme 
 Court of the State, on writ of error, had discovered no error in the 
 record, we still imagine that this court would find a sufficient one 
 outside the record, and that it would not be disturbed in its con- 
 clusion by anything the Supreme Court of the State might have 
 said. . . . We do not think it impossible in any part of this 
 country to have trials [in state courts in cases arising under the 
 local state law] free from outside control. But to maintain this 
 immunity, it may be necessary that the supremacy of the law [i. e., 
 the local state law, I suppose] and of the federal constitution should 
 be vindicated [by the federal courts] in a case like this." 6 
 
 If by the passages quoted, separated from the majority's 
 result denying Frank's claim of federal protection by 
 refusing even to hear his claim of mob domination of the 
 Georgia trial court, the learned judges mean to be under- 
 stood as laying it down for self-evident federal constitu- 
 
 6 Frank v. Mangum (1915), 237 U. S., 309, 335, 347, 348, 349 The bracketed 
 inserts are mine. For Frank's Case in the Georgia Supreme Court, see 141 Ga., 
 • 243, 80 S. E., 1016; 142 Ga., 617, 741, 83 S. E. 233, 645. 
 
72 CONSTITUTIONAL LAW 
 
 tional law, that prejudice or local influence in a state 
 manifesting itself by mob domination of the state courts 
 in the trial and decision of cases arising under the local 
 state law, viewed as a thing separate and distinct from 
 the quality of the results on the merits arrived at by the 
 state courts under, through, and agreeably to the local 
 state law — or by newspaper domination, political dom- 
 ination, race domination, religious domination, corpora- 
 tion domination, organized-labor domination, or any 
 other domination except the one legitimate domination 
 of truth — is, may be, or can be an independent ground, 
 sufficient of itself, to bring cases arising under the local 
 state law within the range of the words of the federal con- 
 stitution extending the federal judicial power to "all 
 cases, in law and equity, arising under this constitution, 
 the laws of the United States, and treaties made, or which 
 shall be made under their authority," then certainly the 
 proposition is a novelty. 
 
 The result on the merits, and not the bias of the tri- 
 bunal, always has been regarded as the test of the "fair 
 forensic trial" secured by "due process of law" applied 
 as a judicially enforceable restraint on the exercise of 
 the judicial power. 
 
 The proposition overlooks the legal and constitutional 
 chasm between the freedom, fairness, and impartiality 
 (fides et officium) of judicial tribunals and their knowledge 
 (scientia) of law and fact as evidenced by their decisions. 
 It puts on the phrase "due process of law" in the four- 
 teenth amendment the proverbial last straw that broke 
 the camel's back, by devolving a kind of work on the 
 federal courts they are likely to find it hard to do without 
 causing breaches of the peace of the United States between 
 federal and state judges; i.e., the work of conducting 
 administrative inquests into the freedom, fairness, and 
 impartiality of state tribunals as distinguished from 
 
MOB DOMINATION 73 
 
 judicial inquests into the scientia of their decisions admin- 
 istering the local state law. 
 
 It is not a political question touching the importance 
 of securing, guarding, and preserving the freedom, fair- 
 ness, and impartiality of. state judicial tribunals in cases 
 arising under the local state law, for about that there is 
 no room for two opinions, but only a legal, constitutional 
 question of power and consequent duty, viz., whether 
 and how far the due-process prohibition of the fourteenth 
 amendment altered the pre-existing arrangements of our 
 dual governmental household so as to make the United 
 States acting through the federal judiciary the ultimate 
 guardian to secure, guard, and preserve the freedom, 
 fairness, and impartiality of state judicial tribunals, 
 when parties before state judicial tribunals, or about to 
 go before them, in cases arising under the local state law, 
 draw it in question as a collateral, incidental, administra- 
 tive issue of fact in the usual and ordinary course of 
 litigation. 
 
 Is the due-process prohibition of the fourteenth amend- 
 ment a genus including the following prohibition as one 
 of its species, viz. : "Nor shall any state employ its judicial 
 power to administer its local state law so as to deprive 
 any person of life, liberty, or property, without a free, 
 fair, and impartial tribunal"; or, more precisely to fit 
 Frank's case, "without a tribunal free from mob domi- 
 nation?" Is the bias of the state tribunal, as distinguished 
 from its results on the merits, a test of "due process of 
 law" in the fourteenth amendment, when applied to 
 restrain the exercise of the state judicial power to adminis- 
 ter the local state law? 
 
 There can be no question it is established federal con- 
 stitutional law, and was so when Frank's case arose in 
 the Georgia courts, that the due-process prohibition of 
 the fourteenth amendment applies to restrain the exer- 
 
74 CONSTITUTIONAL LAW 
 
 cise of the judicial power reserved to the states respec- 
 tively by the tenth amendment; and recognized and 
 declared as a fundamental right, the right of litigants 
 in state courts in cases arising under the local state law 
 to have the local state law administer judicially and not 
 arbitrarily, i.e., in the Anglo-American traditional spirit 
 of judicial equity and fairness agreeable to the reason 
 and judgment of mankind, and not wilfully, capriciously, 
 and arbitrarily so as to shock the reason and judgment 
 of mankind, both as to questions of law and questions 
 of fact arising under the local state law; and guarded 
 this right from denial or abridgment by the state by 
 placing it under the protection of the United States acting 
 through the federal judiciary. 7 
 
 This does not mean, however, that the due-process 
 prohibition of the fourteenth amendment recognized and 
 declared as a fundamental right, the right of litigants 
 in state courts in cases arising under the local state 
 law to have state tribunals as free, fair, and impartial 
 as the lot of humanity admits of, and guarded that right 
 to free, fair, and impartial state tribunals from denial 
 or abridgment by the state by placing it under the pro- 
 tection of the United States acting through the federal 
 judiciary. 
 
 Was the trial of the Seven Bishops wanting in "due 
 process of law" (lex terrae) under Magna Charta, c. 39, 
 because the king-packed bench and king-packed jury 
 
 7 Scott v. McNeal (1894), 154 U S., 34, which must be read with Cunnius v. 
 Reading School District (1905), 198 U. S. 458; C. B. & Q. R. Co. * Chicago (1897), 
 166 U. S., 266, 233, et seq. In Chicago, M. & St. P. R. Co. v. Polt (1913), 232 
 U. S., 165, Holmes, J., said "due process of law" means "the rudiments of fair 
 play." Johnson, J., quoted in Hurtado ». California (1884), 110 U. S., 516, 527, 
 said in 1819: "After volumes spoken and written with a view to their exposition 
 [i. e., the words nisi per legem terrae in Magna Charta, c. 39, or their equivalent, 
 'without due process of law'] the good sense of mankind has at last settled down 
 to this : that they were intended to secure the individual from the arbitrary exer- 
 cise of the powers of government." 
 
MOB DOMINATION 75 
 
 got frightened by the mob and decided the case as the 
 mob wanted it decided? Would it make any difference 
 if the mob had been intent on the conviction and sen- 
 tence of the Bishops and got the result it wanted? 8 Were 
 Lord Chancellor Bacon's decisions wanting in "due 
 process of law" because he took presents which we now 
 call bribes from one side and from both sides whenever 
 he could get them? His chief excuse was that his deci- 
 sions were correct in point of law and fact, and so far 
 as I know no one has challenged him on that, though of 
 course it was no excuse, according to present notions at 
 least. It is established that a state legislative act is 
 not wanting in "due process of law" under the fourteenth 
 amendment because the state legislature was bribed to 
 pass it. If a state legislature keeps within the con- 
 stitutional limits of its power and discretion, then, so far 
 as "due process of law" in the fourteenth amendment 
 is concerned, its act is law, and must be obeyed as law, 
 and enforced as law by all courts, state and federal alike, 
 whatever outside force dominated the state legislature 
 and used it as its tool to pass the act. 9 Similarly, it 
 would seem, if the highest judicial tribunal of a state 
 keeps within the constitutional limits of its power and 
 of the judicial discretion that inheres in the traditional 
 conception of the judicial office, then, so far as "due 
 process of law" in the fourteenth amendment is concerned, 
 
 8 Bushell's Case (1670), Vaugh., 135, 6 St. Tr. F 999, established the freedom 
 of jurors from interrogation and punishment for a verdict of not guilty in a 
 criminal case. The summing up of some of the judges in the Seven Bishops' case 
 (1688) was treated as of high authority by Hamilton at the bar and Kent on the 
 bench in People v. Croswell (1804), 3 Johns. Cas., 337, and by Gray, J., dissenting 
 in Sparf and Hansen v. United States (1895), 156 U. S., 51, 124-126. English 
 lawyers and judges try to forget the case, especially the presiding judges and what 
 they said. See e. g., Stephen, History of the Criminal Law of England, Index 
 of Cases, and Lord Mansfield's opinion in the Dean of St. Asaph's case (1784), 
 4 Douglas, 73. 
 
 9 See Fletcher v. Peck (1810), 6 Cranch., 87, and citations in Rose's Notes. 
 
76 CONSTITUTIONAL LAW 
 
 its decisions administering the local state law are bind- 
 ing on the parties, whatever outside force dominated 
 the tribunal and used it as its tool, whether the outside 
 force is a modern version of Stuart "kingcraft," or a 
 Georgia mob moved by horror of the crime charged 
 and belief in the guilt of the accused. 
 
 Under the constitution of the United States as it stood 
 before the due-process prohibition of the fourteenth 
 amendment, and so far as the United States was con- 
 cerned, the right of litigants in state courts in cases aris- 
 ing under the local state law to free, fair, and impartial 
 state tribunals was a political right to be protected and 
 enforced primarily by the people of the state themselves 
 in their own way, and only secondarily and as a last 
 resort by the political departments of the federal govern- 
 ment, i. e., by Congress and the President acting under 
 and in pursuance of the federal constitutional guaran- 
 tees to each state of a republican form of government, 
 freedom from invasion and domestic violence, and under 
 the war powers delegated to Congress and the President. 
 The due-process prohibition did not change the right 
 from a political right to a right justiciable by the federal 
 courts at the instance of parties to cases in the state 
 courts arising under the local state law as an adminis- 
 trative incident in the usual and ordinary course of liti- 
 gation. There is nothing in the due-process prohibition 
 of the fourteenth amendment that authorizes the United 
 States to substitute wholly or partially federal judicial 
 tribunals for state judicial tribunals in the administration 
 of the local state law, simply because the United States 
 acting through its legislative, executive, or judicial de- 
 partment, finds as a matter of fact that the judicial tri- 
 bunals provided by the state, though rendering decisions 
 under, through, and agreeably to the local state law, 
 are not free, fair, and impartial, because dominated 
 
MOB DOMINATION 77 
 
 by mobs, newspapers, races, religious sects, political 
 bosses, corporations, organized labor, etc., etc. If the 
 local state law can act and does act, the state tribunal 
 through which it acts, whether pure or defiled, is no con- 
 cern of the federal judiciary under "due process of law," 
 which has enough to do to keep itself pure and chaste 
 and above suspicion. 
 
 The Judiciary Acts of Congress of 1867, passed at 
 a time when the dominant party in Congress was ready, 
 inclined and eager to extend the federal judiciary power 
 to the limit of the federal constitution, did not recognize 
 "prejudice or local influence" as a distinct, separate, and 
 independent ground of jurisdiction in the federal courts. 
 Under those acts as passed and as now in force, unless 
 the case is one falling within the words of the federal 
 constitution extending the federal judicial power to 
 "controversies between citizens of different states," 
 "prejudice or local influence" cannot bring it within the 
 jurisdiction of the federal courts, except where the "pre- 
 judice or local influence" takes the form of official state 
 action denying the equal protection of the laws, so as 
 to bring the case within the words of the federal con- 
 stitution extending the federal judicial power to "all 
 cases, in law and equity, arising under this constitution, 
 the laws of the United States, and treaties made, or which 
 shall be made, under their authority." As already stated, 
 there was no claim in Frank's case of official state action 
 denying him the equal protection of the laws. 10 
 
 The old and familiar maxim in Bacon's Legal Maxims — 
 De fide et officio judicis non recipitur quaestio, sed de 
 scientia, sive sit error juris, sive facti — expresses the 
 distinction with reference to "due process of law" in the 
 fourteenth amendment between the right of litigants 
 
 10 Cochran v. Montgomery County (1905), 199 U. S., 260; Kentucky v. Powers 
 (1906); 201 U. S., 1. 
 
78 CONSTITUTIONAL LAW 
 
 in state courts in cases arising under the local state law 
 to have the local state law administered judicially and 
 not arbitrarily, and their right to have free, fair, and im- 
 partial state tribunals. The maxim marks and preserves 
 a great advance in the judicial administration of law 
 from the days when a defeated litigant's appeal from a 
 judicial decision was a challenge to the judge to fight 
 a duel. 11 The maxim expresses the essence of the "fair 
 forensic trial" secured by "due process of law." 12 Ob- 
 servance of the maxim in the judicial administration of 
 law is essential to sound and useful legal reasoning, to 
 impersonal, virile, and dignified debate and orderly pro- 
 cedure, and to preserve the principle of the supremacy 
 of law, conceiving "law" as a just and reasonable expres- 
 sion of the will of the community. The scientia of the 
 decision, and not the bias of the tribunal, is the test of 
 "due process of law" when applied to restrain the exer- 
 cise of judicial power. "By their fruits ye shall know 
 them." 13 
 
 The result of the decisions of the United States Supreme 
 Court from the "jury cases" in 1879 i4 down to Frank's 
 
 11 "The idea of a complaint against a judgment which is not an accusation 
 against a judge is not easily formed. But gradually in Edward I's day as the 
 king's court assumed a triple form — Common Bench, King's Bench, King in 
 Council — and as the work of taking assizes and delivering gaols fell more and 
 more into the hands of the permanent justices, men became familiar with the 
 notion of a 'procedure in error,' which does not call for a defense from the judges 
 who are said to have made the mistake." 2 Pollock & Maitland's History of 
 Eng. Law (2 ed.), 668, 669. 
 
 12 Hurtado v. California (1884), 110 U. S., 516, 526, quotation from Merrick, 
 J., dissenting in Jones v. Robbins, 8 Gray, 329. 
 
 13 Broom's Legal Maxims gives many illustrations showing how the maxim has 
 been applied. See Spaulding v. Vilas (1896), 161 U. S., 483, holding that malicious 
 motive is no foundation for a cause of action against an executive officer for an 
 act done within the scope of his official power and duty. 
 
 14 Strauder v. West Virginia, 100 U. S., 303, Ex parte Virginia, 100 U. S., 339, 
 Virginia *. Rives, 100 U. S., 313 And see C. B. & Q. R. Co. v. Chicago (1897), 
 166 U. S., 226, 234. 
 
MOB DOMINATION 79 
 
 case in 1915, concerning the application of "due process 
 of law" in the fourteenth amendment when used as a 
 federally judicially enforceable restraint on the exercise 
 of the reserved state judicial power to administer the 
 local state law, seems to be about as follows: The due- 
 process prohibition of the fourteenth amendment and 
 existing legislation by Congress to enforce it through the 
 medium of the federal courts authorize the federal courts, 
 usually only the federal Supreme Court, to review, re- 
 examine and reverse decisions of state courts administer- 
 ing the local law of the state only for want of scientia 
 in the state decisions on questions of law or questions 
 of fact arising under the local state law. Not every 
 want of scientia in state decisions administering the 
 local state law will authorize their reversal by federal 
 courts as being wanting in ' 'due process of law' ' under the 
 fourteenth amendment. The want of scientia in the 
 initial state decision may be enough to authorize and 
 require its reversal by the highest court of the state, but 
 not enough to authorize and require its reversal by a 
 federal court for want of "due process of law" under 
 the fourteenth amendment. To bring a state decision 
 administering the local state law into collision with the 
 due-process prohibition of the fourteenth amendment, 
 the want of scientia in the state decision must be gross — 
 so gross as to shock the reason and judgment of mankind 
 by crossing the line that separates judicial discretion 
 from arbitrary power, where the light of reason and judg- 
 ment goes out and force begins in the form of arbitrary 
 power. "Due process of law" in the fourteenth amend- 
 ment, as applied to restrain the state judicial adminis- 
 tration of the local state law, is nothing more nor less 
 than a due intellectual process of reason and judgment 
 in the exercise of the judicial discretion inherent in the 
 conception of the judicial office. The range of judicial 
 
80 CONSTITUTIONAL LAW 
 
 discretion allowed by "due process of law" in the four- 
 teenth amendment to state judicial tribunals administer- 
 ing the local law of the state is wider than the range of 
 administrative discretion allowed by "due process of 
 law" in the fifth amendment to federal executive officers 
 and boards or commissions administering the laws of the 
 United States. 15 But under "due process of law" in the 
 fourteenth amendment the range of state judicial dis- 
 cretion to make, alter, or repeal the local state law, i.e., 
 to make new local state law, under the judicial theory, 
 or fiction — as Bentham, Austin, and many others follow- 
 ing them insistently call it — of "discovering and declar- 
 ing" or administering existing local state law, is not so 
 
 15 It is not always easy to tell from the opinions whether the right to a judicial 
 re-examination of the administrative discretion of federal executive officers, 
 boards, and commissions, flows from "due process of law" in the fifth amendment, 
 or from the idea that a Congressional delegation of administrative power and 
 duty presumably creates a public trust to be executed fairly and not arbitrarily, 
 and sometimes Congress expressly imposes the duty to be fair. It is hard to see 
 what the due-process prohibition of the fifth amendment can have to do with, 
 e. g., the right of soldiers and sailors and their widows and orphans to pensions, 
 or with the right of a person to buy and from the federal government, or with 
 the right of a person to send mail through the post-office as second-class, rather 
 than first- or third-class, or with the right of an alien to come into the country, 
 or to remain after he has worn out his welcome. But when "administrative 
 justice" is substituted for "judicial justice" over, e. g., a person's right to manage 
 his own property, then federal "administrative justice" free from judicial re- 
 examination and control for arbitrariness is legally impossible, so long as the 
 federal bill of rights stands judicially enforceable as at present. 
 
 "In the comparatively few cases in which such questions have arisen it has 
 been distinctly recognized that administrative orders, quasi-judicial in character, 
 are void- if a hearing was denied; if that granted was inadequate or manifestly 
 unfair; if the finding was contrary to the 'indisputable character of the evidence"; 
 or if the facts found do not, as a matter of law, support the order made." — 
 Lamar, J., in Int. Com. Comm. v. Louis. & Nash. R. R. (1913), 227 U. S, 88, 
 91, citing a number of cases on all sorts of subjects. The phrase "as a matter of 
 law ' in the last sentence seems to be the old phrase in jury trials, "question of 
 law for the judge," which often in jury-trial cases means "question of fact for the 
 judge." See also per White, C. J., in Florida Coast Line v. United States (1914), 
 234 U. S., 167, 185, and United States v. Louis. & Nash. R. R. Co. (1914), 235 
 U. S., 314. See Professor Dicey's article on "The Development of Administrative 
 Law in England," 31 Law Quar. Rev., 148, being a comment on two recent 
 decisions by the House of Lords. 
 
MOB DOMINATION 81 
 
 wide as the range of state legislative discretion to declare 
 what the local state law shall be for the future, i.e., to 
 make new local state law, though perhaps there are 
 judicial expressions which seem to say or do say the two 
 ranges coincide. To deny this coincidence is not to say 
 that the principle of the separation of the departments 
 is involved in, and imposed on the states by "due pro- 
 cess of law" in the fourteenth amendment, for when the 
 state legislative, executive, and judicial powers are lodged 
 in a single hand, they are still essentially different powers, 
 as their exercise involves essentially different intellectual 
 processes. 16 "Due process of law" was an effective and 
 useful judicially enforceable restraint on the exercise 
 of judicial and executive discretion in the administration 
 of existing law long before the American attempt to use 
 it as a judicially enforceable restraint on the exercise of 
 the legislative discretion of popularly elected legislatures 
 to declare the law for the future. Under the restraint 
 of "due process of law," to judge men is one thing, and 
 to show them the way wherein they must walk for the 
 future is an essentially different thing. Arbitrary judicial 
 power and arbitrary legislative power are different things ; 
 
 16 Prentis v. Atlantic Coast Line (190S), 211 U. S., 210, 225-228, per Holmes, J. , 
 Aristotle remarked that the legislative, executive, and judicial powers are intellect- 
 ually different. Politics, Book 6, c. 14, quoted in 1 Thayer, Cases in Constitu- 
 tional Law, pp. 1, 2. Rousseau's dictum (Social Contract, Book 2, c. 2), wherever 
 he got it, that "sovereignty is an indivisible unit," is no proof the three powers are 
 an indivisible unit, or should be lodged in a single hand. What would be "due 
 process of law" as applied to the "fair forensic trial" with the "Sovereign One 
 or Number" in the judgment-seat may be illustrated by the following anecdote 
 of Domitius Afer, "the most celebrated advocate o his time": "One day Julius 
 Gallicus was pleading before the Emperor Claudius, who held his court near the 
 banks of the Tiber. The advocate, having irritated the prince, was by his 
 orders thrown into the river. Some days afterwards a client of Gallicus brought 
 his case to Afer, requesting him to plead it before the Emperor: 'Who told you,' 
 said Afer, 'that I was a better swimmer than Gallicus?" Mackenzie, Roman 
 Law, p. 393, citing Dion Cassius. See Lord Coke's speech that kept James I 
 off the bench. Prerogatives Del Roy (1607), 12 Co. Rep., 63. 
 
82 CONSTITUTIONAL LAW 
 
 a rule of law flowing from the judicial power may be 
 arbitrary, though it would not be arbitrary if it flowed 
 from the legislative power. 17 If a state may employ its 
 reserved judicial power to judge men's past conduct by 
 known or reasonably knowable existing standards, for 
 the purpose of promulgating new standards of conduct, 
 and then to judge men's past conduct by such new stan- 
 dards, then "due process of law" in the fourteenth amend- 
 ment has no meaning, as applied to restrain the state 
 judicial power to administer the local state law. Civi- 
 lized men everywhere have denounced retroactive law 
 from whatever source flowing. It was one of Cicero's 
 points against Verres, and we are told Cicero's speech 
 was the cause of the passage of the Roman law forbidding 
 the praetor to change his edict after he proclaimed it 
 for the year. 18 It is not to be denied that a federal de- 
 cision reversing a state decision administering the local 
 state law as being so wanting in scientia as to be arbitrary 
 and hence wanting in "due process of law" under the 
 fourteenth amendment may be evidence, and cogent 
 or decisive evidence, of bad faith, partiality, bias and 
 prejudice or corruption in the state tribunal that ren- 
 dered it, and so may disgrace and dishonor the state 
 tribunal in the face of the whole country, but this 
 is a collateral logical or popular consequence of the 
 federal reversing decision with which the federal tri- 
 bunal has no concern; this collateral logical or popular 
 consequence of the federal reversing decision is not 
 the cause or ground of it; the collateral logical or 
 popular consequence of a judicial decision after it is 
 
 17 Scott v. McNeal (1894), 154 U. S., 34, and Cunnius v. Redding School Dis- 
 trict (1905), 198 U. S., 458. 
 
 18 Sohm's Institutes of Roman Law, Ledlie's Trans. (2 ed.), pp. 79, 80; Dash v. 
 Van Kleeck (1811), 7 Johns., 477, opinion of Kent, C. J., on the maxim that the 
 law-giver cannot alter his mind to the prejudice o a vested right. 
 
MOB DOMINATION 83 
 
 rendered, and the question to be decided and decided, are 
 different things. 19 
 
 In truth, however, the decisions of the United States 
 Supreme Court throw no light or only a dim light on the 
 line drawn by "due process of law" in the fourteenth 
 amendment separating judicial discretion from arbitrary 
 power in the exercise of the state j udicial power to adminis- 
 ter the local state law. Indeed, the proposition that the 
 due-process prohibition of the fourteenth amendment ap- 
 plies to restrain state courts administering the local state 
 law by drawing a line between judicial discretion and 
 arbitrary power and confides the work of defining and 
 guarding the line to the federal judiciary is but a generality, 
 a swelling sound in the air, that has not yet exploded 
 on the surface of the ground, because there is no clear 
 instance wherein the Supreme Court of the United States 
 reversed a state decision administering the local law of 
 the state on the distinct ground of want of scientia in 
 the state decision on a question of law or a question 
 of fact arising under the local state law so gross as to 
 show that the state decision flowed from arbitrary power 
 and not from judicial discretion. The distinction between 
 judicial discretion and arbitrary power is about as old 
 
 19 Want of scientia in a judicial decision is not often evidence of bad faith or 
 bias in the judge or judges who rendered it, though it is becoming rather common 
 for non-professional and even professional critics of judicial decisions to impugn 
 the motives of the judges. For example, decisions like those in Adair v. United 
 States (1908), 208 U. S., 161; Coppage v. Kansas (1915), 236 U. S., 1; and Loch- 
 ner v. New York (1905), 198 U. S., 45 — holding that "due process of law" 
 forbids political action by union workmen through the legislature to get results 
 like fixed hours of labor and freedom from discrimination for membership in a 
 labor union, which union workmen are getting all the time by ''economic pres- 
 sure" on their employers by means of the "peaceful" strike, boycott and collec- 
 tive bargain, in spite of the judicial extension of the writ of injunction to strikes 
 and boycotts — are commonly cited as proof positive the judges who rendered 
 them are "tools of the corporations," or have "the wrong bias," as more learned 
 and conventionally polite psychologists of justice phrase it. For all legal pur- 
 poses, however, the good or bad motives of judges cut no figure whatever; their 
 results and their published reasons for their results alone count. 
 
84 CONSTITUTIONAL LAW 
 
 as the English common law, but its practical application 
 to state judicial tribunals administering the local state 
 law under the restraint of the due-process prohibition of 
 the fourteenth amendment is a new topic, sui generis, 
 peculiar to the United States because of our dual system, 
 not destroyed, though materially modified, by that 
 prohibition. We have expended, or wasted, so much 
 time and legal talent trying to inject into the phrase 
 "due process of law" in the prohibition Adam Smith's 
 and David Ricardo's political economy and its fiction of 
 the "equal economic man" "selling his labor" to the 
 highest bidder, to give the phrase an understandable and 
 judicially workable meaning as a federally judicially 
 enforceable restraint on state legislative discretion in the 
 making of new local state law, that seemingly we have 
 forgotten all about the task of giving it an understand- 
 able and judicially workable meaning as a federally 
 judicially enforceable restraint on state judicial discre- 
 tion in the administration of old or existing local state 
 law — the place where it is easier to define and apply. 20 
 The expressed ratio decidendi in Frank's case, shifting 
 the test of the "fair forensic trial," which is due parties 
 
 20 In Scott o. McNeal (1894), 154 U. S., 34, the Supreme Court of Washington 
 was reversed under the test of "due process of law" for discovering in the English 
 common law the local state rule of jurisdiction- that a Washington probate court, 
 acting on the presumption of death from absence for seven years, may administer 
 the estate of a person who is, in fact, alive. The whole court fell into the not 
 unusual error of thinking the English common-law rule of jurisdiction in question 
 was not a local state rule, but a federal rule of jurisdiction unalterable by any 
 state, limiting the power reserved to the states respectively by the tenth amend- 
 ment, like the federal rule of jurisdiction in Pennoyer v. Neff (1878), 95 U. S., 714, 
 and Simon v. Southern R. Co. (1915), 236 U. S., 115, cited by Holmes, J., in 
 Frank's Case, 237 U. S., 309, 347, that personal service within the state is essen- 
 tial to support a personal judgment. This error in the ratio decidendi of Scott 
 v. McNeal was pointed out and corrected in Cunnius v. Reading School Dis- 
 trict (1905), 198 U. S. 458, sustaining the local rule of jurisdiction in Scott v. 
 McNeal, when made by a state legislature, expressly saving the result in Scott v. 
 McNeal, and thus strengthening Scott v. McNeal for the purpose for which it is 
 here used. But Scott v. McNeal is still mistakenly cited judicially as a leading 
 
MOB DOMINATION 85 
 
 in state courts under "due process of law" in the four- 
 teenth amendment, from the result on the law and the 
 evidence to the bias of the state tribunal, was not called 
 for by the facts of the case; is not necessary to support 
 the majority's result; and is, on the contrary, inconsistent 
 with the majority's result, for it compels the opposite re- 
 sult arrived at by Holmes and Hughes, J J., dissenting. 
 
 What was Frank's case? He was indicted for murder 
 in a Georgia trial court. The jury found a verdict of 
 
 case under the rule of Pennoyer v. Neff, as by White, C. J., in Riverside Mills v. 
 Menefee (1915), 237 U. S., 189, 194, and by Lamar, J., in Simon ». Southern Ry. 
 (1915), 236 U. S., 115, 122, with which compare its citation by Pitney, J., in 
 Grannis v. Ordean (1914), 234 U. S., 385, 394. 
 
 In Muhlker v. Harlem R. Co. (1905), 197 U. S., 544, under the test of "due 
 process of law" the court reversed a decision of the New York Court of Appeals, 
 refusing to extend the local rule of the New York Elevated Railroad Cases to an 
 abutter whose property was consequently damaged by the elevated structure of 
 a commercial railroad in a public street. The majority thought the phrase 
 "obligation of contracts" had something to do with the case, but they enforced 
 the due-process clause as well as the contracts clause. In the later case of Sauer 
 v. New York (1907), 206 U. S., 536, wherein the court sustained the New York 
 Court of Appeals' refusal to extend the local rule of the Elevated Railroad Cases 
 to an abutter whose property was consequentially damaged by a municipal 
 change of the grade of a public street — the court expressly said it was not re- 
 treating from Muhlker's case. The whole law, whatever it may be, concerning the 
 relation of federal and state courts to local state law under "due process of law" 
 in the fourteenth amendment is in the three cases cited, implicit or explicit. 
 If, in Sauer's Case (1907), 206 U. S., 536, 546, Moody, J., means to say that the 
 "precisely defined purpose" for which the federal Supreme Court is "made, by 
 the laws passed in pursuance of the constitution, a court of appeals from the 
 highest courts of the states," excludes altogether any federal judicial authority 
 to re-examine and reverse for arbitrariness state decisions in local state law, and 
 that Murdock v. Memphis (1875), 20 Wall., 590, so decides, the decisive answer 
 is, that the court was and is against him, when the court is judged by what it 
 does rather than by what it says. Many judges of the court since Murdock v. 
 Memphis have proclaimed the complete and absolute finality of state decisions 
 in local state law, as a political and constitutional reminiscence of ante-bellum 
 days, but they usually throw out as an anchor to windward, the arbitrary state 
 decision in local state law. See per Holmes, J., in Patterson v. Colorado (1907), 
 105 U. S., 454; Leathe v. Thomas (1907), 207 U. S., 93; Willoughby v. Chicago 
 (1914), 235 U. S., 45; and the cases cited by Pitney, J., in Frank's Case, 237 
 U. S., on pp. 326, 341, 342, 343. 
 
 Most of the cases, coming up from state courts on writ of error or on habeas 
 corpus, are criminal cases, usually capital, wherein is drawn in question a state 
 
86 CONSTITUTIONAL LAW 
 
 guilty. He moved for a new trial, and one of the grounds 
 of his motion was a claim of mob disorder and demonstra- 
 tions hostile to him and calculated to influence and preju- 
 dice the jury against him. The trial judge heard Frank's 
 claim of mob disorder and demonstrations on affidavits 
 pro and con and, upon his own knowledge of what took 
 place, denied the motion for a new trial, and rendered 
 judgment on the verdict of guilty, inflicting the death 
 penalty. The Georgia Supreme Court affirmed the 
 judgment. 21 As to Frank's claim of mob disorder and 
 
 court's administration of the local state law of practice, procedure, and juris- 
 diction in criminal cases. There seems to be an idea, at the bar at least, that 
 "due process of law" is more of a restraint on the state's judicial administration 
 of its local law of practice, procedure, and jurisdiction, than of its local substan- 
 tive law, whereas the truth is just the other way, because judicial discretion 
 over the law of practice, procedure, and jurisdiction always has been legislative 
 in its range. And it is too often overlooked, even on the bench, that the dis- 
 tinction between want of jurisdiction and abuse of jurisdiction, as applied in 
 direct and collateral attack on judicial decisions, is entirely out of place under 
 the test of "due process of law" in the fourteenth amendment applied to state 
 decisions in local law. There is no allowable legal theory for saying a state's 
 "judicial justice 1 ' under its local law is more immune from federal judicial re- 
 examination and reversal under "due process of law" in the fourteenth amend- 
 ment, than a state' . "administrative justice" under its local law. It may be 
 true, and no doubt is true at present, that state judges give out better local jus- 
 tice than state executive officers, boards, and commissions. That, however, is 
 only a difference in fact, not in law, which may not always hold good. 
 
 "Due process of law" in the fourteenth amendment does not prevent the 
 people of a state from carrying the present-day tendency to substitute "adminis- 
 trative justice" for "judicial justice" so far as to wipe out "judicial justice" 
 altogether all along the line of the local state law. It makes no difference under 
 "due process of law" whether the system of local justice in a state is called "judi- 
 cial" or "administrative" so long as the results are not arbitrary. Missouri v. 
 Lewis (1880), 101 U. S., 22. See Oregon R. R. & U. Co. v. Fairchild (1912), 244 
 U.S., 510; Louisville & Nashville R. Co. „. Finn (1914), 235 U.S., 601, and Gt. 
 Northern R. Co. v. Minnesota (1915), 238 U. S., 341, where state administrative 
 decisions in local state law, affirmed by the highest court of the state in the first 
 and second cases, were re-examined under the test of "due process of law," and 
 reversed in ihe first and third instances, and affirmed in the second instance, 
 where the court (235 U. S., on p. 606) left open the question whether "due process 
 of law" in the fourteenth amendment imposes on state administrative justice in 
 local law all the restraints the court has held applicable to federal administrative 
 justice in federal law. See note 31, infra. 
 
 21 141 Ga., 243; 80 S. E., 1016. 
 
MOB DOMINATION 87 
 
 demonstrations, the Georgia Supreme Court disregarded 
 all incidents of mob disorder and demonstrations relied 
 on by Frank except those the evidence showed occurred 
 within the hearing or knowledge of the jury, which, I 
 suppose, though the fact is not expressly stated, was a 
 locked-up jury, guarded and cut off from intercourse 
 with the outside world. The court then said the evidence 
 warranted the trial judge in finding the incidents of mob 
 disorder and demonstrations shown by the evidence to 
 have occurred within the hearing or knowledge of the 
 jury were trivial, unworthy of the description "mob 
 disorder and demonstrations" as understood in the local 
 law of Georgia concerning jury trial, and not calculated 
 to influence and prejudice the jury so as to deprive Frank 
 of the right to an "impartial jury" secured by the Georgia 
 constitution. Then Frank made what is called "an 
 extraordinary motion for a new trial" under Georgia 
 Code (1910), Sees. 6089, 6092, on the ground of newly 
 discovered evidence on the issue of his guilt or innocence. 
 The trial judge denied the motion, and the decision was 
 affirmed by the Georgia Supreme Court. 22 Before this 
 decision and about six months after his conviction and 
 sentence in the trial court and two months after the 
 Georgia Supreme Court's affirmance of his conviction 
 and sentence, Frank made a motion to the trial court 
 described as "a motion to set aside the verdict of guilty 
 as a nullity." The motion was based upon two grounds, 
 viz., first, a claim of enforced absence when the verdict 
 of guilty was rendered and the jury polled; second, a claim 
 of mob disorder and demonstrations in substance the 
 same as the one in his motion for a new trial. The state 
 demurred to this motion. The trial court sustained the 
 demurrer, and dismissed the motion, and its decision 
 
 22 142 Ga., 617; 83 S. E., 233. 
 
88 CONSTITUTIONAL LAW 
 
 was affirmed by the Georgia Supreme Court. 23 The 
 court said Frank waived his claim of enforced absence 
 when the verdict of guilty was rendered and the jury 
 polled by not including it in his motion for a new trial, 
 and declined to consider the new claim of mob disorder 
 and demonstrations because it was the same in substance 
 as the one in the motion for a new trial already adjudi- 
 cated against Frank, the court basing its finding of iden- 
 tity in substance on judicial notice taken of the record 
 in the previous case. To review this last judgment of 
 the Georgia Supreme Court denying his motion to set 
 aside the verdict of guilty as a nullity on the two grounds 
 stated, Frank applied to the chief or presiding justice 
 of the Georgia Supreme Court, to several justices of the 
 United States Supreme Court, and finally to the latter 
 court itself, for an order allowing a writ of error from the 
 latter court under federal Judicial Code, Sec. 237. The 
 applications were severally denied, but for what reason 
 does not appear, though it appears Holmes and Hughes, 
 JJ., were in favor of granting the order. 24 Then Frank 
 petitioned a federal District Court in Georgia for a writ 
 of habeas corpus under the federal Habeas Corpus Act. 
 The grounds of his petition were the same as the grounds 
 of his motion in the Georgia courts to set aside the verdict 
 of guilty as a nullity, viz., first, his claim of enforced 
 absence when the verdict of guilty was rendered and the 
 jury polled; and, second, his claim of mob disorder and 
 demonstrations calculated to influence and prejudice the 
 jury against him. His legal inference from these two 
 claims severally was that his conviction and sentence were 
 "without due process of law" under the fourteenth amend- 
 ment, and hence his custody by a state officer under the 
 
 23 142 Ga., 714; 83 S. E., 645. 
 
 24 235 U. S., 694; 237 U. S., on pp. 317, 346. 
 
MOB DOMINATION 89 
 
 m 
 
 conviction and sentence was "in violation of the consti- 
 tution of the United States" under section 753 of the 
 federal Habeas Corpus Act. The federal District Court 
 in Georgia thought Frank's petition showed on its face 
 he was lawfully detained so far as the constitution of the 
 United States is concerned, i. e., that he was not "in 
 custody in violation of the constitution of the United 
 States," and therefore, as required by the federal Habeas 
 Corpus Act, refused to issue the writ and dismissed the 
 petition. On appeal to the United States Supreme 
 Court the decision was affirmed by a seven to two vote, 
 Pitney, J., writing the majority opinion, and Holmes, J., 
 a dissenting opinion concurred in by Hughes, J. 25 
 
 First. As to Frank's claim that the verdict of guilty 
 was rendered and the jury polled during his enforced 
 absence, and his legal inference of "custody in violation 
 of the constitution of the United States," i. e., the due- 
 process prohibition of the fourteenth amendment. 26 
 
 It is hard to see how any claim of a federal right to a 
 free, fair, and impartial state judicial tribunal, judge and 
 jury, could have anything to do with this. It has been 
 settled for some time that "due process of law" in the 
 fourteenth amendment does not recognize and declare 
 as a fundamental right, the right to have an issue of fact 
 in a case in a state court tried by a jury. 27 It seems very 
 clear the only federal right Frank could rely on was the 
 
 26 237 U. S., 309. 
 
 26 Frank's explanation of his absence is as follows, as stated by Holmes, J., in 
 237 U. S., on p. 346: "The judge, before beginning his charge to the jury, had 
 a private conversation with petitioner's [Frank's] counsel in which he expressed 
 the opinion that there would be 'possible danger of violence' if there should be 
 an acquittal or a disagreement, and that it would be safer for not only the peti- 
 tioner but his counsel to be absent from the court when the verdict was brought 
 in. At the judge's request they agreed that the petitioner and they should be 
 absent, and they kept their word." 
 
 27 Decisions are cited by Pitney, J., in 237 U. S., on p. 340. 
 
90 CONSTITUTIONAL LAW 
 
 fundamental right to have the local law of Georgia, 
 i. e., in this instance the local law of Georgia concerning 
 jury trial in criminal cases, administered judicially and 
 not arbitrarily by the courts of Georgia. It is not easy 
 to tell from the majority opinion, however, whether the 
 court means to say that Frank had no federal right at all 
 that could be denied or abridged by the state of Georgia 
 through its courts, or to say that he did have the federal 
 right stated to have the local law of Georgia concerning 
 jury trial in criminal cases administered judicially and 
 not arbitrarily, and then to decide that on Frank's own 
 showing the federal right was not denied or abridged by 
 the state of Georgia through its courts. The latter 
 seems to be the correct interpretation of the majority 
 opinion, which is unanimous on the point now in hand. 
 When the local law of Georgia is looked into, and the 
 majority opinion examines it carefully, 28 it seems too 
 plain for serious discussion that the decision of the 
 Georgia Supreme Court — holding Frank's failure to 
 include it in his motion for a new trial was a waiver of 
 any claim to set aside the verdict he may have had under 
 the Georgia law concerning jury trial in criminal cases 
 by reason of his claim that the verdict of guilty was 
 rendered and the jury polled during his enforced ab- 
 sence — was a normal and not an arbitrary exercise 
 of the state judicial power to administer the local state 
 law. The Georgia decision is the one any reasonable 
 man might expect, when compelled to face the problem 
 as Frank and his counsel were when they drew up the 
 motion for a new trial. And even if, as Frank's counsel 
 maintained, this Georgia decision was logically incon- 
 sistent with a previous Georgia decision, or even expressly 
 overruled a previous Georgia decision, it would not there- 
 
 28 237 U. S. ( on pp. 338, 339, 343, 344. 
 
MOB DOMINATION 91 
 
 fore necessarily follow that this Georgia decision was an 
 arbitrary exercise of the state judicial power, for an 
 illogical exercise of the state judicial power may be and 
 often is a normal exercise of it 29 ; and an exercise of it to 
 overrule a previous decision may be and sometimes is a 
 normal exercise of it. 30 All this is especially true where 
 the question in hand is as in this case of Frank's one in 
 the local law of practice and procedure, for changing 
 the practice and procedure in the courts always has been 
 peculiarly within the range of the judicial power and 
 discretion. But the claim of Frank's counsel that this 
 Georgia decision made or "discovered and declared" new 
 law which practically and in fact operated on Frank as 
 an ex post facto law stands on a different footing. It is 
 hard to see how an exercise of the state judicial power 
 to "make" or "discover" an ex post facto law, even a 
 procedural ex post facto law, under the guise of "discov- 
 ering and declaring" existing law, can be a normal exer- 
 cise of it. While it is true, as Pitney, J., says, it has been 
 held repeatedly that the prohibition in the body of the 
 federal constitution, Art. 1, Sec. 10, "No state shall 
 . . . pass any ... ex post facto law," applies 
 only to the state's exercise of its legislative power, never- 
 theless if a state uses its judicial power to "pass," or 
 "make," or "discover and declare," an ex post facto law, 
 then the state violates the due-process prohibition of 
 the fourteenth amendment, if it has any meaning to 
 restrain the state acting through its courts, and it makes 
 no difference whatever how many times it has been held 
 this ex post facto prohibition applies to the state only 
 
 29 "I entirely deny that [a case] can be quoted for a proposition that may seem 
 to follow logically from it. Such a mode of reasoning assumes that the law is 
 necessarily a logical code, whereas every lawyer must acknowledge that the law 
 is not always logical at all." Lord Halsbury in Quinn v. Leathern (1901), A. C, 
 495, 506; and Marshall, C. J., in Cohens v. Virginia (1821), 6 Wheat., 264, 399. 
 
 30 Willoughby v. Chicago (1914), 235 U. S., 45. 
 
92 CONSTITUTIONAL LAW 
 
 when acting through its legislature. The true and only 
 answer to Frank's claim that this Georgia decision 
 "passed," or "made," or "discovered and declared," 
 an ex post facto law is a direct denial: The Georgia 
 decision, even if new or even unexpected, was not an 
 ex post facto law, within any sensible meaning of the 
 phrase. 31 
 
 31 "The nature and operation of the rule are not affected by any pecularity 
 in the authority which establishes it. If it is not objectionable as an ex post 
 facto law, when introduced by judicial decision, it is because it is not so in its 
 nature ; and, if not, it does not become so when introduced by legislative declara- 
 tion." Matthews, J., dissenting in Kring v. Missouri (1882), 107 U. S., 221, 
 248, Waite, C. J., Bradley, and Gray, JJ., concurring in the dissent, Miller, J., 
 writing the majority opinion. It seems the court is trying hard to harmonize 
 its results under the ex post facto and contracts clause, "No state shall . . . 
 pass any ex post facto law, or law impairing the obligation of contracts," with 
 the verbal jurisprudence of Miller, J., that a state cannot violate that clause 
 when it acts through its courts, because, forsooth, the state courts do not pass 
 any law." "I understand the doctrine to be," said Miller, J., dissenting in 
 Gelpcke v. Dubuque (1864), 1 Wall., 175, 211, "... not that the [state] 
 law is changed, but that it always was the same as expounded by the later [state] 
 decision." Gray, J., gives an excellent report — accurate and slavish to pre- 
 cedent — of the earlier contract cases in N. O. Waterworks Co. v. La. Sugar 
 Ref. Co. (1888), 125 U. S., 18, and Central Land Co. i>. Laidley (1895), 159 U. S., 
 103, and Van Devauter, J., gives the later cases in the contract case of Cross 
 Lake Shooting and Fishing Club v. Louisiana (1912), 224 U. S., 632, and the ex 
 post facto case of Ross ». Oregon (1913), 227 U. S., 150. See the discussion of 
 the contract cases in 2 Willoughby, Constitution, Sees. 508-520. The dissenting 
 opinions by Holmes, J., in Muhlker v. Harlem R. Co. (1905), 197 U. S., 544, 
 and Kuhn v. Fairmont Coal Co. (1910), 215 U. S., 349, go to the opposite extreme, 
 emphasizing the power of the states, through their courts, to "change," "make," 
 or "pass" local state law about as they please or without any legal limit, acting 
 and seemingly agreeing with the late Professor Gray in his "Nature and Sources, 
 of the Law." See the statement in Wambaugh's Study of Cases, 2 ed. Sees. 
 73-79, of "the lawyers' view" and "the analytical jurists' view" of the growth 
 of law in England and the United States by judicial decisions. Of course, any 
 view must be sophistical in the United States, as it leads to the practical result 
 of enabling the states to use their courts in the sphere of local state law to eman- 
 cipate themselves from the restraints imposed on them by the constitution of 
 the United States. And it must be remembered in this connection there is noth- 
 ing federally judicially enforceable in the constitution of the United States re- 
 quiring the states to keep the legislative, executive, and judicial powers lodged 
 in different hands. See Note 16, supra. Taney, C. J., formulated what he 
 called "the sound and true rule" as follows: in Ohio Life Ins. Co. v. Debolt (1853), 
 16 How., 416, 432; [on writ of error to the highest court of a state], "the sound 
 
MOB DOMINATION . 93 
 
 Second. As to Frank's claim that his trial took place 
 in the midst of mob disorder and demonstrations, so that 
 his conviction and sentence were mob-produced, and so 
 
 and true rule is, that if the contract when made was valid by the laws of the 
 state, as then expounded by all the departments of its government, and adminis- 
 tered in its courts of justice, its validity and obligation cannot be impaired by 
 any subsequent act of the legislature of the state, or decision of its courts, alter- 
 ing the construction of the law." On pp. 450, 451, Curtis, J., expressly 
 agreed with the dictum of Taney, C. J. The dictum means this: When, because 
 of the contracts clause [or since 1868 because of the due-process clause in the 
 fourteenth amendment] a state decision in local state law is not fit to be 
 accepted and followed by the United States Supreme Court, so far as its retro- 
 active effect is concerned, in a case between citizens of different states, then that 
 state decision, or any other state decision following it, so far as its retroactive 
 effect is concerned, is reversible and ought to be reversed by the United States 
 Supreme Court when properly challenged before it on writ of error under the 
 contracts clause [or since 1868 under the due-process clause of the fourteenth 
 amendment]. Taney, C. J., was on the bench in Gelpcke v. Dubuque and his 
 dictum in Ohio Life Ins. Co. v. Debolt, supra, was the expressed rule of the de- 
 cision. Miller, J., after his defeat in Gelpcke v. Dubuque through adhering 
 to the letter of the result in Gelpcke v. Dubuque, devoted all his talents with 
 astonishing success to preventing any extension of its spirit and expressed ratio 
 decidendi. See the opinions by Miller, J., in Gelpcke v. Dubuque (1864), 1 Wall., 
 175; Railroad Co. v. Rock (1867), 4 Wall., 177; Knox v. Exchange Bank (1871), 
 12 Wall., 379; Delmas v. Merchants' Ins. Co. (1872), 14 Wall., 661; Murdock 
 v. Memphis (1874), 20 Wall., 590, remembering this is a case in statutory construc- 
 tion only, not in constitutional law at all, and that no express claim was made 
 at the bar that the state court decided the questions in local law arbitrarily, 
 i. e., "without due process of law"; Davidson v. New Orleans (1878), 96 U. S., 
 97, noting the criticism of Bradley, J., concurring. It seems apparent from the 
 bulk of the cases at least, that the United States Supreme Court, to-day and for 
 some years back, as a matter of fact, always does carefully and circumspectly 
 scrutinize a state decision in local state law properly challenged before it on writ 
 of error under the contracts clause or due-process clause. When the court refuses 
 to reverse, the true reason seems to be that the court is satisfied or not dissatisfied, 
 with the state decision, as an allowable exercise of the state's reserved judicial 
 power in local state law, and not the one so often put forward prominently in 
 the opinions, viz.: the "finality" of the state, acting through courts, in local 
 state law. The only reason given for suppressing the true reason, and expressing 
 the untruthful reason of "finality," is the groundless fear expressed by Miller, 
 J., in the cases above cited, of converting the United States Supreme Court into 
 a court of error or appeal to review all state decisions in local state law — which 
 groundless fear is the whole of the foundation of the verbal jurisprudence of 
 Miller, J., on which the court is trying to operate under the contracts clause 
 and due-process clause as applied to local state law, with little satisfaction to 
 itself or to anybody else. The doctrine of the "lay figures" in contract cases, 
 
94 CONSTITUTIONAL LAW 
 
 were "without due process of law, "and hence his custody 
 thereunder was "in violation of the constitution of the 
 United States." 32 
 
 Though the whole court said the underlying federal 
 right was to have a free, fair, and impartial state tribunal 
 undominated by a mob, yet in truth it seems the only 
 underlying federal right, if there was any at all, was to 
 have the local law of Georgia concerning jury trial in 
 criminal cases administered judicially and not arbitrarily 
 
 as Professor Dodd wittily calls it (4 111. Law Review, on pp. 330, 322), of a sub- 
 sequent state statute which the state decision in local law "really" gives effect 
 to, though expressly denying the existence of a prior contract or construing it, 
 seems to rest on the opinion of Miller, J., in Delmas v. Merchants' Ins. Co. (1872), 
 14 Wall., 666. And see the opinion of Gray J., in N. O. Waterworks Co. v. La. 
 Sugar Ref. Co. (1888), 125 U.S., 18. Quaere whether the court to-day would 
 follow the part of the opinion in 125 U. S., on pp. 31, 32, which says the sub- 
 sequent municipal ordinance relied on at the bar as impairing the prior con- 
 tract was "not legislative, but administrative," and so was not a "law" under 
 the contract clause? See Note 20, supra. 
 
 In Finley v. Heinze (1903), 28 Mont., 54, and Gay v. Torrance (1904), 145 Cal., 
 144, under state statutes making "irregularity in the proceedings of the court" 
 cause for a new trial, it was held personal misconduct of the trial judge, as by 
 getting drunk with a party, or answering a "dearie" letter from a female employee 
 of a party, is cause for a new trial. Plainly, however, it does not follow that the 
 due-process prohibition of the fourteenth amendment permits a defeated litigant 
 in the Montana and California state courts to transfer the case to the United 
 States Supreme Court for the sole and only purpose of impugning the personal 
 morals and habits of the trial judge, and thus converting that court into a school 
 for scandal concerning state judges, though their decisions in the local state 
 law admittedly are reasonably correct or allowable, so far as the constitution 
 and laws of the United States are concerned. 
 
 32 The Georgia Supreme Court's finding on the issue of fact of mob disorder 
 is in 141 Ga., on pp. 280-283, and is set forth almost in full in 237 U. S., on pp. 
 313, 314. Frank's ex parte claim of fact in his petition for the federal writ of 
 habeas corpus is summed up by Holmes, J., in 237 U. S., on pp. 345, 346. 
 
 The Georgia Supreme Court did not notice the private conversation between 
 the trial judge and Frank's counsel in note 26, supra, though it was before the 
 court on Frank's motion for a new trial as evidence of mob disorder and demon- 
 strations, presumably because they threw out everything not shown by the 
 evidence to have taken place within the hearing or knowledge of the jury. Of 
 course it was the duty of the trial judge to protect Frank and his counsel; and 
 his power to perform that duty was ample and plenary without asking Frank 
 and his counsel to waive their right to be present when the verdict was brought 
 in, though I do not say he did wrong in asking them to waive their right. 
 
MOB DOMINATION 95 
 
 by the Georgia courts. As a matter of fact, in the Georgia 
 courts Frank rested his claim to have the verdict of guilty 
 set aside because of the alleged mob disorder and demon- 
 strations primarily on the local law Of Georgia concerning 
 jury trial in criminal cases, and precisely on the word 
 "impartial" in the clause in the Georgia constitution, 
 Art. 1, Sec. 1, Par. 5, which says: "Every person charged 
 with an offense against the laws of this state . . . 
 shall have a public and speedy trial by an impartial 
 jury." By the local law of Georgia, a jury trial in the 
 midst of mob disorder and demonstrations hostile to the 
 accused and calculated to influence and prejudice the 
 jury against the accused is not a trial by an "impartial 
 jury" within the meaning of the Georgia constitution, 
 even when a verdict of guilty is so far correct that a 
 judge would not be justified in setting it aside as not 
 warranted by the evidence, if the verdict of guilty had 
 been rendered by an "impartial jury," i. e., a jury free 
 from mob disorder and demonstrations calculated to 
 influence and prejudice it against the accused. One 
 Georgia mode of procedure for securing to an accused 
 person this Georgia right to a trial by an "impartial 
 jury" is a motion for a new trial after a verdict of guilty 
 on the ground the trial took place in the midst of mob 
 disorder and demonstrations calculated to influence and 
 prejudice the jury. That ground in a motion for a new 
 trial raises a collateral administrative issue of fact to 
 be tried by the trial judge on evidence pro and con sub- 
 mitted by the accused and by the state and on his own 
 knowledge of what took place. The decision of the trial 
 judge against the accused is of great weight but not final 
 and unreviewable, but is reviewable and reversible by the 
 Georgia Supreme Court on a record containing all the 
 evidence on which the trial judge acted, including a report 
 of his own knowledge of the facts incorporated into the 
 
96 CONSTITUTIONAL LAW 
 
 record by the trial judge if he thinks the facts are not 
 fully set forth in the evidence of the parties. 33 Frank 
 took advantage of this local law and usage of Georgia, 
 and the Georgia courts decided against him. 
 
 The precise and only point actually decided by the 
 majority of the United States Supreme Court is a point 
 of pleading touching the form of Frank's petition for 
 the federal writ of habeas corpus, viz., that his petition 
 was defective in point of form for not setting forth all 
 the evidence on which the Georgia courts acted in finding 
 against him on the issue of fact of mob disorder and 
 demonstrations. Frank's petition set forth as an exhibit 
 only the evidence he himself submitted to the Georgia 
 courts, leaving out the opposing evidence submitted by 
 the state, though his petition showed on its face there 
 was such opposing evidence before the courts of Georgia 
 on which they acted. The majority held this omission 
 fatal. 34 On the view that Frank was complaining of a 
 denial or abridgment by the state of Georgia through 
 its courts of his federal right to have the local law of 
 Georgia concerning jury trial in criminal cases adminis- 
 tered judicially and not arbitrarily, the point of pleading 
 taken by the majority is plainly good and unanswerable. 
 But it seems a "meticulous technicality." Instead of 
 refusing to issue the writ of habeas corpus on that point 
 of form, it seems to me they should have asked Frank's 
 counsel to attach to the petition a copy of the record that 
 was before the Georgia Supreme Court, proceeding then 
 to examine it and to decide whether Frank was right or 
 wrong in his claim of fact that the Georgia courts arbi- 
 
 33 See the Georgia cases cited by Pitney, J., in 237 U. S., on pp. 335, 337. See 
 the procedure by writ of error coram nobis and jury trial to vacate a judgment 
 on a plea of guilty alleged to have been entered through fear of mob violence in 
 Kansas v Calhoun, 50 Kan., 523. 
 
 34 237 U. S., on pp. 335, 336, 344. 
 
MOB DOMINATION 97 
 
 trarily abused the judicial power of the state by boldly 
 finding peace, order, and quiet in and about the Georgia 
 trial court when the evidence before them plainly showed 
 mob disorder and demonstrations hostile to Frank and 
 calculated to influence and prejudice the jury against 
 him enough to deprive him of his Georgia right to a 
 "public and speedy trial by an impartial jury." 35 The 
 majority opinion protests they proceeded upon "substance 
 of right." But plainly they did not, on any view of the 
 underlying federal right. The only way agreeable to 
 "substance of right" or "law and justice" for the United 
 States Supreme Court to dispose of an issue of fact like 
 that tendered by Frank to the state of Georgia is to 
 declare clearly whether and why the law allows the issue 
 to be raised, and if it does then to decide the issue and 
 not dodge it. In fairness, however, it must be noticed 
 that the point of pleading on which the majority rested 
 their judgment was advanced at the bar by counsel for 
 the state of Georgia, as appears from the official report 
 of their argument in 237 U. S., on p. 323, so that Frank's 
 counsel had ample opportunity to ask leave to submit to 
 the United States Supreme Court all the evidence on 
 which the Georgia courts acted, which request, if made, 
 doubtless would have been granted. 
 
 If, however, the underlying federal right was a right 
 to a free, fair, and impartial state tribunal, undominated 
 by a mob, and if there is such a federal right — and the 
 whole court expressly said there is — then there is no 
 way in the world, either "substance of right" or form or 
 mode of pleading, to support the majority's refusal to 
 
 3S The statements and decisions that a state court's finding of fact is conclu. 
 sive on a federal writ of error [Dower v. Richards (1894), 151 U. S., 658; Egan v 
 Hart (1897), 165 U. S., 188] have been qualified, and do not apply to Frank's 
 claim of mob disorder — certainly not on his habeas corpus. It is enough to 
 refer to the cases cited by Holmes, J., in 237 U. S., on p. 347. 
 
98 CONSTITUTIONAL LAW 
 
 issue the writ of habeas corpus. It is impossible to break 
 the dissenting opinion of Holmes and Hughes, J J., at 
 any point except the underlying federal right it declares, 
 and the majority expressly agreed with that. On that 
 view of the underlying federal right, i. e., a right to a free, 
 fair, and impartial state tribunal, the standard of a free, 
 fair, and impartial state tribunal is national and uniform 
 throughout the United States, and it is for the Supreme 
 Court of the United States alone to define and declare 
 the standard, and then to decide whether the challenged 
 state tribunal in the case before it comes up to the stand- 
 ard or falls below it. Frank was entitled to the free and 
 independent judgment of the United States Supreme 
 Court on that, without reference to what the Georgia 
 courts may have said about it or left unsaid. On this 
 view of the underlying federal right, the majority's refusal 
 to give him that judgment was judicial abdication pure 
 and simple. 36 
 
 36 If the underlying federal right was to have the local law of Georgia adminis- 
 tered judicially, and not arbitrarily, then the federal constitution itself, and not 
 any mere rule of procedure, seems to stand in the way of a federal court's hearing 
 fresh evidence of mob disorder. Frank's petition for habeas corpus was a writ 
 of error in substance to bring up the body of the prisoner along with the record 
 of his sentence. The whole court decides in Frank's Case, and it is not new law, 
 that the rule that the federal writ of habeas corpus cannot be used to do the work 
 of a federal writ of error is not so unbending as to allow a state to hang a prisoner 
 in violation of the constitution or a law or treaty of the United States, simply 
 because the prisoner asked for federal protection by way of habeas corpus and 
 not by writ of error. And on that view of the underlying federal right, the denial 
 of Frank's application for a federal writ of error to the Georgia judgment in 142 
 Ga., 741, denying his motion to set aside the verdict as a nullity, was correct. 
 Frank did not ask for a federal writ of error to review the Georgia judgment in 
 141 Ga., 243, denying his motion for a new trial and affirming his sentence of 
 death. I think he was entitled to a federal writ of error to review that Georgia 
 judgment — if the Georgia record showed his claim of mob disorder wag "sub- 
 stantial"and not "frivolous," as those adjectives are used in the practice of allow- 
 ing federal writs of error to review state decisions. But on the materials in the 
 official reports it is impossible to tell whether his claim was ''substantial" or 
 "frivolous," though the chances are the Georgia record would show it was "frivo- 
 lous.'' 
 
MOB DOMINATION 99 
 
 The opinions show the judges got into an argument 
 over the legal consequence of mob domination of a state 
 court, if and when established as a matter of fact; whether 
 the legal consequence is a legal dissolution of the court 
 by stripping it of "jurisdiction." But the question of 
 the legal consequence of mob domination of the Georgia 
 trial court was not before them for decision, and could 
 not be before them for decision, on any view of the under- 
 lying federal right, until they found as a fact that the 
 Georgia trial court was dominated by a mob. The 
 reason why this point got into the case to trouble the 
 court was that Frank's counsel conceded, and the major- 
 ity opinion both agrees with the concession and disagrees 
 with it and finally decides against it, 37 that the federal writ 
 of habeas corpus cannot issue in favor of a state prisoner 
 after conviction and sentence by the highest court of 
 the state except on a showing of "want of jurisdiction" 
 in the state courts, the "want of jurisdiction" some- 
 times flowing from a local rule of jurisdiction, and some- 
 times from a federal rule of jurisdiction limiting the 
 reserved power of the state. The words of the federal 
 Habeas Corpus Act — "in custody in violation of the 
 constitution or of a law or treaty of the United States" — 
 are against any such idea, and the decisions are against it. 
 
 There was a clash in the court over the question whether 
 many familiar decisions of the court — declaring that 
 federal courts and judges have a discretion to issue or to 
 refuse to issue the federal writ of habeas corpus in behalf 
 of state prisoners before and after judgment in the state 
 courts, and declaring rules regulating the exercise of this 
 discretion — rest on "comity" or courtesy and polite- 
 ness between federal and state judges or on "law and 
 justice." The result of the clash seems to be they all 
 
 37 237 U. S., on pp. 326-330. See Collins ». Johnstone (1915), 237 U. S., 502. 
 Ex parte Medley (1890), 134 U. S., 160; Ex parte Savage (1890), 134 U. S., 176. 
 
100 CONSTITUTIONAL LAW 
 
 agreed there is no judicial comity, courtesy, and politeness 
 between federal and state judges superior to or in conflict 
 with justice to state prisoners under and agreeably to 
 the constitution and laws of the United States ; that com- 
 ity, courtesy, or politeness between federal and state 
 judges is not a good reason why a federal court or judge 
 should refuse to release a state prisoner who is in custody 
 before or after judgment in the state courts in violation 
 of the constitution or a law or treaty of the United States. 
 All those federal habeas corpus decisions concerning 
 state prisoners show that the underlying principle of 
 federal law and justice is that the federal court or judge 
 in a proceeding in behalf of a state prisoner for the federal 
 writ of habeas corpus must impute to the state tribunals 
 the ability and inclination to do justice under and agree- 
 ably to both the federal law and the local state law, and 
 must not permit that to be drawn in question; thus indi- 
 cating that the freedom, fairness, and impartiality of state 
 tribunals have not been regarded by the court hitherto 
 as a test of "due process of law" in state courts adminis- 
 tering the local state law or the federal law. The view 
 always has been that federal and state courts are parts 
 of a single system, one united co-operative, whole, to 
 establish justice between the parties in each case as it 
 arises, peculiarly united, it is true, but united just the 
 same, closely united as superior and inferior when the 
 law to be enforced is federal law, but less closely united 
 when the law to be enforced is the local state law, where 
 the state judge holds the rank of "superior" so long as 
 he acts as becomes a judge, falling to the rank of "infer- 
 ior" when he drops below that standard, which is an 
 intellectual standard imposed on him by "due process 
 of law" in the fourteenth amendment. It goes without 
 saying, I suppose, that on appeal or writ of error from an 
 inferior federal court or on habeas corpus in behalf of a 
 
MOB DOMINATION 101 
 
 federal prisoner after judgment in a federal court, "due 
 process of law" in the fifth amendment does not permit 
 the appellant or plaintiff in error or petitioner in habeas 
 corpus to raise an issue on anything but the scientia of 
 the inferior federal judge. 
 
 Frank's case cannot be regarded as a weighty precedent 
 to support the distinct, separate, and independent federal 
 right of litigants in state courts in cases arising under the 
 local state law to have free, fair and impartial state 
 tribunals, because the existence of the right was not de- 
 bated at the bar or on the bench, and its existence plainly 
 is debatable; and because as a matter of fact the court 
 did not protect and enforce any such federal right, but 
 declined to do so, refusing even to hear Frank's claim 
 that the Georgia trial tribunal was not free, fair, and im- 
 partial because mob-dominated, which refusal can be 
 supported only on the view that such distinct, separate 
 and independent federal right does not exist. 
 
102 CONSTITUTIONAL LAW 
 
 IV 
 
 THE CLAIM OF A FEDERAL RIGHT TO ENFORCE 
 
 IN ONE STATE THE DEATH STATUTE 
 
 OF ANOTHER 21 
 
 In Crane v. Chicago & Western Indiana R. Co., 1 
 Farmer, J., Dunn and Carter, JJ., concurring in the 
 judgment but dissenting from the opinion, the Illinois, 
 Supreme Court decides that the effect of the proviso in 
 the 1903 amendment of the Illinois death by wrongful 
 act statute of 1853, 2 is to make the locality of the wrong- 
 ful act the test of the jurisdiction of Illinois Courts over 
 civil actions for damages for death by wrongful act, 
 Illinois Courts having jurisdiction when the wrongful act 
 is done inside of Illinois, and having no jurisdiction when 
 the wrongful act is done outside of Illinois. The locality 
 of the death is of no significance. 3 
 
 This legislation strips Illinois Courts of their pre- 
 existing jurisdiction to enforce the death statutes of 
 other States under the rule stated in C. & E. I. R. Co. v. 
 Rouse. 4 
 
 a [3 III. Law Rev., 65, June, 1908.] 
 
 1 233 111., 259. 
 
 2 The proviso reads: "No action shall be brought or prosecuted in this State 
 to recover damages for a death occurring outside of this State." 
 
 3 Dunn and Carter, JJ., thought the effect of the proviso was to make the 
 locality of the death the test of jurisdiction, and that the proviso, so construed, 
 drew so senseless a distinction as to be obnoxious to the objection of an uncon- 
 stitutional denial of the equal protection of the laws. 
 
 4 178 111. 132, following Dennick v. Central R. Co., 103 U. S., 11. Compare 
 I. C. R. Co. v. Cragin, 71 111., 177. 
 
ENFORCEMENT BETWEEN STATES 103 
 
 The recent case of Chambers v. B. & O. R. Co. 5 tends so 
 much, by necessary implication, to sustain the proviso, 
 as now construed, under the Federal Constitution, that 
 one now, at least, if not before, ought to expect the 
 Illinois Supreme Court to decide that the proviso, as now 
 construed, is not repugnant to the Federal Constitution, 
 and to leave the correction of the error, if there be one, 
 to the Federal Supreme Court. 6 
 
 In 1902, the Ohio Legislature passed a statute making 
 the Ohio citizenship of the deceased the test of the juris- 
 diction of Ohio Courts to enforce the death statutes of 
 other States — giving Ohio Courts jurisdiction when the 
 person killed by wrongful act done in another State is a 
 citizen of Ohio, and depriving Ohio Courts of jurisdiction 
 when the person killed by wrongful act done in another 
 State is not a citizen of Ohio. The statute was drawn 
 in question in Chambers v. B. & O. R. Co., a suit by a 
 citizen of Pennsylvania, in a Court of Ohio, to enforce the 
 death statute of Pennsylvania, the person killed in 
 Pennsylvania having been a citizen of that State, as being 
 repugnant to the Privileges and Immunities Clause of 
 the Federal Constitution. The Ohio Supreme Court 
 sustained the statute, 7 and on writ of error the Federal 
 Supreme Court affirmed the judgment, Moody, J., deliv- 
 ering the opinion, Holmes, J., concurring specially, and 
 Harlan, White, and McKenna, JJ., dissenting; 
 
 The majority thought the Ohio statute did not grant 
 to citizens of Ohio any privilege of suing in Ohio Courts 
 to enforce the Pennsylvania death statute that it with- 
 held from citizens of other States, because it closed Ohio 
 Courts equally upon citizens of Ohio and citizens of 
 
 6 207 U. S., 142; 28 Sup. Ct. Rep.. 34. 
 
 6 See Thayer's Legal Essays, 38, note 1. 
 
 7 73 Ohio St., 16. 
 
104 CONSTITUTIONAL LAW 
 
 other States seeking to enforce the Pennsylvania death 
 statute when the person killed was not a citizen of Ohio. 
 But they said the Ohio statute might be inoperative as 
 to causes of action arising under death statutes of other 
 States that give the cause of action. to the person killed 
 when he was vivus et mortuus, citing Higgins v. Central 
 New England & W. R. Co. 8 to illustrate the highly artificial 
 conception that a dead man may be enough of a live one to 
 receive a legislative grant of the right to bring a lawsuit. 
 Under the confessedly literal logic of the majority, 
 who are the Ohio citizens asking to enforce the Pennsyl- 
 vania death statute when the person killed is not a citizen 
 of Ohio, that the Ohio statute in question shuts out of 
 Ohio Courts? Since the Pennsylvania death statute 
 says "the widow of any such deceased, or, if there be no 
 widow, the personal representatives, may maintain an 
 action for and recover damages for the death thus occas- 
 ioned," the Ohio citizens seeking to enforce the Pennsyl- 
 vania death statute when the person killed is not a citizen 
 of Ohio, shut out of Ohio Courts by the Ohio statute, 
 would appear to be: (1) The wives, domiciled in Ohio, of 
 citizens of other States killed in Pennsylvania; that is to 
 say, grass- widows in Ohio of citizens of other States. 
 (2) Ohio citizens appointed representatives of citizens of 
 other States killed in Pennsylvania. It seems to me, 
 therefore, that the majority's own literal logic ought to 
 have constrained them to sustain the point of counsel: 
 "The real purpose and effect of the act, as construed (and 
 applied below to actions arising under the Pennsylvania 
 death statute), was and is to discriminate in favor of 
 citizens of Ohio and against citizens of other States. 
 Theoretical exceptions cannot save it from the ban of 
 the constitutional provision herein in question." 9 
 
 8 155 Mass., 176. 
 
 9 207 U. S., 143-144. 
 
ENFORCEMENT BETWEEN STATES 105 
 
 The most important part of the case, however, is the 
 unchallenged principle, employed by all of the Justices 
 as the rule of decision, that the privilege — as compre- 
 hended by the Privileges and Immunities Clause — of a 
 citizen to enforce in the Courts of his own State an obli- 
 gation to pay money 10 that arises, and is enforceable, in 
 another State, depends for its existence and protection 
 exclusively upon the voluntary act of the State in pur- 
 suance of its policy of comity between the States, and 
 that the act of a State granting or denying that privilege 
 to its own citizens is not subject to supervision or control 
 by the United States. 11 
 
 Ex parte Young 12 and General Oil Co. v. Crain, 13 de- 
 cided after Chambers v. B. & O. R. Co., prove strikingly, 
 if proof is needed, that a citizen's privilege of suing in the 
 Courts of his own State for the redress of wrongs received 
 in his person, property, or reputation is not always and 
 without exception one that the State may grant or with- 
 hold at its own will and pleasure. 
 
 The adoption of the principle in Chambers v. B. & O. 
 R. Co. that a citizen's privilege, so called, of asking the 
 Courts of his own State to enforce the payment of money 
 due under the death statute of another State is not 
 protected by the Federal Constitution against possible 
 
 10 The Pennsylvania death statute before the Court, like all ordinary and 
 usual statutes of that kind, created an enforceable obligation ex delicto to pay 
 money by removing the bar to an action caused by the maxim, actio personalis 
 moritur cum persona, in the same class, in relation to the right to enforce it in 
 another State, with other civil obligations ex delicto or ex contractu. See Dennick 
 v. R. R. Co., 103 U. S., 11; Texas & P. R. Co. v. Cox, 145 U. S., 593; Northern 
 Pac. R. Co. v. Babcock, 154 U. S., 190; Stewart v. B. & O. R. Co., 168 U. S., 445; 
 C. & E. I. R. Co. v. Rouse, 178 111., 132. 
 
 It does not follow that a State may refuse to enforce a death statute of another 
 State, because it may refuse to pass a death statute of its own. 
 
 11 See 207 U. S., on pp. 148-149. 
 
 12 209 U. S., 123; 28 Sup. Ct. Rep., 441. 
 
 13 209 U. S., 211; 28 Sup. Ct. Rep., 475. 
 
106 CONSTITUTIONAL LAW 
 
 unreasonable hostile action by the State apparently is due» 
 in large part, to the plaintiff's reliance upon her own, and 
 the deceased's, Pennsylvania citizenship as the exclusive 
 and only basis of her claim of a Federal right to sue in 
 the Ohio Court, accompanied, as it appears to have been, 
 by the concession that a citizen of Ohio has no Federal 
 right to sue in a Court of Ohio to enforce the Pennsyl- 
 vania death statute. Under Mr. Justice Washington's 
 classic exposition of the Privileges and Immunities Clause 
 in Corfield v. Coryell, 14 it seems evident that the plaintiff's 
 claim of a Federal right to sue in the Ohio Court ought 
 to have been made in this way: (1) Under the Full Faith 
 and Credit Section, 15 the Act of Congress passed in exercise 
 of the power therein granted, 16 and the Property and Equal- 
 ity Clauses of the Fourteenth Amendment, a citizen of 
 Ohio has a Federal right to sue in a Court of Ohio to en- 
 force the Pennsylvania death statute. (2) That Federal 
 right of a citizen of Ohio in Ohio is extended to citizens of 
 other States in Ohio by the Privileges and Immunities 
 Clause. (3) The Ohio statute in question unlawfully 
 abridges the exercise and enjoyment of that Federal right. 
 The framers of the Federal Constitution knew, by expe- 
 rience, some things about comity between the States that 
 we do not know — by experience. From all accounts, 
 they had had quite enough of it, and intended to cut it 
 up by the roots; that is to say, in so far as the matter 
 of enforcing in one State civil obligations arising under 
 the law of another State is concerned. 17 The text of 
 
 "4 Wash. C. C, 371, 380. 
 16 Art. iv, Sec. 1. 
 
 16 R. S., Sec. 905. 
 
 17 In Bank of Augusta v. Earle, 13 Peters, 519, wherein it was debated at the 
 Bar whether the law of comity exists between the States of this Union, the ques- 
 tion was whether a bank incorporated in one State can make in another State a 
 lawful contract to buy a bill of exchange — a very different question, indeed, 
 from the one in hand here. 
 
ENFORCEMENT BETWEEN STATES 107 
 
 the Constitution, taken in all its parts, the reasons that 
 caused its writing and adoption, and the objects sought 
 to be attained as stated in the Preamble, leave no room 
 for the distinction that the Full Faith and Credit Section 
 lays a duty upon each State, or puts it in the power of 
 Congress to lay a duty upon each State, to enforce civil 
 judgments for money rendered in other States, agree- 
 ably to the law of such other States, whether common 
 law, civil law, statute law, or any other lawful law, but 
 leaves each State free to refuse, at its own will and pleas- 
 ure, tq enforce the original civil obligations themselves, 
 on which such judgments may be rendered. "The essen- 
 tial nature and real foundation of a cause of action, indeed, 
 are not changed by recovering judgment upon it. This 
 was directly adjudged in Wisconsin v. Pelican Ins. Co." 18 
 The Property and Equality Clauses of the Fourteenth 
 Amendment come into play and action in this way : The 
 Property Clause extends over the borders of one State into 
 other States, for it has been decided that it protects 
 property having a situs in one State from the taxing 
 power of another State. 19 In so far as the Ohio and 
 Illinois statutes, supra, operate to make Ohio and Illinois 
 asylums for persons guilty of wrongful acts done in other 
 States causing death, do they, to that extent, collide 
 with the Property Clause? 20 And it is not easy to give a 
 fair reason why the Equality Clause does not forbid a 
 State to separate the obligation to pay money arising 
 under the death statutes of other States from all other 
 obligations to pay money arising in other States, to throw 
 
 18 Huntington i. Attrill, 147 U. S., 657, 683. Under established principles 
 of interpretation, the enumeration "judicial proceedings" is comprehensive 
 enough to embrace the rules of civil conduct which they establish. See Kansas 
 v. Colorado, 206 U. S., 46, 96, "What is the common law?" 
 
 19 C, B. & Q. v. Babcock, 204 U. S., 585, 592, and cases cited; Buck v. Beach, 
 206 U. S., 392. 
 
 20 See 207 U. S., on p. 157, bottom, per Harlan, J. 
 
108 CONSTITUTIONAL LAW 
 
 it into a class all alone by itself, and then to deal with it 
 as sui generis in its relation to a claim of right, or privilege, 
 to enforce it in the Courts of the State — in the way the 
 Ohio and Illinois statutes, supra, do. 
 
 There can be no uniformity or certainty in the law 
 regulating the enforcement in one State of civil obliga- 
 gations arising in other States, if the Federal Supreme 
 Court surrenders the Federal power and jurisdiction of 
 supervising and controlling the administration of that 
 law — a power and jurisdiction that the Federal Consti- 
 tution appears to have granted in plain words for the 
 very purpose of securing and preserving to the citizens 
 of the several States the endless benefits of uniformity 
 and certainty in that law. 21 
 
 Of course, the Federal Constitution does not perpetuate 
 the evil — if it exists — of dragging a defendant into 
 another State far distant from the locality of the trans- 
 actions out of which the lawsuit springs. The Consti- 
 tution plainly permits the abatement of that abuse. 
 But it is difficult to see how the Ohio and Illinois statutes, 
 supra, can be sustained on that theory. 22 
 
 21 Huntington v, Attrill, 146 U. S., 657, 684; Atherton o. Atherton, 181 U. S., 
 155, 160; Story, Constitution, Ed. 5, Sec. 1307, p. 189, top. 
 
 22 The inherent jurisdiction of Courts to prevent the use of their process to 
 defeat justice is adequate to deal with the evil suggested. In Logan v. Bank of 
 Scotland [1906], 1 K. B., 141, the English Court of Appeal explains the jurisdic- 
 tion carefully, and exerts it to stop a suit in England on a cause of action arising 
 in Scotland. In Egbert v. Short [1907], 2 Ch., 205, and In re Norton's Settlement 
 [1908], 1 Ch., 471, the same jurisdiction was invoked successfully to stop pro- 
 ceedings in England on causes of action arising in India. In Logan v. Bank of 
 Scotland, supra, reference is made to Collard v. Beach, 81 Hun., 583, 93 Hun., 339, 
 S. C, 81 N. Y. Supp., 619, 87 N. Y. Supp., 884. In Ferguson v. Neilson, 11 N. Y. 
 Supp., 524, Van Brunt, P. J., says: "It is the well-settled rule of this State that, 
 unless special reasons are shown to exist which make it necessary or proper to 
 do so, the Courts will not retain jurisdiction of and determine actions between 
 parties residing in another State for personal injuries received in that State." 
 It seems that this rule is not applied to actions ex contractu. See Wertheim a. 
 Clergue, 65 N. Y. Supp., 751. The line drawn between resident and non-resident 
 plaintiffs in tort cases appears to be found on the analogy of Sec. 1780 of the 
 
ENFORCEMENT BETWEEN STATES 109 
 
 With reference to decided cases, the whole of the ques- 
 tion may be stated thus: Does not the opinion of Mr. 
 Justice Miller in Dennick v. Central R. Co. 23 really 
 enunciate a rule of jurisdiction established and fixed 
 between the States by the Federal Constitution? 
 
 The Federal Supreme Court has classified the principle 
 of Dennick v. Central R. Co. as a rule of general jurispru- 
 dence under the doctrine of Swift v. Tyson. 24 This classi- 
 fication, first made in Texas & Pacific R. Co. v. Cox, 25 
 
 Code of Civil Procedure, drawing a line between resident and non-resident 
 plaintiffs in actions against foreign corporations, applied in Robinson v. Oceanic 
 Steamship Co., 112 N. Y., 315, and in the recent case of Hoes v. N. Y., N. H. & 
 H. R. Co., 173 N. Y., 435, and held inapplicable in cases originating in Federal 
 Courts sitting in New York in Barrow Steamship Co. v. Kane, 170 U. S., 100, 
 Gray, J. The passages on pp. 148-9 of the opinion of Moody, J., in Chambers v. 
 B. & O. R. Co., 207 U. S., 142, appear to make said Section 1780 of the New York 
 Code plainly repugnant to the Privileges and Immunities Clause. The New 
 York Courts ultimately will have to alter their way of dealing with the evils they 
 complain of in the cases supra, and to proceed upon more correct principles. 
 Compare the opinions in the English cases, supra. There is a note on Collard v. 
 Beach, supra, in 17 Harv. Law Rev., 54. 
 
 23 103 U. S., 11, 18: "Wherever, by either the common law or the statute law 
 of a State, a right of action has become fixed and a legal liability incurred, that 
 liability may be enforced and the right of action pursued in any court which has 
 jurisdiction of such matters and can obtain jurisdiction of the parties. 
 A party legally liable in New Jersey cannot escape that liability by going to New 
 York. ... It would be a very dangerous doctrine to establish, that in 
 all cases where the several States have substituted the statute for the common 
 law, the liability can be enforced in no other State but that where the statute 
 was enacted and the transaction has occurred." And see Slater v. Mexican Nat. 
 R. Co., 194 U. S., 120, 126. And compare the principle of a suit to enforce a 
 judgment of one State in another State — Hanley v. Donoghue, 116 U. S., 
 1, 4; Hilton v. Guyot, 159 U. S., 113, 181-182; Baker v. Palmer, 83 111., 568. 
 Note the phrase "interstate common law," as used in Kansas v. Colorado, 206 
 U. S., 46, 98. Of course, no State can refuse to maintain Courts. With the 
 Dennick case, compare Hoes v. N. Y., N. H. & H. R. Co., 173 N. Y., 435, and 
 Leonard v. Columbia Steam Navigation Co., 84 N. Y., 48, and see the observa- 
 tions of Holmes, on the Dennick case in Mulhall v. Fallon, 176 Mass., 266, 268. 
 
 24 16 Peters, 1; Texas & Pac. R. Co. v. Cox, 145 U. S., 593, 605; Huntington v. 
 Attrill, 146 U. S., 657, 675, 683 ; Northern Pac. R. Co. v. Babcock, 154 U. S., 190, 198 . 
 
 25 145 U. S., 593, 605. Barrow Steamship Co. v. Kane, 170 U. S., 100, cited in 
 note 22, supra, does not support this classification any, if it is not against it. 
 The jurisprudence of the Federal Courts and their jurisdiction are different 
 things. See Curtis, Jurisdiction of Federal Courts, Ed. 2, 228, et seq. 
 
110 CONSTITUTIONAL LAW 
 
 implies that a State, by a State statute, but not by a 
 State judicial decision, 26 may compel the Federal Courts, 
 in cases originating in them, to abandon the principle 
 of Dennick v. Central R. Co., and accept the State statute 
 as the rule of decision, and that the Federal Supreme 
 Court has no appellate jurisdiction to review a State 
 decision refusing to enforce the original liability under a 
 death statute of another State, whether the State refusal 
 rests on a State judicial or legislative rejection of the 
 principle of Dennick v. Central R. Co. 
 
 In Huntington v. Attrill, 27 Mr. Justice Gray treats the 
 question whether one State may determine for itself 
 whether it will enforce the ordinary death statute of 
 another State as just like the question whether one 
 State may determine for itself, when asked to enforce it, 
 whether a fine imposed by a statute of another State is 
 a criminal or a civil liability under the rule that "the 
 courts of no country execute the penal laws of another," 
 and says, obiter, "If a suit on the original liability under 
 the statute of one State is brought -in a court of another 
 State, the Constitution and laws of the United States 
 have not authorized its decision upon such a question 
 (i. e., whether the statute is civil or criminal) to be 
 reviewed by this court" — citing New York Ins. Co. v. 
 Hendren, 28 and Roth v. Ehman. 29 In the first case, the 
 Court refused to review a Virginia decision, 30 rejecting 
 the rule forbidding trade and intercourse with the enemy 
 as a defense to an action on a life insurance policy made 
 in Virginia in 1856, the insured having died in Virginia 
 in 1862. In the second case, the Court refused to review 
 
 26 B. & O. R. Co. ». Baugh, 149 U. S., 368, and cases cited. 
 27 146 U. S., 657, 683-684. 
 28 92 U. S., 286. 
 29 107 U. S., 319. 
 80 24 Grattan, 536. 
 
ENFORCEMENT BETWEEN STATES 111 
 
 an Illinois decision, 31 enforcing in Illinois a decree rendered 
 in the Kingdom of Wurtemburg annulling a marriage. 
 Plainly, those cases do not support the proposition. 32 
 The cases enforcing in one State a stockholder's liability 
 imposed by a statute of another State appear to me to be 
 against the proposition. 33 
 
 31 104 111. 35. 
 
 32 It may be noticed here that in Kansas v. Colorado, 206 U. S., 46, 83, referring 
 to Wisconsin v. Pelican Ins. Co., it is said, Brewer, J., that the question whether 
 a statute of another State is penal in the international sense goes to the merits 
 of the claim and not to the jurisdiction of the Court. And Holmes, J., said 
 much the same thing in Haddock v. Haddock, 201 U. S., 562, 632. Mr. Justice 
 Gray had no such distinction in his mind. See the opinion in the Pelican case 
 and the headnote, and the references to the Pelican case in Huntington v. Attrill, 
 146 U. S., 657, 672, top, 679-680. It would be more straightforward to say that 
 the Pelican case is wrong, as it probably is. See 1 111. Law Rev., 239, note 50. 
 Another matter may be noticed. In dealing, in 146 U. S., 683-4, with the con- 
 trolling effect in an American Court, as compared with an English Court, asked 
 to enforce a statute of another State of this Union, of local decisions of the State 
 that passed the statute on the question whether the statute is a "penal law in 
 the international sense," does Mr. Justice Gray keep sufficiently separate the 
 controlling effect on the American Court of (1) local decisions of the State that 
 passed the statute, and (2) local decisions of the State where the statute is 
 sought to be enforced? The latter are not controlling in Federal Courts, but 
 the former may be, and perhaps must be, when they do positively hold the 
 statute to be "a penal law in the international sense." See Park Bank v. Remsen, 
 158 U. S., 337, 342. A local misuse of the word "penal" in the State that passed 
 the statute is not controlling, is all that is meant, doubtless. 
 
 33 Hancock Natl. Bank v. Farnum, 176 U. S., 640, on error to the Supreme 
 Court of Rhode Island; Finney v. Guy, 189 U. S., 335, on error to the Supreme 
 Court of Wisconsin. And see Eastern B. & L. Assn. v. Ebaugh, 185 U. S., 114, 
 and Eastern B. & L. Assn. v. Williamson, 189 U. S. 122, both on error to the Su- 
 preme Court of South Carolina. On this subject see "The Extraterritorial 
 Enforcement of Statutes Imposing Double Liability on Stockholders," 17 Yale 
 Law J., 457, April, 1908, criticizing Federal cases enforcing, and approving State 
 cases refusing to enforce, such statutes. If a New York citizen takes advantage 
 of the Privileges and Immunities Clause to go into Kansas, then it seems to me 
 the Full Faith and Credit Section and the Fourteenth Amendment make it 
 quite as difficult for him to escape the discharge of obligations in Kansas, even 
 if they do spring from only constitutional fiats of the Kansas Legislature, as it 
 was for a Roman to escape the fiats of the Emperor. "The clause of the Consti- 
 tution referred to certainly never intended to give to the citizens of each State 
 the privileges of citizens in the several States, and at the same time to exempt 
 them from the liabilities which the exercise of such privileges would bring upon 
 individuals who were citizens of the State. This would be to give the citizens 
 
112 CONSTITUTIONAL LAW 
 
 The State Courts appear to have followed the principle 
 of Dennick v. Central R. Co. quite uniformly. 34 And the 
 State Legislatures appear to have let the principle alone 
 until quite recently. 
 
 In 1902, the Nevada Legislature enacted: 
 
 "Such liability (for death by wrongful act done in Nevada), 
 however, when not discharged by agreement and settlement, 
 shall exist only in so far as the same shall be ascertained and ad- 
 judged by a State or Federal Court of competent jurisdiction 
 in this State in an action brought for that purpose. If the person 
 or corporation against whom damages are claimed cannot be duly 
 served with process in this State, the action to ascertain and adjudge 
 liabilities for such damages may be brought and prosecuted in any 
 court of competent jurisdiction in any State or Territory where 
 such person or corporation is found and duly served with process 
 thereof." 35 
 
 This statute suggests many obvious questions. Brooks 
 v. Southern Pac. R. Co. 36 arose under it, and Judge Evans 
 inclined to think the statute made the action a local one, 
 but the case went off on the point of the constitutionality 
 of the Federal Employer's Liability Act. 37 
 
 It is to be hoped that the Federal Supreme Court, 
 when the occasion presents itself, will take a broader 
 view of the claim of a Federal right to sue in one State to 
 collect money claimed to be due under a death statute of 
 another State than it took in Chambers v. B. & O. R. Co. 
 
 of other States far higher and greater privileges than are enjoyed by the citizens 
 of the State itself." —Taney, C. J., Bank of Augusta ». Earle, 13 Peters, 519, 586. 
 
 Note the last paragraph of the opinion of Peckham, J., in Finney v. Guy, 189 
 U. S., 335, 345-6. If the Wisconsin Court was not constitutionally bound to 
 make Guy pay the money to Finney under the Minnesota statute, how could 
 the Wisconsin Court, consistently with due process of law, use "the principle of 
 comity between the States" to make him do it? 
 
 34 See 8 Am.-Eng. Ency. of Law, Ed. 2, 879, note 1. 
 
 36 Nevada Laws, 1905, p. 254, c. 148. 
 36 148 Fed. Rep., 986, 996-997. 
 
 37 207 U. S., 463. 
 
COLLECTED COMMENT 113 
 
 V 
 COLLECTED COMMENT 
 
 1. — APPELLATE JURISDICTION AND ON THE RESERVED POWERS 
 OF UNITED STATES SUPREME OF THE STATES. 
 COURT NOT DEFEATED BY 
 
 GROUNDS UPON WHICH DECISION 4 - — FEDERAL JUDGMENTS AND 
 
 IN STATE COURT IS RESTED. DECREES: WHAT LAW GOVERNS 
 
 EFFECT AS TO PRIVIES OF A 
 
 FEDERAL EQUITY DECREE REN- 
 DERED IN ONE STATE AND EX- 
 HIBITED IN ANOTHER STATE. 
 
 2. — JURISDICTION OF FEDERAL 
 SUPREME COURT TO REVIEW 
 STATE DECISIONS UNDER THE 
 FEDERAL SAFETY APPLIANCE 
 APT 
 
 5. — federal injunctions to 
 
 3. — unreviewable wrong stop suits in state courts 
 or doubtful state decisions and state injunctions to 
 of questions of federal con- stop suits in federal courts 
 stitutional law — their ef- —plea in abatement and 
 fect on private interests stay order. 
 
 1 . — Appellate Jurisdiction of United States Su- 
 preme Court Not Defeated by Grounds Upon Which 
 Decision in State Court is Rested.* 1 — The case of 
 Chicago, B. & Q. R. Co. v. Illinois, 200 U. S., 561, 26 
 Sup. Ct. Rep., 341, on error to the Supreme Court of 
 Illinois, presented a question of Federal Jurisdiction in 
 a somewhat unusual way. The Railroad Company 
 resisted the enforcement of an order of a Drainage 
 District, organized under the Farm Drainage Act, to 
 pull down, at the Company's own expense, a bridge 
 and culvert constructed by the Company over Rob 
 Roy creek, in Kendall County, and to put up a new 
 bridge and culvert, also at the Company's own expense, 
 the order being based upon the ground that the old 
 
 a [1 111. Law Rev. 114, June, 1906.] 
 
114 CONSTITUTIONAL LAW 
 
 bridge and culvert constituted an obstruction to the 
 execution of a proposed plan of farm drainage which 
 contemplated the widening and deepening of the creek 
 for use as the main ditch to carry off an anticipated 
 artificially created increased flow of water from the 
 lands included in the Drainage District, being about 
 2,000 acres, the majority of which were swamp or slough 
 lands. The sole position of the Company, specially 
 set up at the start and maintained throughout in the 
 State Courts, was that the order of the District was void, 
 because the Statute — Section 40H of the Farm Drain- 
 age Act — on the authority of which alone the District 
 could act, was repugnant to the Fourteenth Amendment. 
 The State Supreme Court decided against the Com- 
 pany, closing its opinion thus: "Founding our conclu- 
 sions upon the rights and duties of the parties as found 
 in the common law, we deem it unnecessary to pass upon 
 the constitutionality of Section 40H of the Farm Drain- 
 age Act." In the Supreme Court of the United States, 
 counsel for the District used the foregoing sentence as 
 one of the grounds of a request for a dismissal for want 
 of jurisdiction. That Court, however, decided that it 
 makes no difference whatever that a State Supreme 
 Court says, in words, that it rests its decision upon what 
 it conceives to be an established rule of general, or even 
 merely local, common law, when the record fairly dis- 
 closes that the decision necessarily must operate to deny 
 a claim to the exercise and enjoyment of rights created, 
 or protected, by the Federal Constitution, and that, in 
 this case, the record showed that the Company specially 
 set up and claimed rights protected by the Fourteenth 
 Amendment, and that the State Court denied them. 
 
 In the State Courts, counsel for the Company, as a 
 basis for a writ of error out of the Federal Supreme Court, 
 relied upon that clause of Section 709, R. S., U. S., 
 
COLLECTED COMMENT 115 
 
 which allows a writ of error "Where is drawn in question 
 the validity of a statute of . . . any State, on the 
 ground of . . . being repugnant to the Consti- 
 tution of . . . the United States . . . and the 
 decision (of the highest Court of the State in which a 
 decision could be had) is in favor of (its) validity" (212 
 111., 106, grounds of demurrer, 4 and 5). But the Federal 
 Supreme Court seems to have sustained its jurisdiction 
 under that clause of Section 709 which allows a writ of 
 error, "where any title, right, privilege, or immunity is 
 (specially set up and) claimed under the Constitution 
 . . . of the United States, and the decision is 
 against the title," etc. (For one, if not the only differ- 
 ence between the two clauses, see Columbia Water Power 
 Co. v. Columbia Electric St. R. L. & P. Co., 172 U. S., 
 475, 478-489, and cases cited, and citations under this 
 case in Rose's Notes.) 
 
 The words of the State Supreme Court above quoted 
 may have caused, whether they really necessitated or not, 
 this shift of the basis of Federal jurisdiction from one 
 clause of Section 709 to another. The case suggests 
 whether Section 709, being practically the same as 
 Section 25 of the Judiciary Act of 1789, needs to be 
 revised to make it meet the requirements of the Fourteenth 
 Amendment. When the only State Act of which a man 
 complains, as being violative of fundamental rights 
 protected against hostile State action by the Fourteenth 
 Amendment, is the decision of the highest Court of a 
 State in a case to which the man is a party, Section 709 
 appears to require him to anticipate by words placed 
 on the record such adverse State decision, or else forfeit 
 his right to a review in the Supreme Court of the United 
 States. Scott v. McNeal, 154 U. S., 34, on error to the 
 Supreme Court of Washington, and Bradley v. Lightcap, 
 195 U. S., 1, on error to the Supreme Court of Illinois, 
 
116 CONSTITUTIONAL LAW 
 
 well illustrate that it is, perhaps, possible, under Section 
 709, for a man to find himself completely staggered by 
 a decision of the highest Court of a State, resting upon a 
 clearly wrong view of a question of general or local law, 
 but, unless corrected, effectually stripping him of his 
 property, and yet powerless to invoke the aid of the 
 Federal Supreme Court, secured to him in plain words 
 by the Fourteenth Amendment, Article VI, Section 1, 
 Clause 3, and Article III, Sections 1 and 2, of the Con- 
 stitution of the United States. Section 709 and Section 
 721, R. S., U. S. — being Section 34 of the Judiciary 
 Act of 1789 — making "the laws of the several States" 
 "rules of decision in trials at common law in the Courts 
 of the United States," appear to have been treated to a 
 large extent, as if the Fourteenth Amendment had no 
 effect at all upon them. But the main purpose of the 
 Amendment was to cut down, or to correct abuses of, 
 the powers of all State authorities — legislative, execu- 
 tive and % judicial — by subjecting all their Acts affect- 
 ing the fundamental rights of individuals to a veto 
 power of supervision lodged in the legislative, executive, 
 and judicial authorities of the Nation, to the end of 
 making the Federal Constitution fully adequate to accom- 
 plish its "great and paramount purpose ... to unite 
 this mass of wealth and (moral as well as material) 
 power (scattered loose through the several States), 
 for the protection of the humblest individual; his rights, 
 civil and political, his interests and prosperity (being) 
 the sole end; the rest (being) nothing but the means" 
 (see the opinion of Mr. Justice Johnson in Gibbons v. 
 Ogden, 9 Wheaton 1, 223 and see Owensboro Water 
 Works Co. v. Owensboro, 200 U. S., 38, 26 Sup. Ct. 
 Rep., 249, 251, and cases cited). 
 
 Note West Chicago Street Ry. Co. v. Illinois, 26 Sup. 
 Ct. Rep., 518, 521, on the point of Federal jurisdiction. 
 
COLLECTED COMMENT 117 
 
 2. — Jurisdiction of Federal Supreme Court to Review 
 State Decisions Under the Federal Safety Appliance Act. 3 
 — Recent Acts of Congress affecting the rights and duties 
 as respects negligence, between employer and employee 
 engaged in the business of carrying goods and passengers 
 in the way of interstate and foreign commerce leave 
 existing Federal Judiciary Acts unaltered, but of course 
 their necessary effect must be to bring within the scope 
 of the Federal Judiciary Acts a class of cases that previ- 
 ously fell outside of them and within the exclusive juris- 
 diction of State Courts. In Schlemmer v. Buffalo, Roch- 
 ester & Pittsburgh R. Co., 205 U. S., 1, S. C, 27 Sup. Ct. 
 Rep., 407, the Supreme Court of the United States had 
 to consider the application of the section of the U. S. 
 Revised Statutes (Sec. 709) regulating its right to review 
 State decisions to a case decided by the Pennsylvania 
 Courts, wherein the plaintiff relied on that part of the 
 Safety Appliance Act of Congress (U. S. Comp. Stat., 
 1901, 3174; Supp., 1905, 603) requiring common carriers 
 by rail to have their cars equipped with automatic coup- 
 ling apparatus. The Court, dividing five to four, Mr. 
 Justice Holmes delivering the majority, and Mr. Jus- 
 tice Brewer the minority opinion, took jurisdiction and 
 reversed the Pennsylvania Supreme Court. Adam 
 Schlemmer, while trying to couple moving cars not 
 equipped with automatic coupling apparatus, lifted his 
 head — though he was told, as he crawled in between 
 the cars, to keep his head down — and it was crushed by 
 the moving cars, killing him. The Pennsylvania Courts 
 ruled, as a matter of law, that Schlemmer was guilty of 
 contributory negligence, and accompanied their ruling 
 by a statement that they observed the Act of Congress 
 and its mandate "that any employee of any such common 
 
 a [2 111. Law Rev. 191, October, 1907.] 
 
118 CONSTITUTIONAL LAW 
 
 carrier who may be injured by any locomotive, car, or 
 train in use contrary ^to the provisions of this Act shall 
 not be deemed thereby to have assumed the risk thereby 
 occasioned." This Act of Congress does not- — the 
 majority assumed without so deciding ■ — deprive an 
 employer bound by its burdens of the defense of con- 
 tributory negligence. The majority thought, however, 
 that the ruling of the Pennsylvania Courts holding 
 Schlemmer guilty of contributory negligence, as a matter 
 of law, was so wrong that it could not be supported fairly 
 and reasonably, except upon the theory that the Pennsyl- 
 vania Courts had failed to give due force and effect to the 
 clear provision of the Act of Congress stripping the 
 employer of the defense of assumption of risk, and hence 
 that the State judgment was a denial of a right, title, 
 privilege, or immunity specially set up and claimed under 
 a statute of the United States within the meaning of 
 Section 709, R. S. U. S. The minority appear to have 
 thought the Pennsylvania ruling a good one. But if 
 they really did think the Pennsylvania ruling a substan- 
 tially bad one, they thought its badness lay wholly in 
 non-Federal ground — contributory negligence — or in 
 a matter of fact, and hence that, agreeably to familiar 
 rules under Section 709, the State ruling was beyond the 
 reach of the corrective power of the Federal Supreme 
 Court. The view of the majority seems the better one, 
 both in point of good sense, and in point of the technic 
 of the lawyer. The Pennsylvania Supreme Court seems 
 to have thought there was "a question" "whether the 
 Act of Congress . . . has any applicability at all 
 in actions for negligence in the Courts of Pennsylvania." 
 There is no "question" at all about that, however, (U. S. 
 Const., Art. VI, CI. 2). The majority treated that 
 sentence only as evidence of confused thinking by the 
 State Court upon the difference between "contributory 
 
COLLECTED COMMENT 119 
 
 negligence" and "assumption of risk." Mr. Justice 
 Brewer points out that the majority hold with polished 
 courtesy what counsel charged bluntly, namely: "that 
 the Pennsylvania Courts intentionally, wrongfully, and 
 without any evidence thereof, found that there was 
 contributory negligence in order to avoid the binding 
 force of the Federal law." But when one recalls the 
 maxim, De fide et officio judicis non reciptur quaestio, 
 sed de scientia sive sit error juris sive facti (Broom's 
 Legal Maxims, Ed. 3, star p. 61), that interpretation 
 of the majority opinion seems a strained one. 
 
 3. — Unreviewable Wrong or Doubtful State Deci- 
 sions of Questions of Federal Constitutional Law — 
 Their Effect on Private Interests and on the 
 Reserved Powers of the States* — It is commonly 
 supposed, and often stated, that the Supreme Court 
 of the United States is the ultimate judicial ex- 
 pounder of the Constitution and laws of the United 
 States; that its decisions expounding such Constitution 
 and laws have the force of law everywhere throughout 
 the United States; and that, consequently, the Consti- 
 tution and laws of the United States have a uniform force 
 and effect in each and every State as limitations upon the 
 powers of government reserved to the States respectively, 
 or to the people. 
 
 That ought to be true. And that is true, in point of 
 sound legal principle. But that is not true, in point of 
 actual, visible, substantial fact. 
 
 De facto, the highest Courts of the several States are, 
 within the borders of their respective States, ultimate 
 judicial expounders of the Constitution and laws of the 
 United States, and as such they have the de facto, though 
 not the de jure, power to shut their eyes to, refuse to 
 
 a [3 111. Law Rev., 303, December, 1908.] 
 
120 CONSTITUTIONAL LAW 
 
 follow, and go directly against, decisions of the Federal 
 Supreme Court expounding the Constitution and laws 
 of the United States, subject to this important limitation 
 however, namely: That, in the exercise of this de facto 
 power, the Courts of the several States confine their 
 activity to pressing the screws of the limitations of the 
 Constitution and laws of the United States down on to 
 their respective States tighter than the Federal Supreme 
 Court does. 
 
 This kind of de facto, though not de jure, and, therefore 
 positively illegal, State judicial independence to commit 
 State suicide by destroying and abridging the extent of 
 the powers of government reserved to the States respec- 
 tively, or to the people, by the Tenth Amendment of 
 the Constitution of the United States, results from the 
 limitation, as now and heretofore practically construed 
 and applied, of the Act of Congress, Section 709, R. S., 
 forbidding the Supreme Court of the United States to 
 review (1) State decisions against the validity of State 
 Acts drawn in question as being repugnant to the Con- 
 stitution and laws of the United States; (2) State decis- 
 ions in favor of Federal Acts drawn in question as being 
 repugnant to the Constitution of United States; and (3) 
 State decisions in favor of titles, rights, privileges, or 
 immunities specially set up and claimed under the Con- 
 stitution and laws of the United States. 
 
 From the foundation of the Federal Government, 
 questions of Federal constitutional law have been left 
 within the jurisdiction of State Courts on the theory that, 
 when the question was one balanced with intelligent 
 doubt, the State Judges would give the benefit of the 
 dou,bt to their respective States — just and proper State 
 pride in, and jealously of, its reserved powers of govern- 
 ment being a postulate of the Federal Constitution, ex- 
 pressly declared and guarded by the Tenth Amendment, 
 
COLLECTED COMMENT 121 
 
 and a legal and constitutional patriotic feeling and senti- 
 ment in fact actually relied on to save the reserved powers 
 of the States from destruction and abridgment from 
 within by the States themselves — and upon the further 
 theory, expressly declared and enacted into law by Ar- 
 ticle VI, Section 1, Clause 2, of the Federal Constitution, 
 that, when the question was one that had been ruled 
 upon in letter or in spirit by the Federal Supreme Court, 
 State Judges would bow to, and follow, such ruling to 
 the fair extent of its letter and spirit. 
 
 The undue extreme in upholding the reserved powers of 
 the States to which State Judges used to carry the con- 
 stitutional postulate of State pride in, and jealousy of, 
 its reserved powers of government is well illustrated by 
 the first case in which the Supreme Court of the United 
 States vindicated its appellate jurisdiction to review the 
 decision of a State Court against a right claimed under 
 the Constitution and laws of the United States — Martin, 
 Heir at Law and Devisee of Fairfax v. Hunter's Lessees, 
 1 Wheaton, 304, decided in 1816, wherein we read that 
 the Court of Appeals of Virginia refused to obey a man- 
 date of the Supreme Court of the United States on the 
 expressed ground that "The Court is unanimously of 
 opinion that the appellate power of the Supreme Court 
 of the United States does not extend to this Court, under 
 a sound construction of the Constitution of the United 
 States." 
 
 The equally undue opposite extreme to which State 
 Judges have gone during the ensuing century after 
 Martin v. Hunter's Lessees in destroying and abridging 
 the reserved powers of the States is well illustrated by 
 the following Illinois decisions, to wit: Ritchie v. The 
 People, 155 111., 98, decided March 14, 1895; Village of 
 Madison v. Alton, Granite & St. Louis Traction Co., 
 236 111., 346, and The People ex rel. Chicago v. The 
 
122 CONSTITUTIONAL LAW 
 
 Illinois Central R. Co., 236 111., 374, both decided June 
 18, 1908, re-hearing denied October 7, 1908. 
 
 In Ritchie v. The People, the Supreme Court of Illi- 
 nois decided that the liberty and property and equal 
 protection of the laws prohibitions of the Fourteenth 
 Amendment of the Constitution of the United States 
 forbid the Legislature of Illinois to regulate the working 
 hours of women in certain lines of employment. The 
 question of Federal constitutional law involved was, 
 under the Federal decisions at the time the case was 
 decided, to say the least, one balanced with intelligent 
 doubt. The Illinois Court, in coming to its decision, 
 did not open the reports of the decisions of the Supreme 
 Court of the United States in its search for guiding and 
 controlling Federal constitutional principles. The Su- 
 preme Court of Illinois having decided the case as it did, 
 the right of invoking the appellate jurisdiction of the 
 Federal Supreme Court was, according^ to the accepted 
 view of Section 709, R. S., supra, cut off, and, conse- 
 quently, the Illinois decision has stood since the day it 
 was rendered, March 14, 1895, a space of thirteen years, 
 as a de facto correct and controlling judicial abridgment 
 of the extent of the reserved legislative powers of govern- 
 ment of the State of Illinois. 
 
 It now appears that the Supreme Court of Illinois, 
 instead of the Illinois Legislature, disregarded the Con- 
 stitution of the United States. In the case of Muller v. 
 Oregon, 208 U. S., 412, February 24, 1908, the Supreme 
 Court of the United States unanimously decided that 
 the reserved legislative power of a State of this Union 
 extends to the subject of regulating the working hours 
 of women in certain lines of employment. 
 
 If, for example, the Legislature of Illinois, at its next 
 session, should pass an Act like that sustained in Muller 
 v. Oregon by the Supreme Court of the United States, 
 
COLLECTED COMMENT 123 
 
 could the Illinois Supreme Court hold it to be repugnant 
 to the Federal Constitution? It seems plain that it 
 could not do so, legally and constitutionally. If it 
 should do so, would it not lay itself open to the criticism 
 of taking an improper, unjust, and illegal advantage of 
 the received opinion that its decision against the Act 
 cannot be reviewed and reversed by the Supreme Court 
 of the United States? 
 
 In Village of Madison v. Alton, Granite & St. Louis 
 Traction Co., and The People ex rel. Chicago v. Illinois 
 Central R. Co., important questions touching the re- 
 served governmental powers of the State, acting through 
 its municipal legislative bodies, to deal with the 
 extremely local and practical subject of the paving and 
 repair of public streets were raised and decided. 
 
 In the former case, the Illinois Supreme Court decided 
 that the obligation of contracts prohibition of the Federal 
 Constitution forbids the State of Illinois, acting through 
 the board of trustees of the Village of Madison, to use 
 the State's governmental power to make local improve- 
 ments by special assessment to lay a brick pavement 
 from curb to curb on a street in that Village, requiring 
 every person whose property might be benefited by the 
 pavement, to pay his just proportionate part of the cost, 
 because a previous board of trustees of the Village had 
 made a contract with the Alton, Granite & St. Louis 
 Traction Company requiring that Company to pave the 
 space between its tracks on the street in question with 
 macadam, such contract having, the Illinois Court said, 
 the operation and effect of a bargain and sale, or alienation 
 or abridgment, of the State's reserved governmental 
 power to lay pavements by special assessment. The 
 Court cites no decision of the Supreme Court of the 
 United States enunciating and applying the settled, 
 axiomatic principles of Federal constitutional law touch- 
 
124 CONSTITUTIONAL LAW 
 
 ing the alienation, or barter and sale, by contract, of the 
 State's reserved powers of government, except the de- 
 cision in Chicago v. Sheldon, 9 Wallace, 50, and that is 
 cited, not for what it decided, nor for what the Federal 
 Supreme Court says it decided, but for what a majority 
 of the Illinois Supreme Court says it decided in West 
 Chicago Street R. Co., v. Chicago, 178 111., 339. 
 
 In People ex rel. Chicago v. Illinois Central R. Co., 
 the Illinois Supreme Court decided that the property 
 prohibition of the Fourteenth Amendment of the Federal 
 Constitution forbids the State of Illinois, acting through 
 the council of Chicago, to require the Illinois Central 
 Railroad Company, at its own expense, to reconstruct 
 the pavement and repair the sidewalks in the subway 
 below its elevated structure crossing Sixty-third street 
 in Chicago. The Court cites no decision of the Supreme 
 Court of the United States, though it is known generally 
 that there are a number of very- important applicable 
 decisions rendered in the last two decades pointing 
 strongly to the conclusion that it is permissible, allowable, 
 and sustainable for a State, acting through a city council, 
 to do what the council of Chicago ordered the Illinois 
 Central Railroad Company to do, many of these cases 
 being reviewed in Northern Pacific R. Co. v. Minnesota 
 ex rel. Duluth, 208, U. S., 583, decided February 24, 
 1908, about three months before the Illinois decision. 
 
 It is not to be presumed that the Supreme Court of 
 Illinois is intentionally indifferent to decisions of the 
 Supreme Court of the United States upon questions of 
 Federal constitutional law. 1 The briefs of counsel in 
 the above cases are not given in the Illinois reports, and 
 
 1 The failure of the Supreme Court of Illinois to refer to Federal decisions 
 is remarked by McKenna, J., in Freeport Water Co. v. Freeport City, 180 U. S., 
 587, 593, and by Woods, J., in General Electric R. Co. ». Chicago, I. & L. Ry. 
 Co., 107 Fed. Rep , 771, 772, C. C. A., 7th C. 
 
COLLECTED COMMENT 125 
 
 very likely counsel for the public did not rely on Federal 
 decisions. But the people do expect, and have a perfect 
 right to expect, their Judges, when called upon to exer- 
 cise the extraordinary and remarkable judicial power to 
 pass upon the constitutionality of Acts of the legislative 
 representatives of the people, to make a circumspect, inde- 
 pendent study of the question in issue. "It is the duty 
 of Courts to be watchful of the constitutional rights of 
 the citizen," says Bradley, J., in Boyd v. United States, 
 116 U. S., 616, 635. 
 
 If the Illinois Court had decided these cases the other 
 way, they could have been taken up to the Supreme 
 Court of the United States for review. Decided as they 
 were in the State Court, if it is the law that the right of 
 appeal was, therefore, cut off, is that state of law right — 
 consistent with the letter and spirit of the Constitution 
 of the United States? How can it be, whether these 
 State cases are examined either with reference to the 
 private rights involved and represented by the State in 
 Ritchie v. The People, by the Village of Madison in Village 
 of Madison v. The Alton, Granite & St. Louis Traction 
 Co., and by the City of Chicago in People ex rel. Chicago 
 v. Illinois Central R. Co., or with reference to the consti- 
 tutional indestructibility of the powers of government 
 reserved to the States respectively, or to the people? 
 See Gibbons v. Ogden, 9 Wheaton, 1, 223, Johnson, J.; 
 Texas v. White, 7 Wallace, 700, Chase, C. J. 
 
 The important practical fact, existing as a condition, 
 which these State decisions bring out and emphasize, is 
 the State judicial process by which, de facto, the reserved 
 powers of the States are being destroyed and abridged 
 to the very serious detriment of the practical efficiency 
 and competency of State government, and to the very 
 serious detriment of important private interests of large 
 classes of people. This State judicial process of destroying 
 
126 CONSTITUTIONAL LAW 
 
 and abridging the reserved powers of the States is 
 nothing more nor less than a vacation by the States 
 themselves, through their Judges, of the sphere of govern- 
 ment reserved to the States — utterly repugnant to, and 
 violently at war with, the constitutional principle of 
 the indestructibility of the States, written into the 
 Federal Constitution by the Tenth Amendment, and 
 written across the face of the great seal of the State of 
 Illinois. The Federal Government cannot lawfully enter 
 upon, and occupy, the sphere of State government re- 
 served to the States thus vacated by the States them- 
 selves through their Judges. The people of the several 
 States, acting independently in their several States, 
 cannot arrest and stop this State judicial process of 
 destroying and abridging the extent of the reserved 
 powers of the States, because the judicial power of State 
 Courts to pass upon the validity of State Acts drawn in 
 question as being repugnant to the Constitution and 
 laws of the United States does not come from the people 
 of the several States, acting independently, but from 
 the people of the United States, by a grant expressed in 
 the Constitution and laws of the United States, and, 
 therefore, the people of the States, severally, cannot 
 touch, or interfere with, the exercise of this judicial 
 power of their Judges. They are prostrate and helpless 
 before it. The Supreme Court of the United States 
 cannot save the States by assuming the office of the 
 "pendulum" of the clock-like works of the Federal Con- 
 situation, at one time swinging — at the impulse of what 
 has the sound of the major voice of the country — the 
 Federal constitutional grants of power to the Federal 
 government, and the Federal constitutional prohibi- 
 tions of power to the States, too much to the side of the 
 Union, and at another time swinging them — whether 
 in obedience to, or in disregard of, the major voice of 
 
COLLECTED COMMENT 127 
 
 the country — too much to the side of the States, because 
 the works of the Federal Constitution are those of a clock 
 made and designed to run without the aid or obstruction 
 of any such judicial "pendulum." The Federal Govern- 
 ment may, however, constitutionally nullify, and reduce 
 to naught, the aforesaid State judicial process of ener- 
 vating the State governments, either by extending the 
 appellate jurisdiction of the Supreme Court of the United 
 States over State Courts, or by withdrawing questions 
 arising under the Constitution and laws of the United 
 States entirely away from the jurisdiction of State Courts. 
 State Judges like Kent, Gibson, and Agnew have said 
 that the only safe guide for State Judges called upon to 
 decide questions of Federal constitutional law is to 
 resolve every intelligent doubt in favor of the State. 
 And so sure-footed and far-seeing a writer on American 
 constitutional law as the late Professor Thayer has said: 
 
 "I have been speaking of the national judiciary. As to how the 
 State judiciary should treat a question of the conformity of an Act of 
 their own Legislature to the paramount Constitution, it has been 
 plausibly said that they should be governed by the same rule that 
 the Federal Courts would apply. Since an appeal lies to the Feder- 
 al Courts, these two tribunals, it has been said, should proceed on 
 the same rule, as being parts of one system. But under the Judic- 
 iary Act an appeal does not lie from every decision; it only lies 
 when the State law is sustained below. It would perhaps be sound 
 on general principles, even if an appeal were allowed in all cases, 
 here also to adhere to the general rule that Judges should follow 
 any permissible view which the co-ordinate Legislature has adopted. 
 At any rate, under existing legislation it seems proper in the State 
 Court to do this, for the practical reason that this is necessary to 
 preserve the right of appeal." "The Origin and Scope of the 
 American Doctrine of Constitutional Law." Thayer's Legal 
 Essays, 1, 38; 7 Harv. Law Rev. 129, 155. 2 
 
 2 It is not within the purpose of the above note to consider the interesting and 
 important questions, (1) Whether, under existing Congressional legislation 
 the appellate jurisdiction of the Federal Supreme Court does extend to State 
 
128 CONSTITUTIONAL LAW 
 
 4. — Federal Judgments and Decrees — -What Law 
 Governs Effect as to Privies of a Federal Equity Decree 
 Rendered in One State and Exhibited in Another State.** 
 - — In Old Dominion Copper Mining and Smelting Company 
 v. Bigelow, 89 N. E. Rep., 193, 212-220, the Supreme Court 
 of Massachusetts decided that it had the right to apply 
 the local law or usage of the courts of Massachusetts as 
 the rule of decision, to solve the question whether a third 
 person was entitled to the benefit of a decree of a federal 
 court sitting in equity in New York — the one affirmed 
 in Old Dominion C. M. and S. Co. v. Lewisohn, 210 U. S., 
 206 — as res ad judicata and a bar to a suit against him 
 in a Massachusetts court, when the claim of such third 
 person to the benefit of the decree rested on the ground 
 that he was in privity to the decree, within the meaning 
 of the rule that judgments and decrees bind the parties 
 and their privies. The ruling is new, and is supported 
 
 decisions like the above three Illinois decisions; and (2) Whether the appellate 
 jurisdiction of the Federal Supreme Court is now, or can be made, adequate to 
 reach and deal with a State shifting of such decisions from the basis of the pro- 
 hibitions of the Federal Constitution to the basis of the like prohibitions of the 
 State Constitution, holding that the latter prohibitions tie the hands of the 
 State Legislature more than the former. 
 
 Nor is the purpose of the note concerned very much with the actual legal 
 correctness of the Village of Madison and Chicago cases, supra. But as to the 
 Village of Madison case, the question whether the Traction Company had laid 
 down a macadam pavement between its tracks is a crucial question of fact, about 
 which the report of the case is silent. If a macadam pavement was down between 
 the tracks, and was in a reasonably good condition, when the subsequent brick 
 paving ordinance was passed, the latter ordinance would seem to encounter the 
 judicial doctrine avoiding ordinances for unreasonableness, and the obligation of 
 contracts prohibition then could have no proper application. As respects the 
 Chicago case, while a municipal egislative body can derive no power from Sec- 
 tion 8 of the Railroad Act, yet the grants of power in the Cities and Villages Act 
 do seem abundantly sufficient to clothe the council of Chicago with power to 
 pass the ordinance in question, if it was applicable to all railroads having like 
 subways. If it was a special ordinance, applicable only to one subway, then, I 
 suppose, under the doctrine that ordinances are presumed to be reasonable, it 
 was incumbent on the Illinois Central to show that the particular subway in 
 question did not fairly admit of exceptional legislative treatment. 
 
 a [4 111. Law Rev., 515, February, 1910.] 
 
COLLECTED COMMENT 129 
 
 by a long argument, citing many cases, though the court 
 says none of them touched and controlled the point it 
 had to decide. Perhaps the ruling finds some support 
 in the concurring opinion of Holmes, J., in Fall v. Eastin, 
 215 U. S., 1, filed after the Massachusetts decision, deal- 
 ing with a decree of a state court in Washington exhibited 
 in a Nebraska court for enforcement against a third per- 
 son, and assuming — without discussion - — that Ne- 
 braska law was applicable to determine the third person's 
 liability, the point not having been argued, and no other 
 Justice concurring in it, though two dissented from the 
 opinion and judgment of the court. 3 
 
 3 The Lewisohn and Bigelow cases arose out of the same ransaction. Lewisohn 
 and Bigelow, holding the title to a copper-mining property for a syndicate com- 
 posed of themselves and others furnishing the money to buy the property, organ- 
 ized the Old Dominion Company under New Jersey laws, with a capital stock of 
 $3,750,000, divided into 150,000 shares of the par value of $25 each. They con- 
 veyed the property, worth intrinsically not to exceed $1,000,000, to the corpora- 
 tion, taking in exchange 130,000 shares of the par value of $3,250,000, the cor- 
 poration acting through a board selected by them and acting for them. Pursuant 
 to an intention that was part of the plan of organizat'on, the remaining 20,000 
 shares were sold to the public for $25 a share, or $500,000 in all. Lewisohn and 
 Bigelow divided the 130,000 shares of the par value of $3,250,000 among them- 
 selves and their associates, comprising the syndicate that owned the property, 
 though the associates charged the division was not a fair one, which charge, per- 
 haps, discloses the animus of the litigation, and the causa causans of the appeals 
 to the higher principles, though it is not otherwise very relevant to it. A bill in 
 the name of the corporation as plaintiff was filed in the federal court at New 
 York against Lewisohn alone, seeking (1) rescission of the exchange of the proper- 
 ty for the 130,000 shares, or, in the alternative, (2) to compel Lewisohn to pay the 
 difference between the value of the property and the par value of the 130,000 
 shares, which difference was $2,250,000. The federal court dismissed the bill on 
 demurrer, and was affirmed all the way up. Two like bills in the name of the 
 corporation as plaintiff were filed in the Massachusetts Supreme Court against 
 Bigelow alone, one bill seeking rescission, and the other bill seeking to compel 
 Bigelow to pay the said difference. A demurrer to the latter bill was overruled 
 (see 188 Mass., 315, 74 N. E. Rep. 653), and the case went to a hearing on an- 
 swer and evidence, when Bigelow's plea of the Lewisohn decree as res adjudicata 
 was rejected, and a judgment was rendered against Bigelow for the said difference 
 of $2,250,000. The Massachusetts Supreme Court, dividing four to three, found 
 enough of the bad things and good things signified by the words "promoter," 
 "unenlightened public," and "promoter's profit," to furnish materials enough 
 for the construction of a trust as a vehicle to translate $2,250,000 in cash from 
 
130 CONSTITUTIONAL LAW 
 
 The Massachusetts court thought it had a choice of law 
 to be applied to determine the effect of the federal decree 
 and that its choice lay between New York law on the 
 one side and Massachusetts law on the other side, and the 
 case seems to have been presented to the court by counsel 
 on that theory. It is believed that, if the Massachusetts 
 
 the pocket of Bigelow to the corporation. The Supreme Court of the United 
 States refused to construct any trust, being unable to find that the plaintiff cor- 
 poration was a satisfactory cestui que trust to give the $2,250,000 to. The 
 opinion of the court, by Holmes, J., gives us an express admonition not to try to 
 stretch it beyond the circumstances of the case, and the single point it deals with, 
 i. e., the stability of the exchange of the property for the 130,000 certificates as 
 against an attack in the name of the corporation. The restricted narrow scope of 
 the opinion under the rule of stare decisis constitutes the breadth of the decree 
 as res adjudicata against the corporation. The court treated the corporation's 
 bill as a bill of peace, seeking to establish a general right against all the members 
 of the syndicate, expressly waiving, among other questions, the question "whether 
 a remedy can be had for a part of a single transaction in the form in which it is 
 sought," in order to exert its jurisdiction, invoked by the corporation, to examine 
 the corporation's general principal point, and adjudicate it. For purposes of 
 litigation and final adjudication of rights, Lewisohn, Bigelow and all the other 
 members of the syndicate stood toward the question of the stability of the 
 exchange of the property for the 130,000 shares, and as against the corporation, 
 as a legal unit, bound together and tied up into such legal unit by what the 
 modern books call community of interest, or, in this instance, indissoluble solid- 
 arity of interest, and by what the old books call privity of interest, the transition 
 from the old to the modern form of expression, beginning, in the opinion of 
 Lord Hardwicke in York v. Pilkington, 1 Atk., 2S2. Comrs. of Sewers of London 
 v. Gellatly, L. R. 3 Ch. D., 610, 615, Jessel, M. R.; Warrick v. Queens College, 
 L. R. 10 Eq., 105, 125, Romilly, M. R., and argument of Sir R. Palmer on p. 125. 
 It hardly can be doubted that any federal court of equity would hold the Lewisohn 
 decree a bar to a subsequent like bill by the corporation against Bigelow or any 
 other member of the syndicate. The liberal practice of the federal courts in 
 respect of the omission of parties in equity cases, authorized by R. S., Sec. 737, 
 and Equity Rule 47, was not established to encourage experimental litigation, 
 or to encourage multiplicity of suits for thrashing old straw over again. 
 
 The Massachusetts Supreme Court first dealt with the case against Bigelow 
 on the merits, and rejected the Lewisohn opinion, as it had a right to do, though 
 Knowlton, C. J., dissenting, says he did not view the case as a fit and appropriate 
 one for a useful exercise of that right by the court. Then the court, after decid- 
 ing against Bigelow on the merits, took up his plea of the Lewisohn decree, and, 
 to determine its effect as res adjudicata, the court did not give any consideration 
 whatever to the opinion in the Lewisohn case, as the law, or part of the law, of 
 the Lewisohn decree, but substituted in its place as the law of the Lewisohn 
 decree the Massachusetts court's own opinion against Bigelow. 
 
COLLECTED COMMENT 131 
 
 court had any choice of law, its choice lay between the 
 law or usage of the courts of New York on the one side, 
 and the law or usage of the courts of the United States 
 sitting in equity on the other side, and that the law or 
 usage of the Massachusetts courts was excluded alto- 
 gether. In the writer's view, the right law, and the only 
 law, to be applied to solve the question raised by the 
 claim of a third person to the benefit in a court of another 
 state of such a federal decree as was exhibited in this 
 instance in Massachusetts, is the law or usage of the 
 federal courts sitting in equity. 
 
 Federal judgments and decrees, like state judgments 
 and decrees, are embraced by the provisions of the Acts 
 of Congress of 1790 and 1804, consolidated into R. S., 
 section 905, the familiar section commanding, under its 
 fixed construction since Mills v. Duryee, 7 Cranch., 481, 
 and Hampton v. McConnel, 3 Wheat., 234, that judg- 
 ments and decrees rendered anywhere within the Ameri- 
 can empire shall have such effect given to them ' 'in every 
 court within the United States as they have by law or 
 usage in the courts of the state from which they are taken." 
 It is to be noticed that the words "in the courts of the 
 state" in the clause in italics are, as it is said in Embry 
 v. Palmer, 107 U. S., 3, elliptical, and embrace federal 
 courts sitting in the several states. There is an established 
 distinction touching the source of legislative power from 
 which the section flows, in so far as it prescribes the law 
 to be applied to determine the effect of judgments and 
 decrees in places other than the places where they are 
 rendered. As applied to the effect of state judgments 
 and decrees, the section flows exclusively from the grant 
 of legislative power in the full faith and credit clause. As 
 applied to the effect of federal and territorial judgments 
 and decrees, the section flows exclusively from the grant 
 of legislative power in the judicial and other articles, 
 
132 CONSTITUTIONAL LAW 
 
 sections, and clauses of the constitution. We cannot 
 assume that no practical consequence can ever be de- 
 duced in any case from this clear, sound, established 
 distinction. See Dupasseur v. Rochereau, 21 Wall., 130, 
 Embry v. Palmer, 107 U. S., 3. 
 
 As to the words "law or usage" in the phrase "law 
 or usage in the courts . . . from which they are 
 taken": As applied to state judgments and decrees, the 
 "law or usage" meant is the law or usage of the state 
 wherein the judgment or decree in question was rendered. 
 See Hancock National Bank v. Farnum, 176 U. S., 640. 
 The "law or usage" of a state means (1) the local law or 
 usage peculiar to that state, and (2) the national law or 
 usage, common to all the states, made up of the consti- 
 tution of the United States, acts of Congress and treaties, 
 as expounded by the Supreme Court of the United States, 
 constituting "a common law, resting on national author- 
 ity" — the paramount law or usage in every state, any 
 local law or usage peculiar to any state to the contrary 
 notwithstanding. Smith v. Alabama, 124 U. S., 465, 
 478-9; Prigg v. Pennsylvania, 16 Peters, 539, 628. As 
 applied to judgments and decrees of state courts, the 
 words "law and usage," as used in the section, do not 
 embrace either the "general jurisprudence" administered 
 by the federal courts under the doctrine of Swift v. Tyson, 
 16 Peters, 1, or the system of equity jurisprudence, prac- 
 tice and procedure administered by federal courts sitting 
 in the several states as equity courts. Giles v. Little, 
 134 U. S., 645. As applied to judgments and decrees 
 of federal courts sitting in the several states, to determine 
 what is meant by "law or usage in the courts . . . 
 from which they are taken," a distinction exists in the 
 federal decisions. You must examine the judicial pro- 
 ceeding that resulted in the federal judgment or decree 
 in question, and (1) if it appears that the federal court 
 
COLLECTED COMMENT 133 
 
 "was in the exercise of jurisdiction to administer the laws 
 of the state, and its proceedinsg were had in accordance 
 with the forms and course of proceedings in the state 
 courts," then "law or usage" means the law or usage 
 in the state courts of the state in which the federal court 
 that rendered the judgment or decree was sitting; but 
 (2) if it appears that the federal court was in the exercise 
 of jurisdiction to administer the constitution, acts of 
 Congress and treaties of the United States or the general 
 common-law jurisprudence of the federal courts, or the 
 general equity jurisprudence of the federal courts, in 
 accordance with the forms and modes of procedure in 
 the federal courts, then "law or usage" means the law or 
 usage in the courts of the United States, as distinguished 
 from the local law or usage in the courts in each of the 
 several states. Dupasseur v. Rochereau, 21 Wallace, 130; 
 Deposit Bank v. Board of Councilmen of Frankfort, 191 
 U. S., 499. This last distinction must be affirmed to 
 exist. But the court has not had occasion to so emphasize 
 and apply it, that no state court can be excused for over- 
 looking it in a case like the one in hand. That the 
 Supreme Court of Massachusetts overlooked this distinc- 
 tion in this instance cannot be doubted — its attention not 
 having been specially directed to it by counsel, it seems. 
 
 The Massachusetts Court read Hancock National 
 Bank v. Farnum, 176 U. S., 640, as deciding that "law 
 or usage" in R. S., section 905, supra, as applied to judg- 
 ments and decrees of federal courts, always necessarily 
 must mean only the law or usage in the courts of the 
 state in which the federal court that rendered the judg- 
 ment or decree was sitting. In that case the question 
 was whether the Rhode Island Supreme Court, in an 
 action in Rhode Island against a stockholder in a corpor- 
 ation, had given to a judgment of a federal court sitting 
 in Kansas against the corporation, the same effect that 
 
134 CONSTITUTIONAL LAW 
 
 it had "by law or usage in the courts of the state from 
 which" it was taken to Rhode Island. The judgment 
 in question was rendered by the federal court sitting in 
 Kansas in exercise of its jurisdiction to administer the 
 local laws of Kansas, and in accordance with the forms 
 and modes of procedure in the courts of Kansas, the par- 
 ticular local laws of Kansas it administered being the 
 Kansas constitution and statutes declaring, and regulat- 
 ing the enforcement of, the double liability of stock- 
 holders in Kansas corporations. As applied to the judg- 
 ment of the federal court in Kansas rendered under and 
 pursuant to the Kansas constitution and statutes, it was 
 held that "law or usage" meant the law or usage in the 
 courts of Kansas and that only. Mr. Justice Brewer 
 emphasized the point forcibly in that case. But the 
 learned Justice did not dwell so emphatically upon that 
 point with a view to laying down a general rule appli- 
 cable under any and all circumstances to federal judgments 
 and decrees or with a view to obliterating the distinc- 
 tion above stated imbedded in previous and subsequent 
 decisions. His purpose was to make it plain to all men 
 that if they go into another state to take the benefits of 
 the laws of that state, they must take the burdens of 
 those laws, too, and that the constitution and laws of 
 the United States do not let them escape those burdens. 
 The case marks the end of a long struggle to apply that 
 principle to state laws imposing a double liability on 
 stockholders in corporations, and it was thought quite 
 important to emphasize the point that, as applied to 
 that federal judgment in that case, "law or usage" 
 meant the law or usage of Kansas exclusively in respect 
 of the Kansas double liability of stockholders and the 
 Kansas modes of enforcing it. 
 
 Turning to the opinion in Old Dominion Copper Mining 
 and Smelting Co. v. Lewisohn, 210 U. S., 206, it appears 
 
COLLECTED COMMENT 135 
 
 that the decree of the federal court in New York, exhibi- 
 ted in the Massachusetts court for enforcement as a 
 defense, was rendered by the federal court in the exercise 
 of its jurisdiction to administer the general equity juris- 
 prudence of the federal courts in accordance with their 
 own forms and modes of procedure for such cases. These 
 things have always constituted a distinct, independent 
 system of law or usage in the federal courts. See Water- 
 man v. Canal-Louisiana Bank and Trust Co., 215 U. S., 
 33. As in Hancock National Bank v. Farnum, supra, 
 it was thought fitting to emphasize the fact that the law 
 or usage in the courts of Kansas determined the whole 
 of the effect in Rhode Island, and in every other state, 
 of the federal judgment at the basis of that case, so, for 
 different but analogous reasons, these Old Dominion 
 cases (see the third case in New Jersey, 71 Atl. Rep., 153) 
 are, as it seems to me, fit and appropriate cases in which 
 to emphasize usefully the other side of the distinction, 
 when "law or usage" must be held by every court within 
 the United States to mean the law or usage in the federal 
 courts sitting in equity in the several states. The general 
 equity jurisprudence, practice, and procedure, and the 
 general common-law jurisprudence of the federal courts 
 are supposed to govern men and things on the surface of 
 the earth. Mr. Justice Brewer said in Riverdale Cotton 
 Mills v. Alabama and Georgia Mfg. Co., 198 U. S., 188, 
 202: "It is always to be understood that federal tribunals 
 are not moot courts." 4 
 
 The words of the constitution and acts of Congress 
 draw no distinction, as to the law to be applied, between 
 the case where a judgment or decree is exhibited in another 
 state by a party to it, and the case where a judgment or 
 decree is exhibited in another state by a third person 
 
 4 The distinction was applied pointedly and strongly in Deposit Bank v. Council- 
 man of Frankfort, 191 U. S., 499; Covington z>. First Natl. Bank, 198 U. S., 100. 
 
136 CONSTITUTIONAL LAW 
 
 claiming to stand in privity to the judgment or decree. 
 Hancock National Bank v. Farnum, supra, seems to 
 decide that the effect of judgments and decrees on privies 
 — which necessarily includes the question whether the 
 third person exhibiting the judgment or decree in ques- 
 tion as a privy, is privy vel non — as well as their effect 
 on parties, must be determined "by the law or usage in 
 the courts . . . from which they are taken." The 
 Massachusetts court, referring to it as cited and used in 
 Smithsonian Institution v. St. John, 214 U. S., 19, con- 
 cedes that there is "broad language" in the opinion in 
 that case upon this point, but restrains the "broad 
 language," if I understand the court, upon two consider- 
 ations': (1) the obligation enforced by the judgment in 
 that case was ex contractu; (2) the question of privy 
 vel non is a question touching the jurisdiction of the 
 court that rendered the judgment or decree. There is 
 no distinction in the constitution, acts of Congress, or 
 federal decisions, in respect of the law to be applied to 
 determine the effect that must be given a state or federal 
 judgment or decree in another state, between the case 
 of a judgment or decree enforcing an obligation ex con- 
 tractu, and the case of a judgment or decree enforcing 
 an obligation ex delicto. If it be agreed that the 
 question of privy vel non in the Bigelow case was a 
 question touching the jurisdiction of the court that ren- 
 dered the judgment or decree, then it is plain that the 
 local law or usage of the courts of Massachusetts cannot 
 be applied to determine the jurisdiction of a court of 
 any other state or country, and least of all can the 
 local law or usage of Massachusetts be applied to de- 
 termine the jurisdiction of a federal court sitting in a 
 state, either as a federal court, or as a court of equity. 
 See Waterman v. Canal-Louisiana Bank and Trust Co., 
 supra. 
 
COLLECTED COMMENT 137 
 
 As respects the concurring opinion of Mr. Justice 
 Holmes in Fall v. Eastin, 215 U. S., 1, above referred to: 
 The decree in question was a decree of a Washington 
 court in a divorce case ordering the husband to convey 
 a parcel of Nebraska land to his former wife, exhibited 
 by the wife in a Nebraska court for enforcement against 
 a sister of the husband to whom the husband had con- 
 veyed the Nebraska land by way of gift to defeat the 
 Washington decree. The learned Justice, differing from 
 his associates, thought the Washington decree estab- 
 lished in Washington a personal obligation of the husband 
 to convey to the former wife. On that view of the effect 
 of the Washington decree in Washington, then, as the 
 learned Justice said, under the Constitution of the United 
 States, and R. S., section 905, supra, the Washington 
 decree had to be given the same effect in Nebraska by 
 the Nebraska court, wherein it was exhibited. But it was 
 exhibited against a third person — the husband's sister. 
 Though the sister was a subsequent donee, and, therefore, 
 on principles of equity jurisprudence, privy in title, and 
 bound to perform the husband's obligation to convey, 
 the Nebraska Supreme Court refused to make the sister 
 convey to the wife, and the Supreme Court of the United 
 States was reviewing its decision. The learned Justice 
 said: "Now, if the [Nebraska] court saw fit to deny the 
 effect of a judgment on privies in title, or if it considered 
 the defendant an innocent purchaser, I do not see what 
 we have to do with its decision, however wrong. I do not 
 see why it is not within the power of the State [of Nebras- 
 ka, acting by its highest court] to do away with equity 
 or with the equitable doctrine as to purchasers with 
 notice if it sees fit." But was Nebraska equity, or 
 Washington equity, the applicable, contolling law or 
 usage to be applied to determine the privity of the sister 
 in Nebraska? Since Nebraska has no power to do away 
 
138 CONSTITUTIONAL LAW 
 
 with equity in Washington, it must have been assumed 
 that Nebraska equity, or want of equity, applied. The 
 trouble lies in this: The earlier part of the opinion, and 
 the two cases cited, giving the reason for not concurring 
 in the reasoning of the majority opinion, show that the 
 learned Justice conceived of the obligation of the hus- 
 band to convey the Nebraska land to the wife he found 
 arising in Washington out of the Washington decree, as 
 being the same identical thing in every respect as the 
 obligation to convey that would have arisen in Wash- 
 ington out of a private contract between the husband 
 and wife made in Washington binding the husband to 
 convey the Nebraska land to the wife. In the case of 
 such private contractual obligation, Nebraska law, as the 
 law of the situs of the land, would have been the applicable, 
 controlling law to determine whether the sister, as a sub- 
 sequent purchaser, was bound to perform the husband's 
 contract, made in Washington, to convey Nebraska land. 
 See Westlake, Private Int. Law, 1880, p. 186 ; Beale, Equit- 
 able Interests in Foreign Property, 382, 390. It does not 
 follow, necessarily, from that, however, that Nebraska law 
 governed as to the liability of the sister to discharge the 
 burden of the Washington decree in Nebraska. The con- 
 stitution and act of Congress, R. S., section 905, came into 
 play and action the moment the Washington decree 
 was exhibited in Nebraska — assuming, of course, that 
 Holmes, J., is correct in his view of the effect of the Wash- 
 ington decree in Washington, as to which view the court 
 was against him, and rightly so, as it seems to me, though 
 it must be admitted that the majority opinion is strange 
 in respect of the equity law and constitutional law ex- 
 pressed and implied in it as related to the jurisdiction of 
 the Washington court to render that decree. 
 
 The question whether the constitution and acts of 
 Congress draw any distinction in respect of the law to be 
 
COLLECTED COMMENT 139 
 
 applied to determine the effect of judgments and decrees 
 on parties, and their effect on privies, in other states, 
 saying that the law to be applied on the case of parties 
 is the "law or usage in the courts . . . from which 
 they are taken," and that the law to be applied in the 
 case of privies is the law or usage in the courts wherein the 
 judgments or decrees are exhibited for enforcement as 
 claims or as defenses, is, in point of principle, a question 
 of constitutional and statutory construction, and nothing 
 else. If we go back to first principles, then the true 
 principle to be applied to determine the existence of any 
 such distinction in the constitution and acts of Congress 
 is, it is believed, the one stated by Marshall, C. J., in 
 Dartmouth College v. Woodward, 4 Wheat. 518, 644-5: 
 "It is not enough to say that this particular case [of 
 privies] was not in the mind of the convention, when 
 the article was framed, nor of the American people, when 
 it was adopted. It is necessary to go further, and to say 
 that, had this particular case been suggested, the language 
 would have been so varied as to exclude it, or would have 
 been made a special exception. The case being within 
 the words of the rule, must be within its operation like- 
 wise, unless there be something in the literal construction 
 so obviously absurd, or mischievous, or repugnant to 
 the general spirit of the instrument as to justify those 
 who expound the instrument in making it an exception." 
 Under the view of the Massachusetts court, a federal 
 judgment or decree not rendered in exercise of jurisdic- 
 tion to administer the laws of a state may have as many 
 different effects as there are states in the union, and yet 
 another effect in federal courts. In other words, the 
 Massachusetts court casts all federal judgments and 
 decrees, except those rendered in exercise of jurisdiction 
 to administer the laws of a state, into the dark and muddy 
 slough of despond of state courtesy or comity that 
 
140 CONSTITUTIONAL LAW 
 
 was deliberately eliminated by the framers of the con- 
 stitution as a fountain or source of principles for the 
 regulation of the enforcement of judgments and de- 
 crees in places other than the places where they are 
 rendered within the territorial limits of the United States. 
 "Whether it [the Lewisohn federal decree] should bar the 
 plaintiff from another suit is a question of public policy. 
 Such a question must be decided according to the law 
 of the state where it arises." That is the Massachusetts 
 court's statement of its conclusion. See 89 N. E. Rep., 
 on p. 217, col. 2, top. 
 
 5. — Federal Injunctions to Stop Suits in State Courts 
 and State Injunctions to Stop Suits in Federal Courts — ■ 
 Plea in Abatement and Stay Order. 1 — In Rickey Land & 
 Cattle Company v. Miller & Lux, 218 U. S., 258, 31 Sup. 
 Ct. Rep., 11, after an equity suit filed in a Nevada federal 
 circuit court to determine and adjust water rights in an 
 interstate stream, a defendant caused an equity suit for 
 the same thing to be filed in a California state court. 
 The Nevada federal court enjoined the prosecution of 
 the California state suit, and the case went up to the 
 Supreme Court of the United States on certiorari to 
 review a decision of the Circuit Court of Appeals for the 
 ninth circuit affirming the injunction order. The Supreme 
 Court affirmed the decision because the suit in the Nevada 
 federal circuit court was begun first. The two suits 
 being pro una et eadem causa, the old principle that no 
 man ought to be twice vexed for one and the same cause 
 required that one of the suits be stopped. "By the rule 
 of law a man shall not be twice vexed for one and the 
 same cause, Nemo debet bis vexari, si constet curiae 
 quod sit pro una et eadem causa." Sparry 's Case, 5 
 Co. Rep., 61. 
 
 a [5 111. Law Rev., 508, March, 1911.] 
 
COLLECTED COMMENT 141 
 
 It is settled by numerous decisions of the Supreme 
 Court since 1875 that an application to a federal circuit 
 court where an equity suit is pending, for an injunction 
 to stop a second suit for the same thing in a state court, 
 is a proper way to proceed to get the second suit stopped ; 
 unless a distinction can be drawn when the second suit 
 is not filed in a state court in the same state as the federal 
 court, but in a state court in another state. That dis- 
 tinction ought not to be good, and doubtless is not good. 
 French v. Hay, 22 Wall., 250. 
 
 It is commonly said, as in Bates, Federal Equity pro- 
 cedure, Sec. 541, and by Sanborn, J., in Starr v. Chicago, 
 R. I. & P. R. Co., 110 Fed. Rep. 3, that the federal- 
 injunction mode of stopping second suits in state courts 
 rests on "reason" as well as "authority;" the "reason" 
 is that the injunction is necessary to preserve the inde- 
 pendent jurisdiction of the federal courts and to maintain 
 harmonious relations between federal and state courts. 
 Let us see how "reason" gets over the Injunction Act of 
 Congress of 1793. 
 
 By the federal judiciary act of September 24, 1789, 
 Sec. 14, Ch. 20, now R. S., Sec. 716, the Supreme Court 
 and the circuit and district courts of the United States 
 were given power "to issue all writs not specifically pro- 
 vided for by statute, which may be necessary for the 
 exercise of their respective jurisdictions, and agreeable 
 to the usages and principles of law." I do not know 
 whether an injunction ever issued from a federal court to 
 stay proceedings in a state court between September 24, 
 1789, and March 2, 1793. On the latter date Congress 
 passed the well-known injunction act, which is Sec. 5, 
 Ch. 22, of the Judiciary Act of March 2, 1793, which 
 has been in force ever since and is now R. S., Sec. 720. 
 The injunction act of March 2, 1793, says: "The writ of 
 injunction shall not be granted by any court of the 
 
142 CONSTITUTIONAL LAW 
 
 United States to stay proceedings in any court of a 
 state." To meet the decision in Peck v. Jenness, 7 How., 
 612, in 1849, which applied the prohibition of the in- 
 injunction act of March 2, 1793, to federal courts sit- 
 ting in bankruptcy, Congress introduced the excep- 
 tion in R. S., Sec. 720 (see Moran v. Sturges, 152 U. S., 
 256, 269), which says: "Except in cases where such injunc- 
 tion may be authorized by any law relating to proceed- 
 ings in bankruptcy." That bankruptcy exception need 
 not be noticed further here. Down to the case of French 
 v. Hay, 22 Wall., 250, decided April 19, 1875, it seems to 
 have been assumed as a matter of course in the Supreme 
 Court that the injunction act of March 2, 1793, meant 
 exactly what it says, viz., that a federal court is without 
 any power whatever to use the writ of injunction in 
 any case to stay proceedings in a state court. And the 
 rule was also, vice versa, that a state court is without 
 any power whatever to use the writ of injunction in any 
 case to stay proceedings in a federal court. See Diggs v. 
 Wolcott, 4 Cranch, 179; M'Kim v. Voorhies, 7 Cranch, 
 279; Peck v. Jenness, 7 How., 612; Watson v. Jones, 13 
 Wall., 679; Haines v. Carpenter, 91 U. S., 254; United 
 States v. Parkhurst-Davis Mercantile Co., 176 U. S., 
 317; Story, Eq. Jur., Sec. 900. 
 
 This rule of practice as between state and federal 
 courts, recognized by the Supreme Court from the injunc- 
 tion act of March 2, 1793, down to French v. Hay, 22 
 Wall., 250, April 19, 1875, did not sanction the practice 
 of two suits for the same thing — one in a state court and 
 the other in a federal court. The mode of procedure 
 recognized by the Supreme Court, as between state 
 and federal courts, for stopping a second suit in one 
 court when a prior suit for the same thing was pending 
 in the other court was, to exhibit the prior suit in the 
 court where the second suit was filed and to ask for a 
 
COLLECTED COMMENT 143 
 
 stay order there. In Riggs v. Johnson County, 6 Wall., 
 166, 204, 205, in 1867, Miller, J., dissenting, said: "It 
 has been established as a rule [recognized by this 
 court so repeatedly as the rule which governs in matters 
 of concurrent jurisdiction between state and federal 
 courts that a citation of authorities is hardly necessary] 
 that [as a matter of substantive law] the court which 
 first obtains jurisdiction of the case shall have the exclu- 
 sive right to decide the matter in issue, and that [as a 
 matter of procedure] any other court which may have 
 subsequently assumed to act in the matter must, when 
 the fact of this priority of jurisdiction is brought to its 
 attention, proceed no further." See Orton v. Smith, 
 18 How., 263; Chittenden v. Brewster, 2 Wall., 191; 
 Shelby v. Bacon, 10 How., 56; Peck v. Jenness, 7 How., 
 612; Benner v. Marshall, 1 Wheaton, 215; Gelston v. 
 Hoyt, 3 Wheaton, 246; Wallace v. McConnel, 13 Peters, 
 136. 
 
 The procedure by way of stay order in the court where 
 the second suit was filed was in full accord with, and gave 
 full effect to, the letter and spirit of the injunction act of 
 March 2, 1793. That act and the stay-order procedure 
 under it drew no distinction between suits at law and 
 suits in equity, or between suits in rem and suits in per- 
 sonam; the act and the stay-order procedure went upon 
 the constitutional theory that when a state judge officially 
 knows that a prior suit is pending in a federal court and 
 is asked to stop a second suit for the same thing in his 
 own court, the constitution requires the state judge to 
 stop the second suit; the constitution is a standing per- 
 petual injunction to the state judge as well as to the 
 party; no injunction from the federal court is needed; 
 and, vice versa, when a federal judge is asked to stop a 
 suit in his court because a prior suit for the same thing 
 is pending in a state court, the constitution requires 
 
144 . CONSTITUTIONAL LAW 
 
 the federal judge to stop it; an injunction from the 
 state court is not needed. In the view of the consti- 
 tution, and in the view of the injunction act of 
 March 2, 1793, state courts and federal courts are do- 
 mestic courts, parts of a single judicial establishment, 
 one united whole; and they assume that every judge, 
 state as well as federal, will do his duty. See the Fed- 
 eralist, No. 82, Hamilton. 
 
 April 19, 1875, in French v. Hay, 22 Wall., 250, the 
 Supreme Court sustained a writ of injunction from a 
 federal court in Virginia to stay proceedings in a state 
 court in Pennsylvania, the suit in the Pennsylvania 
 court being a second suit at law for the same thing 
 involved in a prior equity suit in the Virginia federal 
 court. Concerning the prohibition of the injunction 
 act of March 2, 1793, Swayne, J., peremptorily said: 
 "It has no application here. The prior jurisdiction of 
 the court below [i. e., the Virginia federal court] took the 
 case out of the operation of that provision." The point 
 that, under the injunction act of March 2, 1793, and under 
 prior decided cases, the exclusive remedy of the party 
 doubly vexed was to exhibit the prior federal suit in the 
 state court and ask for a stay order there, was not made. 
 Starting with French v. Hay in 1875, the federal courts 
 have grafted into the injunction act of March 2, 1793, 
 this exception, viz., "except where a suit in equity is first 
 filed in a federal court and a second suit at law or in equity 
 or a criminal prosecution (Ex parte Young, 209 U. S., 123, 
 161, 162) for the same thing is afterward filed in a state 
 court." The judge-made exception is allowed to operate 
 in the vice versa case where a suit is first filed in a state 
 court and a second suit for the same thing is afterward 
 filed in a federal court ; the federal court having the prior 
 equity suit may stay the second suit in the state court 
 by injunction, and the state court having the prior suit 
 
COLLECTED COMMENT 145 
 
 may stay the second suit in the federal court by injunc- 
 tion. 5 
 
 Plainly the judge-made exception grafted into the 
 injunction act of March 2, 1793, owes its origin to the 
 circumstance that a lawyer in a case did not make a 
 point he might have made but perhaps did not want to 
 make. The judge-made exception issues out of the mis- 
 take of not seeing what the framers of the injunction act 
 of March 2, 1793, did see, viz., the difference in English 
 law and practice between stopping a foreign suit by 
 injunction and stopping a domestic suit by stay order. 6 
 
 No doubt the judge-made federal-injunction mode 
 of procedure for stopping second suits in state courts 
 has been in use too long to be disturbed now. But the 
 federal-injunction mode of procedure does not exclude 
 
 6 Where the prior suit is in a state court there is no reason why it should be 
 a suit in equity in those states where there is but one court and one form of action, 
 the court having the combined powers of a court of law and a court of equity. 
 
 French v. Hay is the earliest precedent in the Supreme Court of a federal 
 injunction to stop a suit in a state court cited by Fuller, C. J., in Moran v. Sturges, 
 152 U. S., 256, 270, and by Sanborn, J., in Starr v. Chicago, R. I. & P. Ry. Co., 
 110 Fed. Rep., 3, 6, 7, where the matter was examined carefully. In the Iowa 
 municipal bond controversy, between state and federal courts, started by Gelpcke 
 v. Dubuque, 1 Wall., 175, in 1863, the Iowa courts appear to have employed the 
 writ of injunction to stop proceedings in federal courts. See Butz v. Muscatine, 
 8 Wall., 557, 587. 
 
 6 Under the English equity law and practice, prior to 1875, the English chancery 
 court stopped a foreign suit by injunction only when there was a suit pending 
 before it invoking its aid to enforce an equity in domestic or foreign property; 
 the jurisdiction to stop the foreign suit was ancillary to the jurisdiction to enforce 
 the equity in the domestic or foreign property; the court having jurisdiction on 
 the foundation of an equity in domestic or foreign property, the prior or sub- 
 sequent pendency of the foreign suit went only to the question of the propriety 
 and justice of stopping the foreign suit, the court being at liberty to stop the 
 foreign suit, to stop the English suit, or to allow the two suits to proceed, as the 
 ends of justice seemed to require under all the circumstances. The Carron Iron 
 Co. v. Maclaren, 5 H. L. C, 416; McHenry v. Lewis, L. R. 22, Ch. D., 397, 400, 
 405; Hyman v. Helm, L. R. 24, Ch. D., 531; Thorndike v. Thorndike, 142 111., 
 450; Cole v. Young, 24 Kan., 435, Brewer, J. The above describes the "proper 
 cases" referred to in the first paragraph of the headnote to Cole v. Cunningham, 
 133 U. S., 107, though most of the state cases in the opinion do not fall within 
 the description. 
 
146 CONSTITUTIONAL LAW 
 
 the stay-order mode; the two may coexist. Orton v. 
 Smith, 18 How., 263, and Chittenden v. Brewster, 2 Wall., 
 191, show that the two do coexist, though the stay-order 
 mode has been allowed to fall into desuetude. But see 
 Green v. Underwood, 86 Fed. Rep., 427, C. C. A., 8th C; 
 Zimmerman v. So. Relle, 80 Fed. Rep., 417, C. C. A., 
 8th C; Barber Asphalt Pav. Co. v. Morris, 132 Fed. 
 Rep., 945, C. C. A., 8th C; Bunker Hill M. Co. v. Sho- 
 shone M. Co., 109 Fed. Rep., 504, 508, C. C. A., 9th C. 
 The stay-order mode is broader in its scope than the 
 injunction mode; the stay-order mode is available in all 
 cases — as a concurrent remedy in cases where the in- 
 j unction mode is available and an exclusive remedy where 
 the injunction mode is not available. 
 
 It is commonly said the stay-order mode of stopping 
 a second suit is not allowable, and the federal injunction 
 mode is necessary, because it is a settled rule of the Eng- 
 lish common law that a plea of a prior suit pending is not 
 a good plea in abatement when the prior suit is pending 
 in a foreign court, and state and federal courts are foreign 
 courts within the meaning of the rule. Let us look at 
 that rule of English common-law pleading. If state 
 decisions and lower federal court decisions can settle such 
 rule, then it is settled. See the long line of cases in 1 
 Cyc, 36, and 42 L. R. A., 449, note. But state courts and 
 lower federal courts clearly have no authority to settle 
 that rule of pleading and practice as between state and 
 federal courts. Three cases in the Supreme Court of the 
 United States, the final judicial authority on the point, 
 have been cited often during the last thirty years, i. e., 
 since 1879, in state and lower federal courts as settling 
 that rule of pleading and practice; but the Supreme 
 Court of the United States itself has not said that those 
 cases settle the rule. The cases are Stanton v. Embrey, 
 93 U. S., 548, in 1877; Mutual Life Ins. Co. v. Harris, 
 
COLLECTED COMMENT 147 
 
 96 U. S., 588, and 97 U. S., 331, in 1878; Gordon v. Gil- 
 foil, 99 U. S., 168, in 1879. See the long lists of citations 
 under these cases in Rose's Notes and in 1 Lawyers' Co- 
 operative Digest, U. S. Supreme Court Reports, pp. 10, 11. 
 The statements of this rule by Clifford, Strong, and 
 Bradley, J J., appear to be clearly obiter, and to be 
 stretched too much by lower federal and state courts. 
 In Benner v. Marshall, 1 Wheaton, 215, Gelston v. Hoyt, 
 3 Wheaton, 246, 314, and Wallace v. McConnel, 13 
 Peters, 136, 151, there are dicta against these later dicta; 
 and Shelby v. Bacon, 10 How., 56; Orton v. Smith, 18 
 How., 263, and Chittenden v. Brewster, 2 Wall., 191, 
 appear to be decisions against them. The rule in Piquig- 
 not v. Railroad Co., 16 How., 104, approved in Stephens 
 v. Bank, 111 U. S., 197, that an order of a federal circuit 
 court overruling a plea of a prior action pending in a 
 state court is not reviewable on writ of error in the Su- 
 preme Court under Sec. 22, Ch. 20, of the judiciary act 
 of 1789, now R. S., Sec. 1011, providing "there shall be 
 no reversal in the Supreme Court . . . upon a writ 
 of error for error in ruling any plea in abatement other 
 than a plea to the jurisdiction of the court," is, if not 
 obiter, then, as I think, unsound, for a plea of a prior suit 
 pending in a state court is "a plea to the jurisdiction of 
 the [federal circuit] court" within the meaning of the 
 statute, and cannot be anything else. 7 
 
 Modern English judges say the rule of pleading in 
 question is not good English common law. The lead- 
 ing English cases in support of the rule, Lord Dillon v. 
 Alvares, 4 Ves., 357, in 1798, wherein Lord Loughborough 
 held that a prior suit pending in chancery in Ireland 
 
 7 Hyde v. Stone, 20 How., 170; Suydam v. Broadnax, 14 Pet., 67, and Union 
 Bank v. Jolly's Administrators, 18 How., 503, fairly may be held to mean that a 
 plea of a prior suit pending in a state court is a plea to the jurisdiction of a federal 
 circuit court. And see Waterman v. Canal-Louisiana Bank, 215 U. S., 33. 
 
148 CONSTITUTIONAL LAW 
 
 could not abate a second suit in chancery in England, 
 and Cox v. Mitchell, 7 C. B., N. S. 55, in 1859, wherein 
 the Court of Common Pleas, Earle, C. J., Williams, 
 Crowder, artd Byles, JJ., held that a prior action at law 
 pending in a court in the United States could not abate 
 a second action at law in an English court, were over- 
 ruled by the English Court of Appeal, Jessel, M. R., 
 Cotton, L. J., and Bowen, L. J., in McHenry v. Lewis, 
 L. R., 22, Ch. D. 397, in 1882. Lord Dillon v. Alvares 
 was overruled entirely, and Cox v. Mitchell to the extent 
 of holding that the filing of an action in an English court 
 while a prior action for the same thing is pending in a 
 court in a foreign country like the United States may be 
 shown to be vexatious within the principle of the rule 
 of bis vexari, and may be stopped by stay order in the 
 English court. See also Peruvian Guano Co. v. Bock- 
 woldt, L. R., 23, Ch. D., 225; The Christiansborg, L. R., 
 10 P. D., 141; Mutrie v. Binney, L. R. 35, Ch. D., 614. 8 
 
 There is, therefore, no legal or practical "reason," 
 except "authority," for the federal injunction to stop 
 proceedings in state courts, or for the state injunction to 
 stop proceedings in federal courts ; and the whole practice 
 rests on a rule of English common law pleading that never 
 was suited to our condition, and that was thrown out of 
 England in 1882 as spurious English common law. 
 
 As between state and federal courts, has the court 
 seised of the prior suit power to stay the prior suit until 
 
 8 In Loring v. Marsh, 2 Cliff., 311, in 1864, Clifford, J., decided that a prior suit 
 pending in a state court cannot abate a second suit for the same thing in a federal 
 court. He got rid of numerous expressions to the contrary in the Supreme Court 
 by saying they were obiter. The case came up on a motion to continue the case 
 in the Federal Circuit Court in Massachusetts until a prior suit for the same 
 thing pending in the Massachusetts Supreme Court should be determined. 
 Clifford, J., carried the rule into the Supreme Court in 1877, in Stanton v. Em- 
 brey, 93 U. S., 548, 554, whence it began to spread over the United States just 
 when they were beginning to analyze critically and reject the rule in the English 
 courts, as the cases cited show. 
 
COLLECTED COMMENT 149 
 
 the second suit in the other court is determined? The 
 correct answer probably is that the court has the power. 
 While, ordinarily, the plaintiff has a right to select the 
 forum, and, ordinarily, a court cannot decline to hear a 
 case, yet a court is not bound to act against the law of 
 its being, i. e., to give people justice, and when the court 
 selected by the plaintiff is one in which the defendant can- 
 not fairly defend the action, the court is not bound to 
 proceed, and may compel resort to a more accessible and 
 competent court. Logan v. Bank of Scotland [1906], 
 1 K. B., 141; Egbert v. Short [1907], 2 Ch., 205; In re 
 Norton's Settlement [1908], 1 Ch., 471. As between 
 state and federal courts, especially in the same state, a 
 case for the application of this principle can arise but 
 rarely, but cannot be said to be legally impossible. In 
 McClelland v. Carland, 217 U. S., 268, a federal circuit 
 court in South Dakota stayed a suit until a second suit 
 for the same thing could be filed in a state court of South 
 Dakota, and, after the second suit was filed in the state 
 court, again stayed the prior federal suit until the deter- 
 mination of the second suit by the state court. On cer- 
 tiorari, the record not showing why the federal judge 
 entered these stay orders, the Supreme Court reversed an 
 order of the Circuit Court of Appeals for the eighth cir- 
 cuit, dismissing a petition for mandamus to compel the 
 federal judge to hear the case pending in his court, and 
 directed the Circuit Court of Appeals to require the 
 federal judge to show cause why the mandamus ought not 
 to issue as prayed. 
 
TOPIC II 
 THE FULL FAITH AND CREDIT CLAUSE 
 
 I . The Doctrine of Haddock v. Haddock. 
 
 II. Full. Faith and Credit v. Comity and Local Rules 
 of Jurisdiction and Decision. 
 
 III. Collected Comment. 
 
THE DOCTRINE OF HADDOCK v. HADDOCK 3 
 
 The judgment of the Supreme Court of the United 
 States in the case of Haddock v. Haddock, 1 involving 
 the jurisdiction of a State Court to grant an interstate 
 divorce, has been more or less critized by lawyers. 2 
 Laymen, however, appear to approve of the result 
 reached — that Mr. Haddock take nothing in New York 
 by reason of his Connecticut divorce decree. Whether 
 the judgment is, or is not, agreeable to the Constitu- 
 tion of the United States must depend upon an appli- 
 cation to the facts in the case of the Full Faith and 
 Credit Section of the Constitution of the United States, 3 
 with little reference to State decisions, of more or less per- 
 suasive force, but of slight weight as precedents. 4 The 
 
 a [1 111. Law Rev., 219, November, 1906.] 
 
 1 201 U. S., 562. 
 
 2 See 22 Law Quarterly Rev., 237; 40 American Law Rev., 580; 19 Harvard 
 Law Rev., 560; 6 Columbia Law Rev., 449; 4 Michigan Law Rev., 534. 
 
 3 The Section reads: "Full faith and credit shall be given in each State to the 
 public acts, records, and judicial proceedings of every other State. And the 
 Congress may, by general laws, prescribe the manner in which such acts, 
 records, and proceedings shall be proved, and the effect thereof." "And Congress, 
 in the exercise of the power so conferred, besides prescribing the manner in 
 which the records and judicial proceedings of any State may be authenticated, 
 has denned the effect thereof, by enacting that 'the said records and judicial pro- 
 ceedings, so authenticated, shall have such faith and credit given to them in 
 every court within the United States as they have by law or usage in the courts 
 of the State from which they are taken.' Rev. Stat., Sec. 905, re-enacting Act 
 of May 26, 1790, C. 11, 1 Stat., 122." — Atherton v. Atherton, 181 U. S., 155, 160. 
 See the exposition of the Constitution and statute in Story on the Constitution, 
 Chapter XXIX. The above statute is not referred to in any of the opinions in 
 Haddock v. Haddock. 
 
 4 See Haddock v. Haddock, 201 U. S., at p. 585, bottom; 617, bottom; 632, 
 last paragraph. 
 
154 CONSTITUTIONAL LAW 
 
 case certainly has cleared away an embarrassing mass of 
 State divorce law and usage, pressed us back to the lines 
 of the Constitution, and made it easy now for the Federal 
 Supreme Court to say just what the Full Faith and Credit 
 Section did do for the several States and the people thereof 
 on this vexed subject of interstate divorce. In Atherton 
 v. Atherton, 5 Mr. Justice Gray said that the Section was 
 intended "to promote (by the compulsory process of a 
 general law of the United States) certainty and uniform- 
 ity in the rule" among the States. If that is so, then no 
 rule, whether laid down by the Supreme Court or by an 
 Act of Congress, regulating the jurisdiction of a State to 
 grant an interstate divorce, can be sound, unless it can 
 and does, in actual operation and effect, produce sub- 
 stantial certainty and uniformity among the States. 6 
 
 The facts in Haddock v. Haddock were these : Each of 
 the Haddocks, before their marriage, resided in the State 
 of New York, with an intention in his or her mind to 
 stay there an unlimited time; that is to say, New York 
 was the State of the domicil of each of them while single. 
 They married there in 1868, and then, immediately after 
 their marriage, without ever having lived together as a 
 married pair, they separated. Mrs. Haddock remained 
 in New York. Mr. Haddock "drifted about the country 
 for several years, and finally settled in Connecticut in 
 1877." In 1881, he instituted divorce proceedings in a 
 Connecticut Court against Mrs. Haddock, giving her 
 notice of the pendency of the suit by inserting an adver- 
 
 6 181 U. S., 155, 166. 
 
 6 Lord Watson, delivering the judgment of the Privy Council in the divorce 
 case of Le Mesurier v. Le Mesurier [1895], A. C, 517, 538, turning on a question 
 of jurisdiction, on appeal .from the Supreme Court of Ceylon, an English Colony, 
 said: "There can, in their Lordships' opinion, be no satisfactory canon of inter- 
 national law, regu ating jurisdiction in divorce cases, which is not capable of 
 being enunciated with sufficient precision to ensure practical uniformity in its 
 application." 
 
DOCTRINE OF HADDOCK V. HADDOCK 155 
 
 tisement in a Litchfield, Connecticut, newspaper, and 
 by sending a copy of his petition for divorce to her at her 
 last known place of residence — Tarry town, New York 
 — through the United States mail. Whether Mrs. 
 Haddock ever saw the advertisement in the Litchfield 
 newspaper, or ever received the copy of the petition, does 
 not appear. But the steps taken to give her notice of 
 the pendency of the suit were strictly in accord with the 
 requirements of the Connecticut divorce statute. Mrs. 
 Haddock was not found inside the limits of Connecticut, 
 and did not appear in the Connecticut Court to defend 
 her husband's divorce suit. Acting under the authority 
 of the Connecticut divorce statute, the Connecticut Court 
 granted Mr. Haddock a decree of divorce from the bond 
 of matrimony. In June, 1899, Mrs. Haddock instituted 
 proceedings for divorce from bed and board and for ali- 
 mony against Mr. Haddock in a New York Court. She 
 found Mr. Haddock in New York, served a notice of the 
 pendency of the suit upon him there, and he appeared 
 in the New York Court, and defended. Among other 
 things, he set up in his defense the claim that his Connecti- 
 cut divorce decree in 1881 made him single again wherever 
 he might choose to go or to live, anywhere within the 
 United States, and that whenever he went in and out 
 among the people of New York on the soil of their State, 
 he had a right, arising out of, and protected by, the Con- 
 stitution of the United States, to have this Connecticut 
 divorce decree accepted by everyone, on sight and with- 
 out any talk about it, as a legally just and righteous dis- 
 charge of any matrimonial obligation to Mrs. Haddock 
 he may have been under prior to 1881, and that the 
 Judges of the State of New York were in duty bound to 
 guard and enforce that right for him, because the Consti- 
 tution of the United States so commands when it says: 
 "Full faith and credit shall be given in each State to the 
 
156 CONSTITUTIONAL LAW 
 
 public acts, records, and judicial proceedings of every 
 other State," and "This Constitution . . . shall be 
 the supreme law of the land; and the Judges in every 
 State shall be bound thereby, anything in the Consti- 
 tution or laws of any State to the contrary notwithstand- 
 ing." 7 But the New York Judges ruled against Mr. 
 Haddock, and granted Mrs. Haddock a divorce from 
 bed and board, and alimony in the sum of $780 a year. 8 
 He then took the case up to the Supreme Court of the 
 United States, under Section 709, R. S. U. S. 9 Five of 
 the nine Justices of that Court 10 decided that the ruling 
 of the New York Judges was correct. 
 
 The majority found New York to be the State of the 
 domicil of the Haddocks as a married couple, or, as it is 
 put in their opinion, the State of the "matrimonial 
 domicil" of the Haddocks at the time when Mr. Haddock 
 instituted his divorce proceedings in Connecticut. This 
 position of the majority seems not to have been contro- 
 verted — at least seriously. Mr. Justice Brown does 
 
 7 Constitution of the United States, Article IV, Section 1; Article VI, Clause 2. 
 
 8 The cause upon which each State decree rested was the same — desertion. 
 Under the New York divorce statute, "the abandonment of the plaintiff by 
 the defendant" was cause only for "separating the parties from bed and board, 
 forever, or for a limited time." Under the Connecticut divorce statute, "wilful 
 desertion for three years, with total neglect of duty," was cause for dissolving 
 the marriage. That is as I understand it. See Birdseye's Rev. Stats., Codes 
 and Gen. Laws of N. Y., Ed. 3, Vol. 1, p. 998; General Stats, of Conn., Revision 
 of 1902, pp. 1089-1090. 
 
 9 It may be noticed that, under Section 709, if the New York Judges had 
 ruled, as Illinois Judges doubtless would have (Knowlton v. Knowlton, 155 111., 
 158; Dunham v. Dunham, 162 111., 589; Field v. Field, 215 111., 486), in favor 
 of Mr. Haddock, that would have put an end to the case. Sed quaere, if Mrs. 
 Haddock had ''specially set up and claimed' that the New York Judges were 
 forbidden by the Full Faith and Credit Section and the due process clause of 
 the Fourteenth Amendment to accept the Connecticut decree as being conclu- 
 sive against her. 
 
 10 The Chief Justice and Justices White, Peckham, McKenna, and Day against 
 Justices Harlan, Brewer, Brown, and Holmes; Justice White spoke for the ma- 
 jority, and Justices Brown and Holmes for the minority. 
 
DOCTRINE OF HADDOCK V. HADDOCK 157 
 
 say: "No matrimonial domicil was ever established in 
 New York or elsewhere." 11 And the learned Justice 
 does appear to discuss the case on that footing of fact. 
 In other words, he appears to deal with the case as if it 
 would have made no difference at all, in point of law, if 
 Mrs. Haddock, instead of staying continuously in New 
 York, had gone into some other State, except Connecticut 
 
 — say Ohio — immediately after the marriage, and had 
 there acquired a separate domicil for herself, and was dom- 
 iciled there — in Ohio — at the time when Mr. Haddock 
 instituted his divorce proceedings in Connecticut in 1881. 
 
 All the other facts remaining the same, if Mr. Haddock 
 had never touched the soil of Connecticut, then, as be- 
 tween the States, that State could not have inquired into the 
 merits of his matrimonial difficulty with Mrs. Haddock. 
 All agreed to that on principle and on authority. But 
 he did go into Connecticut in 1877, and Mrs. Haddock 
 did stay in New York. It was admitted all around that 
 Mr. Haddock did have a separate domicil in Connecticut 
 
 — that is to say, that he resided in Connecticut with 
 an intention to stay there an unlimited time — and that 
 Mrs. Haddock did have a separate domicil in New York, 
 at the time in 1881 when Mr. Haddock applied to the 
 Connecticut Court for a divorce. No question was made 
 as to the contents of the notice of the pendency of the 
 Connecticut divorce suit published, nor as to the reason- 
 ableness of the time allowed by it for Mrs. Haddpck to 
 put in her appearance. The question was then, whether, 
 from the point of view of the constitutional duty of New 
 York to give full faith and credit to the public acts, 
 records, and judicial proceedings of every other State, the 
 mere domicil of Mr. Haddpck in Connecticut — Mrs. 
 Haddock being, and having been continuously, domiciled 
 
 11 201 U. S., at p. 606. 
 
158 CONSTITUTIONAL LAW 
 
 in New York, the State of the matrimonial domicil — 
 was enough to give Connecticut power or jurisdiction to 
 dissolve the marriage. The answer given was — No. 
 The proposition upon which Mr. Haddock's side of the 
 case was put seems to have been this : The mere domicil 
 within a State, at the time of the institution of divorce 
 proceedings therein, of one of the parties to a marriage, 
 is the true and final test of the power, or jurisdiction, of 
 that State to grant an interstate dissolution of that 
 marriage. And so the rule of the case would appear 
 to be: Under the law between the States, established by 
 the Constitution of the United States, 12 the mere domicil 
 within a State, at the time of the institution of divorce 
 proceedings therein, of only one of the parties to a mar- 
 riage, the other party being, and having been contin- 
 uously, domiciled in the State of the matrimonial domi- 
 cil, is not enough to give that State power, or jurisdic- 
 tion, to grant an interstate dissolution of that marriage. 
 Apart from existing State divorce statutes, State de- 
 cisions under them, and uncomfortable retroactive con- 
 sequences likely to result from their overthrow at this 
 date, all of which now, I think, must be laid to one side, 
 one key to the division in the Court may be found in that 
 well-understood — in the English Courts, at least — dis- 
 tinction between the jurisdiction of a Court derived from 
 rules of that law peculiar to the country in which the 
 Court sits, and its jurisdiction derived from rules of that 
 law common to all civilized countries, or international law. 13 
 
 12 "The ratification of the conventions of nine States shall be sufficient for 
 the establishment of this Constitution between the States so ratifying the same." 
 — Constitution of the United States, Article VII. 
 
 13 See Le Mesurier !/. Le Mesurier [1895], A. C, 517, cited by Mr. Justice White, 
 201 U. S., at p. 579; Bater o. Bater [1906], P., 209, and Mr. Dicey's note on this 
 case in 22 Law Quarterly Rev., 239; address of Mr. Justice Kennedy in the Report 
 of the Universal Congress of Lawyers and Jurists at St. Louis in 1904, p. 186, en- 
 titled: "To What Extent Should Judicial Action By Courts of a Foreign Nation 
 be Recognized?" 
 
DOCTRINE OF HADDOCK V. HADDOCK 159 
 
 The jurisdiction of the Connecticut Court, according 
 to the divorce statute and judicial decisions of Connec- 
 ticut, was not assailed. And as a basis for the argu- 
 ment and decision of the case only, the majority admitted 
 that the Connecticut Court, according to the local law 
 and usage of Connecticut as evidenced by the State 
 divorce statute and State decisions, did have jurisdiction 
 to grant the Haddock divorce decree in 188 1. 14 The 
 syllogism of the minority appears to have been this: 15 
 
 Major premise: If a judicial decree is conclusive in 
 the State where it was pronounced, it is equally conclu- 
 sive in every other State. 
 
 Minor premise: This Connecticut judicial divorce de- 
 cree is conclusive in the State of Connecticut. 
 
 Conclusion: This Connecticut judicial divorce decree 
 is conclusive in every other State. 
 
 The opinion of Mr. Justice White, admitting, as just 
 stated, the minor premise for the sake of the argument 
 and decision of the case only, is devoted, directly or in- 
 directly, to the above major premise. 
 
 There can be no doubt at all that, in all cases, including 
 divorce cases, when a Court of one State is asked to give 
 full faith and credit to a judgment of a Court of another 
 State, the proposition, "If the judgment is conclusive in 
 the State where it was pronounced it is equally conclusive 
 
 14 Mr. Justice White said: "In view of the authority which government possesses 
 over the marriage relation (see 201 U. S., p. 569, Fourth), no question can arise 
 on this record concerning the right of the State of Connecticut within its borders 
 to give effect to the decree of divorce rendered in favor of the husband by the 
 Courts of Connecticut, he being at the time when the decree was rendered domi- 
 ciled in that State." — 201 U. S., at p. 572, a., and see the first lines of the last 
 paragraph of the opinion. Mr. Justice Holmes, however, says: "It is decided 
 as well as admitted that a decree like that rendered in Connecticut in favor of a 
 deserting husband is binding in the State where it is rendered." 201 U. S., at 
 p. 633. And seethe first paragraph of the opinion of the learned Justice: "Gener- 
 ally stated, the issue is whether.'' 
 
 15 201 U. S., at p. 626, first paragraph, taken in connection with the whole of 
 Mr. Justice Brown's opinion; 632, last paragraph of Mr. Justice Holmes' opinion . 
 
160 CONSTITUTIONAL LAW 
 
 everywhere," 16 is subject to the qualification that the 
 jurisdiction of the Court that pronounced the judgment 
 may be questioned in a Court of another State where the 
 judgment is brought forward for enforcement. In per- 
 haps the first case 17 that arose under the Full Faith and 
 Credit Section, where the Court dealt more particularly 
 with the Act of Congress of 1790, passed under the 
 authority conferred by the Constitution, 18 the question 
 was "whether nil debet (rather than nul tiel record) is a 
 good plea to an action of debt brought in the Courts 
 (of the District of Columbia under the Act of March 27, 
 1804,) on a judgment rendered in a Court of record of 
 the State of New York, one of the United States." The 
 Court decided that nil debet was not a good plea, and 
 in pronouncing the judgment Mr. Justice Story laid down 
 the above proposition in substance. Mr. Justice John- 
 son was not satisfied, however, and dissented, saying: 
 
 "I am induced to vary in deciding on the question from an appre- 
 hension that receiving the plea of nul tiel record may at some future 
 
 time involve this Court in inextricable difficulties 
 
 There are certain eternal principles of justice which never ought 
 to be dispensed with, aind which Courts of justice never can dis- 
 pense with but when compelled by positive statute. One of these 
 is, that jurisdiction cannot be justly exercised by a State over 
 property not within the reach of its process, or over persons not 
 owing them allegiance or not subjected to their jurisdiction by 
 being found within their limits. But if the States are at liberty 
 to pass the most absurd laws on this subject (for their own juris- 
 diction), and we admit a course of pleading which puts it out of 
 our power to prevent the execution of judgments obtained under 
 those laws, certainly an effect will be given to this article of the 
 Constitution in direct hostility with the object of it. I will not 
 now undertake to decide, nor does this case require it, how far the 
 
 16 201 U. S., at p. 632. 
 
 17 Mills v. Duryee, 7 Cranch, 481. 
 
 18 Note 3, supra. 
 
DOCTRINE OF HADDOCK V. HADDOCK 161 
 
 Courts of the United States would be bound to carry into effect 
 such judgments; but I am unwilling to be precluded, by a technical 
 nicety, from exercising our judgment at all upon such cases." 
 
 In accord with these views of Mr. Justice Johnson, it 
 has long been settled that, however nice the pleadings 
 may be, the jurisdiction of the Court of the State where 
 the judgment was pronounced may be inquired into when 
 the judgment is brought forward for enforcement in a 
 Court of another State. And reasons assigned for this 
 have been: "Instead of promoting then the object of 
 the Constitution by removing all cause for State jeal- 
 ousies, nothing could tend more to enforce them than 
 enforcing such a judgment"; that is to say, a judgment 
 rendered by a State Court according to the law of the 
 State but in disregard of what Mr. Justice Johnson called 
 "the eternal principles of justice." 19 Neither the Full 
 Faith and Credit Section, nor the Act of Congress of 
 1790, was intended to overthrow the principles of inter- 
 national law as it existed among the States respecting the 
 interstate jurisdiction of a State Court to render a judg- 
 ment, and to declare "a new rule which would bind the 
 citizens of one State to the laws of another." 20 "The 
 Constitution did not mean to confer a new power or juris- 
 diction (upon any State), but to regulate the effect (in 
 every other State) of the acknowledged (according to 
 the principles of international law as it existed among 
 the States) jurisdiction (of the several States) over per- 
 sons and things within their territory." 21 Mr. Justice 
 
 19 Mr. Justice Johnson in Mills v. Duryee, 7 Cranch, 481, 486. Most State 
 judgments of that kind are prohibited now by the due process clause of the 
 Fourteenth Amendment. There may be exceptional cases, and divorce cases 
 may be among them. See Maynard v. Hill, 125 U. S., 190, and the proposition 
 for which it is cited in Haddock v. Haddock, 201 U. S., 569. 
 
 20 Mr. Justice Catron in D'Arcy v. Ketchum, 11 Howard, 165, 176. 
 
 21 Story on the Constitution, Section 1313, last sentence; McElmoyle v. Cohen, 
 13 Peters, 312; Thompson v. Whitman, 18 Wallace, 457. 
 
162 CONSTITUTIONAL LAW 
 
 White says that "it must always be borne in mind" 
 that the aforesaid qualification of the major premise of 
 the minority "is elementary." 22 
 
 Haddock v. Haddock, then, only called for an applica- 
 tion of that qualification to Mr. Haddock's Connecticut 
 judicial divorce decree brought into a New York Court 
 for enforcement against Mrs. Haddock, it being con- 
 ceded, or not denied, that, from the point of view of the 
 constitutional power of the State of Connecticut within 
 its territoiral limits, the Connecticut Court did have juris- 
 diction, and where it was asserted only that, from the 
 point of view of the constitutional duty of New York 
 to give full faith and credit to the judicial proceedings 
 of every other State, the Connecticut Court did not have 
 jurisdiction. In other words, the interstate jurisdiction 
 of the Connecticut Court was in issue in the New York 
 Court, just as the international jurisdiction of a French 
 Court may be in issue when a divorce decree of a French 
 Court is sought to be enforced in an English Court. 
 Obviously, to solve that issue, the Supreme Court of 
 the United States was forbidden to look solely to the 
 rules regulating jurisdiction in divorce cases laid down 
 by the Legislature and Courts of Connecticut. It had 
 to overleap the boundaries of Connecticut, and to look 
 into those rules of international law, recognized in this 
 country before the adoption of the Constitution, regu- 
 lating the jurisdiction of Courts of independent sovereign 
 
 22 201 U. S., at p. 573; 608, per Mr. Justice Brown. Until Haddock ». Had- 
 dock, the Supreme Court, following the lead of Story in his book on the Consti- 
 tution apparently, seems to have approached the Full Faith and Credit Section 
 entirely from the side of the State whose judgment was up in another State for 
 enforcement. The Constitution, however, speaks only of the duty of each 
 State. "The simple, classical precise, yet comprehensive language, in which it 
 (the Constitution) is couched, leaves, at most, but very little Iatitutde for con- 
 struction; and when its intent and meaning is discovered, nothing remains but 
 to exert the will of those who made it, in the best manner to effect the purposes 
 intended." — Mr. Justice Johnson in Gibbons ». Ogden, 9 Wheaton 1, 223. 
 
DOCTRINE OF HADDOCK v. HADDOCK 163 
 
 nations in divorce cases, and then to inquire how far those 
 rules were altered by the establishment of the Consti- 
 tution between the States of this Union. 
 Mr. Justice White says: 
 
 "When the Constitution was adopted, nowhere, either in the 
 mother country or on the continent of Europe, either in adjudged 
 cases or in the treatises of authoritative writers, had the theory 
 ever been upheld or been taught or even suggested that one govern- 
 ment, solely because of the domicil within its borders of one of 
 the parties to a marriage, had authority, without the actual or 
 constructive presence of the other, to exert its authority by a 
 dissolution of the marriage tie, which exertion of power it would 
 be the duty of other States to respect as to those subject to their 
 jurisdiction." 23 
 
 The learned Justice goes further, and says that no 
 such rule of international law is upheld even to-day 
 anywhere, except that an English Court, when called 
 upon to enforce a foreign decree of divorce, will often, if 
 not always, by means of the rule of English law — "If 
 a wife is living apart from her husband without sufficient 
 cause, his domicil is in law her domicil" 24 — lift a wife 
 up in one country, carry her through the air, let her down 
 in the country of the domicil of her husband, and then 
 say that the foreign Court did have jurisdiction, accord- 
 ing to the rule of international law, laid down by English 
 Courts, that the domicil of the married pair at the time 
 of the institution of divorce proceedings is the true test 
 of jurisdiction. Mr. Justice White then says: "Of course 
 the rigor of the English rule as to the domicil of the 
 husband being the domicil of the wife is not controlling 
 in this Court, in view of the decisions in this Court to 
 which we have previously referred, 26 recognizing the 
 
 23 201 U. S., at p. 576. 
 
 24 Cheeley v. Clayton, 110 U. S., 701, 709. 
 26 See 201 U. S., at p. 572. 
 
164 CONSTITUTIONAL LAW 
 
 right of the wife, for the fault of the husband, to 
 acquire a separate domicil." 26 These statements of Mr. 
 Justice White were allowed to pass unchallenged by the 
 minority, though evidently challenge was invited. 27 
 
 Did the Full Faith and Credit Section of the Consti- 
 tution change the rules of international law, as they stood 
 prior to 1789, in this country, regulating the jurisdiction 
 of a Court of one State to pronounce a judgment entitled 
 
 26 201 U. S., at p. 583. In a note on Haddock v. Haddock in 22 Law Quarterly 
 Rev., 237, 239, Mr. Dicey says: The "true origin" of "the confused condition of 
 the divorce law of the United States" "is to be found in the doctrine, all but 
 unknown to English law, that husband and wife may each have a separate domi- 
 cil." . . . "Englishmen may rejoice that our Courts have held almost 
 unswervingly that divorce jurisdiction depends wholly upon the domicil of the 
 husband at the time of the proceedings for divorce." English and American 
 notions about the rights and duties of a wife seem to differ widely. — See the 
 chapter on "The Position of Women" in Bryce's "The American Commonwealth." 
 See also the paragraph in the opinion of Mr. Justice Holmes containing the 
 words "these days of equality" (201 U. S., at p. 630), and the suggestion of 
 English Judges cited by Mr. Justice White, 201 U. S., at p. 582. And see the 
 following suggestion of Mr. Justice Kennedy: "A Court which is not the 
 Court of the country of the matrimonial domicil at the time when divorce pro- 
 ceedings are instituted, should not be recognized elsewhere as a Court competent 
 to pronounce a decree of divorce (judicial separation and alimony standing on a 
 different footing), except in favor of a wife who has been deserted by her husband, 
 or whose husband has so conducted himself that she is justified in living apart 
 from him, and who, up to the time when she was so deserted, or began to be 
 justified in living apart from him, was domiciled with her husband in that coun- 
 
 .try." — Report of the Universal Congress of Lawyers and Jurists at St. Louis 
 in 1904, at p. 201. 
 
 27 It may be noticed that, in one particular, Mr. Justice Holmes appears to go 
 further than Mr. Justice White, and to hold that, under and since Atherton v. 
 Atherton, 181 U. S., 155, "the rigor of the English rule as to the domicil of the 
 husband being the domicil of the wife is" not only "not controlling in this Court," 
 but there is no room left at all in the Supreme Court for the play and action of 
 that rule when the question is whether a State Court had jurisdiction to grant an 
 interstate divorce. If the learned Justice does hold that, his view on that point 
 may be right (see Mr. Beale's comments on Haddock v. Haddock, 19 Harvard 
 Law Rev., 586), and yet his conclusion on the whole case may not follow, for he 
 still may be at fault, even under Atherton v. Atherton, when he says: "But I can 
 find no basis for giving a greater jurisdiction to the Courts of the husband's (or 
 wife's, quaere) domicil when the married pair happens to have resided there 
 for a month, even if with intent to make it a permanent abode, than if they had 
 not lived there at all." (201 U. S., at p. 632.) 
 
DOCTRINE OF HADDOCK V. HADDOCK 165 
 
 to enforcement, under the law of nations as it existed 
 among the States, in and by a Court of another State? 
 It seems clear that it did not. As Mr. Justice Catron said 
 in D'Arcy v. Ketchum, 28 speaking of the Act of 1790 passed 
 under the authority of that Section: 29 "There was no evil 
 in this part of the (international) law (as it existed among 
 the States), and no remedy called for." The evil was that 
 each State too often, in disregard of the moral duty en- 
 joined by international law and by an express clause in the 
 Articles of Confederation, 30 refused, in the mere pride of its 
 newly acquired sovereignty, to enforce judgments of Courts 
 of another State even when rendered in compliance with 
 the rules of international law regulating jurisdiction. The 
 remedy provided in the Constitution was to give those rules 
 of international law a sanction by turning the recognized 
 moral duty of each State to enforce the judgments of every 
 other State entered in compliance with those rules into a 
 legal duty, enforceable, in case of any backsliding by any 
 State, by the United States. 31 While it is quite likely that 
 the particular case of State judicial decrees for divorce was 
 not in the minds of the framers of the Constitution, yet 
 that case, being within the words of the Full Faith and 
 Credit Section and also within its object, is within the 
 Section just as much as if the case of divorce had been 
 specially enumerated. 32 
 
 88 11 Howard, 165, 176. 
 
 29 Note 3, supra. 
 
 30 "Full faith and credit shall be given in each of these States to the records, 
 acts, and judicial proceedings of the Courts and magistrates of every other State." 
 
 — Article IV, last sentence. 
 
 31 "The situation brought about by the remarkable transaction of a century 
 ago, when our States combined to create the United States, may be truly con- 
 ceived of as a setting up of a single great power which, for certain general ends, 
 should be, to each of the other States, its other half." — Professor Thayer, "Our 
 New Possessions," 12 Harvard Law Rev., 464, 469. 
 
 32 Chief Justice Marshall in Dartmouth College v. Woodward, 4 Wheaton, 518, 
 644-645. 
 
166 CONSTITUTIONAL LAW 
 
 Thus, in substance, the majority were led in Haddock 
 v. Haddock to the conclusion that, under and agreeably 
 to the Constitution of the United States, the mere domicil 
 within a State, at the time of the institution of divorce 
 proceedings therein, of only one of the parties to a mar- 
 riage, the other party being, and having been continuously 
 domiciled in the State of the matrimonial domicil, is not 
 enough to give that State power, or jurisdiction, to 
 dissolve that marriage. 
 
 But, if it be true, as the majority decided, that the 
 Connecticut Court did not have jurisdiction in 1881 to 
 grant Mr. Haddock an interstate divorce, does it not 
 result necessarily and unavoidably that, under the Con- 
 stitution, the Connecticut Court did not have jurisdic- 
 tion to grant a State divorce, and that, therefore, the 
 Haddock decree of 1881 was utterly void — as if it had 
 not been, even on the soil of Connecticut? Can a State, 
 under and agreeably to the Federal Constitution, have 
 power or jurisdiction to grant a divorce, unless it is such 
 a divorce that, considered on the side of State jurisdic- 
 tion only, each State must respect and enforce it? As 
 above stated, the majority left this question open for 
 future debate. 
 
 One must discriminate between the power, or juris- 
 diction, of a State of this Union over the subject of divorce, 
 and the use that a State makes of its power, or jurisdic- 
 tion, or the way in which it exercises that power or 
 jurisdiction. As between countries that are foreign in 
 the fullest sense of the word foreign, the distinction is 
 thus stated by Lindley, M. R., in Pemberton v. Hughes: 33 
 
 "If a judgment is pronounced by a foreign Court (a French 
 Court, for example) over persons within its jurisdiction, and in a 
 matter with which it is competent to deal, English Courts never 
 
 33 [1889] 1 Ch., 781, 790. 
 
DOCTRINE OF HADDOCK V. HADDOCK 167 
 
 investigate the propriety of the proceedings in the foreign Court, 
 unless they offend against English views of substantial justice. 
 Where no substantial justice, according to English notions, is 
 offended, all that English Courts look to is the finality of the 
 judgment, and the jurisdiction of the Court, in this sense and to 
 this extent — namely, its competence to entertain the sort of case 
 which it did deal with, and its competence to require the defendant 
 to appear before it. If the Court had jurisdiction in this sense 
 and to this extent, the Courts of this country never inquire whether 
 the jurisdiction has been properly or improperly exercised, pro- 
 vided always that no substantial injustice, according to English 
 notions, has been committed." 
 
 Now it is entirely possible, perhaps, consistently with 
 the Constitution of the United States, for a State of this 
 Union to divorce a husband and wife, both domiciled 
 within its limits, and so completely subject to its power, 
 or jurisdiction, according to any rule that ever can be 
 laid down regulating the jurisdiction of a State in divorce 
 cases, and yet the cause for which the divorce was granted, 
 or the absence of cause for which the divorce was granted, 
 may offend substantial justice, according to the notions 
 of some other State, or States, upon the subject of di- 
 vorce. In that case, and on that ground alone, such 
 other State may be free, under the Constitution alone, 
 to refuse to give full faith and credit to that divorce. All 
 that need be said here is, that it should be observed that 
 that question is not the one that was left open by the 
 majority in Haddock v. Haddock. It may be added, how- 
 ever, that, under the Act of Congress of May 26, 1790, 
 as interpreted by the Supreme Court, 34 a State is not 
 free, probably, to refuse to give full faith and credit to 
 a decree of divorce granted by another State on the sole 
 ground that the decree offends substantial justice, accord - 
 
 34 Cases cited in 201 U. S., at pp. 626, 632. That interpretation appears to 
 be, according to Mr. Justice Brewer in the latest case cited, that the words "law 
 and usage" in the last line of the Act (Note 3, supra) means the local law and usage 
 of the State where the judgment was rendered. 
 
168 CONSTITUTIONAL LAW 
 
 ing to the notions of the State called upon to respect 
 and enforce it. The latter State, probably, under the 
 Act of Congress, can only inquire into the jurisdiction 35 
 of the Court of the other State, using the word jurisdic- 
 tion in the sense above explained by Lindley, M. R. 
 And it is in that sense, obviously, that the word jurisdic- 
 tion is used throughout in Haddock v. Haddock. 
 
 Now, is it possible for a husband and wife, engaged in a 
 matrimonial controversy, if they are citizens of the United 
 States, whom, primarily, the Federal Constitution has 
 in view, to be so domiciled in different States that no 
 State in the Union can have power, or jurisdiction, under 
 the Constitution of the United States, to so deal with 
 their controversy that each State must give full faith 
 and credit to the sentence pronounced, considered from 
 the standpoint of State power, or jurisdiction, only? 
 It would seem not. If, then, within the contemplation 
 of the Federal Constitution, there must always be some 
 State or other actually or potentially competent, juris- 
 dictionally, to solve any matrimonial controversy that 
 may arise between a citizen husband and wife, according 
 to his own notions of justice, how can any other State, 
 consistently with the Full Faith and Credit Section, have 
 a local jurisdiction over the same controversy? Is it 
 an anomalous sort of a de bene esse local divorce juris- 
 diction — exercisable provisionally, unless and until the 
 State having actual or potential interstate jurisdiction 
 acts? Surely, in Haddock v. Haddock, for example, 
 Connecticut cannot now, for want of jurisdiction in 
 New York, refuse to give full faith and credit to Mrs. 
 Haddock's New York decree in 1899, in so far as it 
 affirms that she is, and was since 1868, the lawful wife of 
 Mr. Haddock, and so, to that extent, collides squarely 
 
 36 The defense of fraud may be laid out of view in this connection. See 201 
 U. S., at p. 627. 
 
DOCTRINE OF HADDOCK V. HADDOCK 169 
 
 with Mr. Haddock's Connecticut decree in 1881 releas- 
 ing him from the bond of matrimony. According to 
 all the canons of the Supreme Court regulating interstate 
 jurisdiction in divorce cases between residents of different 
 States, the New York Court did have interstate juris- 
 diction. The New York decree of 1899 and the Connecti- 
 cut decree of 1881, then, must, in contemplation of the 
 Constitution, be meeting and colliding now on the soil 
 of Connecticut, not as equal opposing forces, but as 
 superior (the New York decree) and inferior (the Connec- 
 ticut decree) opposing forces. Any such de bene esse 
 local divorce jurisdiction would appear to be clearly for- 
 bidden by the above-mentioned dictum of Story, so 
 often repeated in the Superme Court: "The Constitution 
 (and the Act of Congress as well) did not mean to confer 
 a new power or jurisdiction" upon any State. The 
 Constitution cut away the power of each State, at its 
 own will and pleasure, to refuse to enforce the sentences 
 of another State, and so forbade any State to act in any 
 case within the jurisdiction of another State, according 
 to the principles of general law regulating jurisdiction 
 among independent nations applicable to that case, by 
 commanding each State wherein a party to such a case 
 appeared asking for justice, to send him or her to the 
 State competent, jurisdictionally, under the Constitution, 
 to deal with his or her case. 
 
 The same thing, in its application to Haddock v. 
 Haddock, may be put in a different way, dealing with the 
 case first on the view of the majority that New York was 
 the state of matrimonial domicil, and secondly on the 
 view of the minority, expressed by Mr. Justice Brown, 
 that no matrimonial domicil was established in any 
 State. 
 
 The Full Faith and Credit Section, read in connection 
 with its near and close associates — the Fugitive Slave 
 
170 CONSTITUTIONAL LAW 
 
 and Fugitive from Criminal Justice Clauses — shows 
 that it was intended to prevent people who had become 
 bound by, and amenable to, the civil justice of one State, 
 as evidenced by its local law and usage, from defeating 
 that justice by the simple process of stepping across the 
 boundary line of that State and squatting down in a 
 neighboring or distant State, with or without the intention 
 of staying there — in short, to prevent flight from the 
 civil justice of a State, and so to preserve the just reserved 
 authority of each State within its own limits. 36 And 
 the means employed to prevent such flight, or to make 
 such flight avail the fugitive naught, was to make each 
 State, on its own soil, a minister of the justice of every 
 other State, subject to the supervision of the United 
 States, and, I am inclined to think, to make the United 
 States the judge as to whether the justice of one State, 
 as evidenced by its local law and usage upon any partic- 
 ular subject at any particular time, is or is not fit and 
 worthy to be enforced in and by any other State. Now, 
 accepting New York to be the only State in which Mr. 
 and Mrs. Haddock ever had a matrimonial domicil, then 
 they both became bound to one another, and to the 
 people of New York, if not indeed to the people of every 
 other State, to abide by, and conform to, the matri- 
 monial law and usage of New York. Mrs. Haddock 
 remaining continuously in the State of New York, when 
 Mr. Haddock presented himself at the bar of the Connec- 
 ticut Court in 1881, did not he appear there, in the eye 
 of the Constitution of the United States, as a fugitive 
 from the matrimonial justice of New York, as evidenced 
 by New York law and usage? And what did he want? 
 The benefits of New York's matrimonial justice? Not 
 at all. All he wanted was to get the Connecticut Court 
 to release him from what he conceived to be the burdens 
 
 36 Constitution of the United States, Amendment X. 
 
DOCTRINE OF HADDOCK V. HADDOCK 171 
 
 of New York's matrimonial justice, and he wanted the 
 Connecticut Court to do it, not under the law and usage 
 of New York, but under the law and usage of Connecticut, 
 and, under the Connecticut divorce statute, the Connec- 
 ticut Court had to do it under that law or not at all. 
 How, then, could the Connecticut Court deal with Mr. 
 Haddock's case without exerting the power of the State 
 of Connecticut in direct violation of the duty of that 
 State, under the Constitution, to give full faith and 
 credit to New York's jurisdiction, and, under the Act of 
 Congress, to give full faith and credit to New York 
 notions of matrimonial justice, as evidenced by New York 
 local law and usage, however repugnant those notions 
 might be to Connecticut, notions? Mr. Justice Brown 
 says : " If the complaining party has acquired a domicil in 
 the State in which he institutes proceedings, he is en- 
 titled to the benefit of the laws of that State with respect 
 to the causes of divorce." With due respect, in a case 
 like Haddock v. Haddock, taking New York to be the 
 State of the matrimonial domicil, does not that need 
 the support either of an argument or of an adjudication 
 by the Supreme Court? Whatever may be said of the 
 right to get a wife or husband, the right to get rid of 
 one is not one of those fundamental and inalienable 
 rights which the Constitution of the United States 
 deems essential and indispensable to a successful pursuit 
 of happiness on this earth. The right to get rid of a 
 wife or husband is but a mere privilege, to be granted 
 or withheld at the pleasure of the State to which one owes 
 allegiance, or to whose jurisdiction one may be matri- 
 monially subject. Was Mr. Haddock's appeal for justice 
 in Connecticut — for a release from the bond of matri- 
 mony he could not get in New York — any different from 
 the appeal for freedom in a free State of the slave who 
 left a slave State, without the consent of his master, 
 
172 CONSTITUTIONAL LAW 
 
 except in so far as the Constitution itself made the case 
 of the fugitive slave an exception? Whatever the 
 free State of the actual domicil of a fugitive slave 
 might say or do, it could not, at its own will, bind 
 the master, or the people of the slave State, to its 
 laws concerning freedom, not even on the soil of that 
 free State, if the master wanted to come and take 
 his slave away from that soil. 37 In all cases, except 
 criminal and slave cases, the Constitution recognizes 
 that the justice of one State, if it is to be enforced 
 at all in another State, if it is to be allowed to tran- 
 scend its natural and legal limits — the boundary lines 
 of the State — may be well and efficiently enforced 
 against a fugitive in and by such other State without 
 a return of the person of the fugitive to the State from 
 which he fled. 
 
 Taking Mr. Justice Brown's view of the facts that "no 
 matrimonial domicil was ever established in New York," 
 then, of course, it cannot be said that Mr. Haddock 
 in Connecticut was, in the eye of the Constitution, a 
 fugitive from the matrimonial justice of New York, for 
 he was never bound by, or amenable to, that justice. 
 But if, on that view of the facts, he was, as Mr. Jus- 
 tice Brown said, bound by the burdens and entitled 
 to the benefits of Connecticut's matrimonial justice, 
 then it must be, as the majority said, that Mrs. Had- 
 dock was, at the same time, bound by the burdens and 
 entitled to the benefits of New York's matrimonial jus- 
 tice. Mr. Justice Brown, conceding that, then says that 
 it is simply a question as to which State deals out its 
 justice first, and the matrimonial justice of the State 
 first dealt out must prevail, under the Full Faith and 
 
 87 Prigg v. Pennsylvania, 16 Peters, 539; Strader v. Graham, 10 Howard, 82; 
 Dred Scott v. Sandford, 19 Howard, 393, opinion of Mr. Justice Nelson; Able- 
 man v. Booth, 21 How., 506, 526; and see Kentucky v. Dennison, 24 Howard, 66. 
 
DOCTRINE OF HADDOCK V. HADDOCK 173 
 
 Credit Section, in and throughout each and every State 
 of the Union. 38 
 
 But Mr. Justice Brown appears to admit that Connec- 
 ticut could not, as against Mrs. Haddock, at least, begin 
 to deal out its matrimonial justice to the Haddocks on 
 an application of Mr. Haddock alone for it, unless Connec- 
 ticut gave Mrs. Haddock notice and an opportunity to 
 be heard. The learned Justice said: 
 
 "Subject to these conditions, each State has the right to regulate 
 the marital status of its citizens, at least so far as to determine 
 . . . for what causes divorces shall be granted, for what length 
 of time the domicil of plaintiff shall have been acquired prior to 
 the institution of the proceedings, and in what manner notice 
 shall be given to the defendant. Nor is the power of the legisla- 
 ture in this connection ousted by the fact that the other party to 
 the contract resides in another State, provided that in case of 
 proceedings adverse to such party he or she shall be given such 
 notice as due process of law requires. 39 
 
 And the learned Justice cites Atherton v. Atherton, at 
 least in seeming support of the proposition that Connec- 
 ticut could not act as against Mrs. Haddock, at least so as 
 to bind her and another State, without some notice to 
 Mrs. Haddock. 40 And Atherton v. Atherton certainly 
 may tend somewhat to support that proposition. 41 
 
 Now, just what provision of the Federal Constitution 
 made it necessary for Connecticut to give Mrs. Haddock 
 what Mr. Justice Brown calls "such notice as due process 
 
 38 201 U. S., at pp. 616-617. 
 
 39 201 U. S., at p. 608. 
 « 201 U. S., at p. 608. 
 
 " Atherton o. Atherton, 181 U. S., 155, 171-173. Mr. Justice Gray, who 
 wrote the opinion in Atherton v. Atherton, dissented, without an opinion, in 
 Maynard v. Hill, 125 U. S., 190, 216. Though he does not cite the latter case 
 in Atherton v. Atherton, the reason is not, evidently, that the latter case had 
 been overlooked. See the passage from the opinion of Mr. Justice Field (who 
 wrote the opinion in Maynard ». Hill) in Pennoyer v. Neff, quoted in Atherton v. 
 Atherton, 181 U. S-, 155, 163. 
 
174 CONSTITUTIONAL LAW 
 
 of law requires"? Is it the due process clause of the 
 Fourteenth Amendment — "Nor shall any State deprive 
 any person of life, liberty, or property, without due 
 process of law" — adopted about three-quarters of a 
 century after the Constitution was adopted? That cut 
 down the pre-existing power of a State within its own 
 territorial limits, and in that way did affect the opera- 
 tion of the Full Faith and Credit Section. In other words, 
 it made an addition to, and did not take from, the juris- 
 dictional foundations that must, under the Full Faith 
 and Credit Section, lie at the basis of the public acts, 
 records, and judicial proceedings of a State in order to 
 give rise to the constitutional duty of each State to give 
 them full faith and credit. Besides, all of the Justices 
 appear to treat Maynard v. Hill 42 as deciding that the 
 due process clause of the Fourteenth Amendment does not 
 require a State to give notice to a non-resident defendant 
 in a divorce proceeding. The due process clause of 
 that Amendment may, then, be laid aside, because, on 
 any view, it cannot aid the minority in Haddock v. 
 Haddock. 
 
 The only other part of the Federal Constitution that 
 could require Connecticut to give notice to Mrs. Haddock 
 is the Full Faith and Credit Section. 43 Under that Sec- 
 tion, Mr. Justice Brown appears to admit that Connec- 
 ticut had to give Mrs. Haddock notice and an opportunity 
 to be heard. But Mr. Justice White says that Connec- 
 ticut as against New York, and as against Mrs. Haddock 
 while in New York, could not entertain Mr. Haddock's 
 application for a divorce at all, unless Mrs. Haddock 
 asked to be heard, or, as it is generally put, voluntarily 
 
 42 125 U. S., 190. 
 
 43 Of course, at this day, the requirement of notice cannot be attributed to 
 what Professor Thayer aptly calls "that convenient refuge for loose thinking 
 which is vaguely called the 'spirit' of the Constitution." — 12 Harvard Law 
 Rev., 468; see McGray v. United States, 195 U. S., 27. 
 
DOCTRINE OF HADDOCK V. HADDOCK 175 
 
 entered her appearance in the Connecticut Court. 44 If 
 Connecticut could not proceed with Mr. Haddock's 
 divorce suit without any notice at all to Mrs. Haddock, 
 why could Connecticut proceed upon and after notice, 
 as against New York and as against Mrs. Haddock while 
 in New York? What is the exact office of the notice 
 which Mr. Justice Brown deems essential? Is it any- 
 thing more than the use of a printing press and the 
 United States mail to enable Connecticut, silently and 
 without a breach of the peace of the United States, 45 to 
 force Mrs. Haddock, against her will, to flee into Con- 
 necticut from the matrimonial justice of New York — 
 in fine, to kidnap her? If Connecticut had sent a 
 deputy sheriff, with arms and a force of men, over 
 into New York to bring Mrs. Haddock into the Con- 
 necticut Court, anyone would say that the Full Faith 
 and Credit Section was against that, and that any 
 action Connecticut might take under that kind of 
 process of law would be void inside as well as out- 
 side of Connecticut. Certainly a Section of the Con- 
 stitution that makes each State, on its own soil, a 
 minister of the justice of every other State, cannot 
 rightfully be made suicidal by a construction which 
 makes it operate to put it in the power of each State 
 to kidnap people out of another State so as to sub- 
 ject them, on its soil, to its own ideas of justice. A 
 notice sent by mail and delivered in New York, if backed 
 up by a decision of the Supreme Court, would do just 
 
 44 It seems that the majority do not clearly say, and it seems never to have 
 been decided, that a notice served on Mrs. Haddock on the soil of Connecticut 
 ("personal service"), she not being domiciled in Connecticut, would do. It 
 seems that it ought not to amount to any more than service by publication 
 ("constructive service"). See Bater v. Bater [1906], P. 209; Armitage o. Attor- 
 ney General [1906], P. 135; Notes on these cases in 22 Law Quarterly Review, 
 239-241. 
 
 45 In re Neagle, 135 U. S., 1, 69. 
 
176 CONSTITUTIONAL LAW 
 
 what a Connecticut deputy sheriff, with arms and a 
 force of men, admittedly could not do — kidnap Mrs. 
 Haddock away from the matrimonial jurisdiction of 
 New York into and under the matrimonial jurisdiction 
 of Connecticut. 
 
 Mr. Justice Brown falls back upon the argument — 
 savoring somewhat, the majority seemed to think, of 
 legal mysticism — that a proceeding for divorce is analo- 
 gous to a proceeding in rem, such as, for example, 
 a proceeding touching the title to a vessel or a tract 
 of land situated within the territorial limits of a State, 
 and that, therefore, Connecticut had jurisdiction to 
 relieve Mr. Haddock of what he considered the excess 
 baggage of a New York wife, because of his physical 
 presence in Connecticut, though the impedimentum to 
 be affected was in New York. But does not the learned 
 Justice apply to the beginning of a State divorce proceed- 
 ing rules that are more properly applicable to the end of 
 it? He says: 
 
 "It is of the very essense of proceedings in rem, that the decree 
 of a Court with respect to the res, whether it be a vessel, a tract 
 of land, or the marriage relation, is entitled to be respected in every 
 other State or country. The status fixed by the adjudication in 
 the State of the former (forum, semble) is operative everywhere. 
 Indeed, the proposition is so elementary as not to need the cita- 
 tion of an authority." 46 
 
 The majority, conceding that, say that it does not even 
 touch the question in issue. What is the right way to 
 begin a State divorce proceeding? Before the Consti- 
 tution of the United States was adopted, you could not 
 begin it by laying the hand of the State upon only one of 
 the parties to the marriage. What words and lines of 
 the Constitution wrought the change? The majority 
 say, as above indicated, that the words and lines of the 
 
 « 201 U. S., at p. 616. 
 
DOCTRINE OF HADDOCK V. HADDOCK 177 
 
 Full Faith and Credit Section not only did not work a 
 change, but forbade a change. 47 
 
 Mr. Justice White, for the majority, appears to say 
 that whether New York was, or was not, the State of the 
 matrimonial domicil of the Haddocks, in either case, a 
 voluntary non-collusive appearance of Mrs. Haddock in 
 the Connecticut Court would have given jurisdiction to 
 that Court. On the view of Mr. Justice Brown that 
 New York was not the State of the matrimonial domicil, 
 
 47 If it is not possible to expound the Full Faith and Credit Section as ap- 
 plied to divorce without the aid of the Latin phrase in rem and the Latin word 
 status, then it would appear to be incumbent on the expounder to fix with pre- 
 cision the English meaning of those Latin words in the law of divorce. I do not 
 think that was done in Haddock v. Haddock. Mr. Justice Brown's approval of the 
 Missouri definition of the res in a divorce case (201 U. S., at 624) rather indicates 
 a confusion of thought respecting the source of a person's status and the status 
 itself. — See 2 Austin's Jurisprudence, Ed. 4, John Murray, London, Publisher, 
 p. 975, top. See also Piggott on Foreign Judgments, Ed. 2, p. 371; Chief Jus- 
 tice Marshall's understanding of the phrase in rem in Mankin v. Chandler, 2 
 Brock, 125, 127; S. C. 16 Fed. Cas., p. 625, 626; and see the explanation of the 
 phrases jus in rem, judgment in rem, action in rem and admirality action in 
 rem in Piggott's Foreign Judgments, Ed. 2, Ch. IX. "We may observe that the 
 words as to an action being in rem or in personam and the common statement 
 that the one is binding on third persons and the other not, are apt to be used by 
 English lawyers without attaching any very definite meaning to those phrases. 
 . . . We think that the inquiry is first whether the subject matter was 
 so situated as to be within the lawful control of the State under the authority of 
 which the Court sits, and secondly, whether the sovereign authority of that state 
 has conferred on the Court jurisdiction to decide as to the disposition of the thing 
 and the Court has acted within its jurisdiction. If these conditions are fulfilled 
 the adjudication is conclusive against all the world." — Mr. Justice Blackburn's 
 advisory opinion in Castrique v. Imrie, L. R. 4 H. L. 414; S. C. 5 Eng. Ruling 
 Cas., 899, 907. The position of the majority in Haddock v. Haddock appears to 
 be that it made no difference to them what the true meaning and use of the 
 phrase in rem in divorce law may be, because they were convinced that an attempt 
 was being made to insert the phrase underneath the Full Faith and Credit Sec- 
 tion as a lifting jack for the purpose of tearing down an important part of the 
 independence and harmony of the States resting for support upon that plank 
 of the Federal Constitution. In reading Mr. Justice White's opinion, however, 
 one must remember that, notwithstanding the great emphasis laid by him on the 
 independence of the States (see also his opinion in the divorce case of Andrews v. 
 Andrews, 188 U. S., 14), the framers of the Constitution recognized and never 
 forgot the self-evident truth, proven to them by recent experience, that harmony 
 between the States and the complete independence of each State cannot co-exist 
 
178 CONSTITUTIONAL LAW 
 
 that is so by decision 48 and, it would seem, on principle. 49 
 But is that so on the view of the majority that New York 
 was the State of the matrimonial domicil? On the 
 latter view of the facts, and under Atherton v. Atherton, 
 it would appear that New York was the only State com- 
 petent jurisdictionally, under the Constitution, to deal 
 with the matrimonial difficulty of the Haddocks, so long 
 as Mrs. Haddock remained domiciled in New York. 
 How, under the Constitution, could Mr. Haddock, by 
 going alone into Connecticut, shake off the matrimonial 
 justice of New York, to which he had become bound and 
 amenable? Of course, under the Constitution of the 
 United States, the matrimonial tribunals of New York, if 
 open for Mrs. Haddock, must be open on the same terms 
 for Mr. Haddock, though domiciled in Connecticut, be- 
 cause of the provision: "The citizens of each State shall 
 be entitled to the privileges and immunities of citizens 
 in the several States." 50 And in Atherton v. Atherton 
 was it not because a wife (it so happened to be the wife 
 in that case) cannot shake off, by going into another 
 
 48 Cheever v. Wilson, 9 Wallace, 108, and see 201 U. S., at p. 570. Did Mr. 
 Cheever remain domiciled in Washington, D. C, when his wife went off to Indi- 
 ana? Does the Full Faith and Credit Section apply to the enforcement of a 
 State judgment in and by the District of Columbia? Is Cheever v. Wilson right, 
 and is it decision at all? Until the October Term, 1900, when four divorce cases 
 were bundled in upon the Court on writs of error to State Courts (181 U. S., 155 — 
 187), the Supreme Court had only to consider collateral attacks on State divorce 
 decrees in cases coming up from U. S. Courts. 
 
 * See Bater v. Bater [1906], P. 209. 
 
 60 Constitution of the United States, Article VI, Section 2; Corfield v. Cor- 
 yell, 4 Wash. C. C, 371, 380; Blake v. McClung, 172 U. S., 239. I am not aware 
 that the application of the Privileges and Immunities Clause to divorce suits has 
 ever been up, but I think the proposition stated is sound. Watkins v. Watkins, 
 135 Mass., 83, goes nearly the full length of the proposition without any aid 
 from the Federal Constitution. Note the lines of reasoning by which State 
 Courts grant relief on cross bills by non-residents in divorce cases. See Wads- 
 worth v. Wadsworth, 81 Cal., 182, and 14 Cyc. of L. & P., 589, and cases cited in 
 notes 98, 99. The opinion of Sir Gorell Barnes in Bater v. Bater [1906], P. 209, 
 is suggestive. 
 
DOCTRINE OF HADDOCK V. HADDOCK 179 
 
 State, the matrimonial justice of the State of the matri- 
 monial domicil — the home State — so long as the hus- 
 band remains domiciled in the home State, that the 
 Court decided that the home State (Kentucky) had 
 jurisdiction to grant an interstate divorce at the suit of 
 the husband, although the wife was at a separate domicil 
 acquired by her in another State (New York)? In that 
 case, the matrimonial justice of the home State (Ken- 
 tucky) pursued the wife into the other State (New 
 York), and caught her there, in the only way it could 
 pursue her, and catch her, under the Constitution of the 
 United States, because the State into which she went 
 (New York) was not compellable, under the Constitution 
 of the United States, to administer, on its soil, the matri- 
 monial justice of the home State (Kentucky). And does 
 Mr. Justice White really mean anything more than that 
 when, in dealing with Atherton v. Atherton, he speaks 
 of "the duty of the wife to be at (in) the (State of the) 
 matrimonial domicil" (Kentucky), and of her "unjusti- 
 fiable absence therefrom"? 51 
 
 Mr. Justice White's expressed view of a complete dearth 
 of power in the United States over the subject of divorce, 
 
 61 201 U. S., at p. 571; see p. 572 b. Perhaps it ought to be noticed that Mr. 
 Justice Holmes deemed it necessary, in support of his views, to distinguish the 
 case of Wisconsin v. Pelican Insurance Company, 127 U. S., 265. See 201 U. S., 
 at p. 632. Just what part that case could play in the discussion of Haddock v. 
 Haddock is not apparent. The case was used, however, by Mr. Justice White 
 in Andrews v. Andrews, 188 U. S., 14, 35. As is well known, Huntington v. 
 Attrill, 146 U. S., 657, confines the sphere of the Wisconsin-Pelican case. It 
 seems, however, that the Supreme Court may be asked, with propriety, in a 
 proper case, to re-examine Wisconsin v. Pelican Ins. Co. The practical result 
 of that case appears to be that a corporation organized by one State may do 
 business in another State in violation of the latter's criminal law, and yet escape 
 the punishment made to fit the crime by flight into another State. The United 
 States has the power to stop the flight of a natural person accused or convicted 
 of crime in a State. Certainly we must not impute to the Supreme Court an 
 intention, when it invented the fiction that the stockholders of a corporation are 
 citizens of the State which created the corporation (Curtis' Jurisdiction of U. S. 
 Courts, Ed. 2, p. 145), to strip the United States of any of its power. In Wis- 
 
180 CONSTITUTIONAL LAW 
 
 whatever may be its true place in the reasoning of the 
 majority, can hardly be correct. He says: 
 
 "Besides, it must be conceded that the Constitution delegated 
 no authority to the Government of the United States on the sub- 
 ject of marriage and divorce." 52 
 
 But the very fact that the Supreme Court of the 
 United States was sitting in judgment on the State divorce 
 case of Haddock v. Haddock shows that that statement 
 cannot be strictly true. The only question that can arise, 
 therefore, is: How much power has the Government of 
 the United States got? So far as the interstate operation 
 of State marriages and divorces are concerned, the power 
 of the United States may well be extensive. The sub- 
 ject of divorce is so new in the legislative and judicial 
 history of the United States that it would be rash for 
 anyone to attempt to set limits to the power. It should 
 be observed carefully that the existence of this power in 
 the United States does not affect the powers reserved to 
 the States by the Tenth Amendment so far as their 
 operation strictly within a State is concerned. The power 
 can be used only, probably, to abridge the operation of a 
 State's powers on the soil of other States — an operation 
 authorized only because of the Full Faith and Credit 
 Section. 
 
 Nor is it easy to see, unless it was by way of concession 
 to the minority, just why the majority treated the case 
 
 consin v. Pelican Ins. Co., as I think, the Court entirely overlooked the constitu- 
 tional function of the United States to aid each State to enforce obedience to its 
 reasonable civil and criminal justice, and, consequently, altogether too much 
 restricted the simple, natural, full meaning of the words extending the judicial 
 power of the United States "to . . . controversies between a State and citizens 
 of another State.'' See the recent cases giving to the words "controversies 
 between two or more States" the full meaning given to them in any ordinary 
 dictionary. — Kansas v. Colorado, 185 U. S., 125; and cases cited; Missouri v. 
 Illinois, 200 U. S., 496; see also South Dakota v. North Carolina, 192 U. S., 286; 
 and see Insurance Co. v. Prewitt, 202 U. S., 246. 
 62 201 U. S., at p. 575. 
 
DOCTRINE OF HADDOCK V. HADDOCK 181 
 
 of Maynard v. Hill S3 as an authoritative enunciation of 
 the power of a State over the subject of divorce. In 
 that case, a special divorce act of the Legislature of the 
 Territory of Oregon in favor of a resident husband against 
 a wife resident in Ohio, passed without notice, and an 
 opportunity to be heard given to the wife, was held to be 
 binding upon children of the pair as against strangers 
 to the marriage in a case involving the title to land in 
 Oregon. The facts in that case aside, it may well be 
 that the power of the United States over the subjects 
 of marriage and divorce in the Territories is what we call 
 arbitrary and unlimited — that is to say, not subject to 
 any written constitutional limitation ; and the power may 
 well be equally arbitrary and unlimited when one of the 
 parties to a marriage is a citizen of, and resident in, a 
 State; and yet it may not follow at all that the power 
 of a State over the subjects of marriage and divorce within 
 its limits is the same as that of the United States in the 
 Territories. The Full Faith and Credit Section speaks 
 only of States, and attempts only to fix relations between 
 the States themselves, and between each State and the 
 United States upon all subjects comprehended by the 
 general language of the Section. But, doubtless, Con- 
 gress has the power to compel each State to give full 
 faith and credit to the public acts, records, and judicial 
 proceedings of every Territory of the United States, done 
 or had under the authority of Congress. 54 
 
 In view of the opposition of their colleagues, of very 
 unsatisfactory previous opinions of the Court, and in view 
 of the wilderness of State divorce statutes and State 
 decisions under them, based on the notion that the pres- 
 ence in a State of only one of the parties to a marriage, 
 
 63 125 U. S., 190; see 201 U. S., 569, 574, 612, 631, 633. 
 
 64 See the Act of 1804 in Mills v. Duryee, 7 Cranch, 451, re-enacted in Section 
 905, R. S. U. S. 
 
182 CONSTITUTIONAL LAW 
 
 with an intention lodged too carefully somewhere in his 
 or her mind to stay there, is enough to enable the State 
 to grant a divorce, 55 that (confronted them, I think the 
 majority did a grand thing in Haddock v. Haddock, per- 
 forming with fidelity and with courage that "task which 
 the American people have assigned to the judicial depart- 
 ment." 56 Instead of a retreat from the doctrine of 
 Haddock v. Haddock, one may, I think, with more reason, 
 expect an advance to the doctrine that whenever a State 
 lacks jurisdiction to pronounce a decision in a divorce 
 case to which each State must give full faith and credit, 
 then that State cannot touch that divorce case at all 
 without violating private rights, and rights, as well of soil 
 as of sovereignty, reserved to some other State, and 
 placed by the Full Faith and Credit Section "under the 
 shield and panoply of the United States" 57 for the preser- 
 vation of "the independence and harmony of the States 
 that they may better subserve the purposes of cherishing 
 and protecting the respective families of this great 
 Republic." 58 Haddock v. Haddock, I think, marks the 
 beginning of the end of "the scandalous condition of the 
 divorce law and procedure" 59 of many of the States of this 
 Union by the means of a constitutional call by the Su- 
 preme Court of the United States to the straggling States 
 to get back within the lines of the Constitution and stay 
 there. 
 
 65 Who devised that notion? 
 
 56 Chief Justice Marshall in Cohens v. Virginia, 6 Wheaton, 264, 377. 
 
 67 Mr. Justice Gray in Logan v. United States, 144 U. S., 263. 
 
 68 Mr. Justice Johnson in Gibbons v. Ogden, 9 Wheaton, 1, 223. 
 » 22 Law Quarterly Rev., 241. 
 
FULL FAITH V. COMITY, ETC. 183 
 
 II 
 
 FULL FAITH AND CREDIT v. COMITY AND 
 LOCAL RULES OF JURISDICTION 
 AND DECISION 4 
 
 In the Illinois case of People v. Shaw 1 the majority and 
 minority opinions and the comment on the case by Mr. 
 Chesbrough in the October number of this Review 2 
 proceed on the theory that the effect in another state of 
 a divorce decree granted on service by publication by a 
 court of the separate domicil state of one of the parties 
 to the marriage depends on the comity of the other state 
 wherein the decree is exhibited, and not on the full-faith- 
 and-credit clause and act of Congress, and hence may 
 have one effect in one state and another effect in another 
 state, and does not necessarily have one uniform effect 
 throughout the United States. 
 
 Is that theory, allowable under the full-faith-and- 
 credit clause and act of Congress, the supreme law of 
 the land on the subject? 
 
 It is settled by the United States Supreme Court that 
 a divorce decree granted on service by publication by a 
 court of the matrimonial-domicil state in favor of the 
 party to the marriage who never left the matrimonial- 
 domicil state, against the party who left the matrimonial- 
 domicil state and acquired a separate domicil in another 
 state, is within the full-faith-and-credit clause and act of 
 
 » [10 111. Law. Rev., 11, May, 1915.] 
 
 1 259 111., 544, Cooke, C. J., writing the opinion; Dunn and Farmer, JJ., 
 dissenting. 
 2 9 111. Law Rev., 195. 
 
184 CONSTITUTIONAL LAW 
 
 Congress, and hence has one uniform effect throughout 
 the United States, i. e., the effect it has in the state 
 where rendered under the local law or usage of that 
 state, so that, if conclusive on the merits there, it is 
 conclusive on the merits in every other state. 3 
 
 In the five to four case of Haddock v. Haddock, 4 the 
 United States Supreme Court decided that a divorce 
 decree granted on service by publication by a court of the 
 separate-domicil state of the party to the marriage who 
 left the matrimonial-domicil state, in favor of that party 
 and against the party who never left the matrimonial- 
 domicil state, is not within the full-faith-and-credit 
 clause and act of Congress, and hence a court of any 
 other state that declines to enforce the decree violates 
 no federal duty. 
 
 The majority opinion by White, J., in Haddock v. 
 Haddock proceeds on the footing that the ultimate ques- 
 tion before the court was one touching the effect in another 
 state of the divorce decree in question, and not one touch- 
 ing the jurisdictiou of the court of the state that granted 
 the decree. And the majority decided the case on the 
 assumptions that the court that granted the decree did 
 have jurisdiction to grant it, and that the decree was con- 
 clusive on the merits in the state where granted, and that 
 the courts of any other state were free to enforce the decree 
 or to refuse to enforce it according to their views of the 
 comity of the state on the subject of divorce. The majority 
 thought, and said, the correctness of these assumptions 
 was not up for decision, and in fact their correctness was 
 not decided, but was reserved for future decision. 
 
 The rather involved ratio decidendi of the majority 
 opinion in Haddock v. Haddock is the first expression 
 
 3 Atherton». Atherton, 181 U. S., 155; Thompson v. Thompson, 226 U. S., 551. 
 
 4 201 U. S., 562, White, J., writing the opinion; Harlan, Brown, Brewer, and 
 Holmes, JJ., dissenting. 
 
FULL FAITH V. COMITY, ETC. 185 
 
 in the United States Supreme Court of the comity-idea 
 that the full-faith-and-credit clause and act of Congress 
 do not embrace all state judgments and decrees, but 
 except some state judgments and decrees, leaving their 
 effect in other states to depend on the rule of state comity, 
 though that comity-idea has been expressed and acted 
 on for years by many state courts, silently and strangely 
 overlooking the full-faith-and-credit clause and act of 
 Congress while looking into the Dutch jurists on con- 
 flictus legum cited in Story's Conflict of Laws. 
 
 The Illinois case of People v. Shaw 5 differs from the 
 federal cases cited. In the Illinois case both parties to 
 the marriage left the matrimonial-domicil state (Illinois), 
 the husband going to one state (California) and acquiring 
 a separate domicil there, and the wife going to another 
 state (New York) and acquiring a separate domicil there. 
 A court of the separate-domicil state of the husband 
 granted him a divorce decree against the wife separately 
 domiciled in another state on service by publication. 
 In the federal cases cited only one of the parties to the 
 marriage left the matrimonial-domicil state and acquired 
 a separate domicil in another state, the other party 
 remaining all the time in the matrimonial-domicil state. 
 In two of them 6 the divorce was granted on service by 
 publication by a court of the matrimonial-domicil state 
 in favor of the party who remained there against the 
 party who left. And in the other 7 the divorce was granted 
 on service by publication by a court of the separate- 
 domicil state of the party who left the matrimonial- 
 domicil state in favor of that party against the party who 
 never left the matrimonial-domicil state. 
 
 On the question of the jurisdiction of a state through 
 
 5 Supra. 
 
 6 Atherton v. Atherton, supra, and Thompson v. Thompson, supra. 
 
 7 Haddock v. Haddock, supra. 
 
186 CONSTITUTIONAL LAW 
 
 its courts to grant a divorce — with which question the 
 full-faith-and-credit clause and act of Congress have 
 nothing to do — it is possible to say, and I think it is 
 fair to say, and at any rate the result and a substantial 
 part of the majority opinion in Haddock v. Haddock 
 compel outsiders to say, there is a jurisdictional differ- 
 ence between the case where only one of the parties 
 to the marriage leaves the matrimonial-domicil state and 
 acquires a separate domicil in another state, the other 
 party remaining all the time in the matrimonial-domicil 
 state, and the case where both parties to the marriage 
 leave the matrimonial-domicil state, and each acquires 
 a separate domicil in another state and in different states. 
 The first case is represented by Haddock v. Haddock. 
 The majority's result in that case, taken in connection 
 with Atherton v. Atherton and Thompson v. Thompson, 
 may be supported on the jurisdictional ground that the 
 matrimonial-domicil state is the only state competent 
 to dissolve the marriage so long as one of the parties 
 remains there continuously. 
 
 James, L. J., in Niboyet v. Niboyet, 8 laid down the 
 following rule of jurisdiction: 
 
 "Where and while the matrimonial home is English, and the 
 wrong is done here, then the English jurisdiction exists, and the 
 English law ought to be applied." 
 
 Strike out the word "English" and substitute "New 
 York," and change the word "home" so as to read "domi- 
 cil" and you have the result in Haddock v. Haddock ex- 
 pressed in terms of jurisdiction; and the rule is an allow- 
 able one. 9 
 
 MP.D.,1,9. 
 
 9 Lord Watson's criticism of Niboyet v. Niboyet in Le Mesurier v. Le Mesurier 
 [1895], A. C. 517, 530, goes to the application of the rule of James, L. J., not to 
 the rule itself. He thought the matrimonial domicil was English, but it was 
 French, and hence the English jurisdiction to dissolve the marriage did not exist. 
 
FULL FAITH V. COMITY, ETC. 187 
 
 With reference to the second case represented by the 
 Illinois case of People v. Shaw, where both parties to the 
 marriage leave the matrimonial-domicil state and each 
 acquires a separate domicil in another state and in differ- 
 ent states, the United States Supreme Court, the final 
 and controlling authority on the point, has not directly 
 decided that neither of the separate-domicil states has 
 jurisdiction to grant a divorce on service by publication. 
 When the jurisdictional point comes before it, the court 
 perhaps may decide that either one of the separate-domicil 
 states has jurisdiction to grant a divorce against the ab- 
 sent party on service by publication. Such a decision of 
 the point would not be wrong on principle, nor contrary 
 to Haddock v. Haddock, and is desirable for the practical 
 reason, impossible to ignore at this date, that the courts of 
 almost all the states have been ruling that way for years, 
 as fully appears in the opinions in Haddock v. Haddock, 
 though the state decisions ought not to be allowed to 
 control the judgment very much. If the whole doctrine 
 of jurisdiction to divorce on service by publication were 
 wiped out, it would not seriously impair or abridge the 
 right to pursue matrimonial happiness in the United 
 States, and would have a tendency to prevent perjury. 
 
 Assuming now that the court that granted the divorce 
 decree in the Illinois case of People v. Shaw had jurisdic- 
 tion to grant it, and that the decree was conclusive on the 
 merits in the state where granted under the local law or 
 usage of that state, the question is as to its effect in another 
 state. Could its effect in another state depend on the 
 comity of that state, or only on the full-faith-and-credit 
 clause and act of Congress? In other words, do the full- 
 faith-and-credit clause and act of Congress exclude comity 
 altogether as a rule for the decision of the question of the 
 effect in any state of a divorce decree granted by a court 
 of another state having jurisdiction to grant it? 
 
188 CONSTITUTIONAL LAW 
 
 Confining ourselves strictly to the decisions of the 
 United States Supreme Court, which are controlling, 
 there is no support for the obiter idea of the majority in 
 Haddock v. Haddock that comity is sometimes an allow- 
 able rule of decision on the question of the effect in 
 any state of a divorce decree granted by a court of another 
 state having jurisdiction to grant it. As Holmes, J., 
 said in Haddock v. Haddock, 10 the words of the full-faith- 
 and-credit clause and act of Congress, and their judicial 
 construction and application for nearly a century, are 
 against that obiter comity-idea. 
 
 The words of the full-faith-and-credit clause are: 
 
 "Full faith and credit shall be given in each State to the public 
 acts, records, and judicial proceedings of every other State. And 
 the Congress may by general laws prescribe the manner in which 
 such acts, records, and judicial proceedings shall be proved, and the 
 effect thereof." 11 
 
 And the words of the act of Congress are: 
 
 "The said records and judicial proceedings . . . shall have 
 such faith and credit ( i. e., effect) given to them in every other 
 State as they have by law or usage in the courts of the State from 
 which they are taken." 12 
 
 From Mills v. Duryee, 13 in 1813, and Hampton v. 
 McConnel, 14 in 1818, down to the majority opinion in 
 Haddock v. Haddock, in 1905, it was held and never 
 doubted that these texts embrace all state judgments 
 and decrees without exception, and prescribe one single, 
 uniform, and exclusive rule for the decision of the question 
 of the effect in any state of the judgments and decrees 
 rendered in another state, viz., the local law or usage 
 
 10 201 U. S., 562,632. 
 
 11 U. S. Const., Art. IV, Sec. 1. 
 
 u R. S. U. S., Sec. 905, formerly acts of May 26, 1790, and March 27, 1804. 
 13 7 Cranch, 481. 
 " 3 Wheat., 234. 
 
FULL FAITH V. COMITY, ETC. 189 
 
 of the state wherein the judgment or decree was rendered. 
 If the local law or usage of the state wherein the judg- 
 ment or decree was rendered make it conclusive on the 
 merits there, then automatically and mechanically it is 
 conclusive on the merits in every other state. This 
 federally prescribed rule of decision on the effect of the 
 judgments and decrees of each state in every other state 
 has no application to the international or interstate juris- 
 diction of either the court that rendered the judgment 
 or decree, 16 or the court asked to enforce it. 16 A state 
 court asked to enforce a judgment or decree of another 
 state may go below the face and form of the judgment or 
 decree down to the real foundation and essential nature 
 of the cause of action to determine either the international 
 or interstate jurisdiction to render it of the court that 
 rendered it, or its own international or interstate jurisdic- 
 tion to enforce it. If the rule of international or inter- 
 state jurisdiction were not so, the federal full-faith-and- 
 credit mandate would substitute the rule of lawlessness 
 for the rule of law between the states by enabling each 
 state to draw to itself prohibited power and jurisdiction, 
 and, through the medium of the judgments and decrees 
 of its courts, to give such prohibited power and jurisdic- 
 tion ubiquitous effect. 17 
 
 Aside from the obiter indirect a'ttempt in Haddock 
 v. Haddock, the only direct attempt ever made in the 
 United States Supreme Court to except some state judg- 
 ments and decrees out of the full-faith-and-credit clause 
 and act of Congress, and to subject them to the rule of 
 state comity, came three years after Haddock v. Haddock, 
 in Fauntleroy v. Lum, 18 in 1908, an action in a Mississippi 
 
 15 Thompson v. Whitman, 18 Wall., 457. 
 
 16 Wisconsin v. Pelican Ins. Co., 127 U. S., 265. 
 
 " Id., 290-292; Huntington v. Attrill, 146 U. S., 657. 
 18 210 U. S., 230. 
 
190 CONSTITUTIONAL LAW 
 
 court to enforce a Missouri judgment for money won 
 at gambling in Mississippi, while gambling was illegal 
 and criminal in Mississippi and the Mississippi statute 
 said a cause of action for money won at gambling in 
 Mississippi "shall not be enforced by any court" of Mis- 
 sissippi. The attempt to take this Kentucky judgment 
 out of the full-faith-and-credit clause and act of Congress 
 was defeated by a five to four vote, Holmes, J., writing 
 the majority opinion, and White, J., the dissenting opinion 
 concurred in by Harlan, McKenna, and Day, JJ. White, 
 J., lost two of his comity supporters in Haddock v. Had- 
 dock, viz., Fuller, C. J., and Peckham, J.; carried one 
 who was against him in Haddock v. Haddock, viz., 
 Harlan, J. ; and failed to get the support of the new mem- 
 ber, viz., Moody, J. 
 
 In Fauntleroy v. Lum, White, J., specifies the only 
 federal authority for the comity-idea, viz., Wisconsin v. 
 Pelican Insurance Co. 19 The case has nothing to do with 
 the effect of a judgment or decree in another state. The 
 only question in the case was one of jurisdiction, not, it 
 is true, the jurisdiction of the court that rendered the 
 judgment or decree, but the jurisdiction of the court 
 asked to enforce it. A Wisconsin court rendered a judg- 
 ment for money, by way of fine for the violation of a 
 criminal law of Wisconsin, in favor of the state of Wis- 
 consin and against the Pelican Insurance Company, a 
 Louisiana corporation. The state of Wisconsin exhibited 
 the judgment in the United States Supreme Court for 
 enforcement in exercise of its original jurisdiction under 
 the constitutional grant of judicial power over "contro- 
 versies between a state and citizens of another state," 20 
 and of original jurisdiction "in all cases ... in 
 
 19 127 U. S., 265. 
 
 20 U. S. Const., Art. Ill, Sec. 2, cl. 1. 
 
FULL FAITH V. COMITY, ETC. 191 
 
 which a state shall be a party." 21 The court decided 
 that its original jurisdiction to enforce the Wisconsin 
 judgment did not exist, because its original jurisdiction 
 is confined to civil controversies between a state and citi- 
 zens of another state, and the controversy between Wis- 
 consin and the Pelican Insurance Company was criminal 
 and not civil. The opinion supports and defends the 
 view that the framers of section 13 of the Judiciary Act 
 of 1789 correctly limited the word "controversies" in the 
 constitutional grant of jurisdiction to "civil controversies," 
 on the ground that the constitutional grant is declara- 
 tory of the English common-law rule of jurisdiction, 
 formulated by Marshall, C. J., as follows: "The courts 
 of no country execute the penal laws of another." The 
 opinion is by Gray, J., and in connection with Huntington 
 v. Attrill 22 is regarded at home and abroad as an especially 
 good exposition of this English common-law rule of 
 jurisdiction. 23 
 
 With reference to the full-faith-and-credit clause and 
 act of Congress, the Court said : 
 
 "The application of the rule [i. e., of jurisdiction, supra] to the 
 courts of the several states and of the United States is not affected 
 by the provisions of the constitution and act of Congress, by which 
 the judgments of the courts of any state are to have such faith and 
 credit given to them in every court within the United States as 
 
 21 U. S. Const., Art. Ill, Sec. 2, cl. 2. 
 
 22 146 U. S., 657. 
 
 23 See Dicey, Conflict of Laws, 2 ed., 207, 208. The net result of the Pelican 
 case, inserting the word "civil" before "controversies," is rather doubtful, if the 
 question were an original one. The fugitive-from- justice clause does not reach 
 the "wild-cat" criminal corporation. The case was decided at a time when the 
 prevailing opinion in the court was that Iredell, J., dissenting, was right in Chis- 
 holm v. Georgia, 2 Dall., 419, holding that the grant of judicial power over"con- 
 troversies between a state and citizens of another state" was only declaratory 
 of the English common law. See Hans ». Louisiana, 134 U. S., 1, 11, 12. The 
 latest expressed view is that Iredell, J., was wrong, and the majority were right. 
 South Dakota v. North Dakota, 192 U. S., 286, 318. The Pelican case was fol- 
 lowed in Oklahoma v. Gulf, C. S. & F. R. Co., 220 U. S., 290. 
 
192 CONSTITUTIONAL LAW 
 
 they have by law or usage in the state in which they were rendered. 
 Those provisions establish a rule of evidence rather than of juris- 
 diction. . . . They do not affect the jurisdiction of the 
 court in which the judgment is rendered or of the court in which 
 the judgment is offered in evidence." 24 
 
 It is not easy to recognize Wisconsin v. Pelican Ins. 
 Co. in the gloss on it by White, J., in Fauntleroy v. Lum. 25 
 He finds in the case and in other decided cases support for 
 a dichotomy of state judgments and decrees, viz., "those 
 entitled to enforcement in other states," and "those not 
 entitled to enforcement in other states." He puts into 
 the second division the judgments or decrees in cases like 
 Thompson v. Whitman 26 and Andrews v. Andrews, 27 
 wherein it was decided the court that rendered the 
 judgment or decree had no jurisdiction to render it and 
 also the judgments or decrees in cases like Wisconsin v. 
 Pelican Ins. Co., wherein it was decided the court asked 
 to enforce the judgment or decree had no jurisdiction 
 to enforce it. Into the first division he puts the judg- 
 ments or decrees in cases like Hampton v. McConnel, 28 
 wherein the judgment or decree was enforced. The line 
 of division is "the principles of comity." 
 
 The thought of White, J., evidently is that the English 
 common-law rules of jurisdiction applied by the court in 
 the cases referred to owe their origin to comity and still 
 derive their force and strength from that source. And in 
 Huntington v. Attrill, 29 Gray, J., whose scent for comity 
 between strictly foreign states was rather keen, as appears 
 from Hilton v. Guyot, 30 groups these rules as "general 
 
 24 Wisconsin v. Pelican Ins. Co., 127 U. S., 265, 291, 292. 
 
 25 210 U. S., 230, 242-244. 
 26 18 Wall., 452. 
 
 27 188 U. S., 14. 
 28 3 Wheat., 234. 
 28 146 U. S., 657, 669. 
 30 159 U. S., 113. 
 
FULL FAITH V. COMITY, ETC. 193 
 
 rules of international comity . . . well summed up 
 before the American Revolution by Chief Justice De 
 Grey." It is more likely that most of them owe their 
 origin to feudal ideas of land, crime, and other wrong as 
 profitable sources of revenue at a time when club law was 
 the rule of comity prevailing all over western Europe. 
 The true origin of these English common-law rules of 
 jurisdiction, however, is of no practical importance, 
 because since the adoption of the federal constitution 
 they derive all their force and strength as between the 
 states from that instrument. They are not rules of 
 "general jurisprudence" in the sense of Swift v. Tyson, 31 
 liable to be blown up at any time by the courts and legis- 
 latures of the several states, but are law of the United 
 States anchored to the constitution, "fairly and properly 
 inferable from that instrument," 32 strictly federal con- 
 stitutional law, part of the local law of every state, the 
 same in every state, defining and limiting the reserved 
 sovereignty of each state. They do not derive any of 
 their force and strength from the full-faith-and-credit 
 clause and act of Congress, and would exist in their 
 present full force and strength if those provisions were 
 repealed to-morrow, leaving the rest of the constitution 
 standing. 
 
 While there is no dichotomy of state judgments and 
 decrees, or of state jurisdiction, with comity as the divid- 
 ing line, there is a dichotomy of rules of state jurisdiction, 
 the line of division being the sovereign law-making power, 
 the state or the United States, from which they flow, 
 viz., international or interstate or federal rules of state 
 jurisdiction or sovereignty and local rules of state juris- 
 diction. As examples of international or interstate or 
 rules of state jurisdiction or sovereignty may be mentioned 
 
 31 16 Pet., 1. 
 
 32 In re Neagle, 135 U. S., 1. 
 
194 CONSTITUTIONAL LAW 
 
 the English common-law rules of jurisdiction, that no 
 state court can execute the penal laws of another state; 33 
 that no state court can enter a personal judgment without 
 personal service of process within the state; 34 that no 
 state court can entertain an action to determine the title 
 to land in another state, subject to the English-chancery 
 exception where a right to land in another state arises 
 out of fraud, trust, or contract; 35 that no state court except 
 a court of the state of domicil can dissolve a marriage. 36 
 As examples of local rules of state jurisdiction may be 
 mentioned the local laws, different in the different states, 
 concerning court organization and jurisdiction, personal 
 service of process and service by publication, etc. 37 The 
 English common-law rule of jurisdiction that an English 
 court cannot entertain an action to determine the right 
 of possession to foreign land has been classified as a local 
 rule of state jurisdiction. 38 
 
 It must be borne in mind that the local rules of state 
 jurisdiction of the state where a judgment or decree is 
 rendered stand in a court of another state asked to enforce 
 as matters of fact like all other parts of a foreign system 
 of law to be proved by technical evidence under the 
 common-law practice, 39 or found by the process of judicial 
 notice under the statutory practice in some states. And 
 
 33 Wisconsin v. Pelican Ins. Co., 127 U. S., 265; Huntington v. Attrill, 146 U. S., 
 657. 
 
 34 Pennoyer v. Neff, 95 U. S., 714. 
 
 35 Massie v. Watts, 6 Cranch, 148; Fall v. Eastin, 215 U. S., 1. 
 
 38 Atherton v. Atherton, 181 U. S., 155; Bell v. Bell, 181 U. S., 175; Streitwolf 
 v. Streitwolf, 181 U. S., 179; Andrews v. Andrews, 188 U. S., 14; Haddock v. 
 Haddock, 201 U. S., 562; Thompson v. Thompson, 226 U. S., 551. 
 
 37 See the Virginia local law on service by publication in Thompson a. Thomp- 
 son, 226 U. S., 551, 563-567. 
 
 38 Huntington v. Attrill, 146 U. S., 657, 669; Peyton v. Desmond, 129 Fed., 
 1, 4 (C. C. A., 8th C, Van Devanter, J.) Compare the English rule in Dicey, 
 Conflict of Laws, 2 ed., 201. 
 
 39 Hanley v. Donoghue, 116 U. S., 1. 
 
FULL FAITH V. COMITY, ETC. 195 
 
 this doctrine that foreign law is a question of fact for 
 the judge is not a fictitious legal theory, but correctly 
 and truly expresses the substance and essential nature 
 of the question. 40 On the other hand, interstate or 
 international or federal rules of state jurisdiction are not 
 matters of fact but matters of law, i. e., federal law 
 defining and limiting the sovereignty of each state. 
 
 The fallacy in Mr. Justice White's dichotomy of 
 state judgments and decrees with comity as the dividing 
 line, is that the second division, i. e., "judgments not 
 entitled to enforcement in other states," has no existence. 
 If a state court de facto renders a judgment or decree 
 when de jure it has no jurisdiction to render it, there is 
 on judgment at all. And if a state court has jurisdiction to 
 render a judgment or decree, but the courts of the other 
 states have no constitutional jurisdiction to enforce it, as 
 in Wisconsin v. Pelican Ins. Co., because the business of en- 
 forcing it falls outside of and is ultra vires the sovereignty 
 of the state itself, the judgment or decree is not denied 
 enforcement, i. e., full faith and credit, in other states. 
 
 The binding force of a decision of the United States 
 Supreme Court finding and applying a local rule of state 
 jurisdiction as a matter of fact in a case for the enforce- 
 ment of a state judgment or decree in another state on 
 the courts of the several states, may be laid out of view 
 here, 41 except to point out that a case where want of 
 
 40 Gray, The Nature and Sources of the Law, Sees. 282, 349. Professor Gray 
 does not carry the principle that foreign laws are facts beyong the laws of strictly 
 foreign countries, as France, Spain, Portugal, etc. Hanley v. Donoghue, 116 
 U. S., 1, extended the principle to the law or usage of the several states under the 
 full-faith-and-credit clause, Act of Congress. The decision is wrong, but if 
 regarded as laying down only a procedural rule alterable by Congress it is harm- 
 less, though inconvenient. 
 
 41 See Tilt v. Kelsey, 207 U. S., 43, 57, 58, where the only evidence on a point 
 in the local law of New Jersey was "an affidavit of an attorney and counsellor at 
 law." Hancock National Bank v. Farnum, 176 U. S., 640, finding and declar- 
 ing the local law or usage of Kansas on double stock liability in Kansas corpora- 
 tions is followed everywhere, as appears from Rose's Notes. 
 
196 CONSTITUTIONAL LAW 
 
 jurisdiction to render the judgment or decree or to en- 
 force it flows from a local rule of state jurisdiction differs 
 widely from a case where want of jurisdiction to render 
 the judgment or decree or to enforce it flows from an 
 international or interstate or federal rule of state juris- 
 diction. In the latter case, the rule in question affects 
 the reserved sovereignty of the state itself, qua -state, 
 and not merely the jurisdiction of its courts, which, of 
 course, cannot rise above the sovereignty or jurisdiction 
 of the state, qua state. 
 
 White, J., says that when want of state jurisdiction to 
 render a judgment or decree flows from an international 
 or interstate or federal rule of state jurisdiction, i. e., 
 want of reserved state sovereignty, the effect and result 
 of a decision of the United States Supreme Court so 
 declaring is, that the state court that rendered the judg- 
 ment or decree had "no jurisdiction to render a judgment 
 entitled to enforcement in other states," intimating in 
 Fauntleroy v. Lum and expressly assuming in Haddock 
 v. Haddock the judgment or decree may be enforced in 
 the state where rendered, and in other states on the 
 principles of comity. But plainly and necessarily the 
 point and heart of the decision is that the judgment or 
 decree was coram non judice, void, and a nullity ab 
 initio in the state where rendered; and inevitably as 
 night follows day the invalidity and nullity of the judg- 
 ment or decree in every other state flows as a consequence 
 of the decision holding it coram non judice, void, and a 
 nullity ab initio in the state where rendered. In fine, 
 the decision says there is no judgment or decree at all 
 in the state where rendered or anywhere. The state has 
 abortively attempted to exert through its courts sover- 
 eignty and jurisdiction it does not possess. Pennoyer v. 
 Neff 42 makes that plain and easy law, holding that a 
 
 « 95 U. S., 714, 733. 
 
FULL FAITH V. COMITY, ETC. 197 
 
 personal judgment or decree, rendered by a state court in 
 violation of the international or interstate or federal rule 
 of state jurisdiction that no state court can enter a per- 
 sonal judgment without personal service of process within 
 the state, is wanting in due process of law under the 
 fourteenth amendment. If observance of that rule of 
 jurisdiction by a state court is essential to due process 
 of law within the state under the fourteenth amendment, 
 then observance of each of the other international or 
 interstate or federal rules of state jurisdiction above 
 enumerated is equally so, for they are all blood relations in 
 one family group contributing to the same constitutional 
 end of keeping each of the several states in its separate 
 and several orbit without jarring any other state, operat- 
 ing on men and things on the surface of the ground in 
 each state as rules for the protection of private rights, 
 binding upon and enforceable by all state courts under 
 the supervision of the Supreme Court of the United 
 States. Hence the second division of Mr. Justice White's 
 dichotomy of state judgments and decrees, i. e., "those 
 not entitled to enforcement in other states," is emptied 
 of all its contents except judgments and decrees in cases 
 like Wisconsin v. Pelican Ins. Co., where the court asked 
 to enforce a judgment or decree of another state has no 
 jurisdiction to enforce it because of an international or 
 interstate or federal rule of state jurisdiction defining the 
 reserved sovereignty of the state, the state court that 
 rendered the judgment or decree admittedly having 
 jurisdiction to render it. 
 
 When a state court has jurisdiction to render a judg- 
 ment or decree, but a court of another state has no 
 jurisdiction to enforce it in that other state, because of 
 an international or interstate or federal rule of jurisdic- 
 tion, and the United States Supreme Court so decides, 
 as in Wisconsin v. Pelican Ins. Co., to say, as White, J., 
 
198 CONSTITUTIONAL LAW 
 
 says in Fauntleroy v. Lum, the court "expressly decided" 
 that the state court that rendered the judgment or decree 
 was without "jurisdiction to render a judgment entitled 
 to enforcement in other states," is a quaint and curious 
 way of expressing the result, harmless and negligible until 
 it is employed, as by White, J., as a plank for the founda- 
 tion of a superstructure, when its soundness must be 
 tested. The whole of the decision in Wisconsin v. Peli- 
 can Ins. Co., as applied to state courts, is that no state 
 court has any jurisdiction to enforce a judgment of a 
 court of another state imposing a fine for a violation of a 
 criminal law of that other state, conceding the state 
 court that rendered the judgment had jurisdiction to 
 render it. That decision does not deny full faith and 
 credit in other states to the judgment in question. The 
 essential nature of the rule of jurisdiction in the Pelican 
 case must be borne in mind, viz., a rule defining and 
 limiting the reserved sovereignty of each state. The 
 federal mandate to each state to give full faith and 
 credit to the judgments and decrees of every other state 
 is not a contradictory Hibernian mandate to do what 
 each state is constitutionally unable and forbidden to do. 
 Such faith and credit as each state is constitutionally 
 able to give to the judgments and decrees of every other 
 state is full faith and credit. The constitutional inability 
 of each state to enforce directly within its borders the 
 judgments or decrees of another state — as, e. g., a judg- 
 ment sentencing a person to death, to imprisonment, or 
 to pay a fine for a violation of a criminal law, or adjudi- 
 cating the title to land — is not the same thing as a state 
 denial of full faith and credit to that judgment or decree, 
 but is a totally different thing. There is a chasm between 
 the two. The judgment or decree, being valid and con- 
 clusive on the merits in the state where rendered, is 
 valid and conclusive on the merits in every other state, 
 
FULL FAITH V. COMITY, ETC. 199 
 
 notwithstanding the constitutional inability and dis- 
 ability of every other state to enforce it directly within 
 its own borders. A Wisconsin adjudicated criminal in 
 Wisconsin is a Wisconsin adjudicated criminal in every 
 other state into which he flees from the criminal justice 
 of Wisconsin, although no other state can hang him, im- 
 prison him, or make him pay the fine, if caught within its 
 borders, and can only deliver him up to Wisconsin on 
 extradition proceedings. And a Wisconsin adjudicated 
 owner of Wisconsin land is a Wisconsin adjudicated 
 owner of Wisconsin land in every other state, although 
 no other state can enforce the Wisconsin judgment by 
 issuing a writ of possession for the Wisconsin land. The 
 direct enforcement by each state within its borders of 
 the judgments and decrees of every other state is only 
 one way of giving them full faith and credit. When each 
 state is constitutionally unable and disabled to give them 
 full faith and credit in that way within its borders, then 
 each state may and must give them full faith and credit 
 in every other way within its constitutional capacity, 
 and that satisfies the federal mandate of full faith and 
 credit. It is not true, therefore, that state judgments 
 and decrees, like the one in Wisconsin v. Pelican Ins. Co., 
 constitutionally and jurisdictionally well rendered by the 
 courts of the state where rendered, but not constitution- 
 ally enforceable directly by the courts of any other state, 
 are "not entitled to enforcement (i. e., full faith and 
 credit) in other states." Hence there is nothing left in 
 the second division of Mr. Justice White's dichotomy of 
 state judgments and decrees, and the dichotomy vanishes; 
 and the divisional line vanishes with it, i.e., "the prin- 
 ciples of comity." 
 
 Wisconsin v. Pelican Ins. Co. does not support, but is 
 against, the comity-idea of White, J., and his associates 
 in Haddock v. Haddock and Fauntleroy v. Lum, and of 
 
200 CONSTITUTIONAL LAW 
 
 the state courts. The idea exists only in the minds of 
 those who utter it and those who subscribe to it. It is 
 not in the law and never was. Under the articles of con- 
 federation and before, the framers of the constitution 
 experienced the practical evils flowing from state comity 
 as the rule for the enforcement of state judgments and 
 decrees in other states, and they intended to, and did, 
 provide adequate means for cutting out comity by the 
 roots; and in 1790 and 1804 Congress completed the 
 work. If Congress sees fit to allow state comity to pre- 
 side over the enforcement of state divorce and some other 
 judgments and decrees, perhaps Congress has the power 
 to do it under the grant of legislative power in the full- 
 faith-and-credit clause. 43 
 
 That comity as applied by the courts of the several 
 states to divorce decrees granted by the courts of other 
 states entails the result of allowing people to practice 
 under the protection of the law the sailor's idea of happi- 
 ness, i. e., "a wife in every port," or "a husband in every 
 port," as the case may be in these times of equality, is 
 brought out by the facts of the above case of People v. 
 Shaw before the Illinois Supreme Court. They were as 
 follows: 
 
 In 1888 Edward Olson married Helen Schneider in 
 Chicago, where they lived as man and wife until the 
 spring of 1889, when they separated, the husband going 
 to California and acquiring a separate domicil there, 
 and the wife going to New York and acquiring a separate 
 domicil there. In 1892 the husband, Edward Olson, 
 obtained a California divorce decree on service by pub- 
 lication against his wife, Helen Olson, separately domi- 
 ciled in New York. In 1900, Helen Olson, at the 
 time domiciled in New York, married John L. Shaw in 
 
 « Hilton v. Guyot, 159 U. S., 113, 180-186. 
 
FULL FAITH V. COMITY, ETC. 201. 
 
 New York, where they lived a short time as man and 
 wife, when they moved to Chicago, living there as man 
 and wife for about ten years. In 1910, John L. Shaw, 
 without divorcing Helen Olson, married Leonore Smith 
 in Chicago. Shaw was indicted for bigamy, and was 
 convicted and sentenced by the trial judge and jury. 
 The Illinois Supreme Court reversed the conviction on the 
 ground that New York comity pronounced Edward 
 Olson's California divorce void and a nullity in New 
 York, and regarded Helen Olson in New York as the 
 New York wife of Edward Olson of California, and 
 therefore pronounced the New York marriage of Helen 
 Olson and John L. Shaw void and a nullity in New York; 
 and Illinois comity, out of courtesy and respect for New 
 York comity, pronounced the New York marriage of 
 Helen Olson and John L. Shaw void and a nullity in 
 Illinois, though Illinois comity, out of courtesy and re- 
 spect for California, pronounces Edward Olson's Cali- 
 fornia divorce good in Illinois; and consequently, Helen 
 Olson was not the de jure wife of Shaw when he married 
 Leonore Smith in Chicago, and therefore the Chicago 
 marriage of Shaw and Leonore Smith was not de jure 
 bigamous. Helen Olson was • the bigamist — a New 
 York bigamist by her marriage to Shaw in New York, but 
 not an Illinois bigamist when she moved to Illinois as 
 Shaw's wife, for on an Illinois indictment of Helen Olson 
 for bigamy Illinois comity doubtless would pronounce 
 Edward Olson's California divorce valid and conclusive 
 on the merits in Illinois. 
 
 It is a case of too much state comity. Illinois comity 
 on New York comity, one nimble and light thing on 
 another nimble and light thing producing nimble and 
 light domestic relations. It seems to me the trial judge, 
 Burke, J., did his federal duty, putting Shaw where the 
 constitution and laws of the United States say he belongs, 
 
202 CONSTITUTIONAL LAW 
 
 and his judgment ought to have been affirmed by the 
 Illinois Supreme Court, leaving Shaw free to exercise and 
 enjoy his right to go to the United States Supreme 
 Court to find out whether he got due process of law in the 
 courts of Illinois. 
 
 Untenable, mischievous, and destructive of the federal 
 full-faith-and-credit mandate as is the comity-idea in the 
 majority opinion by White, J., in Haddock v. Haddock, 
 and in the minority opinion of White, J., in Fauntleroy 
 v. Lum, even more untenable, mischievous, and destructive 
 is the distinction between a local rule of state jurisdic- 
 tion and of decision in the unanimous opinion by Holmes, 
 J., in Anglo-American Provision Co. v. Davis Provision 
 Co., 44 and in the majority opinion by Holmes, J., in 
 Fauntleroy v. Lum. The two errors flow from the same 
 source, viz., overlooking the difference between the 
 reserved sovereignty of a state and the jurisdiction of 
 its courts. In the Anglo-American case the court em- 
 ployed Wisconsin v. Pelican Ins. Co. to harmonize with 
 the federal full-faith-and-credit mandate, a New York 
 statute that permits a foreign corporation to sue another 
 foreign corporation in New York courts "only when the 
 cause of action arose within the state," as applied to one 
 Illinois corporation suing another Illinois corporation in 
 a New York court on an Illinois judgment for money. 
 The harmonizing principle is that the New York statute 
 prescribed a rule of jurisdiction, not of decision, within 
 the meaning of Wisconsin v. Pelican Ins. Co. The court 
 distinguished Christmas v. Russell, 46 where the court 
 held void for repugnancy to the federal full-faith-and- 
 credit mandate a Mississippi statute forbidding the courts 
 of Mississippi to entertain a suit on a judgment of another 
 state enforcing a Mississippi cause of action barred in 
 
 " 191 U. S., 373. 
 
 « 5 Wall., 290, in 1866, Clifford, J. 
 
FULL FAITH V. COMITY, ETC. 203 
 
 Mississippi by the Mississippi statute of limitations. 
 The ground of distinction is that the Mississippi statute 
 in Christmas v. Russell prescribed a rule of decision, while 
 the New York statute in the Anglo-American case pre- 
 scribed a rule of jurisdiction, within the meaning of 
 Wisconsin v. Pelican Ins. Co. The court's distinction 
 between a local rule of state jurisdiction and of decision 
 as applied in the Anglo-American case comes round to 
 this practical result, viz., each state may refuse to enforce 
 judgments and decrees rendered in other states if it ex- 
 presses its refusal in the form of a local self-prescribed 
 rule of jurisdiction, but not if it expresses its refusal in 
 the form of a local self-prescribed rule of decision. The 
 distinction obviously is without substance and purely 
 verbal. In drawing it and applying it in the Anglo- 
 American case the court overlooked the difference between 
 a federal rule of state jurisdiction deriving its force and 
 strength from the federal constitution, and a local rule 
 of state jurisdiction prescribed by the state itself, deriving 
 its force and strength from the state and operating only 
 with the state; i. e., in other words, the difference between 
 the reserved sovereignty of a state and jurisdiction of its 
 courts. 
 
 When it is said in the Pelican case, 46 and in Thompson 
 v. Whitman, 47 quoting and approving Story, Constitution, 
 Sec. 1313, and Story, Conflict of Laws, Sec. 609, that the 
 federal full-faith-and-credit mandate "did not mean to 
 confer (upon the sates) a new power or jurisdiction, 
 but simply to regulate the effect (in other states) of the 
 acknowledged jurisdiction over persons and things within 
 their territory," the meaning is, so far as judicial power 
 is concerned, that each of the several states inherited 
 the English common-law judicial power in its full integrity, 
 
 « 127 U. S., on p. 292. 
 
 « 18 Wall., on pp. 462, 463. 
 
204 CONSTITUTIONAL LAW 
 
 and the federal full-faith-and-credit mandate, while it 
 does not add to or take from the inheritance, yet does 
 regulate and limit each state's use or exercise of its 
 inherited judicial power by requiring each state to use or 
 exercise it in the way federally prescribed. And Christ- 
 mas v. Russell is a solid and sound decision, saying no 
 state can arbitrarily refuse to obey the federal mandate 
 by the method and process of a self-prescribed rule of 
 jurisdiction or decision. In short, while the federal 
 full-faith-and-credit mandate does not touch the power 
 and jurisdiction or sovereignty reserved to the states 
 respectively, by the tenth amendment, it does very sub- 
 stantially touch and strike the exercise of its reserved 
 power and jurisdiction or sovereignty by each state with- 
 in its own borders, regulating, controlling, and limiting 
 its exercise. 48 
 
 The suggestion in the Anglo-American case that no 
 state is federally judicially compellable to maintain its 
 inherited English common-law judicial power in its full 
 integrity, and consequently New York is not federally 
 judicially compellable to provide a court into which a 
 foreign corporation may go to enforce a judgment recov- 
 ered in another state against another foreign corpora- 
 tion, is a correct but barren suggestion. 49 When any 
 state ceases to have courts competent to enforce within 
 its borders the normal, ordinary, and usual judgments 
 and decrees of other states constitutionally capable of 
 enforcement abroad, then it will be for Congress to say 
 whether the state has realized Utopia or has ceased to 
 maintain a republican form of government. 50 Equally 
 
 48 The interpretation of Story's statement by White, J., in Fauntleroy v. Lum, 
 210 U. S., on pp. 241, 242, departs widely from all prior judicial interpretations 
 of it. 
 
 49 Cohens!). Virginia, 6 Wheat., 264, 311, 389, 390, 404, 405; Ogden v. Saunders, 
 12 Wheat., 213, 351. 
 
 60 Oregon Initiative and Referendum Cases, 223 U. S., 118. 
 
FULL FAITH V. COMITY, ETC. 205 
 
 barren is the suggestion in the Anglo-American case 
 that the New York statute may be at least a partial 
 exercise of the state's power to exclude corporations of 
 other states when not engaged in interstate commerce 
 or employed by the federal government. The plaintiff 
 Illinois corporation admittedly was rightfully in New 
 York and entitled there to the protection of the local and 
 federal laws. Indeed, how the New York statute's 
 discrimination between domestic and foreign corporations 
 can be reconciled with the equal-protection-of-the-laws 
 prohibition of the fourteenth amendment is a puzzle, 51 
 though that point was neither raised nor decided and 
 therefore must be left out of view. As there is no prin- 
 ciple in the opinion adequate to support the result in 
 the Anglo-American case, the result must fall, unless a 
 principle to support it can be supplied. The principle, 
 if there is any, must be sought, as it seems to me, in the 
 English-chancery judicial power to stop actions abroad 
 and to decline to entertain actions on causes of action 
 arising abroad. This English-chancery judicial power 
 passed to each of the states. 52 Going down to the reason 
 of utility and justice underlying this English-chancery 
 judicial power and given practical effect by it, modern 
 English judges in a series of fine opinions correctly, as it 
 seems to me, find the reason in the inherent righteousness 
 of preventing a plaintiff from making a vexatious and 
 oppressive use of his right to select the forum to pervert 
 the judicial power into an instrument of wrong. 63 If 
 the New York statute in the Anglo-American case be 
 construed as prescribing a prima facie definition of vexa- 
 tious and oppressive selection of the forum, the Anglo- 
 
 5 > Southern R. Co. v. Greene, 216 U. S., 400. 
 62 Cole v. Cunningham, 133 U. S., 107. 
 
 53 McHenry v. Lewis, 22 Ch. D., 367; Logan v. Bank of Scotland [1906], 1 K 
 B., 141; Dicey, Conflict of Laws, 2 ed., 322. 
 
206 CONSTITUTIONAL LAW 
 
 American case is sustainable, as the plaintiff Illinois 
 corporation made no showing why it selected the New 
 York forum. But the New York courts are right square 
 against that construction of the statute. They say it 
 lays down a rigid rule admitting of no exception arising 
 out of the circumstances of the case making the New 
 York forum the more appropriate one for justice to the 
 parties in a case within the literal prohibitions of the 
 statute. They say the statute absolutely prohibits 
 "a new legal industry" imposing "on our already over- 
 worked courts the obligation to try actions imported from 
 a foreign jurisdiction." 64 In short, the reason assigned 
 by New York for the refusal of the New York courts to 
 enforce the Illinois judgment in the Anglo-American 
 case was that they were too busy. While, as it seems to 
 me, the several states are left free to protect themselves 
 from abuses of the hospitality enjoined upon them by the 
 federal full-faith-and-credit mandate — and by the privi- 
 leges and immunities clause, 55 in no way involved in the 
 Anglo-American case because the plaintiff was a corpo- 
 ration and not a citizen of another state — yet, plainly, 
 "too busy" is not an allowable reason for denying that 
 hospitality. There can be little doubt all the gods on 
 Olympus were nodding in the Anglo-American case. 56 
 
 « Hoes v. N. Y., N. H. & H. R. Co., 173 N. Y., 435, 441. 
 
 66 U. S. Const., Art. IV, Sec. 2. 
 
 66 In Logan v. Bank of Scotland [1906], 1 K. B., 141, 148, the English Court of 
 Appeal noticed and rejected the New York idea, as exhibited in Callard v. Beach, 
 81 App. Div., 582, and 93 App. Div., 339, that an action is vexatious and oppres- 
 sive when it vexes and oppresses the court with overwork. They also, on pp. 
 148, 149, rejected the Scotch idea of forum conveniens and non conveniens, which 
 seems to be at the base of many American cases, though not eo nomine, and to 
 what extent is hard to say. See, e. g., the New Jersey cases of injunctions to 
 stop divorce suits in other states. Streitwolf v. Streitwolf, 58 N. J. Eq., 563, 
 570, aff'd 181 U. S., 179; Kempson v. Kempson, 58 N. J. Eq., 94; Von Bernuth 
 v. Von Bernuth, 76 N. J. Eq., 177, 200, 487. See the opinion of Pitney C, in 
 Bigelow v. Old Dominion Copper Co., 74 N. J. Eq., 457. Some state courts that 
 freely exercise judicial power to stop actions in the courts of other states seem 
 
FULL FAITH V. COMITY, ETC. 207 
 
 In Fall v. Eastin 67 also the court missed the jurisdic- 
 tional point on which the case turned, and disposed of it 
 on the point of the effect of the judgment or decree in 
 another state. The facts were that a Washington state 
 court, after granting a wife a divorce, went on in the 
 divorce suit under and pursuant to a Washington statute 
 saying: "In granting a divorce the court shall make such 
 disposition of the property of the parties as shall appear 
 just and equitable," and ordered the divorced husband 
 to convey to the divorced wife a parcel of Nebraska land 
 owned by him. The husband did not make the con- 
 veyance, but went to California to avoid the coercive 
 contempt process of the Washington court, and conveyed 
 the Nebraska land to his sister. The divorced wife 
 asked a Nebraska court to give effect to the Washington 
 decree in Nebraska by vesting in her the title to the 
 Nebraska land. The Nebraska Supreme Court denied 
 her request 68 and its decision was affirmed. The United 
 States Supreme Court said: "We must start with a 
 concession of jurisdiction in the Washington court over 
 . . . the subject-matter," i. e., the Nebraska land. 59 
 The Washington statute, from which the Washington 
 court derived its jurisdiction, seems to be construed by 
 the Washington Supreme Court as extending only to 
 
 to think they have no judicial power, under any circumstances, to decline to 
 entertain an action technically within their jurisdiction, fearing it would abridge 
 the constitutional right, conservative of all rights, to bring a lawsuit. This in - 
 volves a contradiction and is a mistake. Stopping an action abroad and declin- 
 ing to entertain an action are but outward, visible manifestations of the same 
 judicial power. See the comment on bis vexari and the injunction, stay-order, 
 and plea-in-abatement modes of enforcing it as between state and federal courts 
 in 5 Illinois Law Rev., 508. 
 
 67 215 U. S., 1, McKenna, J., Holmes, J., specially concurring; Harlan and 
 Brewer, J J., dissenting without opinion. The case was argued only on one side 
 and on the wrong side. 
 
 « Fall v. Fall, 75 Neb., 104. 
 
 69 215 U. S., on p. 5, bottom. 
 
208 CONSTITUTIONAL LAW 
 
 property in Washington, not to property in other 
 states. 60 Like statutes are rather common, 61 and I 
 am not aware it has been held anywhere that such a 
 statute extends to foreign land. Under the local juris- 
 dictional law of Washington, then, it seems the Washing- 
 ton court was without jurisdiction to order the convey- 
 ance of the Nebraska land. But that must be laid 
 aside, because it does not appear that the local law of 
 Washington was proved by evidence in the Nebraska 
 court asked to enforce the Washington decree or that 
 the Nebraska court by the local law of Nebraska could 
 take judicial notice of the local law of Washington. 
 There is left, then, the English common-law rule of juris- 
 diction that a court of one state has no jurisdiction to 
 determine the title to land in another state, which rule, 
 as above suggested, derives all its force and strength as 
 between the states from the federal constitution, defining 
 and limiting the reserved sovereignty of each state. 
 The court thought the case fell outside that rule of juris- 
 diction, and within the established but highly artificial, 
 anomalous and purely historical English-chancery excep- 
 tion to it, which exception Marshall, C. J., formulated 
 in Massie v. Watts 62 as follows: "In a case of fraud, or 
 trust, or of contract, the jurisdiction of a court of chan- 
 cery is sustainable, wherever the person be found, al- 
 though lands not within the jurisdiction of that court 
 may be affected by the decree." It seems very clear 
 the Washington court, when it ordered the conveyance 
 of the Nebraska land, did not have before it a case for 
 the enforcement of a right to foreign land arising out of 
 fraud, or trust, or contract, within the meaning of this 
 
 60 Prouty v. Prouty, 4 Wash., 174, 179. 
 " 14 Cyc, 789. 
 
 82 6 Cranch, 148, 160. See also Dicey, Conflict of Laws, 2 ed., 203; 6 111. L. 
 Rev., 597. 
 
FULL FAITH V. COMITY, ETC. 209 
 
 exceptional English-chancery rule of jurisdiction over 
 land in foreign parts, and therefore the case fell within the 
 general rule of jurisdiction denying power to the Wash- 
 ington court to order a conveyance of foreign land. 63 
 This exceptional English-chancery rule of jurisdiction in 
 foreign parts admits of little, if any, judicial expansion and 
 of no legislative expansion as between the states. Lord 
 Coke's supremacy-of-law pupils, including the whole 
 English and American bar since the Revolution of 1688, 
 and triumphant parliamentary democracy silenced 
 "equity speaking as the law of God speaks," 64 the same 
 everywhere, crystallized its existing useful results, and so 
 sterilized its power to create new rights even at home, to 
 say nothing about abroad, that it has created no new 
 right for years running into centuries, certainly not since 
 the American Revolution, unless we may so denominate 
 the right of third persons to enforce against third persons 
 covenants restricting the use of land, brought to a focus 
 by Lord Cottenham in 1848 in Tulk v. Moxhay, 65 brush- 
 ing aside Lord Brougham in Keppell v. Bailey 66 in 1834. 
 It is plain enough that a legislature of one state (Wash- 
 ington) cannot by its fiat create a right to land in another 
 state (Nebraska) even in favor of Penelope divorcing 
 Ulysses for cause. The vox dei of the vir bonus in the 
 English court of chancery did not pass to the legislatures 
 
 63 See Bullock v. Bullock, 51 N. J. Eq., 444; 52 N. J. Eq., 561, where the New 
 Jersey court divided, the majority refusing to enforce a decree of a New York 
 court, entered pursuant to a New York statute, ordering a divorced husband to 
 convey to the wife New Jersey land by way of mortgage to secure alimony. All 
 of the judges missed what seems to me the true point, viz., want of jurisdiction in 
 the New York court and in the state of New York itself. See the citation of the 
 case by Gray, J., in Lynde v. Lynde, 181 U. S., 183, 187, to the point that, under 
 existing law, execution cannot issue on a judgment of another state, which is the 
 point on which the New Jersey majority rested their decision. 
 
 M Lord Ellesmere in the Earl of Oxford's Case, 2 L. C. Eq., 642, in 1616. 
 
 65 2 Phillips, 774. 
 
 66 2 Myl. & K., 517. See Sir F. Pollock's comment in preface to 39 Eng. Rev. Rep . 
 
210 CONSTITUTIONAL LAW 
 
 of the several states of the Union. 67 The result in Fall v. 
 Eastin is clearly right on the ground of want of juris- 
 diction in the Washington court and in the state of 
 Washington itself. Whether the opinions of McKenna, 
 J., and Holmes, J., specially concurring, concerning the 
 effect of the Washington decree in Nebraska are good 
 and adequate to support the result is another question. 
 
 It is to be hoped the confusion and identification of the 
 point of jurisdiction with the point of effect, and of the 
 reserved sovereignty of a state with the local jurisdiction 
 of its courts, recently let into its administration of the 
 full-faith-and-credit mandate by the United States Su- 
 preme Court soon will be cast out in plain, understandable, 
 and unanimous opinions glued to the text of the consti- 
 tution and act of Congress, unfolding it and restoring 
 the authority, peace, and quiet of the law. 
 
 67 The suggestion of Holmes, J., in Fall. v. Eastin, 215 U. S., 1, 15, that it is 
 "within the power of the state to do away with equity," is constitutionally cor- 
 rect. Each state is free to wipe out the English-chancery judicial power and all 
 its product. Many of them did not allow the chancery judicial power to be 
 exercised or recognize its product until rather late. But neither one of the 
 states before the court, Washington and Nebraska, had done away with "equity," 
 and one of them, Washington, was trying to extend its "equity" into foreign 
 parts, i. e., Nebraska, to change the title to foreign land in a way and for a pur- 
 pose not allowed and forbidden by tbe local sovereign, as the Nebraska Supreme 
 Court says in Fall v. Fall, 75 Neb., 104. 
 
COLLECTED COMMENT 211 
 
 III 
 COLLECTED COMMENT 
 
 1. — A SUGGESTION FOR A NA- 4. — ACTIONS ON JUDGMENTS 
 
 TIONAL DIVORCE ACT. OF OTHER STATES — PRESUMP- 
 
 2. -INDIANA MARRIAGES IN TION AS TO LOCAL LAW OF OTHER 
 
 CONTRAVENTION OF THE ILLI- STATES. 
 
 NOIS ACT OF 1905. 5. — INTERSTATE ENFORCIBIL- 
 
 3. -ACTIONS ON JUDGMENTS ITY OF MONEY JUDGMENTS. 
 OF OTHER STATES — NUL TIEL 
 RECORD. 
 
 1. — A Suggestion for a National Divorce Act. 3 — 
 In Haddock v. Haddock, Mr. Justice White says: "The 
 requirement of the Constitution is not that some, but 
 that full, faith and credit shall be given by States to the 
 judicial decrees of other States. That is to say, where 
 a decree rendered in one State is embraced by the full 
 faith and credit clause, that constitutional provision 
 commands that the other States shall give to the decree 
 the force and effect to which it was entitled in the State 
 where rendered" (201 U. S., at p. 567). 
 
 All of the Justices seem to have agreed to that propo- 
 sition (201 U. S., at p. 626, per Mr. Justice Brown; at 
 p. 632, per Mr. Justice Holmes), the only difference be- 
 tween them being that the minority thought that the 
 proposition extended to the point of State jurisdiction 
 involved, and the majority thought that it did not. 
 Since the right of a citizen to transfer his domicil from 
 one State to another is among the rights, privileges, and 
 immunities of citizenship created by the Federal Con- 
 stitution, the necessary effect of the proposition is that 
 the Federal Constitution, ex proprio vigore, binds the 
 
 a [1 111. Law Rev., 256, November, 1906.] 
 
212 CONSTITUTIONAL LAW 
 
 citizens of all the other States to the divorce laws of a 
 single State (Mr. Justice Catron in D'Arcy v. Ketchum, 
 11 Howard, 165, 176, and see Mr. Dicey's fourth obser- 
 vation in 22 Law Quarterly Rev., 237) without any hope 
 of relief, however urgent and widespread the cry for 
 relief may be, except from an amendment of the Federal 
 Constitution in the mode and manner pointed out in 
 Article V. Whether this consequence of the proposition, 
 in all its force, was present to the mind of any member 
 of the Court in Haddock v. Haddock may be doubted, but 
 Mr. Justice White did lay that proposition down as one 
 of "certain legal propositions irrevocably concluded by 
 previous decisions of this Court" (201 U. S., at p. 566, 
 bottom) . 
 
 I venture to doubt whether Congress would be justi- 
 fied in accepting that proposition as a correct definition 
 of its legislative power. 
 
 The error of the proposition, regarded merely as a 
 statement of existing law, is this: Instead of saying, "that 
 constitutional provision commands," Mr. Justice White 
 should have said, "the Act of Congress of 1790 com- 
 mands." The difference between the two is apparent, 
 the commands of Congress being alterable, amendable, 
 and repealable at the will and pleasure of that body. 
 
 In support of that proposition, Mr. Justice White cited 
 Harding v. Harding, 198 U. S., 317, not, probably, as 
 deciding it, but to show that that proposition was an 
 accepted canon of American constitutional law. 
 
 All of the applicable cases rest upon the two cases of 
 Mills v. Duryee, 7 Cranch, 481, and Hampton v. McCon- 
 nel, 3 Wheaton, 234, decided in 1813 and 1818, the opin- 
 ion in the former case being by Mr. Justice Story, and a 
 very brief and carefully precise opinion being delivered 
 in the latter case by Chief Justice Marshall. But it 
 seems plain that the decisions in those cases only fixed, 
 
COLLECTED COMMENT 213 
 
 and were intended only to fix, the meaning and consti- 
 tutionality of the Act of Congress of 1790 (and 1804), in 
 so far as it purported to prescribe the effect in each State 
 (and Territory) of judicial proceedings had in another 
 State. Those decisions, and all subsequent decisions 
 resting on them, do hold that, laying aside any question 
 of State jurisdiction, Congress can, and did, in and by 
 the Act of 1790, bind the people of each State to obedience 
 to the results of judicial proceedings had in another State. 
 But I think all of the decided cases left severely alone, 
 and were intended to leave severely alone, at the instance 
 in the first place, I am strongly inclined to think, of no 
 less a person than Chief Justice Marshall himself, the 
 question whether, should Congress allow its power under 
 the second clause of the Full Faith and Credit Section to 
 lie dormant, one State then may, consistently with the 
 first clause of that Section, under any, and, if any, what, 
 circumstances, refuse to give effect, within its limits, to 
 the results of judicial proceedings had in another State. 
 (See M'Elmoyle v. Cohen, 13 Peters, 312, 325-326.) 
 
 Before the decision in Mills v. Duryee, Chief Justice 
 Kent and Chief Justice Marshall judicially expressed 
 their opinions, that the Act of 1790 did not say anything 
 about the effect of judgments for money of the Courts of 
 one State in another State, but left the question of the 
 effect of such judgments of the Courts of one State in 
 another State precisely where it found it, and that, under 
 the first clause of the Full Faith and Credit Section, a 
 Court of one State, in an action on a judgment for money 
 of a Court of another State, was not only free, but bound, 
 to allow a trial de novo of the whole original cause of 
 action, and to enter such an independent judgment de 
 novo for such an amount of money as the trial de novo 
 warranted. (See Hitchcock v. Aicken, 1 Caines Cases, 
 460, 478; Peck v. Williamson, 1 Carolina Law Repository, 
 
214 CONSTITUTIONAL LAW 
 
 53; see 7 N. C, cited in Hilton v. Guyot, 159 U. S., at 
 p. 182, with the quaere, "if accurately reported"; see also 
 Post v. Neafie, 3 Caines Cases, 22, 34.) When Chief 
 Justice Kent began to change his views, or his way of ex- 
 pressing them, in 1811 (Taylor v. Bryden, 8 Johnson, 
 173, 177-178), he did not go the length that Mr. Justice 
 Story probably wanted to go in 1813 in Mills v. Duryee. 
 (See Story on the Constitution, Sections 1309, 1310, 1312, 
 1313.) It has been said of Mr. Justice Story by the 
 writer of a very able unsigned article in 8 Am. Law Rev., 
 at pp. 212, 230: "But in respect of government, and 
 governmental authority, his views were, to say the least, 
 often eccentric." And he "was seldom afraid of his 
 logical conclusions, however much they might alarm 
 other people." (See Mr, Justice Johnson's dissent in 
 Mills v. Duryee, and Mr. Justice Bradley's comments on 
 Mills v. Duryee in Thompson v. Whitman, 18 Wallace, 
 457, 462.) 
 
 At the beginning, and afterwards (see Wisconsin v. 
 Pelican Ins. Co., 127 U. S., 265, 291-292), it seems to have 
 been taken for granted that that first clause of the Full 
 Faith and Credit Section lays down a rule of evidence 
 only. But does it do that only? Looking at its words 
 alone, and then in connection with the objects sought to 
 be attained by the whole Constitution taken in all its 
 parts as they are stated in the Preamble, I cannot see 
 any mere rule of evidence in that first clause. (As to what 
 a rule of evidence is, see generally Thayer's Preliminary 
 Treatise on Evidence, and the chapter on Presumptions; 
 see also 2 Wigmore on Evidence, Section 1347.) 
 
 But there can be no doubt at all that, when the Amer- 
 ican Colonies separated from England, the law as to the 
 enforcement of foreign judgments was treated as a part 
 of the body of the law of evidence, and was stated by the 
 Courts in the words and phrases of the general law of 
 
COLLECTED COMMENT 215 
 
 evidence. Nor can there be any doubt at all that the 
 Courts of many, if not all, of the Colonies before, and 
 States after, the Declaration of Independence interpreted 
 the rule of English law as to the enforcement of foreign 
 judgments for money commonly stated thus — a foreign 
 judgment for a sum of money is only prima facie evidence 
 of debt, and the defendant in an action on such a judgment 
 in an English Court may impeach the justice (note the 
 word, and that it seems to have come out of the legal 
 vocabulary of Lord Mansfield 1 to express the thought of 
 Lord Hardwicke) thereof, or show that it was irregularly 
 obtained (see Hilton v. Guyot, 159 U. S., at pp. 174, 172, 
 186, 187) — as meaning that the defendant could, as a 
 matter of course, have a trial de novo of the original 
 cause of action. Aside from the question whether this 
 American interpretation of, and practice under, the 
 English rule was, or was not, based upon a misapprehen- 
 sion of the true principles evidenced by the English pre- 
 cedents (see Mr. Justice Gray's view in Hilton v. Guyot, 
 159 U. S., 113, and Mr. Justice Blackburn's view in 
 Godard v. Gray, L. R. 6 Q. B., 139), it is plain that, when 
 an English Court, or a Court of an American Colony 
 or State, was asked to enforce, as a cause of action or as 
 a defense, any other kind of a foreign judgment, and 
 sometimes even a foreign judgment for money when 
 used as a defense, the party against whom such foreign 
 judgment was rendered could not, as a matter of course, 
 have a trial de novo of the original cause of action (Hilton 
 v. Guyot, supra). The most that he was entitled to — 
 
 1 "Lord Mansfield . . . does the service of tracing the law upon the 
 question to its source in the just and useful. And Lord Mansfield's authority 
 in this matter outweighs that of Lords Kenyon and Ellenborough . . . be- 
 cause these successors of Lord Mansfield appear to me to have turned away 
 from that source of the law to which he habitually resorted with endless bene- 
 fit to his country.'' — Mr. Justice Erie in Jefferys v. Boosey, 4 H. L. C, at p. 
 876, quoted in Thayer's Treatise on Evidence, p. 318, note 2. 
 
216 CONSTITUTIONAL LAW 
 
 and I think he was entitled to that, in spite of the words 
 "conclusive evidence" used in such cases — was an 
 inquiry into the justice of the foreign proceedings that 
 resulted in the foreign judgment, using the word justice 
 in its broad, international sense (Hilton v. Guyot, 159 
 U. S., at pp. 167-168, 172-173, 197). 
 
 It has been said truly very often that the framers of our 
 national organic law were not all mere lawyers. The 
 majority of them were experienced, practical, philo- 
 sophic, scholarly statesmen. The aim of the men who 
 drew up the Full Faith and Credit Section of the Articles 
 of Confederation appears to have been — at least they 
 used words most felicitous and apt to reach that result — 
 to abolish by one sweeping stroke of the pen all the dis- 
 tinctions, so far at least as they rested on no sub- 
 stantial, natural, and inherent differences in fact, acted 
 on in the Courts of the several States in the law concerning 
 the enforcement of judgments of the Courts of other 
 States, and to lay down one fundamental, general, uniform 
 rule regulating the enforcement of the judgments of 
 Courts of sister States, regardless of whether the judg- 
 ment was in personam, in rem, affecting status, or in 
 admirality, and regardless of whether the judgment was 
 brought forward as a cause of action or as a defense. 
 And the general, uniform rule adopted, by silence 
 rather than by words, for all cases was, I think, the 
 known established rule applied to the most favored kind 
 of foreign judgments, the rule there leaving, as I under- 
 stand it, as above indicated, some necessarily State 
 judicially-indefinable room for a local inquiry into the 
 justice of the proceedings that resulted in the judg- 
 ment. That seems to me to be a rational, fair, and reason- 
 able explanation of the word "full," for the phrase "faith 
 and credit," however much it may have troubled early 
 American judges, seems to have been an untechnical, 
 
COLLECTED COMMENT 217 
 
 familiar phrase involving an ellipsis when used in connec- 
 tion with foreign judgments. (See Lord Nottingham in 
 1688; Chief Justice Eyre in 1795; Lord Eldon in 1802; 
 Hilton v. Guyot, 159 U. S., at p. 168, 178; Phillips v. 
 Hunter, 2 H. BL, 402, 410, the sentence just after the 
 passage quoted in 159 U. S., at p. 178, and reading thus: 
 "In all other cases, we give entire faith and credit to the 
 sentences of foreign courts, and consider them conclusive 
 [?] upon us.") 
 
 The framers of the Constitution made the rule of the 
 Articles of Confederation (see Story on the Constitution, 
 Section 1303) clearly apply to all State "public acts" and 
 "records," thus shedding some light on the intended 
 meaning of the words "full faith and credit" as applied 
 to the other specifically enumerated general subject of 
 "judicial proceedings," for it must not be forgotten that 
 the modern notion evidenced by our long, detailed State 
 Constitutions of to-day, that a State Legislature is pre- 
 disposed to do no right, and State Judges can do no wrong, 
 cannot be found in the Constitution of the United States. 
 The Constitution also authorized Congress to prescribe 
 by general laws, and the Federal Supreme Court to define 
 in particular instances, the constitutionally enjoined 
 neighborly duty of each State to every other State upon 
 subjects handled differently in the different States but 
 consistently with the freedom allowed to each State by 
 the other parts of the Constitution. In fine, the Consti- 
 tution required the authorities of each State, legisla- 
 tive, executive, and judicial, to give full faith and credit 
 to the authorities of every other State for the inclination, 
 power, and wisdom to do justice, but not if that presump- 
 tion were declared by the Congress, or shown in litigated 
 cases to the satisfaction of the Supreme Court, of the 
 United States to be ill-founded in that transaction which 
 was the subject of it (Lord Eldon, quoted in 159 U.S., 
 
218 CONSTITUTIONAL LAW 
 
 at p. 178, and note the wording of the clause in Article 
 IV of the Articles of Confederation). 
 
 The error in the opinion of Chief Justice Marshall above 
 referred to appears to me to lie in this: He did not notice 
 that the rule laid down by the Constitution itself wiped 
 out the distinctions existing in the practice of the Courts 
 of the several States respecting the right of a person to 
 ask the Courts of one State to inquire into the justice 
 of the proceedings of a Court of another State that had 
 decided a cause of action against him. The Chief Justice 
 Marshall's views, that (1) the word "effect" in the clause 
 granting power does not mean the same thing as the 
 words "full faith and credit" in the clause laying down 
 the general rule, and (2) the Act of Congress of 1790 
 does not prescribe any effect that is not prescribed by 
 the Constitution itself, are wrong, is not clear to me. 
 But, as above stated, the Supreme Court did decide 
 against the second view, "upon solemn argument," as 
 Mr. Justice Story tells us, supra. But that decision 
 cannot, so far as I can see, fairly be regarded as an irre- 
 vocable adjudication that a State has no reserved power 
 at all under the Full Faith and Credit Section as applied 
 to the judicial proceedings of another State, and that all 
 that Congress can say, or do, under that Section as ap- 
 plied to such proceedings, is to provide for, and use, mere 
 ministerial physical force to compel the people of each 
 State to bow in respectful submission to the results of 
 the judicial proceedings of every other State. Some such 
 consideration as this well may have caused Chief Justice 
 Marshall to waive the opinion judicially expressed by 
 him in 1812 as to the true meaning of the Act of 1790, 
 for the decision of the majority of the Supreme Court 
 against that opinion left Congress perfectly free to change 
 the Act of 1790 if it worked badly in practice. On Chief 
 Justice Marshall's view, the power of Congress to bind 
 
COLLECTED COMMENT 219 
 
 the people of each State to obedience to the public acts, 
 records, and judicial proceedings of every other State 
 necessarily includes a power in Congress to emancipate 
 the people of each State from such obedience by confining 
 the effect of the public acts, records, and judicial pro- 
 ceedings of each State upon any subject to the people 
 responsible for them, that is to say, within the territorial 
 limits of the State, just as wild beasts are confined by 
 iron bars in separate compartments of a single cage. 
 
 Chief Justice Marshall said, rather warmly, in 1819 in 
 M'Culloch v. Maryland, 4 Wheaton, 316, 403: "No 
 political dreamer was ever wild enough to think of break- 
 ing down the lines which separate the States, and com- 
 pounding the American people into one common mass." 
 It cannot be, then, that any part of the Constitution 
 could have been intended to operate to bind the people of 
 all the other States to bow to the acts, legislative, 
 executive, or judicial, however absurd they might be, 
 of a single State upon any subject likely to become, by 
 reason of the newly created right of free transit through 
 the States, of more than local interest. Since Congress 
 may regulate interstate commerce by prohibiting inter- 
 state commerce in articles of food produced in a State if 
 they fall below a national standard of purity fixed by 
 Congress, why may not Congress prescribe the effect of 
 the divorce laws of a State in every other State by saying 
 that they shall have no effect at all unless they conform 
 to a national standard of morality fixed by Congress? 
 Though State decisions here are not entitled to much 
 respect, it may be remarked that the thought underlying 
 many State decisions, based on the principle of comity, 
 overlooking the Act of Congress of 1790, respecting the 
 extra territorial effect of divorces granted by another 
 State, that there would be great confusion in Christendom, 
 if Illinois, for example, could, and did, refuse to give 
 
220 CONSTITUTIONAL LAW 
 
 effect to divorces granted by Indiana, does not always give 
 due weight to the proposition that the principle which 
 allows a man to transfer his allegiance from one State 
 to another does not give him a right to bring into his 
 adopted State, or leave behind, the law of the old State 
 that fixed his status there. And in Harvey v. Farnie, 
 L. R. 8 App. Cases, H. L. Sc, 43, 60, such a judge as 
 Lord Blackburn said: 'Assuming that in Lolley's case 
 the divorce would be good in Scotland, it would not be to 
 my mind a very uncomfortable result that it should be 
 good in Scotland and bad in England." The Constitu- 
 tion of the United States regards one State as just as 
 good as another for men, women, and children to live in, 
 and big enough. "There are no considerations of national 
 policy that could induce us to suppose" the framers of 
 the Constitution "went the whole length of closing the 
 investigation (in one State) of the judgment (of another 
 State). It would be going further than ever was done 
 in any civilized country, even with respect to its own 
 dominions. Between England and Scotland, England 
 and Wales, or England and its Colonial establishments, 
 the union is as interesting as between the several States; 
 and yet the judgments of Scotland, or Wales, or Jamaica, 
 for instance, are held to be foreign judgments. So the 
 Court of Sessions, in Scotland, consider judgments ren- 
 dered in England as foreign judgments; that they have 
 no intrinsic authority extra territorium; and that, in 
 actions upon them, they are presumed to be just till the 
 contrary be proved; and if they are shown to be unjust, 
 or irregular, the suit upon them will not be sustained" 
 (Kent, C. J., in 1803, citing Kames' Equity, in Hitchcock 
 v. Aicken, 1 Caines Cases, 460, 481, a case that seems to 
 have been cited to Chief Justice Marshall in the argument 
 of Peck v. Williamson, supra). The prohibition of the 
 Federal Constitution that "No state shall, without the 
 
COLLECTED COMMENT 221 
 
 consent of Congress, . . . enter into any agreement 
 or compact with another State" (Article I, Section 
 10, Clause 2), certainly is not against anything above 
 suggested, because it seems plain that it is easily possible 
 for the Courts of two or more States to so use the prin- 
 ciple of comity even from the most virtuous motives, 
 as to bring about legal relations between two or more 
 States liable to the denunciation of Congress within the 
 meaning of the prohibition. 
 
 It cannot be safely affirmed, therefore, as I think, that 
 the American people, assembled in Congress, have not got 
 the power to prescribe by general laws from time to time 
 as the exigency arises a national standard of justice upon 
 any subject within the reserved powers of the States 
 affecting, or likely to affect, by reason of the right of free 
 transit from one State to another created and protected 
 by the Federal Constitution, their domestic tranquility, 
 to which the public acts, records, and judicial proceedings 
 of each State touching that subject must conform in 
 order that they may have effect in every other State. 
 
 Why, then, may not Congress issue and enforce a 
 national mandate reading in substance thus: No State 
 divorce, legislative or judicial, from the bond of matri- 
 mony, shall have any effect in any other State unless it 
 was granted for one or more of the following enumerated 
 causes? Of course, if Congress may so prescribe the 
 causes of interstate divorce, it may prescribe the forms 
 and modes of procedure to be observed by each State 
 in granting an interstate divorce. 
 
 So far as I can see, the only color of authority to be 
 found in the books against the existence of this legislative 
 power in Congress is one short sentence in the opinion 
 of Mr. Justice Story in Mills v. Duryee reading thus: 
 "Were the construction contended for by the plaintiff in 
 error to prevail, that judgments of the State Courts ought 
 
222 CONSTITUTIONAL LAW 
 
 to be considered prima facie only, this clause (the first 
 clause of the Full Faith and Credit Section) in the Con- 
 stitution would be utterly unimportant and illusory" 
 (7 Cranch, at p. 485). This sentence is plainly obiter, for 
 the argument of the plaintiff was, as stated by the Court, 
 "this Act (of 1790) provides only for the admission of such 
 records as evidence, but does not declare the effect of 
 such evidence when admitted" (7 Cranch, at p. 484), and 
 the next sentences of the opinion of Mr. Justice Story 
 say so, for they read: "It is manifest, however, that the 
 Constitution contemplated a power in Congress to give 
 a conclusive effect to such judgments. And we can per- 
 ceive no rational interpretation of the Act of Congress 
 (of 1790), unless it declares a judgment conclusive when 
 a Court of the particular State where it is rendered would 
 pronounce the same decision." And Mr. Justice Story's 
 statement of the question in issue in Mills v. Duryee 
 emphasizes the fact that it concerned the effect in the 
 District of Columbia of a "judgment rendered in a Court 
 of Record of the State of New York, one of the United 
 States" (7 Cranch, at p. 483, and see Hepburn v. Ellzey, 
 2 Cranch, 445, and Sere v. Pitot, 6 Cranch, 332, Chief 
 Justice Marshall writing the opinions). It seems very 
 probable that a considerable part of "the solemn argu- 
 ment" (Story on the Constitution, Section 1313) in 
 Mills v. Duryee was directed to holding the majority 
 down to the case, to prevent their deciding too much 
 that "may at some future time involve this Court in 
 inextricable difficulties." (Mr. Justice Johnson's dissent 
 in Mills v. Duryee at p. 486.) In Hilton v. Guyot, 159 
 U. S., at pp. 182-183, Mr. Justice Gray quotes only the 
 above quoted first sentence from Mr. Justice Story's opin- 
 ion in Mills v. Duryee apparently as if it were the point 
 decided. And it may be remarked here, that if, in order - 
 to fix the true meaning of the first clause of the Full Faith 
 
COLLECTED COMMENT 223 
 
 and Credit Section, it is deemed necessary to ascertain 
 the true rule of English law as to the enforcement of 
 foreign judgments for money when the Constitution was 
 adopted, it is, in my humble opinion, by no means clear 
 that Mr. Justice Gray got it right in Hilton v. Guyot. 
 Compare, for example, the cases before Lord Hardwicke 
 as stated in 159 U. S., at pp. 172-174, and the conclusions 
 drawn from them, with the cases as printed in the reports. 
 Lord Mansfield, apparently speaking of Roach v. Garvan, 
 seems to have thought that it did not decide anything 
 even on the point of status (2 Burrow, 1080, top, cited 
 by Chief Justice Eyre in Phillips v. Hunter, 2 H. Bl. at 
 p. 412). I, for one, agree with Chief Justice Fuller and 
 his colleagues in dissent in Hilton v. Guyot, that the con- 
 clusions of Mr. Justice Blackburn, fresh from a study 
 of "the whole subject of the law of England as to enforc- 
 ing foreign judgments" (Schibsby v. Westenholz, L. R. 6 
 Q. B. 155, 158) cannot be tossed to the legal scrap heap 
 as mere theory based on a remnant of an ancient fiction. 
 (159 U. S., at p. 201; see the passage from Blackstone 
 quoted in 159 U. S., at p. 201, and note the saying of 
 Marshall, C. J., as to the course of reading of American 
 statesmen in early life in Ogden v. Saunders, 12 Wheat., 
 213, 353.) 
 
 It seems very strange, indeed, if the first clause of the 
 Full Faith and Credit Section in truth does make the 
 results of judicial proceedings had in one State conclu- 
 sive in every other State (see Story on the Constitution, 
 Sections 1309, 1310, and Hilton v. Guyot, 159 U. S., at pp. 
 181-185, where Mr. Justice Gray blends the Act of 1790 
 and the Constitution into one inseparable mass), that no 
 one of the remarkable men who opposed the ratifica- 
 tion of the Constitution by the people of their respective 
 States brought out the point with sufficient force to 
 attract the attention of the authors of the Federalist. 
 
224 CONSTITUTIONAL LAW 
 
 In No. 41, Madison deals with the Section under the head- 
 ing, "The powers . . . (see No. 40) which provide 
 for the harmony and proper intercourse among the 
 States," and says: "The power of prescribing, by 
 general laws, the manner in which the public Acts, records, 
 and judicial proceedings of each State shall be proved, 
 and the effect they shall have in other States, is an evident 
 and valuable improvement on the clause relating to this 
 subject in the Articles of Confederation. The meaning 
 of the latter is extremely indeterminate, and can be of 
 little importance under any interpretation which it will 
 bear (see Story on the Constitution, Section 1303). The 
 power here established may be rendered a very convenient 
 instrument of justice, and be particularly beneficial on 
 the borders of contiguous States, where the effects liable 
 to justice may be suddenly and secretly translated in 
 any state of the process, within a foreign jurisdiction." 
 Railroads have so dovetailed the States, as Madison 
 said in 1836 (see Bancroft's History of the Constitution, 
 Preface, p. xi), that the "liberal" divorce laws of certain 
 States, in conjunction with the Act of Congress of 1790, 
 or the principle of comity of those State Courts that have 
 forgotten the Act of 1790 (see 201 U. S., at pp. 617-618, 
 632), have made the divorce evil to-day national in its 
 character. The source of the evil, however, appears to 
 lie, not in the State lines of the Constitution, as some 
 people glibly say, but in unchecked abuses by individuals 
 and States, of the privilege of going across State lines, 
 a privilege created by, and dependent upon, the Consti- 
 tution, but subjected by the Constitution to an adequate 
 and completely sovereign power of regulation lodged in 
 the Federal Government. (See Mr. Justice Johnson's 
 opinion in Mills v. Duryee, and Mr. Justice Washington's 
 opinion in Green v. Sarmiento, 3 Wash. C. C, 17; S. C. 
 Pet. C. C, 74.) 
 
COLLECTED COMMENT 225 
 
 The whole of the question simmers down to this: Does 
 the word "effect" in the second clause of the Full Faith 
 and Credit Section mean the same thing as the words "full 
 faith and credit" in the first clause? So far as I know, 
 prior to the decision in Mills v. Duryee in 1813, no judge 
 6;f any considerable reputation ever said they do mean 
 the same thing. The main question, though not exact- 
 ly so stated, then was: Is the difference wide enough 
 to let in between the States a general law of Congress 
 expressing the judgment of the American people that the 
 law of one or more of the States upon a subject within 
 the scope of the powers reserved to the States by the 
 Tenth Amendment, when that law has been crystallized 
 into a judgment of a State Court, is so bad in point of 
 substantial justice that it is not fit to have effect in any 
 other State? Chief Justice Marshall thought the differ- 
 ence is wide enough for that, even after he had examined 
 the opinions of Mr. Justice Washington and Mr. Justice 
 Livington in Green v. Sarmiento, 3 Wash. C. C, 17, S. C. 
 Pet. C. C, 74, and in Hitchcock v. Aicken, 1 Caines Cases, 
 460, where, and in Sections 1309 and 1310 of Story on 
 the Constitution, published in 1833 (see also the early 
 cases collected in the note to Bartlett v. Knight, 1 Mass., 
 401, 410, Ed. 3, B. Rand, Editor), about everything 
 that ever has been said on the question may be read. 
 
 For these reasons, I venture to think that the propo- 
 sition quoted at the beginning of this note, taken as what 
 it purports to be, namely, an established, irrevocable 
 canon of American constitutional law, is neither estab- 
 lished, nor irrevocable. If Congress ever so far modi- 
 fies the Act of 1790 as to allow the question of the sound- 
 ness of that proposition to arise judicially, then, as I 
 think, correct principles must force the Supreme Court 
 of the United States to reject it, and to decide that Chief 
 Justice Marshall was right in Peck v. Williamson when 
 
226 CONSTITUTIONAL LAW 
 
 he said: "To us it appears very clear, that the Constitu- 
 tion makes a pointed distinction between the faith and 
 credit, and the effect, of a record of one State, when 
 exhibited in evidence in another." 
 
 2. — ■ Indiana Marriages in Contravention of the 
 Illinois Act of 1905. a — By an Act approved May 13, 
 1905, in force July 1, 1905, .the General Assembly of 
 Illinois said: "In every case in which a divorce has been 
 granted" by the Courts of Illinois "neither party shall 
 marry again within one year from the time the decree 
 was granted"; and "when the cause for such divorce is 
 adultery, the person declared guilty of adultery shall not 
 marry for a term of two years from the time the decree 
 was granted; . . . and every person marrying con- 
 trary to the provisions of this section shall be punished 
 by imprisonment in the penitentiary for not less than 
 one year nor more than three years, and said marriage 
 shall be absolutely void." (Sess. Laws, 1905, Bradwell 
 Ed., 166.) In Olsen v. The People, 219 111., 40, the Su- 
 preme Court decided that this Act is consistent with the 
 State Constitution. Under this Act, is a marriage of 
 an Illinois divorcee celebrated in Indiana within the 
 prohibited period good in Illinois? The legal opinion 
 seems to prevail in Chicago that such an Indiana mar- 
 riage is good in Illinois, judging from the frequent news- 
 paper reports of marriages of Illinois divorcees at Ham- 
 mond, Indiana, since the taking effect of the Act. It 
 would seem to be the plain duty of the proper authorities 
 of Illinois to make that legal opinion fight its way through 
 the Courts. The law is laid down by the learned author 
 of the article on marriage in 19 Am. & Eng. Ency. of 
 Law, Ed. 2, p. 1215, as follows: "It is now well settled 
 that such laws (as the Illinois Act, supra) have no effect 
 
 a [1 111. Law Rev., 269, November, 1906.] 
 
COLLECTED COMMENT 227 
 
 beyond the limits of the State, that the guilty party is 
 competent to enter into a valid marriage in another State 
 whose laws contain no such restrictions, and that such 
 marriage is valid even though both the parties to the 
 subsequent marriage were domiciled in the State where 
 the divorce was granted, and married elsewhere solely 
 to evade such restriction." But this ought not to terrify 
 any Illinois officer of the law who will recall the apology 
 of the lawyer a couple of centuries ago for reading Brac- 
 ton's book to an English judge. "I am reading it, your 
 lordship, not as an authority in our law, but as an 
 ornament to discourse, when it agrees with the law." 
 Some of the cases cited to support that proposition do 
 show that some State Courts have gone nearly, if not 
 quite, the full length of using the rule — if a marriage 
 is valid where it was celebrated, it is valid everywhere — 
 to overthrow a plain Act of the State Legislature to the 
 contrary. An examination of the cases will show, however, 
 that these Courts do admit, in words, at least, that that 
 rule is not superior in force to an Act of the Legislature. 
 Thus, in Commonwealth v. Lane, 113 Mass., 458, where 
 the Supreme Judicial Court of Massachusetts defends 
 the case of Medway v. Needham, 16 Mass., 157 — where 
 it was ruled that the marriage of a black man and a white 
 woman, residents of Massachusetts, celebrated in Rhode 
 Island, was good in Massachusetts, though forbidden 
 there by legislative Act — against the well-known attack 
 made upon it by the House of Lords in Brook v. Brook, 
 9 H. L. Cas., 193, it is said: "What marriages between our 
 citizens shall be recognized as valid in this Common- 
 wealth is a subject within the power of the Legislature 
 to regulate. But when the statutes are silent, questions 
 of the validity of marriages are to be determined by the 
 jus gentium, the common law of nations, the law of 
 nature as generally recognized by all civilized people" 
 
228 CONSTITUTIONAL LAW 
 
 (113 Mass., at pp. 462, 463). The Illinois Act, supra, is 
 not silent. It says "imprisonment in the penitentiary" 
 and "absolutely void," To say that the words, "neither 
 party shall marry again," mean "neither party shall 
 marry again in Illinois," imputes incompetency to the 
 General Assembly, and it is not permissible for the judicial 
 department to assail the intelligence of the legislative. 
 The question of the effect, if any, of the Full Faith and 
 Credit Section of the Federal Constitution and the Act 
 of Congress of 1790, re-enacted as Section 905, R. S. U. S., 
 upon such Indiana marriages in Illinois is a very proper 
 one to ask the Courts to decide. Certainly no one else 
 has any power to decide it. The people of Illinois 
 clearly have a right to know the legal reason why the 
 parties to these Indiana marriages are not living either 
 outside of Illinois or inside the Illinois penitentiary. 2 
 
 3. — Actions on Judgments of Other States — Nul 
 Tiel Record/ 1 — In Forsyth v. Barnes, 228 111., 326, 
 81 N. E. Rep., 1028 (Carter, J.), the Supreme Court, 
 reversing the Superior Court of Cook County (Chytraus, 
 J.), and the Appellate Court for the First District, lays 
 down and applies rules of pleading and evidence in an 
 action in debt on a judgment for money rendered by 
 a Court of another State that are decidedly new and 
 original in this State. That there was no deliberately 
 formed judicial intention to legislate the old rules out, 
 and legislate new ones in, is very plain, for the opinion 
 does not cite a single applicable decision in this State, 
 in any other State, or in the United States. 
 
 The judgment sued on in Forsyth v. Barnes was a joint 
 judgment by confession entered by a Court of Ohio 
 
 2 [In accord with the view here expressed is the subsequently decided case of 
 Wilson v. Cook, 256 111., 460.] 
 a [2 111. Law Rev., 326, December, 1907.] 
 
COLLECTED COMMENT 229 
 
 on a joint note and attached warrant of attorney. The 
 authenticated transcript of the record of the proceedings 
 in the Ohio Court exhibited in evidence by the plaintiff 
 showed that the note was dated and made payable in 
 Ohio. The Supreme Court did not overlook the fact 
 that the action was on the Ohio judgment, and not on 
 the note. The Court's opinion, and the cases cited in it, 
 show that the Court proceeded to solve the case on the 
 footing of the taken-for-granted assumption that the 
 rules of pleading and evidence applicable in an action 
 on a note made and payable in another State are equally 
 applicable in an action in debt on a judgment by con- 
 fession on such note rendered by a Court of such other 
 State. This is the basic, singular and amazing fallacy 
 of the whole decision. 
 
 No point is advanced in the case, if any could be, that 
 the mere fact that the Ohio judgment was by confession 
 made any difference, either as respects the right to have it 
 enforced by an Illinois Court, or as respects the rules of 
 pleading and evidence to be applied by an Illinois Court 
 in an action in debt to enforce it. As a general rule, there 
 appears to be no difference in these particulars between 
 a judgment for money rendered by a Court of another 
 State upon adversary proceedings upon service of process, 
 and a judgment for money rendered by a Court of another 
 State upon confession upon warrant of attorney. Case 
 note and citations, 3 L. R. A., N. S., 449; Graves & 
 Baker Sewing Machine Co. v. Radcliffe, 137 U. S., 287; 
 National Exchange Bank v. Wiley, 195 U. S., 257; Rosen- 
 thal v. Renick, 44 111., 205, 207; Sim v. Frank, 25 111., 125. 
 
 The defense in Forsyth v. Barnes was that the pre- 
 sumption that the common law is the local law of Ohio 
 applies; that one of the two parties to the Ohio judgment 
 by confession was a married woman, to which fact counsel 
 for the defense, and the Supreme Court in agreement with 
 
230 CONSTITUTIONAL LAW 
 
 counsel, applied the rule of the common law, presumed to 
 be the local law of Ohio, that the note of a married woman 
 is void; and the further rule of the common law, as 
 counsel for the defense claimed, and the Supreme Court 
 held, also presumed to be the local law of Ohio, that a 
 judgment rendered on a joint note of a married woman 
 and another person is void as against the married woman, 
 especially where the judgment is by confession on a joint 
 warrant of attorney, the warrant being void as against 
 the married woman. 
 
 The transcript of the Ohio judgment exhibited in evi- 
 dence by the plaintiff did not show on its face the cover- 
 ture of the female party to it. The Supreme Court ruled 
 that the defense should be permitted to show the fact 
 of coverture by extrinsic evidence under the plea of 
 nul tiel record — the only plea, so far as appears, inter- 
 posed to the declaration; in debt, presumably in the 
 usual form, nothing to the contrary appearing. 
 
 So far as I know, the Illinois Supreme Court never has 
 taken the trouble to expound at length the scope of the 
 issue raised by a plea of nul tiel record in an action in 
 debt on a judgment of a Court of another State. I do 
 not think, however, there is a precedent in the Illinois 
 reports from Breese down wherein it does not appear 
 clearly that the Court and counsel are proceeding as a 
 matter of course on the theory that nul tiel record puts 
 in issue only the existence of the record described in the 
 declaration, and that the issue raised must be tried by 
 the Court solely upon an inspection of the authenticated 
 transcript when exhibited in evidence by the plaintiff. 
 The terms of the plea prove what it means, and it con- 
 cludes with a verification and not to the country. (See 
 Hall v. Williams, 6 Pick., 232, Parker, C. J.) 
 
 In Hill v. Mendenhall, 21 Wallace, 453, 454-5, Mr. 
 Chief Justice Waite, delivering the unanimous judgment 
 
COLLECTED COMMENT 231 
 
 of the Federal Supreme Court reversing the lower Court 
 for letting the defense in an action in debt on a Minnesota 
 judgment show by extrinsic evidence- under the plea of 
 nul tiel record that an appearance by attorney in the 
 Minnesota Court was not authorized, said: 
 
 "If it appears on the face of the record that the Court 
 did have jurisdiction, extrinsic evidence to contradict it 
 is not admissible under a plea of nul tiel record. The 
 office of pleading is to inform the Court and the parties 
 of the facts in issue; the Court, that it may declare the 
 law, and the parties, that they may know what to meet 
 by their proof. Nul tiel record puts in issue only the 
 fact of the existence of the record, and is met by the 
 production of the record itself, valid on its face, or an 
 exemplification duly authenticated under the Act of 
 Congress. A defense requiring evidence to contradict 
 the record must necessarily admit that the record exists 
 as a matter of fact, and seek relief by avoiding its effect. 
 It should, therefore, be formally pleaded, in order that 
 the facts upon which it is predicated may be admitted 
 or put in issue. Under the common law system of plead- 
 ing this would be done by a special plea. The equivalent 
 of such a plea is required under any system. The precise 
 form in which the statement should be made will depend 
 upon the practice in the Court in which it is to be used, 
 but it must be made in some form. Defects appearing 
 on the face of the record may be taken advantage of upon 
 its production under a plea of nul tiel record, but those 
 which require extrinsic evidence to make them apparent 
 must be formally alleged before they can be proven. This 
 we believe to be in accordance with the practice of all 
 Courts, and it is certainly the logical deduction from 
 the elementary principles of pleading." 
 
 In support of this excellent statement of the law, a 
 number of cases are cited, the first one being the Illinois 
 
232 CONSTITUTIONAL LAW 
 
 case of Bimeler v. Dawson, 4 Scammon, 538. See also 
 Chipps v. Yancey, Breese, 195; Kimmel v. Schultz, 
 Breese, 169; Giles v. Shaw, Breese, 219; Rust v. Frothing- 
 ham, Breese, 331; Welch v. Sykes, 3 Gilm., 199; Mcjilton 
 v. Love, 13 111., 486; Thompson v. Emert, 15 111., 415; 
 Whittaker v. Murray, 15 111., 293; Smith v. Smith, 17 
 111., 482; Rae v. Hulburt, 17 111., 572; Horton v. Critch- 
 field, 18 111., 133; Lawrence v. Jarvis, 32 111., 304; Dun- 
 bar v. Hallowell, 34 111., 168; Zepp v. Hagar, 70 111., 223; 
 1 Chitty, Pleading, 11th Am. Ed., star pp. 485-486; 
 Puterbaugh, Common Law Pleading, Ed. 8, pp. 512- 
 513. In some of these Illinois cases, as in early cases in 
 Courts of almost all of the older States, the general expres- 
 sion appears, that jurisdictional recitals in the authenti- 
 cated transcript of the record of the proceedings of a 
 Court of another State cannot be impeached at all, under 
 any sort of a plea, by extrinsic evidence. As the Supreme 
 Court of the United States, per Mr. Justice Bradley, 
 clearly pointed out in the leading case of Thompson v: 
 Whitman, 18 Wallace, 457 (1873), such general expressions 
 proceed upon a misapprehension of the opinion of Mr. 
 Justice Story in Mills v. Duryee, 7 Cranch, 481 (1813). 
 And Mr. Justice Story himself said the same thing, ob- 
 scurely and clumsily, perhaps, in Section 1313 of his 
 book on the Constitution (1833). See Old Wayne Life 
 Assn. v. McDonough, 204 U. S., 8, 16. And it may be 
 that one or two of these early Illinois cases overstate 
 the extent of the power of a State over the mode and 
 manner of giving a resident of the State notice that 
 he has been sued, at least as such State power stands 
 after the adoption of the Fourteenth Amendment in 
 1868. See Nelson v. C. B. & Q. Ry., 225 111., 197; 2 111. 
 Law Rev., 109. But in so far as these Illinois cases 
 prescribe rules of pleading and evidence in actions in 
 debt to enforce judgments for money rendered by 
 
COLLECTED COMMENT 233 
 
 Courts of other States, they have been acquiesced 
 in universally without question, and applied daily in 
 Illinois Courts. 
 
 4. — Actions on Judgments of Other States — Pre- 
 sumption as to Local Law of Other States.* — As- 
 suming it to have been proven in Forsyth v. Barnes, 
 supra, either by extrinsic evidence under a proper plea, 
 or by a recital on the face of the Ohio transcript, that one 
 of the parties to the Ohio judgment by confession was a 
 married woman, could that fact alone do the defense 
 any good? The rule is, 3 and always has been, in Illinois, 
 that such proved or admitted fact alone could not do the 
 defense in Forsyth v. Barnes any good. In order to get 
 any benefit out of that fact, the burden was on the de- 
 fense to follow it up by introducing evidence, showing 
 that, by the actually existing local law or usage of Ohio, 
 prescribed by the Ohio Legislature or enforced by Ohio 
 Courts at the time the Ohio judgment in question was 
 rendered, a judgment by confession entered by an Ohio 
 Court on a joint note and warrant of attorney of a married 
 woman and another person was void and a nullity in 
 Ohio as against the married woman. There is not, 4 and 
 never has been, any such thing in an Illinois Court as 
 taking judicial notice of, or presuming anything at all 
 about, the local law or usage of another State where the 
 aid of the Illinois Court is asked to enforce a judgment 
 for money rendered by a Court of another State. So 
 far as the local law or usage of the other State enters into 
 the judgment for money, the judgment rendered by the 
 
 [2 111. Law Rev., 329, December, 1907.] 
 
 3 In cases arising in the Municipal Court of Chicago, the rule is different, 
 because Sec. 54 of the Act of 1905 establishing that Court prescribes that it must 
 "take judicial notice" of "all laws of a public nature enacted by any State or 
 Territory of the United States.'' 
 
 4 Except in the case of the Chicago Municipal Court. 
 
234 CONSTITUTIONAL LAW 
 
 Court of the other State is impregnable to assault in an 
 Illinois Court with judicial notice or presumption of the 
 local law or usage of the State where the judgment was 
 rendered. If the matter must be stated in terms of pre- 
 sumption, then, so far as the local law or usage of the 
 other State enters, an Illinois Judge must allow himself 
 to be controlled by one presumption only; Omnia prae- 
 sumuntur rite acta in the Court of the State where the 
 judgment was rendered. An Illinois Judge must pre- 
 sume that the Judge of the Court of the other State did 
 not violate his oath to administer the justice of his State 
 agreeably to its laws, and that he applied the local law 
 or usage of his State correctly. Smith v. Smith, 17 111., 
 482; Horton v. Critchfield, 18 111., 133. The pleading in 
 an Illinois Court in an action in debt to enforce a judg- 
 ment for money rendered by a Court of another State 
 proves that, and the cases above cited with reference to 
 the ruling in Forsyth v. Barnes on the plea of nul tiel 
 record are applicable and sufficient. And see Dow v. 
 Blake, 148 111., 76, 82-84. 
 
 On the principles laid down in the opinion in Forsyth 
 v.' Barnes, it seems that Ohio decisions based on the 
 common law were open for examination, 5 and should 
 have controlled the judgment. See M. & St. P. R. Co. 
 v. Smith, 74 111., 197, 200-201. Since 1862, the Supreme 
 Court of Ohio has held that by the common law enforced 
 by Ohio Courts a judgment by confession on a married 
 woman's note and warrant of attorney is not void in Ohio. 
 Callen v. Ellison, 13 Oh. St., 446; McCurdy v. Baughman, 
 43 Oh. St., 78; Hart v. Manahan, 70 Oh. St., 189. 
 
 6 Sed quaere, under the following sentence, 228 111., on p. 334: "If by common 
 law such a confession of judgment under a warrant of attorney based upon a 
 void contract is also void, then we must so hold here, but if by common law, after 
 such a void contract was merged, such judgment was merely voidable and not 
 void, the common law rule must control, regardless of the decisions of this or 
 any other State." 
 
COLLECTED COMMENT 235 
 
 The Supreme Court cites no case holding that the pre- 
 sumption as to the local law or usage of a State applies 
 where a Court of one State is asked to enforce a judgment 
 for money rendered by a Court of another State. 6 The 
 absence of authority would appear to prove that the 
 presumption does not apply in such cases. If it does 
 apply, evidently the books would abound with cases 
 concerning its proper use. But they do not. In 
 Freeman, Judgments, Ed. 4, Sec. 571, Hewson v. Wall, 
 20 Ala., 298, is cited as so holding. To prove a North 
 Carolina judgment described in the declaration, the plain- 
 tiff exhibited in evidence a transcript of a North Carolina 
 judgment, but the record did not say against whom 
 the judgment was rendered. It is a case that went off on 
 a variance; the same principle applied in Ducammon v. 
 Hysinger, 14 111., 249, and in the second part of Smith v. 
 Smith, 17 111., 482. 
 
 It appears to be held in Massachusetts (Hall v. Williams, 
 6 Pick., 232, Parker, C. J.; Knapp v. Abell, 10 Allen, 485, 
 Gray, J.; Wright v. Andrews, 130 Mass., 149, Gray, C. J.; 
 Stone v. Wainwright, 147 Mass., 201, Holmes, J.) that 
 the rule of the common law is, that a joint judgment in 
 an action ex contractu is void as an entirety, if one of 
 the defendants was not served. Freeman, Judgments, 
 Ed. 4, Sec. 136, says that the same thing was held in 
 other States, until it was discovered that Parker, C. J., 
 in Hall v. Williams, 6 Pick., 232, had fallen into error by 
 hastily reading and citing Richard v. Walton, 12 Johnson, 
 434, and that in most States now the rule is that such a 
 
 6 In actions to enforce contracts governed by the local law of another State 
 or country, the presumption in favor of the common law often must give way 
 in favor of some other system of law, as the civil law, in the case of Louisiana, 
 Texas, and possibly Florida. The presumption of local law as applied in such 
 actions is dealt with in an article entitled "Presumption of Foreign Law," A. M. 
 Kales, 19 Harv. Law Rev., 26, and in an elaborate note to the Massachusetts case 
 of Cherry v. Sprague, 67 L. R. A., 3. 
 
236 CONSTITUTIONAL LAW 
 
 joint judgment is not void, though often reversible on 
 error or appeal, as against the defendant or defendants 
 served. Massachusetts, and perhaps other States (13 Am. 
 & Eng. Ency. of Law, Ed. 2, p. 1012, cases cited in note 
 4), carried the rule a step further; and apparently Massa- 
 chusetts, at least, now refuses to enforce a joint judgment 
 rendered in another State, where one defendant was not 
 served, unless the plaintiff proves by evidence that by 
 the local law or usage of the other State the joint judg- 
 ment is not void there as against the defendant or 
 defendants served (Hall v. Williams, Knapp v. Abell, 
 Wright v. Andrews, supra). 
 
 In Smith v. Smith, 17 111., 482, the Illinois Supreme 
 Court ruled that an Illinois Court must presume that a 
 joint judgment of another State is good in the State 
 where rendered as against the party or parties over 
 whom the Court of the other State did have jurisdiction. 
 Mr. Justice Caton said: 
 
 "We may, and must, presume everything in favor of the 
 validity of the New York judgment as against Smith, 
 who was served with process, and over whom the Court 
 had complete jurisdiction. We must presume, as to 
 him, that the judgment was entered up in proper form, 
 so as to bind him, and that the laws of that State required 
 that, in form, the judgment should be entered up jointly 
 against all the parties sued, in order to bind those who 
 were served; but we cannot presume that those laws 
 made a judgment, although nominal, and in form, against 
 the parties not served, binding upon them. No presump- 
 tion can be indulged against the party not served, for, as 
 to him, the Court could, by the principles of natural 
 justice, and the acknowledged rules by which the civilized 
 world is governed, adjudge nothing against him. . . . 
 A capias was issued, and returned f not found,' as to 
 Hull, and he was then defaulted. This was a default 
 
COLLECTED COMMENT 237 
 
 before the party was put in any sort of fault. But, as 
 before suggested, we must presume that this, as a matter 
 of mere form, was required, in order to make the judg- 
 ment binding on Smith, who was served." 
 
 In Ellinger v. Caspary ; 76 111. App., 523, the Appellate 
 Court for the First District, Adams, Sears and Windes, 
 JJ., on the authority of Smith v. Smith, supra, sustained 
 a judgment for the plaintiff in an action in debt on a 
 New York joint judgment against the party served in 
 New York, without any evidence by the plaintiff of the 
 local law or usage of New York concerning the validity 
 there of the judgment as against the party served there. 
 Windes, J., said: 
 
 "The amended declaration sets up a (New York) 
 judgment against Ellinger alone. The proof shows a 
 (New York) judgment against Ellinger on personal 
 service, and a judgment on service by publication against 
 William J. Booth, and was sufficient to justify the (Illinois) " 
 judgment against (Ellinger) alone." 
 
 The only purpose, therefore, the above Massachusetts 
 opinions can serve in Illinois is to bring out and make 
 more clear the superior ability, vigorous, correct thought 
 and expression of the opinion of Mr. Justice Caton in 
 Smith v. Smith. It will be noticed on reading Smith v. 
 Smith, that the point that the New York joint judgment 
 was void at common law as an entirety, because one 
 party was not served in New York, and therefore was, 
 not enforceable in Illinois as against the party who was 
 served in New York, without evidence of local law or usage 
 in New York, making it good as against him there, was 
 directly and necessarily involved. I have no doubt that 
 Mr. Justice Caton and his colleagues were well acquainted 
 with Chief Justice Parker's opinion in Hall v. Williams, 
 6 Pick., 232. That case was cited by counsel and Court 
 in Bimeler v. Dawson, 4 Scam., 536, 538, 539, 540, 542, 
 
238 CONSTITUTIONAL LAW 
 
 and by the Court in Welch v. Sykes, 3 Gilm., 197, 200; 
 and in Rae v. Hulbert, 17 111., 572, 576-577, Mr. Justice 
 Caton states that he had examined the original files in 
 these Illinois cases. The inference is, then, that the 
 Court consciously intended to keep the doctrine on p. 
 246 of Hall. v. Williams, 6 Pick., 232, out of Illinois. 
 
 In Hanley v. Donoghue, 116 U. S., 1, on error to the 
 Supreme Court of Maryland, 59 Md., 239, the Supreme 
 Court of the United States, Mr. Justice Gray writing 
 the opinion, avoided the question whether the Massa- 
 chusetts rule as to burden of proof in the cases supra, 
 relied on by the Maryland Supreme Court, was repugnant 
 to the Full Faith and Credit Clause, and the Act of 
 Congress of 1790, now Sec. 905, R. S., U. S., on the ground 
 that the third count of the declaration in the Maryland 
 Court averred as a fact that by the local law or usage of 
 the State where the joint judgment sued on in the Mary- 
 land Court was rendered the joint judgment was good 
 there as against the party served, and void there as 
 against the party not served, and a general demurrer to 
 the declaration admitted this averment of fact in the 
 third count. 
 
 Perhaps it may be thought that Mr. Justice Gray's 
 opinion in Hanley v. Donoghue may be interpreted as 
 leaning in favor of the Massachusetts cases supra, and 
 against Smith v. Smith, on the point of burden of proof. 
 Mr. Justice Gray's opinion expressly says that it does 
 not touch that point (116 U. S., on pp. 3-4). That would 
 appear to exclude all doubt as to the meaning of the 
 opinion. Hanley v. Donoghue decides that Congress 
 did not, in the Act of 1790 (R. S., U. S., 905), impose upon 
 State Courts the duty of taking judicial notice of the 
 local law or usage of another State fixing the local effect 
 there of judgments there rendered, but left the State 
 Courts and Legislatures free to regulate the manner of 
 
COLLECTED COMMENT 239 
 
 ascertaining such local law or usage, by their own rules 
 of pleading and evidence applicable to the subject; and 
 that the Supreme Court of the United States cannot 
 concern itself with the rules of pleading and evidence in 
 a State Court in actions to enforce judgments of Courts of 
 other States, so long as those rules are not so applied by 
 a State Court as to deny to the party seeking to have the 
 judgment enforced the benefit of the Constitution and 
 Act of Congress. There can be no question whatever 
 that Smith v. Smith fully performs the constitutional 
 duty of Illinois to give full faith and credit to judicial 
 proceedings in other States. 
 
 Mr. Justice Gray does extract from a number of State 
 decisions a rule, which he states as follows: 
 
 "Upon principle, therefore, and according to the great 
 weight of authority (as is shown by the cases collected in 
 the margin," one of them being Horton v. Critchfield, 
 18 111., 133), "whenever it becomes necessary for a Court 
 of one State, in order to give full faith and credit to a 
 judgment rendered in another State, to ascertain the 
 effect which it has in that State, the law of that State 
 must be proved, like any other matter of fact." 
 
 That rule rejects judicial notice and presumption as 
 means imposed by Congress upon State Courts for finding 
 the fact ; says that the fact must be proved ; but does not 
 say anything about where the burden of proving the 
 fact lies, whether on the prosecution or on the defense. 
 I, for one, have no doubt that the rule given by Mr. Jus- 
 tice Caton on that point in Smith v. Smith is on principle 
 the sound one. That rule, as I understand it, is: Where, 
 under "the principles of natural justice, and the rules by 
 which the civilized world is governed," or, in other 
 words, under the rules of international law as it exists 
 between the States (D'Arcy v. Ketchum, 11 Howard, 
 165, 176, Catron, J.), it appears that a Court of one 
 
240 CONSTITUTIONAL LAW 
 
 State did have jurisdiction in the international sense to 
 render a judgment for money, and, under the same rules, 
 the effect of the judgment rendered is that of a debt of 
 record in the international sense, then, under the Act of 
 Congress, the burden is on the defendant in a Court of 
 another State, whose aid is asked to enforce the judgment, 
 to show by evidence as a fact that by the local law or 
 usage of the State where the judgment was rendered the 
 Court that rendered it did not have local jurisdiction, or 
 that the local effect of the judgment in the State where 
 rendered was not that of a debt of record. Certainly 
 Chief Justice Parker's rule of the common law that a 
 joint judgment is void as to the party served, and the 
 Illinois Supreme Court's rule of the common law that 
 a judgment by a confession on a married woman's note 
 and warrant of attorney is void, are not now principles 
 of natural justice, nor acknowledged rules by which the 
 civilized world is governed, if they ever were. 7 
 
 If a view is taken of the decisions of the Federal Su- 
 preme Court enforcing the Full Faith and Credit Clause 
 and the Act of Congress in the case of judgments for 
 money, I do not see how there can be any fair doubt that 
 the rule as to burden of proof sanctioned by the Massa- 
 chusetts cases supra is wrong, and the rule laid down by 
 Mr. Justice Caton in Smith v. Smith is the sound one. 
 But whatever one may think about that, and even if the 
 Federal Supreme Court has laid down, or should lay 
 
 7 In Forsyth it. Barnes, the Court treats the rule of the common law it lays 
 down as going to the International jurisdiction of the Ohio Court (228 111., pp. 
 333-334). In Hanley v. Donoghue, Mr. Justice Gray treats Chief Justice Par- 
 ker's rule as going to the local effect of the judgment. As respects the burden 
 of proof, I do not see that it makes any difference whether the rule of Parker, 
 C. J., goes to the local effect of the judgment, or to the local jurisdiction of the 
 Court, though technically I think it goes to the local effect, as Mr. Justice Gray 
 says. The same is true, I think, of the common law rule laid down in Forsyth 
 k. Barnes. In Norton v. Meade, the chief support of the Illinois rule, Mr. Justice 
 Field appears to give up trying to fix the reason of that rule. 
 
COLLECTED COMMENT 241 
 
 down in the future, a rule on the burden of proof directly 
 opposed to Smith v. Smith, that, as above stated, could 
 not shake or impair the authority in Illinois of Smith 
 v. Smith. Under Hanley v. Donoghue, supra, Congress 
 is the only branch of the Federal Government that can 
 shake Smith v. Smith. 
 
 Of course, where a plaintiff bringing a judgment for 
 money, or for anything else, in one State into another 
 State for enforcement does not rely on the effect of the 
 .judgment in every other State as prescribed by the rules 
 of international law, and does rely on the local effect 
 in the State where rendered as prescribed by the local 
 law or usage of that State, then, under the Act of Congress, 
 the burden of proving that local law or usage is on the 
 plaintiff. Just as the burden of proving the local effect 
 of a public Act in the State that passed it is on the party 
 in another State who relies on such local effect. See 
 Chicago & A. R. Co. v. Wiggins Ferry Co., 119 U. S., 615, 
 622; Eastern Building & L. Assn. v. Ebaugh, 185 U. S., 
 114, 121; Eastern B. & L. Assn. v. Williamson, 189 U. S., 
 122, 128. 
 
 The Illinois Supreme Court appears to have a splendid 
 record in the matter of enforcing judgments for money 
 rendered by Courts of other States, and in Baker v. 
 Palmer, 83 111., 568 (1876), the Court extended the legal 
 theory to judgments for money rendered by Courts of 
 foreign, civilized countries, in honorable contrast with 
 what many think the wrong, reactionary and illiberal 
 ruling of a majority of the Supreme Court of the United 
 States in Hilton v. Guyot, 159 U. S., 113 (1895). Practi- 
 cally speaking, how can the principles of Forsyth v. 
 Barnes be applied in actions to enforce such foreign 
 judgments? That the Supreme Court will try to deal 
 more liberally with foreign judgments than with judg- 
 ments of other States of the Union is not to be thought of. 
 
242 CONSTITUTIONAL LAW 
 
 As respects the rule of the common law laid down in 
 Forsyth v. Barnes: Since admittedly the law does not 
 compel it, the usefulness of a Supreme Court decision 
 in Illinois at this date that the common law renders a 
 judgment by confession on a married woman's note and 
 warrant of attorney void on collateral attack by extrinsic 
 evidence may be doubted. Such decision would appear to 
 be adapted to serve most the non-useful purpose of assail- 
 ing titles long unquestioned. So far as the natural justice 
 of Forsyth v. Barnes goes, it was not shown that the married 
 woman did not owe the money ; and if she did not owe the 
 money, it was not shown that she could not get justice in 
 the Courts of Ohio. See Maloney v. Dewey, 127 111., 395, 
 and compare the reasoning of the Ohio decisions supra. 
 It may be noticed that the judgment in Forsyth v. Barnes 
 reverses and remands, and therefore is not a final one. 
 
 Perhaps Forsyth v. Barnes does the service of furnish- 
 ing additional proof that a General Act requiring Courts 
 to take judicial notice of the statutes and reported judicial 
 decisions of other States of the Union would tend to 
 advance justice by simplifying practice and procedure. 
 Section 54 of the Chicago Municipal Court Act, men- 
 tioned in note 1, supra, appears to be confined to "public 
 statutes," and besides, no one can say with confidence 
 that the Supreme Court surely will decide that that 
 Section can stand as an exceptional rule under the State 
 Constitution. The Court appears to be of opinion that 
 the broad, general language of the omnibus clause of the 
 Chicago Charter Amendment of the Constitution did 
 not utterly overthrow all of the wisdom, proven by ex- 
 perience in this State, of the constitutional requirement 
 of uniformity in rules of practice, even though such rules 
 may not be the simplest and therefore the best. See 
 Chicago v. Reeves, 220 111., 274; Miller v. The People, 
 Oct. 4, 1907, 111. Sup. Ct., 40 Chicago Legal News, 99. 
 
COLLECTED COMMENT 243 
 
 5. — Interstate Enforcibility of Money Judgments." 
 — Fauntleroy v. Lum, 210 U. S. 230, 28 Sup. Ct. Rep., 641, 
 Holmes, J., delivering the opinion, and White, J., a dis- 
 senting opinion concurred in by Harlan, McKenna, and 
 Day, J J., is another instance showing how little we know 
 for certain about the true meaning and application of 
 the Full Faith and Credit Section and the Act of Con- 
 gress of May 26, 1790, now R. S., Sec. 905, passed in 
 exercise of the power therein granted. 
 
 The Legislature of Mississippi passed statutes denounc- 
 ing dealing in futures as a criminal offense, and providing 
 that contracts of that kind, made without intent to deliver 
 the commodity or pay the price, "shall not be enforced 
 by any Court," i. e., of course, of Mississippi. Fauntleroy 
 and Lum, both citizens and residents of Mississippi, 
 dealt in futures in Mississippi in violation of these statutes, 
 got into a dispute, and submitted the dispute to an 
 arbitrator in Mississippi, not including in the submission 
 the question of the legality of their dealings. The Miss- 
 issippi arbitrator found against Lum, awarding that Lum 
 pay money to Fauntleroy. Then Lum refused to pay, 
 and Fauntleroy sued him in a Mississippi Court on the 
 award. Lum pleaded the said anti-gambling statutes 
 of Mississippi. Fauntleroy then dismissed his Mississippi 
 suit, went into Missouri, and began a suit in a Missouri 
 Court on the said award of the Mississippi arbitrator. 
 He caught Lum sojourning temporarily in Missouri and 
 served him with process there. Lum set up the Missis- 
 sippi anti-gambling statutes in the Missouri Court, but 
 the Missouri Judge refused to give any effect to them, 
 holding the award to be final and conclusive. Lum took 
 no steps to have this Missouri judgment reviewed by any 
 higher Court, State or Federal. Fauntleroy then sued Lum 
 
 a [3 111. Law Rev., 181, October, 1908.] 
 
244 CONSTITUTIONAL LAW 
 
 on the Missouri judgment in a Mississippi Court, 8 and for 
 his defense Lum relied on the anti-gambling statutes of 
 Mississippi, the Full Faith and Credit Section and the Act 
 of Congress, supra. The Mississippi Supreme Court ruled 
 that the Missouri judgment was not enforceable in and by 
 a Mississippi Court, 9 but the Federal Supreme Court 
 reversed the ruling as being repugnant to the Full Faith 
 and Credit Section and the Act of Congress, supra. 
 
 The result reached by the majority seems the correct 
 one. Holmes, J., deals with the case as turning on the 
 question of the jurisdiction of the Mississippi Court, the 
 Court of the State where judgment was sought to be 
 enforced, while White, J., deals with the case as turning 
 on the question of the jurisdiction of the Missouri Court, 
 the Court of the State where the judgment was rendered. 
 As respects the jurisdiction of the Missouri Court, it 
 seems plain, under the cases, as Holmes, J., says, that 
 that was "not open to dispute." But White, J., not 
 denying that the Missouri Court had jurisdiction to 
 enter a judgment valid and enforceable in Missouri, denies 
 that its judgment was valid and enforceable, as of right, 
 in Mississippi, or in any State other than Missouri, or, 
 in the learned Justice's own words, denies that the Mis- 
 souri judgment was "a judgment entitled to enforcement 
 in other States." Mr. Justice White's conception ap- 
 pears to be that, under the Full Faith and Credit Section, 
 the Act of Congress, supra, and decided cases, a State 
 Court has two jurisdictions, or one jurisdiction to render 
 two judgments, namely (1) a judgment entitled to enforce- 
 ment in the State where rendered only, and (2) a judg- 
 ment entitled to enforcement in the State where rendered 
 and in every other State of the Union. It is this concep- 
 
 8 Fauntleroy really was an assignee of the original party, but, as Holmes, 
 J., says, "nothing turns upon that." 
 
 9 80 Miss., 757. 
 
COLLECTED COMMENT 245 
 
 tion that disfigures Mr. Justice White's opinion in the 
 divorce case of Haddock v. Haddock. 10 As Holmes, J., 
 says, there has been no room left for such a conception 
 since the decision in Mills v. Duryea, 11 setting at rest a 
 difference of opinion as to the true meaning of the said 
 Act of 1790, now R. S., Sec. 905, and fixing that Act as a 
 congressional command that a judgment rendered in 
 one State shall have the same force and effect in every 
 other State that it has in the State where rendered. It is 
 difficult to understand how it is possible to read the opin- 
 ion of Gray, J., in Wisconsin v. Pelican Ins. Co., 12 as in 
 any way modifying the law so established. 13 
 
 Mr. Justice White appeals to the Constitution itself in 
 support of his conception of a State judgment enforceable 
 where rendered only, saying that if this Missouri judgment 
 is one entitled to enforcement outside of Missouri then 
 Missouri is endowed with a capacity through its Courts 
 to destroy the anti-gambling policy of Mississippi, and 
 of every other State, and so to destroy the constitutional 
 independence of Mississippi and of every other State. 
 Mr. Justice Holmes answers this, rather weakly, I think, 
 by saying that the Missouri Judge made an excusable 
 blunder, not likely to be repeated, and, if repeated and 
 persisted in, other States can do the same thing, i. e., 
 retaliate, until peace and harmony are restored. "But 
 is this a case of confidence," as Marshall, C. J., asked 
 in the well-known passage in McCulloch v. Maryland, 
 
 10 201 U. S., 512. 
 
 11 7 Cranch, 481. 
 » 127 U. S., 265. 
 
 "In Hampton v. McConnel, 3 Wheat., 234, Marshall, C. J., states the point 
 adjudged in Mills v. Duryea. Holmes, J., says Marshall's statement "is con- 
 firmed by the Act of May 26, 1790," now R. S., Sec. 1905. Marshall was origi- 
 nally against the construction put upon that Act in Mills v. Duryea. See Peck 
 v. Williamson, 1 Carolina Law Repository (7 N. C), 53, cited in Hilton v. Guyot, 
 159 U. S., on p. 182, with the qualification, "if accurately reported." See 1 111. 
 Law Rev., 256. 
 
246 CONSTITUTIONAL LAW 
 
 4 Wheat., 316, 431, or is it a case expressly provided for 
 by the Constitution itself, and the Act of Congress, supra? 
 The true answer to this part of Mr. Justice White's opinion 
 would appear to be this : The refusal by the Courts of Mis- 
 souri to give effect to the anti-gambling statutes of Missis- 
 sippi was a denial of full faith and credit to those statutes, 
 correctable by the Federal Supreme Court on direct appel- 
 late proceedings duly had and taken. Lum, however, made 
 no attempt to invoke the aid of any higher Missouri Court, 
 or of the Federal Supreme Court, to correct the error of the 
 Missouri Court of first instance upon this Federal ground, 
 or upon any other ground. The reversibility of the Missouri 
 judgment on this Federal ground does not go to the juris- 
 diction of the Missouri Court that rendered it, as the word 
 jurisdiction is ordinarily used in its relation to Courts. All 
 of the established rules for raising Federal questions prove 
 that. It is true that a statement of Moody, J., in Chambers 
 v. B. & O. R. Co., 14 repeated by the same learned Justice in 
 St. Louis I. M. & S. R. Co. v. Taylor, 15 is against the view 
 that the refusal of the Missouri Court to give effect to the 
 anti-gambling statutes of Mississippi could have been re- 
 viewed by the Federal Supreme Court as being repugnant 
 to the Full Faith and Credit Section and the Act of Con- 
 gress, supra. But this instant case of Fauntleroy v. Lum, 
 and the division of opinion therein, teaches that such state- 
 ment of Moody, J., ought not to be accepted as final. See 
 3 111. Law Rev., 65. 
 
 As respects the jurisdiction of the Mississippi Court 
 to enforce the Missouri judgment, which the opinion of 
 Holmes, J., deals with, evidently that could hardly rise 
 to the dignity of "a question" if it were not for the prior 
 case of Anglo-American Provision Co. v. Davis Provision 
 Co., 16 wherein the Court was unanimous, Holmes, J., 
 
 " 207 U. S., 142. 
 
 16 210 U. S., 281, 28 Sup. Ct. Rep., 616. 
 
 w 191 U. S., 373. 
 
COLLECTED COMMENT 247 
 
 writing the opinion. Mr. Justice White appears to me 
 to be right when he says the majority in Fauntleroy v. 
 Lum substantially overrule that case under the guise 
 of distinguishing it. But the case ought to be overruled. 
 In that case, the Anglo-American Provision Company, 
 an Illinois corporation, recovered a judgment in an 
 Illinois Court against the Davis Provision Company, 
 also an Illinois corporation, on a cause of action raising 
 in Illinois. The Anglo-American Company then sought 
 to enforce its Illinois judgment in a New York Court, 
 and was met by that provision of the New York Code of 
 Civil Procedure which says, "An action against a foreign 
 corporation may be maintained by another foreign cor- 
 poration, ... in one of the following cases only: 
 . . .3. -Where the cause of action arose within the 
 State." The New York Courts held that this statute 
 shut the Anglo-American Company out of New York 
 Courts, and the Federal Supreme Court said the statute, 
 so construed and applied, was not repugnant to the 
 Full Faith and Credit Section and the Act of Congress, 
 supra. In Fauntleroy v. Lum, the Mississippi statute 
 said contracts within the prohibition of the anti-gambling 
 statutes "shall not be enforced by any Court" of Missis- 
 sippi. The statute, taken literally, perhaps only applies 
 to actions in Mississippi Courts based on the original 
 contracts. But Holmes, J., after noticing that, waves 
 it aside, as I understand him, and treats the statute as 
 applicable to the suit on the Missouri judgment. But 
 he says the New York Code lays down a rule regulating 
 the jurisdiction of New York Courts, while the Missis- 
 sippi statute lays down a rule of decision. In other 
 words, the New York Code tells the New York Courts 
 to keep people out, and the Mississippi statute tells the 
 Mississippi Courts to let people in, and then turn them 
 around and make them walk right out again. This 
 
248 CONSTITUTIONAL LAW 
 
 New York etiquette of hospitality was unanimously 
 held to be good, but five Justices now hold the Mississippi 
 etiquette of hospitality to be bad. I can't see the differ- 
 ence. The application of the distinction between a rule 
 of jurisdiction and a rule of decision to the question of 
 the constitutional duty of the Mississippi Courts to 
 enforce that Missouri judgment is not apparent to me. 
 If the New York legislative rule of jurisdiction is good, 
 then the Mississippi rule of decision that brings about 
 the same identical result ought to be equally good. But 
 the New York rule is bad. The Full Faith and Credit 
 Section is predicated on the continued existence of 
 States, each maintaining a judicial department clothed 
 with adequate power to enforce obligations arising ex 
 delicto, ex contractu, and quasi ex contractu. A State, 
 without such a judicial department, would not be a 
 State in normal relations with the Union, within the 
 meaning of the Constitution. See Texas v. White. 17 
 The question in the Anglo-American case was not whether 
 New York was bound to provide a Court for the Anglo- 
 American Company, but whether, having such a Court, 
 New York could shut the Anglo-American Company out 
 of it on the single ground that plaintiff and defendant were 
 corporations of another State and the cause of action 
 arose in another State. It is submitted that Missouri 
 v. Lewis, 18 cited in the Anglo-American case, does not 
 mean as much as it was used for; and that Bank of 
 Augusta v. Earle, 19 is not against Webster's position in 
 argument that the right of a corporation of one State, not 
 wholly made up of aliens, to sue in another State rests 
 "on American ground," independent of "the law of 
 comity or international courtesy." (13 Pet., on p. 55.) 
 
 " 7 Wall., 700. 
 
 " 101 U. S., 22, 30. 
 
 19 13 Pet., 519, 589-591. 
 
TOPIC III 
 
 TRIAL BY JURY 
 
 I. New Trials and the Seventh Amendment — Slocum 
 v. New York Life Insurance Co. 
 
 II. Jury Trials in Original Proceedings for Mandamus 
 in the State Supreme Court. 
 
 III. Collected Comment. 
 
I 
 
 NEW TRIALS AND THE SEVENTH AMEND- 
 MENT— SLOCUM v. NEW YORK LIFE 
 INSURANCE CO. a 
 
 In Slocum v. New York Life Insurance Co., 1 by a five 
 to four vote, Van Devanter, J., speaking for the majority 
 (composed of himself, White, C. J., McKenna, Day, and 
 Lamar, JJ.), and Hughes, J., for the minority (composed 
 of himself, Holmes, Lurton, and Pitney, JJ.), it is decided 
 that the Seventh Amendment — 
 
 "In suits at common law, where the value in controversy shall 
 exceed twenty dollars, the right of trial by jury shall be preserved, 
 and no fact tried by a jury shall be otherwise re-examined in any 
 court of the United States, than according to the rules of the com- 
 mon law" — 
 
 compels the Circuit Court of Appeals to order a new trial 
 when, for want of evidence enough for a jury to act on 
 by finding a verdict for the plaintiff, it reverses a judg- 
 ment for the plaintiff entered on a general verdict for 
 the plaintiff, arrived at by the jury by the exercise of their 
 own judgment on the evidence, finding a material fact; 
 and forbids the Circuit Court of Appeals to direct judg- 
 ment for the defendant on the evidence in disregard of 
 the general verdict for the plaintiff. The reason is that 
 the rules of the common law referred to in the Seventh 
 Amendment forbid any federal tribunal but another 
 jury on a new trial to find a material fact different from 
 
 " [8 111. Law Rev., 287-308, 381-403, 465-490, December, 1913, January 
 and February, 1914.] 
 
 1 228 U. S., 364. 
 
252 CONSTITUTIONAL LAW 
 
 the finding of a jury; and federal judges, trial or appel- 
 late, who enter judgment for the defendant on the evidence 
 in disregard of a general verdict for the plaintiff finding 
 a material fact, must find the v material fact different from 
 the finding of the jury, for no judgment can be entered 
 for either party without a finding of the material fact 
 in issue. 
 
 All the justices agree to the proposition that the rules 
 of the common law referred to in the Seventh Amend- 
 ment forbid any federal tribunal but another jury on a 
 new trial to find a material fact different from the finding 
 of a jury. Though they do not expressly so say, it seems 
 the justices divided on the application of the word "tried," 
 in the phrase "no fact tried by a jury" in the second 
 clause of the Seventh Amendment. They all agree 
 that "fact" means "material fact," and "jury" means 
 "thirteen men," i. e., the trial judge and the twelve 
 jurors, and "tried" means "found." 
 
 The majority say "no fact tried by a jury" means "no 
 fact de facto tried by a jury"; and then they seemingly 
 declare the broad proposition, or at least the minority 
 say they do, that in any and every case, whether it turns 
 on a question of law or on a question of fact, where a 
 federal trial judge directs a verdict and the jury find a 
 verdict in passive obedience to the direction, or refuses to 
 direct a verdict and the jury find a verdict by the exer- 
 cise of their own judgment on the evidence, the Seventh 
 Amendment compels the federal trial judge to enter 
 judgment on the verdict directed or found by the jury, 
 or grant a new trial, and forbids him to enter judgment 
 on the evidence in disregard of the verdict directed or 
 found by the jury; and if the federal trial judge enters 
 judgment on a verdict directed or found by a jury, and 
 is reversed by a federal court of error or appeal for errone- 
 ously directing or refusing to direct a verdict, the Seventh 
 
NEW TRIALS AND SEVENTH AMENDMENT 253 
 
 Amendment compels the reversing federal court of error 
 or appeal to order a new trial, and forbids it to order 
 judgment on the evidence in disregard of the verdict 
 directed or found by the jury. The proposition goes 
 beyond the facts of the case, and to the excess extent 
 is, of course, obiter. 
 
 The minority say "no fact tried by a jury" means "no 
 fact to be tried and de facto tried by a jury"; and they 
 say there can be no such thing, not as a matter of fact, but 
 as a matter of law, or "in the eye of the law," as a fact 
 tried, i. e., found, by a jury in any case turning on a ques- 
 tion of fact where the federal trial judge ought to have 
 directed a verdict on the evidence against the party 
 having the onus of proof, but refused to do so, and the 
 jury found a verdict in favor of the party having the 
 onus of proof by the exercise of their own judgment on 
 the evidence; which comes round to saying "no fact tried 
 by a jury" means "no fact tried right by a jury," and 
 hence they dissent, and deny the above broad proposi- 
 tion of the majority, word for word, and declare the 
 Seventh Amendment does not compel either the federal 
 trial judge or the reversing federal court of error or appeal 
 to enter judgment on a verdict directed or found by a 
 jury, or grant a new trial, but permits either the federal 
 trial judge or the reversing federal court of error or appeal 
 to enter judgment on the evidence in disregard of a verdict 
 directed or found by a jury, whenever the case is one where 
 the federal trial judge, or reversing federal court of error 
 or appeal, is satisfied after the verdict on a motion for 
 judgment the trial judge ought to have directed a verdict 
 -different from the verdict directed or found by the jury. 2 
 
 2 On the common-law meaning of "fact tried by a jury," see Thayer, Evidence, 
 183-207. Professor Thayer's Chapters II, III, and IV on "Trial by Jury and Its 
 Development,'' and Chapter V on "Law and Fact in Jury Trials," are the best 
 literature we have on the subjects. 
 
254 CONSTITUTIONAL LAW 
 
 The minority opinion shows on its face excitement 
 over what it calls "the serious and far-reaching conse- 
 quences" of the majority opinion in the way of cutting 
 off the legislative power of Congress to give legal effect 
 in the federal courts to current opinion hostile to new 
 trials in all courts, state as well as federal — not as such, 
 for nobody, I suppose, wants to make new trials impos- 
 sible — but to new trials by jury, and friendly t new 
 trials by judges, especially appellate judges, as a cure 
 for the real or supposed evil of new trials by jury. 3 
 
 The question of the existence, causes, and cure of the 
 real or supposed evil of new trials by jury in the federal 
 courts, in so far as it is a legislative question, is for Con- 
 gress to dispose of, within the limits of its constitutional 
 power when it sees fit, and is quite beside the question in 
 federal constitutional law the majority decided. It may 
 be left to one side here with one or two remarks. Lay 
 and professional discussion of the general subject of new 
 trials by jury often are at fault in dealing with all the 
 courts of the several states and of the United States en 
 bloc, and in not separating them; and especially in not 
 separating state and federal courts; and opposition to 
 new trials by jury in state and federal courts often comes 
 down to conscious or unconscious opposition to the con- 
 stitution, state and federal, for confiding to the jury the 
 final decision of material issues of fact in common-law 
 cases. Trial by jury in common-law cases according 
 to the rules of the common law of the Seventh Amend- 
 ment does not exist in Illinois, and probably does not 
 
 3 Blackstone, 3 Com., 392, 393, says: "And it is worthy observation how in- 
 finitely superior to all others the trial by jury approves itself, even in the very 
 mode of its revision [i. e., by another jury on a new trial]. In every other coun- 
 try of Europe, and in those of our own tribunals which conform themselves to the 
 process of the civil law, the parties are at liberty, whenever they please, to appeal 
 from day to day and from court to court, upon questions merely of fact; which 
 is a perpetual source of obstinate chicane, delay, and expensive litigation." 
 
NEW TRIALS AND SEVENTH AMENDMENT 255 
 
 exist anywhere in the United States, except in the federal 
 courts. The institution that goes by the name of trial 
 by jury in most of the states is a monstrosity, dear to 
 nobody but the people, 4 who do not understand the legis- 
 lative and judicial processes in the several states by which 
 the trial judge has been chloroformed before the verdict 
 and the retaliatory processes for chloroforming the jury 
 after the verdict. In the federal courts we have trial by 
 jury in the purity of the common law of the Seventh 
 Amendment. It was no boast, but the simple statement 
 of a fact, when the Supreme Court of the United States 
 said by Matthews, J., in Baylis v. Travellers' Ins. Co., 5 in 
 1885: "This constitutional right this court has always 
 guarded jealously." Their labor may turn out to be the 
 labor of Sisyphus, but they have done it well. In our 
 law-reforming search for home-made and foreign-made 
 procedural devices to cure the real or supposed evil of 
 new trials by jury in the federal courts, we may turn to 
 The Federalist, No. 83, and read Hamilton's denial of 
 the necessity and wisdom of the Seventh Amendment, 
 admire it greatly, and regret it did not prevail; but the 
 fact remains it did not prevail; and we cannot, now 
 question the existence and authority of the Seventh 
 Amendment inside the federal courts, however much we 
 may question its necessity and wisdom outside the federal 
 courts. 
 
 It is plain, as it seems to me, the majority in Slocum v. 
 New York Life Insurance Co. reached the only allowable 
 result in the case before the court on the constitutional 
 jury- trial point they decided; and the judgment of the 
 court on that point ought to have been unanimous, but 
 with a less comprehensive opinion. The trouble in the 
 
 4 "Trial by jury is justly dear to the American people.'' Story, J., in Parsons 
 v. Bedford, 3 Pet., 443, 446, in 1830. 
 « 113 U. S., 316. 
 
256 CONSTITUTIONAL LAW 
 
 court arose out of the neglect of the justices to allow 
 themselves to be restrained by the fact the case before 
 them turned on a material issue of fact found by a jury. 
 The case arose in a federal trial court in Pennsylvania. 
 Before the action was begun, acting under the Conformity 
 Act of 1872, now R. S. Sec. 914, saying — 
 
 "The practice, pleadings, and forms and modes of proceeding in 
 civil causes, other than equity and admiralty causes, in the circuit 
 and district courts shall conform as near as may be to the practice, 
 pleadings, and forms and modes of proceeding existing at the time 
 in like causes in the courts of record of the state within which such 
 circuit or district courts are held, any rule of court to the contrary 
 notwithstanding," — 
 
 the federal judges in Pennsylvania adopted the Pennsyl- 
 vania statutory non-obstante-veredicto practice, or n. o. v. 
 practice, as it is familiarly called, authorized by a Penn- 
 sylvania statute of 1905, set out in the case and herein- 
 after in the margin, note 54. Under this Pennsylvania 
 n. o. v. practice, whether the case turns on a question of 
 law or on a question of fact, if the trial judge denies a 
 defendant's motion for a directed verdict and the jury 
 find a general verdict for the plaintiff, the defendant 
 may move for judgment on the evidence notwithstanding 
 the general verdict for the plaintiff, and the trial judge 
 may enter judgment for the defendant on the evidence 
 notwithstanding the general verdict for the plaintiff, if 
 the trial judge then thinks, i. e., on the motion for judg- 
 ment, he ought to have directed a verdict for the defend-, 
 and and justice to the plaintiff does not require a new 
 trial. And if the trial judge denies the defendant's mo- 
 tion for judgment and enters judgment for the plaintiff 
 on the verdict, a court of error or appeal may enter or 
 direct judgment for the defendant on the evidence not- 
 withstanding the general verdict for the plaintiff, if the 
 court of error or appeal thinks the trial judge ought to 
 
NEW TRIALS AND SEVENTH AMENDMENT 257 
 
 have directed a verdict for the defendant and justice to 
 the plaintiff does not require a new trial; and a judgment 
 for the defendant on the evidence non obstante veredicto 
 is a bar to a new action by the plaintiff for the same cause 
 of action. 6 
 
 The suit was by a widow on an insurance policy on the 
 life of her deceased husband ; the defense was a forfeiture 
 of the policy for non-payment of the last premium, to 
 which the plaintiff replied by way of confession and avoid- 
 ance, setting up a waiver of the forfeiture. The question 
 of the waiver of the forfeiture turned, it seems, first, on 
 whether a certain agent of the insurance company had 
 authority to waive the forfeiture, and, second, on whether 
 he exercised his authority by waiving the forfeiture. 
 The trial judge thought there was enough evidence on the 
 question of waiver for a jury to act on by finding a ver- 
 dict for the plaintiff, and therefore denied the defendant's 
 motion for a directed verdict. The jury found a general 
 verdict for the plaintiff. The trial judge denied the 
 defendant's motion for judgment on the evidence non 
 
 6 Enough Pennsylvania state and federal cases to show the Pennsylvania 
 n. o. v. practice are cited in the opinion of Hughes, J. 
 
 Van Devanter, J., explains two common-law instances of judgment n. o. v. 
 on the pleadings, not on the evidence, viz.: (1) on the plaintiff's motion for 
 judgment on the pleadings n. o. v. ; (2) on the defendant's motion on the pleadings 
 in arrest of judgment. The plaintiff's common-law motion for judgment on the 
 pleadings n. o. v., is entertained and sustained, with an order for a jury of inquiry 
 to assess the plaintiff's damages when they are unliquidated, when the defend- 
 ant's plea confesses the plaintiff's cause of action as stated in his declaration and 
 avoids it by setting up in bar an immaterial fact, on which the plaintiff joins 
 issue, and the jury find a verdict for the defendant. 
 
 The defendant's common-law motion on the pleadings in arrest of judgment 
 is the exact reverse. It is entertained and sustained where the jury find a ver- 
 dict for the plaintiff on an immaterial fact, because the plaintiff's pleadings do 
 not state any cause of action on which the plaintiff can recover. 
 
 In both instances the jury find an immaterial fact. The court, in entering 
 judgment on the pleadings n. o. v., disregards the jury's verdict in point of form, 
 but not in point of substance; the court does not draw any inference of fact 
 inconsistent with the jury's verdict, or find any material fact different from the 
 finding of the jury. 
 
258 CONSTITUTIONAL LAW 
 
 obstante veredicto and entered judgment for the plaintiff 
 on the verdict. On writ of error on a bill of exceptions 
 setting forth all the evidence produced before the trial 
 judge and jury, the Circuit Court of Appeals, dividing 
 two to one, Lanning and Gray, JJ., against Buffington, J., 
 thought there was not enough evidence on the question 
 of waiver for a jury to act on by finding a verdict for the 
 plaintiff, and therefore held the trial judge erred in 
 denying the defendant's motion for a directed verdict 
 and in denying the defendant's motion for judgment on 
 the evidence non obstante veredicto and reversed the 
 judgment for the plaintiff with a direction to the trial 
 judge to enter judgment for the defendant. 7 On certi- 
 orari the Supreme Court unanimously agreed with the 
 majority of the Circuit Court of Appeals there was not 
 enough evidence on the question of waiver for a jury 
 to act on by finding a verdict for the plaintiff; therefore 
 affirmed the judgment of the Circuit Court of Appeals 
 in so far as it reversed the judgment for the plaintiff; 
 but, dividing five to four, eliminated the direction to 
 enter judgment for the defendant and substituted a 
 direction for a new trial, on the ground the direction 
 for judgment for the defendant was prohibited by the 
 second clause of the Seventh Amendment. 8 
 
 7 New York Life Insurance Co. v. Slocum, 177 Fed., 942. 
 
 8 The Pennsylvania n. o. v. practice does not make new trials impossible; it 
 gives a judicial discretion to enter judgment u. o. v. or to order a new trial, as 
 justice to the party may require on the materials before the court. In this case 
 it seems to me justice to the plaintiff required the Circuit Court of Appeals to order 
 a new trial. That court could not say reasonably the verdict was a perverse 
 verdict, because the trial judge and one of the three judges of that court were 
 satisfied with it. There is nothing in the case to satisfy anybody the plaintiff 
 could not honestly produce more evidence on a new trial. The English Court of 
 Appeal, which claims power to enter judgment for one party in disregard of a 
 general verdict for the other party finding a material fact, says it will not exercise 
 the power except in a case where it is satisfied on the materials before it, first, the 
 verdict is a "perverse verdict," i. c, a verdict that no thirteen men or trial judge 
 and twelve jurors in England could or might find; and, second, that it "had be- 
 
NEW TRIALS AND SEVENTH AMENDMENT 259 
 
 The case was not one that turned on a pure question of 
 law that ruled the case; there was no doubtful point of 
 law in the case at all. It was not a case like Central 
 
 fore it all the evidence that could be reasonably expected to be obtained." Millar 
 ». Toulmin, 17 Q. B. D., 603; Allcockti. Hall [1891], 1 Q. B., 444; Paquin, Limited, 
 v. Beauclerk [1906], A. C, 148, 160, 161; Metropolitan R. Co. v. Wright, 11 App. 
 Cas., 152; Toronto R. Co. v. King [1908], A. C, 260. Of course, the question 
 whether the Circuit Court of Appeals exercised the Pennsylvania n. p. v. power 
 wisely or abused it in this case has no relation to the constitutional question, 
 which is simply whether the power can exist under the Seventh Amendment in 
 a case like the one before the court turning on a material fact found by the general 
 verdict of a jury. 
 
 Was the constitutional jury- trial question before the Supreme Court? As 
 the trial judge refused to direct a verdict for the defendant and refused to enter 
 judgment for the defendant n. o. v., and the only n. o. v. judgment was the one 
 directed by the Circuit Court of Appeals, the constitutionality of the n. o. v. 
 practice in a federal court under the Seventh Amendment could be directly drawn 
 in question in the case only as a federal appellate practice, not as a federal trial 
 practice. No act of Congress is referred to which in terms authorized the Circuit 
 Court of Appeals in Pennsylvania to adopt the Pennsylvania n. o. v. practice 
 in a case turning on a material fact found by the verdict of a jury, except the 
 Conformity Act of 1872. That act is expressly confined to practice in federal 
 trial courts. R. S., Sec. 701, prescribes the judgment that may be entered by 
 the Circuit Court of Appeals. 150 Fed., VI, XI, XXVII; Whitworth v. United 
 States, 114 Fed., 197, 205. That section is the present codified form of prior 
 statutes going back to Sec. 24 of the Judiciary Act of 1789. The rule of the 
 Supreme Court under this statute always has been there must be a new trial 
 when a judgment for the plaintiff on a general verdict for the plaintiff is reversed 
 on a bill of exceptions to instructions given to the jury. Hudson v. Guestier, 
 6 Cr., 281, 285; Shepherd v. Thompson, 122 U. S., 231, 241. The Circuit Court 
 of Appeals has no authority to change this rule made binding upon it by Congress. 
 Perhaps the Pennsylvania n. o. v. practice, viewed as a trial practice only, 
 must be classified as a trial practice of the kind which, when adopted by federal 
 trial judges under the Conformity Act, determines federal appellate practice, 
 being in that respect somewhat like, though evidently not exactly like, the 
 Pennsylvania compulsory nonsuit practice in Central Transportation Co. v. 
 Pullman's Car Co., 139 U. S., 24. If that is so, the question is whether the 
 Conformity Act authorized the Pennsylvania trial judges to adopt the Pennsyl- 
 vania n. u. v. practice as a federal trial practice in a case turning on a question of 
 fact found by the verdict of a jury. The Pennsylvania n. o. v. practice, when 
 adopted as a federal trial practice, expands the judicial power of the federal trial 
 judge in jury trials to deal with the facts after the verdict. The Conformity Act 
 does not authorize federal trial judges to adopt any local state practice that con- 
 tracts the judicial power of the federal trial judge before the verdict, as e. g. the 
 local state practice of instructing the jury only on the law and in writing. Nudd 
 v. Burrows, 91 U. S., 426, 441 ; Vicksburg R. Co. v. Putnam, 118 U. S., 545. There 
 is no good reason why the rule should not prevent federal trial judges from adopt- 
 
260 CONSTITUTIONAL LAW 
 
 Transportation Co. v. Pullman's Car Co., 9 relied on by 
 the minority, which turned on the pure question of law 
 whether the contract sued on was void as being ultra 
 vires the plaintiff corporation; or like Oscanyan v. Win- 
 chester Arms Co., 10 also relied on by the minority, which 
 turned on the pure question of law whether the contract 
 sued on was void as being against public policy. The 
 case turned on a pure question of fact, i. e. waiver vel non. 
 The trial judge refused to direct a verdict for the defend- 
 ant on the fact of waiver; and the jury found a general 
 verdict for the plaintiff by the exercise of their own 
 judgment on the evidence, thus finding the fact of waiver 
 in favor of the plaintiff. No trial judge or court of error 
 or appeal could enter judgment for the defendant on the 
 evidence in disregard of the jury's verdict for the plaintiff 
 without finding the material fact of waiver different from 
 the finding of the jury, i. e. without finding the material 
 fact of waiver in favor of the defendant. It being ad- 
 mitted it is settled law the rules of the common law of the 
 
 ing local state practices that expand the judicial power of the federal trial judge 
 in jury trials after the verdict; and the rule has been applied to local state special- 
 verdict and special-interrogatory statutes, which expand the judicial power in 
 jury trials before the verdict. Indianapolis R. Co. v. Horst, 93 U. S., 291, 299; 
 Mutual Accident Assn. v. Barry, 131 U. S., 110, 119. 
 
 In their report to the American Bar Association at its meeting in Montreal, 
 September 1-3, 1913, the Special Committee on Law Reform say the consti- 
 tutional jury-trial point was not made by counsel either in the petition for cer- 
 tiorari, or in the argument, written or oral. The course adopted by the court 
 of raising the point itself and disposing of it by a five to four vote without calling 
 for argument at the bar is said to be "unprecedented so far as your committee 
 are aware." On the view that one unprecedented act invites another, lest 
 the unchallenged precedent of to-day become the rule of to-morrow, "the com- 
 mittee filed a "motion for leave to intervene and for rehearing," with a brief in 
 its support, which are printed in the committee's report, the defendant and the 
 Attorney General of the United States joining in the motion. The committee 
 say: "The court handed down a memorandum denying the defendant's applica- 
 tion, and we are advised that this was intended as a denial of the application of 
 the committee." 
 
 » 139 U. S., 24. 
 
 10 103 U. S., 261. 
 
NEW TRIALS AND SEVENTH AMENDMENT 261 
 
 Seventh Amendment forbid any federal trial judge or 
 any federal court of error or appeal or any federal tri- 
 bunal but another jury on a new trial to find a material 
 fact different from the finding of a jury, it is hard to see 
 how it can be doubted the majority are right when they 
 say there is nothing to the point of the minority, that the 
 direction of the Circuit Court of Appeals in this case for 
 judgment for the defendant is permissible under the 
 Seventh Amendment. To doubt the correctness of the 
 majority's result in this case is to affirm that the judg- 
 ment for the defendant directed by the Circuit Court of 
 Appeals does not involve a finding by the judges of that 
 court of the material fact of waiver different from the 
 finding of the jury. 
 
 Authority is not wanting against any such affirmation, 
 if anybody is inclined to make it, and authority is needed. 
 Under the present practice in the English courts pre- 
 scribed by the Judicature Acts commencing in 1873, and 
 by the Orders and Rules of the Supreme Court thereunder, 
 neither an English trial judge nor a Divisional Court has 
 any power to enter judgment non obstante veredicto in a 
 case that turns on a material fact found by the general 
 verdict of a jury, because Order 40, rule 10, authorizes 
 the trial judge or Divisional Court only to "draw all 
 inferences of fact, not inconsistent with the finding of the 
 jury"; and a judgment on the evidence non obstante 
 veredicto in such a case involves the drawing of infer- 
 ences of fact inconsistent, and not consistent, with the 
 finding of the jury. But the English Court of Appeal, 
 under Order 58, rule 4, has power to enter judgment non 
 obstante veredicto in a case that turns on a material 
 fact found by the general verdict of a jury, because 
 Order 58, rule 4, authorizes the Court of Appeal to "draw 
 inferences of fact," dropping the words "not inconsistent 
 with the finding of the jury"; and the Court of Appeal 
 
262 CONSTITUTIONAL LAW 
 
 holds the dropping of those words out of Order 58, rule 4, 
 means that the Court of Appeal has power to draw 
 inferences of fact, inconsistent as well as consistent, 
 with the finding of the jury. 11 
 
 In point of direct authority, the majority say the 
 Supreme Court of the United States in Baylis v. Travel- 
 lers' Ins. Co., 12 in 1885, by necessary implication decided 
 against the minority's view, that a judgment on the 
 evidence non obstante veredicto is permissible in a 
 federal court under the Seventh Amendment in a case 
 that turns on a material fact found by the general verdict 
 of a jury; and the majority are right in their interpre- 
 tation of that case. The action was begun in a New York 
 federal trial court on an accident insurance policy; and 
 the only question in the case was the one of fact whether 
 the insured took an overdose of opium accidentally, or in 
 the way of medical treatment for influenza. Over the 
 objection of plaintiff's counsel the trial judge refused to 
 submit the evidence genuinely and fairly to the jury, 
 but peremptorily instructed the jury to return a pro 
 forma verdict for the plaintiff for the amount of the policy, 
 "subject to the opinion of the court upon the question 
 whether the facts proved were sufficient to render the 
 defendant liable upon the policy." Where the New York 
 federal trial judge got the idea he could employ his 
 
 11 Millar v. Toulmin, 17 Q. B. D., 603, in 1886, reversed by the House of Lords 
 and verdict of the jury restored, Millar v. Toulmin, 12 A. C, 747, in 1887, Lord 
 Halsbury doubting the Court of Appeal's claim of power; Allcock v. Hall [1891], 
 1 Q. B., 444, the Court of Appeal reasserting its claim of power; Paquin, Lim- 
 ited, v. Bauclerk [1906], A. C, 148, 161, Loreburn, L. C, agreeing obiter with the 
 Court of Appeal ; for O. 40, i . 10, and O. 58, r. 4, see Matthews, White, and Stringer, 
 Annual Practice, 1912, Part 1, pp. 661, 1032. The Court of Appeal does not 
 deny, but admits, that in entering judgment on the evidence n. o. v. in a case 
 turning on a material fact found by the general verdict of a jury, it makes an 
 affirmative finding of fact different from the finding of a jury. That is the point 
 for which the cases are cited here. Their value as authority on tlje right of trial 
 by jury in federal courts under the SeventhAmendment is considered hereinafter. 
 
 12 103 U. S., 261. 
 
NEW TRIALS AND SEVENTH AMENDMENT 263 
 
 reserved-question mode of procedure without the consent 
 of the plaintiff does not appear. The jury returned the 
 directed pro forma verdict for the plaintiff; and later on 
 the trial judge found from the evidence the insured took 
 the overdose of opium in the way of medical treatment 
 for influenza and not accidentally, and therefore the 
 plaintiff could not recover, and entered judgment for the 
 defendant on the basis of his own finding of fact in disre- 
 gard of the verdict of the jury finding the fact the other 
 way, the verdict being a pro forma directed verdict. The 
 Supreme Court reversed the judgment with an order for 
 a new trial, solely on the ground the trial judge eliminated 
 the jury without the consent of the parties, and found 
 a material fact himself without the intervention of a 
 jury in a way prohibited by the Seventh Amendment. 
 It is possible to say the constitutional jury-trial reason 
 given by the Supreme Court for reversing the trial judge 
 was not called for by the facts of the case; and it seems 
 to me that is correct for reasons stated in the note at the 
 end of this paragraph. But it is not possible to say the 
 Supreme Court did not in fact give that constitutional 
 jury-trial reason for its reversing judgment; and Hughes, 
 J., is mistaken when he says in 228 U. S., on p. 426: 
 
 "The pith of the decision is that, despite what the trial judge 
 said regarding the matter, there were really questions of fact for 
 the jury, and that the trial judge could not take the place of the 
 jury in deciding them." 
 
 The Supreme Court distinctly says in 103 U. S., on p. 
 321, it assumes the trial judge was right in his finding 
 of fact and ought to have directed a verdict for the de- 
 fendant, but declined to go into the question because "that 
 is a question not before us." While the facts of the case 
 as they actually were did not bring the judgment of the 
 trial judge within the ban of the Seventh Amendment, as 
 it seems to me, yet the opinion of the Supreme Court by 
 
264 CONSTITUTIONAL LAW 
 
 necessary implication is decisive against the minority 
 in this case. If the trial judge had genuinely and fairly 
 submitted the evidence to the jury as plaintiff's counsel 
 wanted him to do, and the jury had found a general ver- 
 dict for the plaintiff, finding the insured did take the 
 overdose of opium accidentally, and the trial judge then 
 and in that case had entered judgment for the defendant 
 in disregard of the jury's verdict, setting aside the jury's 
 verdict and substituting his own finding of fact in the 
 place of the jury's verdict, there can be no question at 
 all the Supreme Court would have reversed the trial 
 judge for eliminating the jury altogether and finding a 
 material fact different from the finding of the jury in 
 contravention of the second clause of the Seventh Amend- 
 ment, forbidding any federal tribunal but another jury 
 on a new trial to find a material fact different from the 
 finding of a jury. 13 
 
 13 When the opinion in Baylis v. Travellers' Insurance Co. is limited by the 
 facts of the case, and assuming, as the Supreme Court did, the case called for a 
 directed verdict for the defendant on the fact in issue, the judgment of the Su- 
 preme Court ought to be rested on the rule of mere practice and procedure, viz: 
 that a federal trial judge must not direct a pro forma verdict for the plaintiff on 
 a material issue of fact when he himself thinks he ought to direct a verdict for the 
 defendant, because such practice savors of judicial levity or want of intellectual 
 seriousness and honesty, and tends to encourage federal trial judges to dodge 
 hard cases and to pass their responsibility up to the federal court of error or 
 appeal. 
 
 The Directed Verdict on a material issue of fact and the Seventh Amendment : 
 The way the opinion of Van Devanter, J., employs Baylis v. Travellers' Insur- 
 ance Co., along with Barney v. Schmeider, 9 Wall., 248, and Hodges v. Easton, 
 106 U. S., 408, to support the majority's result, caused the minority to think the 
 majority intended to say, and do say, the verdict of a jury returned in passive 
 obedience to a peremptory instruction of a trial judge is an indispensable thing 
 of substance under the Seventh Amendment and not a dispensable thing of 
 form. No such point was before the court, as there was no directed verdict in 
 the case. At the same time, the opinions in those cases unquestionably do show 
 on their faces that it was the conception of the judges who wrote them that a 
 federal trial judge who peremptorily directs a verdict on a material issue of fact 
 cannot dispense with a verdict at the hands of the jury and enter judgment 
 without it. That conception is not necessary to support the judgment in any 
 of the cases, and the question is open in the Supreme Court whether the concep- 
 
NEW TRIALS AND SEVENTH AMENDMENT 265 
 
 In Kohne v. Insurance Co., 14 in 1804, which turned on 
 a question of fact, on a motion for a new trial before 
 Washington, J., Mr. Rawle argued that Washington, J., 
 had precluded himself from granting a new trial by allow- 
 ing the jury to act on the evidence and a new trial would 
 impair the benefits of trial by jury. In the course of an 
 opinion rejecting the argument in a way no federal judge 
 to-day could adopt, Washington, J., said: 
 
 "I cannot conceive how the granting of a new trial can impair the 
 benefits of jury trial. If by setting aside the verdict the conse- 
 quence would be a judgment contrary to it, the position would be 
 correct." 
 
 While that is obiter, yet it is the deliberate opinion of 
 a careful and sound judge. 
 
 » 1 Wash. C. C, 123: 14 Fed. Cas., 838, 839. 
 
 tion is right. The conception flows from a vague, meticulous judicial feeling 
 there may be something in the right of trial by jury under the Seventh Amend- 
 ment that requires the Supreme Court to strain itself to reconcile the rule in 
 Elmore ». Grymes, 1 Pet., 469, in 1828, that federal courts have no power to 
 nonsuit a plaintiff without his consent for want of evidence to support his case, 
 with the rule that federal courts have power without the consent of the plaintiff 
 to direct a verdict for the defendant on a material issue of fact when the plaintiff's 
 evidence is not enough to support his case. The two rules are irreconcilable, as 
 related to the right of trial by jury under the Seventh Amendment. Judge 
 Curtis said so in his Lectures on the Jurisdiction of the United States Courts, 2 Ed., 
 249, 250, in 1873-4. And the observation of Field, J., in Oscanyan v. Winchester 
 Arms Co., 103 U. S., 261, 264, that the difference between a compulsory non- 
 suit for want of evidence and a directed verdict for the defendant for want of 
 evidence "is rather a matter of form than of substance," has been repeated by 
 the Supreme Court as a universal truth, and not as a truth limited to the case 
 wherein it was made, i. e., a case turning on a pure question of law. 
 
 A fact tried, i. e., found, by a peremptorily directed verdict cannot be a "fact 
 tried by a jury," within the meaning of the Seventh Amendment, whether the 
 case turns on a question of fact, or on a question of law. A motion for a directed 
 verdict is a proceeding whereon the trial judge determines from the evidence 
 whether there is a material issue of fact for trial by a jury, not unlike the pro- 
 ceeding in jure in Roman civil procedure before the praetor resulting in the litis 
 contestatio, or formulation and knitting of the issue, before the case passed in 
 judicio before the judex for a trial of the issue and rendition of the sententia or 
 judgment (Sohm, Institutes of Roman Law, Ledlie's Tr., 2d ed., 237-241); 
 and not unlike our proceeding before the equity judge when he formulates an 
 
266 CONSTITUTIONAL LAW 
 
 In Pennsylvania, under the reserved-question statutes 
 of 1825, 1835, and 1863, continued in force by the Penn- 
 sylvania n. o. v. statute of 1905, under which this case 
 arose, it was the "settled law," according to the Pennsyl- 
 vania Supreme Court itself in 1898 in Fisher v. Schara- 
 din, 15 until it was changed in that case, that neither the 
 trial judge nor a court of error or appeal has any power 
 to enter judgment on the evidence non obstante vere- 
 dicto in a case turning on a material fact found by the 
 general verdict of a jury by the exercise of their own 
 
 issue of fact for trial by a jury in a common-law court. When the trial judge 
 peremptorily directs a verdict, he thereby decides there is no material issue of 
 fact arising on the evidence for trial by a jury. When the trial judge is reversed 
 by a court of error or appeal for peremptorily directing a verdict on the evidence in 
 a case that turns on a question of fact, not of law, the consequence is that he 
 denied the right of trial by jury secured by the first clause of the Seventh Amend- 
 ment and the reversing judgment must order a trial by jury, for there never 
 was any trial by jury. The second clause of the Seventh Amendment has no 
 application to a case where the trial judge directs a verdict; it comes into play only 
 after a verdict found by a jury on a material issue of fact; it regulates and con- 
 trols the proceedings after the verdict of a jury, not before; the proceedings 
 before the verdict of a jury are regulated and controlled by the first clause 
 exclusively. 
 
 Written Pleadings and the Seventh Amendment : There are general expressions 
 in the majority opinion which the minority take to mean that the majority say 
 the Seventh Amendment preserves inviolate the system of written pleadings 
 in common-law cases in the federal courts as the only allowable form and mode 
 of procedure to ascertain whether there is a material issue of fact for trial by a 
 jury and to define the issue. Whether that is a correct reading of the majority 
 opinion makes no difference, because there is no foundation in the Seventh Amend- 
 ment for any such idea. The Seventh Amendment does not prescribe any form 
 and mode of procedure for ascertaining and defining the material issue of fact 
 for trial by a jury; as already stated, the second clause of it has no application to 
 a case until after the material issue of fact has been ascertained and defined in 
 the mode and manner prescribed by law, i. e., judiciary law or statute law alter- 
 able by Congress, and the jury have passed on the issue and decided it by an 
 exercise of their own judgment. The Seventh Amendment leaves Congress 
 free to prescribe any form and mode of procedure it may deem adapted and 
 appropriate to ascertain and define the material issue of fact for trial by a jury, 
 subject to the limitation in the first clause, not the second, of the Seventh Amend- 
 ment, that Congress, under the guise of prescribing a form and mode of procedure 
 for ascertaining and defining the material issue of fact for trial by a jury, must 
 not declare, or authorize any tribunal to declare, there is no material issue of 
 fact for trial by jury when there is a material issue of fact. 
 
 16 186 Pa. St., 565. 
 
NEW TRIALS AND SEVENTH AMENDMENT 267 
 
 judgment. In 1855, in Wilson v. Steamboat Tuscarora, 16 
 which turned on a question of fact, where the jury found 
 a verdict for the plaintiff subject to the opinion of the 
 court on the question whether under the whole evidence 
 the plaintiff was entitled to recover, and the trial judge 
 entered judgment for the defendant in disregard of the 
 verdict for the plaintiff, Judge Jeremiah S. Black, deliver- 
 ing the opinion of the Pennsylvania Supreme Court, said : 
 
 "This was an issue of fact. . . . The jury found a single 
 fact, and on that gave a verdict for the plaintiff. The court found 
 other facts, and thereupon disregarded the conclusion of the jury, 
 and gave judgment for the defendant. Neither we nor the judge 
 who tried the cause below, have any authority whatever to do 
 such things. 
 
 "If a court can reserve all the evidence in a case, and call it a 
 point [of law], then there is no use for juries, and very little use for 
 judges of the Common Pleas. The jurors may leave the evidence to 
 the court, and the court may hand it over to us without more 
 trouble than it costs to pronounce a judgment pro forma, for one 
 party or the other. But our responsibilities must be squarely met, 
 since there is no tribunal beyond us on whom we can shoulder 
 them off. We must try the cause, ascertain the facts, and decide 
 the law on all the evidence, just as if it had never been heard else- 
 where. If we here must come to this, let us hear the witnesses, 
 or at least have their testimony iri the shape of depositions." 17 
 
 16 25 Pa. St., 317, 318. 
 
 17 See also Winchester v. Bennett, 54 Pa. St., 510, in 1867; Yerkes v. Richards, 
 170 Pa. St., 346, in 1895. When the Pennsylvania Supreme Court reversed these 
 earlier decisions in 1898 in Fisher v. Scharadin, 186 Pa. St., 565, it picked up the 
 last line of the opinion of Black J., supra, about letting the court of error or appeal 
 at least have the depositions of the witnesses, as giving the essence of them. 
 And Hughes, J., thinks the modern stenographic report sent up of importance as 
 touching the judgment that may be rendered on reversal, 208 U. S., on p. 419. 
 But there never was a time since the practice began when a court of error or 
 appeal would review the ruling of a trial judge on a motion for a directed ver- 
 dict on a material issue of fact, unless it had before it all the evidence on which the 
 trial judge based his ruling. How the evidence is taken down and reported, 
 whether in long hand, or stenographically, or by an Edison talking-picture de- 
 vice, may have relation to the ability of the court of error or appeal to determine 
 the correctness of the ruling of the trial judge, but it has no relation to the judg- 
 ment of reversal the Seventh Amendment says must be entered. 
 
268 CONSTITUTIONAL LAW 
 
 In point of principle, the minority's view is unsound, 
 that a judgment on the evidence non obstante veredicto 
 is permissible in a federal court under the Seventh Amend- 
 ment in a case that turns on a material fact found by the 
 general verdict of a jury by the exercise of their own 
 judgment. 
 
 The second clause of the Seventh Amendment, 
 
 "And no fact tried by a jury shall be otherwise re-examined in 
 any court of the United States, than according to the rules of the 
 common law," 
 
 is related to the first clause, 
 
 "In suits at common law, where the value in controversy shall 
 exceed twenty dollars, the right of trial by jury shall be preserved," 
 
 as constitutionally prescribed means to attain a consti- 
 tutionally prescribed end. The second clause prescribes 
 what every federal judge must regard as absolutely neces- 
 sary and indispensable means to attain the prescribed end 
 of preserving the right of trial by jury in the federal 
 courts. The clause does not forbid all re-examination in 
 a court of the United States of a fact found by a jury; it 
 permits some re-examination in a court of the United 
 States of a fact found by a jury; the clause draws a line 
 on the re-examination, limiting it rigidly to that kind of 
 a re-examination of a fact found by a jury that was al- 
 lowed by the rules of the common law. It is settled that 
 "the common law" of the Seventh Amendment is the 
 common law of England, and not the common law of any 
 state or of all the states; 18 and by the common law of 
 England is meant so much of the common law of England 
 at or about the time the Seventh Amendment was pro- 
 posed by Congress, September 25, 1789, and declared in 
 force, December 15, 1791, as may reasonably be sup- 
 
 18 The cases are cited by Van Devanter, J. 
 
NEW TRIALS AND SEVENTH AMENDMENT 269 
 
 posed, from what we know of the state of legal education 
 in the United States at the time, 19 to have been familiar 
 to the men who framed the Seventh Amendment and 
 adopted it. 20 
 
 At the time the Seventh Amendment was proposed 
 and adopted, a fact found by a jury could be re-examined 
 in an English court, as a matter of existing abstract law 
 at least, on a writ of attaint issued at the instance of 
 the party who lost before the jury, claiming the verdict 
 was a false verdict. Under the process of attaint for a 
 false verdict, a jury of twenty-four re-examined the fact 
 found by the jury of twelve on the materials that were 
 before the jury of twelve; and if the jury of twenty-four 
 found the verdict of the jury of the twelve was a false 
 verdict, the fact was set right, i. e., the verdict of the 
 twelve was set aside and the verdict of the twenty-four 
 was substituted in its place, and the judgment of the 
 court restored the party to all that he had lost by the 
 false verdict of the twelve. Long before the proposal 
 and adoption of the Seventh Amendment, the process 
 of attaint had become obsolete in practice in the English 
 courts; in 1757, in Bright v. Eynon, 21 Lord Mansfield 
 said: "The writ of attaint is now a mere sound in every 
 case." It was not legally abolished in England until 
 
 19 On that subject, see Warren, History of the American Bar; 1 Select Essays in 
 Anglo-American Legal History, 367. 
 
 20 The Seventh Amendment is a prohibition upon the exercise of federal power, 
 not a grant of federal power, and what was within the contemplation of the 
 framers at the time is of the greatest importance, though not so in the case of a 
 grant. The distinction was well put by Mr. Charles O'Conor in his argument in 
 the slave case of Lemmon v. The People, 20 N. Y., 562, 583, in 1860: "Whilst, in 
 actual administration, some words [granting federal power] . . . must thus 
 be taken to comprehend more than was in the contemplation or intent of their 
 framers; others [prohibiting federal power], if we would preserve the Republic, 
 must be carefully limited to the sphere covered by their mental vision at the 
 time." But see Brewer, J., in Fairbank v. U. S., 181 U. S., 283, 287-289. 
 
 21 1 Burrow, 390, 393. 
 
270 CONSTITUTIONAL LAW 
 
 1825, when Parliament declared that attaints shall "hence- 
 forth cease, become void and utterly abolished." 22 
 
 Before the proposal and adoption of the Seventh 
 Amendment, and at least since about 1700, the remedy of 
 attaint for a false verdict had given way about completely 
 in actual practice to the motion for a new trial on the 
 specific ground the verdict was a false verdict against the 
 weight of the evidence. The first reported instance of 
 a motion for a new trial on that ground is in 1665. 23 
 Before and after this extension of the motion for a new 
 trial, a new trial could come, and often did come, on a 
 venire de novo ordered by a court of error or appeal on 
 reversal of a judgment for misdirection of the trial judge 
 or for some other reason grounded in matter of law, but 
 not as a result of a re-examination of the evidence by the 
 court of error or appeal, unless the court of error or 
 appeal derived authority to make such re-examination of 
 the evidence from the consent of parties, as e. g. on a 
 reserved question after 1700. 24 Under the English nisi 
 prius system established before the Seventh Amendment a 
 motion for a new trial was heard by the court in banc; 
 and the ruling of the court in banc granting or refusing 
 a new trial was not reviewable by any court of error or 
 appeal, as the motion for a new trial was addressed to the 
 discretion of the court in banc exclusively, whatever the 
 ground or grounds of the motion might be. 26 
 
 On a motion for a new trial on the specific ground the 
 verdict was a false verdict against the weight of the 
 evidence, the court in banc could, did, and of course had 
 
 22 3 Bl. Com., 351, 388, 404; 6 Geo. 4, c. 50, s. 60. It should be kept in mind 
 that during all the period the attaint was the only remedy for a false verdict, i. e . , 
 down to 1665, the jury could find a verdict upon their own knowledge of the fact 
 in issue. 
 
 23 Bright v. Eynon, 1 Burrow, 390, 394; 3 Bl. Com., 388. 
 
 24 See note 57, infra. 
 
 25 3 Bl. Com., 392. 
 
NEW TRIALS AND SEVENTH AMENDMENT 271 
 
 to, re-examine the evidence on which the jury found their 
 verdict. 26 If, on such re-examination of the evidence, the 
 court in banc found the verdict was a false verdict against 
 the weight of the evidence, all the court in banc could 
 do was to set aside the verdict and order a new trial; 
 it had no power, as the jury in attaint had, to set the fact 
 right, by affirmatively finding the fact different from the 
 finding of the jury, substituting its own finding for the 
 finding of the jury, and entering judgment thereon. The 
 whole of the judicial power of the court in banc, on a 
 motion for a new trial on the ground the verdict was a 
 false verdict against the weight of the evidence, was 
 negative and corrective only, i. e., to order a new trial by 
 another jury; the court in banc had no affirmative judicial 
 power to set the fact right by reversing the verdict of the 
 jury and substituting its own finding of fact in the place 
 of the verdict of the jury. As Lord Mansfield said in 1757 
 in Bright v. Eynon, where court and counsel, as the re- 
 porter tells us, "went very much at large into the propriety 
 and rise of granting new trials," the fixed rule was: 
 
 "A general verdict can only be set right by a new trial." 
 
 And the reason of the rule was this : if the court in banc 
 had judicial power on a motion for a new trial to set 
 aside a false verdict right by the mode of setting the ver- 
 dict aside, finding the fact for itself, substituting its own 
 finding of fact in the place of the verdict of the jury, and 
 
 26 To harmonize the new judicial power to correct a false verdict by ordering 
 a new trial with the rule allowing the jury to find a verdict upon their own know- 
 ledge — which rule perdured an amazingly long time after the beginning (Thayer, 
 Evidence, 90-119; P. & M. Hist, of Eng. Law, 2d Ed., 627-8) of the modern 
 practice of producing evidence in open court, gradually, and finally somewhere 
 between 1700 and 1750, tapering off into the present rule allowing a jury to use 
 their "general experience" — the English trial judges adopted the practice of 
 interrogating the jury touching their reasons for their verdict, and reporting to 
 the court in banc on the motion for a new trial, a practice employed often by 
 Lord Holt, who died in 1710, but now, of course, obsolete. Thayer, Evidence, 
 170-174. 
 
272 CONSTITUTIONAL LAW 
 
 entering judgment thereon, a motion for a new trial on 
 the ground the verdict was a false verdict against the 
 weight of the evidence would be in substance and practi- 
 cal effect an appeal from the jury to a bench of judges 
 sitting in the court in banc for a trial de novo on the 
 evidence. No one supposed or claimed for one moment, 
 that the English common-law jury could exist under a 
 system of law that allowed an appeal from the verdict 
 of a jury to a bench of judges with affirmative judicial 
 power to find the fact in issue different from the finding 
 of the jury, albeit on the same evidence. 27 
 
 As the Supreme Court of the United States has said 
 over and over again, in cases cited by Van Devanter, J., 
 this rule of the English common law — "A general ver- 
 dict can only be set right by a new trial" — was incor- 
 porated into the Seventh Amendment by reference to 
 "the rules of the common law," as constitutionally pre- 
 scribed absolutely necessary and indispensable means 
 to attain the constitutionally prescribed end of preserving 
 the right of trial by jury in the federal courts. The means 
 prescribed prevented federal judges, trial and appellate, 
 from affirmatively finding any material fact found by a 
 jury different from the finding of the jury. And the 
 incorporation of this rule of the English common .law 
 into the Seventh Amendment in that way and for that 
 purpose made it an expressed constitutional limitation 
 on the federal legislative and judicial power, rendering 
 Congress incapable of giving, and federal judges incapable 
 of receiving, affirmative judicial power to set a false ver- 
 
 27 Bright v. Eynon, 1 Burrow, 390; 3 Bl. Com., 387-393. 
 
 The distinction, and the practical constitutional importance of it, between 
 negative and corrective judicial power to undo wrong, and affirmative judicial 
 power to do right and justice, is familiar under the Fourteenth Amendment, and 
 throughout our whole system of constitutional law, state and federal. The 
 distinction under the Fourteenth Amendment is explained clearly by Bradley, 
 J., in the Civil Rights Cases, 109 U. S., 3. 
 
NEW TRIALS AND SEVENTH AMENDMENT 273 
 
 diet right by the mode of setting the false verdict aside, 
 finding the material fact different from the finding of the 
 jury, substituting the judicial finding of fact for the 
 verdict of the jury, and entering a judgment thereon. 
 And this is made plain by the particular reason for the 
 proposal and adoption of the Seventh Amendment re- 
 ferred to by Van Devanter, J . , which was to cut away the 
 legislative power of Congress to give affirmative judicial 
 power to the Supreme Court in the exercise of its appel- 
 late jurisdiction to find a material fact different from 
 the finding of a jury, which legislative power was granted 
 to Congress by Article 3, Section 2, Clause 2, of the Con- 
 stitution, saying: 
 
 "In all other cases before mentioned, the Supreme Court shall 
 have appellate jurisdiction, both as to law and fact, with such 
 exceptions and under such regulations as Congress shall make." 28 
 
 In this case the Circuit Court of Appeals, which is, of 
 course, a court of the United States within the meaning of 
 the second clause of the Seventh Amendment, did not 
 re-examine the evidence on which the jury found their 
 verdict, on a motion for a new trial; and as a matter 
 of existing practice and procedure in the federal courts, 
 the Circuit Court of Appeals could not do so, for the rule 
 of the English common law denying power to any court 
 of error or appeal to review the ruling of the court in 
 banc on a motion for a new trial, prevails in the federal 
 courts, the federal trial judge occupying the place of the 
 English court in banc on a motion for a new trial; and a 
 motion for a new trial is addressed to the discretion of the 
 federal trial judge exclusively, as it was addressed to the 
 discretion of the English court in banc exclusively. 29 
 
 28 228 U. S-, on p. 377; Story, Constitution, Sees. 1763-1768; Watson, Consti- 
 tution, pp. 1490, 1499. 
 
 29 14 Ency. of PI. and Pr., 955. 
 
274 CONSTITUTIONAL LAW 
 
 The Circuit Court of Appeals re-examined the evidence 
 on which the jury found their verdict in this case on a 
 writ of error on a bill of exceptions to the ruling of the 
 trial judge refusing to direct a verdict for the defendant 
 on the material issue of fact of waiver vel non. That 
 kind of a re-examination of a fact tried by a jury, if 
 known to the English common law at all at the time of the 
 proposal and adoption of the Seventh Amendment, cer- 
 tainly was not familiar in practice in the English courts 
 and was not familiar to the framers of the Seventh Amend- 
 ment as an English common-law practice. The practice of 
 moving the trial judge for a directed verdict on a material 
 issue of fact and reviewing his ruling on a bill of excep- 
 tions setting forth all the evidence in a court of error or 
 appeal, became familiar in practice in the English courts 
 after the proposal and adoption of the Seventh Amend- 
 ment. 30 It is established that the practice of directing a 
 
 30 If, before the proposal and adoption of the Seventh Amendment, an English 
 trial judge could entertain a motion for a directed verdict on a material issue 
 of fact and his ruling could be reviewed by a court of error or appeal on a bill of 
 exceptions setting forth all the evidence, it is hard to understand the attempt, 
 hereinafter explained, to revive and extend the demurrer to evidence in Cocksedge 
 v. Fanshaw, 1 Doug., 119, in 1779; in Mason v. Lickborrow, 1 H. Bl., 357, 2 T. R., 
 63, 2 H. Bl., 211, in 1787-1793, and in Gibson v. Hunter, 2 H. Bl., 187, in 1791-3. 
 In Gibson v. Hunter in 1793, Lord Eyre laid it down pointedly on p. 205: "The 
 admissibility of the evidence being established, the question how far it conduces 
 to the proof of the fact which is to be ascertained, is not for the Judge to decide, 
 but for the jury exclusively; with which Judges interfere in no case, but where 
 they have in some sort. substituted themselves in the place of the jury in attaint 
 upon motions for new trials." Appleton v. Sweetapple, 3 Dougl., 137, in 1782, 
 where there were five trials and five verdicts for the plaintiff, was an apt case for 
 a motion for a directed verdict, but none was made. In Macbeth v. Haldimand, 
 1 T. R., 172, 175, in 1786, cited by Johnson, J., dissenting, in Elmore ». Grymes, 
 1 Pet., 469, Buller, J., gave what looks very much like a peremptory direction to 
 find a verdict for the defendant on a material issue of fact, but he was challenged 
 by counsel on a motion for a new trial before the court in banc, and was sustained 
 solely on the ground all the evidence was documentary. Compare the demurrer 
 to evidence case of Middleton v. Baker, Cro. Eliz., 752, in 1600. In 1824 in 
 Bulkeley v. Butler, 2 B. & C, 434, on error to the Common Pleas, and in 1826 in 
 Viner v. Corporation of Reading, 1 Y. & J., 4, on error to the King's Bench, the 
 practice of moving the trial judge for a directed verdict on a material issue of 
 
NEW TRIALS AND SEVENTH AMENDMENT 275 
 
 verdict in federal courts in a case turning on a. question 
 of fact is consistent with the Seventh Amendment, and 
 on principle there can be no question at all that it is. 31 
 
 fact and reviewing the ruling on a bill of exceptions setting forth all the evidence 
 was sustained, but evidently was regarded as new and doubtful. In Bulkeley v. 
 Butler, Best, C. J., fell into a harmless anachronism if he really thought he found 
 anything in Gibson v. Hunter to remove his doubt. 
 
 The opinion of Washington, J., in Kohne v. Insurance Co., 1 Wash. C. C, 123, 
 in 1804, and the dissenting opinion of Johnson, J., in Elmore v. Grymes, 1 Pet., 
 469, in 1828, indicate the practice of directing a verdict on a material issue of fact 
 began rather early in some of the federal trial courts, but evidently the majority 
 of the Supreme Court viewed the practice with suspicion in 1828 in Elmore v. 
 Grymes. In 1794, the charge of Jay, C. J., to the jury in Georgia v. Brailsford, 
 3 Dallas, 1 — a jury trial in the Supreme Court under its original jurisdiction where 
 a state is a party, and seemingly a proper case for a directed verdict — shows 
 none of the judges of the Supreme Court of that day knew anything about the 
 practice of directing a verdict on a material issue of fact. See the comments on 
 the case by Harlan, J., for the court, and Gray, J., dissenting, in Sparf and Hansen 
 v. United States, 156 U. S., 51, 64, 154. The practice of directirg a verdict in 
 federal courts on a material issue of fact was sustained in 1850 in Parks v. Ross, 
 11 How., 362, 373; and the last attack on the practice at the bar of the Supreme 
 Court was in Pleasants v. Fant, 22 Wall., 116, in 1874. 
 
 31 The argument, finally rejected in Pleasants v. Fant, 22 Wall., 116, in 1874. 
 that the practice of directing a verdict on a material issue of fact is repugnant to 
 the Seventh Amendment, flows from the rule adopted in 1828 in Elmore v. Grymes, 
 1 Pet., 469, that a federal trial judge has no power to nonsuit a plaintiff for want 
 of evidence to support his case. In Coughran v. Bigelow, 164 U. S., 301, Shiras, 
 J., said this rule was not founded in the constitutional right of trial by jury 
 under the Seventh Amendment. That is literally true; but the opinion of 
 Marshall, C. J., in Elmore v. Grymes does expressly found the rule in the so- 
 called common-law right of a plaintiff to have the verdict of a jury for him or 
 against him. This common-law right to the verdict of a jury flowed naturally 
 and properly from the rule allowing the jury to find a verdict upon their own 
 knowledge. When that rule fell, the common-law right to the verdict of a jury 
 ought to have gone down with it; but it did not. The common-law right to the 
 verdict of a jury became and was, however, before the proposal and adoption of 
 the Seventh Amendment, a merely abstract, theoretical, verbal right without 
 body or substance ; the consent of the plaintiff to a nonsuit was a fiction in the 
 case of a normal plaintiff, because of the practical operation of the judicial power, 
 introduced in 1665, to grant a new trial when the verdict was a. false verdict 
 against the weight of the evidence, so that only a foolish plaintiff would insist on 
 the verdict of a jury for him or against him when the trial judge strongly recom- 
 mended consent by the plaintiff to a nonsuit for want of evidence to support his 
 case, for if the plaintiff happened to get a verdict it was certain the court in 
 banc would order a new trial. But when the Seventh Amendment was proposed 
 and adopted a foolish plaintiff in an English court did have a so-called common- 
 
276 CONSTITUTIONAL LAW 
 
 When, on a motion for a directed verdict in a federal 
 trial court in a case turning on a question of fact, the 
 federal trial judge grants the motion, and directs a verdict 
 for one party or the other on the material issue of fact, 
 and his ruling is reversed, either by himself on a motion 
 for a new trial or on a motion for judgment, or by a federal 
 court of error or appeal on a bill of exceptions, the reversing 
 judgment cannot be anything but a negative, corrective 
 judgment ordering a trial by jury, because there never 
 was any trial by jury; when the federal trial judge is re- 
 versed for erroneously directing a verdict on a material 
 issue of fact, it follows that he wrongfully denied trial by 
 jury in contravention of the first clause of the Seventh 
 Amendment, the second clause having no application 
 to the case as explained in note 13, supra. In the rather 
 exceptional case turning on a question of fact where the 
 trial judge directed a verdict on the material issue of fact 
 for one party, when he ought to have directed it for the 
 other party, the reversing judgment may be a judgment 
 for the other party and need not order a trial by a jury, 
 i. e., so far as the Seventh Amendment is concerned. 32 
 
 law right to the verdict of a jury for him or against him, even though he produced 
 not one jot or tittle of evidence to support his case. It is decided, and obviously 
 correctly decided, that this so-called common-law right of a foolish plaintiff in an 
 English court before 1789-1791 to the verdict of a jury, is not the standard 
 and measure of the constitutional right of trial by jury in the federal courts under 
 the Seventh Amendment. Coughran v. Bigelow, 164 U. S., 301. 
 
 The word "nonsuit" is left out of the present English practice, and the trial 
 judge has power to enter judgment for the defendant, if the plaintiff does not 
 produce any evidence or enough evidence on the trial to warrant a verdict in his 
 favor, if the trial judge thinks justice to the plaintiff does not require him to give 
 the plaintiff a new trial or to allow the plaintiff to discontinue his action. Fox v. 
 Star Newspaper Co. [1899], A. C, 15; O. 26, i. 4, Matthews, White, and Stringer, 
 Annual Practice, 1912, Part 1, p. 404, and notes. 
 
 32 In Paquin, Limited, ». Bauclerk [1906], A. C, 148, the jury could not agree 
 on a verdict; the trial judge entered judgment for the plaintiff; the Court of 
 Appeal reversed the judgment for the plaintiff and entered judgment for the 
 defendant; the House of Lords divided two to two, though all agreed it was not 
 a case for another trial, but was a proper case for judgment for the plaintiff or for 
 
NEW TRIALS AND SEVENTH AMENDMENT 277 
 
 And when, on a motion for a directed verdict in a federal 
 trial court in a case turning on a question of fact, the 
 federal judge refuses to direct a verdict on the material 
 issue of fact, and the jury return a verdict finding the 
 fact by the exercise of their own judgment on the evi- 
 dence, and the ruling of the trial judge refusing to direct 
 a verdict is reversed, either by himself on a motion for 
 a new trial or for judgment or by a federal court of error 
 or appeal on a bill of exceptions, the second clause of the 
 Seventh Amendment applies, and the reversing judgment 
 of the federal trial judge or of the federal court of error or 
 appeal can be only a negative, corrective judgment order- 
 ing a new trial, and cannot be an affirmative judgment 
 finding the material fact in issue different from the find- 
 ing of the jury, because the case falls within the words 
 and reason of the rule of the English common law incor- 
 porated into the Seventeenth Amendment as a consti- 
 tutional limitation on the federal legislative and judicial 
 power, forbidding any federal tribunal but another jury 
 on a new trial to set a false verdict right by reversing the 
 verdict, finding the material fact in issue different from 
 the finding of the jury, substituting the judicial finding 
 for the verdict of the jury, and entering judgment 
 thereon. 
 
 A motion in a federal trial court for a directed verdict 
 in a case turning on a question of fact simply takes up the 
 old ground of a motion for a new trial, viz., the verdict is 
 a false verdict against the weight of the evidence and 
 transfers it from the motion for a new trial after the 
 verdict to the motion for a directed verdict before the 
 verdict; the motion for a directed verdict on a material 
 
 the defendant on the evidence without any verdict, directed or found by the jury. 
 It seems to me the case really turned on a question of law; but some of the judges 
 thought it turned on a question of fact; that, however, makes no difference with 
 reference to the power to enter judgment in that case without any verdict directed 
 or found. 
 
278 CONSTITUTIONAL LAW 
 
 issue of fact shifts the old acknowledged judicial power 
 over false verdicts, bringing it into play and action 
 before the verdict, as well as after the verdict on a motion 
 for a new trial, thus making the old acknowledged judicial 
 power over false verdicts more effective, by allowing it to 
 operate before the verdict by way of prevention as well 
 as after the verdict by way of cure. 33 When, therefore, a 
 federal trial judge refuses to direct a verdict in a case 
 turning on a question of fact, and the jury find a verdict 
 of their own on the material issue of fact in favor of the 
 party having the onus of proof, a motion for judgment non 
 obstante veredicto addressed to the trial judge after the 
 verdict, and a writ of error or appeal on a bill of exceptions 
 to the ruling of the trial judge, are in substance nothing 
 but motions for a new trial, addressed in the one case to 
 the trial judge and in the other case to the court of error 
 or appeal, on the ground the verdict is a false verdict 
 against the weight of the evidence ; and neither a federal 
 trial judge nor a federal court of error or appeal can make 
 an affirmative finding of the material fact in issue different 
 from the finding of the jury, substitute the judicial finding 
 of fact in the place of the verdict of the jury, and enter 
 judgment thereon, without breaking the constitutional 
 limitation on the federal judicial power declared by the 
 second clause of the Seventh Amendment, that another 
 jury on a new trial is the only tribunal to set a false ver- 
 dict right by finding the material fact in issue different 
 from the finding of the jury. To say that a motion for 
 "judgment" can call into existence federal judicial power 
 that cannot be called into existence by a motion for a "new 
 trial," is to inject formalism into the Seventh Amendment, 
 worse than the formalism of the early Roman law, typical 
 of all formalism, whereby a plaintiff claiming damages for 
 
 33 Pleasants v. Fant, 22 Wall., 116. 
 
NEW TRIALS AND SEVENTH AMENDMENT 279 
 
 wrongfully cutting down his "vines" had to ask for dam- 
 ages for wrongfully cutting down his "trees." 34 
 
 The paramount, controlling, and only reason for incor- 
 porating into the Seventh Amendment as an expressed 
 constitutional limitation on the federal legislative and 
 judicial power the rule of the English common law, that 
 a false verdict can be set right only by another jury on a 
 new trial, was the political, governmental, and consti- 
 tutional one of preserving inviolate a particular specified 
 tribunal, i. e., the jury. Substance and not form is the 
 
 34 Gaius, Institutes, 4, 2, 11 ; 4, 7, 30. 
 
 In 1830, in Parsons ». Bedford, 3 Pet. 432, 448, Story, J., and in 1887, in Metro- 
 politan R. Co. v. Moore, 121 U. S., 558, 573, Matthews, J., obiter expressed 
 doubt of the power of Congress under the Seventh Amendment to authorize an 
 appellate review of the ruling of a federal trial judge granting or refusing a new 
 trial. The doubt seems without solid foundation. According to the rules of 
 the English common law of the Seventh Amendment, under the English nisi 
 prius system, a motion for a new trial was heard by the court in banc, and was 
 in substance an appellate review by the court in banc of the trial judge's conduct 
 of the trial and of the verdict of the jury. Under the court-reorganization and 
 procedural reforms begun by the English Judicature Act of 1873, under 1890 a 
 motion for a new trial in the High Court went to a Divisional Court composed of 
 two judges other than the trial judge; since 1890 a motion for a new trial in the 
 High Court goes to the Court of Appeal, which treats the motion as an appeal. 
 Allcock v. Hall [1891], 1 Q. B., 442; Judicature Act of 1890, 53 and 54 Vict., 
 c. 44, s. 1; 9 Encyc. of the Laws of England, 2d ed., 648; 1 id., 394; 13 id., 726. 
 The established federal practice of reviewing on a bill of exceptions setting forth 
 all the evidence the ruling of a federal trial judge directing or refusing to direct 
 a verdict on a material issue of fact is not reconcilable with the above constitu- 
 tional doubt. 
 
 On the basis of an obiter dictum of Gray, J., in Capital Traction Co. v. Holf, 
 174 U. S., 1, 13, 14 in 1898, the Massachusetts Supreme Court in 1911 gave an 
 advisory opinion to the state senate, telling them "the power on the part of the 
 [trial] judge to set aside the verdict for good cause, is part of his [i.e. the party's] 
 right to a trial by jury, secured to him by the Constitution of the Commonwealth." 
 207 Mass., 606. That may be correct under the local constitutional law of Massa- 
 chusetts concerning jury trial and court organization, but it is not correct, as it 
 seems to me for the reasons stated, under the rules of the English common law of 
 the Seventh Amendment. The superior good sense of the English practice, shut- 
 ting the trial judge out of the motion for a new trial, is apparent; any man does 
 better work, whatever his task may be, when he knows another man is going to 
 review it. Legislation abolishing new trials might encounter the due-process 
 clause as being arbitrary; but it is not easy to see how it could encounter the 
 usual jury-trial clause. 
 
280 CONSTITUTIONAL LAW 
 
 watchword of Hughes, J., and his associates composing 
 the minority for the construction and application of the 
 Seventh Amendment. The substance of the Seventh 
 Amendment is itself form. The Supreme Court of the 
 United States has adjudged that trial by jury of issues 
 of fact in common-law cases is but a form and mode of 
 procedure, falling outside Burke's "substance of original 
 justice," for justice to the party, and every other kind 
 of justice, in so far as courts are permitted to have any- 
 thing to do with any other kind of justice, can be done 
 and always has been done everywhere just as well and 
 perhaps better without the jury. 35 The substance of the 
 jury-trial form and mode of procedure prescribed by the 
 Seventh Amendment is the tribunal, i. e., the jury. 
 Unless it can be demonstrated affirmatively that federal 
 judicial power to find a material fact different from the 
 finding of a jury, to substitute the judicial finding for 
 the verdict of the jury, and to enter judgment thereon, 
 tends necessarily to better preserve the jury in common- 
 law cases in the federal courts, then such federal judicial 
 power cannot exist under the Seventh Amendment; it 
 is not enough to demonstrate negatively that such 
 federal judicial power does not tend necessarily to 
 destroy the jury in the federal courts. 36 
 
 35 Hurtado v. California, 110 U. S., 516, 532; Twining v. New Jersey; 211 U. S., 
 78, 111, 112; Dorr v. United States, 195 U. S., 138, 148, 149. 
 
 36 The Seventh Amendment is part and parcel of Jefferson's general program 
 to establish a democracy in the United States on the principles of the Declaration 
 of Independence and the Virginia Religious Liberty Statute. That Jefferson 
 was under no illusion touching the efficacy of the Seventh Amendment to pre- 
 serve the jury in the federal courts is made plain by his correspondence with 
 Madison, set forth in 2 Watson, Constitution, pp. 1357-1362, concerning the 
 efficacy of a Bill of Rights. Jefferson knew as well as Bentham and other illumi- 
 nati that a bill of rights is "illogical;" but he also knew what they did not under- 
 stand, viz., the principle historically elucidated by Montesquieu in his"Spirit of 
 Laws" and "Grandeur of the Romans," that good laws printed on twelve tables 
 and hung up in the forum so low that every man can read them without getting 
 a ladder, have the most powerful reactive effect to make a people democratic and 
 
NEW TRIALS AND SEVENTH AMENDMENT 281 
 
 It is perhaps true since the practice of directing a ver- 
 dict on a material issue of fact, an order for a new trial 
 on the ground the trial judge ought to have directed a 
 verdict on the material issue of fact against the party 
 having the onus of proof, especially when the order comes 
 from a court of error or appeal, makes the new trial by 
 jury in that case somewhat more of a form than it was 
 before the practice of directing a verdict on a material 
 issue of fact, for the party having the onus of proof must 
 produce more evidence on the new trial to get past the 
 trial judge, who, in the absence of more evidence On the 
 new trial, must direct a verdict against the party having 
 the onus of proof. Nevertheless, affirmative federal 
 judicial power after the verdict of a jury finding a material 
 fact, whether in the federal trial judge or in a federal 
 court of error or appeal, to find a material fact in issue 
 different from the finding of a jury, strikes directly at and 
 weakens the position of the trial judge before the verdict, 
 impairing his responsibility and consequent authority 
 and dignity, and reaches the twelve men in the jury-box. 
 Changes in modes of procedure in the courts slighter on 
 their faces than this one have in the course of years 
 produced important silent constitutional revolutions, as 
 is shown frequently in Pollock and Maitland's History 
 of English Law down to Edward I. The nature of judicial 
 
 great, by molding their minds and thoughts to correct ideals and guiding and 
 controlling their political and civil conduct for centuries after the men who 
 wrote the laws are dead. 
 
 It must always be borne in mind that the Seventh Amendment does not rest 
 upon any idea that a jury is the most competent and efficient tribunal devisable 
 by the wit of man for the decisions of questions of fact. There is a passage some- 
 where in Madison's Journal of the Federal Convention of 1787 showing that 
 Elbridge Gerry, criticized for being illogical, turned on his critics and wanted to 
 know what logic had to do with a constitution ; and asked them if they supposed 
 it was logic that established the jury. And the common observation may be 
 recalled, that the English people and the American people show by their laws, 
 especially by their constitutional laws, they regard logic as a badge of slavery, 
 unworthy of a free man. 
 
282 CONSTITUTIONAL LAW 
 
 power, as Jefferson said, makes it work like gravity, 
 always silently advancing and never receding; and it is 
 natural for every man precipitated on to the bench to 
 think he is able to administer the maxim, "boni judicis 
 est ampliare jurisdictionem," as well as Lord Mansfield. 
 But the framers of the Seventh Amendment and the 
 people who adopted it did not think so, when it comes to 
 preserving the jury in the federal courts against any 
 further expansion of the federal judicial power into the 
 province of the jury; and they expressed their thought 
 that the American people cannot hope for federal judges 
 more faithful to their trust than the twelve apostles; 
 and they declared their sovereign will, cutting away 
 the possibility of any affirmative federal judicial power 
 to find a material fact different from the finding of a 
 jury. 
 
 If the expansion of existing negative and corrective 
 federal judicial power to grant a new trial for want of 
 evidence enough to support the verdict of a jury finding 
 a material fact, into affirmative federal judicial power to 
 find the material fact different from the finding of the 
 jury, is only an insignificant change in a matter of form, 
 of no practical constitutional import when put into actual 
 operation in the federal courts, it is pertinent to ask 
 why the advocates of this expansion of federal judicial 
 power spend their time and mentality to promote it, and 
 become rather hysterical when the majority of the Su- 
 preme Court of the United States declare such expansion 
 of the federal judicial power invades the province of the 
 jury and encounters the ban of the second clause of the 
 Seventh Amendment. The gladsome light of juris- 
 prudence has nothing to do with the question whether 
 the Seventh Amendment confides the final decision of 
 material issues of fact in common-law cases in the federal 
 courts to a jury or to judges. And that was the thought 
 
NEW TRIALS AND SEVENTH AMENDMENT 283 
 
 of the Roman jurisconsult when he told the client to 
 take his case to Cicero because it turned on a question 
 of fact. 37 
 
 The minority put their dissent on the proposition, that 
 the case before the court turned on a question of law, not 
 
 37 23 Am. Bar Assn. Rep., 800. After giving due weight to the improved and more 
 exact mode of stating the rule concerning judicial power to determine the evidence 
 on which a jury may act (see Bright v. Eynon, 1 Burrow, 390, 395, 397; Metro- 
 politan R. Co. v. Jackson, 3 App. Cas., 193; Metropolitan R. Co. v. Wright, 11 
 App. Cas., 152; Randall v. B. and O. R. Co., 109 U. S., 478, 482) and to the prac- 
 tice of directing a verdict on a material issue of fact, no advocate of affirmative 
 federal judicial power after a verdict to find a material fact different from the 
 finding of a jury in a case where the trial judge ought to have directed a verdict 
 against the party having the onus of proof, can go further than Loreburn, L. C, 
 in Paquin, Ltd., v. Beauclerk [1906], A. C, 148, 161, viz.: "The power is not un- 
 attended by danger [i. c, to the jury and the party]. But if cautiously exercised 
 it cannot fail to be of value" — and one must go further than that to establish 
 the right of such affirmative judicial power to exist under the Seventh Amend- 
 ment. The extent of the danger to the jury from such affirmative judicial power 
 is not a matter of abstract speculation. The power exists in some of the states, 
 as, e. g., Pennsylvania and Illinois, and there can be no question it is at once a 
 consequence and an additional contributing cause of the visibly decreasing pro- 
 fessional and lay respect for the verdict of a jury in state courts. 
 
 An order for a new trial in a case turning on a material fact found by the verdict 
 of a jury is not an "idle ceremony" in the sense of Miller, J., in Pleasants v. Fant, 
 22 Wall., 116, 122. Miller, J., was there considering the old acknowledged 
 judicial power on a motion for a new trial to determine the evidence on which a 
 jury may act by finding a verdict for the party having the onus of proof, and with 
 the question of the most effective way of employing the power, whether only 
 after the verdict on a motion for a new trial, or also before the verdict on a motion 
 for a directed verdict. That is a widely different question from the one whether 
 an unacknowledged non-existing judicial power after the verdict to find a material 
 fact different from the finding of a jury can exist at all under the Seventh Amend- 
 ment. 
 
 It is said such judicial power, limited to cases where the trial judge ought to 
 have directed a verdict on a material issue of fact different from the one the jury 
 found, is only doing what the trial judge ought to have done before the verdict. 
 But it is impossible, after a verdict on a material issue of fact, to substitute either 
 the trial judge or a court of error or appeal in the place of the trial judge before 
 the verdict, as respects the exercise of the judicial power to determine the evidence 
 on which a jury may act. It must be remembered the common-law idea of a 
 court of error and the civil-law idea of a court of appeal, introduced into English 
 law by the ecclesiastical courts and the court of chancery, are fundamentally 
 different, incapable of "fusion" when it comes to the decision of questions of fact, 
 without abolishing the jury in common-law cases, or extending the jury to equity 
 cases. Pollock & Maitland, History of English Law, 2d Ed., 664, 668. Sec. 
 
284 CONSTITUTIONAL LAW 
 
 a fact. They do not deny the case turned on the question 
 of waiver vel non of the forfeiture of the insurance policy 
 sued on or that the question of waiver vel non was a pure 
 question of fact. What they say is, that the defendant 
 insurance company's motion for a directed verdict raised 
 
 24 of the federal Judiciary Act of 1789 brings out and declares the common- 
 law distinction, viz.: where the plaintiff below brings a writ of error, the court 
 of error sometimes can reverse and enter the judgment the trial court ought to 
 have entered; but when the defendant below brings a writ of error, the court of 
 error can only reverse. 2 Saunders, 6th Ed., lOlaa, lOlbb. 
 
 A favorite epigrammatic argument in favor of judicial power to find a material 
 fact different from the finding of a jury is that "the constitutional right of trial 
 by jury is not a constitutional right to two trials by jury." It is true two trials 
 by jury is not a constitutional right; but it is in the nature of a constitutional 
 necessity, unless new trials are abolished altogether. The Seventh Amendment 
 evidently views the judicial power to order a new trial by jury on a material 
 issue of fact as appropriate and adapted, if not absolutely and indispensably neces- 
 sary, for justice to the party by keeping the jury from exercising arbitrary power; 
 and declares a new trial by jury, and not by any other tribunal whatsoever, ab- 
 solutely and indispensably necessary to preserve the jury. 
 
 It is said an order for a new trial by jury in a case turning on a material issue 
 of fact is a temptation to the party having the onus of proof to commit perjury 
 on the new trial. It is, and always has been since the extension in 1665 of the 
 motion for a new trial to cure false verdicts, and is perhaps a greater temptation 
 to perjury to-day because of the motion for a directed verdict making it more 
 difficult to get past the trial judge. That argument goes only to the value or 
 utility of the judicial power in question, not to its constitutionality or existence. 
 The force of the argument as touching the practical value or utility of the power 
 is not apparent. No federal judge can act on that temptation-point without 
 altering the prayer "lead us not into temptation," i. c, to invade the province 
 of the jury, so as to read after the style of the Scribes and Pharisees, "lead them 
 not into temptation," i. e., to commit perjury on the new trial. And no federal 
 judge can act on that temptation-point in negligence cases for personal injuries — ■ 
 where most of the complaint about new trials by jury arises to-day — without 
 becoming a partisan of the defense, because the point as applied in such cases 
 savors of the self-styled superior righteousness of the syndicated defense of such 
 cases, ignoring the confessing and avoiding retort of the syndicated prosecution, 
 that the defense founded the original "school of perjury" and maintains better 
 schools. 
 
 Bierly, "Juries and Jury Trials in Pennsylvania," 286, says the chief advantage 
 of the Pennsylvania n. o. v. practice inures to defendants in negligence cases for 
 personal injuries; and the same is true of the Illinois appellate n. o. v. practice 
 hereinafter set forth. Negligence cases for personal injuries have long been a 
 strain on the judicial power, state and federal, in all large centers of population 
 in the United States; and this strain doubtless is the chief cause of the present- 
 day professional, not popular, demand for legislation giving the judges power after 
 
NEW TRIALS AND SEVENTH AMENDMENT 285 
 
 the question whether there was any evidence or enough 
 evidence on the question of waiver for a jury to act on by 
 finding a verdict for the plaintiff; and that question so 
 stated in terms of evidence was a question of law, not of 
 fact, in the case before the court, and was the question 
 
 a verdict to find a material fact different from the finding of a jury. It is easy 
 now, however, to see that logically indefensible verdicts for the plaintiff in such 
 cases have long voiced and now voice the growing feeling of the community against 
 the judge-made law of negligence, especially between employer and employee. 
 In 1911, in "The Genius of the Common Law," 102-105, Sir Frederick Pollock 
 joined the populace and threw his brick at the "fellow-servant doctrine." In 
 voicing that feeling the jury is only performing its historic constitutional function 
 to make trouble inside the courts whenever existing established law is ceasing, 
 or has ceased, to be a reasonably correct expression of the community's sense 
 of right. Legislators are not always as responsive to the community's change 
 of view touching the righteousness of existing law as the theory of representative 
 government supposes, and as judges doubtless would like to have them; and it 
 goes without saying judges must use every ounce of the judicial power to secure 
 the proper enforcement of existing, lawfully established law, until the legislature, 
 however dilatory, sees fit to change it; but at the same time it is also the supreme 
 duty of judges to preserve the jury inviolate, even at the expense of what every 
 right-minded judge must regard as the proper enforcement of existing law. When 
 the jury persistently and wilfully use their power to decide questions of fact to 
 break the force of this or that rule of existing lawfully established law, it cannot 
 be said to-day, in the federal courts and in some of the state courts at least, the 
 jury are doing anything legally wrong, because, since the practice of directing a 
 verdict on a material issue of fact, the verdict of a jury is not legally assailable 
 as a false verdict for want of evidence enough to support it; the only thing legally 
 assailable is the act of the trial judge before the verdict in letting the evidence go 
 to the jury for the jury's judgment. However strongly any judge, trial or appel- 
 late, may personally feel the jury ought to have found a verdict different from the 
 one they did find, yet the judge, qua judge, has no lawful right to set their verdict 
 aside as a false verdict, unless the evidence is such that the trial judge erred in not 
 directing a verdict different from the one the jury found. And when the jury 
 persistently and wilfully find illogical verdicts to break the force of this or that 
 rule of law, they clearly are within their constitutional power; and the law wisely 
 denies power to the judges to inflict any punishment on jurors for not being as 
 logical as the judges would like to have them. And such wilfully illogical ver- 
 dicts may not be wrong in any moral sense, or in the broad constitutional sense 
 that they bode evil to the state; and they may bode good to the state, for they 
 may be and very likely are only a legal and constitutional and proper mode of 
 warning the legislators there is something wrong with the law and that it ought 
 to be modified or changed completely. No institution has ever been developed 
 anywhere better adapted and more efficient than the jury of the English common 
 law to check and stimulate legislators and judges, to prevent the exercise of arbi- 
 trary power by them, to render their exercise of arbitrary power impotent, and 
 
286 CONSTITUTIONAL LAW 
 
 of law, not of fact, on which the case turned. The sub- 
 stance of the minority's view is in the passage of their 
 opinion set forth in the margin. If the minority are wrong 
 on that proposition, then their whole dissenting opinion 
 falls to the ground as not touching the facts of the case 
 the court had to decide. 38 
 
 to keep the law from getting too far and remaining too long out of harmony with 
 society. But it is time, if it is not too late, for the friends of the jury in the legal 
 profession and in the legislatures of the several states to begin to realize that we 
 cannot have the jury of the English common law, and we cannot maintain through- 
 out the ranks of the legal profession and throughout the community, the tradi- 
 tional common-law respect for the verdict of a jury under a system of procedure 
 that puts No. 13, i. e., the trial judge, to sleep before the verdict on a material 
 issue of fact, and invites him to pass his work up to a court of error or appeal with 
 power to do his work for him after the verdict as his substitute. 
 
 38 "What, then, is this case? It was an action on a policy of insurance. It 
 was triable by jury, but the province of the jury was to decide questions of fact, 
 not questions of law. This court concludes, as did the Court of Appeals, that 
 'the evidence did not admit of a finding that the policy was in force at the time 
 of the insured's death.' In other words, after the plaintiff had had full oppor- 
 tunity to present her case and to show facts for the consideration of the jury, 
 and the case on both sides had been closed, it appeared that there were no 
 facts whatever upon which the jury would be warranted in finding a verdict in her 
 favor. Hence (says the court) the defendant was entitled to a direction of a 
 verdict in its favor as it requested. Had the trial court rightfully applied the law, 
 the case would properly have ended in a final judgment for the defendant. But 
 the trial court erred in the law, and consequently the jury found a verdict for 
 the plaintiff — not upon facts, but without any facts upon which they could 
 rest it. Now it is said that a statute which permits the trial court or the appellate 
 court, after that wrongful verdict, to correct the error, and in so doing not only 
 to set aside the verdict but to direct the entry of the judgment to which the 
 defendant in law was entitled is, as applied to a case in the federal court, contrary 
 to the constitution. 
 
 "The Seventh Amendment provides that 'no fact tried by a jury shall be other- 
 wise re-examined in any court of the United States, than according to the rules of 
 the common law.' But, wherein has any matter of fact tried by a jury been re- 
 examined? Concededly, there was no fact to be tried by a jury; the case as 
 made was barren of any such fact ; and there being none, there has been no re- 
 examination of it. How can it be said the Circuit Court of Appeals has determined 
 the facts or has passed upon issues of fact? Whether there was any evidence for 
 the jury was a question of law. The trial court, in wrongly deciding it, did not 
 convert it into a question of fact ; it was not altered by the verdict, but remained 
 the same in its nature — a question for the determination of the court. That, it 
 seems to me, is the substance of the matter, and all else is form and procedure." 
 228 U. S., on pp. 400, 401, 402. 
 
NEW TRIALS AND SEVENTH AMENDMENT 287 
 
 The majority do not expressly challenge that proposi- 
 tion of the minority, but seemingly admit it to be true; 
 and on it as a basis the majority seemingly declare that, 
 in a case turning on a pure question of law, as well as in 
 a case turning on a pure question of fact found by the 
 verdict of the jury, the Seventh Amendment prohibits 
 federal judicial power to enter judgment on the evidence 
 non obstante veredicto. 
 
 On the general question, whether the Seventh Amend- 
 ment allows federal judicial power in a case turning on a 
 pure question of law such as rules the case to enter judg- 
 ment on the evidence non obstante veredicto, the minor- 
 ity are right, and the majority are wrong. The reason 
 is, that the verdict of a jury in a case turning on a pure 
 question of law such as rules the case ordinarily does 
 not find any material fact; and when it comes to enter- 
 ing judgment for one party or the other on the pure 
 point of law that rules the case, the verdict of the jury 
 ordinarily may be disregarded without any affirmative 
 judicial finding of any material fact different from the 
 finding of the jury. A case turning on a pure question 
 of law falls within the letter and reason of the rules of the 
 English common law allowing judicial power to enter 
 judgment on the pleadings non obstante veredicto, for 
 the plaintiff on a motion for judgment on the pleadings 
 non obstante veredicto, when the jury find an immaterial 
 fact in favor of the defendant; and for the defendant 
 on a motion in arrest of judgment on the pleadings, when 
 the jury find an immaterial fact in favor of the plaintiff. 
 The difference between the two cases is, that in the case 
 of judgment for the plaintiff on the evidence non obstante 
 veredicto, as in the case of judgment for the plaintiff on 
 the pleadings non obstante veredicto, the judgment ordi- 
 narily must provide for a jury of inquiry to assess the 
 plaintiff's damages if they are unliquidated, as the assess- 
 
288 CONSTITUTIONAL LAW 
 
 ment of damages is a function of the jury; and when 
 the plaintiff claims unliquidated damages the evidence 
 is not often such as to warrant a directed verdict for the 
 plaintiff on the point of damages. 39 
 
 The distinction, with reference to federal judicial 
 power under the Seventh Amendment to enter judgment 
 on the evidence non obstante veredicto, between a case 
 turning on a pure question of law and one turning on a 
 pure question of fact, is well illustrated by two cases 
 relied on by the minority, Central Transportation Co. 
 v. Pullman's Car Co., 40 and Oscanyan v. Winchester Arms 
 Co., 41 the cases having no application to the case before 
 the court, being correctly decided and the opinions clear 
 and plain on their faces, not calling for the majority's 
 labored method of distinguishing them. 
 
 In Central Transportation Co. v. Pullman's Car Co., 
 the action was begun in a Pennsylvania federal trial 
 court on a lease made by the plaintiff corporation to the 
 defendant corporation; the defense was the pure point 
 of law that the lease sued on did not exist as a matter of 
 law, not as a matter of fact, because ultra vires the 
 plaintiff corporation. Counsel for the defendant raised 
 and presented the question of the validity of the lease 
 sued on by a motion at the close of the plaintiff's evidence 
 for a compulsory nonsuit pursuant to a Pennsylvania 
 statute, the formal ground of the motion being stated in 
 terms of evidence, viz., there was no evidence to support 
 the plaintiff's case. Why counsel for the defendant 
 
 39 See note 6, supra. In Capital and Counties Bank v. Henty, 7 App. Cas., 741, 
 782, Lord Blackburn says the judicial power to enter judgment on the evidence 
 in a libel case is the same thing as the old judicial power to arrest judgment on 
 the pleadings. On the way the power to arrest judgment was used in the sixteenth 
 and seventeenth centuries to discourage actions for defamation, see Thayer, Evi- 
 dence, 288, 289. 
 
 40 139 U. S., 24. 
 
 « 103 U. S., 261. 
 
NEW TRIALS AND SEVENTH AMENDMENT 289 
 
 made that motion for a compulsory nonsuit under the 
 Pennsylvania statute instead of the usual federal motion 
 for a directed verdict is hard to understand, but that 
 is not important. The federal trial judge directed the 
 compulsory nonsuit, which by the terms of the Pennsyl- 
 vania statute was no bar to another action ; and his ruling 
 was affirmed by the Supreme Court. If the trial judge 
 had been reversed, i. e., if the Supreme Court had held 
 the lease to be intra vires the plaintiff corporation and 
 valid," there is nothing in the Seventh Amendment that 
 could bar the Supreme Court in that state of the case 
 from entering judgment for the plaintiff on the point of 
 liability, with an order for a jury of inquiry to assess 
 the plaintiff's damages. And if the trial judge had held 
 the lease valid and had refused to order a compulsory 
 nonsuit, and the jury had found a verdict for the plain- 
 tiff, and the Supreme Court had reversed the trial judge 
 on the point of law by holding the lease invalid, there can 
 be no question the Supreme Court, in that state of the 
 case, could have entered judgment for the defendant 
 non obstante veredicto, so far as the Seventh Amend- 
 ment is concerned; and that is so even if the judgment 
 of compulsory nonsuit under the Pennsylvania statute 
 had been a bar to another action. But if the Supreme 
 Court had decided that the question of the validity of 
 the lease sued on turned on whether the defendant com- 
 pany had done enough under the lease to estop itself 
 from setting up the defense of ultra vires, then and in 
 that case the Supreme Court's judgment reversing the 
 judgment of the trial judge must have ordered a trial by 
 jury, because the question of the defendant's liability, 
 under that kind of a decision of the point of law by the 
 Supreme Court, would turn on a question of fact, and the 
 erroneous ruling of the trial judge ordering a compulsory 
 nonsuit would have operated as a wrongful denial of trial 
 
290 CONSTITUTIONAL LAW 
 
 by jury in contravention of the first clause of the Seventh 
 Amendment. 42 
 
 In Oscanyan v. Winchester Arms Co., the action was 
 
 42 The Pennsylvania compulsory nonsuit statute under which Central Trans- 
 portation Co. v. Pullman's Car Co. arose, first passed in 1836 as a local law for 
 Philadelphia and in 1875 made a general law of the state, authorized the trial 
 judge to order a nonsuit, "if in his opinion the plaintiff shall have given no such 
 evidence as in law is sufficient to maintain the action.'' Gray, J., says in 139 
 U. S., on p. 39, that Gibson, C. J., pronounced this statute the equivalent of the 
 English common-law defendant's demurrer to the plaintiff's evidence, except 
 as respects the finality of the judgment. The formula of the English common- 
 law demurrer to evidence was, "the evidence and allegations aforesaid are not 
 sufficient in law to maintain the said issue," the word "allegations" meaning the 
 speech of counsel for the party whose evidence was demurred to. Thayer, Evi- 
 dence, 122; reporter's note to Gibson v. Hunter, 2 H. Bl. 187, 209, 210; and see the 
 form of the demurrer and judgment in Gibson v. Hunter, on pp. 200, 201, and the 
 form in Buller's Nisi Prius, 6th Ed., in the chapter on "Demurrers to Evidence," 
 and in 1 Plowden, 4, and 2 Plowden, 410. The English common-law demurrer to 
 evidence, like the Pennsylvania compulsory motion for nonsuit as construed 
 by Gibson, C. J., and applied in Central Transportation Co. ■«. Pullman's Car Co., 
 raised in terms of evidence a pure question of law such as rules the case. Gibson, 
 C. J., and Gray, J., employed the phrase "evidence insufficient in law" in the 
 sense of Coke (Co. Litt., 72) and Blackstone (3 Com., 372), speaking of the demur- 
 rer to evidence. Hughes, J., throughout his opinion employs the phrase "legal 
 insufficiency of the evidence," not in the sense of Coke, Blackstone, Gibson, and 
 Gray, but as meaning "evidence insufficient in fact." This error is considered 
 hereinafter with reference to the claim of Hughes, J., that the English common- 
 law doctrine of demurrers to evidence supports the dissent. In Metropolitan R. 
 Co. v. Moore, 121 U. S., 558, 568, the Court declined to limit the statutory phrase 
 "insufficient evidence" to "evidence insufficient in law," and extended it to 
 "evidence insufficient in fact," drawing the distinction between the two. 
 
 Coughran v. Bigelow, 164 U. S., 301, relied on by the minority, arose under a 
 territorial nonsuit statute. It was an action by the creditor against the surety, 
 and apparently came down to the point that the creditor released the surety by 
 giving time to the debtor without the surety's consent. There was no evidence 
 at all of the surety's consent; and the trial judge nonsuited the creditor, and the 
 judgment of nonsuit was affirmed by the Supreme Court. It is probably a case 
 of "evidence insufficient in fact" to support the plaintiff's case, for the point of 
 law that the creditor releases the surety by giving time to the debtor without 
 the surety's consent, is too clear for debate and was not debated. If the Supreme 
 Court had reversed the judgment of the trial judge, its reversing judgment must 
 have remanded the case. The judgment of nonsuit in Coughran ». Bigelow, as in 
 Central Transportation Co. v. Pullman Car Co., was no bar to another action; 
 if it had been, that could not have made any difference in the judicial power to 
 enter a judgment of nonsuit for insufficient evidence, in law or in fact, under 
 the Seventh Amendment. 
 
NEW TRIALS AND SEVENTH AMENDMENT 291 
 
 begun in a New York federal trial court, and was for 
 commission on a sale of arms by the defendant com- 
 pany to the Turkish government. The plaintiff founded 
 his case on a contract between himself and the defendant 
 company whereby the plaintiff agreed, for a stipulated 
 commission, to use his influence as consul of the Turkish 
 government at New York to induce his government to 
 buy arms of the defendant company. The trial judge 
 directed the jury to find a verdict for the defendant com- 
 pany on the opening statement of plaintiff's counsel on 
 the pure point of law ruling the whole case that the con- 
 tract sued on was void as being against public policy; 
 and the ruling of the trial judge was affirmed by the Su- 
 preme Court. If the trial judge had ruled the other way, 
 holding the contract valid, and the jury had found a 
 verdict for the plaintiff, and the Supreme Court, holding 
 the contract void, had reversed the ruling of the trial 
 judge holding it valid, the Seventh Amendment in that 
 state of the case would not have prevented a final judg- 
 ment by the Supreme Court for the defendant on the 
 evidence non obstante veredicto. 43 
 
 The test whether federal judicial power can exist under 
 the Seventh Amendment to enter judgment for one party 
 in disregard of a general verdict for the other party, ap- 
 pears to be this: Does the general verdict of the jury find 
 
 43 In Oscanyan v. Winchester Arms Co., Field, J., employs broad language with 
 reference to the power of a trial judge to direct a verdict on the opening statement 
 of counsel for the party having the onus of proof; but the language must be re- 
 strained to the facts of the case, which was one turning on a pure question of law, 
 not of fact. In Fletcher v. London and Northwestern R. Co. [1892], 1 Q. B., 122, 
 a negligence case for personal injuries, the trial judge nonsuited the plaintiff 
 on the opening statement of his counsel, who protested and insisted on his right 
 to call the plaintiff's witnesses. All the judges of the Court of Appeal denounced 
 the summary procedure of the trial judge, Kay, L. J., saying: "That this should 
 be part of the practice of English courts of justice would be to me a. very sur- 
 prising thing indeed." And see to the same affect, Redding v. Puget Sound Iron 
 and Steel Co., 31 Wash., 642. 
 
292 CONSTITUTIONAL LAW 
 
 a material fact in issue between the parties? If it does, 
 the verdict can be set right only by another jury on a 
 new trial; there is, and can be, no federal judicial power 
 to set the verdict right by finding the material fact differ- 
 ent from the finding of the jury, however false the general 
 verdict of the jury may be on the material issue of fact. 44 
 If the general verdict of the jury does not find a material 
 fact in issue between the parties — as ordinarily happens 
 when the case is one turning on a pure question of law 
 such as rules the case — then federal judicial power to 
 enter judgment on the evidence in disregard of the general 
 verdict of the jury can exist under the Seventh Amend- 
 ment. 
 
 A judgment reversing an erroneously directed verdict 
 on a material issue of fact must order a trial by jury — 
 except in the rather exceptional case where the evidence 
 is such that the trial judge ought to have directed a ver- 
 dict oh the issue of fact for the other party — because 
 the party hurt by the erroneously directed verdict never 
 had any trial by jury within the meaning of the first 
 clause of the Seventh Amendment. 45 
 
 44 It must be remembered the verdict of a jury on an issue of fact cannot be 
 called "false" by a federal judge; unless the trial judge erred in letting the case 
 go to the jury, the verdict must stand, so far as the evidence alone is concerned. 
 See the rule as stated by Van Devanter, J., 208 U. S., on p. 369; see Metropolitan 
 R. Co. v. Wright, 11 App. Cas., 152; Toronto R. Co. ». King [1908], A. C, 260. 
 
 46 Perhaps it may be possible to establish that the rules of the English common 
 law with reference to entering judgment on the pleadings non obstante veredicto 
 (see note 6, supra) sanction a distinction, with reference to judicial power to 
 enter judgment on the evidence n. o. v. in cases turning on a material issue of 
 fact, between the case of "no evidence" and "some evidence but not enough" 
 for a jury to act on by finding a verdict for the party having the onus of proof. 
 Loreburn, L. C, in Paquin, Ltd., v. Beauclerk [1906], A. C, 148, 161, appears 
 to think that distinction too fine for practical use in that connection. And that 
 seems the right view. An initiative and referendum amendment of the Oregon 
 constitution in 1910 (Oregon Laws, 1911, p. 7), evidently designed to cut down 
 the Oregon judicial power to grant new trials in cases where the verdict of a jury 
 finds material facts, perhaps sanctions the distinction; sed quaere, whether the 
 Oregon amendment amounts to anything more than a prayer to the Oregon 
 
NEW TRIALS AND SEVENTH AMENDMENT 293 
 
 The Pennsylvania Supreme Court is the immediate 
 authority of the minority to support their view, that a 
 motion for a directed verdict on the ground there is no 
 evidence or not enough evidence for a jury to act on by 
 finding a verdict for the party having the onus of proof 
 raises a question of law, not of fact, in a case turning on a 
 
 judges to give more respect to the verdict of a jury finding material facts. See 
 Sullivan v. Wakefield, 133 Pac, 641; Buchanan v. Hicks Co., 134 Pac, 1191; 
 Nelson v. St. Helen's Timber Co., 135 Pac, 169. 
 
 If the question were an original one, perhaps it could be said R. S., U. S., Sec. 
 701, in its present and original form as Sec. 24 of the Judiciary Act of 1789, uses 
 language broad enough to authorize federal judges to enter judgment on the 
 evidence non obstante veredicto in a case that turns on a pure question of law, 
 such as rules the case. But see note 37, third paragraph. 
 
 That such judicial power in such a case is of any great practical value is not 
 clear to me. Ordinarily, in such a case, the party given the right to a new trial 
 does not try the case over again, as it would be useless. But when, as sometimes 
 happens, the party given the right to a new trial, after consulting his counsel, 
 reasonably thinks he has or can produce evidence that may entitle him to recover 
 on a new trial under the law as finally laid down by the court, then and in that 
 case judicial power to deny a new trial and enter judgment becomes nothing but 
 a device for transferring from the party and his counsel to the judge the right to 
 decide whether it is expedient to litigate further or to stop; in other words, it is 
 part and parcel of the present-day idea of making you get a permit from a man in 
 uniform before you try to do anything. If the right to run the lawsuit is trans- 
 ferred from the party and his counsel to the judge, clearly justice to the party 
 requires the judge to give the party and his counsel the fullest opportunity to let 
 the judge know as much about it as the party and his counsel before the party 
 is cut off from further litigation. Interest reipublicae ut sit finis litium is not the 
 first of legal maxims. "Justice delayed is justice denied," is no excuse for injustice 
 to the party. 
 
 In that connection, it may be noticed that the majority, pressed by the criticism 
 of the minority that they were putting form above substance under the Seventh 
 Amendment, make justice to the party one of the reasons for denying federal 
 judicial power in any case under the Seventh Amendment to enter judgment on 
 the •evidence non obstante veredicto. Justice to the party had everything to 
 do with establishing judicial power to grant a new trial to cure a false verdict; 
 but it had nothing to do with limiting that judicial power to a negative judicial 
 power to grant a new trial only; the whole of the reason for denying affirmative 
 judicial power to set the false verdict right was to preserve the jury. If federal 
 judicial power to deny a new trial and to enter judgment on the evidence non ob- 
 stante veredicto can exist in any case under the Seventh Amendment, the party's 
 right to trial by jury has nothing to do with the question whether the power was 
 well exercised or abused with reference to justice to the party. The only part of 
 the federal constitution that has any bearing on that is the due-process prohibi- 
 tion of the Fifth Amendment. 
 
294 CONSTITUTIONAL LAW 
 
 question of fact, and transforms the whole case into one 
 turning on a pure question of law, not of fact, within the 
 meaning of the phrase "no fact tried by a jury" in the 
 second clause of the Seventh Amendment. The federal 
 judges in Pennsylvania borrowed the same view from the 
 Pennsylvania Supreme Court. It becomes relevant, 
 then, to show how the Pennsylvania Supreme Court 
 got round to that notion. 
 
 The Pennsylvania n. o. v. statute of 1905, under which 
 the case arose, embodies and continues in force, with some 
 changes, the result reached by the Pennsylvania Supreme 
 Court in the administration of an earlier reserved- 
 question statute passed in 1825 as a local law for 
 the district court of Philadelphia, continued in force in 
 1835 as a local law for the same court, and in 1863 ex- 
 tended as a general law for all common pleas courts of 
 the state. This reserved-question statute authorized 
 the trial judge, 
 
 "When he thinks it expedient, to reserve questions of law which 
 may arise on the trial for the consideration and judgment of both 
 of the judges of said court sitting together." 
 
 And the judges of said court sitting together in banc, 
 if they decided the reserved question of law in the de- 
 fendant's favor, could enter judgment for the defendant 
 notwithstanding a general verdict for the plaintiff (non 
 obstante veredicto) ; but they could not enter judgment 
 for the plaintiff notwithstanding a general verdict for the 
 defendant, for it was held there could be no reserved 
 question of law under the statute where there was a general 
 verdict for the defendant - — a wrong ruling, as it seems 
 to me, and seemingly contrary to views expressed in 
 earlier Pennsylvania cases. 46 
 
 « Dalmas v. Kemble, 215 Pa. St., 410, 412; Wilde v. Trainor, 59 Pa. St., 439; 
 Fisher v. Scbaradin, 186 Pa. St., 585; Casey v. Paving Co., 198 Pa. St., 348; 
 Casey v. Paving Co., 109 Fed., 744; 114 Fed., 189; Bierly, "Jury and Jury Trials 
 in Pennsylvania," 284, 289. 
 
NEW TRIALS AND SEVENTH AMENDMENT 295 
 
 It seems it always has been the law of Pennsylvania 
 under the above reserved-question statutes of 1825, 
 1835 and 1863, and under the n. o. v. statute of 1905, that 
 a reserved question of law must be a "pure question of 
 law," and "must be such as to rule the case." Accord- 
 ing to Dean, J., speaking for the Pennsylvania Supreme 
 Court in 1898 in Fisher v. Scharadin, 47 it was "settled 
 law," at least prior to Wilde v. Trainor in 1868, 48 that 
 the question "whether there is any evidence in this case 
 entitling the plaintiff to recover," was a bad reserved 
 question of law in a case turning on a question of fact 
 where the jury found a general verdict for the plaintiff, 
 because it was not a pure question of law such as to rule 
 the case, but a question of fact. In the case of Wilde v. 
 Trainor in 1868, Sharswood, J., said: 
 
 "It may, no doubt, also be a pure question of law, whether there 
 is any evidence at all to go to the jury on some fact essential to 
 the plaintiff's case." ... If the question reserved is whether 
 there is any evidence to go to the jury, the verdict against the 
 sufficiency of the proof [i. e., a verdict for the defendant], disposes 
 of the whole question. ... I have always been of the opinion, 
 and acted upon it, that no point of law can be properly reserved, 
 unless if that point be held in one way, the court would be bound 
 to give a binding instruction to the jury to find for the . . . 
 defendant." 
 
 Sharswood, J., did not explain what he had in his mind 
 or how he reconciled his dictum with the previous decisions 
 of the court, with which he was familiar, for he cited them. 
 Out of those words of Sharswood, J., in Wilde v. Trainor 
 in 1868, according to Dean, J., speaking in 1898 in Fisher 
 v. Scharadin, arose diversity of practice in the trial courts 
 of Pennsylvania and of opinion in the Supreme Court, 
 some holding the question "whether there is any evidence 
 
 47 186 Pa. St., 585. 
 48 59 Pa. St., 439. 
 
296 CONSTITUTIONAL LAW 
 
 in this case entitling the plaintiff to recover" a good 
 reservation of a pure question of law such as to rule the 
 case in a case turning on a question of fact, where the 
 verdict of a jury found the material fact in issue in favor 
 of the plaintiff, and others holding it a reservation of 
 a question of fact, not of law, such as to rule the case. 
 In 1898, in the above case of Fisher v. Scharadin, after 
 two arguments, the Pennsylvania Supreme Court, "with 
 a view to hereafter freeing the question from doubt," 
 decided "that the question whether there be any evidence 
 which entitled the plaintiff to recover is necessarily a 
 question of law and is a good reservation" under the 
 reserved-question statute of 1863. Later Pennsylvania 
 cases and the text of the n. o. v. statute of 1905 show that 
 the reserved question "whether there is any evidence in 
 this case entitling the plaintiff to recover," was regarded 
 as the equivalent of the question whether, upon all of 
 the evidence in this case, it is the duty of the trial judge 
 to direct the jury to find a verdict for the defendant. 
 In 1909 in Fries-Breslin Co. v. Bergen, 49 Gray, J., said 
 the practice prevalent in the Pennsylvania courts under 
 the reserved-question statute of 1863, after the decision 
 in Fisher v. Scharadin in 1898 at least, was for the trial 
 judge to direct a pro forma verdict for the plaintiff, 
 reserving the question whether there is any evidence in 
 the case entitling the plaintiff to recover, which practice 
 evidently was but a mode of reserving the question 
 whether, upon all the evidence in the case, it is the duty 
 of the trial judge to direct a verdict for the defendant; 
 and it may be recalled here, as above shown, this Penn- 
 sylvania practice of a pro forma directed verdict for the 
 plaintiff, subject to the reserved question whether, on 
 all the evidence, the plaintiff is entitled to recover, is the 
 
 « 176 Fed., 76, 81. 
 
NEW TRIALS AND SEVENTH AMENDMENT 297 
 
 identical practice the Supreme Court of the United 
 States disapproved in 1885 in Baylis v. Travellers' Ins. 
 Co., when employed by a federal trial judge without 
 the plaintiff's consent in a case turning on a question of 
 fact. 
 
 When, in 1868 in Wilde v. Trainor, Sharswood, J., pro- 
 nounced the dictum above quoted, it seems it was the 
 law of Pennsylvania that a trial judge could direct a ver- 
 dict for the defendant in a case turning on a question of 
 fact only when there was literally no evidence at all on 
 some fact essential to the plaintiff's case; and if there 
 was any evidence, the least spark or scintilla, to support 
 all the facts essential to the plaintiff's case, the trial 
 judge could not direct a verdict for the defendant, but 
 had to submit the evidence to the jury. 60 It is certain 
 Sharswood, J., intended his pure question of law, stated 
 in terms of his evidence formula, to cover cases of "no 
 evidence as. a matter of law," as e. g., cases like Central 
 Transportation Co. v. Pullman's Car Co., and Oscanyan 
 v. Winchester Arms Co., above stated; and he probably 
 intended his evidence formula to cover also cases of 
 literally "no evidence as a matter of fact" to support the 
 plaintiff's case. By 1879, at least, the Pennsylvania 
 rule defining the power of a trial judge to direct a verdict 
 for the defendant in a case turning on a question of fact, 
 was changed to the present rule of "some evidence but 
 not enough." In Hyatt v. Johnston 51 in 1879, Sterrett, 
 J., for the Pennsylvania Supreme Court said on the 
 authority of the opinion of the English Court of Ex- 
 checquer Chamber in Ryder v. Wombwell 52 in 1868: 
 
 60 Fitzwater v. Stout, 16 Pa. St., 22; Thomas v.. Thomas, 21 Pa. St., 315; Mcll- 
 downy v. Wilson, 28 Pa. St., 492. 
 
 61 91 Pa. St., 196, 200: 
 
 52 L. R. 4 Ex., 38. On this case as the exploder of the scintilla rule, see Improve- 
 ment Co. v. Munson, 14 Wall., 442, 448; Pleasants v. Fant, 22 Wall., 116, 121. 
 
298 CONSTITUTIONAL LAW 
 
 "Since the scintilla doctrine has been exploded, both in England 
 and in this country, the preliminary question of law for the court is, 
 not whether there is literally no evidence or a mere scintilla, but 
 whether there is any that ought reasonably to satisfy the jury that 
 the fact sought to be proved is established." 
 
 Under the operation of this change in the Pennsylvania 
 rule of law defining the power of a Pennsylvania trial 
 judge to direct a verdict for the defendant in a case turn- 
 ing on a question of fact, the practical effect of the Penn- 
 sylvania decision in 1898 in Fisher v. Scharadin is appar- 
 ent. The decision merged every pure question of law 
 such as to rule the case under the Pennsylvania reserved- 
 question statute of 1863 under the single general formula, 
 "whether there is any evidence in this case entitling the 
 plaintiff to recover," and transformed that general for- 
 mula in a case turning on a question of fact where the 
 jury found the fact in favor of the plaintiff, into a pure 
 question of law such as to rule the case, whereas before 
 1898 that general formula in such a case raised a question 
 of fact, not of law, within the meaning of the Pennsylvania 
 reserved-question statute of 1863; and the decision ex- 
 panded the Pennsylvania rule defining the judicial 
 power of the trial judge to direct a verdict for the defend- 
 ant in a case turning on a question of fact into a rule 
 creating a new affirmative judicial power in the trial 
 judge after a verdict for the plaintiff to make an affirm- 
 ative finding of a material fact different from the 
 finding of the jury. 53 
 
 Under the Pennsylvania reserved-question statute 
 of 1863, the defendant could not compel the trial judge 
 to reserve the formula, "whether there is any evidence 
 
 63 The Pennsylvania compulsory nonsuit statute (see note 42, supra) was ex- 
 tended to cases turning on a question of fact where the plaintiff offered literally 
 no evidence at all, and then to cases where he offered some evidence but not 
 enough. See Johnson, Procedure and Practice in Pennsylvania, pp. 622, 623. 
 
NEW TRIALS AND SEVENTH AMENDMENT 299 
 
 in this case entitling the plaintiff to recover;" the trial 
 judge could reserve it or not as he saw fit. The Pennsyl- 
 vania n. o. v. statute of 1905, under which this case 
 arose, deprived the trial judge of that discretion and 
 compels him to reserve the formula. By the terms of 
 that statute of 1905, 64 a defendant's motion for a directed 
 verdict operates per se, if it is denied by the trial judge, 
 to turn a verdict for the plaintiff into a conditional ver- 
 dict for the plaintiff, i. e., a verdict for the plaintiff sub- 
 ject to the opinion of the trial judge, on a motion by 
 the defendant for judgment, of the denied motion of the 
 defendant for a directed verdict. The judgment entered 
 by the trial judge, whether for the plaintiff on the verdict 
 of the jury, or for the defendant non obstante veredicto, 
 being reviewable by an appellate court with authority 
 to "enter such judgment as shall be warranted by the 
 evidence taken in the trial court," the mode prescribed 
 for taking up the evidence being a bill of exceptions. 
 The statute of 1905 made another change. As above 
 stated, the benefit of the Pennsylvania reserved-question 
 practice under the statute of 1863 was confined to de- 
 fendants, as the practice applied only in cases where the 
 verdict was for plaintiff. The n. o. v. statute of 1905 
 extends the benefit of the practice to plaintiffs, by 
 
 64 The Pennsylvania n. u. v. statute of 1905 reads: "That whenever, upon the 
 trial of any issue, a point requesting binding instructions has been reserved or 
 declined, the party presenting the point may, within the time prescribed for 
 moving for a new trial, or within such other or further time as the court shall 
 allow, move the court to have all the evidence taken upon the trial duly certified 
 and filed so as to become part of the record, and for judgment non obstante vere- 
 dicto upon the whole record; whereupon it shall be the duty of the court, if it does 
 not grant a new trial, to so certify the evidence, and to enter such judgment as 
 should have been entered upon that evidence, at the same time granting to the 
 party against whom the decision is rendered an exception to the action of the 
 court in that regard. From the judgment thus entered, either party may appeal 
 to the Supreme or Superior Court, as in other cases, which shall review the action 
 of the court below, and enter such judgment as shall be warranted by the evidence 
 taken in that court." 228 U. S., pp. 375, 376. 
 
300 CONSTITUTIONAL LAW 
 
 extending the practice to cases where the plaintiff moves 
 for a directed verdict and the verdict is for the defendant. 65 
 There is no instance that I know of under the n. o. v. 
 statute of 1905 where the Pennsylvania Supreme Court 
 or any federal court in Pennsylvania entered judgment 
 for the plaintiff in disregard of a general verdict for 
 defendant. 66 A judgment for the plaintiff non obstante 
 veredicto ordinarily cannot go beyond the point of lia- 
 bility, for it ordinarily must provide for a jury of inquiry 
 to assess the plaintiff's damages when the plaintiff claims 
 unliquidated damages. The 1905 Pennsylvania exten- 
 sion of the benefit of the n. o. v. practice to plaintiffs 
 removes the former discrimination against the plaintiff 
 and in favor of the defendant, and puts the parties on an 
 equal legal footing. Under the n. o. v. statute of 1905, 
 as before, a judgment non obstante veredicto need not 
 be entered by the trial judge or appellate court, if it is 
 thought justice to the party requires a new trial. 57 
 
 65 Dalmas v. Kemble, 215 Pa. St., 410. 
 
 66 In Reichner v. Reichner, 237 Pa. St., 540, a garnishment case, the Pennsyl- 
 vania Supreme Court declined to review a trial judge's refusal to enter judg- 
 ment for the plaintiff, n. o. v., because the plaintiff's motion for a directed verdict 
 in the trial court was oral and not in writing. That looks like a "technicality" 
 in the n. o. v. practice. 
 
 67 Quaere whether the Pennsylvania reserved-question practice before 1905 
 was a denial by the state of the equal protection of the laws; see note 109, infra. 
 
 I do not know, but it may be the Pennsylvania reserved-question statutes of 
 1825, 1835, and 1863 were modeled on the English reserved-question practice of 
 taking a nonsuit or a verdict of the jury subject to a reserved question for the court 
 in banc and court of error or appeal, with leave to the court in banc and court of 
 error or appeal to set aside the nonsuit and enter a verdict and judgment, or to set 
 aside the verdict and enter a different verdict and judgment. But the English 
 reserved-question practice had its foundation in the consent of parties, and not in 
 the discretion of the trial judge, as the Pennsylvania reserved-question practice; 
 and it was not confined to pure questions of law that ruled the case, as the Pennsyl- 
 vania practice was down to 1898, but extended to the question whether there was 
 any evidence or enough evidence to support a verdict for the party having the 
 onus of proof that could stand on a motion for a new trial before the court in banc. 
 While the consent of parties necessary to support the English reserved-question 
 practice usually was forthcoming, yet the consent never was. a fiction, as it was in 
 
NEW TRIALS AND SEVENTH AMENDMENT 301 
 
 It is evident the Pennsylvania reserved-question or 
 n. o. v. practice always has been more than a mere form 
 and mode of procedure for giving effect to the Pennsyl- 
 vania rule regulating the exercise of judicial power to 
 direct a verdict; it extended and expanded that rule 
 into a new rule creating a new Pennsylvania judicial 
 power to find a material fact different from the finding of 
 a jury; and the Pennsylvania Supreme Court in 1898 
 in Fisher v. Scharadin brought this new judicially-created 
 Pennsylvania judicial power within the Pennsylvania 
 legislative grant of judicial power in the reserved- 
 question statute of 1863 on the legal theory that the 
 general formula, "whether there is any evidence in this 
 case entitling the plaintiff to recover," always and neces- 
 sarily raises a pure question of law such as to rule the 
 case, within the meaning of the Pennsylvania reserved- 
 
 the case of the plaintiff's consent necessary to authorize a nonsuit for want of 
 evidence, as explained in note 31, supra. In the case of the reserved-question, 
 the consent of parties materially enlarged the power of the judges to draw in- 
 ferences of fact and to find facts different from the finding of a jury; originally at 
 least, it almost substituted the judges in the place of the jury with reference to 
 the evidence. The English reserved-question practice began soon after 1700 and 
 resulted from the judicial power to grant a new trial; its foundation was not 
 changed from the consent of parties to the discretion of the trial judge until the 
 Judicature Acts of 1873 and 1875, when the change was made, subject, however, 
 to the Parliamentary mandate in the Judicature Act of 1875, Sec. 22, that the right 
 of trial by jury is not to be taken away or prejudiced by the judges by any order 
 or rule of practice or otherwise. Thayer, Evidence 241, note 4, quoting opinions 
 of Lord Blackburn, and 247, note 1; Suydam v. Williamson, 20 Howard, 427, 
 432-437; Avery v. Bowden, 6 El. & Bl., 962; Jewell v. Parr, 13 C. B., 909; DeWar 
 v. Purday, 3 Ad. & El., 166. Professor Thayer, Evidence 239, well observes that 
 the traditional habit of counsel in England to co-operate with the trial judge to 
 adjust procedure to the merits of really doubtful cases, and to that end to elimi- 
 nate the jury in whole or part, is "less remarked than it should be, by practitioners 
 and students of our law." See Lord Campbell's remarks in Taff Vale R. Co, v. 
 Nixon, 1 H. L. Cas., Ill, 125, 126, on the mode of getting consent to an arbi- 
 trator from a party "wrong headed" enough to resist the recommendation of 
 "my lord, the judge," in an action for breach of contract involving accounts 
 too complicated for a jury. 
 
 For that reason, viz., their foundation in the consent of parties, the reserved 
 question and other English precedents from 1700 to 1764 relied on by the Special 
 
302 CONSTITUTIONAL LAW 
 
 question statute of 1863 ; and the Pennsylvania legisla- 
 ture by the n. o. v. statute of 1905 ratified, approved, 
 and confirmed the act of the Pennsylvania Supreme Court 
 creating the new Pennsylvania judicial power to find a 
 material fact different from the finding of a jury, but 
 removed the judicial discrimination against the plaintiff 
 and in favor of the defendant by putting the parties on 
 an equal legal footing. 
 
 The Pennsylvania federal judges adopted, and could 
 adopt, the Pennsylvania reserved-question or n. o. v. 
 practice only as a form and mode of procedure. In 
 adopting it, however, they separated the inseparable; 
 they detached the Pennsylvania reserved-question or 
 n. o. v. procedural device from the undetachable Penn- 
 sylvania rule regulating the exercise of judicial power to 
 direct a verdict, and attached the Pennsylvania pro- 
 
 Committee of the American Bar Association in their brief on re-hearing in Slocum 
 v. New York Life Ins. Co. (note 8, supra, last paragraph) have no application. 
 The same English precedents along with some modern ones cited by Mr. J. L. 
 Thorndike, "Jury Trial in the United States Courts," 26 Harv. L. Rev., 732, 737, 
 note 12, are employed by the Supreme Court of Massachusetts in the recent 
 case of Bothwell v. Boston El. Ry. Co., 102 N. E. Rep., 665, 669, to show why 
 that court does not agree with the majority in Slocum v. New York Life Ins. Co. 
 Rugg, C. J., who wrote the opinion of the Massachusetts court, got a near-hold 
 on the point those English precedents are founded on the consent of parties, but 
 the opinion slides over the point thus: "This practice . perhaps rested in 
 many instances on consent," citing 2 Tidd's Practice, 898, where the author tells 
 about "a special case, stated by counsel on both sides." 
 
 While studying English cases with reference to practice and procedure, it must 
 ever be kept in mind the English court in banc disposed finally of a lot of work 
 that falls on our courts of error or appeal ; and that the bill of exceptions, though 
 authorized by statute in 1285, never was used very much in England, especially 
 after the introduction of the motion for a new trial and its extension in 1665 to the 
 case of a false verdict. Chitty, 3 Gen. Pr., 1st Amer. Ed., 914, note a, speaks of 
 the bill of exceptions as "this admirable constitutional remedy" for an arbitrary 
 trial judge having overwhelming influence in his own court in banc on the motion 
 for a new trial. Ordinarily the court in banc would not pass on a point raised 
 by bill of exceptions; it went direct to the court of error or appeal. The bill of 
 exceptions was abolished in the English procedural reforms of 1873-5. 5 Encyc. of 
 the Laws of England, 2d Ed., 321; Order 58, Matthews, White, and Stringer, 
 Annual Practice, 1912, Part I, p. 1022. 
 
NEW TRIALS AND SEVENTH AMENDMENT 303 
 
 cedural device to the federal rule regulating the exer- 
 cise of federal judicial power to direct a verdict; and they 
 employed the Pennsylvania procedural device to expand 
 the federal rule into a new rule creating a new and there- 
 tofore unknown affirmative federal judicial power to 
 find a material fact different from the finding of a jury; 
 and they made an entirely new use of the Pennsylvania 
 Supreme Court's dictum that the general formula, 
 "whether there is any evidence in this case entitling the 
 plaintiff to recover," "is necessarily a question of law," 
 not of fact; the Pennsylvania federal judges employed 
 that Pennsylvania dictum for the federal constitutional 
 purpose of harmonizing their newly created and there- 
 tofore unknown affirmative federal judicial power to find 
 a material fact different from the finding of a jury 
 with the prohibition in the second clause in the Seventh 
 Amendment, forbidding any federal tribunal but another 
 jury on a new trial to set a false verdict right by finding 
 a material fact different from the finding of a jury. And 
 the minority of the Supreme Court follow the Pennsyl- 
 vania judges. 68 
 
 The question whether the Pennsylvania Supreme 
 Court's dictum is sound in a federal court bound by the 
 Seventh Amendment is not a question in the local law of 
 Pennsylvania, or in the local law of any other state. It 
 is a question in federal law exclusively. A federal judge 
 
 68 The Pennsylvania federal cases are cited by Hughes, J. It seems Carstairs 
 v. American Bonding & Trust Co., 116 Fed., 449, in 1902, is the first one in the 
 Circuit Court of Appeals holding the Pennsylvania n. u. v. practice in a federal 
 court consistent with the Seventh Amendment, in a case turning on a question of 
 fact where the jury find a verdict for the party having the onus of proof. Acheson, 
 J., dissented on the point. The Supreme Court's denial of a certiorari in Fries- 
 Breslin Co. v. Bergen, 215 U. S., 609, 176 Fed., 76, 168 Fed., 360, referred to by 
 Hughes, J., in 228 U. S., on p. 407, did not necessarily involve any affirmation 
 of constitutionality. The trial judge entered judgment for the defendant n. o. v., 
 which was affirmed by the Circuit Court of Appeals; the plaintiff could and should 
 have gone direct to the Supreme Court, if he wanted to challenge the constitu- 
 tionality of the trial judge's judgment for the defendant n. o. v. Judicial Code, 
 
304 CONSTITUTIONAL LAW 
 
 having to pass on the soundness of that dictum under the 
 Seventh Amendment cannot rely on the highest court of 
 any state; he must form an independent judgment of 
 his own, using as his sources of law the English common 
 law as it stood when the Seventh Amendment was pro- 
 posed and adopted, and the federal law as laid down in 
 the federal constitution, in acts of Congress and in de- 
 cisions of the Supreme Court of the United States and 
 of other federal courts. The dictum of the Pennsylvania 
 Supreme Court is without even persuasive force in a 
 federal court under the Seventh Amendment because there 
 is nothing to it but the sweeping, dogmatic assertion: 
 "Whether there be any evidence which entitles the 
 plaintiff to recover is necessarily a question of law." 
 
 The true basis for the classification of the general for- 
 mula in a case turning on a question of fact, "whether 
 there is any evidence in this case entitling the party hav- 
 ing the onus of proof to recover," as a question of law or 
 as a question of fact under the Seventh Amendment, is 
 given by the minority of the Supreme Court of the United 
 States, and is not denied by the majority, viz., the "sub- 
 stance" or "nature" of the question raised by the for- 
 mula. On that basis of classification, the question raised 
 by the formula in a case turning on a question of fact 
 must be classified in a federal court under the Seventh 
 Amendment as a question of fact, not of law, such as to 
 rule the case. 
 
 Sees. 128, 238. In Spencer v. DuPlan Silk Co., 191 U. S., 526, 115 Fed., 689, 112 
 Fed., 638, also referred to by Hughes, J., in 228 U. S., on p. 404, the trial judge 
 refused judgment for the defendant n. o. v., and entered judgment for the plaintiff 
 on the verdict; the Circuit Court of Appeals reversed the judgment and ordered 
 judgment for the defendant n. o. v.; the Supreme Court dismissed a writ of error 
 for want of jurisdiction on a point that has no relation to the constitutionality of 
 the n. o. v. judgment ordered by the Circuit Court of Appeals; and it is hard to 
 see how that question could be open on that writ of error. The constitutional 
 jury-trial point was up fresh on the certiorari in Slocum v. New York Life Ins. 
 Co., if it was up at all. See note 8, supra. 
 
NEW TRIALS AND SEVENTH AMENDMENT 305 
 
 When the sole remedy to cure a false verdict was the 
 process of attaint, the question whether there was any 
 evidence or enough evidence to support the verdict in a 
 case turning on a material fact, was one of fact, not of 
 law; when the motion for a new trial was substituted 
 in the place of the process of attaint as the remedy to 
 cure a false verdict, the question was one of fact, not of 
 law; when the preliminary motion for a directed verdict 
 on a material issue of fact was introduced and was con- 
 fined to cases where the party having the onus of proof 
 produced literally no evidence at all to support his case, 
 the question remained one of fact, not of law, on the mo- 
 tion for a new trial; when, on the final explosion of the 
 scintilla of evidence rule in the English courts by Ryder v, 
 Wombell 69 in 1868, and in the federal courts by Pleasants 
 v. Fant 60 in 1874, the question was shifted from the mo- 
 tion for a new trial after the verdict to the preliminary 
 motion for a directed verdict before the verdict, the "sub- 
 stance" or "nature" of the question was not changed; 
 and the question remained what it always had been, a 
 question of fact, not of law. That the question, whether 
 there is any evidence or enough evidence for a jury to 
 act on by finding a verdict on a material issue of fact for 
 the party having the onus of proof, is not one of law such 
 as to rule the case, but of fact, would appear to be dem- 
 onstrated when it is borne in mind the question is con- 
 sumed and disposed of forever by a verdict of the jury 
 against the party having the onus of proof. 61 
 
 The distinction between "law" and "fact" in jury 
 
 69 L. R. 4 Ex., 38. 
 
 60 22 Wall., 116. 
 
 61 "If the question reserved is whether there is any evidence to go to the jury, 
 the verdict against the sufficiency of proof [i. e., against the party having the onus 
 of proof] disposes of the whole question." Sharswood, J., in Wilde v. Trainor, 
 59 Pa. St., 439. 
 
306 CONSTITUTIONAL LAW 
 
 trials had nothing to do with the judicial creation and 
 employment of these procedural devices to cure and pre- 
 vent false verdicts, i. e., the attaint, the motion for a new 
 trial, and the motion for a directed verdict. The whole 
 of the reason underlying them always has been to give 
 legal effect to the community's hostility to the exercise 
 of arbitrary power by the jury. As the substantive law, 
 or the expression of the community's sense of right, always 
 has been against the exercise of arbitrary power by judges 
 in the decision of questions of law within their province, 
 so it always has been against the exercise of arbitrary 
 power by the jury in the decision of questions of fact with- 
 in their province. Lord Nottingham's exclamations in 
 the House of Lords in the Duke of Norfolk's case 62 in 
 1681, "Pray let us so resolve cases here that they may 
 stand with the Reason of Mankind when they are debated 
 abroad. Shall that be Reason here that is not Reason 
 in any part of the world besides?" always has applied 
 equally to the jury in the exercise of their power to decide 
 questions of fact. It is the reason given for these pro- 
 cedural devices to cure and prevent false verdicts by 
 Lord Mansfield in 1757, 63 by Blackstone in his Commen- 
 taries, 64 and by Lord Cairns and Lord Blackburn in 
 1877. 65 
 
 There can be no question the motion for a new trial, 
 and the motion for a directed verdict, for want of any 
 evidence or enough evidence for a jury to act on in a case 
 
 62 3 Ch. Cas., 1, 33. 
 
 63 Bright ». Eynon, 1 Burrow, 390. 
 M 3 Bl. Com., 387-393. 
 
 65 Metropolitan R. Co. v. Jackson, 3 App. Cas., 193. "When we consider 
 the nature and theory of our institutions of government, the principles upon 
 which they are supposed to rest, and review the history of their development, we 
 are constrained to conclude they do not mean to leave room for the play and action 
 of purely personal and arbitrary power." — Yick Wo v. Hopkins, 118 U. S., 356, 
 319, 370; and in Loan Assn. v. Topeka, 20 Wall., 655, 662, 663. 
 
NEW TRIALS AND SEVENTH AMENDMENT 307 
 
 turning on a question of fact, carried the judicial power 
 into the pre-existing province of the jury. But this evil 
 always has been thought less than the evil of arbitrary 
 power in the jury, subject to no restraint or check. And 
 "fact" as distinguished from "law" never was the ex- 
 clusive province of the jury from the first beginning of 
 trial by jury. The decantatum, as Vaughan, C. J., called 
 it in Bushell's case in 1670, popularized by Coke, ad 
 quaestionem factinon respondent judices, ad quaestionem 
 juris non respondent juratores, never was true in the sense 
 the trial judge has no concern with questions of fact. 
 Anybody who ever saw a trial by jury knows that most 
 of the questions the trial judge has to pass on are questions 
 of fact. The phrases "question for the judge" and "ques- 
 tion of law" are not and never were equivalent, conver- 
 tible phrases in jury trials. The superficial assumption 
 that they are is the fallacy in the view that the formula, 
 whether there is any evidence or enough evidence for a 
 jury to act on by finding a verdict for the party having 
 the onus of proof, raises a question of law, not of fact, in 
 a federal court under the Seventh Amendment, in a case 
 turning on a question of fact; that formula in such a 
 case raises a question for the trial judge, but it does not 
 therefore follow it is a question of law ; the question is one 
 of fact, albeit for the trial judge. 66 
 
 66 Thayer, Evidence, 184-189. A motion for a directed verdict on a material 
 issue of fact ordinarily is treated as raising a question of law, not of fact, within 
 the meaning of the statute in many of the states saying the trial judge shall in- 
 struct the jury only on the law. But that statute rests on the fallacy that "ques- 
 tion of law" and "question for the trial judge" are. equivalent phrases in jury 
 trials (Thayer, Evidence, 188, note 2). And it is hard to see how the Supreme 
 Court of the United States could avoid holding an act of Congress of that kind 
 repugnant to the Seventh Amendment. The Supreme Court of the United 
 States always has treated a bill of exceptions to the ruling of a trial judge on a 
 motion to direct a verdict on a material issue of fact as presenting a question of 
 law, not of fact. But that is of no legal significance. The English statute of 
 1285, which is the source and fountain of the federal law and practice on bills of 
 exceptions, allows a bill of exceptions to any ruling of the trial judge, whether 
 
308 CONSTITUTIONAL LAW 
 
 It remains to consider the minority's claim that the 
 English common-law doctrine of demurrers to evidence 
 supports their dissent; and also to consider decisions 
 in England, Massachusetts, and Illinois in favor of the 
 n. o. v. practice in cases turning on a material issue of 
 fact found by a jury. 
 
 A large part of the minority opinion is devoted to an 
 exposition of the English common-law doctrine of demur- 
 rers to evidence, whereby one party could demur to the 
 evidence of the other party having the onus of proof. 
 The minority see in this doctrine support for their dissent. 
 But this doctrine has no application to the case the 
 court had to decide. The doctrine did not give judges 
 power to disregard the verdict of a jury finding a material 
 fact, to find the fact themselves, and to enter judgment; 
 it was a doctrine that authorized the trial judge to dis- 
 charge the jury from giving any verdict. When the 
 trial judge allowed one party to raise a doubtful point of 
 law by demurring to the evidence of the other party 
 having the onus of proof, and the latter party joined in 
 
 on a question of fact or on a question of law, unless the matter is a discretionary 
 one. 
 
 The phrase "question of law for the judge," as commonly used in some cases 
 by even the best judges, as by Willes, J., in Ryder v. Wombwell, L. R. 4 Ex., 38, 
 and by Lord Blackburn in Metropolitan R. Co. v. Jackson, 3 App. Cas., 193, is 
 of no consequence under the Seventh Amendment, where "substance" has the 
 right of way. In a criticism of the Draft Criminal Code of 1879, quoted in Thayer, 
 Evidence, 202, Cockburn, C. J., said: "The right mode of dealing with a question 
 of fact which it is thought desirable to withdraw from the jury is to say that it 
 shall, through a question of fact, be determined by the judge." And in Metropol- 
 itan R. Co. b. Jackson, L. R. 2 C. P. D., 125, 139, Cock, C. J., unlike most of the 
 judges concerned in that case, seemingly carefully avoided the phrase "question of 
 law for the judge." 
 
 How subtle, common, and dangerous in constitutional law is the error of mis- 
 taking a question of fact for one of law simply because it is for the judge, comes 
 out in those numerous state decisions denounced, and justly denounced, by Mr. 
 Roosevelt, overthrowing state legislation for collision with the due-process prohi- 
 bitions as having no possible connection with the general welfare. The question 
 in such cases, viz., whether a state legislature could or might find the legislation 
 in question has any possible connection with the genera' welfare, ordinarily is a 
 
NEW TRIALS AND SEVENTH AMENDMENT 309 
 
 the demurrer, the trial judge discharged the jury from 
 giving any verdict at all; and the demurrer to the evi- 
 dence went to the court in banc and thence to the court 
 of error or appeal for judgment on the doubtful point 
 of law. The books say the "most usual" practice was for 
 the trial judge to discharge the jury from giving any ver- 
 dict, the question of the amount of the plaintiff's dam- 
 ages to be submitted to a new jury of inquiry after the 
 judgment of the court in banc or court of error or appeal 
 on the doubtful point of law raised by the demurrer to 
 the evidence, if the judgment of the court in banc or court 
 of error or appeal was for the plaintiff. But the books also 
 say it was permissible for the trial judge to employ the 
 jury that heard the evidence demurred to as a jury of 
 inquiry to assess the plaintiff's damages conditionally, i. e., 
 subject to the judgment of the court in banc or court of 
 error or appeal on the doubtful point of law raised by the 
 demurrer to the evidence. Such a verdict of the jury 
 acting as a jury of inquiry to assess the plaintiff's damages 
 conditionally was not, however, a verdict on any material 
 
 question of fact, not of law, though it is for the judge under our system of consti- 
 tutional law; that the question is one of fact ordinarily is made plain by Muller v. 
 Oregon, 208 U. S., 412, sustaining the Oregon ten-hour law for women in specified 
 lines of employment. In Adair v. United States, 208 U. S., 161, by a six to two 
 vote, the Supreme Court of the United States held an act of Congress forbidding 
 interstate carriers to discharge an employee because he is a member of a labor 
 union, falls outside the grant of power to Congress to regulate interstate commerce, 
 because the act has no possible "legal or logical" connection with the carrying on 
 of interstate commerce. Criticizing the majority opinion of Harlan, J., in 42 
 Am. Law Rev., 161, 163, Mr. Richard Olney said: "If the court, in the place of 
 the 'legal and logical' conundrum to which it devotes its attention [i. e., in the 
 words of Harlan, J., 'what possible legal or logical connection is there between 
 an employee's membership in a labor organization and the carrying on of inter- 
 state commerce?'] had asked itself, what connection, as a matter of fact, is there 
 between an employee's membership in a labor organization and the carrying on of 
 interstate commerce, it would have broached an inquiry going straight to the 
 root of the matter." Mr. Olney has the support of Marshall, C. J., in M'Culloch 
 v. Maryland, 4 Wheat., 316, 421, 422, 423. See Wisconsin, Kansas & Texas 
 R. Co. v. May, 194 U. S., 267, 269. 
 
310 CONSTITUTIONAL LAW 
 
 issue of fact relevant to the defendant's legal liability. 
 There was no such practice as a demurrer to the evidence 
 and at the same time a submission of the evidence em- 
 braced in the demurrer to the jury to decide a material 
 issue of fact relevant to the defendant's legal liability. 67 
 The minority could use, and in fact did use, the English 
 common-law doctrine of demurrers to evidence only to 
 support their thesis, that the question whether there is 
 any evidence or enough evidence for a jury to act on by 
 finding a verdict on a material issue of fact for the party 
 having the onUs of proof, is a question of law, not of fact, 
 and such a question of law as rules the case, within the 
 meaning of the phrase "no fact tried by a jury," in the 
 second clause of the Seventh Amendment. But there is 
 nothing in the English common-law doctrine of demurrers 
 to evidence that lends any support to that thesis, for at 
 least two reasons, viz., (1) at the time the Seventh Amend- 
 ment was proposed and adopted, the English common- 
 law demurrer to parol evidence, such as the evidence in 
 this case, 68 had its foundation in the consent of parties; 
 and (2) the English common-law demurrer to parol evi- 
 dence could not be employed, even before Gibson v. 
 Hunter 69 in 1793, when it rested on the foundation of the 
 consent of parties, or after Gibson v. Hunter, when it 
 rested on the foundation of the discretion of the trial 
 judge, to transfer from the jury to the trial judge and to 
 the court in banc and court of error or appeal power to 
 find a material fact against the party having the onus 
 
 67 Darrose v. Newbott, Cro. Car., 143, in 1629; 2 Plowden, 408, note; 75 Eng. 
 Reprint, 615. 
 
 68 Both the plaintiff and the defendant introduced evidence. There was no 
 such thing as a common-law demurrer to the evidence of both sides, only to the 
 evidence of the party having the onus of proof. Fowle v. Alexandria, 11 Wheaton, 
 380. 
 
 "» 2 H. Bl., 187. 
 
NEW TRIALS AND SEVENTH AMENDMENT 311 
 
 of proof when the court thought he had not produced 
 any evidence or enough evidence to warrant a jury in 
 finding a verdict for him on a material issue of fact. 
 
 The chief authority relied on by the minority for the 
 English common-law doctrine of demurrers to evidence 
 is the advisory opinion to the House of Lords in Gibson v. 
 Hunter, drawn up by Lord Eyre. That opinion was 
 delivered in 1793, about four years after the Congressional 
 proposal, and about two years after the adoption, of the 
 Seventh Amendment; hence it is valueless in federal 
 courts under the Seventh Amendment except in so far 
 as it discloses the understanding of the English judges 
 in 1793 of the English common-law doctrine of demurrers 
 to evidence, as that doctrine stood before that advisory 
 opinion and when the Seventh Amendment was proposed 
 and adopted. 
 
 With reference to their foundation, whether in the 
 consent of parties or in the discretion of the trial judge, 
 English common-law demurrers to evidence before Lord 
 Eyre's advisory opinion must be divided, as Lord Eyre 
 divided them, into (1) the demurrer to written evidence, 
 and (2) the demurrer to parol evidence. The former is the 
 older, the earliest commonly known instance of it being 
 the one in 1456 found by Professor Thayer. 70 Before the 
 proposal and adoption of the Seventh Amendment the 
 demurrer to written evidence did come to have its founda- 
 tion in the discretion of the trial judge, which was appar- 
 ently a one-sided discretion to refuse to allow the pro- 
 cedure if he saw fit. When one party on the trial offered 
 to demur to the written evidence of the other party having 
 the onus of proof, and the trial judge ordered the latter 
 party to join in the demurrer, the ruling of the trial 
 
 70 Thayer, Evidence, 234, note 2. The case is printed in Thayer's Cases on 
 Evidence, 2d Ed., 201. It shows that in 1486 the demurrer to written evidence 
 was founded in the consent of parties. 
 
312 CONSTITUTIONAL LAW 
 
 judge could be reviewed and reversed on a bill of excep- 
 tions; 71 but if the trial judge refused to allow the procedure 
 of a demurrer to written evidence, such refusal of the trial 
 judge was conclusive and final on the party offering to 
 demur, not reviewable or reversible by a court of error 
 or appeal, and the evidence had to go to the jury for their 
 verdict. Lord Eyre quotes Dodderidge, J., whom he 
 calls "one of the ablest men upon the bench," as saying in 
 1619 in Worsley v. Filisker, 72 "the trial judge always could 
 deny and hinder a party from demurring to the evidence 
 of the other party having the onus of proof by telling him 
 the point of law he wanted to raise by that mode of pro- 
 cedure is clear in law," "cleere in le ley." 73 
 
 With reference to the demurrer to parol evidence, 
 Lord Eyre said: 
 
 "My Lords, it is said in some of our books, that upon a demurrer 
 entered upon parol evidence, the party offering the evidence may 
 choose whether he will join in the demurrer or not." 
 
 71 Fowle v. Alexandria, 11 Wheaton, 320; Dormady v. State Bank, 3 111., 236. 
 
 72 2 Rolle, 119. 
 
 73 In Gibson v. Hunter, 2 H. Bl., 187, 208-209, Lord Eyre said the refusal of the 
 trial judge to allow the procedure by way of demurrer to evidence "might, I pre- 
 sume, have been the subject of a bill of exceptions. 1 ' Tidd, Practice, 9 Eng. Ed., 
 862, says a bill of exceptions could be taken to a ruling of a trial judge "refusing 
 a demurrer to evidence," citing Gibson v. Hunter, supra, Cort v. Bishop of St. 
 Davids, Cro. Car., 341, in 1638, and Bridgman v. Holt, Show, P. C, 117, 120, in 
 1693. Cort v. Bishop of St. Davids perhaps sustains Tidd, when the demurrer 
 was to written evidence. But the established view of the Supreme Court of the 
 United States is that the refusal of the trial judge to allow the procedure by way 
 of demurrer to evidence is not reviewable on a bill of exceptions, and the court 
 has not drawn or intimated any distinction between written evidence and parol 
 evidence, though in all the cases the evidence was parol. Young v. Black, 7 Cr., 
 565, 569, 570, in 1813; Suydam v. Williamson, 20 How., 427, 435, 436, in 1857; 
 Van Stone ». Stillwell & Bierce Mfg. Co., 142 U. S., 128, 133, 134, in 1891. It is 
 hard to see how the Supreme Court could refuse to follow the view expressed 
 in those cases on the theory it is obiter and wrong. The general idea of English 
 courts of error was that a matter of the kind in question was discretionary. See 
 the advisory opinion in Mellish v. Richardson, 9 Bing., 125, in 1832. The very 
 positive opinion of Livingston, J., in Young v. Black, 7 Cr., 565, 569, sounds right 
 in principle, if it is untouched by contrary authority. 
 
NEW TRIALS AND SEVENTH AMENDMENT 313 
 
 And it seems plain enough that was the declared rule 
 in the English books when the Seventh Amendment was 
 proposed and adopted; 74 and the opinion of Lord Eyre 
 shows on its face the English judges thought so in 1793. 
 It is clear, for Lord Eyre's opinion says so, the English 
 judges in 1793 in Gibson v. Hunter shifted the foundation 
 of the demurrer to parol evidence from the consent of 
 parties to the foundation of the demurrer to written evi- 
 dence, i. e., the one-sided discretion of the trial judge to 
 refuse to allow the procedure. The conscious effort of . 
 the English judges in Gibson v. Hunter was to obliterate 
 the procedural differences between the demurrer to written 
 evidence and the demurrer to parol evidence, and to de- 
 clare one single, coherent, harmonious doctrine, for other- 
 wise, as the advisory opinion says on p. 207, "there will 
 be no consistency in the doctrine of demurrers to evi- 
 dence." 
 
 Before Gibson v. Hunter the demurrer to written evi- 
 dence perhaps could be, and sometimes was, employed 
 to transfer from the jury to the trial judge and to the court 
 in banc and court of error or appeal the question, whether 
 the written evidence of the party having the onus of 
 proof, when he produced only written evidence to support 
 the facts essential to his case, was enough to establish 
 those facts, with power to find the fact in issue against 
 the party offering the written evidence. 75 But it seems 
 that was not upon the theory that the question of the 
 probative import of written evidence is always and neces- 
 sarily a question of law, and not of fact, but upon the 
 
 74 Middleton v. Baker, Cro. Eliz., 752, in 1600; Plowden, 4, note; 75 Eng. Re- 
 print, 5. In the form of a demurrer to evidence in Buller's Nisi Prius, 6th Ed., ch. 
 on "Demurrers to Evidence,'' and in Gibson v. Hunter, 2 H. Bl., 187, 200, 201, the 
 order discharging the jury recites it is on consent of parties. 
 
 76 Thayer, Evidence, 104-112; 203-207; 234; Middleton v. Baker, Cro. Eliz., 
 752. 
 
314 CONSTITUTIONAL LAW 
 
 theory that a party having the onus of proof who pro- 
 duces written evidence of facts in issue ordinarily prove- 
 able by written evidence, and thereby becomes entitled 
 to the privilege of depriving his adversary of the right to 
 have the jury find a verdict upon their own knowledge, 
 ought not to be allowed to compel his adversary "to put 
 a matter of difficulty to lay gents" ; and when the language 
 of the records, charters, and other written documents 
 commonly produced in evidence in those early days, and 
 the state of public education, are borne in mind, it is 
 evident the English judges in those days showed good 
 sense and due regard for justice to the party in their 
 selection of a place to begin the judicial process of setting 
 limits to what a jury could or might know upon their 
 own knowledge. 76 
 
 During the whole period when the demurrer to evidence 
 can be said to have been at all familiar in practice in the 
 English courts, i. e., from 1456 down to 1665, when the 
 motion for a new trial was extended to the case where 
 the party who lost before the jury claimed the verdict was 
 a false verdict against the weight of the evidence, the rule 
 was in force allowing the jury to find a verdict upon their 
 own knowledge of the fact in issue; and was in full force 
 against the party who offered to demur to the parol evi- 
 dence of the other party having the onus of proof; and 
 the rule of practice and procedure was, that the party 
 offering to demur to the parol evidence of the other party 
 having the onus of proof must confess and admit every 
 fact alleged by the latter party as essential to support his 
 case, which the jury could or might find in his favor upon 
 their own knowledge; and this rule meant, that a party 
 
 76 Middleton v. Baker, Cro. Eliz., 752. In McGuire v. Western Morning News 
 Co. [19031, 2 K. B., 100, 109, Collins, M. R., quotes Lord Bowen as saying the 
 defense of "fair comment" on a literary work, when it arises on the face of an 
 alleged libel, is not for "the man on the Clapham omnibus" to decide. 
 
NEW TRIALS AND SEVENTH AMENDMENT 315 
 
 who offered to demur to the parol evidence of the other 
 party having the onus of proof could not deny the truth 
 of the facts alleged by the latter party, but must confess 
 and admit them to be true; and by his demurrer to parol 
 evidence did confess and admit them to be true, for on a 
 demurrer to parol evidence the judges did not set limits 
 to what a jury could or might find upon their own know- 
 ledge in favor of the party whose parol evidence was 
 demurred to. As said in 1571 in Nevis v. Lark: 
 
 "A demurrer upon evidence goes to the law upon the matter, and 
 not to the truth of the fact, but denies the operation of the law 
 thereupon"; "a demurrer upon evidence never denies the truth of 
 the fact, but confesses the fact, and denies the law to be with the 
 party who shews the fact"; 77 
 
 and Lord Eyre said in Gibson v. Hunter in 1793 : 
 
 "The precise operation of that demurrer is, to take from the 
 jury and refer to the judge the application of the law to the fact." 
 
 The guiding and controlling rule on demurrers to 
 evidence was the maxim, ex facto oritur jus. The func- 
 tion of the procedure was to raise and preserve a doubt- 
 ful point of law arising on the trial for the court in banc 
 and court of error or appeal ; the factum upon which the 
 doubtful point of law (jus) arose had to exist in the case 
 of the party having the onus of proof, and had to be ad- 
 mitted by the party offering to raise and present the 
 doubtful point of law by that mode of procedure ; neither 
 the trial judge nor the court in banc nor the court of 
 error or appeal had any judicial power whatever to find 
 the fact against the party whose parol evidence was 
 
 " 2 Plowden, 403, 411; Middleton v. Baker, Cro. Eliz., 752, in 1600; Wright v. 
 Pindar, Aleyn 18, Style 22, in 1647; Fitz-Harris v. Boiun, 1 Levinz, 87, in 1662; 
 3 Bl. Com., 372. It was "misbehavior" in counsel for one to demur to evidence 
 and the other to join in the demurrer, when the only issue between the parties 
 was one of fact. Wright v. Pindar, supra. 
 
316 CONSTITUTIONAL LAW 
 
 demurred to; the party offering the parol evidence had 
 the old common-law right to the verdict of a jury on the 
 factum. 
 
 Blackstone says 78 the demurrer to evidence, written 
 as well as parol, fell out of use after the motion for a new 
 trial was extended in 1665 to the case where the party 
 who lost before the jury claimed the verdict was a false 
 verdict against the weight of the evidence; and Lord 
 Eyre said in Gibson v. Hunter in 1793 the proceeding was 
 not familiar in practice. In 1779 in Cocksedge v. Fan- 
 shaw, 79 in 1787-93 in Mason v. Lickbarrow ; 80 and in 
 1791-1793 in Gibson v. Hunter, 81 after the rule allowing 
 the jury to find a verdict upon their own knowledge had 
 given way completely to the modern rule permitting the 
 jury to act only on evidence produced before them in 
 open court, there was an effort at the English bar to 
 revive the demurrer to parol evidence and to expand its 
 operation so as to include the question whether there is 
 any evidence or enough evidence for a jury to act on by 
 finding a verdict on a material issue of fact for the party 
 having the onus of proof, and to authorize the judges to 
 find a material fact against the party whose parol evi- 
 dence was demurred to. Taking the old form of the rule 
 that a party offering to demur to the parol evidence of 
 the other party having the onus of proof must confes 
 and admit every material fact alleged by the latter party 
 which a jury could or might find in his favor upon their 
 own knowledge, but dropping the words "upon their 
 own knowledge" and substituting the words, "upon the 
 evidence produced before them in open court," the point 
 was advanced by counsel for the demurring party in Cook- 
 
 78 3 Com., 372, 373. 
 
 79 1 Doug., 119. And see Cort v. Birbeck, 1 Doug., 218, 223, 224. 
 
 8° 1 H. Bl., 357; 2 T. R., 63; 2 H. Bl., 211. 
 
 81 2 H. Bl., 187. 
 
NEW TRIALS AND SEVENTH AMENDMENT 317 
 
 sedge v. Fanshaw, that a demurrer to parol evidence oper- 
 ates to transfer from the jury to the trial judge and to 
 the court in banc and court of error or appeal the power 
 to decide the question whether the party having the 
 onus of proof produced any evidence or enough evidence 
 on a material fact essential to his case for a jury to act 
 on by finding a verdict in his favor, and to find the fact 
 against him. In other words, the aim of counsel was to 
 bring that question as a question of law, not of fact, with- 
 in the terms of the traditional formula of the demurrer 
 to evidence, viz: 
 
 "The evidence is not sufficient in law to maintain the issue." 82 
 
 The effort of counsel to expand the operation of the 
 demurrer to evidence to include that question and to 
 create judicial power to find a material fact against the 
 party having the onus of proof, met with no encourage- 
 ment from the judges of the King's Bench in banc in 
 Cocksedge v. Fanshaw, Lord Mansfield saying nobody 
 else but a jury can try the fact upon which the parties are 
 at issue. And the effort of counsel to revive and expand 
 the demurrer to parol evidence was so completely de- 
 feated by Lord Eyre's advisory opinion in Gibson v. 
 Hunter that the demurrer to evidence, written as well as 
 parol, was at once put back into the English procedural 
 attic, where it was when Blackstone wrote and had been 
 for a century before, and has remained there ever since 
 in England. 83 
 
 Lord Eyre's advisory opinion in Gibson v. Hunter 
 changed the form of the demurrer to parol evidence. Be- 
 fore that the parol evidence demurred to was set out 
 either in haec verba or in substance in the demurrer; 
 
 82 See note 42, supra. Counsel emphasized the word, "sufficient," whereas 
 the emphasis is on the words, "in law." See 1 Doug., on p. 129. 
 
 83 Thayer, Evidence, 237, note 1; 122. 
 
318 CONSTITUTIONAL LAW 
 
 Lord Eyre's opinion declared that hereafter the party 
 demurring to parol evidence must also distinctly admit, 
 and state by way of recital in his demurrer, every fact 
 and every conclusion of fact which the parol evidence 
 demurred to conduced to prove; and on the basis of that 
 change in the form of the demurrer to parol evidence 
 Lord Eyre's advisory opinion shifted the foundation of 
 the demurrer to parol evidence from the consent of 
 parties to the one-sided discretion of the trial judge to 
 refuse to allow the procedure if he saw fit. This change 
 in the form of the demurrer to parol evidence resulted 
 from the overthrow of the rule allowing a jury to find a 
 verdict upon their own knowledge and the substitution 
 of the modern rule allowing a jury to find a verdict only 
 on evidence produced before them in open court; but 
 this change of form did not change the old rule of sub- 
 stance, that a party demurring to parol evidence cannot 
 deny the factum in the case of the party having the onus 
 of proof upon which factum the doubtful point of law 
 (jus) arises, but must admit it to be true. The judges 
 acquired no power from Lord Eyre's advisory opinion to 
 discharge the jury from giving a verdict upon a material 
 issue of fact, to find the fact against the party whose 
 parol evidence was demurred to, and to enter judgment 
 against him on their own finding of fact. Lord Eyre's 
 opinion expressly and pointedly saves and preserves the 
 old common-law right of the party offering the parol 
 evidence to the verdict of a jury on the factum. 84 
 
 Lord Eyre's advisory opinion in Gibson v. Hunter does 
 not support, and is against, the thesis of the minority of 
 the Supreme Court of the United States that the question, 
 whether there is any evidence or enough evidence for a 
 jury to act on by finding a verdict on a material issue of 
 
 84 See note 31, supra, on the nonsuit rule, and note 30, supra, on the directed 
 verdict. 
 
NEW TRIALS AND SEVENTH AMENDMENT 319 
 
 fact for the party having the onus of proof, is a question 
 of law, and not of fact. Lord Eyre's advisory opinion 
 distinctly repudiates altogether the idea of counsel in 
 Cocksedge v. Fanshaw that that question is one of law, 
 and not of fact, and so falls within the formula of the 
 demurrer to evidence, viz., "the evidence is not sufficient 
 in law to maintain the issue"; and the Supreme Court of 
 the United States held the same thing in 1826 in Fowle v. 
 Alexandria. 85 When, after the proposal and adoption of 
 the Seventh Amendment, the question finally fell within 
 the terms of the motion for a directed verdict on a mate- 
 rial issue of fact, it did so on the theory of Lord Eyre's 
 opinion in Gibson v. Hunter, viz., that the question was 
 one of fact, not of law; and for the practical reason that 
 to allow the trial judge to pass upon that question as one 
 of fact before the verdict on a motion for a directed ver- 
 dict, rather than only after the verdict on a motion for 
 a new trial, tended to the better administration of jus- 
 tice, the principle underlying this practical reason being 
 the modern medical man's favorite maxim, an ounce of 
 prevention is better than a pound of cure. 86 
 
 86 11 Wheaton, 320. 
 
 86 Pleasants v. Fant, 22 Wall., 116. 
 
 In some or all of the following cases, United States Bank v. Smith, 11 Wheat., 
 171, Columbus Ins. Co. v. Catlett, 12 Wheat., 383, Pawling v. United States, 
 4 Cr., 219, and Chinoweth v. Haskell, 3 Pet., 92, it seems the Supreme Court, on 
 demurrer to parol evidence, either did or intimated that it could examine the 
 evidence and make a finding of fact against the party having the onus of proof 
 whose evidence was demurred to; the majority say the court derived power to 
 do this from the consent of parties; the minority say the consent of parties was 
 of no significance in those cases. The majority appear to be right. The minority 
 make the English common-law demurrer to parol evidence the exact equivalent 
 of the present motion for a directed verdict on a material issue of fact. Their 
 authority for this view is a remark of Clifford, J., in Parks v. Ross, 11 How., 362, 
 373, in 1850, saying: A motion for a directed verdict on a material issue of fact 
 "answers the same purpose, and should be tested by the same rules [as a demurrer 
 to evidence]. A demurrer to evidence admits not only the facts stated therein, 
 but also every conclusion which a jury might fairly or reasonably infer therefrom." 
 The minority's idea of the operation of a common-law demurrer to evidence is 
 
320 CONSTITUTIONAL LAW 
 
 As the practice in the English Court of Appeal of enter- 
 ing judgment on the evidence for one party in disregard 
 of a general verdict of the jury for the other party, seems 
 to be the chief support of those who think the majority's 
 result in Slocum v. New York Life Insurance Co. is wrong, 
 
 not uncommon and issues out of a misunderstanding of the opinions of Lord 
 Mansfield and Buller, J., in Cocksedge v. Fanshaw, 1 Douglas, 119, decided in 1779, 
 before Gibson v. Hunter in 1793. In Cocksedge v. Fanshaw, the judges of the 
 King's Bench sitting in banc on a demurrer to parol evidence setting forth the 
 evidence in haec verba or in substance, were satisfied the evidence of the plaintiff 
 demurred to by the defendant conduced to prove the fact in issue, viz., the exis- 
 tence of an immemorial usage giving the plaintiff certain tolls collected on corn 
 imported into London ; and proceeded to decide the question of law arising thereon 
 whether the usage could have a legal commencement. If the judges had not been 
 satisfied the evidence set forth in the demurrer conduced to prove the essential 
 fact of immemorial usage relied on by the plaintiff on which the point of law 
 arose, it is clear the King's Bench in banc would not and could not have proceeded 
 on the demurrer to evidence to find the fact against the plaintiff and to enter 
 judgment against him. Lord Mansfield, on p. 132, and Buller, J., on p. 134, dis- 
 tinctly say that; and that was decided in Gibson v. Hunter as the note says on 
 p. 134 in the 1st Am. from the 3d Eng. Ed. of Douglas; and see Fowle v. Alex- 
 andria, 11 Wheat., 320; Wright v. Pindar, Aleyn 18, Style 22; Fitz-Harris v. 
 Boiun, 1 Levinz, 87, remembering that these two cases were governed by the rule 
 allowing the jury to find a verdict upon their own knowledge. 
 
 In Thayer, Evidence, 234, 235, it is said the English common-law demurrer 
 to evidence "had the effect to withdraw from the jury all consideration of the 
 facts; and, in their pure form, to submit to the court two questions, of which 
 only the second was, in strictness, a question of law, namely: whether a verdict 
 for the party who gave the evidence could be given (a) as a matter of legitimate 
 inference from the evidence; (b) as a matter of law." "The decision [i. e., Gibson 
 ■i>. Hunter] got rid of the first question, at least of its chief difficulties, and left only 
 the second." That may be misleading at first blush. But Professor Thayer 
 does not say or intimate the court ever could, on a demurrer to parol evidence, 
 find the fact against the party giving the evidence, when the court thought "a 
 verdict for the party who gave the evidence could" not "be given (a) as a matter 
 of legitimate inference from the evidence.'' He cites, p. 237, note 1, the argument 
 of counsel in Cocksedge v. Fanshaw as showing a "misconception" of the demurrer 
 to evidence, and says on p. 238, "what is called by this name [i. e., demurrer to 
 evidence] now is often a very different thing [from the common-law demurrer 
 to evidence]. And Professor Thayer evidently is against the thesis of the minor- 
 ity of the Supreme Court of the United States, that the question whether there 
 is any evidence or enough evidence on a material issue of fact for a jury to act 
 on by finding a verdict for the party having the onus of proof is a question of law, 
 and not of fact. See his discussion on pp. 221-232, of the rule that the question 
 of probable cause in malicious prosecution is for the judge. 
 
NEW TRIALS AND SEVENTH AMENDMENT 321 
 
 it seems appropriate to refer to the practice in the Eng- 
 lish Court of Appeal, and also to a recent decision of the 
 Massachusetts Supreme Court sustaining the constitu- 
 tionality of the Massachusetts n. o. v. statute of 1909 
 under the jury- trial provision of the Massachusetts con- 
 stitution, and to the Illinois practice allowing Illinois 
 Appellate Courts to find facts different from the finding 
 of a jury when the jury find a verdict for the plaintiff, 
 with a view to showing why, as it seems to me, the English, 
 Massachusetts, and Illinois practices are of little, if any, 
 value on the subject of trial by jury in the federal courts 
 under the Seventh Amendment. 87 
 
 In England, in 1886, in Millar v. Toulmin, 88 an action 
 by a real estate agent to recover commission for having 
 found a purchaser for property sold by the defendant, 
 the jury found a verdict for the defendant, on which the 
 trial judge, Coleridge, C. J., entered judgment for the 
 defendant. A Divisional Court, composed of Manisty 
 and Hawkins, J J., granted a new trial on the grounds of 
 misdirection and that the verdict was against the weight 
 of the evidence. On appeal, the Court of Appeal was 
 
 87 In a case turning on a question of law that rules the case where the trial 
 judge refuses to direct a verdict and the jury find a verdict, there can be no ques- 
 tion an English trial judge, Divisional Court, the Court of Appeal, and the House 
 of Lords may enter judgment on the evidence non obstante veredicto, when it is 
 determined the trial judge erroneously decided the question of law that rules the 
 case. See McGuire v. Western News Co. [1903], 2 K. B., 100; Thomas v. Brad- 
 bury, Agnew & Co. [1906], 2 K. B., 627; quaere, whether the question in those 
 cases, viz., whether, the defence being "fair comment," an alleged libel on its 
 face shows malice or improper motive, would be regarded as a question for the 
 judge in all our courts. See Fay v. Harrington, 176 Mass., 270, Holmes, C. J.; 
 Post Pub. Co. v. Peck, 199 Fed., 4, C. C. A., 1st C. Of course, in a case turning 
 on a question of fact, where the trial judge correctly rules there is nothing for the 
 jury to act on, as in Nash v. Inman [1908], 2 K. B., 1, and see Sparks v. Hughes 
 [1903], 1 K. B., 136, no jury trial question arises. And the same is true where 
 the trial judge by mistake thinks there is enough evidence for a jury to act on 
 and the jury cannot agree on a verdict, as in Paquin, Ltd., v. Beauclerk [1906], 
 A. C, 148. 
 
 88 17 Q. B. D., 603. 
 
322 CONSTITUTIONAL LAW 
 
 satisfied the verdict was against the weight of the evi- 
 dence, and claimed and exercised power, under Order 58, 
 rule 4, of the Orders and Rules of the Supreme Court, to 
 set aside the verdict of the jury, to make a finding of 
 fact different from the finding of the jury, to assess the 
 plaintiff's damages, and to enter judgment for the plain- 
 tiff, though admitting a Divisional Court could only 
 grant a new trial under Order 40, rule 10, the difference in 
 power arising out of the fact that Order 40, rule 10, 
 authorizes a Divisional Court to "draw all inferences of 
 fact, not inconsistent with the finding of the jury," while 
 Order 58, rule 4, authorizes the Court of Appeal to "draw 
 inferences of fact," dropping the limitation in Order 40, 
 rule 4, "not inconsistent with the finding of the jury." 
 On appeal, 89 the House of Lords reversed the Court of 
 Appeal on the evidence, and restored the verdict of the 
 jury, Halsbury, L. C, saying obiter: 
 
 "I doubt very much whether Order 58, rule 4, gives any such 
 jurisdiction as the Court of Appeal claimed to exercise in finding 
 a verdict for themselves and actually assessing damages for breach 
 of contract." 
 
 There is no answer to the point of Cock, Q. C, counsel 
 for the defendant, that the power claimed by the Court 
 of Appeal, as exercised in Millar v. Toulmin, practically 
 abolished trial by jury. 
 
 In 1891, in Allcock v. Hall, 90 an action of trespass for 
 damages and an injunction, where the jury specially 
 found the main issue of fact for the plaintiff, the trial 
 judge, Hawkins, J., reserved judgment; and the case 
 went to the Court of Appeal on a motion for a new trial 
 under the Judicature Act of 1890. The Court of Appeal 
 set aside the finding of the jury, found the main issue of 
 
 » 12 A. C, 747. 
 
 90 [1891], 1Q. B.,444. 
 
NEW TRIALS AND SEVENTH AMENDMENT 323 
 
 fact for the defendant, and entered judgment for the 
 defendant. Lindley, L. J., says the judges consulted 
 their colleagues in the other branch of the Court of Appeal 
 and they all agreed the Court of Appeal has power, under 
 Order 58, rule 4, to set aside the verdict of a jury, to 
 substitute their own finding of fact, and to enter judg- 
 ment. Lindley, L. J., asked the trial judge what he 
 thought about the verdict, and he said he was not satis- 
 fied with it; but it is not said or claimed anywhere in the 
 case, that the trial judge erred in not directing a verdict 
 for the defendant, instead of submitting the evidence 
 to the jury for a special finding on the main issue 
 of fact. 
 
 In 1905, in Watt v. Watt, 91 the House of Lords, over- 
 ruling the Court of Appeal on the point in Belt v. Lawes 92 
 in 1884, held the Court of Appeal has no power, without 
 the defendant's consent, in an action of tort where the 
 jury find a verdict for the plaintiff for a sum which the 
 Court of Appeal thinks unreasonable and excessive, to 
 order a new trial unless the plaintiff consents to reduce 
 the damages; and if the plaintiff consents, to enter 
 judgment against the defendant for the reduced amount, 
 as that would be allowing the Court of Appeal to act as 
 a jury to assess unliquidated damages. 
 
 In 1906, in Paquin, Limited, v. Beauclerk, 93 a milliner 
 brought an action against a married woman for the price 
 of articles of dress sold on credit; the defense was that 
 the married woman made the purchase as agent of her 
 husband, to which it was replied the milliner did not 
 know it. The evidence showed, and it was not disputed, 
 the married woman did, in fact, make the purchase as 
 agent of her husband, and the milliner, in fact, did not 
 
 91 [1905], A. C, 115. 
 
 92 12 Q. B. D., 356. 
 
 93 [1906], A. C, 148. 
 
324 CONSTITUTIONAL LAW 
 
 know it. The question was, whether to relieve the mar- 
 ried woman of personal liability under the Married Wom- 
 an's Property Act of 1893, declaring her liable personally 
 if she contracted "otherwise than as agent," it must 
 appear from the evidence, as Isaacs, K. C, argued, "not 
 merely that she was, in fact, an agent for her husband, 
 but also that the other contracting party knew it, and 
 contracted with her on those terms." On the trial, Law- 
 rence, J., submitted to the jury the question whether the 
 plaintiff knew the defendant was a married woman, and 
 the jury could not agree on a verdict. Lawrence, J., 
 then concluded there was no evidence for a jury, took 
 the case into his own hands, and entered judgment for 
 the plaintiff. On appeal, the Court of Appeal reversed 
 the judgment for the plaintiff, and entered judgment for 
 the defendant; on further appeal, the House of Lords 
 divided equally, two to two, so the judgment of the 
 Court of Appeal for the defendant stood. As there was 
 no verdict of a jury, and it was plainly a case for a directed 
 verdict, or for judgment without the formality of a direc- 
 ted verdict, for the plaintiff or for the defendant, whether 
 the case turned on a question of fact, as two of the judges 
 in the House of Lords thought, or on a question of law, as 
 the other two thought, the power of the Court of Appeal 
 under Order 58, rule 4, to find a material fact different 
 from the finding of a jury was not involved at all. Lore- 
 burn, L. C, however, put the following obiter paragraph 
 into his opinion, pp. 160, 161 : 
 
 "It was argued by Mr. Bankes that even if there had been some 
 evidence that the defendant contracted otherwise than as an agent, 
 the Court of Appeal would in this case have been at liberty under 
 Order 58, r. 4, to draw their own inferences of fact and to enter 
 judgment accordingly. The proper construction of Order 58, r. 4, 
 has been the subject of criticism in Millar v. Toulmin, and Allcock 
 v. Hall. In the latter case all the judges of the Court of Appeal 
 
NEW TRIALS AND SEVENTH AMENDMENT 325 
 
 concurred in the opinion that they were at liberty to draw infer- 
 ences of fact and enter judgment in cases where no jury could 
 properly find a different verdict. Obviously the Court of Appeal 
 is not at liberty to usurp the province of a jury; yet, if the evidence 
 be such that only one conclusion can properly be drawn I agree 
 that the court may enter judgment. The distinction between cases 
 where there is no evidence and those where there is some evidence, 
 though not enough properly to be acted upon by a jury, is a fine 
 distinction, and the power is not unattended by danger But if 
 cautiously exercised it cannot fail to be of value." 94 
 
 It is not at all certain the judges of the Court of Appeal 
 will be sustained by the House of Lords. 96 The judges 
 of the Court of Appeal have not even considered the 
 question how their view of its power under Order 58, 
 rule 4, is to be reconciled with the Parliamentary man- 
 date, as, e. g. in section 22 of the Judicature Act of 1875, 
 that the right of trial by jury is not to be taken away or 
 prejudiced by any Order or Rule of the Supreme Court. 
 The only expression by any judge of the Court of Appeal 
 that savors of a reason in support of their view of its 
 power is by Fry, L. J., in Millar v. Toulmin, p. 605, where 
 he says: "The reason [for dropping the words 'not incon- 
 sistent with the finding of the jury' out of O. 58, r. 4,] 
 appears to be that the Court of Appeal has power to 
 hear fresh evidence, and therefore ought not to be bound 
 by the finding of the jury in drawing inferences of fact." 
 That obviously is but a guess;' and if it is a good guess 
 the Court of Appeal's power to find a material fact differ- 
 ent from the finding of a jury ought to be limited to cases 
 where the Court of Appeal in fact hears fresh evidence. 
 Order 58, rule 4, and the above opinions of the judges 
 
 94 Notice that Loreburn, L. C, limits the power to cases where the trial judge 
 ought to have directed a verdict on a. material issue of fact different from the 
 one the jury found. The judges of the Court of Appeal did not so limit the 
 power in Millar v. Toulmin, and quaere whether they did in Alclock v. Hall. 
 
 96 But see Heilbut, Symons & Co. v. Buckelton [1913], A. C, 30, and comment 
 in note at end of this article. 
 
326 CONSTITUTIONAL LAW 
 
 of the Court of Appeal construing and applying it, evi- 
 dently are the work of English equity lawyers of the day 
 and generation of Lord Selborne, trying to realize the 
 law-reforming dream of the English equity lawyers of that 
 day and generation of a complete "fusion" of trial and 
 appellate procedure in common-law cases tried by a jury, 
 with trial and appellate procedure in equity cases tried 
 by a judge, without abolishing the jury in common-law 
 cases or extending the jury to equity cases. Fresh evi- 
 dence in a court of error or appeal in a common-law case 
 tried by a jury where the jury find a material fact is a 
 common-law absurdity, if the fresh evidence in the court 
 of error or appeal amounts to anything, unless the court 
 of error or appeal calls a fresh jury and conducts a fresh 
 trial by jury at its own bar. Finally, it may be that an 
 English judge possibly may be able to say that the ques- 
 tion — whether the rule of the English common law 
 allowing only another jury on a new trial to set a false 
 verdict right is an absolutely necessary and indispensable 
 means to preserve the jury in the English courts — is 
 open for debate before him; and an English judge pos- 
 sibly may be able to decide that question in the nega- 
 tive, though it is hard to see how he can do that in view 
 of the Parliamentary mandate binding upon him that the 
 right of trial by jury is not to be taken away or preju- 
 diced by judicial action i'n the form of practice rules or 
 otherwise. No federal judge can allow that question to 
 be debated before him; it was irrevocably decided, so far 
 as federal judges are concerned, by the adoption of the 
 Seventh Amendment. This difference is decisive against 
 the above opinions of the judges of the English Court of 
 Appeal on the subject of trial by jury in the federal courts 
 under the Seventh Amendment. 96 
 
 96 An act now pending in Congress for federal courts says: "The trial judge may 
 in any civil case submit to the jury in connection with the general verdict specific 
 
NEW TRIALS AND- SEVENTH AMENDMENT 327 
 
 In Massachusetts, in Bothwell v. Boston Elevated R. 
 Co., 97 decided September 12, 1913, there was an action 
 by an administrator for damages for the accidental killing 
 of a boy; the jury found a general verdict for the plain- 
 tiff; the Massachusetts Supreme Court thought the 
 evidence was not enough for a jury to act on by finding 
 that the boy, at the time of the accident, was actually and 
 actively in the exercise of the degree of care for his own 
 safety necessary to allow a recovery of damages under 
 the death-by-wrongful-act statute of Massachusetts, 
 and that the trial judge ought to have directed a verdict 
 for the defendant; they accordingly set aside the ver- 
 dict of the jury, and, pursuant to judicial power granted 
 by the Massachusetts n. o. v. statute of 1909, found the 
 material fact of contributory negligence different from 
 
 issues of fact arising upon the pleadings and evidence, reserving any question 
 of law arising in the case for subsequent argument and decision, and he and any 
 court to which the case shall thereafter be taken on writ of error shall have the 
 power to direct judgment to be entered either upon the verdict or upon the special 
 findings, if conclusive upon the merits." The act does not say the jury must make 
 special findings of fact if they do not want to ; if the act means that, it is probably 
 constitutional so far as that special-finding feature goes, in view of Walker v. 
 New Mexico & So. Pac. R. Co., 165 U. S., 593. The observations in Thayer, 
 Evidence, 217-219, seem convincing against the policy of giving the federal trial 
 judge power to compel the jury to make special findings of fact and in favor of 
 the present, freedom of the jury. If a competent federal judge thinks special 
 findings by the jury necessary in a given case, he can easily get the jury to consent 
 to make them, as the English judges do, as shown in Thayer, Evidence, 219. 
 The evident expectation is that the federal courts will hold that the phrase "any 
 question of la w" in the above proposed act includes the question, in a case turning 
 on a question of fact, whether there is any evidence or enough evidence for a jury 
 to act on. The federal courts are not likely to so hold, and if they do so hold they 
 will have to hold the act, if it is passed, encounters the Seventh Amendment, and 
 will have to reject the whole act as unconstitutional. Employers' Liability 
 Cases, 207 U. S., 463; Butts v. Merchants' and Miners' Transportation Co., 230 
 U. S., 126. It is not likely the judgment of the majority in Slocum v. New York 
 Life Ins. Co. will be overruled or disturbed, though it is likely the majority opinion 
 will be restrained to the facts of that case, i. e., a case turning on a material issue 
 of fact found by the verdict of a jury. See report of the Special Committee on 
 Law Reform of the American Bar Association, 1913, p. 26; pp. 16-23. Does the 
 imposed act authorize judgment n. o. v.? 
 97 102 N. E. Rep., 665. 
 
328 CONSTITUTIONAL LAW 
 
 the finding of the jury, and entered judgment for the 
 defendant. 
 
 The Massachusetts court held the Massachusetts 
 n. o. v. statute of 1909 not repugnant to the jury-trial 
 provision of the Massachusetts constitution. The 
 opinion on this jury- trial point is devoted chiefly, 
 if not exclusively, to showing why the Massachusetts 
 court thinks the majority of the Supreme Court of the 
 United States are wrong in Slocum v. New York Life 
 Insurance Co. The question whether the Massachu- 
 setts n. o. v. statute of 1909 would be constitutional in 
 the federal courts in Massachusetts under the Seventh 
 Amendment was not before the Massachusetts court. 
 The opinion of the Massachusetts court on the jury- trial 
 point is unsound, under the test of the rules of the Eng- 
 lish common law referred to in the Seventh Amendment, 
 and has no tendency to discredit the majority in Slocum 
 v. New York Life Ins. Co. It is not easy to reconcile 
 the opinion with the advisory opinion 98 of the Massachu- 
 setts court in 1911, telling the Massachusetts Senate the 
 judicial power of Massachusetts trial judges to grant a 
 new trial is an essential ingredient of trial by jury in 
 Massachusetts courts." Aside from the Massachusetts 
 opinion, however, and without reference to it, the Mass- 
 achusetts n. o. v. statute is sustainable under the jury- 
 trial provision of the Massachusetts constitution. So 
 far as appears, the jury- trial provision of the Massa- 
 chusetts constitution only says: "the parties have a right 
 to trial by jury"; it expressly specifies no means for pre- 
 serving the jury in Massachusetts courts from the danger 
 
 98 207 Mass., 606. 
 
 99 The Massachusetts court repeats the common error that a motion for a 
 directed verdict on a material issue of fact raises a question of law, not of fact; 
 but the court overlooked the phrase, "question of law," in the Massachusetts 
 reserved-question statute of 1913 (Mass. Laws, 1913, c. 716). The Massachusetts 
 Legislature could not have intended the two statutes to overlap on that point. 
 
NEW TRIALS AND SEVENTH AMENDMENT 329 
 
 of any further expansion of the judicial power into the 
 province of the jury. The Massachusetts n. o. v. statute 
 of 1909 clearly makes a legislative grant of judicial power 
 to find a material fact different from the finding of a jury 
 in cases where the trial judge ought to have directed a 
 verdict but refused to do so, and the jury found a verdict 
 on a material issue of fact. The Massachusetts legis- 
 lature thereby expressed its own confidence, and the con- 
 fidence of the people of the state, that Massachusetts 
 judges, present and future, can be relied on not to employ 
 this new judicial power to betray their trust to preserve 
 the jury in Massachusetts courts. Unless the Massa- 
 chusetts Supreme Court could say affirmatively, that the 
 necessary practical effect of this new judicial power will 
 be to destroy the jury in Massachusetts courts, it could 
 not declare the statute repugnant to the jury- trial pro- 
 vision of the Massachusetts constitution. It is hard to 
 see how the Massachusetts court could go any further 
 than to affirm this new judicial power is dangerous to the 
 jury, if abused; but the court had to assume it would not 
 be abused by the judges. The Seventh Amendment ex- 
 pressly declares that judicial power to find a material 
 fact different from the finding of a jury cannot be lodged 
 in federal judges, unless such judicial power necessarily 
 tends practically to better preserve the jury in the federal 
 courts. Judicial power that does not tend necessarily 
 to better preserve the jury does not, therefore, tend 
 necessarily to destroy the jury. The jury-trial provision 
 of the Massachusetts constitution and the Seventh 
 Amendment differ in their expressions of political and 
 constitutional wisdom touching the danger to the jury 
 from the further expansion of the judicial power into the 
 province of the jury, and touching the way to guard the 
 jury from that danger; the Seventh Amendment express- 
 ly prohibits judicial power to find a material fact different 
 
330 CONSTITUTIONAL LAW 
 
 from the finding of a jury; the Massachusetts consti- 
 tution contains no such expressed prohibition. 100 
 
 In Illinois, in 1877, as a part of the legislative process 
 of organizing intermediate appellate courts under article 
 6, section 11, of the state constitution of 1870, the legis- 
 lature passed a statute saying: 
 
 "If any final determination of any cause . . . shall be made 
 by the appellate court as the result wholly or in part of the finding 
 of the facts concerning the matter in controversy different from the 
 finding of the court from which such cause is brought by appeal or 
 writ of error, it shall be the duty of such appellate court to recite 
 
 100 The English Parliamentary mandate that the right of trial by jury is not to 
 be taken away or prejudiced by judicial action in the form of orders and rules of 
 practice or otherwise is addressed to the English judges exclusively; and forbids 
 them to seize judicial power by their own act to the prejudice of the jur.y. The 
 view of Loreburn, L. C, that judicial power to find a material fact different from 
 the finding of a jury is "not unattended by danger," is enough, as it seems to me, 
 to restrain English judges from seizing that judicial power. If they think that 
 judicial power is desirable, then Sec. 75 of the Judicature Act of 1873 provides 
 for an annual council of judges with power and under a duty to report to "one of 
 Her Majesty's Principa' Secretaries of State" "what other provisions (if any) 
 which cannot be carried into effect without the authority of Parliament, it would 
 be expedient to make for the better administration of justice." The Massachu- 
 setts constitutional provision saying, "the parties have a right to jury trial," 
 while it forbids Massachusetts judges to seize judicial power to find a material 
 fact different from the finding of a jury, does not permit Massachusetts judges 
 to decline to exercise that judicial power when it is thrust upon them by the 
 Massachusetts legislature. Judicial doubt of constitutionality is enough to keep 
 judges from seizing judicial power by their own act, but it is not enough to justify 
 them in refusing to exercise judicial power thrust upon them by the legislature. 
 The minority opinion in Slocum v. New York Life Ins. Co. overlooks this dis- 
 tinction, which is not a fine or pedantic distinction, but is practical and funda- 
 mental in constitutional law and cannot be disregarded without danger. Judicial 
 power to find a material fact different from the finding of a jury was not thrust 
 upon the Pennsylvania federal judges by Congress; they seized it by their own act 
 done under a general authority in the Conformity Act to adopt local forms and 
 modes of procedure, the Conformity Act giving them a wide discretion to adopt or 
 not to adopt as they saw fit. The act of the Pennsylvania federal judges seizing 
 this judicial power is of at least doubtful constitutionality under the Seventh 
 Amendment, and therefore should be held unconstitutional, assuming their act 
 falls within the general grant of authority in the Conformity Act. See note 8, 
 supra. But there is no question, as it seems to me, an Act of Congress giving the 
 judicial power in question would be repugnant to the Seventh Amendment. 
 See note at end of article on the Massachusetts case. 
 
NEW TRIALS AND SEVENTH AMENDMENT 331 
 
 in its final order, judgment, or decree the facts as found, and the 
 judgment of the appellate court shall be final and conclusive as to 
 all matters of fact in controversy in such case." 
 
 The Illinois Supreme Court silently assumed, at least 
 as early as 1883, 101 this statute was not limited to cases 
 tried by a judge without a jury, but extended to cases 
 tried by a jury. In 1888, 102 though the case before the 
 court was one tried by a judge without a jury, the Su- 
 preme Court expressly said the statute extended to cases 
 tried by a jury; but they confined the power of appellate 
 courts to find the facts different from the finding of a 
 jury to cases where the trial judge ought to have directed 
 a verdict different from the one the jury found; and they 
 said the statute so construed and confined was not repug- 
 nant to the jury- trial provision of the state constitution, 
 because the statute only authorized the judges of appel- 
 late courts to exercise the judicial power to direct a ver- 
 dict the trial judge could, and should, have exercised on 
 the trial before the verdict; but they said the statute 
 would be repugnant to the jury-trial provision of the 
 state constitution, if construed as authorizing the judges 
 of appellate courts to find the facts different from the 
 finding of a jury in cases not proper for a directed ver- 
 dict different from the one found by a jury, as that would 
 be turning the judges of appellate courts into appellate 
 juries, with power to make an original and independent 
 re-examination of the evidence by the exercise of their 
 own private judgment; and they said the formal require- 
 ment of the statute that the judges of appellate courts 
 must recite their finding of facts in their reversing judg- 
 ments, was designed, to prevent them from arrogating 
 
 101 Brown v. City of Aurora, 109 III., 165. 
 
 102 Commercial Ins. Co. v. Scammon, 123 111., 607; and see Jones v. Fortune, 
 128 111., 518, in 1899. Neer v. 111. Cent. R. Co., 138 111., 29, in 1891. Siddall ». 
 Jansen, 143 111., 537, in 1892; Neer v. 111. Cent. R. Co., 151 111., 141, in 1894. 
 
332 CONSTITUTIONAL LAW 
 
 to themselves arbitrary or capricious power to find 
 the facts different from the finding of the jury. This 
 remained the declared view of the Illinois Supreme 
 Court of the construction and constitutionality of the 
 above statute of 1877, until 1896. In 1892, in Siddall v. 
 Jansen, 103 Magruder, J., who had concurred in, or had not 
 dissented from, the previous opinions of the court, separ- 
 ated from the rest of the court and dissented, expressing 
 the view the statute must be limited to cases tried by a 
 judge without a jury; and he said the attempt of the 
 court to harmonize the statute with the jury-trial pro- 
 vision of the state constitution, on their construction 
 extending the statute to cases tried by a jury, by confining 
 the power of the judges of appellate courts to find the 
 facts different from the finding of a jury to cases where 
 the trial judge ought to have directed a verdict different 
 from the one found by the jury, rendered the statute 
 nugatory and futile, because a directed verdict expresses 
 a conclusion of law, not of fact. In 1896, in Borg v. 
 Chicago, R. I. & P. R. R. Co., 104 Magruder, J., dissenting, 
 which was an action for damages for personal injuries 
 caused by negligence, where the jury found a general 
 verdict for the plaintiff, and the trial judge entered judg- 
 ment thereon for the plaintiff, and the judges of the 
 appellate court reversed the judgment for the plaintiff, 
 reciting in their reversing judgment a finding of facts 
 different from the finding of the jury, saying the injury 
 to the plaintiff was the result of his own carelessness and 
 not of any negligence of the defendant, the Supreme 
 Court — its personnel having changed, five of the older 
 judges having given way by death and failure of re- 
 election to five new judges — adhered to the previous 
 
 103 143 111., 537. 
 1M 162 111., 348. 
 
NEW TRIALS AND SEVENTH AMENDMENT 333 
 
 declared view of the court that the statute was not lim- 
 ited to cases tried by a judge without a jury, but extended 
 to cases tried by a jury; but they reversed the previous 
 declared view of the court, that the power of the judges 
 of appellate courts to find the facts different from the 
 finding of a jury must be confined to cases where the trial 
 judge ought to have directed a verdict different from the 
 one the jury found, took up the dissenting opinion of 
 Magruder, J., in Siddall v. Jansen in 1892, and made it 
 the law, in so far as Magruder, J., said a directed verdict 
 expresses a conclusion of law, not of fact, the court 
 saying: 
 
 "When a trial court acts upon a motion to direct any particular 
 verdict, the question raised and passed upon is one of law, and not 
 of fact;" 
 
 and they declared: 
 
 "It is plain the statute does not refer to such questions [as those 
 raised by a motion to direct a verdict], but is designed to confer 
 upon the Appellate Court more extended powers than are possessed 
 by the judge of the trial court, and to give to the former court the 
 power, upon a consideration of the facts, to find them different from 
 the finding of the court from which the case is brought, provided it 
 shall recite in its final order, judgment, or decree the facts so found." 
 
 Thus in 1896, the Illinois Supreme Court turned the 
 judges of the appellate courts of Illinois into appellate 
 juries, with power to make an original and independent 
 re-examination of the evidence by the exercise of their 
 own private judgment, to substitute their own finding of 
 facts for the verdict of the jury, and to enter judgment 
 thereon. 105 The Illinois Supreme Court admitted that 
 an appellate jury in the form of a bench of judges in a 
 
 105 It is intimated in 162 111., on p. 354, the court only reverted to the original 
 construction of the act in 1881 in Fitzsimmons v. Cassell, 98 111., 332. But it 
 does not appear from the report the case was one tried by a jury; it was a case of a 
 claim against the estate of a deceased person, and the probability is it was tried 
 by a judge without a jury. See Cassell v. Fitzsimmons, 6 111. App., 525. 
 
334 CONSTITUTIONAL LAW 
 
 court of error or appeal destroys trial by jury according 
 to the rules of the English common law referred to in the 
 Seventh Amendment; but they said an appellate jury 
 in the form of a bench of judges in a court of error or 
 appeal is allowable under the jury- trial provision of the 
 Illinois constitution of 1870, because, prior to 1870, and at 
 least since the statute of 1837 authorizing an appellate 
 review of an order of a trial judge refusing a new trial, 
 the Illinois Supreme Court had acted as an appellate jury 
 with power to make an original and independent re- 
 examination of the evidence, to make a finding of facts 
 different from the finding of the jury, to substitute their 
 own finding of fact for the verdict of the jury, and to 
 reverse thereon without remanding for a new trial; and 
 when the constitution of 1870 said in article 2, section 5, 
 
 "The right of trial by jury as heretofore enjoyed, shall remain 
 inviolate," 
 
 it sanctioned legislation creating an appellate jury in the 
 form of a bench of judges in a court of error or appeal. 
 
 In 1898, in City of Spring Valley v. Spring Valley Coal 
 Company, 106 the Illinois Supreme Court drew a discrimi- 
 nation between the plaintiff and defendant, confining 
 the power of judges of appellate courts to try cases de 
 novo as appellate juries, to cases where the jury find a 
 verdict for the plaintiff, denying any such power in cases 
 where the jury find a verdict for the defendant. The case 
 was an action by the Spring Valley Coal Company 
 against the City of Spring Valley for damages for the 
 destruction of property by a mob; the jury found a 
 general verdict for the defendant, on which the trial 
 judge entered judgment for the defendant; on appeal 
 the judges of the appellate court reversed the judgment, 
 made a finding of facts for the plaintiff, assessed the 
 
 106 173 111., 497. 
 
NEW TRIALS AND SEVENTH AMENDMENT 335 
 
 plaintiff's damages, and entered judgment for the plain- 
 tiff. The Illinois Supreme Court reversed the judg- 
 ment, saying the above statute of 1877, if extended to 
 cases tried by a jury where the jury find a verdict for 
 the defendant, would be repugnant to the jury-trial 
 provision of the Illinois constitution of 1870. They said: 
 
 "The question whether a statute infringes the constitutional 
 provision that the right of trial by jury as theretofore enjoyed shall 
 remain inviolate raises a purely historical question, and nothing 
 else." 
 
 And the history of jury trial in Illinois, they said, 
 allows an appellate jury in the form of a bench of judges 
 in a court of error or appeal only when the jury find a ver- 
 dict for the plaintiff, not when they find a verdict for the 
 defendant, there being no instance where the Illinois 
 Supreme Court, prior to the constitution of 1870, re- 
 versed a judgment for the defendant without a remand- 
 ing order for a new trial in a case where the jury found a 
 verdict for the defendant. 
 
 In 1906, in Larkins v. Terminal R. Co., 107 overruling 
 the Appellate Court for the First District on the point, 
 the Illinois Supreme Court decided, that a judgment of 
 an Illinois appellate court reversing a judgment for the 
 plaintiff on a general verdict of a jury, where the judges 
 of the appellate court recite in their reversing judgment 
 their finding of facts different from the finding of the 
 jury, is a bar to another action by the plaintiff for the 
 same cause of action. 108 
 
 107 221 III., 428. 
 
 108 An Illinois appellate-court finding of facts different from the verdict of a 
 jury for the plaintiff is conclusive against the plaintiff, however arbitrary or 
 capricious the appellate-court finding of facts against the plaintiff may be. But 
 when an Illinois appellate court affirms a judgment for the plaintiff on a general 
 verdict for the plaintiff, until 1909 the defendant could go to the Supreme Court 
 and secure a re-examination of the evidence by the Supreme Court to determine 
 whether the trial judge ought to have directed a verdit for the defendant. In 
 
336 CONSTITUTIONAL LAW 
 
 It does not admit of discussion the Illinois appellate 
 practice of entering judgment for the defendant in dis- 
 regard of the general verdict of a jury for the plaintiff 
 finding material facts, cannot become an appellate prac- 
 tice in federal courts of error or appeal ; the second clause 
 of the Seventh Amendment is against it. 
 
 It is hard to see how the Illinois appellate practice can 
 stand under the federal constitution even in Illinois ap- 
 pellate courts. The Illinois discrimination against the 
 plaintiff and in favor of the defendant, bring the above 
 statute of 1877, on which the Illinois appellate practice 
 is founded, into collision with the prohibition in the 
 Fourteenth Amendment: 
 
 "Nor shall any state . . . deny to any person within its 
 jurisdiction the equal protection of the laws." 
 
 At least it is not easy to formulate a satisfactory answer 
 to the point. 109 
 
 1909 an Illinois statute (111. Laws, 1909, 304) modeled on the certified-question 
 and certiorari sections of the federal Circuit Court of Appeals Act, now federal 
 Judicial Code, Sees. 239, 240, changed the right to go from an Illinois Appellate 
 Court to the Supreme Court into a sort of privilege resting in judicial discretion 
 manifested by an order of an Appellate Court granting a certificate of importance, 
 or an order of the Supreme Court granting a writ of certiorari. 
 
 109 In 1907 and 1908, in Jones v. Chicago, R. I. & P. R. Co., 231 111., 302, Hecker 
 d. 111. Cent. R. Co., 231 111., 574, Hackett v. Chicago City R. Co., 235 111., 116, and 
 Hayward v. Senchenbaugh, 235 111., 580, the Illinois Supreme Court declared un- 
 constitutional, as a denial by the state of the equal protection of the laws, by 
 putting the parties to an action on an unequal legal footing, a legislative attempt 
 to inject more equality into the Illinois appellate u. o. v. practice by allowing 
 a plaintiff, beaten by an appellate court finding of facts different from the verdict 
 of a jury in his favor, an appeal to the Supreme Court from the appellate-court 
 finding of facts. In 1911, in Opinion of Justices, 207 Mass., 606, 610, the Massa- 
 chusetts Supreme Court advised the Senate there was danger a court might have 
 to declare unconstitutional as a denial by the state of the equal protection of 
 the laws a proposed statute drawing a discrimination between the plaintiff and 
 defendant with reference to the power of the trial judge to grant a new trial, 
 forbidding the trial judge to set aside a second verdict for the plaintiff, but leaving 
 the trial judge free to set aside successive verdicts for defendant. It is a queslion 
 whether the above opinions would have much weight in the Supreme Court of the 
 United States, the final authority on the point. But the Illinois n. o. v. discrimin- 
 ation is worse than the ones condemned in those opinions. 
 
NEW TRIALS AND SEVENTH AMENDMENT 337 
 
 The Illinois Supreme Court has got itself into a legally 
 untenable position on the subject of jury trial; its de- 
 cisions do not rest upon reason and judgment, but upon 
 the brutality of arbitrary power; the will of the judge 
 and not the law has dominion. 110 
 
 110 The author of the Illinois Supreme Court's history of jury trial in Illinois 
 is the late Mr. Robert Mather, counsel for the defendant in Borg v. Chicago, R. I. 
 & P. R. Co., 162 111., 348, as appears sufficiently from the portions of his argument 
 printed in the report. Mr. Mather's history is counterfeit and spurious. He 
 looked down the well of the past and saw at the bottom the face of an attorney 
 for a railroad. Before the statute of 1837 authorizing an appellate review of a 
 trial judge's ruling refusing a new trial, the practice of taking up all the evidence 
 on a bill of exceptions to a ruling of a trial judge on a motion for a directed verdict 
 on a material issue of fact was not unknown in Illinois, but it was not common 
 in practice; and the ruling of a trial judge nonsuiting or refusing to nonsuit the 
 plaintiff for want of evidence to support the facts of his case could be taken up on 
 a bill of exceptions setting forth all the evidence, though the Supreme Court dis- 
 couraged the practice of nonsuiting the plaintiff for want of evidence, the concep- 
 tion of the early Illinois judges being that a compulsory nonsuit on that ground 
 might be a denial of jury trial. Clemson v. Kruper, Beecher's Breeze, 210, 211; 
 Wright v. Armstrong, id., 172; Swafford v. Dovenor, 1 Scam., 165, 167; Gilmore 
 v. Bullard, 1 Scam., 252, 253; Williams v. Clayton, 1 Scam., 502, 506; Johnson v. 
 Moulton, 1 Scam., 532, 533; Smith v. Schultz, 1 Scam., 490, 491; Owens v. Derby, 
 2 Scam., 26; Phelps v. Jenkins, 4 Scam., 48; Amos v. Smith, 4 Scam., 440, 447; 
 People v. Browne, 3 Gilm., 87, 88; Teft v. Ashbaugh, 13 111., 602, 603, 604; Deshler 
 v. Beers, 32 111., 369, 382, 383; Smith v. Gillett, 50 111., 290, 300, 301; Crowley v. 
 Crowley, 80 111., 469, 473. It is true, and this is the whole of Mr. Mather's his- 
 tory, the Illinois Supreme Court sometimes did, on a bill of exceptions to a ruling 
 of a trial judge on a motion for a directed verdict on a material issue of fact, and 
 after 1837 on a bill of exceptions to a ruling of a trial judge refusing a new trial, 
 reverse without remanding, as the court had power to do by a statute first passed 
 in 1819 (111. Laws, 1819, p. 145), not in 1827 as the Supreme Court says in 162 111., 
 on p. 352. The Pennsylvania Supreme Court used to do the same thing, and 
 perhaps does it now. Fries v. Penn. R. Co., 98 Pa. St., 142; Casey v. Asphalt 
 Paving Co., 109 Fred., 744; 114 Fed., 189. But the uniform current of the opin- 
 ions of the Illinois Supreme Court shows the court disclaimed utterly any judicial 
 power whatsoever to find a material fact different from the finding of a jury by an 
 exercise of their own private judgment on the evidence. See the cases cited by 
 Breese, J., in Chicago, R. I. & P. R. Co. v. McKean, 40 111., 218, 221-224. Besides, 
 there is no evidence at all that a judgment of the Illinois Supreme Court prior to 
 1870, or prior to the establishment of appellate courts in 1877, reversing a judg- 
 ment for the plaintiff without remanding for a new trial on a bill of exceptions to 
 a ruling of a. trial judge on a motion for a directed verdict on a material issue of 
 fact, or to a ruling of a trial judge refusing a new trial for want of any evidence 
 or enough evidence to support the verdict, was pleadable in an Illinois court as 
 res judicata in bar of a second action by the plaintiff for the same cause of action; 
 
338 CONSTITUTIONAL LAW 
 
 The result of this examination of Slocum v. New York 
 Life Insurance Co. is, that the majority of the court de- 
 cided the case right, i. e., under, through, and agreeably to, 
 the existing supreme law of the land; that their judgment 
 is truly lex loquens and not judex loquens, correctly or- 
 dering a new trial, doing justice to the party, performing 
 a service to the country, foiling a subtle and insidious 
 blow at the jury in the federal courts, especially at the 
 thirteenth man on the jury, i. e., the federal trial judge. 
 The minority opinion, in so far as it says the Seventh 
 Amendment does not forbid appropriate legislation by 
 Congress authorizing federal judges, trial and appellate, 
 in their discretion guided and controlled by justice to 
 the party, to deny a new trial by another jury and to 
 enter judgment in disregard of the general verdict of a 
 jury in a case turning on a pure question of law such as 
 to rule the case, is a correct declaration of the law of the 
 land; and the majority's denial of it is wrong; but the 
 trouble with it is, there was no case before the court turn- 
 ing on a pure question of law such as to rule the case; the 
 case before the court turned on a pure question of fact 
 found by a jury in favor of the plaintiff. 
 
 an Illinois statute of limitations of 1827, continuously in force ever since, declares 
 it was not so pleadable. See the opinion of Waterman, J., on this point in Chicago 
 Forge & Bolt Co. v. Rose, 69 111. App., 123, 125-128. So far as the constitutional 
 right of trial by jury is concerned, it makes no difference whether the party gets 
 the new trial in the same action under a remanding order, or in a second action 
 for the same cause of action. 
 
 Viewed as a practical legislative problem, the Illinois appellate n. o. v. practice 
 and the Illinois written-instruction practice permitting the trial judge to instruct 
 the jury only on the law, by statute of 1845, and in writing, by statute of 1847, 
 appear to be linked together; if one falls in the legislature, the other probably 
 will have to go down with it. The story of the rise of the Illinois appellate 
 n. o. v. power suggests that an undue contraction of the judicial power before 
 the verdict is likely to be followed by an undue expansion of it after the verdict. 
 See "Trial by Jury in Illinois,'' 4 111. Law Rev., 408, by Edgar L. 'Masters; "A 
 Proposed Bill to Restore and Protect the Right of Trial by Jury," 8 111. Law 
 Rev., 255, by Charles H. Robinson. 
 
NEW TRIALS AND SEVENTH AMENDMENT 339 
 
 ADDENDA 
 
 The Massachusetts Case. — The view expressed in the text 
 that the Massachusetts n. o. v. statute of 1909 is sustainable under 
 the Massachusetts jury-trial clause, as applied to a case turning on a 
 material issue of fact found by a jury, is not correct if the Massa- 
 chusetts jury-trial clause means the same thing as the Seventh 
 Amendment, so far as the prohibition of judicial power to find a 
 material fact different from the finding of a jury is concerned. 
 While the opinion of the Massachusetts Supreme Court in Bothwell 
 v. Boston El. R. Co., 215 Mass., 467, 102 N. E., 665, is not full and 
 clear upon the point, yet it seems the court proceeds upon the footing 
 of the view that the Massachusetts jury-trial clause does mean the 
 same thing as the Seventh Amendment, so far as the prohibition 
 of judicial power to find a material fact different from the finding 
 of a. jury is concerned, the only difference between the two being 
 the formal, unsubstantial one that the prohibition is expressed 
 in the Seventh Amendment by way of reference to the "rules of the 
 common law," but is implied in the Massachusetts jury-trial 
 clause. On that view of the Massachusetts jury-trial clause, the 
 Massachusetts decision is wrong, for the same reasons that support 
 the majority in Slocum v. N. Y. Life Ins. Co. If that is the view 
 of the Massachusetts court, is the view right? I am inclined to 
 think it is, though I do not know much about the local law and usage 
 of Massachusetts on the subject of jury trial. Story, Constitution, 
 Sec. 165, says, "the trial by jury in all cases, civil and criminal, 
 was as firmly and as universally established in the colonies, as in 
 the mother country." But there were differences in the mode and 
 extent of trial by jury in civil cases in the several colonies and origi- 
 nal states, as is stated in The Federalist, No. 83. Because of these 
 differences, the second clause of the Seventh Amendment selected 
 the English common-law trial by jury of 1789-91 as the standard 
 and measure of trial by jury in common-law cases in the federal 
 courts, to make it plain that trial by jury in common-law cases was 
 intended to be uniform as to mode and extent in all federal courts 
 throughout the United States, and not one thing in the federal 
 courts of one state, and another thing in the federal courts of another 
 state. And as already stated in the text, another reason for the 
 second clause of the Seventh Amendment was to make it plain 
 that Art. 3, Sec. 2, Clause 2 of the federal constitution must not be 
 construed as delegating legislative power to Congress to authorize 
 
340 CONSTITUTIONAL LAW 
 
 the Supreme Court to find a material fact different from the finding 
 of a jury. For the Seventh Amendment as proposed by Madison, 
 and altered in committee, see 2 Watson, Constitution, pp. 1490-91. 
 So far as I know, the prohibition of judicial power to find a material 
 fact different from the finding of the jury, was a part of the local 
 law and usage on jury trial in all of the colonies and original states, 
 and that prohibition was thought essential to preserve the jury, 
 and another jury on a new trial was the only tribunal competent 
 to set a false verdict right. In Massachusetts, as the Massachu- 
 setts court points out, there was an appeal of course from one jury 
 or another; and in Connecticut, "if the court were dissatisfied with 
 the verdict, they might send back the jury to consider the same a 
 second and third time, but not further." Story, Constitution, 
 Sec. 89. Hence, when one of the original thirteen states, as Massa- 
 chusetts in 1780, put into its first state constitution a declaration 
 in favor of trial by jury, with an injunction to hold it "sacred" or 
 "inviolate," the view of the Massachusetts Supreme Court, if that 
 is its view, that such declaration implied a constitutional prohi- 
 bition of judicial power to find a material fact different from the 
 finding of a jury, would appear to be correct; and it follows the 
 Massachusetts court is in error when it classifies that implied con- 
 stitutional prohibition among "the minor details and unessential 
 formalities of the trial by jury as it then existed," i. e., in 1780, in 
 Massachusetts. 
 
 As for the admitted states as distinguished from the original 
 thirteen, most of them were incorporated and organized territories 
 of the United States before they became states and were bound by 
 the Seventh Amendment (Rassmussen v. United States, 197 U. S., 
 516), so that it is hard to see how, when they became states, they 
 legitimately could have any local law or usage on jury trial pro- 
 hibited by the Seventh Amendment. Citations in a note by the 
 Massachusetts Supreme Court on p. 669 of 102 N. E. Rep., show 
 that the n. o. v. judicial power to find a material fact different 
 from the finding of a jury exists in Wisconsin, Minnesota, Washing- 
 ton, North Dakota, and Oklahoma, when the case is one proper 
 for a directed verdict on a material issue of fact. This n. o. v. 
 judicial power appears to be purely judge-made in Wisconsin and 
 North Dakota. Muench v. Heinemann, 119 Wis., 441; Hay v. 
 City of Baraboo, 127 Wis., 1 ; Richmire v. Adams & Gage Elevator 
 Co., 11 N. D., 453. In Minnesota a statute of 1895 authorized 
 
NEW TRIALS AND SEVENTH AMENDMENT 341 
 
 judgment on the evidence n. o. v., which statute was adopted by 
 Washington in 1901. Cruikshank v. St. Paul Fire & Marine Ins. 
 Co., 75 Minn., 266; Roe v. Standard Furniture Co., 41 Wash., 546. 
 Like the Pennsylvania Supreme Court, the federal Circuit Court of 
 Appeals in Pennsylvania, the minority of the Supreme Court of the 
 United States, and the Massachusetts Supreme Court, the Supreme 
 Court in the above states rest the n. o. v. power upon the idea that 
 it is a self-evident truth that it is a question of law, and not of fact, 
 whether there is any evidence or enough evidence for a jury on a 
 material issue of fact, because the question is for the judge. Illinois 
 is the only state, so far as I know, wherein it is frankly and boldly 
 proclaimed that the n. o. v. judicial power to find a material fact 
 different from the finding of a jury may be exercised in a case tried 
 by a jury where the evidence does not admit of a directed verdict 
 on the material fact in issue,' but must be submitted to the jury 
 for their judgment, though my opinion is that in most of the other 
 states the limitation of the n. o. v. power to cases proper for a 
 directed verdict on a material issue of fact, is mostly verbal, more 
 honored in the breach than in the observance, when it comes to 
 actual judicial administration. In New York, the opinion of 
 Laughlin, J., in Bonnette v. Malloy, 153 App. Div., 73, to the effect 
 that c. 380 of New York Laws of 1912 allows the n. o. v. judicial 
 power to be exercised in a case tried by a jury where the evidence is 
 proper for directed verdict on a material issue of fact, is plainly 
 obiter, and of no more weight as authority on the constitutional 
 jury-trial point than the opinion of any other lawyer. See the 
 favorable comments on this opinion in the 1913 Report of the Law 
 Reform Committee of the American Bar Association, pp. 5-6. 
 Modern state decisions on the subject of jury trial are worse than 
 useless to a federal judge who has to construe and apply the Seventh 
 Amendment. The state judges are trying hard to be "progres- 
 sive," to "make justice hum," but are they striking right as well as 
 hard in this jury-trial business? 
 
 Another English Case. — In Heilbut, Symons & Co. v. Buck- 
 elton [1913], A. C, 30, a case turning on the material issue of fact 
 whether the defendant vendor of corporate shares intended to give 
 the plaintiff vendee a warranty that the company in question was a 
 rubber company, the main object of which was to produce rubber 
 and not bananas, where the jury found specially in favor of the 
 plaintiff that the defendant did intend to give the warranty, and 
 
342 CONSTITUTIONAL LAW 
 
 the trial judge entered judgment for the plaintiff, and his judgment 
 was affirmed by the Court of Appeal, the House of Lords, con- 
 sisting of Viscount Haldane, L. C, Lord Atkinson, and Lord 
 Moulton, reversed the verdict and judgment for the plaintiff, and 
 entered judgment for the defendant n. o. v. Their power so to do 
 was not drawn in question or considered. Viscount Haldane, L. C, 
 said on p. 36: "My Lords, as neither the circumstances of the 
 conversation nor its words were in dispute, I think that the question 
 of warranty or representation was one purely of law, and that it 
 ought not to have been submitted to the jury." The Lord Chan- 
 cellor fell into error in that sentence. The case, it seems, did involve 
 the question, which is a question "purely of law," viz., whether the 
 decided English cases declare the rule of law that an affirmation of 
 a fact touching the quality of goods is a warranty, when the affirma- 
 tion of fact is made by a vendor to induce a sale and does induce 
 a sale. The Lords say the decided English cases do not lay down 
 any such rule of law; and they declare affirmatively that an implied 
 warranty of quality in a contract for the sale of goods must be a 
 contract collateral to the main contract of sale. Gibson, C. J., 
 said the same thing, and said it better, in 1839, .in M'Farland v. 
 Newman, 9 Watts, 55. Professor Williston takes issue with the 
 House of Lords on the above point of law. "Representation and 
 Warranty in Sales. — Heilbut v. Buckelton," 27 Harv. Law Rev., 1. 
 Assuming the Lords are right on that point of law, the pure ques- 
 tion of fact remains, which must be kept separate and distinct from 
 the above question of law, viz., was there evidence enough for a 
 jury to act on by finding the issue of warranty in favor of the 
 plaintiff? The Lords say the evidence was not enough to go to 
 the jury. It seems to me the evidence was enough to go to the 
 jury, from which a jury could or might find the issue of warranty 
 in favor of the plaintiff without shocking the reason of mankind, 
 although the finding might shock the London stock-brokers. The 
 logic of the Lords on that question is too verbal, narrow, fine, and 
 rigorous, when it is borne in mind the question is one of fact that 
 must be divorced from the point of law discussed by Professor 
 Williston in the article above cited. See Power v. Barham, 4 Ad. 
 & El., 477, in 1836. Finally, if the Lords are right on the question 
 of fact of the sufficiency of the evidence to go to the jury, the final 
 question remains, which must be kept separate and distinct from 
 the other two questions, viz., whether the House of Lords had the 
 
NEW TRIALS AND SEVENTH AMENDMENT 343 
 
 power to deny a new jury trial and enter judgment for the defen- 
 dant n. o. v. The theory of the n. o. v. judgment, if the Lords 
 had any theory, seems to be the erroneous one that the case turned 
 on a question of law. The opinions show on their faces judicial 
 straining, not as the law required to sustain, but to reverse, the 
 trial judge and jury on the material issue of fact of warranty, to 
 better perform, as the opinions say, the judicial duty to "maintain 
 in its full integrity the principle [of Peek v. Derry] that a person is 
 not liable in damages for an innocent misrepresentation," forgetting 
 that the judicial duty to keep out of the province of the jury is 
 equally imperative. The case shows that the notion that the 
 n. o. v. power is a preservative of the right of trial by jury accord- 
 ing to the rules of the English common law of 1789-91 belongs to 
 the Sophists of Aristophanes' "Clouds." 
 
344 CONSTITUTIONAL LAW 
 
 II 
 
 JURY TRIAL IN ORIGINAL PROCEEDINGS 
 
 FOR MANDAMUS IN THE STATE 
 
 SUPREME COURT a 
 
 In The People ex rel. Scott Bibb v. The Mayor and 
 Common Council of Alton, 233 111., 542, Cartwright, J., 
 writing the opinion and Scott, J., a dissenting opinion 
 concurred in by Farmer, J., it is decided that a party to 
 an original proceeding for mandamus in the Supreme 
 Court has no constitutional right to have an issue of 
 fact tried by a jury; that the mode of trying an issue of 
 fact in such cases rests in the direction of the Supreme 
 Court. 
 
 The question came up in a way that challenged the 
 attention of the whole Court. 
 
 The statute law of this State gives black children iden- 
 tity of rights with white children in the matter of attend- 
 ing public schools. 1 Scott Bibb claimed that the school 
 
 a [3 111. Law Rev., 479, March, 1909.] 
 
 1 The People v. Alton, 179 111., 615, 631. In The People v. Board of Education 
 of Quincy, 101 111., 308, Craig, C. J., intimates that the rule of identity of right 
 is prescribed by Section 1 of Article VIII of the State Constitution of 1870. 
 The first case in which that rule was judicially laid down — Chase v. Stephenson, 
 71 111., 383, January Term, 1874 — ■ plainly bases the rule upon a judicial construc- 
 tion of a statute, a very questionable construction too. See the dissent of 
 Walker, J., and see Roberts v. Boston, 5 Cushing, 198, Shaw, C. J., Board of 
 Education v. Tinnon, 26 Kas., 1, 23, Brewer, J. But on March 21, 1874, the 
 Legislature affirmed the rule laid down in Chase v. Stephenson, supra. See R. S., 
 1874, 983, Hurd. If that statute of March 21, 1874, has been in force ever since, 
 and I think it has been, then the question whether the State Constitution pre- 
 scribes the rule of identity of right cannot be judicially foreclosed. It is now 
 settled that the Thirteenth and Fourteenth Amendments of the Constitution of 
 the United States do not forbid a State to establish and maintain separate, but 
 equal, public schools for black children and white children. Plessy v. Ferguson, 
 163 U. S., 537, 544; Berea College v. Kentucky, 211 U. S., 45. 
 
PROCEEDINGS FOR MANDAMUS 345 
 
 officials of the City of Alton were shutting his children 
 out of the Washington School because they were black, 
 and were trying to force them to go to either the Douglas 
 School or the Lovejoy School, which schools were attend- 
 ed by black children only. Bibb went directly to the 
 Supreme Court for a writ of mandamus, commanding 
 the school officials of Alton to let his children go to the 
 Washington School. 2 The Court received his applica- 
 tion. 3 The school officials of Alton came in and denied 
 Bibb's allegation that they were shutting his children 
 out of the Washington School because they were black. 
 An issue of fact thus was raised, which, pursuant to a 
 practice first declared at the April Term, 1865, in The 
 People v. Young, 40 111., 87, and steadily followed since 
 without any variation, was sent out by the Supreme 
 Court to the Circuit Court of Madison County, for trial 
 by a jury. The issue was tried by seven juries; two of 
 them disagreed, and five returned verdicts against Bibb 
 and in favor of the school officials of Alton. The Su- 
 preme Court set aside every one of the verdicts, finally 
 saying that the issue of fact raised was a false one without 
 any basis in fact whatever, and the verdicts were merely 
 the expression of local race prejudice. 4 Then the ques- 
 tion arose "whether the issues shall be again sent to the 
 Circuit Court for trial." The negative answer of the 
 
 2 The legal reason why Bibb chose that remedy is not easy to make out. That 
 the remedy of a bill in equity for an injunction was open to him, see Grove v. 
 School Inspectors of Peoria, 20 111., 532; School Inspectors of Peoria v. Grove, 20 
 111., 525; Mizner v. School District, 96 N. W. Rep., 128, 1006 (Neb.). But see 
 Harley v. Lindeman, 109 N. W. Rep., 570 (Wis.), with which compare Wilson 
 v. Board of Education of Chicago, 233 111., 464. 
 
 3 Later, in The People v. Board of Education of Centralia, 197 111., 43, the 
 Court refused to receive a like application. In The People v . Chicago, 193 111., 
 507, a new light was thrown on the Court's original jurisdiction in mandamus, and 
 besides, no doubt, the Court was having trouble enough in Bibb's case with 
 unlawful, but locally popular, drawing of the color line. 
 
 « See People ex rel. Bibb v. Alton, 179 111., 615; 193 111., 309; 209 111., 461; 221 
 111., 275; 233 111., 542. 
 
346 CONSTITUTIONAL LAW 
 
 majority to that question is given by Mr. Justice Cart- 
 wright on pp. 547-549 of 233 111. The Court itself 
 found all the material facts alleged by Bibb to be true, 
 and ordered the issuance of a writ of mandamus as 
 prayed by Bibb. 
 
 It is not possible to praise this case as an instance of the 
 judicial enforcement of the law of the State giving black 
 children identity of rights with white children in the 
 matter of attending the public schools, unless one is con- 
 tent and satisfied with the judicial enforcement of that 
 law on paper only. When Scott Bibb applied to the 
 Supreme Court to protect his 'children in the exercise and 
 enjoyment of their legal right to attend the Washington 
 School in Alton, the children were 'six and seven years 
 old. When Scott Bibb finally got the protection of the 
 Court for his children, they were seventeen and eighteen 
 years old, so that their school days at the Washington 
 School must have been nearly over. Justices Scott and 
 Farmer say that, in order thus to enforce on paper the 
 school law giving black children identity of right with 
 white children, the majority disregarded and broke the 
 settled law of the Constitution giving a party the right 
 to have an issue of fact in mandamus tried by a jury, thus 
 making "a bad matter worse." 
 
 Mr. Justice Scott says the Supreme Court's unvary- 
 ing practice from 1865 of sending issues of fact in original 
 proceedings for mandamus out to the Circuit Courts for 
 trial by jury rests upon the basic idea and principle that 
 the Constitution secures to a party to an original pro- 
 ceeding for mandamus in the Supreme Court the right 
 to have an honest, bona fide issue of fact tried by a jury, 
 and that the printed precedents show that on their faces. 
 Mr. Justice Cartwright, on the other hand, says the prac- 
 tice rests on the principle that the Court has a discretion 
 as to the mode of trying an issue of fact in such case, and 
 
PROCEEDINGS FOR MANDAMUS 347 
 
 the practice itself is but an evidence of one way, but 
 not the exclusive way, in which the Court may exercise 
 its discretion without regard to the desire of one or both 
 of the parties. 
 
 Plainly, the question at issue, "like all questions of 
 constitutional construction, is largely an historical ques- 
 tion." (Gray, J. in Sparf v. United States, 156 U. S., 
 51, 69.) The legal history of the State proves, I think, 
 that Mr. Justice Scott is right. 
 
 According to the course of the common law in Eng- 
 land, the Court of King's Bench was the only Court that 
 could issue the writ of mandamus. In the proceedings 
 in that Court to obtain the writ, no issue of fact could be 
 formed or tried. A return to the preliminary or alterna- 
 tive writ, however false in point of fact, was conclusive 
 as against the prosecutor or relator, and put an end to 
 the proceedings for the writ in the King's Bench. The 
 only remedy of the prosecutor or relator for a false re- 
 turn to the preliminary or alternative writ was either 
 an action on the case or a criminal information for the 
 false return. To remedy this usage of the common law, 
 and facilitate proceedings in the King's Bench for the 
 writ of mandamus, the statute of 9 Anne, c. 20 (1710), was 
 passed, providing for the formation and trial of issues of 
 fact in proceedings for the writ of mandamus in certain 
 cases, the issues to be tried by a jury, if either party 
 wanted that mode of trial. This remedial feature of the 
 statute of 9 Anne was extended to practically all cases 
 in mandamus by 1 William IV, c. 21 (1830) . 5 
 
 6 The above is clear law. See Tapping, Mandamus, 6, 7; 425-426; 3 Bl. Com., 
 Ill, 264; and any other law book dealing with mandamus. The statute 9 Anne, 
 l. 20, and 1 William IV, c. 21, are reprinted in the Appendix to Tapping on 
 Mandamus, and 9 Anne is in the Appendix to High, Extr. Legal Rem., Ed. 3. 
 In Fisher v. City of Charleston, 17 W. Va., 595, 603, Green, J., gives a good history 
 of the writ. And see the other cases in 19 Am. & Eng. Ency. of Law, Ed. 2, 717, 
 note 1. 
 
348 CONSTITUTIONAL LAW 
 
 The above statutes of 9 Anne, c. 20, and 1 William IV, 
 c. 21, of course, are not a part of the common law adopted 
 by Illinois by the Act of February 4, 1819, now R. S., c. 
 
 28. See The People v. Healy, 230 111., 280, 287. 
 
 The first Constitution of the State, that of 1818, granted 
 (see.Field v. The People, 2 Scammon, 79) to the Supreme 
 Court original jurisdiction "in cases of mandamus" 
 (Article IV, Section 2), and each succeeding Constitution 
 retained the grant with immaterial changes of phrase- 
 ology (see Constitution of 1848, Article V, Section 5; 
 of 1870, Article VI, Section 2). Down to the taking 
 effect of the Mandamus Act of 1827 on June 1, 1827, the 
 Supreme Court seems to have been the only Court of the 
 State that had authority to issue the writ of mandamus. 6 
 There is no Act prior to June 1, 1827, providing for the 
 formation and trial of an issue of fact in original pro- 
 ceedings for mandamus in the Supreme Court, nor any 
 reported instance prior to June 1, 1827, where an issue 
 of fact was formed and tried in original proceedings for 
 
 6 I do not know of any instance prior to June 1, 1827, of an application for 
 the writ of mandamus to any Court except the Supreme Court. Breese's Re- 
 ports cover the period from 1819 to 1831. In Breese there are two reported 
 applications for the writ to the Supreme Court, Street ». The County Commis- 
 sioners of Gallatin County, Breese, 50, December Term, 1822, and The People 
 v. Forquer, Breese, 104, December Term, 1825. Perhaps it is possible to make 
 a plausible argument that Sections 25 and 27 of the Illinois Judiciary Act of 
 March 31, 1819 (L. 1819, 373), and Sections 24 and 25 of the Act of December 
 
 29, 1824 (L. 1825, 36), either separately or in combination, conferred upon Cir- 
 cuit Courts original jurisdiction to issue writs of mandamus. In the absence of 
 controlling judicial decision, however, this possible argument appears to be over- 
 thrown by comparing Sections 11 and 13 of the Federal Judiciary Act of 1789 with 
 Sections 13, 25, and 27 of the said Illinois Judiciary Act of 1819, and with Sections 
 24 and 25 of the said Act of Dec. 29, 1824, by a reference to the decision in Marbury 
 v. Madison, 1 Cranch, 137, in 1803, to the effect that Congress had not the power 
 to confer upon the Federal Supreme Court original jurisdiction to issue the writ 
 of mandamus to an executive officer of the United States, and to the decision in 
 Mclntire ». Wood, 7 Cranch, 504, in 1813, to the effect that Congress did not, in 
 and by the Federal Judiciary Act of 1789, confer upon Circuit Courts of the United 
 States original jurisdiction to issue writs of mandamus. In Kendall v. United 
 States, 12 Peters, 524, 626, 641, decided in 1838, it is made very plain by Taney, 
 
PROCEEDINGS FOR MANDAMUS 349 
 
 mandamus in the Supreme Court. Section 13 of the 
 Judiciary Act of March 31, 1819 (Laws of 1819, 373, 
 376) said: 
 
 "That the said Supreme Court shall have power to issue a writ 
 or writs of mandamus in all cases in which, according to the princi- 
 ples of common law, such writs ought to issue, and the said Court 
 shall have power to enter up such rules, decrees, and orders, to carry 
 the same into effect, and be observed, as is usual and customary 
 to be done." 
 
 The italics are mine, and the italicized clauses are but a 
 faithful carrying out of the covenant in the second Article 
 of the Ordinance of 1787 for the government of the North- 
 west Territory "that the inhabitants of the said terri- 
 tory shall always be entitled to the benefits of . . . 
 judicial proceedings according to the course of the com- 
 mon law." In "judicial proceedings according to the 
 course of the common law," in mandamus proceedings 
 conducted "according to the principles of common law," 
 or "as is usual and customary to be done," there could 
 be no trial by jury of an issue of fact in original mandamus 
 proceedings in the Supreme Court down to June 1, 1827, 
 
 C. J., and by Barbour, J., that the fraraers of the Federal Judiciary Act of 1789 
 adopted the principle that the nature and character of the writ of mandamus 
 as known to the English law excluded altogether the idea that, in the absence of 
 express statute, it could issue out of any Court except the Court having a common- 
 law jurisdiction co-extensive with the sovereignty that established the Court, 
 in which the judicial sovereignty was supposed to reside, and which exercised a. 
 general supervision over the inferior tribunals and persons throughout the nation 
 or state. It is evident that the framers of the Illinois Constitution of 1818 and 
 of the Illinois Judiciary Acts of 1819 and 1824 adopted the same principle. That 
 view is confirmed by the first sentence of the Illinois Mandamus Act of 1827, say- 
 ing "that the respective Circuit Courts in this State shall have power to issue 
 writs of mandamus,' - and by the opinion of Mr. Justice Breese in School Inspec- 
 tors of Peoria v. The People, 20 111., 525, in 1858, and I do not think it is shaken by 
 the expression of Mr. Justice Carter in People v. Chicago, 193 111., 507, 509, in 
 1901, to the effect that the phrase "all causes in law and equity'' in Section 12 
 of Article VI of the Constitution of 1870 embraces cases in mandamus. See also 
 the ruling in Rosenbaum v. Bauer, 120 U. S., 450, that "an original proceeding for 
 a mandamus is not a suit of a civil nature within the meaning of the Removal 
 Act of March 3, 1875, and is not removable." 
 
350 CONSTITUTIONAL LAW 
 
 for the reason that no issue of fact could be formed or 
 tried at all in such proceedings. 
 
 And so, of course, the provision in Article VIII, Section 
 6, of the Constitution of 1818, saying "that the right 
 of trial by jury shall remain inviolate," could have no 
 application, ex proprio vigore, to original mandamus 
 proceedings in the Supreme Court. 
 
 June 1, 1827, "An Act to regulate proceedings on Writs 
 of Mandamus," went into force (Laws of 1827, 287). 
 The first section of the Act extended the original author- 
 ity- to issue writs of mandamus to Circuit Courts, saying 
 "that the respective Circuit Courts of this State shall 
 have power to issue writs of mandamus," and provides 
 for appeals and writs of error. The next Sections are 
 taken from the above English Act of 9 Anne, c. 20, ex- 
 tending, in terms at least, the principle of that Act of 
 9 Anne to all cases in mandamus, and in terms to "any 
 Court of this State." 
 
 The third section of the Act reads as follows : 
 
 "When any writ of mandamus shall issue out of any Court of 
 this State, and return shall be made thereunto, it shall be lawful 
 for the person or persons suing or prosecuting such writ, to plead 
 to or traverse all or any of the material facts contained in such 
 return, to which the person or persons making such return shall 
 reply, take issue, or demur, and such further proceedings shall be 
 had therein, and in such manner, for the determination thereof, as 
 might have been had, if the person or persons suing out such writ 
 had brought his or their action on the case for a false return. If 
 any issue shall be joined upon such proceedings, the person or 
 persons suing such writ shall and may try the same in such place 
 as an issue joined on such action on the case should or might have 
 been tried. In case a verdict shall be found for the person or per- 
 sons suing such writ, or a judgment given for him or them upon a 
 demurrer, or by nil dicit, or for want of a replication, or other plead- 
 ing, he or they shall recover his or their damages and costs, in such 
 manner as he or they might have done in an action on the case, 
 as aforesaid; such damages and costs shall and may be levied by 
 
PROCEEDINGS FOR MANDAMUS 351 
 
 execution as in other cases; and a peremptory writ of mandamus 
 shall be granted without delay for him or them for whom judgment 
 shall be given, as might have been if such return had been adjudged 
 insufficient. In case judgment shall be given for the person or 
 persons making such return to such writ, he or they shall recover 
 his or their costs of suit, to be levied in manner aforesaid." 
 
 In terms, this Act was applicable to original proceed- 
 ings for mandamus in the Supreme Court, for it says 
 "any Court of this State." In Campbell v. Campbell, 
 22 111., 664, December Term, 1859, and in Bryant v. The 
 People, 7 111., 32, September Term, 1873, it was decided 
 that the Legislature can neither enlarge nor abridge 
 the constitutional grant of original jurisdiction to the 
 Supreme Court. Though these decisions were rendered 
 under the Constitutions of 1848 and 1870, they express 
 the law of the Constitution of 1818 as respects the extent 
 of the Supreme Court's original jurisdiction in manda- 
 mus. See Marbury v. Madison, 1 Cranch, 137. The said 
 Act of June 1, 1827, does not enlarge or abridge the cases 
 to which the original remedy of mandamus theretofore 
 applied. It leaves those cases — the sphere of the 
 remedy — as they stood before. It simply facilitates 
 the exercise of the jurisdiction, and better fits and adapts 
 the remedy to establish justice. Legislation to facilitate 
 the exercise of a constitutional grant of jurisdiction to a 
 Court, and legislation to enlarge or abridge the grant, 
 are different things, plainly. The Act of 9 Anne, c. 20, 
 which the framers of the Illinois Act of June 1, 1827, 
 borrowed, is expressed in terms on its face as designed to 
 facilitate the exercise of jurisdiction in mandamus. 
 The Act of 9 Anne, c. 20, and the Illinois Mandamus 
 Act of June 1, 1827, were, emphatically, remedial, liberal- 
 izing Acts, and Blackstone classes 9 Anne, c. 20, among 
 the notable alterations in the administration of justice in 
 the period after the Revolution of 1688. (4 Bl. Com., 441.) 
 
352 CONSTITUTIONAL LAW 
 
 In The People v. Thistlewood, 103 111., 139, June Term, 
 1882, a case arising under the Constitution of 1870 and 
 under the present Mandamus Act of July 1, 1874, the 
 doctrine is announced that the provisions of that Manda- 
 mus Act of 1874 relating to pleadings, practice, forms and 
 modes of procedure in mandamus are not of necessary 
 binding force in original proceedings for mandamus in 
 the Supreme Court, but may be resorted to by the Su- 
 preme Court, for guiding outlines, and followed by 
 analogy. There can be no quarrel with that doctrine 
 taken in its elastic, liberal sense, to advance justice under 
 and agreeably to law, and in connection with the facts 
 of the cases in which it heretofore has been applied. It 
 should be observed, however, that the doctrine neither 
 says, nor means, that the Legislature cannot prescribe 
 the pleadings, practice, forms and modes of procedure to 
 be employed in original proceedings for mandamus in the 
 Supreme Court. The Supreme Court of the United States, 
 while considering the practice of the Courts of King's 
 Bench and of Chancery, in England, as outlines for the 
 practice of that Court in the exercise of its original juris- 
 diction, always has conceded the competency of Congress 
 to prescribe its practice in the exercise of its original 
 jurisdiction. (Rule 2, 1792, 2 Dallas, 411; Florida v. 
 Georgia, 17 Howard, 478.) 
 
 If the doctrine of the said case of The People v. Thistle- 
 wood, 103 111., 139, in 1882, should be carried back to the 
 Mandamus Act of June 1, 1827, it seems impossible to so 
 use it as to get rid of the words "any Court of this State" 
 in that Act, or to exclude from those words the Supreme 
 Court. If the doctrine is applied to that Act in that 
 way, the necessary result of its application must be the 
 narrow and illiberal one that after that Mandamus Act 
 of June 1, 1827, the Supreme Court remained as it was 
 before — utterly impotent and powerless to permit the 
 
PROCEEDINGS FOR MANDAMUS 353 
 
 formation and trial of an issue of fact in mandamus, 
 and bound to remit the prosecutor or relator to his 
 action on the case, or criminal information, for a false 
 return. 
 
 It cannot be said that the Mandamus Act of June 1, 
 1827, enabled the Supreme Court to permit the forma- 
 tion of an issue of fact in mandamus, and to reject the 
 mode of trying the issue prescribed, for the words of the 
 Act are inseparable, and sanction no judicial division 
 between the formation of the issue of fact and the mode 
 of trial, expressly commanding that the issue be tried by 
 a jury, and not otherwise, if either party wanted that 
 mode of trial. 
 
 The Mandamus Act of June 1, 1827, was carried for- 
 ward into R. S., 1833, p. 44, and into R. S., 1845, c. 67, 
 p. 351, and appears to have been in force when the Con- 
 stitution of 1848 took effect on April 1, 1848. Apparent- 
 ly it was kept in force by the first section of the Schedule 
 to the Constitution of 1848, and remained in force when 
 the Constitution of 1870 took effect, August 8, 1870 ; was 
 kept in force by the first section of the Schedule to that 
 Constitution, and remained in force until its leading and 
 only principle touching the formation and trial of issues 
 of fact in mandamus was incorporated into the present 
 Mandamus Act of July 1, 1874. 7 
 
 There appears to be no reported instance of an issue 
 of fact in mandamus formed in the Supreme Court prior 
 to the April Term, 1865. In The People v. Pearson, 2 
 Scammon, 189, December Term, 1839, it was ruled that, 
 in mandamus in the Supreme Court to compel a Judge to 
 sign a bill of exceptions, a return of the Judge to the pre- 
 
 7 This Act shows on its face that it was drawn from the Mandamus Act of 
 June 1, 1827. And see Mr. Harvey B. Hurd's Preface to R. S., 1874, and his 
 reference to R. S., 1845, at the head of the Mandamus Act in his edition of R. S., 
 1874. 
 
354 CONSTITUTIONAL LAW 
 
 liminary or alternative writ that the proposed bill of excep- 
 tions contained matter not excepted to, or matter untruly 
 or incorrectly stated, would be accepted as conclusive, 
 ordinarily at least. This was rested upon a settled rule 
 of policy extending to Judges immunity from interfer- 
 ence with the exercise of their functions that could not 
 have been intended to be touched by the said Mandamus 
 Act of June 1, 1827. Besides, an application for a writ 
 of mandamus commanding an inferior Judge to sign a bill 
 of exceptions is usually, if not always, in substance though 
 not in form, an invocation of the appellate jurisdiction 
 of the Supreme Court. It was that, necessarily (see 
 Marbury v. Madison, 1 Cranch, 137) in the case of Ex 
 parte Bradstreet, 4 Peters, 102, Marshall, C. J., cited and 
 relied on in The People v. Pearson. And it would seem 
 that the requirement of trial by jury in the Mandamus 
 Act of June 1, 1827, as well as that in the Act of 9 Anne, 
 c. 20, would be inapplicable to an issue of fact in any case 
 in mandamus where an action on the case would not lie 
 at common law for a false return to the preliminary or 
 alternative writ. I do not know of an instance of an 
 action on the case against a Judge for a false return to a 
 preliminary or alternative writ of mandamus to sign a 
 bill of exceptions, and I think no such action would lie 
 at common law, because of the principle that Judges 
 ought not to be drawn into question by litigants for any 
 supposed corruption by them in judicial proceedings. 
 (Floyd and Barker's Case, 12 Co., 23, 24; Bradley v. 
 Fisher, 13 Wallace, 335, 347; but see 3 Bl. Com., 111.) 8 
 
 In the absence of reported judicial precedent to the 
 contrary, it seems plain that, after the Mandamus Act 
 of June 1, 1827, issues of fact in original mandamus 
 
 8 In People v. Judge of the Tenth Judicial District, 9 Cal., 19, the Court makes 
 rather hard work of disposing of an application for trial by jury of the truth of a 
 Judge's return to an alternative writ of mandamus to sign a bill of exceptions. 
 
PROCEEDINGS FOR MANDAMUS 355 
 
 proceedings in the Supreme Court could be formed only 
 under and by virtue of that Act, and, if formed, that they 
 had to be tried by a jury, if either party wanted that mode 
 of trial. If you reject the Mandamus Act of June 1, 
 1827, as wholly inapplicable to original mandamus pro- 
 ceedings in the Supreme Court, you must reject it as an 
 entirety, and not in parts and parcels, so far as the 
 practice prescribed for making up and trying issues of 
 fact is concerned; and, then, consequently, if you reject 
 that Act, you must affirm that the Supreme Court re- 
 mained as it was before June 1, 1827, completely without 
 warrant of authority of law to permit the formation and 
 trial of an issue of fact in an original proceeding for 
 mandamus — a legally impossible affirmation, in view of 
 the precedents, beginning in 1865, as hereinafter stated, 
 allowing issues of fact to be formed and tried by jury in 
 original proceedings for mandamus in the Supreme Court, 
 and in view of the acknowledged and undisputed prac- 
 tice of trying issues of fact in mandamus in Circuit Courts 
 by the mode of trial by jury. 
 
 The jury provision, above quoted, of the Constitution 
 of 1818 — inapplicable, as above stated, ex proprio vigore, 
 to original proceedings for mandamus in the Supreme 
 Court, because no issue of fact could be made up and 
 tried in such proceedings, which reason was done away 
 with by the Mandamus Act of June 1, 1827 — was ex- 
 tended and enlarged by the Constitution of 1848, Article 
 XIII, Section 6, so as to read: "The right of trial by jury 
 shall remain inviolate, and shall extend to all cases at 
 law, without regard to the amount in controversy." 
 Those wOrds, in that clause in that Constitution, are 
 comprehensive enough to include, and I think do include, 
 original proceedings for mandamus in the Supreme Court 
 as theretofore governed, regulated, and liberalized by 
 the Mandamus Act of June 1, 1827, carried forward into 
 
356 CONSTITUTIONAL LAW 
 
 R. S., 1833, and R. S., 1845, as stated, supra (see People 
 v. Chicago, 193 111., 507, 509), and I think the Supreme 
 Court's practice of sending issues of fact in original pro- 
 ceedings for mandamus to be tried by a jury, announced 
 in 1865, as next stated and ever afterwards adhered to 
 without question for forty-three years, places that view 
 outside of legitimate legal controversy. But see Colorado 
 v. District Court, 13 L. R. A., N. S., 768. 
 
 At the April Term, 1865, in The People v. Young, 40 
 111., 87, it is reported that, on an original petition for 
 mandamus, Mr. B. F. Parks suggested to the Supreme 
 Court that an issue of fact was made up, and inquired 
 whether the issue would be tried in the Supreme Court. 
 The Court said : 
 
 "The issue of fact will not be tried in this Court. If the 
 issue were upon nul tiel record, then, as it would be tried 
 by the record, the issue could be settled here. But where 
 the issue, as in this case, involves facts outside of the 
 record, it must be sent to some Circuit Court, or other 
 Court of appropriate jurisdiction, where the issue can 
 be tried by a jury and the verdict certified back to us." 
 
 In the next case in the same volume, The People v. 
 Supervisors of Logan County, 40 111., 57, at the September 
 Term, 1867, the same answer was given to a like sugges- 
 tion and inquiry by Mr. John M. Palmer. The Court 
 then consisted of as sound lawyers as Illinois has pro- 
 duced — ■ Breese and Walker, JJ., who took their seats in 
 1857 (18 111., page after title page), and Lawrence, J., who 
 took his seat in 1864 (36 111., page after title page). It 
 will be observed that the practice is announced, not as 
 a new practice then and there originated for the first 
 time, but apparently as a standing, customary, tradi- 
 tional habit and usage of the Court, and that the state- 
 ment of the Court assumes, sub silentio and by necessary, 
 or at least fair, implication, that the trial of an issue of 
 
PROCEEDINGS FOR MANDAMUS 357 
 
 fact in an original proceeding for mandamus in the 
 Supreme Court was due to a party ex debito justitiae, if 
 the party wanted that mode of trial. There is no re- 
 ported instance, until this case of Scott Bibb in 233 111., 
 in 1908, where a verdict certified to the Supreme Court 
 in mandamus has been treated by the Court as advisory 
 only, as in the case of an issue of fact sent out of Chancery 
 for trial by a jury. 
 
 The present Constitution of 1870 says: "The right of 
 trial by jury as heretofore enjoyed, shall remain inviolate" 
 (Article II, Section 5). As above shown, parties to origi- 
 nal proceedings for mandamus in the Supreme Court 
 were entitled, prior to the Constitution of 1870, de jure, 
 to make up issues of fact, and to exercise and enjoy the 
 right of trial by jury of such issues of fact, and de facto 
 they did make up issues of fact, and did exercise and en- 
 joy the right of trying such issues by jury, without ques- 
 tion. Mr. Justice Cartwright says: "To send an issue 
 of fact to another Court for trial does not give to a party a 
 trial by jury in this Court," It is the right of trial by 
 jury as heretofore enjoyed that the Constitution of 1870 
 renders inviolate. Unquestionably, a party does exer- 
 cise and enjoy the right of trial by jury in. original pro- 
 ceedings for mandamus in the Supreme Court when that 
 Court sends the issue of fact out to another Court to be. 
 there tried by a jury. True, the place of the trial is at 
 Nisi Prius, and not at the Bar of the Supreme Court, but 
 a trial by jury in either place satisfies the right of trial 
 by jury. In all sound construction, on the view that the 
 party has the right, the Supreme Court must be con- 
 ceded a discretion to give the party a trial by jury either 
 at Nisi Prius or at its own Bar. A trial by jury either at 
 Bar or at Nisi Prius conforms to judicial proceedings ac- 
 cording to the course of the common law. See 3 Bl. 
 Com., 352; 2 Tidd's Practice, Ed. 9, 747, 787; on Trial at 
 
358 CONSTITUTIONAL LAW 
 
 Bar and Special Juries, see article in 20 Ency. of PI. & 
 Pr., 279, on "Special or Struck Juries." 
 
 Mr. Justice Cartwright next says: "A trial by jury in 
 this Court has always been, and is now, an impossibility. 
 . . . To hold that the constitutional provision for 
 trial by jury applies to this Court, where a jury trial never 
 could be had, would annul the provision giving to the 
 Court original jurisdiction in mandamus, and it neces- 
 sarily follows that no party has a right to demand that 
 form of trial." Why is trial by jury at the bar of the 
 Supreme Court "an impossibility"? Two reasons are 
 stated: (1) The Supreme Court has not been accustomed 
 to the mode of trial by jury at its own bar; (2) The Su- 
 preme Court has never been provided with a jury. The 
 first reason is true in point of fact. There is no reported 
 instance of a trial by jury at the bar of the Supreme 
 Court. But the fact that a thing has never happened is 
 no proof that it is "an impossibility." The second 
 reason must resolve itself into a complaint against the 
 Legislature. There are two answers to it: (1) The Legis- 
 lature has clothed the Supreme Court with adequate 
 power to provide itself with a jury for trial by jury at its 
 own bar in mandamus; (2) The Supreme Court has ade- 
 quate power to do that by force of the constitutional 
 grant of original jurisdiction in cases in mandamus. The 
 thirteenth section of the Judiciary Act of 1819 is quoted 
 supra. That section is enough. It has been in force in one 
 form or another ever since, and appears now in Sections 7 
 and 8 of the present Supreme Court Act. Such legislation 
 is, I think, but declaratory of the common law. The 
 Supreme Court of the United States has held from the 
 beginning that, in all cases where original jurisdiction 
 is given by the Constitution of the United States, the 
 Court has authority to exercise it without any further 
 congressional legislation than the original Judiciary Act 
 
PROCEEDINGS FOR MANDAMUS 359 
 
 of 1789 (New Jersey v. 'New York, 5 Peters, 284; Florida 
 v. Georgia, 17 Howard, 478; Jur. & Prac. of U. S. Sup. 
 Ct., Taylor, Sec. 66, et seq.). That Court has given a 
 trial by a special jury at its own bar (Georgia v. Brails- 
 ford, 3 Dallas, 1; 2 Dallas, 403; 415) . 9 The Supreme 
 Court of Nebraska has done the same thing (Petition 
 of Attorney General, 40 Neb., 402; State v. Hill, 47 Neb., 
 456) and has made a rule for such cases (42 Neb., vm.) 
 Other instances doubtless may be found, as in State v. 
 Massmore, 14 Wis., 115. And see State v. Allen, 5 Kas., 
 213, 223. The English Court of King's Bench, to which 
 we must look for guidance in a matter of this kind, had 
 an ancient and settled practice regulating trial by jury 
 at its own bar. See 2 Tidd's Practice, Ed. 9, 747, 787. 
 
 It is submitted the doctrine that trial by jury at the 
 bar of the Supreme Court in mandamus is an impossibil- 
 ity involves a confession of weakness on the part of the 
 Supreme Court that is not warranted by the law; and 
 that, if the opinion of Mr. Justice Cartwright is sound, 
 then the necessary legal consequence of it is that the 
 
 9 This case was tried at the February Term, 1794. In Sparf v. United States, 
 156 U. S., 51, 154, Gray, J., speaks of it as "the first of the very few trials ever 
 had at its bar, under the original jurisdiction conferred upon it by the Consti- 
 tution." In Taylor's Jur. and Prac. of the U. S. Sup. Ct., Sec. 29, Oswald v. 
 New York, in 1795, and Catlin v. South Carolina, in 1797, are cited as other 
 trials. The Judiciary Act of 1789, Sec. 13, no doubt declaratory, required jury 
 trial in the U. S. Sup. Ct. in favor of citizens of the United States as defendants. 
 This section is now Sec. 689, R. S., U. S. The above cases are not, of course, 
 cases in mandamus. The power of Congress to confer upon inferior Federal 
 Courts original jurisdiction in mandamus is not, I am inclined to think, limited 
 by the jury clause in Amendment VII, unless, perhaps, Congress, when using 
 the power, should adopt the principle of 9 Anne, making the proceedings for the 
 determination of an issue of fact in mandamus a substitute for, and a bar to, the 
 common-law action for damages for a false return — the principle the Illinois 
 legislation adopted in 1827, and adhered to in 1833, 1845, and 1874. See Cham- 
 berlain v. Warburton, 1 Utah Ter., 267; Oklahoma v. C. R. Q. & P. R. Co., 2 Okla., 
 108; 39 Pac. Rep., 389; Chumasero v. Potts, 2 Mont., 242; In re Delgado, 140 
 U. S., 586, 588; Eldodt v. Territory of New Mexico, 61 Pac. Rep., 105; Capital 
 Traction Co. v. Hof, 174 U. S., 1, 6; Parsons v. Bedford, 3 Peters, 443, 446. 
 
360 CONSTITUTIONAL LAW 
 
 Supreme Court stands, with reference to its original 
 jurisdiction in mandamus, where it stood prior to the 
 Mandamus Act of June 1, 1827, that is to say, stripped 
 bare of any warrant of authority of law whatever to 
 permit the formation and trial of an issue of fact in an 
 original proceeding for mandamus. When Mr. Justice 
 Cartwright's opinion in Scott Bibb's case arrived at the 
 point of finishing the work of wiping out all applicable 
 legislation, the common law arose, forbade the Supreme 
 Court to make a determination of the issue of fact made up 
 in the case, and required the Court to dismiss the appli- 
 cation for the writ of mandamus. See Oklahoma Terri- 
 tory v. C. R. I. Pac. R. Co., 39 Pac. Rep., 389; Howard 
 v. Gage, 6 Mass., 462; Lunt v. Davison, 104 Mass., 498; 
 High. Ext. L. R., Ed. 3, Sec. 457; 19 Am. & Eng. Ency. 
 of Law, Ed. 2, 904-5, cases in notes. 
 
 Perhaps it would have been wiser, if the Legislature 
 that passed the Mandamus Act of June 1, 1827, had not 
 taken the mode of trial by jury from the Act of 9 Anne, 
 c. 20, or had confined that mode of trial to issues of fact 
 in original proceedings for mandamus in Circuit Courts, 
 and had enabled the Supreme Court to use its discretion 
 as to the mode of determining issues of fact in original 
 proceedings for mandamus, but the plain, stubborn facts 
 are, that not only that Legislature of 1827, but subse- 
 quent Legislatures as well in 1833, 1845, and 1874, did 
 take the mode of trial by jury from the Act of 9 Anne, 
 c. 20, and did apply that mode of trial to the Supreme 
 Court as well as to Circuit Courts; and that the people 
 ratified and approved the work in and by the jury pro- 
 visions of the Constitution of 1848 and 1870, and thus 
 placed the work beyond the reach of the improving hand 
 of the Legislature, or of the Supreme Court. 10 
 
 10 In Castle v. Lawler, 47 Conn., 340, 343, Carpenter, J., says: "That statute 
 (of 9 Anne, c. 20) neither expressly nor by necessary implication requires a jury 
 
PROCEEDINGS FOR MANDAMUS 361 
 
 There can be no criticism among lawyers of the result 
 reached in Scott Bibb's case, except the criticism above 
 indicated that the result was arrived at too late, and 
 a criticism of the way the Court got at its result. On 
 the view of the facts evidently entertained by the whole 
 Court, that the defense interposed was clearly dishonest 
 and mala fide, a suggestion from the Bench to conusel, as 
 a preliminary mode of exerting the Court's acknowledged 
 control over attorneys and counsellors, that they must 
 alter their conduct of the case, doubtless would have put 
 an end to that defense. Perhaps the law supplied the 
 Court with other effective means of summarily striking 
 down that kind of a defense in that kind of a case. 11 
 
 But when the pleadings in Scott Bibb's case are looked 
 into, the Court appears to have certified down for trial 
 by jury an immaterial, or frivolous, issue of fact, as well 
 as a false one, if it was false, as the whole Court seems to 
 
 trial." The learned Judge cites nothing in support of that view, nor is the ex- 
 pression of the view necessary to support the result of the opinion. The text of 
 Sec. 2 of Anne, the same as the 3d Sec. of the Illinois Act of 1827, quoted, supra, 
 is against the view, and so is the third Sec. the same as the 4th Sec. of the 111. 
 Act of 1827, and as the 6th Sec. of the present 111. Act of 1874. The case is a 
 well-reasoned one, and upon an historical examination of the law of Connecticut 
 reaches the result that, in mandamus proceedings in inferior Courts in Con- 
 necticut, it not appearing from the case that the Supreme Court there has any 
 original jurisdiction in mandamus, trial by jury is not a matter of right. In 
 Illinois Circuit Courts trial by jury is, and always has been, a matter of right 
 in mandamus. The majority opinion in Scott Bibb's case neither questions nor 
 disturbs that law. 
 
 11 Whether, on the views of the Court about the defense, the summary prac- 
 tice of striking off false pleadings and entering judgment by default could have 
 been availed of, see 1 Chitty, Pleading, 541-545; Stephen, Pleading, 442; Perry, 
 Pleading, 432; 20 Ency. of PI. & Pr., 1, Article on Sham Pleadings. Quaere as 
 to the dictum of Wilkin, J., in Bemis v. Homer, 145 111., 567, 572, that such prac- 
 tice encounters the right of trial by jury. See Walter v. Walter, 39 N. J. L., 
 98; Coykendall v. Robinson, 39 N. J. L., 98; and see Karring v. Griffith, 86 111., 
 265; 20 Ency. of PI. & Pr., 14, cases in note 1, and 17, cases in note 6. The an- 
 alogous practice of requiring an affidavit of merits has been held good. See 
 McDonnell v. Olwell, 17 111., 375; Roberts v. Thomson, 28 111., 79; Honore v. 
 The Home National Bank, 80 111., 489; Hunt v. Lucas, 99 Mass., 404; Coykendall 
 v. Robinson, 39 N. J. L., 98, 100; 20 Ency. of PI. & Pr., 15. 
 
362 CONSTITUTIONAL LAW 
 
 have thought. Relator's petition for mandamus con- 
 tained averments of discrimination on account of color, 
 which the answer denied, and the relator filed two pleas 
 denying the denials of discrimination in the answer. The 
 relator ought to have forgotten, in his pleadings, all 
 about his own and his children's color, and to have remem- 
 bered only his and their freedom and equality. The easy 
 burden the law laid on him, whether black or white, was to 
 aver, and prove, that the Washington School was the 
 nearest, most convenient and suitable school for his 
 children, and that the school officials had shut his children 
 out of it, leaving it to the school officials to deny and dis- 
 prove either one of these two things, or to set up, by way 
 of confession and avoidance, a lawful reason why they 
 had shut his children out of the Washington School. 
 There was no defense in the answer, unless it is inter- 
 preted with undue liberality to mean that the Washington 
 School was overcrowded, and that there was not enough 
 room in it for relator's children; but "it was neither 
 urged nor proved that the Washington School was or 
 would have been, with these children as pupils, over- 
 crowded" (179 111., on p. 624). The relator ought to 
 have pressed for judgment on the answer. The question 
 whether the practice of entering judgment non obstante 
 veredicto could have been availed of need not be exam- 
 ined. See the pleadings as set forth in 179 111., 615-623. 
 
COLLECTED COMMENT 363 
 
 III 
 COLLECTED COMMENT 
 
 1. — the judge's control 4. — eminent domain the 
 
 over the jury in civil cases right of appeal and trial 
 in illinois courts. de novo on a justice's 
 
 judgment under sections 
 
 2. — trial by jury in civil 19 and 20 of the farm 
 
 cases in the chicago muni- drainage act. 
 
 cipal court — advance fee 
 
 5. — eminent domain jury 
 
 not a clog on right to. 
 
 trial of the question of 
 
 just compensation. 
 3.— criminal "jury of the 
 
 county or district" in the 6.— eminent domain — 
 
 city court of a city situ- drainage jury trial on 
 
 ated in two counties. the assessment of benefits. 
 
 1. — The Judge's Control over the Jury in Civil 
 Cases in Illinois Courts." — Given a trial judge and 
 twelve jurors "as fair and impartial as the lot of humanity 
 will admit of," the English common-law procedure as 
 it stood when Illinois became a state in 1818, and de- 
 clared in its first state constitution that "the right of 
 trial by jury shall remain inviolate," secured to both 
 sides equally the rudiments of fair play; the founders 
 of the procedure did not weight it against one side and 
 in favor of the other. It is not so to-day in Illinois. 
 Illinois jury-trial procedure is weighted against the 
 plaintiff and in favor of the defendant. The result 
 flows chiefly from two main rules, one made by the 
 General Assembly and the other by the Supreme Court, 
 and their judge-made corollaries. The aggregate forms 
 
 a [9 111. Law Rev., 35, May, 1914.] 
 
364 CONSTITUTIONAL LAW 
 
 that modern and bulky branch of the law that goes by 
 the name of jury-trial procedure and practice, perfectly 
 useless for the only purpose it ought to exist, i. e., to 
 aid in bringing out the truth and making it prevail, but 
 very necessary to be known and handled as carefully as 
 the red-hot iron in the old ordeal of hot iron. 
 
 The first of the main rules referred to is the one per- 
 mitting the trial judge to instruct the jury only on the 
 law and in writing. It was introduced by the General 
 Assembly in 1845 and 1847. The second is the one per- 
 mitting the Appellate Court to find the facts different 
 from the finding of the jury when the jury find for the 
 plaintiff. It was introduced by the Supreme Court in 
 1896 and 1898 by way of a judicial construction of an act 
 of the General Assembly, passed in 1877. The judge- 
 made corollaries of these two main rules are familiar. 
 
 If the question were an original one, neither of these 
 main rules is consistent with the original Illinois consti- 
 tutional mandate of 1818 that "the right of trial by jury 
 shall remain inviolate"; and the second, because of its 
 discrimination against the plaintiff and in favor of the 
 defendant, authorizing the Appellate Court to find the 
 facts different from the finding of the jury only when 
 the jury find for the plaintiff, also probably encounters 
 the prohibition in the fourteenth amendment forbidding 
 any state to deny to any person within its jurisdiction 
 the equal protection of the laws. But the question of the 
 constitutionality of these rules as related to the jury- 
 trial mandate in the state constitution is not an original 
 one, and must be laid away under the headstone, com- 
 munis error facit jus. 
 
 The question sometimes raised and angrily debated, 
 whether these rules were originally introduced from un- 
 worthy, partisan motives operating on the General Assem- 
 bly in the one case and the Supreme Court in the other 
 
COLLECTED COMMENT 365 
 
 case, is of no practical importance or consequence what- 
 ever. Like all other rules, these rules must be judged 
 by their results alone, i. e., by their actual practical effect 
 upon men. That, when tested by their results, these 
 rules are unfair, partisan rules, operating actually and 
 practically to aid the defendant and hinder the plaintiff, 
 weighting jury-trial procedure against the plaintiff, can- 
 not be seriously denied. And this is especially true in 
 personal-injury cases, which constitute most of the cases 
 tried by jury at the present time in Illinois courts. 
 
 These rules strip the trial judge and jury of all real 
 work and responsibility. Their serious occupation is 
 gone. On a quantum meruit basis, the work these rules 
 permit a trial judge and jury to do is not worth the price 
 paid for it by the public. The late Judge Gary said, and 
 said truly, after thirty years' experience as an Illinois 
 trial judge, that the chief expert function of an Illinois 
 trial judge in a case tried by a jury is "to keep his mouth 
 shut," not at the right time, but all the time, for there is 
 no right time for an Illinois trial judge to open his mouth 
 in a case tried by a jury. As for his nodding and winking 
 and other pantomime to influence the jury, that is all 
 wrong in point of law, and undignified and contemptible 
 in point of fact. There is nothing for an Illinois trial 
 judge and jury to do in a really debatable case but to find 
 for the plaintiff and bundle the case up into the Appellate 
 Court for final disposition there. As a matter of fact, 
 that is what they do and ought to do to secure and expe- 
 dite justice. The Chicago Municipal Court judge rightly 
 assumed that "pass the buck" is a classical legal phrase 
 in Illinois. 
 
 When the Appellate Court gets the case, it disposes of 
 it and must dispose of it according to the rule of chancel- 
 lor's foot royal prerogative equity and humanity. The 
 Rhode Island Supreme Court learnedly and solemnly 
 
366 CONSTITUTIONAL LAW 
 
 tells us the jurisdiction of appellate judges to find facts 
 different from the finding of a jury is the jurisdiction of 
 the king in council — George III in council — to review 
 the judgments of judges and juries in the colonial courts 1 ; 
 and as a matter of fact that is a very good description of 
 the jurisdiction, though it is vulgarly supposed that the 
 American Revolution got rid of kings. George III is 
 still with us, presiding over his councils of judges called 
 appellate courts with power to find the facts different 
 from the finding of the jury when the jury find for the 
 plaintiff. 
 
 The statement recently circulated throughout the 
 Fifth District to defeat Judge Puterbaugh for the Supreme 
 Court, that his opinions as a judge of the Appellate Court 
 reversing judgments for the plaintiff in personal-injury 
 cases prove him to be a man with a "corporation squint" 
 and "without humanity," was a pseudo-philosophic 
 Progressive campaign slander. The cardinal virtue of 
 Judge Puterbaugh and every other judge of the Illinois 
 Appellate Courts is and must be their "humanity" in 
 disposing of judgments for the plaintiff in personal-injury 
 cases bundled in upon them by the trial judges and juries, 
 for they cannot dispose of them on any other principle 
 with any hope of keeping out of hot water and getting 
 re-elected. When Lord Stowell said the first virtue of a 
 judge is justice and the second humanity, he did not 
 know anything about Illinois procedure in cases tried by 
 a jury. The only criticism that can be made of Judge 
 Puterbaugh is that he did not strip to the waist when his 
 integrity was publicly assailed in that Progressive fashion, 
 take the stump, and tell the people the truth about the 
 jury- trial procedure he had taken an oath to administer, 
 
 1 Gunn v. Union R. Co., 27 R. I., 320, 432; 23 R. I., 289; 26 R. I., 112. Compare 
 Slocum v. N. Y. Life Ins. Co., 228 U. S., 364, followed in Young v. Central R. Co., 
 34 Sup. Ct. Rep., 451. 
 
COLLECTED COMMENT 367 
 
 with due regard to the established substantive law of 
 negligence. 
 
 Illinois jury-trial procedure is a colossal humbug, 
 deceitfully undermining and destroying the trial judge 
 and jury under the fair and honorable pretense of pre- 
 serving them inviolate. But the "archaic," "fossilized" 
 founders of the English common-law procedure are in 
 no way responsible for the Illinois procedure. They 
 would turn over and groan in their graves if they could 
 hear about it and see it in operation. 
 
 If the Illinois legal profession are not trifling with the 
 subject of procedural reform and really want to reform 
 it, then let them move to cut those two rules out of the 
 jury-trial procedure. They can do it if they want to. 
 When a trial judge gets arbitrary, despotic, and unfair and 
 partisan in a jury trial, the right thing to do is to discipline 
 that trial judge on the spot in the particular case in 
 hand, not to pack the procedure against one side and in 
 favor of the other. It is with judges and juries as with 
 children, and the rest of mankind for that matter, dis- 
 trust begets unfitness and all unworthiness. 
 
 The legal profession must get more punch into this 
 procedure and reform business. The Progressive ladies 
 who took the stump against Judge Puterbaugh have got 
 a good punch, but they are wild. 
 
 2. — Trial by Jury in Civil Cases in the Chicago 
 Municipal Court — Advance Fee Not a Clog on Right 
 To. a — In Williams v. Gottschalk, 231 111., 175, 83 N. E. 
 Rep., 141, Scott, J., it is decided that Sec. 56, Sub- 
 division 5, of the Chicago Municipal Court Act requir- 
 ing a defendant who wants a jury trial to ask for it in 
 writing, and to "pay to the Clerk the further sum of six 
 dollars to be applied toward the payment of the fees of 
 
 - [2 111. Law Rev., 525, March, 1908.] 
 
368 CONSTITUTIONAL LAW 
 
 jurors in said Court," is not repugnant to Sec. 5 of Article 
 2 of the Constitution, which says: "The right of trial by 
 jury as heretofore enjoyed shall remain inviolate; but 
 the trial of civil cases before justices of the peace by a 
 jury of less than twelve men may be authorized by law." 
 This provision is in the Bill of Rights. And Sec. 19 pro- 
 vides: "Every person ought to find a certain remedy in 
 the laws for all injuries and wrongs which he may re- 
 ceive in his person, property, or reputation; he ought 
 to obtain, by law, right and justice freely, and without 
 being obliged to purchase it, completely and without 
 denial, promptly and without delay." "To none will 
 we sell, to none will we deny, or delay, right or justice." 
 Magna Charta, Sec. 40. We cannot assume that these 
 have become "glittering generalities." The Court make 
 the constitutionality of the $6 advance fee law turn on 
 the size of the fee, its "reasonableness," but lays down 
 no test of reasonableness, or limit beyond which the 
 size of the fee may not go. Paragraph 2 of the head- 
 note in 83 N. E. Rep., 142, says the fee is "reasonable" 
 if "not greater in amount than the statutory compensa- 
 tion of the jurors." But what is the limit to the power 
 of the Legislature to fix the compensation of jurors? The 
 decision, and its mode of dealing with the question, is 
 in accord with decided cases in other jurisdictions, though 
 the ruling in such cases has been questioned. Some 
 of the cases are cited in the opinion of Scott, J., and a 
 more complete collection of them may be found in Clay- 
 ton v. Clark, 55 N. J. L., 539, 540, 541. Green v. Briggs, 
 1 Curtis, 311; Copp v. Henniker, 55 N. H., 179, and the 
 dissent of Brewer, J., in Capital Traction Co. v. Hof, 
 174 U. S., 1, represent the opposition. 2 Some of the 
 
 2 If the burden or disadvantage imposed could have no operation or effect except 
 to prevent, hinder, obstruct, or discourage the exercise of the constitutional right, 
 it would operate as a penalty upon the party claiming the right, and would of 
 
COLLECTED COMMENT 369 
 
 cases may be discriminated on the ground that they are 
 dealing with laws concerning so-called jury trial in a 
 Justice Court, or other inferior Court, from which an 
 appeal may be taken and a trial de novo had in a superior 
 Court. In such cases the so-called jury trial in the first 
 Court is not the jury trial the Constitution speaks of. 
 (Capital Traction Co. v. Hof, 174 U. S., 1, opinion of 
 Gray, J.) Few, if any, of the cases supporting advance 
 jury fee laws notice this difference. On an appeal or 
 writ of error from the Chicago Municipal Court there 
 is no trial de novo. If a litigant is denied the exercise 
 and enjoyment of his right to a jury trial in that Court, 
 he cannot use the right in any other Court to which he 
 may go by appeal or writ of error. The Illinois Court 
 quotes the Minnesota Court, whose opinion fairly repre- 
 sents the line of thought on which such laws are sustained. 
 The Minnesota Court says: "The Constitution does not 
 guarantee to the citizen the right to litigate without 
 expense." That must be conceded. But it does reach 
 and touch the point at issue? Does the Constitution 
 forbid the Legislature to discriminate against the mode 
 of trial by jury, and in favor of the mode of trial by a 
 judge without a jury, by laying a tax or other pecuniary 
 burden upon the man who wants the jury trial? The 
 Constitution guarantees to the citizen "the right" "of 
 the trial by jury." If you may be taxed or made to pay 
 money, however small in amount, before you can exercise 
 and enjoy that right, how can it be said that you have a 
 right, as distinguished from a privilege or license? The 
 cases may be sound, but their method of dealing with 
 
 course be an infringement of the right itself." Ladd, J., Copp v. Henniker, 
 55 N. H., 179, 194. "It is manifest that this right is not secured by the Consti- 
 tution, but is wholly under the control of the Legislative power, if it can annex 
 penalties to the exercise of the right." Curtis, J., Greene v. Briggs, 1 Curtis 
 311, 327, 328. 
 
370 CONSTITUTIONAL LAW 
 
 the point is not convincing. The cases probably do give 
 expression to current opinion against the trial by jury. 
 But that has nothing to do with the matter. "It is the 
 right of trial by jury which exists and is preseved, and 
 what that right is is a purely historical question, a fact 
 to be ascertained like any other social, legal, or political 
 fact." — Sedgwick on St. and Cons. Law, Ed. 2, 487, 
 Pomeroy's note. It is not likely that the Supreme Court 
 will hold that the Chicago Charter Amendment of the 
 Constitution affects the jury provisions of the Consti- 
 tution. See Miller v. The People. 
 
 The obvious point that the advance jury fee provisions 
 of the Chicago Municipal Court Act are local and special, 
 and not general and uniform, was not raised in the case, 
 though it does seem that the Court itself ought to have 
 called for argument on the point. See People v. Miller, 
 supra. It seems certain that these jury provisions can 
 be and will be got into the Federal Supreme Court under 
 the life, liberty, and property and equal protection of the 
 law clauses of the Fourteenth Amendment. 
 
 3. — Criminal "Jury of the County or District" in 
 the City Court of a City Situated in Two Counties. 3 — 
 People v. Rodenberg, 254 111., 386, Cartwright, J.,, 
 writing the opinion, arose out of the efforts of the 
 people of Centralia to establish a city court under the 
 City Court Act of 1901. Centralia is situated partly 
 in Marion County and partly in Clinton County. As 
 a part of the process of establishing a city court of Cent- 
 ralia, it seems the city council provided a place for hold- 
 ing the court in the part of Centralia in Marion County, 
 but did not provide a place for holding the court in the 
 part of Centralia in Clinton County. The case seems 
 to have been disposed of on the theory that the question 
 
 a [7 111. Law Rev., 125, June, 1912.] 
 
COLLECTED COMMENT 371 
 
 presented was, whether the city court of Centralia 
 sitting in the place provided in Marion County could try 
 before petit jurors drawn from Marion County persons 
 accused on indictments of grand jurors drawn from 
 Marion County of criminal offenses alleged to have been 
 committed in Clinton County. No exception can be 
 taken to the judgment of the court answering this ques- 
 tion in the negative, and consequently declaring that the 
 city court of Centralia, because of its exclusive domicile 
 in Marion County, had no authority to try persons for 
 offenses committed in the part of Centralia in Clinton 
 County. On this view of the question presented and 
 decided, it follows that the precise error in the process 
 of establishing the city court of Centralia lay in the failure 
 of the city council to provide two places for holding 
 the city court, one place in the part of Centralia in Marion 
 County, and another place in the part of Centralia in 
 Clinton County, or one place on the county line, which 
 error, of course, is a curable one. 
 
 But the opinion of the Supreme Court goes beyond the 
 question in the case as above stated, and intimates that 
 the people of a city situated in two counties cannot 
 establish a city court under the City Court Act of 1901, 
 without violating the constitutional requirements that 
 all courts of the same class or grade must have a uniform 
 organization, and that in all criminal prosecutions the 
 accused shall have the right to have a speedy public 
 trial by an impartial jury of the county or district in which 
 the offense is alleged to have been committed. 
 
 There is nothing in the constitution of the state or in 
 any statute of the state that prevents the holding of a city 
 court in more than one place in the city. As the circuit 
 court may be held in different counties of the circuit, so 
 the city court may be held in different counties of the 
 city. City courts are of the same class or grade as circuit 
 
372 CONSTITUTIONAL LAW 
 
 courts, and have concurrent jurisdiction with circuit 
 courts in all criminal cases arising in the city. 
 
 The Supreme Court misapprehends Buckrice v. The 
 People, 110 111., 29, when it says that case decides that 
 a "district" — within the meaning of the constitutional 
 provision that "in all criminal prosecutions the accused 
 shall have the right ... to have ... a speedy 
 public trial by an impartial jury of the county or district 
 in which the offense is alleged to have been committed" — 
 must lie wholly within the limits of a single county. The 
 whole of the trouble in that case was that none of the 
 grand jurors who indicted the accused, and none of the 
 petit jurors who found him guilty, came or could come 
 from the 100-rod strip of territory of one county annexed 
 by statute to the adjoining county. 
 
 The provision of the constitution in question goes back 
 through the constitutions of 1848 and 1818 to the sixth 
 amendment of the federal constitution, where the phrase 
 is "state and district," and is found in the constitutions 
 of Ohio, Wisconsin, Minnesota, Kansas, Nebraska, and 
 perhaps other states, all the state constitutions using 
 the phrase "county or district," the change from "and" 
 in the federal constitution to "or" in the state consti- 
 tutions having been intentional and deliberate everywhere 
 and not accidental. The consensus of legal opinion in 
 the states appears to be that a "district" need not lie 
 wholly within the limits of a "county," though under 
 the federal constitution it was settled in the beginning 
 that a "district" must lie wholly within the limits of a 
 "state." While in Buckrice v. People the Supreme 
 Court declined to follow State v. Robinson, 14 Minn., 
 447, yet that case is quite unlike State v. Kemp, 34 Minn., 
 61, and State v. McDonald, 109 Wis., 506. And in Watt 
 v. People, 126 111., 9, the Supreme Court refused to extend 
 Buckrice v. People any further, as is made plain by the 
 
COLLECTED COMMENT 373 
 
 separate opinion of Scholfield, J., who wrote the opinion 
 in Buckrice v. People. 
 
 The Supreme Court's present expansive reading of 
 Buckrice v. People is not only wrong in itself, but is obiter 
 in this case. 
 
 If Buckrice v. -People does decide that a "district" must 
 lie wholly within the limits of a single county, never- 
 theless the Legislature does not have to provide that 
 grand and petit jurors must come from the "district," 
 but may provide that grand and petit jurors shall come 
 from the "county," in which the crime is alleged to have 
 been committed. If the City Court Act is regarded 
 as erecting the territory of every city having a city court 
 into a "district," yet the statutes always have provided 
 for the drawing of jurors in city courts either from the 
 county or from the four towns of the county most con- 
 venient to the city court. The Supreme Court entirely 
 overlooks the legal significance of the word "or" in the 
 phrase, "county or district," and overlooks the usage of 
 forty years drawing jurors in city courts from the county. 
 
 The idea that the people of a city situated in two 
 counties cannot have a city court, because the city 
 court cannot enforce the constitutional right of accused 
 persons to "a speedy public trial by an impartial jury 
 of the county or district in which the offense is alleged to 
 have been committed," rests entirely on the proposition 
 that the city council cannot provide for holding the court 
 in the two counties. But the city council can so provide. 
 
 The claim in this case that the city court of Centralia 
 can exercise all its jurisdiction while sitting in Marion 
 County is untenable. And that seems to be the full 
 legitimate legal scope of the opinion rendered in the case. 
 Because the process of the city court of Centralia cannot 
 cross the county line, it does not follow that the court 
 itself cannot do it. 
 
374 CONSTITUTIONAL LAW 
 
 All that is said in the opinion of the Supreme Court 
 touching the power of the Legislature to provide for the 
 establishment of city courts in cities situated in two coun- 
 ties seems to be entirely outside the case. It is the exist- 
 ing statutes, and not the constitution, that prevents the 
 city court of Centralia from exercising all its jurisdiction 
 while sitting in Marion County. Under existing statutes, 
 to exercise all its jurisdiction the city court of Centralia 
 must sit in the two counties of Marion and Clinton, and 
 existing statutes authorize and permit it to do so, and 
 require it to do so, and those statutes are not unconstitu- 
 tional as applied to cities in two counties. 
 
 It is to be hoped the constituted authorities of Centralia 
 charged with the duty of carrying out the vote of the 
 people of Centralia in favor of establishing a city court 
 will not acquiesce in this opinion of the Supreme Court as 
 an adjudication that the constitution of the state does not 
 permit a city situated in two counties to establish a 
 city court under the City Court Act of 1901. That 
 proposition is of considerable present and future practical 
 importance to the administration of justice in the growing 
 cities of this state, where the complaints are loudest 
 and most just ; it is not clearly articulated in this opinion ; 
 it is not clearly within the issues of this case; and it is a 
 discrimination against cities in two counties on the acci- 
 dental basis of an imaginary geographical county line 
 that is not warranted by anything expressed in the consti- 
 tution, statutes, or decided cases. 
 
 4. — Eminent Domain — The Right of Appeal and 
 Trial De Novo on a Justice's Judgment Under Sections 
 19 and 20 of the Farm Drainage AcT. a — In Drainage 
 Commissioners of the Town of Niles v. Harms, 238 111., 
 415, Cartwright, J., writing the opinion, and Dunn, 
 
 a [4 111. Law Rev., 202, October, 1909.] 
 
COLLECTED COMMENT 375 
 
 J., a dissenting opinion, concurred in by Vickers, J., 
 who adds a brief dissent of his own, it is decided that a 
 landowner cannot appeal to the Circuit Court, or Superior 
 Court of Cook County, for a trial de novo from the judg- 
 ment of a Justice of the Peace, entered on the verdict of 
 a jury of six freeholders, fixing the just compensation 
 due for land taken or damaged by the Commissioners 
 of a Farm Drainage District, organized under the Farm 
 Drainage Act of 1885, for the right of way for a main out- 
 let drain for the use of the District. The authority of 
 the Justice and jury to determine the just compensation 
 in such case is derived from Sections 19 and 20 of the 
 Farm Drainage Act of 1885. See 2 S. & C, Ann. Stat., 
 Ed. 2, p. 1944. In this case the Justice and jury awarded 
 $1,097.50; the landowner appealed to the Superior Court 
 of Cook County in the usual way; that Court (Chytraus, 
 J.) dismissed the appeal on motion; and the Supreme 
 Court affirmed the Superior Court's order of dismissal. 
 
 The majority opinion discusses a number of important 
 constitutional questions touching the right of a litigant 
 feeling aggrieved by the action of a lower Court to invoke 
 the appellate jurisdiction of a higher Court. The re- 
 porter's headnote gives nine points as decided. But the 
 majority opinion does nothing but enunciate the familiar 
 proposition that you cannot go from a Justice's Court 
 to a superior Court of Record for a trial de novo by the 
 legal process technically denominated "appeal," unless 
 you can put your finger on a statute expressly and affirma- 
 tively authorizing you to do so; and then decides that 
 there is no statute authorizing an "appeal" from the 
 judgment of the Justice under Sections 19 and 20 of the 
 Farm Drainage Act of 1885. The majority opinion 
 next decides that the question of the constitutional 
 power of the Legislature to make the judgment of the 
 Justice final and conclusive in such case by the process of 
 
376 CONSTITUTIONAL LAW 
 
 neglecting to provide an "appeal" to a superior Court of 
 Record was not open for decision (see p. 417), because, 
 when a Court has no jurisdiction over a case, it must 
 drop that case just as soon as it makes that determination. 
 But the majority do not observe that proposition; do not 
 drop the case right there. They go on and give expres- 
 sion to the opinion that the Legislature has that consti- 
 tutional power, which expression of opinion fairly may be 
 interpreted as judicial dictum controlling in a subsequent 
 case wherein the very point is up for decision, and was so 
 interpreted by the dissenting Justices, and hence the sharp 
 protests of the dissenting Justices. 
 
 The majority's decision that there is no statute author- 
 izing an appeal from the Justice in such case to the Circuit 
 Court, or Superior Court of Cook County, for a trial de 
 novo, is wrong. Sections 19 and 20 themselves do that. 
 
 It is true that Section 20 uses the words, "which judg- 
 ment shall be final and conclusive." But those words 
 were not intended by the Legislature to cut off, and do not 
 cut off, the right of appeal given by the previous words in 
 the first sentence of Section 20, thus: "When the jury 
 shall appear, as provided in the foregoing Section (19), 
 the trial shall be conducted as in other cases before a 
 Justice of the Peace or County Court, 3 as the case may 
 be." Chronic v. Pugh, 136 111., 539, is decisive of the 
 point that the true meaning, operation, and effect of those 
 words, standing by themselves, is affirmatively to author- 
 ize an appeal from the judgment of the Justice to the 
 Circuit Court, or Superior Court of Cook County. It is 
 true that Chronic v. Pugh arose under Sections 5 and 6 
 of. the Farm Drainage Act of 1885 (see 2 S. & C, Ann. 
 Stat., Ed. 2, pp. 1537-8), and not under Sections 19 and 
 20. Sections 5 and 6 authorize a Justice and a jury to 
 
 8 An explanation of the words "or county court" is given later in the text. 
 
COLLECTED COMMENT 377 
 
 determine the just compensation when an individual 
 farmer, a member of a Farm Drainage District, wants a 
 right of way over another's land for an outlet drain to 
 drain his own land only. See the private irrigation ditch 
 case, and the private aerial bucket line case, both from 
 Utah, Clark v. Nash, 198 U. S., 361; Strickley v. High- 
 land Boy Gold Mining Co., 200 U. S., 527. Section 5 
 says: "And proceeding shall be had thereon (i. e., on the 
 summons issued by the Justice) as in other civil causes 
 before justices of the peace." In Chronic v. Pugh the 
 Court decided that those words imported into Section 5 
 the provision of the Justices and Constables Act, allow- 
 ing appeals from Justices in all cases except on judgments 
 confessed. See R. S., 1874, Chap. 79, Sec. 62, in its 
 present form, 2 S. & C, Ann. Stat., Ed. 2, p. 2436. Sec- 
 tion 6 concludes thus: "The judgment shall be final and 
 conclusive between the parties until after the expiration 
 of two years from the finding in the former case." In 
 Chronic v. Pugh it was argued at the Bar that those 
 words at the end of Section 6 cut off the right of appeal 
 given by the previous words above quoted in Section 6. 
 But the Court, Bailey, J., rejected the argument thus: 
 
 "It will be observed that the provision is not that the 
 judgment of the justice of the peace shall be final, but 
 merely that the 'judgment,' that is, the final judgment 
 in the proceeding, shall be final. It may therefore just 
 as properly be held to mean the final judgment on appeal 
 as the judgment pronounced by the justice of the peace. 
 The provision here quoted was undoubtedly inserted as 
 a restraint upon repeated attempts by the parties to 
 litigate the right of one party to extend his drain on to 
 the land of the other, and not for the purpose of taking 
 away the right of appeal." 
 
 Chronic v. Pugh is cited and quoted from in the dissent- 
 ing opinion of Dunn, J., to the point that the case 
 
378 CONSTITUTIONAL LAW 
 
 involved a free-hold, but its applicability to, and authori- 
 tative control of, the question of the true meaning, oper- 
 ation, and effect of the words used by the Legislature in 
 Section 20 is not noticed anywhere. Indeed, the majority 
 treat the primary question at the threshold of the 
 case — -namely, "Has the Legislature authorized an appeal 
 from the Justice to the Circuit Court, or Superior Court 
 of Cook County?" — as admitting of only one allowable 
 answer, to- wit, in the negative, and the whole of the 
 majority opinion is pinnacled upon that erroneous inter- 
 pretation of Sections 19 and 20. 
 
 Prior to the adoption of the Constitution of 1870, 
 under the legislative plan then customary of authorizing 
 commissioners to determine the just compensation due 
 for private property taken for public use, the words 
 "which judgment (of the commissioners) shall be final 
 and conclusive" were, if not usual, at least not unusual, 
 in Railroad Acts, special and general. In such an Act 
 very likely those words were intended by the man who 
 drew the Act to shut property owners out of the Courts. 
 But, in spite of those words, the Supreme Court opened 
 up the Courts to the property owners whenever it could 
 do so without too violent and vehement a departure from 
 the rules of English grammar. See Austin v. R. R. Co., 19 
 111., 310; R. R. Co. v. Barrows, 24 111., 562; Skinner v. 
 Lake View Avenue Co., 57 111., 151; R. R. Co. v. Lux, 
 63 111., 523, 524; Johnson v. R. R. Co., 23 111., 202, 207- 
 208; 2 Debates in Const. Con. of 1870, pp. 1567 et seq., 
 1575 et seq., 1650 et seq., 1716. And see the decisions 
 that the Legislature has authorized appeals to superior 
 Courts of Record for trials de novo from judgments of 
 Justices and juries entered under various sections of the 
 Road and Bridge Act. See Town of Partridge v. Sny- 
 der, 78 111., 519; Ravalte v. Race, 152 111., 672; Behrens 
 v. Comrs. of Highways, 169 111., 558 562; C. S. F. & C. 
 
COLLECTED COMMENT 379 
 
 Ry. Co. v. Lorance, 180 111., 180; The People v. Comrs. 
 of Highways, 188 111., 150; Cutler v. Sours, 80 111. 
 App., 618, 624; Coffman v. Comrs. of Highways, 85 111. 
 App., 90. 
 
 Additional confirmation of the view that the Legis- 
 lature intended to, and did, authorize an appeal from the 
 judgment of the Justice to the Circuit Court, or Superior 
 Court of Cook County, under Sections 19 and 20 of the 
 Farm Drainage Act, is supplied by the following consider- 
 ations: Section 19 provides "that the Commissioners 
 may commence the proceedings in the County Court 
 at any term thereof, either of common law or probate." 
 The word "judgment" in the clause, "which judgment 
 shall be final and conclusive," embraces the judgment 
 of the County Court, as well as the judgment of the Jus- 
 tice of the Peace, for it is said in Section 20: "and the 
 Justice of the Peace or County Judge shall enter judg- 
 ment for the amount of the verdict, which judgment 
 shall be final and conclusive." The provisions in Section 
 19 for a jury of six freeholders are expressly limited to 
 the case where proceedings are begun before a Justice 
 of the Peace, and have no express application to the case 
 where proceedings are begun in the County Court, and so 
 the reasonable construction of the first sentence of Section 
 20, "When the jury shall appear, as provided in the 
 foregoing section (19), the trial shall be conducted as in 
 other cases before a Justice of the Peace or County Court, 
 as the case may be," as applied to the County Court, 
 would appear to be that it directs the County Court to 
 proceed under the Eminent Domain Act of 1872. See 
 R. R. Co. v. Drainage District, 213 111., 213; City of Joliet 
 v. Drainage District, 222 111., 441, 452-3, both originating 
 in County Courts. Section 12 of the Eminent Domain 
 Act says: "In all cases, in either the Circuit or County 
 Court, or before a Circuit or County Judge, an appeal 
 
380 CONSTITUTIONAL LAW 
 
 shall lie to the Supreme Court." 4 It is hardly conceivable 
 and certainly is an interpretation to be avoided if possible, 
 that the Legislature intended to make the Justice's judg- 
 ment "final and conclusive," and the County Judge's 
 judgment reviewable. 
 
 But, in this case, the order dismissing the appeal out of 
 the Superior Court of Cook County was right. As above 
 stated, the just compensation for the land taken or 
 damaged was found by the Justice's jury to be $1,097.50. 
 Because of the amount involved, so far in excess of 
 the $200 limit to a Justice's general jurisdiction, the 
 Justice had no jurisdiction to entertain the proceeding 
 to determine the just compensation, and should have dis- 
 missed it, sending the Drainage Commissioners to the 
 County Court. As above shown, Sections 19 and 20 
 allow the Drainage Commissioners to go to a Justice's 
 Court or to a County Court. I think the true interpre- 
 tation is that the Drainage Commissioners must go to 
 the County Court, when, on the face of the proceedings, 
 it must be plain that the just compensation due for the 
 land taken or damaged must exceed $200, at least con- 
 siderably and as much as in this case. A trial before a 
 Justice and jury in the first instance, though highly con- 
 venient and desirable, and a concession to the property 
 owners, when the value of the land is small, becomes, 
 when the value of the land taken or damaged is as high 
 as $1,000, vexatious and oppressive to the property 
 owner, because expensively and uselessly experimental, 
 
 4 The majority say (pp. 422-423) the proceeding before the Justice to determine 
 the just compensation did not involve a freehold. The dissent of Dunn, J., 
 changes that view. If the Drainage Commissioners had gone to the County 
 Court, instead of to the Justice, there can be no doubt the proceeding in the 
 County Court would have involved a freehold. What difference can it make, as 
 respects the involution of a freehold, whether the proceeding is begun in the one 
 forum or the other, especially on the seeming view of the majority that the Com- 
 missioners may select the forum in all cases? 
 
COLLECTED COMMENT 381 
 
 until, at least, men come to have more respect for the 
 judgments of Justices and their juries than they ever 
 have had. 6 Whether the Legislature has the constitu- 
 tional power, consistently with the right of trial by jury, 
 to raise the pecuniary limit to the jurisdiction of Justices 
 to $1,000 is, as Judge Garrison says in Clayton v. Clark, 
 55 N. J. L., 539, 540, "evidently one of large importance 
 in a constitutional point of view." And, as there said, 
 it will be time enough for the Courts to deal with that 
 question when the Legislature clearly furnishes the 
 occasion and the necessity arises. It is not permissible, 
 I think, to say that the Legislature laid claim to such 
 power in and by Sections 19 and 20 of the Farm Drain- 
 age Act of 1885, fairly, reasonably and sensibly construed, 
 giving due weight to the principle that a statute must be 
 so construed, if it is reasonably and rationally possible, 
 as to avoid the raising of questions touching the consti- 
 tutional power of the Legislature. The proceedings 
 before the Justice and jury were,' therefore, coram non 
 judice and void — mere beating the air — for want of a 
 legislative grant of jurisdiction. The appeal to the Su- 
 perior Court of Cook County carried up nothing, for 
 there was nothing to carry. The Superior Court's order 
 dismissing the appeal was right. And the Supreme 
 Court's judgment affirming the Superior Court's order 
 also was right. See 24 Cyc, 641, and Illinois cases 
 there cited. 
 
 5. — Eminent Domain — Jury Trial of the Question 
 of Just Compensation. 1 — Is the dictum in the majority 
 opinion in Drainage Commissioners of the Town of 
 Niles v. Harms, 238 111., 415, sound in point of law, 
 
 5 See the verdict and judgment under Sections 19 and 20 that was vacated on 
 a common law certiorari in Drainage Comrs. v. Volke, 163 111., 243. 
 
 a [4 111. Law Rev., 206, October, 1909.] 
 
382 CONSTITUTIONAL LAW 
 
 that dictum being that the Legislature has the con- 
 stitutional power to make a Justice of the Peace and 
 a jury of six freeholders the supreme, ultimate judicial 
 tribunal of the question of the just compensation to be 
 paid for private property taken or damaged for public 
 use, by the legislative method of refusing to authorize, 
 or affirmatively denying, any appellate process for taking 
 the question into a superior Court of Record for trial 
 de novo by a common jury? 
 
 As is well known, the Constitution of 1870 wrought a 
 revolution in the administration of justice by changing 
 the question of just compensation for private property 
 "taken or damaged" (see Act II, Sec. 13) for public use 
 from a legislative question to a judicial question, except 
 when the party taking or damaging private property 
 for public use is the State itself. This was done by 
 those provisions of that Constitution extending the right 
 of trial by jury to proceedings to determine the just com- 
 pensation for private" property taken or damaged for 
 public use, except when the State is the party taking or 
 damaging it. See Constitution of 1870, Article II, 
 Section 13; Article XI, Section 14. There can be no 
 doubt at all, I think, that the framers of the Constitution 
 had in view a trial by a common jury in a superior Court 
 of Record, conducted agreeably to the customary, estab- 
 lished usage of jury trials in ordinary civil actions ex 
 contractu and ex delicto for money. And the Supreme 
 Court so interpreted and applied those provisions of the 
 Constitution of 1870 in Wabash R. Co. v. Drainage Dis- 
 trict, 194 111., 310, and in Juvinall v. Drainage District, 
 204 111., 106, which decisions have been reaffirmed re- 
 peatedly. And see the view taken of a like provision 
 in the Ohio Constitution in Lamb v. Lane, 4 Oh. St., 167. 
 
 Would a trial by a jury, even of twelve men, before a 
 Justice of the Peace, conducted agreeably to the custo- 
 
COLLECTED COMMENT 383 
 
 mary, usual, existing modes of procedure in Justice of 
 the Peace Courts, satisfy the right of trial by jury secured 
 by those new provisions of the Constitution of 1870, the 
 way to a superior Court of Record for a trial de novo 
 being shut off completely or blocked by unusual and 
 unreasonable obstructions? 
 
 Wabash R. Co. v. Drainage District, 194 111., 310, 
 appears to answer that question in the negative, even 
 when the just compensation for the land in dispute is 
 under $200. The value of the land sought to be taken 
 or damaged in that case presumably was small, because 
 the tribunal, there adjudged unconstitutional, provided 
 to determine the just compensation, fixed it at $10.50. 
 
 A suggestion at the end of the opinion of Mr. Justice 
 Boggs in that case involves a sound constitutional prin- 
 ciple and distinction respecting the right of trial by jury 
 elaborately expounded, by Mr. Justice Gray in the well- 
 known case of Capital Traction Co. v. Hof, 174 U. S., 1, 
 hereinafter stated. The suggestion there made is that 
 no constitutional objection could have been taken suc- 
 cessfully, in that case, to the initial tribunal provided 
 by the Legislature, if the Legislature had not closed up 
 the way from its decision to a superior Court of Record 
 for a trial de novo by a common jury. 6 
 
 6 Wabash R. R. Co. v. Drainage District, 194 111., 310, and Juvinall v. Drain- 
 age District, 204 II!., 106, both arose under the Levee Act of 1879 after its amend- 
 ment in 1885 and 1895, the amendment in 1895 striking out Sections 23 and 24 
 providing for appeals. See 1 S. & C. Ann. Stat., Ed. 1, p. 926; 2 S. & C. Ann. 
 Stat., Ed. 2, p. 1514. In the one case'the prescribed jury — not a common jury — 
 and in the other case the Drainage Commissioners, determined the just compen- 
 sation for land taken or damaged. In both cases, bad they arisen before the 
 striking out of Sections 23 and 24, Briggs v. Drainage District, 140 111., 53, decides 
 that an appeal and trial de novo could have been had. Briggs v. Drainage 
 District arose under the Levee Act of 1879, as amended in 1885, and involved an 
 assessment of benefits — implicated, apparently, with questions of just compen- 
 sation for land damaged — made by the Drainage Commissioners, from which 
 an appeal was taken to the County Court, the Supreme Court saying: "It is 
 apparent that on an appeal of this character a trial de novo was intended" (p. 55) 
 
384 CONSTITUTIONAL LAW 
 
 Until Illinois became a State in 1818, the right of trial 
 by jury in ordinary civil actions ex contractu and ex 
 delicto was secured to the inhabitants of Illinois by Arti- 
 cle II of the Ordinance of 1787, and after that by the 
 Seventh Amendment to the Constitution of the United 
 States. The opinion of Mr. Justice Gray in Capital 
 Traction Co. v. Hof, 174 U. S., 1, concerning the right 
 of trial by jury under the Seventh Amendent to the 
 Constitution of the United States, is, therefore, judicial 
 authority in Illinois, if, indeed, that may be thought 
 to add anything to its intrinsic solidity and persuasive 
 force. The Seventh Amendment limits the right of 
 trial by jury, as a constitutional right, to "suits at com- 
 mon law, where the value in controversy shall exceed 
 twenty dollars." The Constitution of Illinois of 1848 
 extended the constitutional right of trial by jury to "all 
 cases at law, without regard to the amount in controver- 
 sy." (Article XIII, Section 6.) That the proposition 
 laid down in Capital Traction Co. v. Hof, 174 U. S., 
 1, 18, "A trial by a jury of twelve men (and, a fortiori, 
 by any less number of men) before a justice of the peace, 
 having been unknown in England or America before the 
 Declaration of Independence, can hardly have been 
 
 by Section 24, supra. In this case, the trial on appeal was had before the County 
 Court, without a jury (p. 55), presumably because a jury was waived. In that 
 case, a point with reference to jury trial on the assessment of benefits was made 
 and overruled, the true scope and extent of which seems to be misapprehended at 
 the Bar at least, as the reports show. The whole of the point made (see pp. 56- 
 57), was that the authority given the Drainage Commissioners to make an assess- 
 ment of benefits, that should stand as prima facie evidence against the land- 
 owners, unconstitutionally denied jury trial. There is nothing to that point, 
 evidently, the analogy of the assessment roll in the case of special assessments for 
 local improvements being perfect, as was declared in Hosmer v. Drainage Dis- 
 trict, 135 111., 51, 53, and cases cited, by Craig, J., who wrote the opinion in 
 Briggs v. Drainage District, supra. 
 
 And so, it is material to be noticed that it was the striking out of said Sec- 
 tions 23 and 24 in 1895 that brought the Levee Act into collision with the consti- 
 tutional right of trial by jury in eminent domain cases in the Wabash R. R. Co. 
 and Juvinall cases, supra. 
 
COLLECTED COMMENT 385 
 
 within the contemplation of Congress in proposing, or of 
 the people in ratifying, the Seventh Amendment of the 
 Constitution of the United States," correctly expresses 
 the law of the several Constitutions of Illinois, has never 
 been questioned, so far as I know. 7 There was, at 
 least, until Capital Traction Co. v. Hof, a considerable 
 body of legal opinion that the right of trial by jury, as 
 ordinarily secured by our written Constitutions, meant 
 that a litigant had a right to a trial by a common jury in a 
 superior Court of Record in the first instance, except in 
 cases involving small amounts, specified in the Seventh 
 Amendment as not exceedingly $20, and that such right 
 was unconstitutionally abridged by allowing a trial 
 before a Justice of the Peace, with or without a jury, in 
 the first instance, even though the way to a superior Court 
 of Record for a trial de novo by a common jury was left 
 open. It was thought that Callan v. Wilson, 127 U. S., 54, 
 a criminal, as distinguished from a quasi criminal or petty 
 penal case, sustained that view. The Illinois Constitution 
 
 7 Cases like Schooner Constitution v. Woodworth, 1 Scam., 511, and Ward v. 
 The People, 13 111., 635, cited to a different point in the majority opinion in 
 Drainage Comrs. v. Harms, on p. 419, do not, I think, shake that proposition in 
 Illinois. With Ward v. The People compare Town of Partridge v. Snyder, 78 111., 
 519. There is no such difference between Ross v. Irving, 14 111., 171, and Bank 
 of Hamilton v. Dudley's Lessees, 2 Peters, 529, as to warrant the impossible propo- 
 sition that the Seventh Amendment could mean one thing in Illinois Territory 
 and another and different thing in the District of Columbia. Bank of Hamilton 
 v. Dudley's Lessees goes upon the ground that a Court of the United States, sitting 
 as a Court of Law to try an action of ejectment, could not derive from a State 
 statute authority to adopt and administer forms and modes of procedure suitable 
 for Courts of Equity; see 2 Peters, pp. 525-526, and 2 Rose's Notes, pp. 865-866. 
 In Ross v. Irving, Trumbull, J., evidently did not think there was anything in 
 Bank of Hamilton v. Dudley's Lessees repugnant to the ruling in Ross v. Irving on 
 the right to jury trial. The principles laid down in Capital Traction Co. v. Hof 
 have been overlooked not infrequently at the Bar of the Illinois Supreme Court, 
 and very lately in Williams v. Gottschalk, 231 111., 175 (see 2 111. Law Rev., 525), 
 as well as in the instant case under discussion. The Illinois Legislature seems to 
 have been quite consistent in interpreting the several Illinois Constitutions in 
 harmony with the principles of Capital Traction Co. v. Hof, and especially so in 
 the Drainage Acts. 
 
386 CONSTITUTIONAL LAW 
 
 of 1870 got rid of that view thus: "But the trial 
 of civil cases before Justices of the Peace by a jury of 
 less than twelve men may be authorized by law." That 
 does not mean, I think, that a trial in a Justice's Court 
 could satisfy the right of a trial by jury secured by the 
 sentence just before: "The right of trial by jury as here- 
 tofore enjoyed shall remain inviolate." See Article II, 
 Section 5. 8 The general, nearly uniform, usage of the 
 Illinois Legislature, both before and since 1870, has been 
 based upon the idea that a trial before a Justice and a 
 jury could not satisfy "the right of trial by jury as here- 
 tofore enjoyed." The Legislature has rarely, if ever, 
 since 1870, or before, I think, and after 1848, deliberately 
 failed to provide, or affirmatively to shut off, the way from 
 a Justice's court to a superior Court of Record for a 
 trial de novo by a common jury. 9 Capital Traction Co. 
 v. Hof decides that the right of trial by jury secured by 
 the Seventh Amendment does not require a jury trial in 
 the Court of first instance in all cases, and that, in cases 
 where the value of the matter in dispute is not too great, 
 a trial in a Justice's Court, with or without a jury, as the 
 Court of first instance, is not a denial of the right of trial 
 by jury, if the way to a superior Court of Record for a 
 trial de novo by a common jury is left open. To what 
 extent, as respects the pecuniary value of the matter 
 in dispute, the jurisdiction of a justice may be carried 
 under this principle, is, of course, not easy to say. Here, 
 
 " In the Constitutional Convention, Mr. Skinner moved to strike out the words 
 "before justices of the peace." His speech, evidently extemporaneous, indicates 
 that he may have thought a trial before a justice of the peace and a jury satisfied 
 "the right of trial by jury as heretofore enjoyed." The point of the opposition 
 to the motion, interesting in this connection, was that it would enable the Legis- 
 lature to deprive property owners of a judicial hearing and the right of trial by 
 jury of the question of just compensation. No one favored the motion, and it 
 excited very little attention. See 2 Debates in C. C. of 1870, pp. 1567-1568. 
 
 3 As shown, prior to 1848, jury trial was not a matter of right in civil cases in- 
 volving $20 or less. 
 
COLLECTED COMMENT 387 
 
 as elsewhere, no doubt the Legislature must be allowed 
 considerable latitude of discretion suited to the nature 
 of the subject. For present purposes, it is enough to 
 say that the jurisdiction of Justices of the Peace is now 
 limited, generally, if not universally, in Illinois to cases 
 where the value of the matter in dispute does not exceed 
 $200. And an appeal and trial de novo is allowed in all 
 cases except on judgments confessed. 
 
 It seems quite certain, therefore, that the dictum in 
 the majority opinion in the case in hand that Sections 19 
 and 20 of the Farm Drainage Act of 1885, construed as 
 denying a right to a trial de novo by a common jury in 
 a superior Court of Record, are constitutional, even in 
 a $1,000 case, is erroneous. The dictum is rested en- 
 tirely on McManus v. McDonough, 107 111., 95. But 
 that case, rightly understood and harmonized with later 
 decisions, is really directly against the dictum. That 
 case arose on a common-law certiorari to review the 
 proceedings of highway commissioners to lay out and open 
 a road over another's land, including the proceedings 
 before a Justice and jury to determine the just compen- 
 sation for the land taken or damaged, authorized by 
 certain sections of the Road and Bridge Act of 1874. 
 The Court decided that the sections authorizing the 
 proceedings before the Justice to determine the just 
 compensation were constitutional. No question was 
 raised or decided touching the right of the landowner to 
 go to a superior Court of Record for a trial de novo. 
 It has since been decided under similar, if not identically 
 the same, sections of the Road and Bridge Act of 1874, as 
 amended in 1883 that the landowner may appeal from the 
 judgment of the Justice to a superior Court of Record. 
 Ravalte v. The People, 152 111., 672; C, S. F. & C. Co. v. 
 Lorance, 180 111., 180; The People v. Comrs. of High^ 
 ways, 188 111., 150; Behrens v. Comrs. of Highways, 
 
388 CONSTITUTIONAL LAW 
 
 169 111., 558, 562; Cutler v. Sours, 80 111. App., 618, 624; 
 Coffman v. Comrs. of Highways, 85 111. App., 90. These 
 later decisions cut away the ground completely from 
 under the dissent of Mr. Justice Dickey in McManus v. 
 McDonough. See 78 111., on p. 104, bottom. The value 
 of the land in dispute in that case does not appear. It is 
 fair to assume, however, that it did not exceed the then 
 existing pecuniary limit to the general jurisdiction of 
 Justices of the Peace. There can be no doubt at all, 
 therefore, of the constitutional correctness of the decision 
 in McManus v. McDonough. See the case in the Appel- 
 late Court, 4 111. App., 180; 10 111. App., 69. 
 
 The Drainage Acts, that is to say, the Levee Act of 
 1879, and the Farm Drainage Act of 1885, as they stood 
 originally, appear to have been well-drawn Acts upon 
 a seemingly intricate and complicated subject to deal 
 with legislatively under the Constitution of 1870 and 
 under the decisions of the Supreme Court that caused 
 the introduction into that Constitution of the drainage 
 clause and its amendments in 1877-78. See 1 S. & C, 
 Ann. Stat., Ed. 2, pp. 138-139. Those Acts are en- 
 titled to high rank as an authoritative, contemporaneous 
 exposition of the scope of the right of trial by jury extended 
 as a bulwark to protect private property against the power 
 of eminent domain, and prove the essential simplicity 
 and justice of the law of the Constitution regulating the 
 exercise of that power by the Legislature. Those Acts 
 strongly support the view that the principles of Capital 
 Traction Co. v. Hof have been regarded as law in this 
 State, and were extended to the right of trial by jury 
 of the question of just compensation in eminent domain 
 cases. See the note herein on jury trial on the assessment 
 of benefits under the Drainage Acts. 10 
 
 10 [Post, p. 389.] 
 
COLLECTED COMMENT 389 
 
 Even if it could do so, which may be doubted (see C, 
 B. & Q. R. Co. v. Chicago, 166 U. S., 226, and Connolly 
 v. Union Sewer Pipe Co., 184 U. S., 540), the Constitu- 
 tion of 1870 does not attempt to leave the Legislature 
 free to discriminate between a combination of farmers and 
 a combination of other people in respect of the mode and 
 manner of determining the just compensation for land 
 taken or damaged for public use. 
 
 6. — Eminent Domain — Drainage — Jury Trial on 
 the Assessment of Benefits." — To begin with, refer- 
 ence must be made to a distinction lately drawn 
 between the Levee Act and the Farm Drainage Act in 
 respect of the validity of an assessment of benefits made 
 by the Drainage Commissioners. In Drainage District 
 v. Smith, 233 111., 417, it is held that a Drainage Com- 
 missioner who owns land affected cannot act in making 
 an assessment of benefits under the Levee Act. But 
 in The People v. Sullivan, 238 111., 386, and in the cases 
 cited on p. 389, it is held that the objection of a personal 
 interest does not disqualify a Drainage Commissioner 
 to act in making an assessment of benefits under the 
 Farm Drainage Act. In Drainage District v. Hutchins, 
 234 111., 26, the Court enters upon an explanatory defense 
 of this distinction that is not satisfactory to Farmer, J., 
 who dissented in Drainage District v. Smith, supra. 
 Two previous cases where interested Commissioners 
 acted under the Farm Drainage Act are said to have 
 involved a "classification of lands," and not an "assess- 
 ment of benefits," under the Farm Drainage Act, and that 
 Act, it is said, allows an appeal and trial de novo on a 
 "classification of lands," while the Levee Act does not. 
 Whether the Levee Act does or does not allow an appeal 
 and trial de novo on a "classification of lands," it appears 
 
 a [4 111. Law Rev., 211, October, 1909.] 
 
390 CONSTITUTIONAL LAW 
 
 to be true that the Farm Drainage Act does, now at least. 
 See the 1901 amendment in Jones & A. Supp., S. & C. 
 Ann. Stat., Ed. 2, pp. 462-3; but see The People v. 
 Grace, 237 111., 265. But the allowance of an appeal 
 and trial de novo from an interested, unfair, and partial 
 judge to a disinterested, fair, and impartial judge does 
 not cure the wrong of allowing an interested, unfair, and 
 partial judge to sit in the case in the first instance. And 
 the case cited, Steuart v. Mayor, 7 Md., 500, does not 
 go upon any such proposition, but only declares and 
 applies the constitutional principles as to the right to 
 jury trial declared and applied in Capital Traction Co. 
 v. Hof, 174 U. S., 1, Steuart v. Mayor being cited in that 
 case in 174 U. S., on pp. 29-30. The trouble with this 
 distinction must be sought at its origin in Drainage Dis- 
 trict v. Smith, 233 111., 417, supra, which holds certain 
 sections of the Levee Act unconstitutional upon a too 
 literal construction and application of them. The Levee 
 Act does not authorize a Drainage Commissioner, whose 
 interest is substantial, as it was in that case, to act, over 
 objections, in making the assessment of benefits. The 
 error in that case was not in the Levee Act, but in its 
 administration by the County Judge. The Levee Act, 
 parties objecting, required the County Judge to impanel 
 a jury, as prescribed by the Act, to make the assessment 
 of benefits in that case. Rightly construed, the Act 
 forbade the County Judge to allow, over objections, a 
 commission, as heavily interested as the one in that case, 
 to act in making the assessment of benefits. An inten- 
 tion to authorize a violation of the maxim, Nemo debet 
 esse judex in sua propria causa, ought not to be imputed 
 to the Legislature by the Judiciary in any case, if it is 
 possible to avoid doing so. 11 
 
 11 Drainage District v. Smith arose under the Levee Act before its amendment 
 by the Emergency Act of May 20, 1908 (Laws, 1907, 274). That Emergency Act 
 
COLLECTED COMMENT 391 
 
 Drainage District v. Smith, 233 111., 417, supra, suggests 
 the question whether the constitutional right of trial 
 by jury on the question of just compensation extends to 
 an assessment of benefits made in the first instance by 
 the jury, or by the Drainage Commissioners, that is 
 prima facie good as against the landowners, under the 
 Levee Act, and under Briggs v. Drainage District, 140 
 111., 53, supra. That question seems to have been in- 
 volved and avoided in Drainage District v. Smith, 233 
 111., 417, supra, it appearing on p. 419, that the County 
 Court denied a demand for a jury trial. Assuming that 
 no question of just compensation for land damaged is 
 implicated in the assessment of benefits — which is, 
 perhaps, an exceptional, rare case — it is not easy, even 
 if you want to do it, to declare the law to be that the 
 constitutional right of trial by jury does not extend to 
 the assessment of benefits under the Levee Act The cases 
 relied on by counsel in Drainage District v. Smith, 233 
 111., 417, on p. 421, plainly do not declare the law to be 
 that way; as is stated by Scott, J., in 233 111., on pp. 
 423-4, if the point for which counsel's cases are there 
 cited is noted carefully. It is impossible to draw any 
 constitutional distinction, as respects the right of trial 
 by jury, between an assessment of benefits under the 
 Levee Act and under the Farm Drainage Act. Mascall 
 v. Drainage District, 122 111., 620 (and see Drainage 
 Comrs. v. I. C. R. Co., 158 111., 353, 357), decides that 
 Section 27 of the Farm Drainage Act of 1885 allows a 
 trial by jury on the assessment of benefits under that 
 Act. Sections 23 and 24 of the Levee Act allowed a trial 
 
 seems clearly bad, in so far as it makes the Drainage Commissioners the exclusive 
 and only tribunal to make an assessment of benefits, however heavily interested 
 they may be in the assessment. And it is not easy to construe Section 22 other- 
 wise than as cutting off completely the right of appeal and trial de novo on the 
 assessment of benefits to contesting lands as well as to non-contesting lands. 
 
392 CONSTITUTIONAL LAW 
 
 by jury on the assessment of benefits under the Levee 
 Act, as Briggs v. Drainage District, 140 111., 53, decides, 
 I think. And so the Legislature drew no distinction in 
 respect of the right to jury trial on the assessment of 
 benefits under the two Acts until 1895, when the distinc- 
 tion was drawn by the Legislature, if it was drawn, acci- 
 dentally and inadvertently by striking Sections 23 and 
 24, providing for appeals and trials de novo, out of the 
 Levee Act. 
 
 Larned v. Chicago, 34 111., 203, incorporated into the 
 constitutional law of this State the peculiar principle 12 
 that the making of "local improvements" by special 
 assessment involves an exercise of the eminent domain 
 power, even when no land is "taken," or, since 1870, 
 "damaged." The Constitution of 1870 adopted that 
 principle in Article 14, Section 9, by its distinction between 
 "special assessment" and "special taxation." The Local 
 Improvement Act of 1871-2 allowed a jury trial on the 
 assessment of benefits. See R. S., 1874, Hurd, p. 236, 
 Sec. 31. Every subsequent amendment of that Act 
 retains that jury trial provision. That is entitled to great 
 weight as a contemporaneous, practical legislative con- 
 struction of the scope, operation, and effect of the new 
 jury provisions of the Constitution of 1870. Now take 
 into view the legal history of the draining of wet lands by 
 "special assessment," as it is given in Wilson v. Chicago 
 Sanitary District, 133 111., 443. It then becomes ex- 
 tremely difficult to affirm as a matter of law, that the 
 draining of wet lands by "special assessment" does not, 
 in this State, involve an exercise of the eminent domain 
 power, even when only .the question of benefits, unim- 
 
 12 The arguments of Mr. Arrington and Mr., now Chief Justice, Fuller, are 
 very interesting. Mr. Fuller was right, I think, but the brilliant scholastical 
 epigrams of Mr. Arrington carried the Court up into the air, and it was unable 
 to get its feet back on to the ground. 
 
COLLECTED COMMENT 393 
 
 plicated with any question of just compensation for 
 land "taken or damaged," is in issue. It has been held 
 repeatedly that an assessment against land for drainage 
 purposes cannot exceed the benefits to the land, either 
 under the Levee Act of 1879 or under the Farm Drainage 
 Act of 1885, and that is the kernel of the proposition of 
 Larned v. Chicago, supra. In New Jersey, for example, 
 assessments for draining wet lands proceed from the 
 police power, and may exceed the benefits, the maximum 
 limit to the amount of the assessments being the cost of 
 the work (compare Sec. 10 of the Levee Act of Illinois), 
 though in the same State, New Jersey, assessments for 
 local improvements proceed from the taxing power, and, 
 as in Illinois, cannot exceed, as a theoretical constitu- 
 tional possibility, the benefits. See Wurtz v. Hoagland, 
 114 U. S., 606, and New Jersey cases cited. Whether, 
 in respect of the constitutional right to jury trial, any, 
 and, if any, what, effect should be allowed to C, B. & Q. 
 R. Co. v. Drainage Comrs., 200 U. S., 561, S. C, 212 111., 
 103 (see 1 111. Law Rev., 116), is hard to say. Certainly 
 it never was intended in that case to shift the subject 
 of special assessment to pay the bills for draining wet 
 lands in Illinois, even when no land is taken or damaged, 
 completely over into the sphere of the police power, to 
 the total and complete exclusion of the power of eminent 
 domain and the restraints put upon the latter power by 
 the Constitution of 1870, and especially those restraints, 
 as the right to jury trial here in question, that are modal 
 and formal, but secure a very substantial result to the 
 property owner, namely: a judicial inquiry and hearing 
 on the question of just compensation. "If we felt any 
 doubt on this question ( of jury trial on the benefits)," 
 says Scholfield, J., in Mascall v. Drainage District, 122 
 111., 620, 625, "that doubt would be solved in favor of 
 submitting the question of the amount of benefits to a 
 
394 CONSTITUTIONAL LAW 
 
 jury, because that construction best comports with the 
 genius and spirit of our institutions." Current opinion 
 against jury trial has not yet found expression in our 
 organic law. So far as Judges are permitted to know the 
 will of the people, their expressed will is the same to-day 
 as it was when Mr. Justice Story wrote in 1830 in Parsons 
 v. Bedford, 3 Peters, 433, 447: "The trial by jury is 
 justly dear to the American people. It has always been 
 an object of deep interest and solicitude, and every 
 encroachment upon it has been watched with great 
 jealousy." If the work of the common jury since 1870 
 is compared with the work of legislative commissions 
 prior to 1870 in the matter of awarding just compensa- 
 tion for private property taken for public use, I think 
 any fair man will have to take off his hat to the common 
 jury, not forgetting, of course, the thirteenth man — -the 
 Judge — shorn, though he is, of his rightful power, before 
 the verdict. 13 
 
 13 The muzzling of judges before the verdict, and the unmuzzling of them after 
 the verdict, are two things, unconstitutional in themselves if the whole matter 
 were res nova, related the one to the other as cause and effect. The proposal for 
 a repeal of the written instruction statute, and all the practices that have grown 
 up out of it, ought, perhaps, in fairness, to be accompanied by a proposal to cut 
 Borg v. C, R. I. & P. R. Co., 162 111., 348, out of the law root and branch. The 
 provision in the Seventh Amendment to the Constitution of the United States — 
 "And no fact found by a jury shall be otherwise re-examined in any Court (of 
 Illinois), than according to the rules of the common law" — would do that. The 
 complaint that, as the law now stands, and as it would stand on a repeal of the 
 written instruction statute, leaving Borg's case untouched, the plaintiff and de- 
 fendant are not on an equality with reference to the conclusiveness of the verdict 
 of a jury, has merit in it. The well-intentioned attempt of the Legislature in 1907 
 to put them on an equality was, as is well known, adjudged unconstitutional. 
 See Jones v. C, R. I. & P. R. Co., 231 111., 302; Hecker v. I. C. R. Co., 231 111., 
 574; Hackett v. City R. Co., 235 111., 116; Reinhardt v. Chicago Junction R. Co., 
 235 111., 576; Hayward v. Sencenbaugh, 235 111., 580. Under the reasoning in 
 Borg's case, a repeal of the written instruction statute could be declared uncon- 
 stitutional, but I suppose it would not be. See George v. The People, 167 111., 
 447, the recent case, Morton v. Pusey, 237 111., 26, upholding the oral instruction 
 section of the Chicago Municipal Court Act; and Juretich v. The People, 223 111., 
 484, 491, wherein it is said by Wilkin, J., that the statute making jurors judges 
 
COLLECTED COMMENT 395 
 
 of the law in criminal cases ought to have been repealed long ago. On that 
 statute, see the learned opinions in Sparf and Hansen v. United States, 156 U. S., 
 51, 715. As a matter of actual fact, the legislative attempt to muzzle judges 
 before the verdict by the written instruction statute has proven abortive, because 
 of the excess of power assumed by judges after the verdict. The statute does 
 no one any good, and, I think, hurts the plaintiff. If a restoration of trial by jury 
 according to the course of the common law ever is brought about in Illinois, it 
 is to be hoped that Illinois courts will guard and preserve it inviolate in the future 
 better than they have done in the past. 
 
TOPIC IV 
 
 INTERSTATE COMMERCE 
 
 I. The State Tax on Illinois Central Gross Receipts, 
 and the Commerce Power of Congress. 
 
 II. Collected Comment. 
 
1 
 
 THE STATE TAX ON ILLINOIS CENTRAL 
 
 GROSS RECEIPTS AND THE COMMERCE 
 
 POWER OF CONGRESS 3 
 
 The 18th Section of the Illinois charter of the Illinois 
 Central Railroad Company provides that, "in considera- 
 tion of the grants, privileges, and franchises herein con- 
 ferred upon said company for the purposes aforesaid, the 
 said company shall . . . pay into the treasury of the 
 State of Illinois five per centum on the gross or total pro- 
 ceeds, receipts, or income derived from said road and 
 branches." . . . And the 22d Section, after pro- 
 viding for a tax on the property of the company, says: 
 "In case the five percent, provided to be paid into the 
 State treasury, and the State taxes to be paid by the cor- 
 poration, do not amount to seven per cent, of the total 
 proceeds, receipts, or income, then the said company shall 
 pay into the State treasury the difference, so as to make 
 the whole amount paid equal, at least, to seven per cent, 
 of the gross receipts of said corporation." Hurd's R. S., 
 1903, p. 1576. 
 
 Is this tax or compensation provision repugnant to the 
 grant of the commerce power to Congress? 
 
 Viewing it merely as a State law laying a tax upon gross 
 receipts, and including in the gross receipts those derived 
 from transporting goods and passengers in the way of 
 interstate or foreign commerce, the provision is probably 
 bad. 1 The fact that the tax purports to be exacted as 
 
 a [1 111. Law Rev., 440, February, 1907.] 
 
 1 See Philadelphia Steamship Co. v. Pennsylvania, 122 U. S., 326; compare 
 State Tax on Railway Gross Receipts, 15 Wallace, 284; and follow these cases 
 down in Rose's Notes. 
 
400 CONSTITUTIONAL LAW 
 
 compensation for privileges and franchises granted by the 
 State is immaterial, because the privilege or franchise, 
 or whatever else it may be called, to carry on interstate 
 or foreign commerce did not, and could not, come from 
 the State. That privilege or franchise is, and always has 
 been, beyond the reach of the taxing power of the State. 2 
 But the tax, or compensation, is exacted not by a State 
 law merely, but by a State law operating as a contract 
 under the doctrine of the Dartmouth College Case. Does 
 that make any difference? Does that embalm the State 
 law exacting the tax or compensation, and protect it 
 against the superior, colliding force of the grant of the 
 commerce power to Congress? Perhaps it does, if Rail- 
 road Company v. Maryland 3 is good law to-day. There 
 a provision in the Maryland charter of a railroad com- 
 pany that the company should pay into the State treasury 
 one-fifth of its passenger receipts was sustained. But 
 no lawyer can say, with confidence, that that decision 
 will be held applicable to the case arising out of this 
 Illinois Central charter, and followed. 4 The truth is, I 
 think, that the dissenting opinion of Mr. Justice Miller 
 in State Tax on Railway Gross Receipts, supra, is a 
 sound exposition of the simplicity of the Federal Consti- 
 tution, and is going to prevail in its entirety, if it has not 
 already prevailed. Said the learned Justice: "I lay down 
 the broad proposition that by no device or evasion, by 
 no form of statutory words, can a State compel citizens 
 of other States to pay to it a tax, contribution, or toll, 
 for the privilege of having their goods transported through 
 that State by the ordinary channels of commerce. And 
 
 2 See California v. Central Pacific R. Co., 127 U. S., 1. 
 
 8 21 Wallace, 456. 
 
 4 See the case in Rose's Notes and the way it was dealt with in the majority 
 and minority opinions in the Northern Securities Case, 193 U. S., 197. 
 
COMMERCE POWER OF CONGRESS 401 
 
 that this was the purpose of the framers of our Consti- 
 tution I have no doubt; and I have just as little doubt that 
 the full recognition of this principle is essential to the 
 harmonious future of this country now, as it was then." 5 
 The most that can be said is, that it is not certain that the 
 Supreme Court of the United States is quite ready to apply 
 Mr. Justice Miller's proposition to a case like that arising 
 on the Illinois Central's Illinois charter. But when 
 Railroad Company v. Maryland was decided, there was 
 no Act of Congress regulating interstate railroad rates 
 with the operation of which the Maryland charter could 
 interfere. But there is now an Act of Congress regulating 
 interstate railroad rates with the operation of which this 
 Illinois charter can interfere. That, possibly, may be 
 thought a good reason for dropping Railroad Company v. 
 Maryland by the wayside and forgetting all about it. 
 
 Does the tax or compensation provision of the Illinois 
 Central's Illinois charter embrace gross receipts from 
 interstate or foreign commerce as well as gross receipts 
 from State commerce? 
 
 The words alone of the tax or compensation provision 
 are comprehensive enough to include gross receipts from 
 State, interstate, and foreign commerce, as those different 
 kinds of commerce under the Constitution of the United 
 States are now judicially defined. And the men of 1851 
 who made this bargain for the State, unless we hold them 
 to have been wiser than all other men of their day and 
 generation, doubtless intended to include gross receipts 
 from interstate or foreign commerce as well as gross 
 receipts from State commerce. It was not until 1886, 
 when Wabash Railway Company v. Illinois 6 was decided, 
 reversing the Supreme Court of Illinois, 7 that men 
 
 5 See Mr. Justice Miller's Oration, 135 U. S., Appendix. 
 
 6 118 U. S., 557. 
 
 7 i04 111., 476; 105 111., 236. 
 
402 CONSTITUTIONAL LAW 
 
 generally began to realize fully that transporting goods 
 and passengers by rail into Illinois, and out of Illinois, is 
 interstate or foreign commerce, and not State com- 
 merce, and hence is subject to the exclusive regulation 
 and control of Congress. 
 
 But if, in point of fact, the State and the Illinois Central 
 have, for a long period of years, extending back nearly to 
 1851, acquiesced in a practical construction of this tax or 
 compensation provision which restricts its application to 
 gross receipts from State commerce, that is to say, from 
 transporting goods and passengers taken up and let down 
 by the Illinois Central within the territorial limits of Illi- 
 nois, such contemporaneous, practical construction doubt- 
 less would be controlling, and prevent any encounter 
 between the provision and the grant of the commerce 
 power to Congress. 
 
 It seems, however, that there has not been any long 
 mutual acquiescence in any such contemporaneous, prac- 
 tical construction of the provision, but that, on the con- 
 trary, the provision always has been practically construed 
 and applied as embracing within its scope gross receipts 
 at least from that part of the Illinois Central's interstate 
 commerce which consists of taking up goods and passen- 
 gers in Illinois and letting them down in another State, 
 and of taking up goods and passengers in another State 
 and letting them down in Illinois. And the great present 
 difficulty between the State and the Illinois Central ap- 
 pears to be about the true rule for apportioning the 
 gross receipts from such interstate commerce to the inci- 
 dence of the Illinois seven per cent, tax or compensation. 8 
 
 Is it constitutionally possible to devise a State rule for 
 the apportionment of the gross receipts of a railroad de- 
 rived from transporting goods and passengers in the way 
 
 8 See the Governor's Message of January 10, 1907, to the General Assembly, 
 as printed in The Chicago Daily Tribune of January 11, 1907. 
 
COMMERCE POWER OF CONGRESS 403 
 
 of interstate commerce, where the interstate haul begins 
 or ends in the State, so as to subject a part of such gross 
 receipts to the taxing or revenue-making power of the 
 State? It would seem clearly not, if the dissenting opin- 
 ion of Mr. Justice Miller in State Tax on Railroad Gross 
 Receipts, supra, expresses the view of the grant of the 
 commerce power to Congress as applied to railroad gross 
 receipts now held by a majority of the Supreme Court of 
 the United States, because the price paid for an inter- 
 state haul beginning or ending in Illinois must be a unit, 
 indivisible by the State for the purpose of state taxation 
 or revenue, just as the interstate haul itself is a unit, in- 
 divisible by the State for the purpose of State fixing of 
 rates, "it is impossible to see any distinction in its 
 effect upon commerce . . . between a statute which 
 regulates the charges for transportation, and a statute 
 which levies a tax for the benefit of the State upon the 
 same transportation." 9 And a judicial interpretation 
 of the obligation of contracts clause of the Federal Con- 
 stitution which would make it operate to clothe Illinois 
 with power to do to interstate or foreign commerce by 
 contract with the Illinois Central the very identical 
 thing the Federal Constitution forbids Illinois to do by 
 statute, certainly would put something into the Consti- 
 tution of the United States that the framers of it did not 
 express with their usual direct simplicity of language. 10 
 "The regulation of charges is just as unconstitutional in 
 a (State) charter as in a general law. 11 In this connec- 
 tion, though, as just indicated, it is difficult to see how just 
 a State statute operating as a contract that fetters inter- 
 state or foreign commerce can have any obligation, it 
 may be well to recall, with reference to the force to be 
 
 9 Mr. Justice Miller in Wabash Railway Co. v. Illinois, 118 U. S., 557, 570. 
 
 10 See Addyston Pipe & Steel Co. v. United States, 175 U. S., 241, 226-235. 
 
 11 Waite, C. J., dissenting, in Wabash R. Co. v. Illinois, 118 U. S., 557, 588. 
 
404 CONSTITUTIONAL LAW 
 
 attached to the recent rate-regulating Act of Congress, 
 as applied to this tax or compensation provision of the 
 Illinois Central's Illinois charter, that the Federal Con- 
 stitution does not directly forbid Congress to impair the 
 obligation of contracts. And it must not be forgotten, 
 that a State tax upon the gross receipts of an interstate 
 railroad company differs widely from a State tax upon the 
 property of the whole road, regarded as a single, organized 
 unit, where, subject to proper qualification, the mile- 
 age rule of apportionment may be applied by a State to 
 the value of the whole railroad property for the purpose 
 of fixing the taxable value of that part of the property 
 of the railroad company that lies within the borders of 
 the State. 12 
 
 Though there can be no legal difficulty at all in the way 
 of separating any railroad's gross receipts chargeable 
 to its State commerce from those chargeable to its inter- 
 state or foreign commerce, 13 it does not follow certainly 
 from that premise, that this Illinois Central tax or com- 
 pensation provision, if held bad by the Federal Supreme 
 Court as applied to Illinois Central gross receipts from 
 interstate or foreign commerce, must be held good as 
 applied to Illinois Central gross receipts derived from State 
 commerce. It is not easy to give a good reason why the 
 general rule, "The relevant portion (of a statute) being 
 a single section, accomplishing all its results by the same 
 general words, must be valid as to all that it embraces 
 or altogether void," 14 does not apply to the section in 
 hand of the Illinois Central's charter, though the section 
 does operate as a State contract. If the State Supreme 
 Court should hold that the section, though held void by 
 the Federal Supreme Court in so far as it embraces gross 
 
 12 See Fargo ». Hart, 193 U. S., 490, and cases cited. 
 
 13 Ratterman v. Western U. Co., 127 U. S., 411. 
 " U. S. v. Ju Toy, 197 U. S., 253, 263. 
 
COMMERCE POWER OF CONGRESS 405 
 
 receipts from interstate or foreign commerce, can stand 
 as to gross receipts from State commerce, 18 such State 
 decision might control, because the Illinois Central 
 probably could not, or would not if it could, complain to 
 a Federal Court of such State judicial dealing with its 
 contract, and such State judicial ruling would reduce the 
 tax or compensation feature of the charter to a purely 
 local affair with which the United States could have no 
 apparent direct concern. 
 
 It is not clear that it would be a public calamity in 
 Illinois if the only result of the suit recently begun by the 
 State against the Illinois Central in the State Supreme 
 Court, for back taxes upon its past gross receipts alleged 
 to be in excess of the gross receipts reported by it to the 
 State, should be decisions of the State and Federal Su- 
 preme Courts wiping the tax or compensation provision 
 out of the Illinois Central's charter. Able lawyers always 
 have maintained that the line of reasoning, by which the 
 State Supreme Court held, that that provision of the 
 charter operated as a contract exempting the property of 
 the company from the incidence of local taxation by 
 municipalities in which it lay, was wrong. 16 The whole 
 thing was the subject of a long debate in the Constitutional 
 Convention of 1870. An attempt was made in that 
 Convention to get the seven per cent, fund, or a part of it, 
 distributed among the municipalities through and into 
 which the Illinois Central's road runs, but failed. The 
 majority in that Convention — coming from municipal- 
 ities away from the line of the road — inserted into the 
 Constitution the clause that "all moneys derived from 
 said company, after the payment of the State debt, shall 
 
 * Chicago v. Wolf, 221 111., 130, 141. 
 
 19 See Illinois C. R. Co. v. McLean Co., 17 111., 291; Neustadt ». Illinois Central 
 R. Co., 31 111., 484; and see Chicago v. Sheldon, 9 Wallace, 50, the line of reason- 
 ing and cases cited. 
 
406 CONSTITUTIONAL LAW 
 
 be appropriated and set apart for the payment of the 
 ordinary expenses of the State Government, and for no 
 other purposes whatever." 17 The fairness of that has 
 never been manifest to all the taxpayers in municipalities 
 along the line of the Illinois Central. Such objecting 
 municipal taxpayers probably could see some ordinary 
 justice in judicial decisions expunging the tax or com- 
 pensation provision from the Illinois Central's charter, 
 and Separate Section No. 1 from the State Constitution. 
 And it may well be, that such a result would help some to 
 realize the constitutionally-enjoined equality in State and 
 municipal taxation. It is quite likely that, at some time 
 or other, and in one way or another, it will come round 
 so that the Illinois Central will have to be taxed by the 
 State just as other people are taxed, and particularly just 
 as other railroads are taxed. 
 
 17 Constitution, Separate Sections, No. 1. 
 
COLLECTED COMMENT 407 
 
 II 
 
 COLLECTED COMMENT 
 
 1. — railway co. v. texas: 2. — constitutionality of 
 state taxation of railway the federal employers' lia- 
 gross receipts. bilitv act. 
 
 1. — -Railway Co. v. Texas: State Taxation of Rail- 
 way Gross Receipts. 21 — In Galveston, Harrisburg & San 
 Antonio Ry. Co. v. Texas, 210 U. S., 217, 28 Sup. Ct. Rep., 
 638, Holmes, J., delivering the opinion, and Harlan, J., 
 a dissenting opinion concurred in by Fuller, C. J., White 
 and McKenna, JJ., an Act of the Legislature of Texas 
 imposing "an annual tax for the year 1905, and for each 
 calendar year thereafter, equal to one per centum of its 
 gross receipts, if such line of railroad lies wholly within 
 the State" was held void as an unconstitutional burden 
 upon interstate commerce, as applied to a railroad whose 
 lines lay wholly inside of Texas, but connected with other 
 lines, it appearing that "a part, in some instances much 
 the larger part, of their gross receipts is derived from 
 the carriage of passengers and freight coming from, or 
 destined to, points without the State." 
 
 The question at issue in the case was whether Phila- 
 delphia & S. Mail S. S. Co. v. Pennsylvania, 1 was in any 
 way shaken, abridged, or overruled by Maine v. Grand 
 Trunk R. Co. 2 The majority make it plain that the 
 former case stands in letter and in spirit. "We regard 
 this decision as unshaken and as stating established law,'' 
 
 a [3 III. Law Rev., 180, October, 1908.] 
 1 122 U. S., 326. 
 2 142 U. S., 217. 
 
408 CONSTITUTIONAL LAW 
 
 is what they say. The taxing power of a State cannot 
 reach the gross receipts of a railroad company derived 
 from the carriage of goods and passengers in the way of 
 interstate or foreign ' commerce. But, under existing 
 silence by Congress, at least the taxing power of a State 
 may reach the property of a railroad so far as that prop- 
 erty lies inside the borders of that State. And to ascer- 
 tain the full taxable value of that property that State may 
 take into consideration the gross receipts, including those 
 from interstate and foreign commerce. "Neither the 
 State Courts nor the Legislatures, by giving the tax a 
 particular name, or by the use of some form of words, can 
 take away our duty to consider its nature and effect. If it 
 bears upon commerce among the States so directly as to 
 amount to a regulation in a relatively immediate way, it 
 will not be saved by name of form." Here, and in Fargo 
 v. Hart, 3 Mr. Justice Holmes states the essential sub- 
 stance and effect of a somewhat bewildering series of 
 State tax cases with great precision and brevity. 
 
 The case is of present local importance for its bearing 
 upon the controversy between the State and the Illinois 
 Central over the State tax on the Illinois Central's gross 
 receipts imposed by the Illinois charter of that railroad. 
 The decision certainly does not aid the State's case any, 
 and perhaps does not destroy it, for it may be possible, 
 and Professor Hall thinks it is (2 111. Law Rev., 21), to 
 persuade the Court to hold that the tax is on the property 
 of the Illinois Central and not on its gross receipts; and 
 wholly aside from that, B. & O. R. Co. v. Maryland 
 directly sustains the State's case. There, Miller, J., 
 dissenting, a provision in the Maryland charter of the 
 Baltimore and Ohio Railway Company requiring it to pay 
 the State one-fifth of the receipts for carrying passengers 
 
 » 193 U. S., 490. 
 
COLLECTED COMMENT 409 
 
 from Baltimore to Washington was sustained. But does 
 the Court regard that decision as it regards Philadelphia 
 & S. Mail S. S. Co. v. Pennsylvania, supra, viz.: "as 
 unshaken and as stating established law"? Compare 
 the dissent of Mr. Justice Bradley in Maine v. Grand 
 Trunk R. Co., with his opinion in the B. & O. R. Co. v. 
 Maryland, supra. 
 
 2. — Constitutionality of The Federal Employers' 
 Liability Act. 3 — In Brooks v. Southern Pacific Com- 
 pany, 148 Fed. Rep., 986, District Judge Evans, and 
 in Howard v. Illinois Central R. Co., 148 Fed. Rep., 
 997, District Judge McCall decided that this Act of Con- 
 gress is unconstitutional. In its first section, the Act 
 provides: 
 
 "Every common carrier engaged in" foreign, interstate, and terri- 
 torial "trade or commerce shall be liable to any of its employees 
 . . . for all damages which may result from the negligence of 
 any of its officers, agents, or employees, or by reason of any defect 
 or insufficiency due to its negligence, in its cars, engines, appliances, 
 machinery, track, roadbed, ways, or works." 
 
 This lays down a new rule giving the employee entitled 
 to the benefit of the Act the same right of personal safety 
 against his employer as if he were not an employee. The 
 second section substitutes for the rule of contributory 
 negligence a rule of comparative negligence, and the third 
 section forbids contracts of employment regulating the 
 employers' liability by rules repugnant to the rules pre- 
 scribed by the Act. The constitutionality of the Act is 
 made to depend upon the clause of the Constitution 
 which says: "The Congress shall have power ... to 
 regulate commerce with foreign Nations, and among the 
 several States . . ." These learned Judges say that 
 the Act does not "regulate commerce," and Judge Evans 
 
 a [2 111. Law Rev., 37, May, 1907.] 
 
410 CONSTITUTIONAL LAW 
 
 affirms: "We should be trifling with important things 
 if we gave force to any other conclusion." (148 Fed. Rep., 
 at 992.) Both Judges say, in the words of Judge Evans: 
 "Creating new liabilities growing out of the relations of 
 master and servant on the one hand, and regulating com- 
 merce on the other, are two things so entirely different 
 that confusion of the judicial mind upon them is hardly 
 to be expected under normal conditions." (148 Fed. Rep., 
 at 992.) As another, and distinct, reason for holding 
 the Act bad, the learned Judges say that, assuming the 
 Act does "regulate commerce", it regulates too much 
 commerce, in that it regulates State commerce, and 
 this result of regulating too much commerce is accom- 
 plished by the same words in one section of the Act, so 
 that, under the rule in Illinois Central R. Co. v. McKen- 
 dree, 203 U. S., 514, and cases there cited, the Court is 
 forbidden, in order to save the Act in part, to hold it 
 good as to any commerce. This reason for holding the 
 Act void does not touch the constitutional power of 
 Congress to pass such an Act, if the Act leaves out State 
 commerce, but touches only the ability, or bona fide incli- 
 nation, of the Congress that passed this Act to put words 
 into the Act, apt and appropriate to exclude State com- 
 merce. 
 
 As respects the first reason assigned, that, assuming 
 State commerce is not embraced within its words, the Act 
 does not "regulate commerce with foreign Nations, and 
 among the several States": 
 
 The assailants raise only a question of mere power — 
 the power of the American people, acting by Congress, 
 to pass this Act. They do not challenge the Act as a 
 legislative invasion of any of the unalienable rights 
 spoken of in the Declaration of Independence, and pro- 
 tected against governmental assaults by the life, liberty, 
 and property clauses of the Constitution. The question 
 
COLLECTED COMMENT 411 
 
 is this : To which of the Governments instituted among us 
 for the security of our unalienable rights — the Govern- 
 ment of each of the several States, or the Government of 
 the United States — have we entrusted the power and 
 duty of protecting the acknowledged right of the em- 
 ployee of a common carrier, engaged in foreign, interstate, 
 or territorial commerce, to personal safety while employed? 
 The question calls for a judicial marking of the line of 
 permanent division drawn by the Federal Constitution 
 between the work it assigns to the General Government 
 and the work it leaves to the Governments of the several 
 States. "In considering this ... we must never 
 forget that it is a Constitution we are expounding." 
 (Marshall, C. J., in McCulloch v. Maryland, 4 Wheat., 
 316, 317.) "We know of no rule for construing the extent 
 of such powers (as the Constitution delegates to the 
 General Government) other than is given by the language 
 of the instrument which confers them, taken in connec- 
 tion with the purposes for which they were conferred." 
 (Chief Justice Marshall, in Gibbons v, Ogden, 9 Wheat., 
 1, 189.) If the text of the Constitution leaves any doubt 
 in the mind as to the purpose for which power over foreign 
 and interstate commerce was lodged in Congress, the 
 events that led to the writing and adoption of the Con- 
 stitution must remove that doubt. Says Mr. Justice 
 Miller, in his Memorial Oration, 135 U. S., 722, 726: 
 
 "It is not a little remarkable that the suggestion which finally 
 led to the relief, without which as a Nation we must soon have per- 
 ished, strongly supports the philosophical maxim of modern times — 
 that of all agencies of civilization and progress of the human race, 
 commerce is the most efficient. What our deranged finances, our 
 discreditable failure to pay our debts, and the sufferings of our 
 soldiers could not force the several States of the American Union 
 to attempt, was brought about by a desire to be relieved from the 
 evils of an unregulated and burdensome commercial intercourse, 
 both with foreign nations and between the several States." 
 
412 CONSTITUTIONAL LAW 
 
 Statesmen always have supposed, and great Judges 
 always have judicially affirmed, that the makers of the 
 Constitution put into the Commerce Clause words most 
 apt and proper to gather up the whole of the power of 
 Government then existing in this country over foreign 
 and interstate commerce scattered among the thirteen 
 different States, and to lodge the whole of that power in 
 all its sovereign fullness in a single, stronger hand, the 
 Congress of the United States, the legislative repre- 
 sentative of all. After Gibbons v. Ogden, decided in 1824, 
 it is too late for anyone to attempt to play upon the words 
 "to regulate." Taken by themselves, they do not mean 
 anything less than the words "to exercise exclusive legis- 
 lation," "to make all laws which shall be necessary and 
 proper" (McCulloch v. Maryland, 4 Wheat., 316, 411) 
 in Article I, Section 8, Clauses 17, 18; "to make all need- 
 ful rules and regulations," in Article IV, Section 3, Clause 
 2 (Dred Scott v. Sandford, 19 How., 393, 614, Curtis, J.); 
 or "to establish" in the clause "to establish Post Offices 
 and Post Roads" (Article I, Section 8, Clause 7; In re 
 Rapier, 143 U. S., 110). It has been suggested now and 
 then that the legislative power conferred upon Congress 
 by this clause over foreign and interstate commerce by 
 water is more than the legislative power conferred upon 
 Congress by this clause over foreign and interstate com- 
 merce by land. It is obvious, however, that the words 
 of the clause make no such distinction. As water differs 
 from land, so Congress cannot always make the same use 
 of its power in the one case as in the other. That seems 
 to be the true meaning of the suggested distinction. 
 (Railroad Co. v., Maryland, 21 Wallace, 456, 470, Mr. 
 Justice Bradley; Pullman Car Co. v. Pennsylvania, 141 
 U. S., 18, 23, Mr. Justice Gray; Emmett in Gibbons v. 
 Ogden, 9 Wheaton, 1, 92; Taney, C. J., License Cases, 5 
 Howard, 504, 578; Matthews, J., Bowman, v. R. Co., 
 
COLLECTED COMMENT 413 
 
 125 U. S., 465, 482; Gray, J., Leisy v. Hardin, 135 U. S., 
 100, 156; Bradley, J., Maine v. Ry. Co., 142 U. S., 217, 
 233.) And it is now too late, so far as the subject-matter 
 of this Act is concerned, to attempt to engraft "witty 
 diversities" (Rearick v. Pennsylvania, 203 U. S., 507) 
 upon the words "commerce with foreign Nations, and 
 among the several States." It is settled, and conceded, 
 that the business of transporting goods and passengers 
 to and from foreign countries is "commerce with foreign 
 Nations"; that the business of transporting goods and 
 passengers across State lines is "commerce among the 
 several States" and that the legislative power conferred 
 upon Congress over the business of transporting goods 
 and passengers in the way of foreign and interstate 
 commerce extends to the person of the owner of the busi- 
 ness, in respect of the business, and to everything, animate 
 as well as inanimate, that such owner uses in the conduct 
 of the business, that is to say, to the whole organized plant 
 used to conduct the business. "Undoubtedly," said Mr. 
 Justice Harlan, in Pierce v. Van Dusen, 78 Fed. Rep., 
 693, 700, C. C. A., speaking also for Circuit Judges Taft 
 and Lurton, "the whole subject of the liability of inter- 
 state railroad companies for the negligence of those in 
 their service may be covered by national legislation enac- 
 ted by Congress under its power to regulate commerce 
 among the States. ' ' The cases, comparatively few, wherein 
 the Supreme Court has dealt with commercial measures 
 enacted by Congress sustain that view. (See Gibbons v. 
 Ogden, supra; The Lottery Case, 188 U. S., 321; The 
 Northern Securities Case, 193 U. S., 197.) And in nearly 
 every case in that long list of cases wherein the Supreme 
 Court has dealt with the constitutionality of State Acts 
 under that adroit rule laid down by Mr. Justice Curtis 
 in Cooley v. Board of Port Wardens of Philadelphia, 
 12 How., 229 — where the subject admits of only one 
 
414 CONSTITUTIONAL LAW 
 
 uniform rule, the power of Congress is exclusive, and the 
 silence of Congress is an affirmative rule forbidding a State 
 to touch the subject — the Supreme Court affirms the 
 fullness and exclusiveness of the power of Congress over 
 local subjects or objects admitting of different local rules, 
 and leaves Congress perfectly free to break its silence as 
 respects such local subjects or objects, sometimes seem- 
 ingly even inviting Congress to speak. In those cases the 
 Court does not say, and could not say, that the Consti- 
 tution denies to Congress the power to speak and write 
 freely upon the subject of the right of an employee of a 
 common carrier of goods and passengers in the way of 
 foreign or interstate commerce to personal safety as 
 against his employer. And the Supreme Court has 
 always denied, in cases arising between citizens of differ- 
 ent States, that the relation between employer and 
 employee as respects the personal safety of the latter is 
 governed, in the absence of a State statute, by the local 
 common law of a State as evidenced by the decisions of 
 its highest Court (B. & O. R. Co. v. Baugh, 149 U. S., 
 368). And note the rulings, that an action for negligence 
 against a railroad company, incorporated by Congress, 
 arises under the laws of the United States (Pacific Rail- 
 road Removal Cases, 115 U. S., 1). To my mind, and with 
 due respect, there is nothing to the point that this Act 
 does not "regulate commerce." What else does it do? 
 "The judicial mind . . . under normal conditions" 
 (Judge Evans, supra) on that question cannot be different 
 from any fair and impartial mind of average intelligence. 
 If we advert, as we may (Railroad Co. v. Matthews, 
 165 U. S., 1, Gray, J.), to the rule of the common law, and 
 the reasons upon which it is supposed to rest (see Farwell 
 v. Railroad Co., 4 Met., 49, Shaw, C. J.; 2 Street's Foun- 
 dations of Legal Liability, 456-472), which this Act 
 alters, it seems plain that the fair effect of the Act is "to 
 
COLLECTED COMMENT 415 
 
 prescribe the rule by which (foreign and interstate) com- 
 mence is to be conducted" (Gibbons v. Ogden, 9 Wheaton, 
 1, 16, Webster's argument; 196, Marshall, C. J.). Con- 
 ceding that the sole purpose of Congress was to help 
 railroad organized labor, and even conceding what may 
 not be conceded too sweepingly that such is not a legiti- 
 mate constitutional purpose for Congress, that is all wide 
 of the mark. "There is no limit to the (sovereign) 
 power, to be derived from the purpose for which it is 
 exercised. If exercised for one purpose, it may be also 
 for another. No one can inquire into the motives which 
 influence sovereign authority. It is enough that such 
 power manifests its will." (Gibbons v. Ogden, 9 Wheaton, 
 1, 23, Webster; Fletcher v. Peck, 6 Cranch, 87, Marshall, 
 C. J.; License Cases, 5 Howard, 504, 583, Taney, C. J.; 
 Veazie Bank v. Fenno, 8 Wallace, 593, Chase, C. J.; 
 Felsenheld v. U. S., 186 U. S., 126, Brewer, J.; Lottery 
 Case, 188 U. S., 321, Harlan, J.; Northern Securities 
 Case, 193 U. S., 197, Harlan J.) See the remarks of 
 Curtis, J., in Cooley v. Board of Port Wardens, 12 Howard, 
 299, 316, about the power of Congress over people in 
 charge of vessels carrying goods and passengers in the 
 way of foreign and interstate commerce. 
 
 As respects the second reason for holding the Act bad, 
 that it inseparably embraces common carriers engaged 
 in State commerce: 
 
 This reason, according to my reading and interpreta- 
 tion of the decided cases on which it rests, in order to be 
 good, must arise exclusively out of the words used by Con- 
 gress in the Act. Dealing with this reason, then, as 
 raising a question of words merely, the Act appears to be 
 good. The Act is, in words, confined to "every common 
 carrier engaged in trade or commerce in the District of 
 Columbia, or in any Territory of the United States, or 
 between the several States, or between any Territory 
 
416 CONSTITUTIONAL LAW 
 
 and another, or between any Territory or Territories and 
 any State or States, or the District of Columbia, or with 
 foreign nations, or between the District of Columbia and 
 any State or States, or foreign Nations," and these 
 words, if words can do it, certainly do exclude common 
 carriers engaged in State commerce. Expressio unius 
 est exclusio alterius. Fairly, if not even strictly gram- 
 matically, construed, the words "engaged in," etc., ex- 
 pressly qualifying "every common carrier," also qualify 
 the subsequent words "any of its employees," "any of its 
 officers, agents, or employes," "its cars, engines, ap- 
 pliances, machinery, track, roadbed, ways, or works" 
 (see the text of Section 1, supra). The possessive pro- 
 noun "its" is used in these phrases to avoid repetition 
 of the very long, cumbersome, and unwieldy noun phrase 
 "every common carrier engaged in trade or commerce" 
 between States, Territories, etc., enumerated in that 
 long descriptive noun phrase. It is hard to tell what more 
 apt words Congress could have used to give expression 
 to its intention to exclude common carriers engaged in 
 State commerce and their employees from the burdens 
 and benefits of the Act. Any Court is bound to presume 
 that the Congress of the United States is acquainted with 
 the decisions of the Supreme Court upon points of con- 
 stitutional law, and that body, when it wrote and passed 
 this Act, was not intentionally, to use the words of 
 Judge Evans, supra, "trifling with important things." 
 In truth, this reason for holding the Act bad does not 
 arise out of the words used in the Act, but out of the 
 properly judicially noticed extrinsic fact, that every 
 common carrier, and especially every railroad com- 
 pany, engaged in foreign, interstate, and territorial 
 commerce, is also engaged in State commerce, conducting 
 these various legally different kinds of commerce afs one 
 inseparable business by means of one indivisible, physi- 
 
COLLECTED COMMENT 417 
 
 cally- united, or use-united, plant, constituting, de facto, 
 a business organic unit. No form of words that Congress 
 could have used in this Act could have altered this ex- 
 trinsic business fact, unless Congress went so far as 
 to compel every common carrier to establish and main- 
 tain a separate and distinct plant for the conduct of its 
 foreign, interstate, and territorial business, a thing that 
 Congress doubtless has the power to do. But so long as 
 foreign, interstate, and territorial common carriers act as 
 State common carriers, using one inseparably use-united 
 business plant to carry on these kinds of business made 
 legally different by the Federal Constitution as respects 
 their Sovereign Lawgiver, can it be said that the com- 
 merce power of Congress and the declared supremacy of 
 the laws of the United States are suspended until common 
 carriers voluntarily change their modes of doing business? 
 Under the rule of silence by Congress, above adverted to, 
 the "incidental effect" of a State Act like this on the 
 foreign, interstate, and territorial business of a common 
 carrier would not make the State Act unconstitutional, 
 or present any practical difficulty in the way of its enforce- 
 ment by the Courts. A common carrier could never es- 
 cape the duty of obeying such State Act by the assertion 
 that it was also doing foreign or interstate business with 
 the aid of the same employees, cars, engines, appliances, 
 machinery, track, roadbed, ways, or works. Many 
 familiar decided cases prove that. To my mind, that rule 
 is much more constitutionally sound if it is applied the 
 other way; that is to say, so that the "incidental effect" 
 of this Act of Congress upon the State business of a 
 common carrier cannot affect either the constitutionality 
 of the Act, or the practical administration of it by the 
 Courts as the supreme law of the land. Under the said 
 rule of silence by Congress, if each of the forty-five States 
 should pass this sort of an Act, the forty-five "incidental 
 
418 CONSTITUTIONAL LAW 
 
 effects" upon the interstate business of common carriers 
 would equal this Act of Congress. The Act accomplishes 
 the same result by the direct, simple, united mode of 
 procedure prescribed by the Constitution. 
 
TOPIC V 
 PUNISHMENT 
 
 I. Cruel and Unusual Punishment. 
 
 II. Petit Larceny as an Infamous Crime Involving 
 Infamous Punishment — Comment on People v. 
 Russell. 
 
CRUEL AND UNUSUAL PUNISHMENT 3 
 
 In Weems v. United States, 1 four Justices of the Supreme 
 Court, Fuller, C. J., Harlan, McKenna, and Day, J J., 
 speaking by McKenna, J., decided that a punishment 
 of fifteen years' imprisonment at hard labor and a fine 
 of 4,000 pesetas, to which the law superadded specified 
 political and civil disabilities, is a cruel and unusual 
 punishment for the crime of padding a government pay- 
 roll in the Philippine Islands. And they indirectly de- 
 clared the new doctrine, that the prohibition of the eighth 
 amendment forbidding the infliction of cruel and unusual 
 punishments means that the punishment authorized by 
 Congress for crime against the United States committed 
 within the limits of the states composing the Union 
 must be graduated and proportioned to the offense. 
 White, J., delivered a dissenting opinion, concurred in 
 by Holmes, J. 
 
 The eighth amendment says : 
 
 "Excessive bail shall not be required, nor excessive fines im- 
 posed, nor cruel and unusual punishments inflicted." 
 
 Mr. Justice Story said of this amendment in his work on 
 the Constitution: 
 
 "The provision would seem to be wholly unnecessary in a free 
 government, since it is scarcely possible that any department of 
 such a government should authorize or justify such atrocious 
 conduct." 2 
 
 a [5 111. Law Rev., 321, January, 1911.] 
 
 1 217 U. S., 349. 
 
 2 2 Story, Constitution, Sec. 1903. 
 
422 CONSTITUTIONAL LAW 
 
 No act of Congress passed in pursuance of its power to 
 legislate for the states of the Union ever has been assailed 
 in the Supreme Court as being repugnant to this amend- 
 ment. This case of Weems v. United States did not arise 
 on any act of Congress applicable within the states; the 
 legislative power of Congress within the states was drawn 
 into the case indirectly through the medium of the legis- 
 lative power of Congress in the Philippine Islands. As 
 it is not likely that Congress ever will authorize the in- 
 fliction of cruel and unusual punishments by federal courts, 
 the chief practical importance of this case lies in the 
 method of the two opinions of bowing to the restraint of 
 the text of the Constitution, rather than in the doctrine 
 of the majority opinion that "cruel and unusual" means 
 "disproportionate," when applied to restrain the power 
 of Congress to punish crime within the limits of the states 
 of the Union, for the doctrine is so vague that you cannot 
 get your hand on it to use it. 
 
 The legal history of the prohibition from the time of 
 its first appearance in the English Bill of Rights in 1689 
 is reviewed. The trouble arises on the word "unusual." 
 White, J., says the word "and" means "or," i. e., "cruel 
 or unusual punishments"; that the prohibition forbids 
 Congress to authorize 
 
 "the infliction of the cruel bodily punishments of the past, which was 
 one of the evils sought to be prevented for the future by the English 
 Bill of Rights"; and "the word 'unusual' accomplished only three 
 results: First, it primarily restrains the courts when acting under 
 the authority of a general discretionary power to impose punish- 
 ment, such as was possessed at common law, from inflicting lawful 
 modes of punishment to so unusual a degree as to cause the punish- 
 ment to be illegal, because to that degree it cannot be inflicted 
 without express statutory authority; second, it restrains the courts 
 in the exercise of the same discretion from inflicting a mode of 
 punishmem: so unusual as to be implied not within its discretion 
 and to be consequently illegal in the absence of express statutory 
 
CRUEL AND UNUSUAL PUNISHMENT 423 
 
 authority ; and, third, as to both the foregoing, it operated to restrain 
 the law-making power from endowing the judiciary with the right 
 to exert an illegal discretion as to the kind and extent of punishment 
 to be inflicted." 3 
 
 Since there is no common criminal law of the United 
 States, excluding the territories and other possessions; 
 and since inferior federal courts sitting in the several 
 states can inflict punishment for crime against the United 
 States only under the authority of an act of Congress, 
 perhaps the net result accomplished by the word "un- 
 usual" may be compressed into a more concise state- 
 ment. 4 
 
 The opinion of White, J., seems altogether the better 
 one. The negative command to Congress, "Do not 
 authorize the courts to inflict cruel or unusual punish- 
 ments," does not involve the affirmative command to 
 Congress, "Authorize the courts to inflict punishment 
 in proportion to the offense." The punishment author- 
 ized by a legislature easily may be neither cruel nor 
 unusual and yet disproportionate, whatever you take as 
 the ultimate end to be attained by human punishment, and 
 even if you take the rule of the law of God that punish- 
 ment ought to be proportioned to the guilt of the offender. 6 
 
 In Gibbons v. Ogden, 6 Marshall, C. J., gives the lock 
 
 3 217 U. S., 349, 397, 409. 
 
 * United States v. Hudson, 7 Cranch, 32; United States v. Coolidge, 1 Wbeaton» 
 415, reversing 1 Gall., 488, Story, J.; citations under these cases in Rose's Notes- 
 See R. S., Sec. 722, authorizing federal courts to adopt common-law remedies and 
 punishments in certain cases. The difference, emphasized by White, J., in the 
 operation of the eighth amendment as a restraint on courts and as a restraint on 
 Congress, is somewhat analogous to the difference in the opinion of due process 
 of law as a restraint on courts and as a restraint on legislatures. 
 
 6 On the end to be attained by human punishment and the rule of proportion , 
 see 4 Blackstone, Commentaries, 11 (1765); Montesquieu, Spirit of Laws, Book 6 
 (1748); Bentham, Principles of Morals and Legislation, Chap. 16 (1789); Paley, 
 Moral Philosophy, Book 6, Chap. 9 (1785). 
 
 6 9Wheaton, 1,188. 
 
424 CONSTITUTIONAL LAW 
 
 and key to successful judicial construction and application 
 of the Constitution: 
 
 "As men whose intentions require no concealment generally 
 employ the words which most directly and aptly express the ideas 
 they intend to convey, the enlightened patriots who framed our 
 Constitution and the people who adopted it must be understood to 
 have employed words in their natural sense, and to have intended 
 what they have said." 
 
 McKenna, J., says that Patrick Henry and the other 
 men who advocated the adoption of the first ten amend- 
 ments of the Constitution were "men of action, practical 
 and sagacious, not beset with vain imagining," whose 
 "predominant political impulse was distrust of power"; 
 and that the prohibition against cruel and unusual 
 punishments "may be therefore progressive, and is not 
 fastened to the obsolete, but may acquire a meaning as 
 public opinion becomes enlightened by humane justice." 7 
 
 White, J., says this doctrine ignores the principle of the 
 separation of the departments, and by expanding the 
 words "cruel and unusual" to mean "disproportionate" 
 elevates the Supreme Court into a position of supremacy 
 over Congress, and over the Constitution itself, and thus 
 makes the Supreme Court an organ of "emotional ten- 
 dencies," "or public opinion enlightened by humane 
 justice." 
 
 McKenna, J., confesses the point by saying when an 
 act of Congress is assailed in the Supreme Court as being 
 repugnant to the Constitution, "then the legislative power 
 
 7 Quaere, whether Patrick Henry and those who thought like him distrusted 
 legislative power, or only executive power and judicial power, and especially 
 these two latter in combination, as in the days of the Stuarts. Doubtless they 
 regarded the new federal power as an external, alien power, like the former exter- 
 nal, alien English power, but they were mistaken; besides, distrust of power, past 
 or present, is not a legitimate aid to the construction of the constitution, unless 
 it is expressed in the constitution, as it is, to a certain extent, by the prohibitions. 
 
CRUEL AND UNUSUAL PUNISHMENT 425 
 
 is brought to the judgment of a power superior to it for 
 the instant." 
 
 In number 78 of The Federalist, Hamilton explains 
 why, in his opinion, the judicial power of the Supreme 
 Court to declare an act of Congress unconstitutional does 
 not "by any means suppose a superiority of the judicial 
 to the legislative power. It only supposes that the 
 power of the people is superior to both." This view of 
 Hamilton's is in line with the traditional view of English 
 lawyers that the judgment of an English court declaring 
 an act of the crown void as being repugnant to the law 
 of the land, is only an enforcement of the supremacy 
 of the law over the crown, the judges, and the people 
 alike. As Lord Bacon said in his Essay, "Of Judicature" : 
 
 "Judges ought to remember that their office is Jus dicere, and 
 not Jus dare ; To interpret Law and not to Make Law or Give Law. 
 . . . Cursed (saith the Law) is hee [i. e., the Judge] that re- 
 moveth the Land-Marke." 
 
 The objection to the judicial-superiority doctrine of 
 the opinion of McKenna, J., was stated by Miller, J., in 
 the legal-tender case of Hepburn v. Griswold, as follows: 
 
 "It would authorize this court to enforce theoretical views of the 
 genius of the government, or vague notions of the spirit of the con- 
 stitution and of abstract justice, by declaring void laws which did 
 not square with those views. It substitutes our ideas of policy 
 for judicial construction, an undefined code of ethics for the consti- 
 tution, and a court of justice for the national legislature." 8 
 
 8 8 Wallace, 603, 638. McKenna, J., cites as instances of "liberal construction," 
 as opposed to "strict construction," the "expansion,'' since the opinion of Miller, 
 J., in the Slaughter House Cases, of the equality and due-process prohibitions 
 of the fourteenth amendment, and also the reversal of Kent, C, in Gibbons v. 
 Ogden. It is said that Kent, C, "confidently decided that the congressional 
 power [to regulate foreign and interstate commerce] related to 'external, not to 
 internal, commerce.' " Sed quaere. The position of Kent, C. [see also his 
 opinion in Livingston v. Van Ingen, 9 Johns., 507], touching the operation — 
 as a prohibition on the states — of the grant to Congress of power to regulate 
 foreign and interstate commerce, seems to have been substantially the same as 
 the position of Taney, C. J., so luminously expounded in the License Cases, 5 
 
426 CONSTITUTIONAL LAW 
 
 What was the case the Supreme Court had to decide? 
 White, J., complains of the abstractness of the discussion. 
 And the case is, with due respect, a good instance of 
 "jurisprudence in the air," disregarding what Sir Henry 
 Maine says is the most honorable thing about the common 
 law, i. e., its insistence upon a careful examination and 
 determination of facts before any determination and 
 application of law is made. 9 This distinguishing feature 
 of the common-law mode of administering justice between 
 party and party applies when an act of the legislature 
 is drawn in question in the case, although the court is 
 permitted, and required, to acquaint itself as best it 
 can with the facts dealt with by the legislature before the 
 court can say the facts could not justify the legislation 
 
 Howard, 504, 573, viz.: that a state regulation of foreign commerce, or commerce 
 with another state, confined to its own territory and made for its own convenience 
 or interest, must stand as a binding and valid law, unless and until it comes into 
 collision with a prior or subsequent act of Congress on the same subject. Gibbons 
 v. Ogden actually went off on the point that the New York law in question collided 
 with the coasting-license act of Congress. Kent, C, and Taney, C. J., only post- 
 poned the entrance of the power of the Supreme Court into the subject of foreign 
 and interstate commerce until after both the state and the nation had actually 
 legislated. They did not restrict the words of the constitution lodging the power 
 to regulate commerce in Congress, and not in the Supreme Court. Nor did 
 Marshall, C. J., in Gibbons v. Ogden, expand the words of the commerce clause. 
 In truth, the phrase "expansion of the constitution," when used to describe 
 results reached by the Supreme Court, evidences erroneous, confused thinking. 
 The text of the constitution is fixed, like the sun. Fulton's steamboat and Morse's 
 telegraph fell within the scope of the rays of the sun, but Fulton and Morse did 
 not expand the sun. Similarly, when the Supreme Court decided that the steam- 
 boat and the telegraph, employed as agencies to carry on foreign and interstate 
 commerce, fell within the scope of the enumeration, "commerce with foreign 
 nations and among the several states,'' the court did not "expand" the consti- 
 tution. Nor did the Supreme Court "expand" the constitution when it decided 
 that white persons and artificial persons or corporations, as well as black persons, 
 fell within the scope of the enumeration, "any person," in the prohibition, "Nor 
 shall any state deny to any person within its jurisdiction the equal protection of 
 the laws." As Marshall, C. J., and Johnson, J., said in Gibbons v. Ogden, 9 
 Wheaton, 1, 187, 188, 189, 223, gentlemen mean by "strict construction" and 
 "liberal construction" that they want the Supreme Court to work into the con- 
 stitution some political, economic, or social theory that is not expressed in it. 
 9 Maine, Early Institutions, 48. 
 
CRUEL AND UNUSUAL PUNISHMENT 427 
 
 assailed. The court must survey all time and all exis- 
 tence, as Plato said, to sustain the legislature. 
 
 A disbursing officer in the Philippine Islands "padded 
 the payroll" by entering in a public and official book 
 204 pesos and 408 pesos as paid out as wages to govern- 
 ment employees. He was prosecuted for "falsification of 
 an official document by a public official," was convicted, 
 and was sentenced to fifteen years' imprisonment and to 
 pay a fine of 4,000 pesetas, with the accessories herein- 
 after mentioned. The Supreme Court of the Philippine 
 Islands affirmed the conviction and sentence. The sec- 
 tions of the Spanish Penal Code, in force in the Islands, 
 prescribing punishment for the crime of falsifying a 
 public document by a public official, provide for a princi- 
 pal punishment of a fine of from 1,250 to 12,500 pesetas, 
 and imprisonment in a penal institution at hard and 
 painful labor for the benefit of the state, with a chain at 
 the ankle hanging from the wrists, for from twelve years 
 and one day to twenty years, with no assistance what- 
 soever from outside the institution. To this principal 
 punishment the Code adds an accessory punishment, the 
 accessories consisting of (1) civil interdiction during the 
 term of imprisonment, i. e., deprivation of the rights of 
 parental authority, guardianship of person and property, 
 participation in the family council, marital authority, the 
 administration of property, and the right to dispose of 
 his own property by acts inter vivos ; (2) perpetual abso- 
 lute disqualification to vote and to hold office, to receive 
 honors or a pension from the state; (3) subjection to sur- 
 veillance during life, i. e., a convicted person after leaving 
 the prison must establish a domicil and keep the authori- 
 ties informed of it; must observe the rules of inspection 
 prescribed; and must adopt some trade, art, industry, or 
 profession, if he has no known means of support. 
 
 The act of Congress of July 1, 1902, for the govern- 
 
428 CONSTITUTIONAL LAW 
 
 ment of the Philippine Islands, forbids the infliction of 
 cruel and unusual punishments. The point that the 
 Philippine court of first instance inflicted a cruel or 
 unusual punishment in this case in violation of the act of 
 Congress was made for the first time in the Supreme 
 Court of the United States on a record that contained 
 none of the evidence. The Supreme Court, i. e., four 
 Justices, in exercise of a discretion reserved by the rules, 
 decided to consider the point. They dealt with the case 
 on the face of the sections of the Spanish Penal Code 
 alone, with reference to the lowest conceivable crime 
 punishable under it and with reference to the lowest con- 
 ceivable punishment authorized by it; they shifted the 
 case to the eighth amendment on the theory that the 
 word "punishments" means the same thing in the act of 
 Congress for the government of the Philippine Islands 
 and in the eighth amendment; and then they rendered 
 an opinion affecting the constitutional power of Congress 
 to legislate within the limits of the states of the Union. 
 There is no decision, nor expression of opinion by any 
 Justice, that the eighth amendment limits the power of 
 Congress to legislate for the Philippine Islands. The 
 majority opinion is but an expression of opinion by four 
 Justices of the Supreme Court that the sections of the 
 Spanish Penal Code in question are potentially uncon- 
 stitutional, i. e., they would be unconstitutional if Con- 
 gress should attempt to put them in force within the states 
 of the Union. 
 
 It is evident that the accessories, or the political and 
 civil disabilities above enumerated, caused the peculiar 
 mode of dealing with the case and greatly influenced the 
 ruling made. White, J., says he thinks "the accessory 
 punishments are the basis of the ruling now made." 10 
 
 10 217 U. S., on page 412. After stating the terms of the sentence and of the 
 Spanish penal code, McKenna, J., said on p. 366: "We can now give graphic 
 
CRUEL AND UNUSUAL PUNISHMENT 429 
 
 All of the Justices dealt with the case on the basis of 
 the tacit assumption, not challenged by the government's 
 attorneys at the bar, that the provisions of the Spanish 
 Penal Code prescribing the accessories or political and 
 civil disabilities inflicted punishment within the meaning 
 of the word "punishments" in the act of Congress for the 
 government of the Philippine Islands, and in the eighth 
 amendment. They divided on the question whether the 
 accessory punishments were separable from the main 
 punishment — the fine and imprisonment. Is that tacit 
 assumption right? 
 
 If those provisions of the Spanish Penal Code are 
 treated as flowing from the power of Congress to legislate 
 for the states of the Union, then all of them, or at least 
 some of them that are inseparable from the rest, do inflict 
 punishment within the meaning of the word "punish- 
 ments" in the eighth amendment. 
 
 Congress cannot create and enforce a political disability 
 to hold office under a state, or to vote at state elections, 
 
 description of Weeras' sentence and of the law under which it was imposed. Let 
 us confine it to the minimum degree of the law, for it is with the law that we are 
 most concerned. Its minimum degree is confinement in a penal institution for 
 twelve years and one day, a chain at the ankle and wrist of the offender, hard 
 and painful labor, no assistance from friend or relative, no marital authority 
 or parental rights or rights of property, no participation even in the family 
 council. These parts of his penalty endure for the term of imprisonment. From 
 other parts there is no intermission. His prison bars and chains are removed, it 
 is true, after twelve years, but he goes from them to a perpetual limitation of his 
 liberty. He is forever kept under the shadow of his crime, forever kept within 
 voice and view of the criminal magistrate, not being able to change his domicil 
 without giving notice to the 'authority immediately in charge of his surveillance,' 
 and without permission in writing. He may not seek, even in other scenes and 
 among other people, to retrieve his fall from rectitude. Even that hope is taken 
 from him and he is subject to tormenting regulations that, if not so tangible 
 as iron bars and stone walls, oppress as much by their continuity, and deprive 
 of essential liberty. No circumstance of degradation is omitted. It may be 
 that even the cruelty of pain is not omitted. He must bear a chain night and 
 day. He is condemned to painful as well as hard labor. What' painful labor 
 may mean we have no exact measure. It must be something more than hard 
 labor. It may be hard labor pressed to the point of pain." 
 
430 CONSTITUTIONAL LAW 
 
 except by way of punishment for a crime against the 
 United States, and doubtless Congress cannot do that 
 even in that way, except, of course, while the offender is in 
 jail. The same rule applies to the civil disability to exer- 
 cise and enjoy civil rights under a state. As respects 
 the political disability to vote at federal elections, or to 
 hold office under the United States, Congress has no power 
 to keep a person residing in a state from voting at federal 
 elections, i. e., for representatives in Congress and presi- 
 dential electors; nor has Congress any power to keep a 
 citizen of a state having the qualifications prescribed by 
 the Constitution from running for, or holding, if the run 
 is successful, the offices of president, vice-president, 
 senator and representative ■ — except by way of punish- 
 ment for crime against the United States. 11 The point 
 made by Miller, }., in United States v. Waddell, 12 viz., 
 that disqualification to hold office under the United 
 States added by Congress to fine or imprisonment may be 
 part and parcel of the punishment, and hence may make 
 
 11 Constitution, Art. 1, Sec. 2, Clauses 1, 2; Sec. 3, Clauses 1, 3; Sec. 6, Clause 2; 
 Art. 2, Sec. 1, Clauses 1, 2, 3, 5; Sec. 4; Twelfth. Amendment ; Fourteenth Amend- 
 ment, Sees. 2, 3; Fifteenth Amendment. On the converse question whether a 
 state can prescribe qualifications to hold the offices of representative and senator 
 in Congress in addition to those qualifications specified in the constitution, see 
 1 Watson, Constitution, Ch. 7 and pp. 246, 247. On pp. 158, 159, 160, Mr. Wat- 
 son reprints a letter that Thomas Jefferson wrote to Mr. Cabell on the question 
 whether a state may say that no non-resident of a district shall be eligible as a 
 member of the lower house of Congress. In the course of the letter Jefferson 
 says he could not see why a state may not provide by law that it shall not be 
 represented in Congress by a lunatic, a pauper, a convict of treason, of murder, 
 of felony, or other infamous crime. Mr. Watson cites some judicial opinion, 
 not of the highest authority, against that view. The qualification of residence 
 in a district is different and more difficult, as Jefferson points out, because the 
 constitution expressly touches the subject of residence, requiring the member to 
 be an inhabitant of that state in which he shall be chosen. The short answer 
 to Story's criticism of Jefferson is, that qualifications prescribed by a state must 
 have some relation to a man's fitness to sit in Congress. See 1 Story, Constitu- 
 tion, Sees. 623-629; 1 Willoughby, Constitution, Sec! 230. 
 
 12 112 U. S., 76. 
 
CRUEL AND UNUSUAL PUNISHMENT 431 
 
 the crime an "infamous crime," that must be prosecuted 
 by indictment of a grand jury under the fifth amendment, 
 is well taken, so far as the offices of representative, sena- 
 tor, president, and vice-president are concerned, because 
 the Constitution itself prescribes the qualifications for 
 holding those offices. In Ex parte Wilson, 13 wherein it 
 was decided that the mode of punishment is the test of an 
 infamous crime under the fifth amendment, Gray, J., 
 said: 
 
 "We are not indeed disposed to deny that a crime, to which 
 Congress has superadded a disqualification to hold office [i. e., 
 under the United States] is thereby made infamous." 
 
 If the provisions of the Spanish Penal Code prescrib- 
 ing the accessories or political and civil disabilities are 
 treated — and they must be so treated — as flowing from 
 the power of Congress to legislate for the Philippine 
 Islands, then they do not inflict punishment within the 
 meaning of the word "punishments" in the eighth amend- 
 ment; and they are clearly inseparable from the pro- 
 visions prescribing the imprisonment and fine, i. e., the 
 punishment. 
 
 Congress can employ more of the imperium of the 
 people of the United States to legislate for the Philippine 
 Islands than it can to legislate for the states of the Union. 
 Congress has in the territories, the "unincorporated" 
 ones, at least, by grant from the people of the United 
 States, i. e., the states united, the wide auctoritas of a 
 state legislature, and is not restricted to the limited auc- 
 toritas of the federal legislature within the states. 14 The 
 provisions of the Spanish Penal Code prescribing the ac- 
 cessories or political and civil disabilities flow from the 
 parens-patriae power of the people of the United States in 
 
 13 114 U. S., 417. 
 
 14 American Insurance Co. v. Canter, 1 Peters, 511; Downes v. Bidwell 182 U 
 S., 244. 
 
432 CONSTITUTIONAL LAW 
 
 the Philippine Islands, which power the people lodged in. 
 Congress by the Constitution. 15 This power, when em- 
 ployed by Congress directly, or indirectly through a local 
 legislative authority, to prescribe political and civil 
 disabilities in the Philippine Islands, is not unlike the 
 power lodged in the censor and praetor by the Roman 
 people to declare and enforce the ideal of a mos majorum, 
 not by way of punishment, but to protect the state and 
 society from the improper performance of functions or 
 services, in the proper performance of which the state 
 and society have an interest paramount to the interest of 
 the individual who wants to exercise and enjoy the right 
 to perform those functions or services. 
 
 As is well known, the Roman law forms an important 
 part of the subsidiary law of the Spanish Civil and Penal 
 Codes. The sections of the Spanish Penal Code prescrib- 
 ing these accessories or political and civil disabilities 
 appear to be the Spanish version of the Roman law of 
 infamia, i. e., loss of character (minutio existimationis), 
 consequent on conviction of crime. By the Roman law 
 as ultimately developed under the republic by the 
 censor and praetor, infamia, or loss of character, conse- 
 quent on conviction of crime in a public prosecution 
 (judicium publicum), cut off the right to vote (jus suffra- 
 gii) , the right to hold office (jus honorum) , and the right 
 to represent another in the courts (jus postulandi pro 
 alio) ; abridged the right to marry (jus connubii) ; abridged 
 the right to be a witness; and abridged the right to man- 
 age the affairs and property of another', e. g., as guardian 
 etc. These political and civil disabilities consequent 
 on conviction of crime were not conceived of by the Roman 
 lawyers as punishment (poena), in the legal sense of the 
 word. Hence, in the time of the Roman empire, a general 
 pardon by the emperor (generalis indulgentia or generalis 
 
 15 Late Corporation of Latter-Day Saints v. United States, 136 U. S., 1. 
 
CRUEL AND UNUSUAL PUNISHMENT 433 
 
 abolitio) did not remit these disabilities, and remitted only 
 the punishment, unless the pardon remitted these disa- 
 bilities in express words (nominatim). 16 
 
 The sections of the Spanish Penal Code in question 
 do not literally follow the distinction between infamia and 
 poena or punishment drawn by the Roman lawyers. 
 Those sections of the Spanish Penal Code apparently treat 
 punishment as a genus with two species, viz., (1) princi- 
 pal punishment, i. e., the fine and imprisonment, and (2) 
 dependent or accessory punishment, i. e., the political 
 and civil disabilities consequent on conviction. Those 
 sections apparently proceed upon a division of punish- 
 ments like that in Asso and Manuel, Institutes of the 
 Civil Law of Spain 17 : 
 
 "Some [punishments] are called ordinary punishments if they are 
 determined or fixed by the laws, and those which are left to the 
 discretion of the judge, according to the circumstances of the crime, 
 are called extraordinary or arbitrary. . . . The judges can- 
 not mitigate nor increase the ordinary punishments, except in the 
 cases which regard the circumstances of the heinousness of the 
 offense, of the sex, of the age, and of the person against whom it 
 was committed. . . . The extraordinary punishments ought 
 to be proportioned to the circumstances of the crime." 
 
 But the Spanish legal or juristic conception of punish- 
 ment must be dismissed entirely. The act of Congress for 
 the government of the Philippine Islands, forbidding cruel 
 and unusual punishments, carried our legal or juristic 
 conception of punishment into those Islands and abolished 
 the Spanish one, regardless of whether our conception is 
 more or less humane and enlightened. Our law, however, 
 
 16 Sohm, Institutes, Ledlie Tr., Ed. 2, pp. 191-194, Girard, Manuel Elementaife 
 de Droit Romain, Ed. 3, pp. 195-197; Greenidge, Infamia in Roman Law, Chs. 1, 
 2; p. 181. 
 
 17 Ed. 6, Madrid, 1805, Johnston's Tr., pp. 262-263. The view that political 
 and civil disabilities consequent on conviction of crime form an additional punish- 
 ment seems to have been the prevailing one on the continent of Europe. See 
 1 Savigny, System, Sec. 79. 
 
434 CONSTITUTIONAL LAW 
 
 like the Roman law under the republic, draws and 
 preserves a clear distinction between punishment for 
 crime and political and civil disabilities consequent on 
 conviction of crime. 18 The Federal Constitution itself 
 draws the distinction in the clause providing the judg- 
 ment in cases of impeachment. 19 The Spanish Penal 
 Code fumbles the distinction by treating the political and 
 civil disabilities as a consequence of the punishment, i. e., 
 punishment upon punishment. But they are punish- 
 ment only in the philosopher's sense that the end of human 
 punishment is to deter people from committing crime, and 
 these political and civil disabilities contribute to attain 
 that end. 20 
 
 18 Ex parte Wilson, 114 U. S., 189; United States ». Waddell, 112 U. S., 76; 
 Hawker v. New York, 170 U. S., 189; 1 Bouvier, Institutes of Am. Law, Ed. 1, 
 p. 72; 2 Hawkins, Pleas of the Crown, Ed. 8, p. 604; Chaler v. Hawkins, 3 Levinz, 
 426; Pendock v. Mackender, 2 Wilson, 18; Bracton, in Maitland's Bracton and 
 Azo, 8 Selden Society, pp. 166, 168; The Mirror of Justices, 7 Selden Society, 
 pp. 133, 134, 44, 82. 
 
 The test oath cases of Cummings v. Missouri, 4 Wall., 277, and Ex parte Gar- 
 land, 4 Wall., 333, cited by McKenna, J., in 217 U. S., 373, as an instance of pro- 
 gressive judicial expansion of the Constitution, as explained in Dent v. West 
 Virginia, 129 U. S., 114, 128, and in Hawker v. New York, 170 U. S., 189, 198, 
 went upon the principle that qualifications prescribed by law for situations of 
 trust must have some relation to men's fitness to occupy those situations, the 
 majority holding that "the constitution of Missouri and the act of Congress in 
 question in those cases were designed to deprive parties of their right to con- 
 tinue in their professions for past acts or past expressions of desires and sympa- 
 thies, many of which had no bearing upon their fitness to continue in their pro- 
 fessions, and hence encountered the prohibitions forbidding the passage of bills 
 of attainder or ex post facto laws." In other words, the laws in question were an 
 attempt to introduce a lawyer's proscriptio, like the soldier's proscriptio of Sulla, 
 under the guise of using the legislative power to prescribe qualifications for 
 situations of trust. 
 
 19 Art. 1, Sec. 3, Clause 7: "Judgment in cases of impeachment shall not extend 
 further than to removal from office and disqualification to hold and enjoy any 
 office of honor, trust, or profit under the United States; but the party convicted 
 shall nevertheless be liable and subject to indictment, trial, judgment, and punish- 
 ment, according to law." 
 
 20 Montesquieu, Spirit of Laws, Book 6, assumes that laws prescribing political 
 and civil disabilities on conviction of crime are criminal laws inflicting punish- 
 ment. The distinguished author says he drew his ideas about punishment from 
 
CRUEL AND UNUSUAL PUNISHMENT 435 
 
 McKenna, J., concludes his "graphic description" 21 
 of the sentence and the Spanish law thus: 
 
 "Such penalties for such offenses amaze those who have formed 
 their conception of the relation of a state to even its offending 
 citizens from the practice of the American commonwealths, and 
 believe it is a precept of justice that punishment for crime should 
 be graduated and proportioned to offense." 22 
 
 the practice of the Romans. See Book 4, Ch. 15. But he evidently sees and feels 
 a difference between political and civil disabilities and punishments, if he does 
 not clearly state it. With Montesquieu compare Eden, Principles of Penal Law, 
 Ch. 7. See Bentham on "The punishment of infamy, or loss of reputation," 
 Principles of Penal Law, Part II, Book 3, Chs. 3, 5; and see Part II, Book 2, Ch. 9, 
 on the now obsolete political and civil disabilities of Catholics and Nonconformists 
 in England, which disabilities he does not class as punishments at the time of 
 their origin, at least. See also Dicey, Law and Opinion, 11, 27, 203, 332, 242, 
 347, 477. Bentham says he knows of no instance where the common-law disability 
 to be a witness was enforced as a punishment. 
 
 As to the phrase "infamous punishment": A punishment becomes infamous 
 when the mode of punishment is one that disgraces the offender in the eyes of the 
 people, regardless of the nature of the crime, as e. g., imprisonment in the peniten- 
 tiary. The prevailing public opinion of the day and generation touching the 
 mode of punishment determines whether it is an infamous punishment. In our 
 law, the infamy or loss of character consequent on the mode of punishment, 
 regardless of the nature of the crime, has the legal effect, by virtue of the fifth 
 amendment of the federal constitution, of creating a right, i. e., the right to be 
 prosecuted for crime against the United States by indictment of a grand jury. 
 When an infamous mode of punishment is actually inflicted, the punishment 
 itself entails no legal consequences. Infamy consequent on the mode of punish- 
 ment operates legally by way of anticipation as a threatened disgrace ; the right to 
 call for an indictment of a grand jury is a safeguard against that threatened dis- 
 grace. There can be no royal lettre de cachet or imperial relegatio in insulam, 
 as in Ovid's case. Infamy or loss of character consequent on conviction of cer- 
 tain kinds of crime entails a loss of rights and privileges, regardless of the mode 
 of punishment, the conviction afflicting the delinquent instanter with a personal 
 legal incapacity or disability to exercise and enjoy the full measure of the political 
 and civil rights inhering in citizenship. See the opinion of Gray, J., in Ex parte 
 Wilson, 114 U. S., 417. See note 18, supra. 
 
 The citation of Ex parte Wilson by McKenna, J., 217 U. S., on p. 378, appears 
 to evidence a misapprehension of its meaning. In People v. Russell, 245 111., 268, 
 by accepting an erroneous and obiter gloss of Ex parte Wilson in People v. Ripley, 
 171 111., 44, 73, the Illinois Supreme Court reached a result that renders petit 
 larceny, i. e., where the property stolen is of the value of $15, or less, practically 
 immune from prosecution in Chicago, until the legislature restores the mode of 
 prosecution by information. See comment in 5 111. Law Rev., 108. [Post, p. 441.] 
 
 21 It is set forth in note 10, supra. 
 
 22 217 U. S., on pp. 367-8. 
 
436 CONSTITUTIONAL LAW 
 
 Let us look at the law of Illinois to see whether it is 
 amazing as compared with the Spanish law. The present 
 Illinois Constitution of 1870 does not forbid cruel or un- 
 usual punishments, but affirmatively declares that "all 
 penalties shall be proportioned to the nature of the 
 offense." 23 The previous Constitutions of 1818 and 1848 
 made the same declaration, but added as the reason of 
 it, "the true design of all punishment being to reform, 
 not to exterminate mankind." 24 
 
 Without undertaking to affirm that the offense of pad- 
 ding the payroll by a public official always would fall 
 under it, Section 105 of Division 1 of the Illinois Criminal 
 Code classifies the offense of falsifying a public record or 
 writing by a public official as forgery, and prescribes a 
 punishment of imprisonment in the penitentiary not less 
 than one nor more than fourteen years. 25 Forgery is 
 declared to be an infamous crime, making the person con- 
 victed of it infamous and forever disqualified to vote, to 
 hold office, and to serve as a juror, unless his character 
 is legally restored by the express terms of a pardon. That 
 
 23 Art. 2, Sec. 2. 
 
 24 Constitution of 1818, Art. 8, Sec. 14; of 1848, Art. 13, Sec. 14. See New 
 Hampshire Constitution of 1784 in 217 U. S., on p. 394. 
 
 26 R. S., Hurd, 1909, pp. 105-6. There are other sections of the 111. Criminal 
 Code that seem to fit the offense of padding the payroll. See Sec. 176, "larceny 
 and falsifying public records"; Sec. 208, "misconduct of officers, omission and 
 malfeasance"; R. S., Hurd, 1909, pp. 786, 792. Sec. 105, taken in the text, is 
 the most severe one. 
 
 In this Philippine case the offender seems to have been prosecuted under the 
 most severe section of the Spanish Penal Code applicable to his case. His offense 
 seems to have been a compound crime, embezzlement and falsification of a public 
 document by a public official; see United States v. Llames, 1 P. I., 130. In Cooke 
 v. People, 239 111., 9, the offense of padding the payroll by a public official was 
 reached under the head of conspiracy. It is only fair to assume that the Philippine 
 authorities had a good reason for proceeding against this delinquent for the higher 
 offense. A charge of robbing a mail car against a man of the same name and 
 another is reported. See United States v. Weems and Capurro, 7 P. I., 24. 
 
CRUEL AND UNUSUAL PUNISHMENT 437 
 
 is substantially the same as the perpetual political dis- 
 qualification of the Spanish Penal Code. 26 
 
 As to the section of the Spanish Penal Code touching 
 civil interdiction, the Spanish civil interdiction lasts only 
 while the prisoner is in jail. A prisoner in jail cannot 
 exercise the civil rights interdicted effectively, except, 
 perhaps, the one of conveying his own property by deed 
 inter vivos, which provision of the Spanish Penal Code 
 perhaps may be thought to be penal in its nature. In 
 Illinois conviction of forgery, an infamous crime, is cause 
 for divorce; divorce puts an end to marital authority; 
 abridges, and may destroy, parental authority. 27 As to 
 guardianship of person and property, any Illinois probate 
 or county court is allowed, if not required, to remove from, 
 or to refuse to appoint to, the office of guardian a person 
 convicted of forgery, even after he has served his sen- 
 tence. 28 
 
 26 R. S., Hurd, 1909, p. 811, Sec. 279. In Illinois a general pardon by the 
 governor does not remit the statutory disabilities consequent on conviction of 
 an infamous crime, unless the pardon says so in terms. The political disability 
 to hold office is prescribed by the constitution, Art. 4, Sec. 4; and see Art. 7, Sec. 7. 
 An attorney convicted of embezzling his client's money is, by statute, "forever 
 prohibited from practicing his profession in this state." R. S., Hurd, 1909, 
 p. 767, Sec. 79; People v. George, 186 111., 112; Foreman ». Baldwin, 24 111., 298, 
 306. In the Philippine Islands, as here, the disbarment of an attorney is not 
 considered a punishment in the legal sense. In re MacDougall, 3 P. I., 70. 
 
 » R. S., Hurd, 1909, p. 845, Sec. 41. 
 
 28 R. S., Hurd, 1909, p. 1223, Sees. 2, 3; p. 1227, Sec. 37. The Spanish dis- 
 qualification to participate in the family council while in jail amounts to no more 
 than a disability to act as joint guardian while in jail, the Spanish family council 
 being but a mode of guardianship. On the family council and its function in 
 Spain, France, and Germany, see Spanish Civil Code of 1889, Sees. 300-313; 
 French Civil Code, Sees. 405-409; German Civil Code, Sees. 1858-1881. 
 
 The exercise of political and civil rights necessarily is suspended while a prisoner 
 is in jail. This is an evil inseparable from imprisonment ; the Spanish law express- 
 ly defines the evil; Illinois law leaves the expression and enforcement of the evil 
 to the authorities in charge of the jails. See Bentham's Catalogue of "Negative 
 Evils, Inseparable from Imprisonment," Principles of Penal Law, Part 2 Book 2 
 Ch. 4. 
 
438 CONSTITUTIONAL LAW 
 
 As to the surveillance of the discharged prisoner pro- 
 vided for by the Spanish Penal Code, the same thing 
 exists in Illinois de facto, especially in Chicago, but it is 
 a sub-rosa, silent institution of the police, unrecognized 
 and unregulated by law, that operates arbitrarily, capri- 
 ciously and sometimes very oppressively and cruelly, if 
 the tales we hear about it are true. Probably it is only 
 a question of time when the state will have to adopt, for 
 its large cities at least, the Spanish or some other system 
 of legalized, regulated surveillance of discharged prisoners. 
 Surveillance of discharged prisoners is not necessarily an 
 additional punishment. "And the Lord set a mark upon 
 Cain," not as an additional punishment, but to protect 
 him, "lest any finding him should kill him." 29 
 
 It is true that the Illinois Supreme Court decided last 
 April in People v. Jennie Russell 30 that the disabilities 
 to vote, to hold office, and to serve as a juror, consequent 
 upon conviction of crime by virtue of the Illinois In- 
 famous Crimes Act, constitute punishment for the single 
 purpose of determining whether a person charged with 
 
 29 A law writer recently said: "The criminal jurisprudence of Spain is governed 
 by rules far more in consonance with the principles of equity and humanity than 
 that of any other country whose legal system has a similar origin." And "taken 
 as a whole, the criminal procedure of Spain, as framed and administered, is vastly 
 superior to that of any other country whose legal forms and institutions were 
 borrowed from the Civil Law." S. P. Scott, Esq., "Spanish Criminal Law Com- 
 pared With That Branch of Anglo-Saxon Jurisprudence," Annual Bulletin of 
 the Comparative Law Bureau of the American Bar Association, July, 1910, pp. 62, 
 75, 80, 65, 66. 
 
 30 245 111., 268. See comment on the case in 5 111. Law Rev., 108. The dissent- 
 ing opinion in the case says that the Illinois Infamous Crimes Act, construed as 
 inflicting punishment, and as applicable to petit larceny, is unconstitutional be- 
 cause inflicting a disproportionate punishment. The majority opinion in Weems 
 v. United States lends a support to that view. But see Kelly v. People, 115 111., 583. 
 That constitutional point is available even when petit larceny is prosecuted by 
 indictment as required by the majority ruling in People v. Russell. The eighth 
 amendment has no direct application to a state, but it may apply to a state 
 indirectly through the medium of the due process of law enjoined on a state by 
 the fourteenth amendment. 
 
CRUEL AND UNUSUAL PUNISHMENT 439 
 
 crime must be prosecuted by way of indictment. That 
 decision, however, is of only local importance on a point 
 of local practice and procedure, and is of no persuasive 
 force whatever on the subject in hand, in view of Hawker 
 v. New York. 31 
 
 White, J., says he does not think the fine and imprison- 
 ment part of the sections of the Spanish Penal Code in 
 question, including the chain at the ankle hanging from 
 the wrists, 32 so. far disproportionate to the offense of falsi- 
 fying a public document by a public official to steal money 
 from the public treasury, as to justify a judicial declara- 
 tion of unconstitutionality, when the accessories are 
 eliminated as a separate punishment, 33 even assuming 
 that the prohibition of cruel and unusual punishment 
 means, when applied to restrain Congress, that Con- 
 gress must authorize the infliction of punishments which 
 the Supreme Court is likely to consider "graduated and 
 
 31 170 U. S., 189. 
 
 32 White, J., says, 217 U. S., on p. 412: "J do not assume that the mere fact that 
 a chain is to be carried by the prisoner causes the punishment to be repugnant 
 to the Bill of Rights, since while the chain may be irksome, it is evidently not 
 intended to prevent the performance of the penalty of hard labor. Such a pro- 
 vision may well be part of the ordinary prison discipline, particularly in com- 
 munities where the jails are insecure, and it may be a precaution applied, as it 
 is commonly applied in this country, as a means of preventing the escape of 
 prisoners, for instance, where the sentence imposed is to work on the roads or 
 other work where escape might be likely." But in this country the chain hangs 
 from a ball instead of from the wrists. 
 
 The thirteenth amendment, substantially Article 6 of the Ordinance of 1787, 
 appears to recognize slavery as a mode of punishment, unless the clause, "except 
 as a punishment for crime," can be restrained to the last antecedent, i. c, "in- 
 voluntary servitude." Can a person be sold into slavery as a punishment for 
 crime? Or have we adopted the Roman-law notion, servus poenae, slave of 
 the punishment, as when a Roman citizen was condemned to work in the mines 
 or to fight wild beasts in the arena. 2 Justinian, Institutes, 12, 3. Justinian 
 abolished the notion. Novel 22, Ch. 8. See the paragraph next to the last in 
 the opinion of Gray, J., in Ex parte Wilson, 114 U. S., 417, 429. 
 
 33 White, J., held: "The accessory punishments are clearly separable from the 
 main punishment — imprisonment." 217 U. S., on p. 412. 
 
440 CONSTITUTIONAL LAW 
 
 proportioned to offense." White, J., says the majority 
 ignore the possible and probable practical difficulties in 
 the way of discovering stealing from the public treasury 
 by its custodians by the method and device of padded 
 pay-rolls, and the possible and probable practical necessity 
 of making an example of public officials caught in that 
 kind of official delinquency. 34 
 
 The majority opinion employs the sounding and swell- 
 ing vocabulary, i. e., "men of action,!' "obsolete," 
 "progressive," "humane justice," "public opinion," 
 of the so-called "progressive jurisprudence," to convert a 
 power to declare the law of the Constitution into a power 
 to make it, thus disclosing the cloven hoof of the "pro- 
 gressive" system so far as it touches the courts. But, as 
 stated, the opinion delivered by McKenna, J., as the opin- 
 ion of the Supreme Court, is the opinion of only four 
 Justices. Not until five Justices subscribe to it can the 
 eighth amendment be revised so as to read like the Illi- 
 nois Constitutions of 1818 and 1848 : 
 
 ' 'All penalties shall be proportional to the nature of the offense ; 
 the true design of all punishment being to reform, not to exterminate 
 mankind " 35 
 
 34 White, J., said: "The duty of defining and punishing crime has never in any 
 civilized country been exerted upon mere abstract considerations of the inherent 
 nature of the crime punished, but has always involved the most practical consider- 
 ation of the tendency at a particular time to commit certain crimes, of the diffi- 
 culty of repressing the same, and of how far it is necessary to impose stern reme- 
 dies to prevent the commission of such crimes." See like observations in Paley, 
 Moral Philosophy, Book 6, Ch. 9, and 4 Bl. Com., Ch. 1. 
 
 36 The phrase about reforming, and not exterminating, mankind, is in the 
 New Hampshire constitution of 1784, 217 U. S., on p. 394. Where did the New 
 Hampshire constitution-makers get it? Most of the New Hampshire phrases 
 are in Montesquieu, Spirit of Laws, Book 6, and in Blackstone, 4 Com., Ch. 1, 
 and Blackstone says on p. 17, last lines: "It is, it must be owned, much easier to 
 extirpate than to amend mankind." The phrase was struck out of the present 
 Illinois constitution of 1870 on motion of Mr. Medill, who said, "It seems to me 
 that this is wholly unnecessary. It sounds something in the nature of a stump 
 speech." The motion was carried without a dissenting speech or vote. 2 Debates 
 in Constitutional Convention of 1870, p. 1574. 
 
PETIT LARCENY 441 
 
 II 
 
 PETIT LARCENY AS AN INFAMOUS CRIME IN- 
 VOLVING INFAMOUS PUNISHMENT — COM- 
 MENT ON PEOPLE v. RUSSELL 3 
 
 In People v. Jennie Russell, 245 III, 268, decided 
 April 21, 1910, and reported in the Chicago Legal News 
 of April 30, 1910, Vol. 42, p. 303, Dunn, J., writing the 
 opinion, and Hand and Carter, JJ., filing a dissenting 
 opinion, the Supreme Court of Illinois declared the law 
 to be that, under existing legislation, the crime of petit 
 larceny can be prosecuted only by the mode of indictment 
 by a grand jury in the Circuit Court outside of Cook 
 County, and in the Criminal Court of Cook County. 
 This ruling overthrows the practice of presecuting petit 
 larceny by the mode of information in the County Courts 
 throughout the state and in the Chicago Municipal Court, 
 which practice has obtained at least since the taking 
 effect of the present County Court Act on July 1, 1874, 
 and since the establishment of the Chicago Municipal 
 Court under the Act in force July 1, 1905. The majority 
 opinion says: 
 
 "The jurisdiction so assumed and exercised without 
 question for many years cannot, when finally brought in 
 question, be recognized as a lawful jurisdiction in the 
 face of the plain terms of the law." 
 
 "The plain terms of the law" are now promulgated in 
 the form of (1) a new judicial interpretation of the Infam- 
 ous Crimes Act, passed August 1, 1827 (Laws, 1827, 124, 
 
 a [5 111. Law Rev., 108, June, 1910.] 
 
442 CONSTITUTIONAL LAW 
 
 158, sec. 162), in its present form Sec. 7 of Div. 2 of the 
 Criminal Code of 1874, as amended in 1899 (Jones & A., 
 Supp. to S. & C. Ann. Stat., p. 423), and (2) a reference 
 to p. 73 of People v. Kipley, 171 111., 44. 
 
 The new judicial interpretation of the Infamous Crimes 
 Act says that act prescribes punishment for the crimes 
 enumerated in it, one of the enumerated crimes being 
 "larceny," which includes, it is said, the crime of "petit 
 larceny," the punishment prescribed being disqualifi- 
 cation to hold office, to vote at an election, and to serve 
 as a juror, which punishment, it is said, is in addition 
 to the punishment prescribed in the Petit Larceny Act 
 of 1879, viz., speaking roughly, confinement in the county 
 jail not exceeding one year, and a fine not exceeding one 
 hundred dollars (1 S. & C. Ann. Stat., 2 ed., p. 1317). x 
 
 The judicial process by which "the plain terms of the 
 law" were discovered after lying concealed from the eyes 
 of the multitude for forty years, or eighty-three years 
 rather, is exceedingly simple. The attorney for the 
 People admitted that the Infamous Crimes Act pre- 
 scribes punishment for the crimes enumerated in it and 
 admitted the authority and application of p. 73 of People 
 v. Kipley, 171 111., 44; the Supreme Court accepted the 
 admissions, and made the admissions its rule of decision. 
 The majority opinion says: 
 
 "It is conceded in the argument of the prosecution, 
 and such concession accords with our view of the law, 
 
 1 The following is the text of the original Infamous Crimes Act of 1827. It 
 has come down through the years in the same form without any changes that are 
 material with reference to the above case comment: "Each and every person 
 who may hereafter be convicted of the crime of rape, kidnapping, wilful and 
 currupt perjury, or subornation of perjury, arson, burglary, robbery, sodomy or 
 the crime against nature, larceny, forgery, counterfeiting, or bigamy, shall be 
 deemed infamous, and shall forever thereafter be rendered incapable (1) of holding 
 any office of honor, trust, or profit, (2) of voting at any election, (3) of serving as 
 a juror, and (4) of giving testimony within this state." 
 
PETIT LARCENY 443 
 
 that if petit larceny is an infamous crime, under Sec. 7 
 of Div. 2 of the Criminal Code [as being included in the 
 contents of the word 'larceny'], the disqualifications im- 
 posed by that section constitute punishment additional 
 to fine and imprisonment, and that the offense cannot be 
 prosecuted by information" — this last clause of counsel's 
 admission resting on p. 73 of People v. Kipley, 171 111., 44. 
 
 This admission of counsel for the prosecution left 
 nothing open for discussion, except the question whether 
 the word "larceny" in the Infamous Crimes Act includes 
 the crime of petit larceny. The whole of the argument 
 at the bar appears to have been upon the single question 
 whether the crime of petit larceny is included in the 
 word "larceny," and hence is an infamous crime. The 
 whole of the division in the court was upon that question 
 alone, the majority opinion supporting the proposition 
 that the crime of petit larceny is included in the word 
 "larceny," and hence is an infamous crime, and the dis- 
 senting opinion denying that proposition. 
 
 The counsel for the prosecution put the case upon its 
 weakest point, viz., that the word "larceny" in the In- 
 famous Crimes Act does not include petit larceny, and 
 admitted away its strongest points, viz., (1) that the 
 Infamous Crimes Act does not prescribe punishment, 
 and (2) that petit larceny can be prosecuted by the mode 
 of information, regardless of whether it is an infamous 
 crime or not, and regardless of how it is punished, so long 
 as the punishment is not death or imprisonment in the 
 penitentiary. Let us consider these points. 
 
 First. Does the Infamous Crimes Act prescribe pun- 
 ishment? 
 
 The key to the error in the admission of the attorney for 
 the People that the Infamous Crimes Act prescribes 
 punishment for the crimes enumerated in it, is the ancient 
 perduring distinction between the two kinds of infamy 
 
444 CONSTITUTIONAL LAW 
 
 (i. e., infamis, of ill fame; the public disgrace, or loss of 
 character, consequent upon conviction of certain crimes), 
 viz., (1) that depending upon the nature of the crime, and 
 (2) that depending upon the nature of the punishment. 
 In Ex parte Wilson, 114 U. S., 417, it was decided that 
 the nature of the punishment, and not the nature of the 
 crime, is the test of an infamous crime, within the meaning 
 of the fifth amendment of the federal constitution, which 
 says: "No person shall be held to answer for a capital, or 
 otherwise infamous, crime, unless on presentment or 
 indictment of a grand jury." While this amendment ap- 
 plies only to the prosecution of crimes in the federal courts, 
 and has no application whatever to the prosecution of 
 crimes in state courts (Ohio v. Dollison, 194 U. S., 447; 
 Keith v. Henkleman, 173 111., 37, 143), yet the opinion 
 of Gray, J., in Ex parte Wilson is high authority on the 
 general question of the distinction between the two kinds 
 of infamy, which distinction is stated on p. 422 at the 
 beginning of the part of the opinion dealing with the test 
 of an infamous crime under the fifth amendment thus: 
 
 "Mr. William Eden (afterward Lord Auckland), in his 
 Principles of Penal Law, which passed through three 
 editions in England and at least one in Ireland within six 
 years before the Declaration of Independence, observed, 
 'There are two kinds of infamy: the one founded in the 
 opinions of the people respecting the mode of punishment ; 
 the other, in the construction of law respecting the future 
 credibility of the delinquent.' " And see the article 
 on Infamy and Infamous Crimes in 16 Am. & Eng. 
 Ency. of Law, 2 ed., 245. 
 
 The framers of the three several constitutions of Illi- 
 nois did not adopt the words of the fifth amendment of 
 the federal constitution in those sections wherein they 
 provided for the prosecution of crimes in Illinois courts 
 by the mode of indictment by a grand jury. The words 
 
PETIT LARCENY 445 
 
 "infamous crime" never were in those sections. See 
 Constitution of 1818, Art. 8, Sec. 10; Constitution of 
 1848, Art. 13, Sec. 10; Constitution of 1870, Art. 2, 
 Sec. 8. But they used the words "infamous crime" in 
 other parts of the several Illinois constitutions. 
 
 The Constitution of 1818 says in Art. 2, sec. 30: 
 "The General Assembly shall have full power to excude 
 from the privilege of electing, or being elected, any person 
 convicted of bribery, perjury, or any other infamous 
 crime." The Constitution of 1848 says in Art. 3, Sec. 31 : 
 "The General Assembly shall have full power to exclude 
 from the privilege of electing, or being elected, any person 
 convicted of bribery, perjury, or other infamous crime"; 
 and in Art. 6, Sec. 8: "The General Assembly shall have 
 full power to pass laws excluding from the right of suffrage 
 persons convicted of infamous crimes. ' ' The Constitution 
 of 1870 says in Art. 4, Sec. 4: "No person who has been, 
 or hereafter shall be, convicted of bribery, perjury, or 
 other infamous crime, nor any person who has been, or 
 may be, a collector or holder of public moneys who shall 
 not have accounted for and paid over, according to law, 
 all such moneys due from him, shall be eligible to the 
 General Assembly, or to any office of profit or trust in 
 this state"; and in Art. 7, Sec. 7: "The General Assembly 
 shall pass laws excluding from the right of suffrage persons 
 convicted of infamous crimes." 
 
 It is very plain that the test of an infamous crime within 
 the meaning of all these Illinois constitutional provisions 
 is the nature of the crime,, and not the nature of the 
 punishment, which latter is the test of an infamous crime 
 within the meaning of the fifth amendment of the federal 
 constitution. 
 
 The Illinois constitutional provisions had, and have, a 
 triple operation upon the legislature; first, as a mandate, 
 imposing upon the legislature a moral duty, at least, to 
 
446 CONSTITUTIONAL LAW 
 
 pass laws giving practical effect to them; second, as a limi- 
 tation forbidding the legislature to make crimes infamous 
 that cannot fairly be called infamous, under the test of 
 the nature of the crime, and as related to the question 
 of the fitness of a person to exercise the right to vote, and 
 the right to hold a public office of honor, trust, or profit; 
 third, the disqualification-for-office section of the Con- 
 stitution of 1870 (Art. 4, Sec. 4) is direct legislation taking 
 effect ex proprio vigore, leaving nothing for the legislature 
 to do but to enumerate the crimes that fairly may be 
 deemed infamous consistently with the end to be attained 
 by declaring them to be infamous. 
 
 The Infamous Crimes Act, in so far as the act dis- 
 qualifies persons convicted of the crimes enumerated in 
 it to hold office and to vote at elections, plainly was de- 
 signed to give effect to the Constitution of 1870; and, in 
 so far as the act disqualifies convicted persons to serve 
 as jurors, the act is mostly declaratory of the common 
 law. See 16 Am. & Eng. Ency. of Law, 2 Ed., 253, 
 n. 1 ; 17 id., 1118, and notes. Because of the great uncer- 
 tainty in respect of the specific crimes deemed infamous 
 by the common law under the test of the nature of the 
 crime (Holmes v. Holmes, 64 111., 294, 295, 296; 1 Green- 
 leaf, Evidence, 16 Ed., Sec. 373), it is not unusual for 
 legislatures to specifically enumerate them in order to 
 remove such uncertainty. The original Infamous Crimes 
 Act of 1827 prescribed a fourth disqualification, obsolete 
 since 1867, viz., to give testimony within this state, and, 
 in that respect, was but declaratory, for the most part, 
 of the common law. 
 
 The only authority cited in the majority opinion in 
 the case in hand to support the admission of counsel for 
 the prosecution that the Infamous Crimes Act prescribes 
 punishment for the crimes enumerated in it, is the case 
 of Cummings v. Missouri, 4 Wall., 277, which is cited as 
 
PETIT LARCENY 447 
 
 laying down the broad proposition that "the deprivation 
 of any civil right for past conduct is punishment for such 
 conduct." Cummings v. Missouri is a well-known, 
 historic case, commonly cited along with Ex parte Gar- 
 land, 4 Wall., 333, as the Test-Oath Cases. In the former 
 case, Missouri proscriptive legislation passed just after 
 the Civil War, forbidding men to engage in certain callings 
 in Missouri, such as preaching, practicing law or medicine, 
 and teaching, unless they first took an oath that they 
 had not in any way countenanced the Rebellion either 
 in thought, word, or deed, was declared unconstitutional, 
 as being repugnant to the clause of the federal constitution 
 (Art. 1, Sec. 10) saying that "No state shall . . . pass 
 any bill of attainder or ex post facto law"; and in the 
 latter case similar Congressional legislation was declared 
 unconstitutional, as being repugnant to the clause of 
 the federal constitution (Art. l,Sec. 9, cl. 3) saying that 
 "No bill of attainder or ex post facto law shall be passed." 
 In Hawker v. New York, 170 U. S., 189, a carefully 
 considered case that was twice argued, the Supreme Court 
 of the United States says that those cases do not lay down 
 the broad proposition for which Cummings v. Missouri is 
 cited in the majority opinion. In that case it was decided 
 that a New York statute saying that "any person who 
 . . . after conviction of a felony, shall attempt to 
 practice medicine . . . shall be guilty," etc., was a con- 
 stitutional exercise of the legislative power of the state, 
 as applied to a person convicted of felony seventeen years 
 before the passage of the statute who had practiced 
 medicine continuously and honorably all the time. The 
 opinion of Brewer, J., is, it is submitted, decisive that the 
 Illinois Infamous Crimes Act does not prescribe any 
 punishment for the crimes enumerated in it. The learned 
 Justice reviews a number of cases, and states the results 
 of them thus, on p. 200: 
 
448 CONSTITUTIONAL LAW 
 
 "The thought which runs through these cases, and 
 others of similar import which might be cited, is that 
 such legislation is not to be regarded as a mere imposition 
 of additional penalty, but as prescribing the qualifications 
 for the duties to be discharged and the position to be 
 filled, and naming what is deemed to be and what is in 
 fact appropriate evidence of such qualifications." 
 
 The rule of the common law disqualifying persons con- 
 victed of certain crimes to give testimony, and to serve 
 as jurors, never was regarded as a rule imposing punish- 
 ment. See Bartholomew v. The People, 104 111., 601, 
 607, and citations. The ruling in Foreman v. Baldwin, 
 24 111., 298, 306, in 1860, that, under the Constitution of 
 1848, a full pardon by the Governor could not remove 
 the disqualification to give testimony prescribed by the 
 Infamous Crimes Act, and that the legislature alone had 
 the power under that constitution to remove that dis- 
 qualification, would appear to be decisive of the propo- 
 sition that the Infamous Crimes Act does not prescribe 
 punishment. The Illinois ruling, it may be observed, is 
 a very exceptional one. See 1 Greenleaf, Evidence, Ed. 
 16, Sees. 377, 378; Am. & Eng. Ency of Law, Ed. 2, 250; 
 29 Cyc, 1566. 
 
 Striking from the roll the name of an attorney con- 
 victed of crime never was regarded as inflicting punish- 
 ment upon the attorney. See Ex parte Wall, 107 U. S., 
 265, 273; Hawker v. New York, 170 U. S., 189, 199; In 
 re Day, 181 Ill v 73, 86, 87, 95. In People v. George, 186 
 111., 122, it was decided that an attorney who had been 
 convicted of embezzlement could be disbarred, though he 
 had been given a full pardon by the Governor, and the 
 court pointed out on pp. 126, 127, that embezzlement is in- 
 cluded in the word "larceny" in the Infamous Crimes Act. 
 
 The impeachment sections of the several constitutions 
 of Illinois pointedly draw the distinction between legis- 
 
PETIT LARCENY 449 
 
 lation prescribing punishment for an offense, and 
 legislation prescribing disqualification to hold office 
 consequent upon conviction of an offense. See Con- 
 stitution of 1818, Art. 2, Sec. 23; of 1848, Art. 3, Sec. 28; 
 of 1870, Art. 4, Sec. 24. 
 
 No one has ever said that the clause of the Divorce 
 Act, making conviction of "felony or other infamous 
 crime" cause for divorce (2 S. & C. Ann. Stat., Ed. 2, 
 p. 1437), prescribed punishment, in the legal sense of 
 the word. 
 
 All this law but gives expression to the opinions and 
 habits of men ; few trust persons who have been convicted 
 of some sorts of crime. It may be barbarous; it certainly 
 is not Utopian; but it is a fact, a known ethical maxim 
 of mankind, that the law always has recognized and 
 enforced in various and different ways from time to time. 
 
 In People v. Kipley, 171 111., 44, on p. 73, it is inti- 
 mated, and perhaps decided, that the 35th section of the 
 Civil Service Act, disqualifying persons convicted of 
 violating the act to hold office for five years after the 
 date of conviction (compare Art. 4, Sec. 4 of the Consti- 
 tution of 1870), prescribes a punishment in addition to 
 the punishment of fine and imprisonment in the county 
 jail prescribed in the 34th section. It cannot be denied 
 that a statute disqualifying persons convicted of crime 
 to hold office may present a fair and often very difficult 
 question of construction, whether the statute is to be 
 deemed an exercise of legislative power to prescribe 
 punishment for crime, or of legislative power to prescribe 
 the qualifications to hold office. And it may be conceded 
 that the 35th section of the Civil Service Act is legislation 
 that, properly construed, prescribes a punishment in 
 addition to fine and county-jail imprisonment. 
 
 It is said in People v. Kipley, on p. 73: "Disqualification 
 to hold office, if inflicted as a punishment for crime, is 
 
450 CONSTITUTIONAL LAW 
 
 an infamous punishment." Ex parte Wilson, 114 U. S., 
 417, noticed above, is cited for that. The citation is 
 not an apt one in an Illinois court dealing with a crime 
 against Illinois. Ex parte Wilson arose, as above shown, 
 under the fifth amendment of the federal constitution. 
 It has never been held, so far as I know, by the Supreme 
 Court of the United States, since Miller, J., raised the 
 question in United States v. Waddell, 112 U. S., 76, 80, 
 that an act of Congress superadding disqualification to 
 hold office under the United States to conviction and 
 punishment for crime against the United States, makes 
 the crime an infamous one in point of punishment, and 
 hence capable of prosecution in the federal courts only 
 by indictment by a grand jury under the fifth amendment. 
 See Ex parte Wilson, 114 U. S., 417, 426, as explained in 
 Mackin v. United States, 117 U. S., 348, 352. The opin- 
 ion of Brewer, J., in Hawker v. New York, noticed above, 
 throws a light upon, and a difficulty into, the question 
 that were not before Miller, J., when he raised the ques- 
 tion in United States v. Waddell. Occasion for deciding 
 it cannot easily arise, because Ex parte Wilson checked 
 the then growing tendency to prosecute crimes against 
 the United States in the federal courts by information 
 instead of by indictment. See 114 U. S., on p. 425. 
 The Supreme Court of the United States evidently 
 regards the question as one of statutory construction 
 pure and simple, to be determined by the words and 
 object of each statute as it comes before the court. It 
 is plain that, in People v. Kipley (and see s. c. Kipley v. 
 Illinois, 170 U. S., 182), the determination, if it was 
 made, that the 35th section of the Civil Service Act 
 prescribes punishment in addition to the punishment of 
 fine and county- jail imprisonment prescribed in the 34th 
 section, could be only an irrelevant, immaterial deter- 
 mination; such determination could not affect the 
 
PETIT LARCENY 451 
 
 constitutionality of the 35th section one way or the other, 
 which was the only question before the court, if any 
 question touching that section was before the court, 
 inasmuch as the unconstitutionality of the 35th section 
 plainly could not affect the rest of the act, or lead to 
 a denial of the relief prayed in the petition for mandamus; 
 and the court expressly says that on p. 74, the whole 
 passage showing the court did not intend to decide any- 
 thing finally; besides, a determination that a statute 
 prescribing disqualification to hold office on conviction 
 of crime annexes an additional punishment, and hence 
 makes the crime an infamous one in point of punishment, 
 has no bearing whatever on the question of the mode of 
 prosecuting that crime by indictment or by information 
 in an Illinois court under the existing constitution and 
 statutes of Illinois as is more fully shown hereinafter. 
 
 As respects the question on which the case was made to 
 turn, viz., whether the crime of petit larceny is included 
 in the word "larceny" in the Infamous Crimes Act, and 
 hence is an infamous crime within the meaning of that 
 act, it seems very plain to me, at least, that the opinion 
 of the majority determines that question right. As that 
 opinion says, the point was ruled exactly in 1860 in 
 Foreman v. Baldwin, 24 111., 298, 306, opinion by Breese, 
 J. The dissenting opinion does not take up and deal 
 with that case, but ignores it completely. It seems that 
 the crime of petit larceny was differentiated from larceny, 
 for some purposes, at least, when the case was decided. 
 See R. S., 1845, pp. 161, 162, Sees. 62, 65. It is expressly 
 stated in Foreman v. Baldwin on p. 303 that the man 
 offered as a witness was convicted of "petit larceny." 
 But assuming that petit larceny was not differentiated 
 from larceny, for any purpose, until the act of June 28, 
 1867 (Laws 1867, Special Session, p. 37; the act uses the 
 words "petty larceny"), the point of the minority opinion 
 
452 CONSTITUTIONAL LAW 
 
 that the act of June 28, 1867, repealed the Infamous 
 Crimes Act by implication, to the extent of taking the 
 crime of petit larceny out of the contents of the word 
 "larceny," does not appear to me to be made out. In 
 Mackin v. United States, 117 U. S., 348, 351, Gray, J., 
 delivering judgment in a case touching a question of 
 infamous crime vel non under the fifth amendment, re- 
 peating a like observation in Ex parte Wilson, 114 U. S., 
 417, 427, said: "What punishment shall be considered 
 as infamous may be affected by the changes of public 
 opinion from one age to another." And so, no doubt, 
 what crimes shall be considered as infamous because of 
 their nature may be similarly affected. The amendment 
 of the Infamous Crimes Act in 1899, adding the proviso 
 "that the foregoing shall not apply to any person who 
 has been heretofore convicted and sentenced, or who may 
 be hereafter convicted and sentenced to the Illinois 
 Reformatory at Pontiac," must be taken, as it seems to 
 me, to be an expression of public opinion, by the legisla- 
 tive mouthpiece of public opinion, approving the doctrine 
 of Foreman v. Baldwin, except as modified by the amend- 
 ment. By the common law of England, petit larceny 
 was an infamous crime because of its nature. In Massa- 
 chusetts in 1844, petit larceny was held to be an infamous 
 crime because of its nature. The point has been ruled 
 the other way in many states. See 16 Am. & Eng. Ency. 
 of Law, 2d Ed., 246, note 4; Commonwealth v. Keith, 
 8 Met., 531, Shaw, C. J. 
 
 Second. Can petit larceny be prosecuted by the mode 
 of information in County Courts and in the Chicago 
 Municipal Court, regardless of whether it is an infamous 
 crime or not, and regardless of whether the Infamous 
 Crimes Act prescribes punishment or not, since petit 
 larceny is not punishable by death or by imprisonment 
 in the penitentiary? 
 
PETIT LARCENY 453 
 
 The view sanctioned by the majority opinion that a 
 crime punishable by fine and imprisonment in the county 
 jail, and also by some other additional tertium quid 
 mode of punishment, must be prosecuted, under existing 
 legislation, by indictment of a grand jury in the Circuit 
 Court outside of Cook County, and in the Criminal 
 Court of Cook County, is founded exclusively on p. 73 
 of People v. Kipley, 171 111., 44. The meaning, applica- 
 tion, and authority of p. 73 of People v. Kipley ought to 
 have been drawn in question before the court. It is there 
 said that it would be unconstitutional to prosecute a 
 violation of the Civil Service Act by information, because 
 the punishment is fine and county- jail imprisonment, 
 plus disqualification to hold office, for five years. It is 
 very evident that p. 73 of People v. Kipley rests on 
 law laid down by the Supreme Court of the United States 
 touching the mode of prosecuting crimes against the 
 United States in the federal courts under the fifth amend- 
 ment of the federal constitution, that is quite as foreign, 
 alien law, as Chinese law would be in Illinois courts, in 
 that it plainly can have no possible material or relevant 
 application whatever to the mode of prosecuting crimes 
 against Illinois, in Illinois courts, under the Constitu- 
 tion of Illinois. The infamy of crime against Illinois, 
 whether tested by the nature of the crime or by the 
 nature of the punishment, has no bearing whatever 
 under existing legislation, on the question of the mode of 
 prosecuting the crime by indictment or by information. 
 The Supreme Court of Illinois has declared over and over 
 again, since the taking effect of the present Constitution 
 in 1870, that, under existing legislation, where the punish- 
 ment is not death, it is the place of imprisonment alone, 
 i. e., in the penitentiary, that determines and necessitates 
 the mode of prosecution by indictment by a grand jury 
 in the Circuit Court outside of Cook County and in the 
 Criminal Court of Cook County. 
 
454 CONSTITUTIONAL LAW 
 
 It is difficult to see wherein the Supreme Court has 
 been in error in making this oft-repeated declaration of 
 the law. 2 The learned justice, Mr. Juster Magruder, who 
 wrote p. 73 of People v. Kipley, made this familiar, custo- 
 mary and traditional declaration of the law, as the organ 
 of the court, in the later case of Brewster v. People, 183 
 111., 143. The case of People v. Jennie Russell was not 
 one that required the court to alter, amend, or modify its 
 prior declarations of the law, or to extend p. 73 of People 
 v. Kipley to the crime of petit larceny, whether petit 
 larceny is an infamous crime or not, in any sense, and 
 whether the Infamous Crimes Act prescribes punishment 
 or not. 
 
 2 Article 2, Section 8, of the Constitution of 1870 says: "No person shall be held 
 to answer for a criminal offense, unless on indictment of the grand jury, except 
 in cases in which the punishment is by fine, or imprisonment otherwise than in the 
 penitentiary . Provided, that the grand jury may be abolished by law 
 
 in all cases." 
 
 If the legislature ever has exercised its power to abolish the grand jury in any 
 case, it has not exercised the power freely or frequently. But the complete, un- 
 restricted power of the legislature must be kept in mind in dealing with the 
 statutes. 
 
 Article 6, Section 12, of the Constitution of 1870 says: "The circuit courts shall 
 have original jurisdiction of all cases in law and equity;" and Article 6, Section 26, 
 says the Criminal Court of Cook County shall have "the jurisdiction of a circuit 
 court, in all cases of criminal and quasi criminal nature, arising in the County of 
 Cook;" and Article 6, Section 18, says that "county courts shall "be courts of 
 record," shall have original jurisdiction in certain specifically enumerated cases, 
 "and such other jurisdiction as may be provided by general law." 
 
 The applicable legislation carrying these constitutional provisions into effect 
 is as follows: Section 3 of Division 10 of the Criminal Code, in force July 1, 1874, 
 says that "all offenses cognizable in said courts [i. e., circuit courts and the Crimi- 
 nal Court of Cook County] shall be prosecuted by indictment." Hurd's R. S., 
 1909, p. 821. 
 
 The County Court Act, in force July 1, 1874, says that county courts "shall 
 have concurrent jurisdiction with circuit courts ." in all criminal offenses 
 
 and misdemeanors, where punishment is not imprisonment in the penitentiary or 
 death, all of which shall be cognizable at the law terms hereinafter mentioned"; 
 and Section 117 says that "all offenses cognizable in county courts shall be prose- 
 cuted by information." Hurd's R. S., 1909, p. 685, p. 690. 
 
 Sections 5 and 6 of division 2 of the Criminal Code, in force July 1, 1874, says: 
 "A felony is an offense punishable with death, or by imprisonment in the peni- 
 tentiary." "Every other offense is a misdemeanor." Hurd's R. S., 1909, p. 811. 
 
PETIT LARCENY 455 
 
 The mode of prosecuting crimes against Illinois is 
 completely subject to the practically unrestricted con- 
 trol of the legislature, and that body has full power to 
 reform or abolish both the indictment and the information 
 as it likes. If, as is said on p. 73 of People v. Kipley, "the 
 (Civil Service) Act seems to contemplate prosecution 
 by information for the violation of its provisions," then 
 it is to be observed that there is nothing in the Constitution 
 tion of the United States (Hurtado v. California, 110 
 U. S., 516), or in the constitution of the state, that forbids 
 the legislature to provide for the prosecution of any 
 crime against Illinois in Illinois courts by the mode of 
 information, unless it is the requirement in the state 
 constitution that all laws regulating the practice and 
 
 The Chicago Municipal Court Act of 1905, as amended in 1907, says in Section 
 2, "that said Municipal Court shall have jurisdiction in . all criminal 
 
 cases in which the punishment is by fine or imprisonment otherwise than in the 
 penitentiary, and all other criminal cases which the laws in force from time to 
 time may permit to be prosecuted otherwise than on indictment by a grand 
 jury"; and section 27 says "that all criminal cases in the Municipal Court in 
 which punishment is by fine or imprisonment otherwise than in the penitentiary 
 may be prosecuted by information." 
 
 If you apply to this legislation in pari materia the ordinary rules of English 
 grammar and of statutory construction, at what point precisely did the forty years 
 of error arise? The words of Section 117 of the County Court Act, supra, 
 "where punishment is not imprisonment in the penitentiary," — appear to leave 
 no room for construction. As "A" and "not — A" include everything, so "In the 
 Pen." and "not — In the Pen." include every form of punishment for crime, 
 leaving no tertium quid test of the mode of prosecuting crime in Illinois courts. 
 The case of punishment by death is expressly provided for. The words of the 
 constitution, supra, "cases in which the punishment is by . . . imprisonment 
 otherwise than in the penitentiary," appear to mean the same thing as applied 
 to petit larceny, as the words in Section 117 of the County Court Act, for 
 "otherwise than in the penitentiary" qualify only the last antecedent "imprison- 
 ment" and not the prior antecedent "punishment." But if they do not mean 
 the same thing, then Section 117 of the County Court Act must control anyway, 
 because the constitution expressly gives the legislature full, unrestricted power 
 to fix the mode of prosecuting crime in all cases. Due weight must be given to 
 this unrestricted power of legislation. 
 
 This view is set forth at the beginning of the minority opinion. The majority 
 cited p. 73 of People v. Kipley as being against it. The minority do not expressly 
 answer the citation. 
 
456 CONSTITUTIONAL LAW 
 
 procedure in the courts of the same class or grade must 
 be general and uniform — the practice and procedure 
 in the Chicago Municipal Court being taken out of the 
 scope of that requirement by the constitutional amend- 
 ment of 1905, if the amendment means what it says. 
 
 END OF VOLUME I 
 
APPENDIX 
 
APPENDIX 
 
 CONFLICT OF STATE LAWS AND THE FULL 
 FAITH AND CREDIT CLAUSE 3 
 
 Union Trust Co. v. Grossman (1918), 35 Sup. Ct. Rep. 
 147, 245 U. S., 412 (Holmes, J., writing the opinion), was 
 argued and decided in the lower federal courts, taken up 
 to the federal Supreme Court, and there argued and de- 
 cided, on the sub silentio usual local-law theory of the 
 conflict of laws as between the states, viz., that the full 
 faith and credit clause of the federal constitution, 1 and 
 the act of Congress passed in pursuance thereof, 2 impose 
 no judicial duty on the federal Supreme Court in the con- 
 flict of laws as between the states except the duty to 
 follow the decisions of the state courts or to declare general 
 jurisprudence under Swift v. Tyson (1842), 16 Pet., I. 3 
 
 a 13 111. Law Rev., 43, May, 1918. This comment appeared after the collection 
 of the preceding material. 
 
 'Art. 4, Sec. 1, clause 1: "Full faith and credit shall be given in each state 
 to the public acts, records, and judicial proceedings of ever other state. And 
 the Coneress may by general laws prescribe the manner in which such acts, records, 
 and proceedings shall be proved, and the effect thereof." 
 
 2 Now R. S. U.S., Sees. 905, 906. After prescribing the mode of proving the 
 public acts, records, and judicial proceedings cf one state in a sister state, the act 
 of Coneress (R. S., Sec. 905) prescribes their effect in another state as follows: 
 "And the said records and judicial proceedings, so authenticated, shall have 
 such faith and credit [i. e., effect] given to them in every court within the United 
 States as they have by law or usage in the courts of the state from which they 
 are taken." And see R. S., Sec. 906, last sentence. 
 
 3 A decision of the federal Supreme Court in the conflict of laws like the one 
 in hand is classified under what is commonly called "commercial law or general 
 jurisprudence " under Swift v. Tyson. But that phrase does not alter the fact 
 that there are only two sovereign sources of law in this country, viz., the state 
 and the United States. Every rule of law must flow from one or the other of 
 these two sovereign sources. The anomaly of commercial law or general juris- 
 
iv APPENDIX 
 
 Does that sub silentio local-law theory of the conflict of 
 laws as between the states rest upon a sound view of the 
 federal duty of hospitality enjoined upon each state to- 
 wards causes of action acquired under the local law of a 
 sister state by the full faith and credit clause and act of 
 Congress? The case cited illustrates the matter concretely. 
 While Hiram Grosman and wife, domiciled in Texas, 
 were in Illinois only temporarily, the wife gave to the 
 Union Trust Company her continuing guaranty of her 
 husband's note. The trust company sued her in a federal 
 district court in Texas, recovered judgment, which was 
 reversed by the circuit court of appeals, and this reversal 
 was affirmed by the federal Supreme Court on certiorari. 
 The court decided that the wife's guaranty was void by 
 the local law of Texas (lex domicilii) , for want of capacity 
 in the wife to make it, because the local law of Texas has 
 not yet gone so far as to enable a married woman to bind 
 herself or her separate estate to secure her husband's debts. 
 The court assumed, but did not expressly find, that the 
 local law of Illinois (lex loci contractus) has gone that far, 
 at least in the case of married women domiciled in Illinois. 
 The court's assumption is in accord with the fact, for Sec. 6 
 of the Illinois Husband and Wife Act of 1874 so declares. 
 The court suggests that possibly an Illinois court might 
 have held the wife's guaranty void if the suit had been in 
 an Illinois court. On this point the opinion says: 
 
 prudence under Swift v. Tyson is that it is supposed to flow from all the states 
 speaking with one voice thorugh the federal Supreme Court, but binds federal 
 judges only. It does not bind state judges, nor does it bind the people of any 
 state. No man can conduct any of his affairs under it and agreeably to it, unless 
 he can forecast with certainty that litigation, if and when it comes, will come in 
 some federal court and not in any state court. If the legislature of any state 
 declares a rule different from a rule of commercial law or general jurisprudence 
 under Swift v. Tyson, then thereafter that state legislative rule binds federal 
 judges the same as state judges and the people of the state. See the dissenting 
 opinions of Holmes, J., and Pitney, J., in the admiralty case of Southern Pacific 
 Co. v. Jensen (1917), 244 U. S., 200, 222, 249, 250. 
 
CONFLICT OF LAWS, FULL FAITH AND CREDIT v 
 
 "The contract being a continuing one of uncertain duration, the 
 plaintiff had notice that, in case of a breach, it probably might 
 have to resort to the defendant's domicil for a remedy. In such 
 case very possibly an Illinois court might decide that a woman 
 could not lay hold of a temporary absence from her domicil to 
 create remedies against her in that domicil that the law there did 
 not allow her to create, and therefore that the contract was void." 
 
 It seems clear, however, that an Illinois court, and any 
 court outside of Illinois called upon with all materials 
 before it to find the local law of Illinois as a matter of fact, 
 would have to say that the wife's guaranty was valid 
 under the local law of Illinois, though she was domiciled 
 in Texas and in Illinois only temporarily when she gave it. 
 This is not because of any decision of the Illinois Supreme 
 Court construing Sec. 6 of the Illinois Husband and Wife 
 Act of 1874, extending it to married women in Illinois 
 only temporarily, but domiciled in another state, but 
 because of a decision of the Illinois Supreme Court in the 
 conflict of laws declaring broadly that 
 
 'As between the law of the place where a contract is made and 
 the law of the place where the married woman is domiciled, her 
 capacity to make a contract is governed by the former and not the 
 latter." Forsyth v. Barnes (1907), 228 111., 326. 4 
 
 4 In that case the rule was applied to a judgment note made in Ohio by a 
 married woman domiciled in Illinois while in Ohio only temporarily. Her 
 domicil in Illinois was presumed from the fact she was sued in Illinois. The 
 judgment note was valid by the local law of Illinois (lex domicilii), but the court 
 found it was invalid by the local law of Ohio (lex loci contractus), on a presump- 
 tion Lhat the English common law concerning married women was in force in 
 Ohio when the note was given. In Wilson v. Cook (1912), 256 111., 460, followed 
 in Hobbs v. Hobbs (1917), 277 111., 163, the Illinois Supreme Court decided that 
 the Illinois statute forbidding parties divorced by an Illinois court to marry again 
 within one year after the decree, and declaring such marriages void, invalidates in 
 Illinois marriages without the state within the year as against parties to the 
 maniage who come into Illinois and try to maintain there the relation of husband 
 and wife. The decision was put on the ground that the sta.ute declared the 
 comity of the state towards such marriages without the state when the parties 
 thereto try to maintain the relation of husband and wife in Illinois; and not on 
 the ground that the lex domicilii determines capacity to marry. The decision is 
 federally correct. The full faith and credit clause and act of Congress do not 
 compel a state against its will to allow privileges and immunities acquired in 
 
vi APPENDIX 
 
 Without deciding whether the local law of Illinois (lex 
 loci contractus) or the local law of Texas (lex domicilii) 
 determined the married woman's capacity to make the 
 contract, and assuming that the local law of Illinois (lex 
 loci contractus) determined her capacity, and hence that 
 the plaintiff had acquired a cause of action under the local 
 law of Illinois, the court decided that Texas courts, state 
 or federal, were justified in refusing to enforce it because its 
 enforcement in Texas against a married woman domiciled 
 there is inconsistent with the policy of the local law of 
 Texas denying the capacity of married women domiciled in 
 Texas to bind themselves or their separate estates for their 
 husband's debts. The opinion says: 
 
 "But when the suit is brought in a court of the domicil there is 
 no room for doubt. It is extravagant to suppose that the courts 
 of that place will help a married woman to make her property 
 there liable in circumstances in which the local law says that it 
 shall be free, simply by stepping across a state line long enough to 
 contract." 
 
 another state under its local laws to be exercised and enjoyed within its limits. 
 The privileges and immunities clause (Art. 4, Sec. 2) covers that, requiring each 
 state to allow the citizens of every other state to exercise and enjoy within its 
 limits only those privileges and immunities which the local law of the state allows 
 its own citizens to exercise and enjoy. The federal constitution does not grant 
 and secure any federal right to carry the local law of one state into another state 
 and live under it there. "While in Rome you musL do as the Romans do." The 
 relation of husband and wife, or master and slave, to go back to ante-bellum days, 
 if lawfully entered into in one state under the local law of that state, cannot 
 be carried into another sotte and exercised and enjoyed there against the will of 
 the latter state. If the local law of a state allows a man to have as many wives 
 as he can get, the man who takes advantage of such local law in the state where 
 it is in force has no federal right to carry his harem into another state and maintain 
 it there against the state's will. If the local law of a state allows an uncle and niece 
 to marry, then uncles and nieces who take advantage of such local law in the state 
 where it is in force have no federal right to go into another state and exercise and 
 enjoy the relation of husband and wife there against the will of the state. The 
 Fourteenth Amehdment does not alter this law; and the Illinois ruling to that 
 effect in Hobbs v. Hobbs, supra, is correct. But if the relation of husband and 
 wife lawfully exists in one state under its local law, and B there alienates the 
 wife's affections, the husband has a federal right to sue B, in another state, and 
 the latter cannot refuse to entertain the suit, because by its own local law the 
 plaintiff was not a husband and had no wife whose affections could be alienated. 
 The lex fori concerning husband and wife has nothing to do with it. 
 
CONFLICT OF LAWS, FULL FAITH AND CREDIT vii 
 
 That puts the decision on the familiar judicial rule in 
 the conflict of laws saying that a cause of action acquired 
 under the local law of a sister state will not be enforced by 
 another state when its enforcement there is inconsistent 
 with the policy of the local law of such other state asked to 
 enforce it: Dicey, "Conflict of Laws," ed. 2, p. 34, General 
 Principle II (B); Pope v, Hanke (1894), 155 111., 617; 
 Nonotuck Silk Co. v. Adams Ex. Co. (1912), 256 111., 66. 
 
 The court stated the question before it thus: "The main 
 question is which law is to prevail?" The decision made 
 the local law of Texas prevail. It is important to notice 
 just how the local law of Texas prevailed and exactly what 
 part of it prevailed. 
 
 The local law of Texas did not prevail through the 
 medium of an application of any rule for the selection of 
 one of two or more conflicting local state laws. The court 
 expressly declined to select and apply the local law of 
 Texas (lex domicilii) rather than the local law of Illinois 
 (lex loci contractus) to determine the capacity of the 
 married woman to make the contract. If the court had 
 selected and applied the local law of Texas (lex domicilii) 
 to determine her capacity to make the contract, that would 
 have ended the case, because by that law she had no 
 capacity to make the contract; hence the contract was void ; 
 and hence the plaintiff had no cause of action at all that it 
 could enforce anywhere. And there would have been no 
 occasion for the application of the judicial rule in the con- 
 flict of laws that the court did apply to decide the case, viz., 
 a cause of action acquired under the local law of a sister 
 state will not be enforced by another state when its enforce- 
 ment there is inconsistent with the policy of the local law 
 of such other state asked to enforce it. 
 
 The court did not decide that the lex domicilii and not the 
 lex loci contractus determined the married woman's capa- 
 
viii APPENDIX 
 
 city to make the contract. The court avoided that question 
 by assuming for the purpose of disposing of the case that 
 the lex loci contractus determined her capacity; and hence 
 that the plaintiff had acquired a cause of action under the 
 local law of Illinois. Under the legal theory under which 
 the case was decided the only part of the local law of 
 Texas that prevailed was the judicial rule in the conflict 
 of laws saying Texas will not enforce a cause of action ac- 
 quired under the local law of a sister state when its enforce- 
 ment in Texas is inconsistent with the policy of the local 
 law of Texas; and it prevailed in the Texas federal court 
 as general jurisprudence under Swift v. Tyson. That is a 
 judicial rule in the conflict of laws declaring the comity or 
 hospitality of Texas towards causes of action acquired under 
 the local law of a sister state and refusing to enforce them 
 in Texas. It is a rule of decision, not of the merits of the 
 controversy between the parties, but of the question of 
 the state's comity or hospitality: Converse v. Hamilton 
 (1912), 224 U. S., 243, 261; Christmas v. Russell (1886), 5 
 Wall., 290. This instant decision resulting from that rule 
 is not res judicata of the merits of the controversy between 
 the parties because the matter adjudged was not the merits 
 of the controversy but the comity or hospitality of the 
 state of Texas, refusing to let the controversy into the 
 state for fear it would disturb too much the peace and 
 quiet of Texas law denying to married women domiciled 
 in Texas capacity to bind themselves or their separate 
 estates in Texas to secure their husband's debts. Under 
 the legal theory on which the case was decided, and on 
 principle, this judgment cannot be entitled to full faith 
 and credit in any other state ; and any local law or usage in 
 Texas attempting to make the judgment res judicata in 
 Texas ought to be held wanting in due process of law 
 under the Fourteenth Amendment as condemning a party 
 
IX 
 
 CONFLICT OF LAWS, FULL FAITH AND CREDIT 
 
 without a hearing when the party has a cause of action 
 acquired under the local law of a sister state. 5 
 
 The plaintiff did not rely on the full faith and credit 
 clause and act of Congress, and the case was disposed of 
 as if they had no application and did not exist. Let us 
 bring them in and test this decision by them. Can the 
 decision stand the test? The question may be stated 
 broadly thus: Can a state refuse to enforce a cause of action 
 acquired under the local law of a sister state because its 
 enforcement there is inconsistent with the policy of its 
 own local law, without violating the federal duty imposed 
 upon each state by the full faith and credit clause and act 
 of Congress? On authority the answer is, No. 
 
 It is decided, that a state asked to enforce a judgment of 
 a sister state rendered on a civil cause of action cannot in- 
 quire into the local law of the state under which the original 
 cause of action arose, and refuse to enforce the judgment 
 because such local law under which the original cause of 
 action arose is inconsistent with the policy of the local 
 law of the state asked to enforce the judgment: Fauntleroy 
 w.Lum (1908), 210 U.S., 230. 6 
 
 5 The case was in a federal district court in Texas. A state legislative ace 
 cannot prescribe the jurisdiction of a federal court (Barrow Steamship Co. v. 
 Kane [1898], 170 U. S., 100), and, of course, a state judicial rule cannot do it. 
 The federal district court renderea judgment for the plaintiff on the merits, which 
 was reversed and the case remanded. Under the remanding order, presumably 
 the federal district court will dismiss the suit, not for want of jurisdiction, but 
 for want of Texas comity or hospitality to enforce the cause of action, unless 
 the federal district court interprets the opinion of the federal Supreme Court as 
 deciding that the lex domicilii determines the married woman's capacity to make 
 the contract, when judgment on the merits should be rendered for the defendant. 
 But, as above shown, that is not a permissible interpretation of the opinion of 
 the federal Supreme Court. Under decisions hereinafter cited, if the plaintiff 
 hereafter should sue the married woman in Illinois or any state, other than Texas 
 and recover judgment, state and federal courts in Texas could not refuse to 
 enforce such judgment without violating the full faith and credit clause and act of 
 Congress. Under the remanaing order I suppose the plaintiff has a right to 
 reconstruct its case on the federal foundation of full faith and credit. 
 
 6 In that case a Missouri court inadvertently rendered judgment on a contract 
 made in Mississippi, plainly void under the gambling laws of Mississippi; it was a 
 
x APPENDIX 
 
 It is decided, that the full faith and credit clause and act 
 of Congress extend to causes of action acquired under the 
 statute law of a sister state the same as to judgments of a 
 sister state: C. & A. R. Co. v. Wiggins Ferry Co. (1887), 
 119 U. S., 615; Pa. Fire Ins. Co. v. Gold Issue M. & M. Co. 
 (1917), 243 U. S., 93, and cases cited on p. 97. 
 
 It is decided that the refusal of a state to enforce a cause 
 of action acquired under the statute law of a sister state 
 because its enforcement is inconsistent with the policy of 
 the local law of the state asked to enforce it violates the 
 full faith and credit clause and act of Congress. State- 
 ments to the contrary in Finney v. Guy (1903), 189 U. S., 
 335, 346, and Allen v. Alleghany Co. (1905), 196 U. S., 458, 
 466, and perhaps in other cases, must be regarded as obiter 
 and overruled: Converse v. Hamilton (1912), 224 U. S., 
 243. 7 
 
 Mississippi court that was asked to enforce the Missouri judgment. The Missis- 
 sippi court inquired into the original cause of action and rendered judgment for 
 the defendant, which was reversed. 
 
 7 A Minnesota receiver of a Minnesota corporation sued in a Wisconsin court 
 to enforce the defendant's liability as a stockholder in the Minnesota corpora- 
 tion arising under Minnesota statutes. The Wisconsin court, conceding the 
 plaintiff had a cause of action under the Minnesota statutes, dismissed the suit 
 because the enforcement of the cause of action in Wisconsin is inconsistent with 
 the local law of Wisconsin concerning the liability of stockholders in Wisconsin 
 corporations. On writ of error under the full faith and credit clause and act of 
 Congress the Wisconsin court was reversed. The court by Van Devanter, J., said : 
 
 "What the law of Wisconsin may be respecting the relative rights and liabilities 
 of creditors and stockholders of corporations of its creation, and the mode and 
 means of enforcing them, is apart from the question under consideration. 
 
 "Besides, it is not questioned that the Wisconsin court in which the receiver 
 sought to enforce the causes of action with which he had become invested under 
 the [Minnesota] laws and proceedings relied upon, was possessed of jurisdiction 
 which was fully adequate to the occasion. His right to resort to that court was 
 not denied by reason of any jurisdictional impediment, but because the Supreme 
 Court of the state was of opinion that as to such causes of action, the courts of 
 that state 'could, if they chose, close their doors and refuse to entertain the same.' 
 
 "In these circumstances we think the conclusion is unavoidable that the laws 
 of Minnesota and the judicial proceedings in that state, upon which the receiver's 
 title, authority, and right to relief were grounded, and by which the stockholders 
 were bound, were not accorded that faith and credit to which they were entitled 
 under the constitution and laws of the United States." 
 
CONFLICT OF LAWS, FULL FAITH AND CREDIT xi 
 
 In the case in hand, as above shown, the court assumed 
 the plaintiff had a cause of action acquired under the local 
 law of Illinois. That Illinois local law was statute law. 
 Hence, on authority, the decision that state or federal 
 courts in Texas were justified in refusing to enforce it 
 because its enforcement in Texas is inconsistent with the 
 policy of the local law of Texas cannot stand the test of the 
 full faith and credit clause and act of Congress. Under that 
 test the local law of Texas concerning the capacity of 
 married women to contract had nothing to do with the 
 case; the local law or usage of Illinois governed. 
 
 It is decided that a local state legislative rule of comity 
 or hospitality, the same as a local state judicial rule, refus- 
 ing to enforce a cause of action acquired under the local 
 law of a sister state, violates the full faith and credit clause 
 and act of Congress and is void: Christmas v. Russell 
 (1866), 5 Wall., 290. s 
 
 Reference here must be made to an idea recently intro- 
 duced and applied by the federal Supreme Court. That 
 
 8 That was a case in a Mississippi federal court to enforce a Kentucky judg- 
 ment against a resident of Mississippi. The defendant relied on a Mississippi 
 statute, saying no action shall be maintained in Mississippi on a judgment of 
 another state against a person who was a resident of Mississippi at the time of 
 the commencement of the action, if the action was barred by any statute of limi- 
 tations of Mississippi. The court declared the statute was not a statute of 
 limitations "in any sense known to the law"- and hence it could not be a statute 
 prescribing a rule of decision of the merits. If the statute prescribed a rule of 
 jurisdiction for Mississippi courts, it could not affect the jurisdiction of the Missis- 
 sippi federal courts in which the suit was filed: Barrow Steamship Co. zj. Kane 
 (1898), 170 U. S., 100. The court evidently classified the Mississippi statute as 
 prescribing a rule of comity aimed at the cause of action as arising in another 
 state. The statute was held repugnant to the full faith and credit clause and act 
 of Congress. The defendant also relied on the judicial rule of comity applied in 
 Hilton ii. Guyot (1895), 159 U. S., 113, to a French judgment, which says a court 
 of one state may refuse to enforce a judgment of a sister state if the court of the 
 state asked to enforce it finds the judgment was obtained by fraud of the party, 
 though the local law of the state where Lhe judgment was rendered says the 
 judgment cannot be re-examined there for fraud. The court held this judicial 
 rule of comity repugnant to the full faith and credit clause and act of Congress. 
 
xii APPENDIX 
 
 idea seems to be that a state may disable itself to perform 
 its federal duty of full faith and credit if the state does it 
 by a legislative act prescribing a "rule of jurisdiction" and 
 not a "rule of decision" for its courts. 
 
 In Anglo-American Provision Co. v. Davis Provision 
 Co. (1903), 191 U. S., 373, one Illinois corporation sued 
 another Illinois corporation in a New York court on 
 an Illinois judgment for money. The suit was dismissed 
 by the New York court because of a New York statute 
 that allowed an action by one foreign corporation against 
 another foreign corporation only when the cause of action 
 arises in New York. On writ of error the federal Supreme 
 Court affirmed the dismissal, holding the New York 
 statute did not violate the state's duty of full faith and 
 credit because it prescribed a rule of jurisdiction and not a 
 rule of decision; and the federal constitution does not 
 require a state to provide a court jurisdictionally able to 
 perform the state's federal duty of full faith and credit. 
 The court distinguished Christmas v. Russell, supra, on 
 the ground that the Mississippi statute held federally void 
 in that case prescribed a rule of decision. See notes 8, 9, 
 10, and 5. In Fauntleroy v. Lum (1908), 210 U. S., 230, the 
 suit was in a Mississippi court to enforce a Missouri judg- 
 ment for money. Applying a Mississippi statute saying 
 gambling contracts shall not be enforced by any court of 
 Mississippi, the Mississippi court went below the Missouri 
 judgment to the original cause of action, found that it 
 arose on a void gambling contract, and rendered judgment 
 on the merits for the defendant. The federal Supreme 
 Court reversed the decision, holding that the Mississippi 
 statute as applied by the Mississippi court prescribed a 
 rule of decision different from the one prescribed by the 
 full faith and credit clause and act of Congress, and hence 
 was unconstitutional and void. The court held Anglo- 
 American Provision Co. v. Davis Provision Co., supra, 
 
CONFLICT OF LAWS, FULL FAITH AND CREDIT xiii 
 
 inapplicable, because the New York statute in that case 
 prescribed a rule of jurisdiction. The court concedes 
 the distinction between a rule of jurisdiction and a rule of 
 decision is a thin distinction when employed as a test of 
 federal constitutionality under the full faith and credit 
 clause. Chambers v. B. & O. R. Co. (1907), 207 U. S., 
 142, seems apposite in this connection as it was used to 
 support two recent Illinois decisions to be next cited. In 
 that case a widow whose husband, a citizen of Pennsyl- 
 vania, had been killed in Pennsylvania, sued in a court of 
 Ohio, to enforce a cause of action acquired under the 
 Pennsylvania death statute. The Ohio court dismissed 
 the suit because of a statute of Ohio saying that no action 
 shall be brought in Ohio courts under the death statute of 
 another state except where the person killed was a citizen 
 of Ohio. The Ohio statute was challenged only for 
 repugnancy to the privileges and immunities clause of the 
 federal Constitution (Art. 4, Sec. 2, clause 2). The federal 
 Supreme Court decided the Ohio statute did not encounter 
 that clause. The court also said the Ohio statute pre- 
 scribed a rule of jurisdiction. Of course the case is not an 
 authority that the Ohio statute does not encounter the full 
 faith and credit clause and act of Congress, because no 
 such point was raised at the bar or considered by the court. 
 In Daugherty v. American McKenna Process Co. (1912), 
 255 111., 369, a suit to enforce a cause of action acquired 
 under the death statute of New Jersey was dismissed be- 
 cause of a recent amendment of the Illinois death statute 
 saying, "No action shall be brought in this state to recover 
 damages for death occurring outside of this state." The 
 statute was held to prescribe a rule of jurisdiction not 
 violative of the state's duty of full faith and credit. In 
 Walton v. Pryor (1917), 276 111., 560, the same statute was 
 extended and applied to dismiss a suit for damages for 
 death under the Federal Employers' Liability Act where 
 
xiv APPENDIX 
 
 the death occurred in Missouri; and as so extended and 
 applied to a cause of action arising under federal law in a 
 sister state the statute was held to be federally constitu- 
 tional, because prescribing a rule of jurisdiction. 
 
 One way to answer a thin distinction is by another 
 distinction equally thin, but more correct in point of appli- 
 cation. The state statutes sustained as federally constitu- 
 tional in the foregoing cases did not prescribe rules of 
 jurisdiction but rules of decision, not of the merits of con- 
 troversies, but of the question of the comity or hospitality 
 of the state towards the enforcement of causes of action 
 acquired under the local law of a sister state ; or, as in the 
 Illinois case of Walton v. Pryor, under federal law in a 
 sister state. The state statutes in the cases cited are 
 federally unconstitutional because prescribing rules of 
 state comity or hospitality repugnant to the federal duty 
 enjoined upon each state by the full faith and credit clause 
 and act of Congress. 9 
 
 9 Comity, as used in the conflict of laws, is not the comity of the courts, but of 
 the state or nation. It is one of the many anomalies of our judicial power inher- 
 ited from England that it extends to declaring such comity. See Hilton v. Guyot 
 (1895), 159 U. S., 113, 164, 165, 166; but this judicial power does not exclude the 
 legislative power to declare the comity of the state or nation. 
 
 As respects the comity of the United States towards the enforcement of rights 
 acquired under the laws of foreign countries, is it true that the power to declare 
 the comity of the United Slates towards such rights is reserved to the states to be 
 exercised by their courts and legislatures subject to no federal supervision or 
 control except under the grant of the treaty-making power? It seems to be so 
 supposed, and presumably the judicial rule of comity declared and applied in 
 Hilton v. Guyot towards the enforcement of a French judgment in a case in a 
 federal court between a citizen of France and citizens of the United States and 
 New York would be classified as general jurisprudence under Swift v. Tyson, 
 binding only federal judges. But it does not seem any more difficult to find a 
 delegation of the power to the United States by implication from several grants 
 of power to the United States and the prohibitions on the states, taken together, 
 than it was to find an implied delegation of power to Congress to incorporate a 
 .bank; to make paper money legal tender, or to exclude and deport aliens. It is 
 fairly possible to say the power is a federal judicial power lodeed in the federal 
 courts, even if it is thoueht not fairly possible to say the power is a legislative 
 power lodeed in Congress. State judicial and legislative power, to declare the 
 comity or policy of the nation towards foreign countries, seems a very peculiar 
 anomaly under the federal constitution. 
 
CONFLICT OF LAWS, FULL FAITH AND CREDIT xv 
 
 But it makes no difference whatever, as related to their 
 federal constitutionality under the full faith and credit 
 clause, whether the state statutes in the cases cited pre- 
 scribed rules of jurisdiction or rules of decision, whether 
 on the merits or on the comity or hospitality of the state. 
 Any rule of jurisdiction may be classified as a rule of deci- 
 sion, because a court always has jurisdiction to determine 
 its own jurisdiction and a rule of jurisdiction is but a rule 
 for the decision of that question. There is no process, 
 legislative, executive, or judicial, and no scheme for the 
 classification of legal rules, by which a state can make the 
 jurisdiction of every one of its courts turn on the character 
 of the cause of action as arising under the Constitution, 
 laws, or treaties of the United States, without violating the 
 declaration of the supremacy of the constitution, laws, and 
 treaties of the United States, and their binding force on 
 the judges in every state, anything in the Constitution or 
 laws of any state to the contrary notwithstanding (Art. 6, 
 clause 2). The reasons that authorize Congress to make 
 the jurisdiction of federal courts turn on the federal 
 character of the cause have no application to the jurisdic- 
 tion of state courts. The refusal of a state, whether by 
 affirmative act or simple non-feasance, to do its federal 
 duty is not an exercise of any constitutional power reserved 
 to the states respectively by the Tenth Amendment. It is 
 secession. It may be so wholesale as to be beyond the 
 reach of the federal judicial power, though not because it 
 is constitutional. But it was not wholesale at all in the 
 instances cited. The state legislatures that passed the 
 state, statutes in the cases cited acted unwittingly and 
 inadvertently, evidently not seeing or intending the 
 necessary practical operation and effect of the statutes to 
 deny private rights secured and protected by the Consti- 
 tution and laws of the United States. The state courts 
 held bound and limited by the statutes were established as 
 
xvi APPENDIX 
 
 courts of original, general jurisdiction by other state con- 
 stitutional or statutory provisions. The statutes were 
 aimed at and hit causes of action solely because arising in 
 other states under local or federal law. Of course the 
 federal constitutionality of such state statutes falls within 
 the range of the federal judicial power as a justiciable 
 question. It is pertinent to.notice that it is decided that a 
 transitory cause of action arising under the local statute 
 law of a state may be enforced in a sister state even though 
 the statute creating the cause of action provides that the 
 action be brought in local domestic courts. Tenn. Coal 
 Co. v. George (1914), 233 U. S., 354. 10 
 
 It is decided, that a state court violates the full faith and 
 credit clause and act of Congress when it makes an erron- 
 eous selection of one of two conflicting local state laws in a 
 case in one state for the enforcement of a cause of action 
 
 10 There is nothing in the full faith and credit clause and act of Congress that 
 compels a state to entertain a suit for the enforcemen t of a cause of action acquired 
 under the' local law of a sister state when the facts plainly show that the plaintiff 
 is exercising his right to choose the forum vexatiously or oppressively for an 
 unjust end, as, e. g., to deprive the defendant of his means of defense and so 
 pervert and defeat justice. In Lopan v. Bank of Scotland (1906), 1 K. B., 141, 
 148, the English court of appeal thought the New York statute in Anglo-American 
 Provision Co. v. Davis Provision Co., supra, as applied in a New York case cited, 
 did not fall within that principle. The same ISIew York statute was involved in 
 Barrow Steamship Co. v. Kane (1898), 170 U. S., 100. There is no precedent 
 that I know of where a court of one state applied the above principle of vexatious 
 choice of the forum to refuse to entertain a suit to enforce a cause of action ac- 
 quired under the local law of another state. Of course, its application of the 
 principle is subject to review by the federal Supreme Court. The idea seems to 
 be that the plaintiff's right to choose the forum is absolute. But there is no 
 right unqualified by the rule, So use your own as not to injure another. The 
 purpose of the full faith and credit clause is expressly declared to be "to establish 
 justice" (Preamble of U. S. Const.). 
 
 Independently of the federal right of full faith and credit, and leaving it out, 
 the federal Supreme Court may be constrained to declare these state statutes 
 void under the privileges and immunities, due process and equal protection pro- 
 hibitions of the Fourteenth Amendment, or under some other clause, as e.g., 
 interstate commerce, clearly involved in the Illinois case of Walton v. Pryor. But 
 all that is outside the scope of this note, which is confined to the federal right of 
 full faith and credit. 
 
CONFLICT OF LAWS, FULL FAITH AND CREDIT xvii 
 
 acquired under the local law of another state. Royal 
 Arcanum v. Green (1915), 237 U. S., 531. In this case 
 Green, a New York member of the Royal Arcanum, sued 
 the society in a New York court for a decree declaring an 
 increased assessment invalid and enjoining its collection as 
 to him. The Royal Arcanum's defense was that the 
 increased assessment was valid under Massachusetts 
 statutes incorporating the society and a Massachusetts 
 decision declaring the effect of the statutes in Massachu- 
 setts. The New York court refused to select and apply 
 the Massachusetts law relied on, and selected and applied 
 New York law, holding the increased assessment invalid 
 as to Green. The full faith and credit clause and act of 
 Congress having been duly relied on in the New York 
 court by the Royal Arcanum, the federal Supreme Court 
 held the question of the selection of one of the two conflict- 
 ing state laws was a federal question, giving the court juris- 
 diction, selected and applied Massachusetts law, and held 
 the increased assessment valid as to Green, thus reversing 
 the New York court. In this connection Kryger v. Wilson 
 (1916), 242 U. S., 171, may be noticed. The plaintiff sued 
 in a North Dakota court to enforce rights acquired as 
 vendee in a contract made and to be performed in Minne- 
 sota for the purchase and sale of land in North Dakota. 
 The plaintiff asked the North Dakota court to select and 
 apply a Minnesota statute concerning the cancellation of 
 such a contract; but the court refused to select and apply 
 the Minnesota statute, and selected and applied a North 
 Dakota statute on the same subject. This was complained 
 of in the federal Supreme Court. Speaking by Brandeis, J., 
 the court said : 
 
 "The most that the plaintiff in error can say is that the state 
 court made a mistaken application of doctrines of the conflict of 
 laws in deciding that the cancellation of the contract is governed by 
 
xviii APPENDIX 
 
 the law of the situs instead of the place of making and perfor- 
 mance. But that, being purely a question of local common law, is 
 a matter with which this court is not concerned." 
 
 Royal Arcanum v. Green, supra, decided that the federal 
 Supreme Court is concerned with that question on writ of 
 error to a state court when the full faith and credit clause 
 and act of Congress are relied on in the state court. In 
 Kryger v. Wilson the plaintiff did not rely on them but 
 relied on the due process clause in the Fourteenth Amend- 
 ment and on the obligation of contracts clause. Under the 
 decisions (see, e. g., Manhattan Life Ins. Co. v. Cohen 
 [1914] 234 U. S., 123; Pa. R. Co. v. Hughes [1903], 191 
 U. S., 477), the correct answer to the plaintiff was that the 
 federal question whether the North Dakota court selected 
 and applied the right law was not before the federal Su- 
 preme Court, — though it is very hard to see why the 
 federal question was not necessarily involved and passed 
 upon by the state court. 11 
 
 "Under the full faith and credit clause, the North Dakota court's selection of 
 the lex situs rather than the lex loci contractus, as the rule of decision was correct. 
 The plaintiff was seeking to enforce a vendee's "equity" in North Dakota land 
 arising out of his contract to purchase made and to be performed in Minnesota. 
 The self-evident truth has been declared over and over again by the federal Su- 
 preme Court, repeating an observation of Story in his "Constitution" and "Con- 
 flict of Laws," that the full faith and credit clause does not enlarge the pre- 
 existing or existing sovereignty of any state. No state had any pre-existing or has 
 any existing sovereignty to prescribe the law that governs the creation, extinc- 
 tion, or succession inter vivos and after death, of titles, "legal" or "equitable," 
 to immovables (land) in another state. The pre-existing and existing sover- 
 eignty of the state of the locality or situs over that subject was and is complete 
 and exclusive of every other state. This want of pre-existing and existing sover- 
 eignty in each state is consistent with the acknowledged pre-existing and existing 
 sovereignty of each state to give a remedy to enforce "equities" in land in another 
 state arising out of contract, trust, or fraud, when the local law of the sister state 
 of the locality or situs of the land classifies "equities" in land within its limits as 
 personal, transitory rights. Under the full faith and credit clause, the question 
 whether a transaction in one state creates an "equity" in land in another state 
 can be decided only by the lex situs, never by the lex loci; the part of the local law 
 of a state classified as "equity," the same as the part classified as "law," stops at 
 the frontiers of the state. The full faith and credit clause cannot be judicially 
 
CONFLICT OF LAWS, FULL FAITH AND CREDIT xix 
 
 In the case in hand, if the plaintiff had relied on its 
 federal right to full faith and credit to have the Texas 
 federal district court select and apply the local law of 
 Illinois (lex loci contractus) to determine the capacity of 
 the married woman to make the contract, the federal 
 Supreme Court could not have avoided deciding whether 
 the lex loci contractus or the lex domicilii determined her 
 capacity to make it. The court said that Milliken v. Pratt 
 (1878), 125 Mass., 374, (which is directly against the 
 court's decision, Gray, C. J., writing the opinion) 
 
 "went to the verge of the law in holding a Massachusetts woman 
 liable in Massachusetts on a contract that she could not have made 
 there, because made by a letter in Maine, although her person 
 remained always within the jurisdiction of Massachusetts." 
 
 allowed to operate to enlarge the reserved sovereignty of any state, whether the 
 case before the court is for the enforcement of a judgment of another state, or a 
 cause of action acquired under the "statute law" or "local common law" of another 
 state. The whole of its allowable operation and effect is to diminish or cut down 
 the pre-existing sovereignty of each state Louching the enforcement by each state 
 of private rights acquired under the local law of a sister state. The clause itself 
 shows the private right acquiied must be a personal, transitory right, annexed 
 to and traveling with the person entitled and the person bound as they go from 
 one state to another, and not a merely local right. The full faith and credit 
 clause and the act of Congress passed in pursuance thereof cut off the pre-existing 
 sovereignty of each state to determine for itself, according to i:s own notions of its 
 own particular policy and interest, the "comity" of the slate towards the enforce- 
 ment of private, personal, transitory rights acquired under the local law of a sister 
 state, by prescribing a new, general, uniform, federal rule of "comity" between 
 the stages, binding on each state and on every individual in each state, and so 
 better securing and protecting such private rights. See Wisconsin v. Pelican 
 Ins. Co. (18S8), 127 U. S., 265, and Huntington v. Attrill (1892), 146 U. S., 657, 
 holding that the federal right of full faith and credit does not extend to the local 
 criminal law of another state, i.e., a criminal cause of action acquired under the 
 local criminal law of a state, whether for a fine, imprisonment, or capital punish- 
 ment, cannot be enforced by the United States or by any other state ; only by the 
 state whose local criminal law was violated. The reason is that the rule of 
 sovereignty, that crime is local and no sovereign will enforce the criminal law of 
 another sovereign, remains as a rule of sovereignty, prescribing the delegated 
 sovereignty of the United States as respects each state, and the reserved sover- 
 eignty of each state as respects the United States and every other state. Some- 
 times the Pelican case is misinterpreted and erroneously extended to civil cases 
 in the state and federal courts, as, e.g., in the dissent in Fauntleroy v. Lum (1902), 
 210 U. S., 230, 242-244. 
 
xx APPENDIX 
 
 In that case a Massachusetts married woman by a letter 
 written in Massachusetts, and delivered through the post- 
 office in Maine, made a continuing guaranty of her hus- 
 band's debts. The court held the contract was made and 
 to be performed in Maine. The married woman had 
 capacity to make it by the local law of Maine (lex loci 
 contractus) but not by the local law of Massachusetts (lex 
 domicilii), as the two state laws stood when the contract 
 was made. The full faith and credit clause and act of 
 Congress were not relied on at the bar or referred to by 
 the court, and judgment was rendered on the merits against 
 the woman under judicial rules in the conflict of laws. The 
 Massachusetts court selected and applied the local law of 
 Maine (lex loci contractus) to determine the married 
 woman's capacity to make the contract. The federal 
 Supreme Court cannot mean to say the Massachusetts 
 court went to the verge of the law in selecting and applying 
 the lex loci contractus rather than the lex domicilii to 
 determine the married woman's capacity to make the 
 contract. It must mean to say that the Massachusetts 
 court went to the verge of the law in refusing to apply the 
 judicial rule of comity that a court of one state will not 
 enforce a cause of action acquired under the local law of 
 another state when its enforcement there is inconsistent 
 with the policy of its own local law. As already shown, 
 the full faith and credit clause and act of Congress, as ap- 
 plied to a case like Milliken v. Pratt, delete that judicial 
 rule of comity as between states. 
 
 Hence the Massachusetts court did not go to the verge 
 of the law under the full faith and credit clause and act of 
 Congress. And, under the full faith and credit clause, the 
 Massachusetts court's selection and application of the lex 
 loci contractus rather than the lex domicilii to determine the 
 capacity of the married woman to make the contract 
 seems the only allowable selection and application in the 
 
CONFLICT OF LAWS, FULL FAITH AND CREDIT xxi 
 
 case before it. The privileges and immunities clause of 
 the federal constitution grants and secures to married 
 women who are citizens of a state, as a federal right, the 
 same right to make contracts in another state that the local 
 law of such other state grants to married women there 
 who are citizens of such other state. This federal right of 
 the citizens of each state to make contracts and to carry on 
 local trade and commerce in every other state the same as 
 the state citizens there can be exercised and enjoyed without 
 any corporeal ingress into another state, as by sending a 
 letter, telegraphing, or telephoning across state lines. 12 
 Under the full faith and credit clause and act of Congress, 
 a married woman, citizen of one state, who exercises and 
 enjoys her federal right to make a contract in another 
 state to secure her husband's debts the same as married 
 women there may do if they are citizens of such other state, 
 cannot escape the burden of her contract when she is sued 
 for its enforcement in another state, whether the state of 
 her domicil or not. Hence on the whole case the Massa- 
 chusetts court in Milliken v. Pratt reached the only result 
 allowable under the federal constitution and laws. That 
 result, viewed from the broader federal, rather than the 
 narrower state outlook, holding the married woman to 
 her contract made in another state and binding on her 
 there under the local law there, is not devoid of the far- 
 seeing wisdom of the statesman or the simple honesty of 
 the common man. Suffice, however, that it is the result 
 
 12 The privileges and immunities clause is a condensed, concise statement of 
 at least the pari of Art. 4 of the Articles of Confederation reading as follows: "To 
 better secure and perpetuate mutual friendship and intercourse among the people 
 of the different states in this union, the free inhabitants of each of these states, 
 . shall be entitled to all privileges and immunities of free citizens in the 
 several states; and the people of each state shall have free ingress and egress to 
 and from any other state, and shall enjoy therein all the privileges of trade and 
 commerce, subject to the same duties, impositions and restrictions as the inhabi- 
 tants thereof respectively"; . . . see Blake v. McClung (1898), 172 U.S., 
 229, and cases cited. 
 
xxii APPENDIX 
 
 required by the constitution and laws of the United States. 
 The federal Supreme Court's jettison of Milliken v. Pratt 
 and its result in the case before it cannot stand the federal 
 test of full faith and credit. 
 
 There seems to be an idea that the full faith and credit 
 clause and act of Congress do not extend to causes of 
 action acquired under the local law of another state evi- 
 denced by its judicial decisions in which there is no statu- 
 tory ingredient, i. e., the "local common law" of another 
 state. It is impossible to trace this idea to any decision 
 of the federal Supreme Court. Penna. R. Co. v. Hughes 
 (1903), 191 U. S., 477, does not so decide or intimate. In 
 that case a horse was shipped from a point in New York 
 to a point in Pennsylvania under a contract limiting the 
 carrier's liability to $100. The horse was injured in 
 Pennsylvania by the carrier's negligence. In an action 
 for damages in a Pennsylvania court by the shipper against 
 the carrier, the defendant asked the court to select and 
 apply the local common law of New York under which the 
 contract limiting the carrier's liability was valid. The 
 court refused, and selected and applied the local common 
 law of Pennsylvania under which the contract was void. 
 Under the commercial law or general jurisprudence of 
 Swift v. Tyson the contract was valid. On writ of error 
 the federal Supreme Court simply decided it had no 
 jurisdiction to review the Pennsylvania court's refusal to 
 select and apply the local common law of New York, 
 because the defendant did not claim any federal right in 
 the state court to have that law selected and applied. 
 
 There can be no fair question that the full faith and 
 credit clause and act of Congress extend to causes of action 
 acquired under the local common law of another state the 
 same as under the statute law of another state and judg- 
 ments of another state. Whatever dispute there may be 
 since Bentham and Austin as to whether judges "make" 
 
CONFLICT OF LAWS, FULL FAITH AND CREDIT xxiii 
 
 law or "discover and declare" law, there never has been 
 any dispute and never can be any dispute that they always 
 have made "records" in the sense of that word in the full 
 faith and credit clause and act of Congress. Such 
 "records" always have been used as evidence and the 
 best evidence of what has been called since Bracton at 
 least "lex et consuetudo," which is the "law or usage" 
 of the act of Congress. In Swift v. Tyson (1842), 16 Pet. 
 1, 18, Story, J., said for the court: "In the ordinary use of 
 language it will hardly be contended that the decision of 
 courts constitute laws. They are, at most, only evidence 
 of what the laws are; and are not of themselves laws." 
 They are "records." There is nothing to the idea that 
 the full faith and credit clause and act of Congress do not 
 extend to the local common law of another state just the 
 same as to the statute law and judgments of another 
 state. 
 
 It is not essential to support a writ of error from the 
 federal Supreme Court to a state court under the full 
 faith and credit clause and act of Congress in a case to 
 enforce a cause of action acquired under the local law of 
 another state that the federal validity of a legislative 
 act of another state be drawn in question. The idea 
 that it is, if anybody really entertains such idea at this 
 date, must rest on expressions in opinions in a line of 
 cases beginning with C. & A. R. Co. v. Wiggins Ferry 
 Co. (1887), 119 U. S., 615. That seems to be the first 
 case in which the court expressly declared the full faith 
 and credit clause and act of Congress extend to the statute 
 law of another state the same as to judgments of another 
 state. The suit was in a Missouri court to recover dam- 
 ages for breach of a contract. The defendant railroad, 
 an Illinois corporation, claimed the contract was void 
 as being ultra vires its Illinois charter according to the 
 legal effect of the Illinois charter in Illinois. The rail- 
 
xxiv APPENDIX 
 
 road put its Illinois charter in evidence, but introduced 
 no other evidence of the local law or usage of Illinois 
 touching the effect of the charter in Illinois. Having be- 
 fore it no evidence of the local law or usage oi Illinois 
 touching the effect of the charter in Illinois but the bare 
 text of the charter, the Missouri court construed the text 
 as best it could and found that the effect in Illinois of the 
 Illinois charter under the local law or usage of Illinois was 
 to make the contract sued on intra vires, and not ultra 
 vires, the defendant railroad; and hence found that the 
 contract was not void but valid in Illinois under Illinois 
 local law or usage. Though the defendant railroad's 
 federal right of full faith and credit to have the Missouri 
 court give the same effect in Missouri to its Illinois charter 
 that it had in Illinois under Illinois law or usage was duly 
 set up and claimed in the Missouri court, the federal 
 Supreme Court dismissed the defendant railroad's writ 
 of error. The ground of the dismissal was that the de- 
 fendant railroad's claim that the Missouri court erroneous- 
 ly construed the Illinois charter under Illinois law or usage 
 was not enough, under the circumstances, to convict 
 the Missouri court of denying the defendant railroad's 
 federal right to have its Illinois charter given the same 
 effect in Missouri that it had in Illinois under Illinois 
 law or usage, the Missouri court having nothing before it 
 in the way of evidence of Illinois law or usage but the bare 
 text of the Illinois charter. Presumably the court thought 
 the Missouri court decided the case right or without rever- 
 sible error. In point of authority, the court rested its 
 order of dismissal on jurisdictional decisions under the 
 contracts clause holding that a state judicial decision 
 sought to be reviewed under the contracts clause, how- 
 ever much it may alter the law of the state as evidenced 
 by previous state judicial decisions in existence when 
 a contract was made, cannot constitute legislative action 
 
CONFLICT OF LAWS, FULL FAITH AND CREDIT xxv 
 
 by the state under the contracts clause; and unless there 
 is a state legislative act passed subsequent to the making 
 of a contract that could impair the pre-existing contract, 
 and unless the state decision sought to be reviewed really 
 and in truth enforced such subsequent state legislative 
 act so as to impair the pre-existing contract, then there is 
 no jurisdiction in the federal Supreme Court to review 
 the state decision. See New Orleans Water Works Co. 
 v. La. Sugar Ref. Co. (1888), 125 U. S., 18; Central Land 
 Co. v. Laidley (1895), 159 U. S., 103; McCullough v. 
 Virginia (1898), 172 U. S., 102; Cross Lake Shooting & 
 Fishing Club v. Louisiana (1912), 224 U. S., 632; Ross v. 
 Oregon (1913), 227 U. S., 150. Jurisdictional decisions 
 under the contracts clause plainly are not applicable 
 under the full faith and credit clause and act of Congress. 
 The court employed a false and misleading analogy. But 
 the court did not say or fairly imply that the federal 
 validity of a legislative act of another state must be 
 drawn in question to enable it to entertain a writ of error 
 to a state court under the full faith and credit clause and 
 act of Congress. The meaning of this part of the opinion 
 in C. & A. R. Co. v. Wiggins Ferry Co. has been variously, 
 loosely, and vaguely stated in subsequent opinions. See, 
 e.g., Allen v. Alleghany Co. (1905), 196 U. S., 458; West- 
 ern Life Ins. Co. v. Rupp (1914), 235 U. S., 261, 275, and 
 cases cited; Penn. Fire Ins. Co. v. Gold Issue Mining & 
 M. Co. (1917), 243 U. S., 93, 96, and cases cited. What- 
 ever may be the correct way to state the rule, if there is 
 any rule, which may be doubted, and whether it be a rule 
 of jurisdiction or decision, and whether as a matter of 
 fact the court really and in truth ever does or ever can 
 make any use of the rule consistently with justice to the 
 party, except to fix the form of its final order as one of 
 dismissal or affirmance, there can be no question the 
 court never has decided, and never can decide, that the 
 
xxvi APPENDIX 
 
 federal validity of a legislative act of another state 
 must be drawn in question to support a writ of error to a 
 state court under the full faith and credit clause and act of 
 Congress in a case to enforce a cause of action acquired 
 under the local law (statute law) of another state. The 
 cases show clearly the practice of the court is all the other 
 way. 
 
 The case at the head of this note is in no way exceptional 
 but typical of most of the multitude of cases in our state 
 and federal reports for the enforcement by one state of 
 causes of action, other than judgments, acquired under 
 the local law of a sister state, wherein counsel and court 
 have solved the problems before them by judicial rules 
 in the conflict of laws, classified as local common law or 
 general jurisprudence under Swift v. Tyson, as if the full 
 faith and credit clause and act of Congress had no appli- 
 cation and did not exist. The cases cited show that the 
 practice in those cases always has been and is based upon 
 a wrong constitutional theory of the applicable law and 
 its judicial administration. 
 
 Now and not to-morrow is the time to begin to rely on 
 the federal right of full faith and credit, and to establish 
 equal and uniform justice throughout the United States 
 agreeably to the full faith and credit clause and act of 
 Congress in all cases to which they apply. Our federal 
 constitution constantly is revealing to us from time to 
 time our own littleness and its own greatness of view.