little importance. If a court of Great Britain, in deciding as to what is the law of New York, in order to determine the meaning of a contract, were to use the language of the Supreme Court of the United States in reference to the means of ascertaining that law, every one would agree, that, while professing to do and bound to do one thing, they were declaring their intention not to do it; they would be disavowing an intention to be bound by the law as it was established in that State, and they would be substituting some other theory, or rule, to govern men's actions, for the one that actually existed, and which they know existed.

The question then arises, and their justification lies in the answer, Are the courts of the United States, foreign courts? Do they, when administering pure State law, the intestate law, for example, the law governing testaments, as to forms and proof, to select those questions that are local in every thing, do they, I say, sit as foreign courts? This has been disclaimed from the outset. There has been a singular forgetfulness on the part of the State sovereignty school, as to the origin, position, and the consequent right, as well as power, of the courts of the United States in this respect. The disputants have recognized the power of these courts,-they could not help that. But they have altogether forgotten their right that comes from the power, when conferred as it has been. They have forgotten that the State, and the same State that created a Supreme Court of their own, to insure uniformity and to compel submission in the inferior courts, also created the Federal courts. The Constitution of the United States is the immediate origin of these courts, exercising the federal jurisdiction. And who but the several States created the Constitution? I am aware of the dispute as to the correct theory on this subject, but it does not touch this question, whether the States, or the people, formed the United States. No one will dispute that the States have agreed to confer on that organism called the United States of America, the power to create courts who shall have jurisdiction in common law, and equity, and admiralty suits.

Can any one point to the limitation, express or implied, in the legislation that varies the power, or the right, of one of

these judges, when declaring the law and enforcing it, from that conferred on the judges of the courts of the State? This argument, derived from the grant of jurisdiction by the consent of the States, may be unsatisfactory to some minds. It may be thought, like some of those we find in Lord Coke's time; for one cannot but feel that the legislators did not, when engaged on these things consciously, intend any such result. I will therefore supplement this by showing that they must have intended this result and no other, and to deny it, is to compel them to stultify themselves.

When the Constitution conferred the jurisdiction on the Federal courts, because of citizenship, or nationality merely, it is not difficult to assign the reason. And when we are sure of this, we have advanced a long way on the road of construction. Would it not have been absurd to have conferred this particular jurisdiction, if the Court was not to be independent of the State judiciary in the administration of justice? Could there have been a more idle and unless piece of legislation, any thing more contradictory on its face, if the clause had terminated with a requisition that, in administering the law of a State, as between a native and foreigner, the Courts of the United States must act on a certificate from the State Courts, as the Chancery formerly did, when a point of law arose before it? But, if it would be absurd to require this, is it very much less absurd to require them to accept the decisions of the State Courts as conclusive, especially when they run in two opposite directions?

We are apt to forget that there has never existed the evil which the Constitution anticipated, or it is so long past as to be forgotten, at least in our part of the country. No one ever noticed a tendency to pervert justice against the foreigner, on the part of the Courts. But it must be obvious, I think, that under the grant of the right to administer justice, the Federal judiciary were intended to be as independent in the sources from which they derived their opinions of what the law is, as the judges of the State Courts are. All this tends only to prove that the effect of the legislation was not perceived, and it in no wise tends to relieve the difficulty that arises in practice; for we thus prove that there is a large por

tion of the affairs of the State not subject to the supervisory jurisdiction of any Supreme Court whatever, for two independent Supreme Courts are, I submit, an impossible thing, to use the modern phrase, they are not thinkable. The inevitable result is what we see around us. We have now avowedly two diverse rules governing the same ordinary, every-day contracts of men; witness Mr. Justice GRAY, on page 443 of 129 United States Reports. The legislation of Congress adds to this discord, by creating inevitably the chance of as many standards of law as there are circuits, neither of which is compelled to submit to the other, and appeals to a common head are prohibited.

The remedy adopted is thoroughly American. The Court is slow, it is supposed, because there is more business than it can get through with. Instead of loading the suitor with a penalty for the ignorance of his adviser, frequently a mere speculator in the results, we remedy the evil by abolishing the jurisdiction. Napoleon, or somebody else, called England a nation of shopkeepers. We might be called a nation of collecting attorneys, when we measure the importance of a judgment by the amount of money A recovers, or B pays.

There are many things resulting from the Constitution of the United States entirely unforeseen by the makers. It was never given to mortals to look forward and trace all the consequences of their actions. The consequences of the creation of two independent sets of judicial bodies, probably was not foreseen, certainly not that consequence we are now suffering under. But what is this caused by? When a patent is given to a judge to administer the law, it is absolutely impossible to create a standard as to what that law is, but his opinion. Was ever statute so framed that two differing opinions as to its meaning are impossible? But the point of all this is, as no one asserts that a State Court cannot vary from itself, or its predecessors, by accident or design, so the judges of the courts of the United States have the same prerogative in varying from their brethren of the State Courts. If the courts of the State feel at liberty to disregard the judgments of the House of Lords, when, being a colony, we were, as we all say, bound by them, where is the patent that authorizes them to sit in judg

ment over their brethren of the United States Courts, when they act upon the same rule? Above all, where is the right in them, or in any one else, to deny to those judges the capacity they arrogate and certainly possess, of determining what is the law as to any particular question, and to disregard all previous decisions, their own or those of others? If they are at liberty to have two parallel lines of decisions diametrically opposed to each other on the same question, because when one rule is invoked no one is aware that there ever was another view of the law, much less a contradictory rule, why deny to their brethren the right to select the least objectionable of the rule they have presented for a choice? No one pretends that the judgment of the Supreme Court of a State is made conclusive of the rule of law, as the judgment of the House of Lords is, by the unwritten constitution of England. If the State Courts, in common with all enlightened jurists, seek not to enlarge their jurisdiction, but ampliare justitiam by removing obstacles from the path, and claim the right to do so, why deny this to their brethren of the Federal Courts?

What then is the difficulty? Why does this monstrous evil result, for it is monstrous, that a contract should have different meanings, dependent on the accident of the tribunal selected by one party at his option. The evil results from the very thing we, as a profession, are doing our best to increase and multiply. The evil is the absence of a Court that can compel uniformity. That is all,-absolutely nothing more. To attempt to seek it, by subservient compliance, is absurd. To bow to a decision that is not binding, which is believed to be wrong, for the sake of uniformity, is impossible for one that has the proper self respect that fits him to be a judge. It means that he compels a man to pay money he does not owe, out of deference to a mistake of some other people as to an abstraction of scientific law. To bow to a decision of a Court of error is a duty, because the law compels it. If this be an evil, observe, I beg, how strikingly it is exemplified in the present administration of law in the Federal system. Let each man recall his own experience, and note the contrast between those who are working with a bill of exceptions being possible, and without the possibility of such a thing. Is there any thing

else that has produced the obedience of Courts to authority but this?

In fact, the whole legislation of Congress and the cry of the bar, shows that the real object of a writ of error, appeal, etc., is entirely lost sight of. They are to secure uniformity by compelling obedience, not by utterances, however full of wisdom, but which are binding only on the conscience. As things now stand, each man is a law unto himself, in matters not exceeding $5000, and the admittedly illegal exaction is sanctified by disclaimer of all beyond that sum!!!

If this rule of the Supreme Court and that declared in Gibson v. Shufeldt, 122 U. S. 27, is the logical out come of the legislation, as the Court declares it is, it is impossible to conceive a more perfect caricature of legal justice and disregard of the spirit of law than this most unfortunate piece of legislation exhibits. If the maker foresaw the result, he was wicked. I suspect his forecast does not warrant that epithet. In an English journal, I am told, this is spoken of as a specimen of judicial trickery. Legislative should be substituted for judicial, if the logic of the Court is not at fault. I have in times past endeavored to press this upon several persons who exerted influence on the legislation, but as no one paid any attention to my suggestions, I ought to infer that I am wrong. Perhaps the particular illustration we now have, that a carrier's contract means one thing in the Courts of New York and Pennsylvania, and precisely the opposite in all the Federal Courts, who can be persuaded to yield to the advice from Washington, when it cannot become a command, may induce men to consider the cause of this great calamity; and when they have discovered it, they may possibly be induced to reflect on the absurdity of relieving a Supreme Court of their burden, by abolishing the Court and with it uniformity of law for this is what the Rule of the Supreme Court as to appeals, though given by the Constitution, really does, and what the Acts of Congress have done, whenever a suitor is contented to exact no more than $5000 and the costs. Was there ever before such a travesty of justice, if there be such a thing among R. C. M.

men ?