The times dispatch. [volume] (Richmond, Va.) 1903-1914, 1904-10-30
THE COMMON LAW
OF THE NATION

OF He NAHUM
4 In tho October number OF the Virginia
Law Register just Issued, Mr.. Hunsdons
Cary, n prominent attorney OF Richmond.
contributes an article on Federal Com
mon Law The question whether or not
there are rules OF common law which
might be invoked BY the Federal courts
In their attempts to control corporations
was recently raised by President Roose-
welt, who denied that there was any
such thing lis Federal common law.
Judge Parker replied that there was such
a thing, and that It had been recognized
and declared by the Supreme Court
OF tho United states In the case OF
C.aA Publishing Company Mr.. cry
says that the question OF law thus IN
jected into national politics melted him to
Investigate the relations OF common law
to Federal Jurisprudence. and the articses
which he has prepar red with 30 much care
and industrious research, Is beyond all
comparison the most exhaustive contribu-
Y ton to tho discussion that we have seen.
Tho common, law he defines to be that
system upon which are laid the founda-
tions OF English institutions, and includes.
u .Eong other privileges. those natural
rights which are. indeed, common TO
6n,t mankind. but which. In virtue OF
Magma Charta. wrunE by tho harons
from King John at Runnymeda and
other fundamental laws Of the mother
Country. were deemed to be the pecu-
liar birthright and inheritance Of Brit
Ash subjeotsr Thls common Inv, 1fo
tells us, the British subjects who colo
nized In America brought with them a.
the basis OF the institutions among which
they had been reared adopted IT as the
basis OF their colonial jurisprudence. and
IA ,I,,. - ,ytYl hn
4 the Revolutionary War. Moreover, says
he in this connection, SO Jealous were
TIE coonists OF these common law rights
that the violations OF them were ms
lust subjects OF grievance addressed 20
the Gro wn, and when at last peacclul
acvertures failed they were embodied as
the chief articles OF the Declaration OF
Independence, the donial Of when con-
stitu.td a justification for the dissolu-
ton OF the mutual ties Of sovereignty
ana allegiance. After American inde-.
pcndence was accomplished eaoh OF tne
States quite naturally adopted the. COM
mon law or such part OF II as IT DE-
sired as tho basis OF its Jurisprudence
anu each subsequent State has upon ao-
mission nto the Union, folloWea INC e ~,
ample, and the common law OF England
) 10 the Law, of each State so far as ~ mas
adoDted it,, The single exception Is
tho State OF Louisiana, where tho civli
law prevails.
There is no dispute on this point, and.
ffAvlng briefly disposed Of II, sMr. cary
discusses the common law IN the rc!a-
tlon it bears TO Federal ourlspr ~ ~;
lie grants that there Is mo Federal
statute recognizing the common law, ana
saws that the Federal co urts must. there
fore obtain common law jurisdlcti ton from
,sectlon 9, Article III Of the Constitution
OF the United states. which provloes |;
1.-THE judicial power shall extend to az
cases. In law or equity, arising under
this Constitution, the laws OF sne Unl 1etl
States, and treaties made, or Whlch
shall be made, under their authority, to
all cases affecting ambassadors, other
public ministers, and cOnsus; 70 al
cases Of admiralty and shall be q party;
10 controversies between two or more
States; between a State and citizens OF
the same State claiming lands under
rra1,.s OF different states. and between q
state, and the citizens Thereon, ana Ior-
c!gn States, citizens and subjects,
Mr.. Gary further admits that The Fed
eral courts have no common law trim!-
nal Jurisdiction, as was decided py Judge
Chase In Worrall's case. Is worthy OK
note that tho first three cases involving
common law criminal jurisdiction were
decided In favor of the courts jurs-
dicton, but because these decisions were
unpublished, and because a later judge
happcned to decide the question the
other way, this latter decision being
known to Judge chase's contemporary
on the bench was followed as pre-
cedent Mr.. Wharton in his work on
criminal law expresses the opinion that
the decisions In tho three cases first
DECIDED, In which the common law crllni-
nal Jurisdiction Of the Federal court
was conceded were plainly right. For a
full exposition OF this branch OF tho sub
;ect, the reader ds cited to Wharton's
Criminal Law, seventh edition, sections
| 163-174 inclusive.
but though the law may now be re-
| garded as settled" says MI. Cary, Q
! denying the Federal Courts common law
jurisdiction, It is believed to be quite
the contrary in regard to civil jurlsdic-
| tlon.' The first authority relied upon
as denying to Federal courts common,
| law Jurisdiction In civil cases Is that
| in the case of Wheaton as against Pc
| tiers. decided in 1884. In this case Mr..
| Justice Mclean said that the common
! law could be made a part az our FedeTa
system only by legislation, The editor
or "I.aw Notes is quoted as taking Is
| sue with that deliyerance, and MI,
! Cary believes that the SUBSEQUENT recog-
| milton OF common law Jurisdiction by
Federal courts Is due to the fact that
otherwise our institutions would have
been rendered impo tent, Y not rldlculnus'
1 Iie says that QUA Constitution WAS con-