The daily morning journal and courier. [volume] (New Haven, Conn.) 1894-1907, 1907-07-12

N the centuries following Runnymede
They realized that as a class they had
been faithful to their great trusts, fear
ing neither the monarch on the one
hand nor the mob on the other; and
that to them the highest Of all Ideals
had been justice. And, being determin-
ed that law and not man should gov
ern, they made of the judiciary an in
dependence department of government,
and placed it upon a plane above the +
control or reach of, either the executive
or the congress. Never before had the
judiciary in any country been accord
ed such strong and Independent Pc
sition. And it should be noted that
while the constitution contains no gen. |
esal grant of legislative power, but in
stead the grant is one Of enumerated |
powers, it does grant to the supreme
court and such inferior courts as con-
gress may create, the entire judicial
power of the federal government. Sec
ton One Of Article III declares that
THE judicial power of the United
States shall be vested in one supreme
court, and in such other inferior courts
as the congress may from time to time
ordain and establish" This is followed
by Section Two which provides in part
that THE judicial power shall extend
to all cases in law and equity arising
under this constitution"
No attempt was made in the constl-
tuition, as first adopted, to cut down
the grant of full judicial power con-
ferred by the first section. The remain
ing clauses simply designated certain
subjects which were included within
the general grant of judicial power.
The Eleventh Amendment did restrict
the judicial power heretofore granted
in one respect. 1t provides that the ju-
Idicial power shall not be construed to
Iextend to any suit in law or equity
commenced or prosecuted against one
of the United States by citizens of an
Iother state, or bY citizens or subjects
Of any foreign State. Moreover, the
Seventh Amendment provides that, Tin
suits at common law, where the value
lin controversy shall exceed twenty dol
! lars, the right of trial by jury shall be
preserved; and no fact tried by jury
shall be otherwise re-examined in any
court Of the United States than accord
ing TO the rules Of the common law"
| Who can read this grant Of judicial
power and the Seventh Amendment in
the light of the aspirations and desires
Of the people as already noted, ana
doubt, for one moment that it was
| their design that the national system
of Jurisprudence should be upbuildcd
laccording to such rules of the common
II law as should be found applicable They
knew of no other system They loved
the one they had inherited They were
seeking to retain its benefits. Socratlc-
| ally we ask again, how but BY the
rules of the common law, used here in
its broadest sense, was justice to be
dispensed in the United States courts
created by the constitution? AS Mr..
Justice Story said; What but the COM
mon law shall furnish the guide of de-
cision, Interpretation and restrlction%'
Upon the constitution as a framework,
was the federal judiciary with the aid
Of the common law to build such a
system Of jurisprudence as should sat
| isfy the nations needs. And either con-
sciously or unconscfously the federal
courts under the leadership Of thar
lgreatest of all courts, the supreme court
of the United States, have consistently
developed our national jurisprudence
along the lines which have led and will
inevitably continue to lead toward that
result for which the Fathers planned,
prayed and fought.
/ Before taking UP for consideration
some of the expressions of the supreme
court, both obter and otherwise, bear
ing upon the question of the common
law jurisdiction of the federal courts,
/ shall allude briefly to the contrbu-
tlor Of that court toward the harmoni-
Gus development eff the common law
throughout the country The student of
the common law, as administered in
! this country, cannot but be impressed
with the remarkable uniformity which
has attended the application Of it's
principles in forty-six different States,
necessarily representing as many jur-
lisdictions For that happy result great
credit is due to the willingness on the
part of the State courts to consider, re-
specially and carefully the decisions
of the courts of sister states, with a
desire to produce uniformity Of law.
But it should not be overlooked that
| the supreme court Of the United States
has made substantial contribution
thereto. Judge Parker then discussed at
length the development of the common
law principles as demonstrated in the
decisions Of the supreme court of the
United States, devoting special atten-
ton to the opinions Of Justice Story,
Justice Mclean, Justice Bradley, Jus
! tice Shlras and Justice Brewer, quot
! ing from the opinion of the last in the
case Of Kansas v Colorado, recently
decided, in which the court said:
"In other words, through these sue
cessive disputes and decisions this court
is practically building up what may
not improperly be called Interstate
common law" ........
AT the close of this portion of his
address, he summed up his own opin-
ions as follows:
The student of our Jurisprudence
when he first learns that here as in
England the common law can solve and
justly solve every problem in civil life
If permitted to do so, must compare
with wonder and amazement the 25,00
pages Of laws annually placed upon
our statute books with the 46 general
and the 246 special laws passed by
England's Parliament in five years, al
though legislating for home popula-
ton Of fortN-tWn millions and for mil