whether Federal or State, we must have in mind that, then as now, there was a canon of construction requiring that written documents must be construed in the light of the facts and circumstances surrounding their making. That rule of construction forbids an interpretation in the light of the present day indifference to, if not ignorance of, the struggle of the Fathers to secure protection for life, liberty and the pursuit of happiness for themselves and their descendants, through the establishment of law and its enforcement by the courts.

Now, other ideas are, temporarily, I hope, in the forefront. We have so long enjoyed the blessings of a government of law rather than that of man that we fail to appreciate its value. Many know historically of the charter granted by William of Normandy in the fourth year after the conquest,-of the memorable event at Runnymede, when on the 15th of June, 1215, King John of England affixed his signature to the Great Charter there submitted to him by the militant nobles of his realm,-of the preliminary union among the American colonies in 1754 and in 1765,-of the protests of the Colonial Congress of 1774,-of the Declaration of Independence,-of the formation of the constitutions of the original thirteen States and that of the Federal Constitution,-and of the suffering and loss of life incident to the struggle to throw off a yoke of bondage that the ideal of government of law might come into being. But the underlying reason for it all is not fully appreciated by the great mass of people. It is not strange that this is so, for generations of people have come and gone since that period. None of them having suffered from the oppression of man, they know not of it. And the leaders of thought and political action who do know, have found other subjects more interesting, and so have discussed them to the exclusion of tht great truth often expressed: "Eternal vigilance is the price of liberty."

What the effect has been is well illustrated by a remark made to me the other day by a business man of more than average intelligence: "The Constitution did very well when it was made, but it is out of date now and must be ignored when it stands in the way of things we want." He neither knew nor cared that the Fathers had provided for its amendment to meet further necessities. He did not realize that this very Constitution is the charter of the people's liberties; that through it and through it alone, have the people the power to check encroachments by the Legislative, the Executive, and the Judicial departments of the Government, either upon each other or upon the reserved rights of the people, either as individuals. or gathered into States; that any unrebuked and unchecked attempt

to exercise powers not granted to a department of the Federal Government is a serious menace to our scheme of government, in that it creates a precedent which may be taken advantage of later.

But a general discussion of this most important subject is foreign to my present purpose. That my business friend's echo of the now time-honored formula: “What is the Constitution between friends?" is more generally shared than thoughtful men can wish, is evidenced by the answer to, or rather the failure to answer suggestions openly and boldly made to practically destroy local State government by extending through Congressional enactment and judicial construction the Commerce and Post Road provisions of the Constitution. So to extend the powers actually granted by the Constitution as to take away power expressly reserved to the States or the people, seems to the unthinking not a deliberate violation of the Constitution. But they are mistaken. The phrase is a fraudulent one employed to deceive the people. Its purpose is to hide the real intent which is to modify the Constitution by other and different methods than that provided in the Constitution itself, namely, by the action of the people of the United States. Clearly, then, it is fortunate that the Common Law rule of construction which has ever been employed by the courts of this country, both Federal and State, required the Federal Court to take into consideration when construing the various provisions of the Constitution the circumstances surrounding and attending its making.

A government of law, not of men, was the aim of the Fathers. All history-confirmed by some that is very recent and very painful-had taught them that man cannot be trusted to govern his fellow man; that nearly all men in the possession of great power have favorites to reward and enemies to punish; that equality in enjoyment of life and property, as well as equality of opportunity, are best secured by sound legal principles administered by judges whose highest ambition is to work out justice under the law.

They knew what the judges had done in the centuries following Runnymede. They realized that as a class they had been faithful to their great trusts, fearing 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 determined that law and not man should govern, they made of the judiciary an independent 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 accorded such a strong and independent position. And it should be noted that while the Constitution contains no general grant of legislative power, but instead the

grant is one of enumerated powers, it does grant to the Supreme Court and such inferior courts as Congress may create, the entire judicial power of the Federal Government. Section 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 Constitution, as first adopted, to cut down the grant of full judicial power conferred by the first section. The remaining clauses simply designated certain subjects which were included within the general grant of judicial power. The Eleventh Amendment did restrict the judicial power theretofore granted in one respect. It provides that the judicial power shall not be construed to extend to any suit in law or equity commenced or prosecuted against one of the United States by citizens of another State, or by citizens or subjects of any foreign State. Moreover, the Seventh Amendment provides that "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 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, and doubt, for one moment, that it was their design that the National system of jurisprudence should be upbuilded according to such rules of the Common 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. Socratically 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 Common Law shall furnish the guide of decision, interpretation and restriction?" 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 satisfy the Nation's needs. And either consciously or unconsciously the Federal courts, under the leadership of that greatest 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 obiter and otherwise, bearing upon the question of the Comi In Law jurisdiction of the Federal Courts, I shall allude briefly to the contribution of that Court toward the harmonious development of 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 its principles in forty-six different States, necessarily representing as many different jurisdictions. For that happy result great credit is due to the willingness on the part of the State Courts to consider, respectfully 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.

In suits at Common Law the decisions of the Supreme Court seem, at first, to assert their independence of State decisions in the case of Swift v. Tyson, which was destined to create a following of authority now impregnable. The question there raised for determination was whether a pre-existing debt was a valuable consideration for the transfer of a draft. After a review of the cases in the New York Courts, where the controversy arose, tending to decide the question in the negative, Mr. Justice Story, referring to the 34th Section of the Judiciary Act, maintained that the word "laws," as therein used, included only the statute law, saying that "in all the various cases which have hitherto come before us for decision, this court has uniformly supposed that the true interpretation of the 34th Section limited its application to State laws, strictly local, that is to say, to the positive statutes of the State and the construction thereof adopted by the local tribunals, and to rights and titles to things having a permanent locality, such as the rights and titles to real estate, and other matters immovable and intra-territorial in their nature and character. It never has been supposed by us that the section did apply, or was designed to apply, to questions of a more general nature, not at all dependent on local statutes or local usages of a fixed and permanent operation, as, for example, to the construction of ordinary contracts or other written instruments, and especially to questions of General Commercial Law, where the State tribunals are called upon to perform the like function as ourselves, that is, to ascertain, upon general reasoning and legal analogies, what is the true exposition of a contract or instrument, or what is

1. (1842) 16 Peters, 1.

the just rule furnished by the principles of Commercial Law to govern the case."

Consistently with such expression, the Court then refused to follow the New York decisions, and established the affirmative of the proposition.

During the same term in which the Court decided Swift v. Tyson, there was presented to them for construction a contract of insurance. This was the case of Carpenter v. Providence Ins. Co.,2 Justice Story again writing the opinion. The Court would not follow New York or Massachusetts decisions, the position asserted being in harmony with and strengthening the attitude shown in Swift v. Tyson. Enforcing his former argument and extending the rule from negotiable paper to all contracts, Justice Story said:

"The questions under our consideration are questions of General Commercial Law, and depend upon the construction of a contract of insurance which is by no means local in its character, or regulated by any local policy or customs. Whatever respect therefore the decisions of State tribunals may have on such a subject-and they certainly are entitled to great respect-they cannot conclude the judgment of this Court."

The rule thus firmly established was uninterruptedly called into use. It was applied to a bill of lading in Myrick v. Michigan Central R. R. Co., the court overruling the Supreme Court of Illinois; to a stipulation exempting a common carrier from all liability, thus reversing the New York Courts; to a question of negligence; to the interpretation of the "fellow servant" rule contrary to the Supreme Court of Minnesota; to a question of nuisance, disapproving the views of the Wisconsin courts, in which the court said:"

"This does not depend upon State statute or local State law. The law which governs the case is the Common Law, on which this court has never acknowledged the right of the State courts to control our decisions, except, perhaps, in a class of cases where the State courts have established, by repeated decisions, a rule of property in regard to land titles peculiar to the State."

Moreover, the exception in the sentence last above commands no special favor unless the courts under review have developed a rule firmly settled in the law. In Foxcroft v. Mallett, Webster

2. 16 Peters, 495, 5II.

3.

107 U. S. 102, 109.

4. Liverpool Steam Co. v. Phoenix Ins. Co., 129 U. S. 397.

5. Chicago City v. Robbins, 67 U. S., 418, 428.

6. Chicago and St. Paul R. R. Co. v. Ross, 112 U. S., 377.

Yates v.

Milwaukee, 10 Wall., 497, 506.

7.

8.

4 How., 352.