"I CONSIDER all the encroachments made in the Constitution heretofore, as nothing, as mere retail stuff, compared with the wholesale doctrine, that there is a Common Law in force in the United States of which and of all the cases within its provisions their courts have cognizance. It is complete consolidation. Ellsworth and Iredell have openly recognized it. Washington has squinted at it, and I have no doubt it has been decided to cram it down our throats.". JEFFERSON to CHARLES PINCKNEY, October 29, 1799.

"The misconduct of the judges, however, on this subject, has been considered by the gentleman the more aggravated, by an attempt to extend the principles of the sedition act, by an adoption of those of the Common Law. Connected with this subject, such an attempt was never made by the judges. They have held generally, that the Constitution of the United States was predicated upon an existing Common Law. Of the soundness of that opinion I have never had any doubt. I should scarcely go too far, were I to say, that stript of the Common Law, there would be neither Constitution nor Government. The Constitution is unintelligible without reference to the Common Law. And were we to go into our courts of justice with the mere statutes of the United States, no step could be taken, not even a contempt be punished. Those statutes prescribe no forms of pleading, they contain no principles of evidence, they furnish no rule of property. If the Common Law does not exist in most cases, there is no Law but the will of the judges." HON. J. A. BAYARD of Delaware, in the House of Representatives, Feb. 19 and 20, 1802.

In his letter to John Manners, June 12, 1817, Jefferson says that the judiciary act was intended to bind the courts of the United States by the decisions of the State Courts.

In Logan v. United States, 144 U. S., 263, the opinion of the court by Mr. Justice Gray said:

"By the judiciary act of September 24, 1789, Chapter 20, Section 34, it was enacted 'that 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 courts of the United States

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in any case where they apply.' I Stat. 92. The language of this section cannot be extended beyond civil cases at Common Law as contradistinguished from suits in equity. So far as concerns rules of property, it is the only rule that could be adopted by the courts of the United States, and the only one the courts had power to establish. And the section above quoted was merely intended to confer on the courts of the United States the jurisdiction necessary to enable them to administer the laws of the States. But it could not be supposed, without very plain words to show it, that the courts intended to give to the States the power to prescribe the rules of evidence in trials for offences against the United States. For this construction would in effect place the criminal jurisprudence of one sovereignty under the control of another."

Hamilton said in No. XXVII of the Federalist:

"The plan reported by the convention, by extending the authority of the federal head to the individual citizens of the several States, will enable the government to employ the ordinary magistracy of each, in the execution of its laws."

Madison said in No. XLVIII of the Federalist:

"If, therefore, the legislature assumes executive and judiciary powers, no opposition is likely to be made; nor, if made, can be effectual; because in that case they may put their proceedings into the form of acts of Assembly, which will render them obligatory on the other branches. They have accordingly, in many instances, decided rights which should have been left to judiciary controversy."

Mr. Justice Holmes, in his address, in 1897, at Boston:

"A body of law is more civilized and more rational when every rule it contains is referred articulately and definitely to an end which it subserves, and when the grounds for desiring that end are stated or are ready to be stated in words."

*IV* Amplissimum Juris Oceanum ad paucos revocare fontes limpidos rectae rationis. Leibnitz, Ep. ad Magl., XXVII.

"The reminder is no longer necessary that system, in law as in any other subject, comes not from order brought into it, but from that which lies in the subject itself." Ihering, Geist des Römischen Rechts, 1. p. 36.

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"It is obvious, however, that the judicial power of each State, in deciding upon a case arising under the Constitution, might be in favor of the constitutionality of the law or act of the government, and the decision in another State against it. The effect of these diverse decisions upon the same class of cases arising under the Constitution, while conclusive as to particular controversy, would make the Constitution in effect different in the different States and in its application to these various cases.” TUCKER ON the Constitution, p. 763, Vol. I, § 367.

Uniformity of construction of the unwritten Constitution is as important as that of the written Constitution. Uniform State statutes upon negotiable instruments, based as they are upon the notion that the States are foreign to one another, do not assure either maintenance of statutory uniformity or uniformity of construction and decision. The consensus of opinion has long favored uniform laws, but growth of law by legislative enactment is alien to our institutions and a departure from our race history. The path of uniform development lies through a return to the common foundations of legal principle, which do not vary but gain breadth and strength with varied application and increased territorial extent. We can emerge from the chaos of legislative sciolism only through the efforts of an industrious, independent, and courageous judiciary, and by the return of the American bar from the hopeless study of conflict of State law to the development of a truly national American jurisprudence.

PREFACE

THIS book is an attempt to define the limits within which the governments of the several States and of the United States may secure freedom of trade by control of the persons and things engaged therein and to indicate the respective powers of the three departments of government in the exercise of such control. The relation of the three departments of the government of the United States to one another and to those of the State governments in the control of interstate commerce and of corporations is set forth with reference to over two thousand cases involving questions of constitutional law.

The mooted question of the existence of a body of constitutional principles of such comprehensiveness as to be called the "Common Law of the United States" is discussed exhaustively in this book for the first time, not only as a basis of remedy for the violation of rights guaranteed by the Constitution of the United States but also as a basis of jurisdiction for United States courts. The rights and remedies of public service corporations and the public against each other at common law and under acts of Congress and of the State legislatures are analyzed in the light of the questions arising under the Railroad Rate Law. The author's conclusion is that the power of the government of the United States to regulate corporations and commerce is ample and that it should be exercised fully in accordance with Gladstone's plan