before the federal Supreme Court again in 1889 and was affirmed.1 In leaving this subject two considerations are submitted. (a) The uniformity of decision on questions of general law throughout the United States in the federal courts 2 is an impressive fact, in comparison with the numerous diversities, at times almost frivolous, in the rules of commercial law and general common law and equity which have grown up in the various states, and which stop at state lines. This spectacle is one fact which gives momentum to the federalizing tendency of the time, by causing men to long for the convenience and certainty which come from a uniform body of private law. (b) This spectacle of uniformity throughout the federal domain brings home impressively the good sense, one might say the vast wisdom, of the English judges in establishing and upholding the doctrine of the binding quality of precedents, both at common law and in equity. This rule came to the colonies with the English law. By means of it the entire judiciary of the nation is, as it were, consolidated into one body. The law as declared by the highest federal court is the law for all inferior courts within the jurisdiction. If this were not so, each court would stand by itself. Its decision would have no force except upon the parties to the cause. Such is the effect of the decision of a court, even of the highest court, on the continent of Europe. That, no doubt, is one reason why the courts of Europe do not hold the position of dignity and power which they enjoy in common law countries like England, or in the United States, where, by the written constitutions, they are erected into a coördinate branch of the government. 3. The federal courts, under the Constitution and laws of Congress, administer law and equity as separate systems, and have a uniform system of equity law and of equity procedure throughout the United States. There is no separate court of equity. In the states, on the other hand, there is no uniformity of method in dealing with equity. Four states have separate courts of chancery. 1 District of Columbia v. Woodbury, 136 U. S. 450. 2 Of course there may be, and frequently has been, conflict of decision among different circuits until the question is passed upon by the Supreme Court. 3 See Gee v. Pritchard, 2 Swanst. 402, 414, per Eldon, L. C. (1818); Osborne v. Rowlett, 13 Ch. D. 774, 784, per Jessel, M. R. (1880). * New Jersey, Delaware, Tennessee, and Mississippi. Hartshorne, Courts and Procedure, 28-32 (1905), gives a list of six states besides New Jersey as having courts of chancery. He includes Vermont, Alabama, and Michigan, states where it seems that the chancellors or equity judges have also a common law jurisdiction. 1 In some states, as in Massachusetts, law and equity are adminis tered in the same courts, but as separate systems under an equity procedure modified more or less by statute. In the code states law and equity are administered as one system in the same action. A cardinal principle of the code procedure is, "a single form of action for the protection of all primary rights, whether legal or equitable." This is the so-called fusion of law and equity. It may be confidently affirmed, however, that no legislator has ever yet succeeded in fusing law and equity. No legislator ever will succeed who is not a master of both law and equity, and such a legislator probably will not attempt it. All that can be done is to confer upon the same court or magistrate what may be called the in rem jurisdiction of the common law, by virtue of which a right sued upon is extinguished by the judgment, and changed into an obligation of a different nature, and the in personam jurisdiction of the chancellor.2 Practically the best results seem to be attainable by administering both systems through one court, but with separate divisions adjusted to meet the demands of public business. This is in substance the plan of the English Judicature Act. 4. In common law cases the federal courts have preserved the system of trial by jury substantially as it is used and practiced in England. In Capital Traction Co. v. Hof the Supreme Court decided, speaking by Mr. Justice Gray, that trial by jury under the Constitution" is a trial by a jury of twelve men, in the presence and under the superintendence of a judge empowered to instruct them on the facts, and (except on acquittal of a criminal charge) to set aside their verdict if in his opinion it is against the law or the evidence." This rule secures the dignity of the court and gives to the community the benefit of the experience and wisdom of the judge in guiding the jury to just results and tends to provide and maintain a firm and steady administration of public justice. In some of the states the presiding judge in a jury trial is stripped of his common law power, required to instruct the jury in writing, and only upon subjects on which instructions are requested.1 Under this system, the speech of Horne Tooke to the jury,5 1 Hepburn, Hist. Development of Code Pleading, 12. 2 See Langdell, Equity Pleading, 2 ed., § 43, and n. 4. 3 174 U. S. I, 14 (1898). 4 See 11 Am. & Eng. Encyc., I ed., 261-264; Thompson, Charging the Jury, Introduction and cc. V., VI. Lord Kenyon inquired at the close of the plaintiff's evidence, Is there any defense? "Horne Tooke (taking a pinch of snuff, and looking round the court for a intended no doubt as a studied insult to Lord Kenyon, comes too near the truth. These four points of difference between the state and federal courts to which may be added the further point that under the Constitution all federal judges "shall hold their office during good behavior"—are of such capital importance that differences in results in the work of the two systems in administering justice are likely to appear in time. The increase of business in the federal courts in recent years is a fact worthy of careful study. In 1872 Judge Curtis said to the students at the Harvard Law School: "When I came to the bar forty years ago, there were comparatively few cases tried in the courts of the United States. They were generally important cases, but they were few, and the number of practitioners engaged in those courts was small." At the present time some knowledge of federal law and practice is practically a necessity for every member of a state bar. In the competition, so to speak, between the state courts and the federal courts, it is of the utmost importance that the efficiency of the judiciary of the states should be maintained. If diversities in the laws of the states continue to increase, increasing dissatisfaction of the community may cause all persons who are interested in uniformity of law to unite in a general movement to extend the federal jurisdiction in the sphere of private law. If Congress should make the jurisdiction of the federal courts exclusive in every case to which the judicial power of the United States extends, the volume. of business in the state courts would be diminished. There is a strong tendency at the present time to extend the legislative power of the national legislature, especially in the regulation of interstate commerce. It is quite probable that in the future Congress will exercise control under the Constitution over subjects which have hitherto been left to the legislative action of the states. That tendency is increased by the unfortunate belief which is wide-spread among the people that state legislatures have not legislated with wisdom and fidelity to the public minute or two): 'There are three efficient parties engaged in this trial, — you, gentlemen of the jury, Mr. Fox, and myself, and I make no doubt that we shall bring it to a satisfactory conclusion. As for the judge and the crier, they are here to preserve order; we pay them handsomely for their attendance, and in their proper sphere they are of some use; but they are hired as assistants only; they are not, and never were intended to be, the controllers of our conduct." 3 Campbell, Lives of the Chief Justices, 2 ed. (1858), 70. 1 Curtis, Jurisdiction U. S. Courts, I. 1 interests. The existence of this belief is proved convincingly by the many provisions1 of modern state constitutions manifestly aimed at the restriction of legislative power. If, unhappily, the judiciary department of the states, or of a number of the states, should also fail in public esteem or confidence, what would become of the governments of the states? Without an upright and efficient judiciary the states cannot endure. Without the states the union of states cannot endure. Uniformity of law in the several states gains new importance when viewed as a means of upholding the state courts as against the federal courts, and of preserving the just balance between the federal government and the governments of the states. Such uniformity cannot be attained or preserved merely by reducing the law or a portion of the law to a statute or code. It can be attained and preserved only by the united efforts of all who are engaged in the study or administration of the law, in a spirit of loyal devotion to the inherited systems of common law and equity which have descended to us from the past. The most effective organization of courts in the several states, with a view to secure to the public the best administration of justice, and to maintain the science of jurisprudence in spite of the mass of precedents and statutes and the bewildering diversity of rules, will come only through labors informed and inspired from the same great sources. Upon the quality of the work done by the judges, lawyers, and teachers of law in the United States, in their respective spheres, depends the future of uniformity of law in the several states, and, it may almost be said, the existence of state law, and of the states themselves as political sovereignties. William Schofield. BOSTON. 1 1 Bryce, Am. Comm., 3 ed., 444 and 468; Dicey, Law and Opinion, 9; 1 Am. Pol. Sci. Rev. 210; Reinsch, c. VIII., The Perversion of Legislative Action. CONSTITUTIONAL QUESTIONS INVOLVED IN THE COMMODITY CLAUSE OF TH THE HEPBURN ACT. HE Act of Congress approved June 26th, 1906, amending the "From and after May first, nineteen hundred and eight, it shall be unlawful for any railroad company to transport from any State, Territory, or the District of Columbia, to any other State, Territory, or the District of Columbia, or to any foreign country, any article or commodity, other than timber and the manufactured products thereof, manufactured, mined, or produced by it, or under its authority, or which it may own in whole, or in part, or in which it may have any interest direct or indirect except such articles or commodities as may be necessary and intended for its use in the conduct of its business as a common carrier." Three distinct classes of questions may arise under this provision. First: Has Congress power to pass such an Act? Second: What amounts to a violation of the Act? Third: What are the consequences to the carrier violating the Act, and the means given to the executive to enforce it? This article deals only with questions falling under the first class. There may be constitutional questions arising out of the penalties, if any, prescribed by Congress for a violation of the clause, or constitutional objections to the means given to the executive to enforce the Act. If there are such constitutional questions they are beyond the scope of this article, which deals only with the constitutional questions suggested by the section which has been recited. The third paragraph of the eighth section of the first article of our federal Constitution gives to Congress the power "to regulate commerce with foreign nations, and among the several states, and with the Indian tribes." Is a law which prohibits an interstate carrier from carrying a product in which the carrier is directly or indirectly interested constitutional? The leading case on the Commerce Clause is Gibbons v. Ogden, decided in 1824.1 In that case, under the guidance of Chief Justice Marshall, the Supreme Court 19 Wheat. (U. S.) 1. |