enforcement of laws, and each power should be made to not infringe upon the other, but each in its own sphere to be su

preme.

Since 1863, however, we have been experiencing a conflict between the judicial departments of the State and Union which betoken evil, for to a marked extent we are trying to administer antagonistic laws within the States; and sometimes a state of facts which will entitle a plaintiff to obtain the redress sought in our State courts, will at others, perhaps the same day, in the same State, be declared insufficient upon which to maintain and support a claim in our Federal courts, and vice versa. This conflict is due to the fact that our Federal courts have departed from a long line of decisions, covering the first eighty years of our national existence, when the construction of all statutes of States, their constitutions and their common law, as laid down by the supreme courts of the States, were accepted by the Federal courts as the laws of State, and were applied as so construed and laid down on all questions affecting public concern or private rights where such laws, as thus construed, were no" infraction of the laws or Constitution of the United States." And this should be the boundary between the two courts, to avoid all dangerous conflicts, and to insure to all the people like protection. The Constitutions of the States, and the legislative enactments of the States, should be construed by the judiciary of the people who make them, and their supreme courts should be supreme, and their decisions should be accepted by all other courts as the law. The laws of the State where a contract is made, or where a wrong is committed, should determine the rights or liabilities of the persons contracting or doing the wrongs.

Whether the cause of action is founded upon contract or tort, the rights of the parties should be determined, whether by our Federal or State courts, by some settled and fixed rules of law governing all such causes or transactions arising within the jurisdiction of the State courts. The common law of a State is as much the law of that State as if it had been enacted by the legislative branch of the State and properly approved by the executive. It is a part of the law of the State, and differs from the legislative enactments of the State only in that the one is, in so many words, put into a public declaration by the Legisla

ture of the State, and intended to afford a remedy for a particular wrong, or define a particular right, while the other is a set of principles and rules well understood but in the "breast of judges and courts, who are its expositors," and are published also from time to time in the decision of causes requiring in their settlement the application of these well-understood rules, adopted by the people as their rules in government and remedies for private rights. The people of a sovereign State or nation are their own law-makers. No power can be higher than this power, and it is without limitation, except as they have limited it by entering into alliances or compacts extending their government, thereby creating another power, which to bring into being requires the surrender, by the first, to it of certain functions. Within the boundaries of a sovereign State the people are the rulers, and as to questions affecting their private rights under our theory of government, no one should dispute with them their rights to make in their own way, whether by usages and customs, adoption or express legislative enactment, all laws regarded by them as necessary to personal security and property rights. That power or government which we call the Federal Government has no peculiar and distinctive common law. It has no citizenship capable of inaugurating customs and usages-its powers are limited. It is incapable of having a common law; the States alone can have a common law; and the people of each State are, in this, their own law-makers, and determine their own rules as completely as families within their borders regulate the domestic affairs of their own households. Why should our Federal courts be bound more by the legislative enactments of a State than by the common law affecting private rights of the people in the State? The people, through their chosen representatives, declare the law in both instances. In the very nature of society and its workings in the several States, the common law cannot be uniform throughout the States, not any more than legislative enactments in the different States upon the same subject. If the Federal power or government has no common law; if this power or government is incapable of having a common law; if the States can have, and have a common law; can any one give a good reason why our Federal courts should declare the law of the State to be other

than as previously and repeatedly declared by the people themselves, speaking through the chosen expositors of their laws, the judges of the State courts?

The trouble mentioned should be remedied by congressional enactment, fixing as the settled laws of each State all enactments of the legislative branch of the State as construed by the State courts and the judicial determinings by the State courts, of all that portion of the law of the State not embraced in its public enactments, and if no precedent is to be found in the States when questions arise in the Federal courts, these courts to adopt a uniform rule, but when the State courts announce the law on that subject to be different to the way previously held by the Federal courts, that thereafter the law, as given by the State courts, be followed, and this for eighty years until, as stated, 1863, was the settled practice.

There can be no good reason given why two citizens of the same state, altogether equal, should, under like circumstances, receive different judgments at the hands of the courts of the land, sitting in their State "administering the law."

There can be no good reason given why the same individual, in controversies with different individuals, growing out of like transactions in the same State, the facts being the same in each controversy, should not obtain the same benefits and protection from any one of the two systems of courts having jurisdiction within the State.

There can be no good reason given why the same individual, in controversies with another individual, growing out of like transactions in the same State, differing only in the amounts involved or sued for, should be forced, by the fact that his causes are pending in different courts, to succeed in one and be defeated in the other.

It is a strange fact that lawyers frequently, in the investigation of questions involved in causes which they are about to bring, or are called upon to defend, consult two different lines of "authorities" on the same subject, one of which is adhered to by one system of courts as the law of the case in a particular State, and the other followed and adhered to by another system of courts as the law of the case in the same State, before de

termining in which court to bring the case, or whether they shall remove the cause from one to the other before defending.

To pursue the present anomalous condition of things along this line, the adherence to duty and law means their violation, and our citizens are confronted by a state of affairs in which they are liable at any and all times to be "damned if they do, and be damned if they don't." Both systems of courts are necessary, and they can, in all cases where they have concurrent jurisdiction, run smoothly and together in the administration of one law, made by the people who are to be governed by them, just as well and as easily as if the two systems were one and the

same.

UNIFORM STATE LAWS.

L. B. MCFARLAND.

The request from your President, accepted by me as a command, for a paper, suggested that it be of not exceeding five minutes in length, and reminded me of a story told by Judge Davis, of the Superior Court of New York, on Mr. Evarts, at a banquet of the American Bar Association, at Saratoga, some years since. Judge Davis said that it was a rule of his court that no attorney should speak longer than five minutes on any motion, and added" that Mr. Evarts had never yet finished his initial sentence on any motion." While I promise to be brief, I trust you will remember that large intellects, no more than large locomotives, can attain effective motion in short space, and not stop me in the introduction. If this paper, however, should be wanting in perspicuity of statement or elaboration of design, I pray you attribute this to the statute of limitation imposed by your President.

The subject chosen is "Uniform State Laws," and the purpose of this paper is to suggest a method by which this uniformity can be attained. That uniformity of laws in the several States, upon a great many subjects, should obtain, is admitted by all. There is no reason why, upon a great number of subjects, there should not be entire statutory and judicial uniformity of laws. There are no local reasons resulting from diversity of interest, or even traditional opinions or habits, why there should be diversity. Some of the subjects for uniformity are acknowledg ment of deeds, commercial paper, including days of grace and form of protest, marriage, divorce, descent, distribution, wills, and insolvency.

There is no reason that can be suggested why the same rule and form should not prevail in Maine as in California in the acknowledgment of deeds, or the same statutes regulating divorce