Page images
PDF
EPUB

tools that have been devised to aid the been the alacrity with which the students searcher for authority, such as citation have availed themselves of the opportunbooks, tables of cases, etc.

ity thus afforded them to get assistance The method of instruction is thor- and advice on some of the problems that oughly practical. Each student (thirty were perplexing them. There is one students are taken at a time) has before large state university where I spend two him copies of the books he is to work weeks, and nearly every day during that with, and every man is required to do period a dozen or more of the students the work he will be called upon to do have come to me for additional help and when, as a lawyer, he wishes to find au- special instruction. In such instances I thorities. It is, in fact, an application adhere to the principle of making the of the laboratory method of instruction. student do the work. I never find the This not only makes it more interesting cases for him, but endeavor to put him to the student, but insures his under- on the right track to find them for himstanding the explanations and illustra- self. In several of the schools I have tions on which the instruction is based. visited, some of the students are em

The last session of the class is usually ployed during a portion of the day in followed by an informal discussion of law offices. It is a common thing for books and methods. In fact, after near- these men to bring me actual cases in ly every session, a dozen or more stu- which their employers are interested and dents will remain for discussion of par- request assistance in getting a start in ticular phases of the work, and to get

their search for authorities. In one or additional explanation of some difficult two instances lawyers have sent their processes, or advice as to the formation clerks, not members of the law class, but of a library.

who had heard from friends of the purThat the instruction interests the stu- pose of the instruction, to attend the sesdents, that they are anxious to learn all sions. they can about the use of the tools of These incidents are mentioned simply their profession, has been clearly dem- for the purpose of showing the avidity onstrated. Even in the schools where with which the average law student welthe work is purely elective, nearly all of comes anything in the way of instructhe students attend the classes. In many tion on the practical side of the professchools, not only all of the class to which sion. The course of instruction the instruction is supposed to be given

"How to Find the Law" is thoroughly attend, but students from other classes practical and correspondingly interesting often obtain permission to attend.

to the earnest student. I generally make it a practice to spend The success of this new venture in the a large portion of my time in the law field of legal education has brought to school library, where the students can, light the necessity for instruction along if they desire, meet me for personal con- other lines analogous to, and in a sense sultation and for the solution of difficul- underlying, the present course. My exties arising in their moot court work or perience with the students, supplemented in the preparation of their theses for by conversations with them, with librarigraduation. Not the least gratifying of ans, and with members of the various my experiences in this connection has faculties, convinces me that there is a

on

more

real need for a course of instruction in

the cars.

He goes into the library to elementary legal bibliography, using the read the report, and finds that some other term in rather a broad sense. Such a member of the class has the book. Does course should cover in an elementary he know that the case is reported in the way such matters as Sources of the Law, Northwestern Reporter (105 N. W. 185), Repositories of the Law, Law Books or how to go about it to find the case as Authorities, Study and Use of Deci- through the Blue Books? Suppose his sions, etc. When students ask, as they instructor has given him the citation to often do, where they will find a case the Northwestern Reporter, and that cited as Smith v. Jones, 6 Cush. 205, or volume is also out. Does he know that Brown v. Robinson, 91 Am. St. Rep. 89, there are at least four other places where or whether they can cite the Century he may find the case reported, and does Digest as an authority, it indicates that he know how to make the necessary there is a need for the kind of instruc- search? If he does know these things, tion I have mentioned. These or simi- he will find the same case reported in 2 lar questions have been asked me in near- L. R. A. (N. S.) 615, 113 Am. St. Rep. ly every one of the thirty law schools I 653, 43 Am. & Eng. R. R. Cases, 478, have visited. Does the average law stu- and 19 Am. Neg. Rep. 348; but I vendent, even in his third year, know that ture to say that not one student in twenthe report of a case in the so-called “of- ty knows how to trace the case into these ficial” reports is, so far as the opinion special series of reports, and probably and decision are concerned, no

does not know that all these special seofficial than the same report in the Amer- ries exist. ican State Reports, or Lawyers' Reports In a few schools the need for this Annotated, or in any other series of re- sort of instruction has been recognized, ports? Does he know that many deci- and courses in legal bibliography have sions, though of record, are not report

been established. In other schools the ed in the so-called official reports? Does

value of the instruction is conceded, but he know that those cases can be found in for one reason or another the matter the National Reporter System? Does still remains in abeyance. Students evhe know that the Lawyers' Reports An- erywhere seem to realize that they need notated, the American State Reports, instruction along these lines, and over and other selected case series, do not and over again I have heard them expretend to report all cases ? From my press the wish that such a course could talks with students I have found that be given. A ten or twelve hour course they do not know these and many other given to the first-year students during essential things.

the first month of a school year would Suppose a student has cited to him by be of incalculable benefit to them. his instructor the case of Crandall v. My investigations during the past Minneapolis, St. P. & S. S. M. Ry. Co., three years have convinced me, not only 96 Minn. 431, which involves the ques- of the necessity for such instruction, but tion of the liability of the railroad com- that it can be given successfully and to pany for an injury to a passenger, due to the lasting good of the student, if placed the failure to keep closed, between sta- in the hands of one who will bring to tions, the doors of the vestibule between the work enthusiasm for the practical, as distinguished from the academic, side of the law, an expert knowledge or adequate preparation, and faith in its efficiency, and who will, above all, make the course practical, applying to it the same laboratory methods that have been

used in the other branch of the work. Under such conditions it will appeal to every earnest student as a course that will prove helpful to him in his studies in the law school and an invaluable asset in the practice of his profession.

Jurisdiction of the Federal Courts. *

BY WILLIAM H. SEAMAN,
Judge of the United States Circuit Court of Appea's.

THE

HE importance of the subject of measure of sovereignty, either national

the jurisdiction of the federal or state, granted or reserved under the courts to the law student cannot be Constitution. With thirteen independoverestimated. Thorough understand- ent colonies, imbued with the spirit and ing of each of our two judicial systems, traditions of their Anglo-Saxon heritfederal and state, is indispensable to ad- age, to be nationalized under a bond of vise and protect clients in their rights permanent union, the founders had and remedies, as the benefit of one or great problems to be solved. No such the other forum may often be essential union was possible unless the soveror advantageous. Not only is such un- eignty of each constituent state was derstanding needful for practice of the recognized and perpetuated; while, on law, but the duality of judicial systems

the other hand, their union was worthconceived by the framers of our dual less-a mere rope of sand if the nasystem of government is of great inter- tional sovereignty was not made parest, professional and patriotic, for its amount for all national objects, comoriginality and perfection.

plete within its sphere and self-supEncomium of the great work of the porting. As each state had a complete founders, in establishing complete na

system, both governmental and juditionality in the union of states, with

cial, which it would not surrender, Anglo-Saxon freedom preserved in duality of both was an imperative need state sovereignty, is not within the for the end sought, with no precedent purpose of this paper. But the relation for either such system furnished in hisof the dual systems of government and

tory, ancient or modern. jurisprudence to each other must be Dual Government. The national observed, to appreciate the value and government was formed, as the Concharacter of these judicial systems, stitution declares, for union of the without which their fabric of dual gov- states, “to establish justice, insure ernment must have failed when tested domestic tranquility, provide for the by the inevitable conflicts over the common defense, promote the general

* An address delivered by Judge Seaman before the students of Marquette University December 18, 1908.

are

welfare and secure the blessings of lib- jurisdiction, or authorize any interference

therein by its judicial officers with the action erty to ourselves and our posterity”;

of the other. The two governments in each and the matters of federal sovereignty state stand in their respective spheres of acenumerated in article 1-which

tion in the same independent relation to each

other, except in one particular, that they should be carefully examined to ascer- would if their authority embraced distinct tain the general scope of national au

territories. That particular consists in the

supremacy of the authority of the United thority-while the tenth amendment States when any conflict arises between the (article X) supplies in express terms

two governments. The Constitution and the

laws passed in pursuance to it are declared the implied reservation to the states of by the Constitution itself to be the supreme all "powers not delegated to the Unit

law of the land, and the judges of every

state are bound thereby, 'anytbing in the ed States by the Constitution, nor pro- Constitution or laws of any state to the conhibited by it to the states.” Questions

trary notwithstanding. Whenever, therefore,

any conflict arises between the enactments as to the extent of federal and state au

of the two sovereignties, or in the enforcethority, respectively, under the Consti- ment of their asserted authorities, those of

the national government must have supremtution, are constantly arising for judi

acy until the validity of the different encial determination, and the books are actments and authorities can be finally de

termined by the tribunals of the United filled with a bewildering mass of deci

States. This temporary supremacy until jusions from various viewpoints, federal dicial decision by the national tribunals, and and state; but the Supreme Court of

the ultimate determination of the conflict by

such decision, are essential to the preservathe United States, as the ultimate trib- tion of order and peace, and the avoidance

of forcible collision between the two governunal for their settlement, has establish

ments." ed in a continuous and substantially uniform line of decisions the rule of limi- So the independence of each of these tation and scope of sovereignty vested sovereignties within its sphere, subject in each, under which all such questions always to the limitations fixed by the must be solved. In the early and lead

Constitution as thus interpreted, must ing case of McCulloch v. Maryland, 4

be borne in mind to understand the Wheat. 316, 410, 4 L. Ed. 579, the great scope of jurisdiction in the federal expounder of the Constitution, Chief courts; and in that view the two leadJustice Marshall, tersely stated, as the ing cases referred to, together with the division of these powers between na- opinion of Chief Justice Taney in Abletion and state, that each is "sovereign man v. Booth, 21 How. 506, 16 L. Ed. with respect to the objects committed 169, are mines of information. Later to it, and neither sovereign with re- cases are numerous, reaffirming their spect to the objects committed to the doctrine, and it is unquestionable that other." One of the clearest definitions they establish the rule of decision, in the books is contained in the opinion binding alike upon all departments of of Mr. Justice Field, speaking for the government, federal or state, and setSupreme Court, in Tarble's Case, 13 ting aside all conflicting views of auWall. 397, 406, 20 L. Ed. 597, viz.: thority which appear in state reports.

“There are within the territorial limits of Complete federal supremacy in respect each state two governments, restricted in

of all powers expressly granted is settheir spheres of action, but independent of

tled, and the only questions thereupon each other, and supreme within their respective spheres. Each has its separate depart- which are open, when controversy ments, each has its distinct laws, and each

arises, are in reference either to exerhas its own tribunals for their enforcement. Neither government can intrude within the cise of the power granted and its application to the facts presented, or to founders, had no precedents for guidpowers which may be implied under ance—was one of the most difficult of the terms of the grant.

the many questions to be solved for Dual Judicial Systems Within Each

union in fact as well as in name. The State.--Article III of the Constitution incomparable Judiciary Act of 1789, vests (section 1) the judicial power of

under the Constitution, staked out the the United States "in one Supreme

boundaries and gave the initial form Court, and in such inferior courts as

to the federal jurisdiction; and the dethe Congress may from time to time

cisions of the Supreme Court, the great ordain and establish,” with tenure of

tribunal established by the Constituthe judges to be "during good behav

tion for settlement of all such quesior," and extends the judicial power

tions, have so settled the independent (section 2) “to all cases, in law or equi- sphere of each jurisdiction, federal and ty, arising under this Constitution, the

'state, and the limitations with referlaws of the United States, and treaties ence to each other in exercise thereof, made, or which shall be made, under

that serious conflicts are comparativetheir authority; to all cases affecting ly infrequent-arising only when those ambassadors, other public ministers

definitions are overlooked or disregardand consuls; to all cases of admiralty ed—and are then subject to correction and maritime jurisdiction; to contro- by the Supreme Court. versies to which the United States

The acts of Congress within the shall be a party; to controversies be- grants of national power are, therefore, tween two or more states; between a of paramount force throughout the Unstate and citizens of another state; be

ion; and, although actions or proceedtween citizens of different states; be- ings thereunder are usually cognizable tween citizens of the same state claim- only in federal courts, they are the law ing lands or other grants of different in every state, and controlling in all its states, and between a state, or the citi- courts, in so far as such law is applicazens thereof, and foreign states, citi- ble to matters in litigation. Likewise, zens or subjects."

the legislation of the state, within its With inherent power reserved in the

vast field of reserved powers over the states to have their independent judi- rights of persons and property, consticial establishments intact, two judicial

tutes the "law of the land" in such sovsystems were thus provided within the ereignty, binding as well upon the fedlimits of each state, exercising their eral court in the administration of that powers independently, of co-ordinate law under its co-ordinate jurisdiction, rank, in large measure, respecting per- as upon the state courts with an exsons and subject matter. As before ception (to be referred to later) in refremarked, the plan of dual government erence to practice and procedure in the could not otherwise be made effective federal court. Thus two systems of and stable, but the problem for legisla- laws are operative in each state, formtive and judicial solution, to adjusting one system of jurisprudence, which these powers and jurisdictions between must be observed by the courts of eisuch courts so that independence is ther jurisdiction. Neither court is forpreserved and conflict avoided, in con- eign to the other, but the jurisdiction formity with the great plan of the of each is "partly different and partly

« PreviousContinue »