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tools that have been devised to aid the searcher for authority, such as citation. books, tables of cases, etc.
The method of instruction is thoroughly practical. Each student (thirty students are taken at a time) has before him copies of the books he is to work with, and every man is required to do the work he will be called upon to do when, as a lawyer, he wishes to find authorities. It is, in fact, an application of the laboratory method of instruction. This not only makes it more interesting to the student, but insures his understanding the explanations and illustrations on which the instruction is based.
The last session of the class is usually followed by an informal discussion of books and methods. In fact, after nearly every session, a dozen or more students will remain for discussion of particular phases of the work, and to get additional explanation of some difficult processes, or advice as to the formation of a library.
That the instruction interests the students, that they are anxious to learn all they can about the use of the tools of their profession, has been clearly demonstrated. Even in the schools where the work is purely elective, nearly all of the students attend the classes. In many schools, not only all of the class to which the instruction is supposed to be given attend, but students from other classes often obtain permission to attend.
I generally make it a practice to spend a large portion of my time in the law school library, where the students can, if they desire, meet me for personal consultation and for the solution of difficulties arising in their moot court work or in the preparation of their theses for graduation. Not the least gratifying of my experiences in this connection has
been the alacrity with which the students have availed themselves of the opportunity thus afforded them to get assistance and advice on some of the problems that were perplexing them. There is one large state university where I spend two weeks, and nearly every day during that period a dozen or more of the students have come to me for additional help and special instruction. In such instances I adhere to the principle of making the student do the work. I never find the cases for him, but endeavor to put him on the right track to find them for himself. In several of the schools I have visited, some of the students are employed during a portion of the day in law offices. It is a common thing for these men to bring me actual cases in which their employers are interested and request assistance in getting a start in their search for authorities. In one or two instances lawyers have sent their clerks, not members of the law class, but who had heard from friends of the purpose of the instruction, to attend the sessions.
These incidents are mentioned simply for the purpose of showing the avidity with which the average law student welcomes anything in the way of instruction on the practical side of the profession. The course of instruction on "How to Find the Law" is thoroughly practical and correspondingly interesting to the earnest student.
The success of this new venture in the field of legal education has brought to light the necessity for instruction along other lines analogous to, and in a sense. underlying, the present course. My experience with the students, supplemented by conversations with them, with librarians, and with members of the various faculties, convinces me that there is a
real need for a course of instruction in elementary legal bibliography, using the term in rather a broad sense. Such a course should cover in an elementary. way such matters as Sources of the Law, Repositories of the Law, Law Books as Authorities, Study and Use of Decisions, etc. When students ask, as they often do, where they will find a case cited as Smith v. Jones, 6 Cush. 205, or Brown v. Robinson, 91 Am. St. Rep. 89, or whether they can cite the Century Digest as an authority, it indicates that there is a need for the kind of instruction I have mentioned. These or similar questions have been asked me in nearly every one of the thirty law schools I have visited. Does the average law stuIdent, even in his third year, know that the report of a case in the so-called "official" reports is, so far as the opinion and decision are concerned, no more official than the same report in the American State Reports, or Lawyers' Reports Annotated, or in any other series of reports? Does he know that many decisions, though of record, are not reported in the so-called official reports? Does he know that those cases can be found in the National Reporter System? Does he know that the Lawyers' Reports Annotated, the American State Reports, and other selected case series, do not pretend to report all cases? From my talks with students I have found that they do not know these and many other essential things.
Suppose a student has cited to him by his instructor the case of Crandall v. Minneapolis, St. P. & S. S. M. Ry. Co., 96 Minn. 434, which involves the question of the liability of the railroad company for an injury to a passenger, due to the failure to keep closed, between stations, the doors of the vestibule between
the cars. He goes into the library to read the report, and finds that some other member of the class has the book. Does he know that the case is reported in the Northwestern Reporter (105 N. W. 185), or how to go about it to find the case through the Blue Books? Suppose his instructor has given him the citation to the Northwestern Reporter, and that volume is also out. Does he know that there are at least four other places where he may find the case reported, and does he know how to make the necessary search? If he does know these things, he will find the same case reported in 2 L. R. A. (N. S.) 645, 113 Am. St. Rep. 653, 43 Am. & Eng. R. R. Cases, 478, and 19 Am. Neg. Rep. 348; but I venture to say that not one student in twenty knows how to trace the case into these special series of reports, and probably does not know that all these special series exist.
In a few schools the need for this sort of instruction has been recognized, and courses in legal bibliography have been established. In other schools the value of the instruction is conceded, but for one reason or another the matter still remains in abeyance. Students everywhere seem to realize that they need instruction along these lines, and over and over again I have heard them express the wish that such a course could be given. A ten or twelve hour course given to the first-year students during the first month of a school year would be of incalculable benefit to them.
My investigations during the past three years have convinced me, not only of the necessity for such instruction, but that it can be given successfully and to the lasting good of the student, if placed in the hands of one who will bring to 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
Jurisdiction of the Federal Courts.*
By WILLIAM H. SEAMAN,
Judge of the United States Circuit Court of Appeals.
HE importance of the subject of the jurisdiction of the federal courts to the law student cannot be overestimated. Thorough understanding of each of our two judicial systems, federal and state, is indispensable to advise and protect clients in their rights and remedies, as the benefit of one or the other forum may often be essential or advantageous. Not only is such understanding needful for practice of the law, but the duality of judicial systems conceived by the framers of our dual system of government is of great interest, professional and patriotic, for its originality and perfection.
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.
Encomium of the great work of the founders, in establishing complete nationality in the union of states, with Anglo-Saxon freedom preserved in state sovereignty, is not within the of this paper. But the relation purpose of the dual systems of government and jurisprudence to each other must be observed, to appreciate the value and character of these judicial systems, without which their fabric of dual government must have failed when tested by the inevitable conflicts over the
measure of sovereignty, either national or state, granted or reserved under the Constitution. With thirteen independent colonies, imbued with the spirit and traditions of their Anglo-Saxon heritage, to be nationalized under a bond of permanent union, the founders had great problems to be solved. No such union was possible unless the sovereignty of each constituent state was recognized and perpetuated; while, on the other hand, their union was worthless a mere rope of sand-if the national sovereignty was not made paramount for all national objects, complete within its sphere and self-supporting. As each state had a complete system, both governmental and judicial, which it would not surrender, duality of both was an imperative need for the end sought, with no precedent for either such system furnished in history, ancient or modern.
Dual Government. The national government was formed, as the Constitution declares, for union of the states, "to establish justice, insure domestic tranquility, provide for the common defense, promote the general
* An address delivered by Judge Seaman before the students of Marquette University
December 18, 1908.
welfare and secure the blessings of liberty to ourselves and our posterity"; and the matters of federal sovereignty are enumerated in article 1-which should be carefully examined to ascertain the general scope of national authority-while the tenth amendment (article X) supplies in express terms the implied reservation to the states of all "powers not delegated to the United States by the Constitution, nor prohibited by it to the states." Questions as to the extent of federal and state authority, respectively, under the Constitution, are constantly arising for judicial determination, and the books are filled with a bewildering mass of decisions from various viewpoints, federal and state; but the Supreme Court of the United States, as the ultimate tribunal for their settlement, has established in a continuous and substantially uniform line of decisions the rule of limitation and scope of sovereignty vested in each, under which all such questions must be solved. In the early and leading case of McCulloch v. Maryland, 4 Wheat. 316, 410, 4 L. Ed. 579, the great expounder of the Constitution, Chief Justice Marshall, tersely stated, as the division of these powers between nation and state, that each is "sovereign with respect to the objects committed to it, and neither sovereign with respect to the objects committed to the other." One of the clearest definitions in the books is contained in the opinion of Mr. Justice Field, speaking for the Supreme Court, in Tarble's Case, 13 Wall. 397, 406, 20 L. Ed. 597, viz.:
"There are within the territorial limits of each state two governments, restricted in their spheres of action, but independent of each other, and supreme within their respective spheres. Each has its separate departments, each has its distinct laws, and each has its own tribunals for their enforcement. Neither government can intrude within the
jurisdiction, or authorize any interference therein by its judicial officers with the action of the other. The two governments in each state stand in their respective spheres of action in the same independent relation to each other, except in one particular, that they would if their authority embraced distinct territories. That particular consists in the supremacy of the authority of the United States when any conflict arises between the two governments. The Constitution and the laws passed in pursuance to it are declared by the Constitution itself to be the supreme law of the land, and the judges of every state are bound thereby, 'anything in the Constitution or laws of any state to the contrary notwithstanding.' Whenever, therefore, any conflict arises between the enactments of the two sovereignties, or in the enforcement of their asserted authorities, those of the national government must have supremacy until the validity of the different enactments and authorities can be finally determined by the tribunals of the United States. This temporary supremacy until judicial decision by the national tribunals, and the ultimate determination of the conflict by such decision, are essential to the preservation of order and peace, and the avoidance of forcible collision between the two governments."
So the independence of each of these sovereignties within its sphere, subject always to the limitations fixed by the Constitution as thus interpreted, must be borne in mind to understand the scope of jurisdiction in the federal courts; and in that view the two leading cases referred to, together with the opinion of Chief Justice Taney in Ableman v. Booth, 21 How. 506, 16 L. Ed. 169, are mines of information. Later cases are numerous, reaffirming their doctrine, and it is unquestionable that they establish the rule of decision, binding alike upon all departments of government, federal or state, and setting aside all conflicting views of authority which appear in state reports. Complete federal supremacy in respect of all powers expressly granted is settled, and the only questions thereupon which are open, when controversy arises, are in reference either to exercise of the power granted and its ap
plication to the facts presented, or to powers which may be implied under the terms of the grant.
Dual Judicial Systems Within Each State.-Article III of the Constitution vests (section 1) the judicial power of the United States "in one Supreme Court, and in such inferior courts as the Congress may from time to time. ordain and establish," with tenure of the judges to be "during good behavior," and extends the judicial power (section 2) "to all cases, in law or equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority; to all cases affecting ambassadors, other public ministers. and consuls; to all cases of admiralty and maritime jurisdiction; to controversies to which the United States shall be a party; to controversies between two or more states; between a state and citizens of another state; between citizens of different states; between citizens of the same state claiming lands or other grants of different states, and between a state, or the citizens thereof, and foreign states, citizens or subjects."
With inherent power reserved in the states to have their independent judicial establishments intact, two judicial systems were thus provided within the limits of each state, exercising their powers independently, of co-ordinate rank, in large measure, respecting persons and subject-matter. As before remarked, the plan of dual government could not otherwise be made effective and stable, but the problem for legislative and judicial solution, to adjust these powers and jurisdictions between such courts so that independence is preserved and conflict avoided, in conformity with the great plan of the
founders, had no precedents for guidance-was one of the most difficult of the many questions to be solved for union in fact as well as in name. The incomparable Judiciary Act of 1789, under the Constitution, staked out the boundaries and gave the initial form to the federal jurisdiction; and the decisions of the Supreme Court, the great tribunal established by the Constitution for settlement of all such questions, have so settled the independent sphere of each jurisdiction, federal and 'state, and the limitations with reference to each other in exercise thereof, that serious conflicts are comparatively infrequent-arising only when those definitions are overlooked or disregarded-and are then subject to correction by the Supreme Court.
The acts of Congress within the grants of national power are, therefore, of paramount force throughout the Union; and, although actions or proceedings thereunder are usually cognizable only in federal courts, they are the law in every state, and controlling in all its courts, in so far as such law is applicable to matters in litigation. Likewise, the legislation of the state, within its vast field of reserved powers over the rights of persons and property, constitutes the "law of the land" in such sovereignty, binding as well upon the federal court in the administration of that law under its co-ordinate jurisdiction, as upon the state courts with an exception (to be referred to later) in reference to practice and procedure in the federal court. Thus two systems of laws are operative in each state, forming one system of jurisprudence, which must be observed by the courts of either jurisdiction. Neither court is foreign to the other, but the jurisdiction of each is "partly different and partly