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Show NOT A JEFFERSONIAN DEMOCRAT. A ircod deal of interest has been aroused among the legal fraternity In the point raised between President Roosevelt and Judge Parker as to tho application of the common law in the Federal courts. President Roosevelt said In his letter , of acceptance that "there Is no common law of the United States." Judire Parker In his letter of acceptance replied that "common law principles could bo applied by United States courts In cases Involving Interstate Inter-state commerce, in the absence of United States statutes specifically covering cov-ering the case;" and he cited the case of the appeal of the Western Union Telegraph Tel-egraph company against the Call Publishing Pub-lishing company In support of his position. po-sition. That was a case which came to the Federal courts from the State courts of Nebraska. The Call sued the Western Union to recover on what it alleged to be exorbitant charges it had been made to pay for dispatches, compared with charges for like service to a rival newspaper news-paper in Lincoln, Nebraska. The service ser-vice was, of course, an Interstate service, ser-vice, but the suit was brought In tho State courts for a refund of nnnnifir. money alleged to bo an overcharge. The State courts found for the plaintiff, and the telegraph company appealed. The U. S. Supreme Court held that lt would recognize and enforce the common law of the State. The Federal courts, as a matter of fact, commonly sustain the State courts in enforcing their Stato laws and the common law ns It exists In the respective States. Hence, it Is very Justly said that though thero Is no common law of tho United States, the common law Is prevalent In tho United States. Henry W. Taft, a brother of tho Secretary Sec-retary of War, has taken up tho ques-tlon ques-tlon as a legal proposition. He shows that Judge Parker's contention Is Irrelevant Irrele-vant to the real Issue; that the question whether there was any unwritten or common law for the Federal courts to act upon was not raised in the case, but only tho enforcement of the common law of Nebraska, as expounded by the court3 of that State; and, further, that If it had been, the U. S. Supremo Court must havo held that when Congress passed the Sherman act, and the several anti-trust and Interstate commerce acts of 1903, any unwritten law on tho subject sub-ject was superseded. But while Judge Parker's blunder In this was inexcusable in a lawyer, he might be pardoned on the theory that he was "playing politics." Here. how-, ever, ho is even worse off, considered from the standppint of Jeffersonian Democracy, as Mr. Taft shows. Mr. Jefferson considered this very question In a letter which ho wrote to Edmund Randolph on August IS, 1709. In that letter he referred to the assumption of a Federal common law as an "audacious, "auda-cious, barefaced, and sweeping pretension," preten-sion," and holds that "the common law did not become, ipso facto, law in the new association under tho Federal Fed-eral Constitution; lt could onlbocomo so by a positive adoption, and oo far only as they the Federal agencies wcro authorized to adopt lt. But. great Heavens! who could have conceived in 1789 that within ten years wo should havo to combat such wind mills!" But the "wind mills" of Jefferson are paraded by this modern Don Quixote as genuine giants, and under color of legal citation the doctrine Is made an attempt at-tempt to muddle a question upon which there can be no real controversy at all. |