Page:The Green Bag (1889–1914), Volume 17.pdf/186

 EDITORIAL DEPARTMENT

CURRENT LEGAL ARTICLES This department represents a selection of the most important leading articles in all the English and American legal periodicals of the preceding month. The space dnioted to a summary does not always represent the relative importance of the article, for essays of the most permanent value are usually so condensed in style that further abbre viation is impracticable.

ADMIRALTY (Fellow-Servant Rule)

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A BRIEF protest against "The Extension of the Fellow-Servant Doctrine," to the Ad miralty by Frederick Cunningham appears in the February Harvard Law Review (Vol. 18, p. 294.) The author describes the satisfaction of the bar when it was decided that the com mon law doctrine of contributory negligence would not be applied in the Admiralty Courts and the corresponding dissatisfaction with a recent dictum of the Supreme Court of the United States in The Osceola, 189 U. S., 158, implying that the fellow-servant doctrine is applicable in admiralty. The author regards such extension of the common law doctrine as unnecessary since the doctrine of respondeat superior when properly applied does not have its full force in the admiralty and hopes that when the question is directly presented to the Supreme Court its recent dictum may be reconsidered. ADMIRALTY (See International Law) CONSTITUTIONAL LAW Control)]

(Corporations. Federal

PROF. HORACE L. WILGUS publishes a careful analysis and criticism of Commissioner Garfield's report in the February Michigan Law Review (V. 3, p. 264), entitled, "Federal License or National Incorporation" which is of interest in connection with the discussion by Messrs. Parsons and Curtis in these pages. He contends that the objections to the in corporation plan apply with still greater force to Federal license; that it would "stop present business methods making them illegal and provide no law for reorganization;" that it would not touch the most dangerous com bination, the holding company. As to the objection to the incorporation plan that federal government cannot confer the power to pro duce, he contends that it is not necessary that such a power be granted to corporations en gaged in interstate commerce, but that if it is,

while the United States cannot as Commissioner Garfield contends confer the full legal right to do so within a State without its consent, it can confer the power to do it with consent, and it is highly unlikely that any State would prevent this. As to the policy of incorporation he says: "As things now are, commerce is carried on by corporations that owe no Federal but only state allegiance; the license plan proposes to continue this; the life of the individual who disobeys Federal law may be taken if the law so provides, —but the life of the state-created corporation can not be, except by the state that creates it. We do not believe in this discrimination. Let the corporation that carries on interstate commerce owe as direct and positive allegiance to the Federal govern ment as the individual citizen who engages in such commerce. This is not offensive centralization; it is only justice and fairness; it is the 'square deal1 all around; besides, it goes back to first principles,—the government that undertakes to control should operate directly on the persons, natural or artificial, to be controlled, and only the government that has adequate power should undertake it. Two ideas dominated the Federal constitutional convention, viz.: that the Federal Powers should operate directly upon all persons every where, without consulting state laws or state prejudices, and that the government should have adequate powers to accomplish the duties with which it was charged. Five different times the convention resolved unanimously that Congress should be given power 'to legislate in all cases to which the separate states are incompetent, or in which the harmony of the United States may be interrupted by the exercise of individual legislation.' These were the directions given and observed in formulating the express powers of Congress; these were the ends to be accomplished; the powers given were given to accomplish these ends. The occasion has now arisen for their application to our commercial affairs. To ap