Congress should not only abrogate the law manufactured by the courts, as above stated, but should repeal that portion of the Judiciary Act of 1887,1 mentioned at the beginning of this article, giving a certain jurisdiction, in terms, over corporations. This law is administered as recognizing corporations as parties to suits.2

This vicious provision is little known, and has not excited observation or comment. It should be repealed, because it proceeds upon the unfounded presumption above stated; because it permits controversies between citizens of the same State to be brought within the grasp of the Federal courts, by assigning causes of action on corporation paper to a resident citizen of another State, thus indefinitely increasing the jurisdiction of the Federal courts; and because it makes a distinction between individual and corporation paper in favor of the corporation.

The general object of this Act was to curtail the jurisdiction of the Circuit Courts. In view of this, How did this obnoxious provision as to corporation paper creep in? In this way: The bill was introduced by a Democrat into a Democratic House; but when it went to the Republican Senate (the stronghold of corporate influence), this provision was there inserted by an amendment excepting corporations from the denial of jurisdiction over suits by assignees unless the assignor could have sued.4

Under this Senate amendment the large and increasing classes of State corporations, issuing great numbers of securities, negotiable by delivery, are now under the cognizance of the Circuit Courts whenever those securities are in the hands of any subsequent holders, although the transfer may have been solely to enable the holders to get into those courts, and although the transferor could not have sued there, and although jurisdiction over these corporations has never been surrendered by the States. By § II of the original Judiciary Act of 1789 the policy was established of preventing the making of assignments for the purpose of giving jurisdiction to the court, - foreign bills only being excepted, in order that their circulation might not be impeded. It was subsequently held that this section, preventing suits by assignees, did not apply to holders of paper payable to bearer and executed by an individual. As an outgrowth of this doctrine, or "superfœtation" (to use a phrase of Caleb Cushing's), the section was then held not to apply to holders of such paper when executed by a corporation. Now comes the Judiciary Act of 1887; and for the purpose of curtailing the jurisdiction, partially abrogates the exemption from the restriction of suit as created by these decisions. But, departing from the policy of curtailment, the Act expressly authorizes suits by transferees of corporation paper. And this although the whole basis of the previous judicial ruling as to corporations was the previous judicial ruling as to individuals. Obviously the words, "if such instrument be payable to bearer and be not made by any corporation," are an excrescence on the face of the Act of 1887, at war with the whole purpose and policy of the Act, and should be eliminated by an amending Act.

It is to be hoped that the present Congress, Democratic in all its branches, will enact that the Circuit Courts shall not take jurisdiction of controversies between corporations created by the States in like manner as they may by law take jurisdiction of controversies between citizens of such States.

If Congress will not interfere, the question should be made an issue in selecting a new House, and should be agitated before the people.

The State courts, in case of such enactment, would resume their original and rightful exclusive jurisdiction, of which they have been deprived by the usurpation of the Federal courts.

The State courts are not distant from the door of any suitor. But a corporation, composed perhaps of his own neighbors and fellow-citizens (who have signed articles under the law of another State), may summon him from his home court, hundreds and even thousands of miles, into the Federal tribunals, when all the real parties, and all the witnesses, and the subject-matter of the suit, may be located at the place of his home State court. It is really a wonder that the States have submitted to the oppression and hardship undergone by their citizens in such cases.

"Judicial duty is not less fitly performed by declining ungranted jurisdiction than in exercising firmly that which the Constitution and laws confer." 1

But the Supreme Court will adhere to its present rulings unless it is enlarged by the addition of judges who will repudiate the rulings. Enlargement is not desirable, and the remedy is with Congress.

The welfare of the Federal courts themselves demands the nonexercise of jurisdiction over State corporations. There would have been no need of the establishment of the appellate courts, had it not been for the usurped jurisdiction. But if there shall be no abrogation of it, additional Federal courts will be needed.

The Federal courts are of inestimable value to the country so long as they do not overstep their ordained limits. The highest court is the guardian of the Constitution; but here, as in some other well-known instances, the Constitution "is wounded in the house of its friends."

The jurisdiction of the State courts embraces all persons and things the subjects of judicial cognizance, except such as by the express terms of the Constitution and an Act of Congress are placed within the exclusive jurisdiction of the courts of the United States.

"To the decision of an underlying question of constitutional law no finality attaches. To endure, it must be right. An Act of the Legislature at variance with the Constitution is pronounced void; an opinion of the Supreme Court is equally so." 2

The debates in the State conventions called to adopt the Constitution show that the principal objection to it concerned the Federal judicial power, as being too indefinite; and it was argued that the State judiciaries would be interfered with. So it has proved in respect to the State courts being deprived of their exclusive jurisdiction over corporations of the States as parties to suits.

Alfred Russell. LAND TRANSFER. – A REPLY TO CRITI

I

CISMS OF THE TORRENS SYSTEM.

HAVE been asked to "close for the plaintiff" in the series of articles in this REVIEW relating to land transfer, being first, the indictment, so to speak, of our present system, in "Record Title to Land," by H. W. Chaplin, in the number for January, 1893; second, "Registration of Title to Land," by Joseph H. Beale, in the February number; and third, "Land Transfer," by F. V. Balch, in the March number.

I have undertaken the task with diffidence, being conscious that, owing to the pressure of professional work, I have not been able to give to the subject as much study and thought as it deserves.

My knowledge of our system, and of its difficulties and defects, comes from actual experience; such knowledge as I have of the Torrens System comes only from reading and reflection. The latter certainly has the appearance of being far superior to our method in securing ease and certainty in land transfer. I believe that it can be adapted to our circumstances; but I should have more confidence in that belief if I had seen the Torrens System in actual operation in some of the places where it prevails.

The subject presents itself in a general way to me as follows: Lawyers and conveyancers here are daily examining and passing titles; and their clients, relying on their assurance that the titles are satisfactory, are investing money in purchasing lands and erecting buildings, and in making loans on such, to the amount in the aggregate of millions of dollars every year. In an experience of a little more than twenty years in the city of Boston and its vicinity, I cannot now recall an instance where one who has paid his money on the faith of a careful examination of the title has lost it, except in the rare cases of forgery. Why not, then, let well enough alone, it may be said. Is it "well enough"? That is just the question. What is the system under which we are making examinations and obtaining these results? The State, on the theory that it is for the public interest that transfers of land shall be open and notorious, has established the method of recording deeds and instruments affecting title to real estate, and provided a place for recording them. Of course the idea of providing a public registry is to enable any one to ascertain the title to estates in land by examining the records of deeds. Yet that is not possible, for the State makes no suitable provision for preserving in the same place, so that they can be easily ascertained, a record of facts upon which title depends; such as actual possession by the grantors, the delivery of deeds, the genuineness of signatures, the due authority of persons who take acknowledgments, - purporting to be officers and magistrates, — heirship, capacity to contract, marriage, and divorce. It permits title to depend upon records and proceedings outside of the registry of deeds, such as of the ordinary civil courts and of courts of probate and insolvency; the records and proceedings of various public officers, such as of boards of aldermen and selectmen, street commissioners, a board of survey, and boards of health, such officers having power to take land or create liens for public improvements, such as streets, sewers, sidewalks, edgestones, and drainage of lands; and the records and proceedings of quasi-public corporations, such as railroad and water companies, to which it delegates the power of eminent domain. Then, too, the exceptions to the statutes of limitation may render necessary in some cases a possession of more than sixty years to cut off possible adverse rights, though the period in ordinary cases is twenty years. I do not give these as a complete summary of all the data that it may be necessary to look for and investigate in examining a title, but as some of the most prominent. Nor do all these circumstances occur in every title that is examined; but the possibility that there may be in these outside records and proceedings something affecting a title, throws a doubt upon every title, and makes it necessary to do much work which afterward is found to be needless.

And last, but not least, the indexes to the record of deeds themselves are incomplete and insufficient, and much work has to be done in the registry itself to ascertain the instruments which affect a particular title. It is therefore a familiar experience with lawyers and conveyancers that a large part of the work done in examining a title is found to be needless, yet it cannot be known to be needless until it has been done.

And even with the most thorough examination, we are obliged to assume the existence of these facts outside of the records, and