deed, Congress is expressly given full power, social and domestic as well as political; but it is only of late years that it has generally exercised it in any other way than to erect territorial legislatures; and in the older territories, at least, there is no meddling with individual rights.

The first eleven amendments are all restrictions; that is to say, they are at great pains expressly to withhold all social and domestic affairs, or cardinal liberty rights, from the Federal Government, and even some that are political; the first ten, therefore, showing a strong reaction in favor of the rights of the States and the liberties of the people, in 1791, while the eleventh Amendment was a still more decisive step in that direction, withholding all Federal judicial power where a State was directly concerned; much as James I endeavored, through vainly, to get Chief Justice Coke to rule that he would not consider a case where the interests of the King were involved. The Thirteenth Amendment is striking in that it is the only instance where the Constitution is expressly extended to any place subject to the jurisdiction of the United States, and where, as it has recently been put, "The Constitution follows the flag". Slavery, therefore, can exist nowhere, not even in the Sulu Islands; although even the other cardinal requirement, a republican form of government, may constitutionally be withheld from them as from the other territories.

The modern reaction in favor of the Federal power is shown first in the Fourteenth Amendment proclaimed July 28th, 1868, though the interpretation which might have revolutionized the whole State and Federal system has substantially been denied by the Supreme Court. The Amendment does, however, and for the first time, interfere between the State and the individual, if not between the individual and his neighbors. The State is forbidden to deprive any person of life, liberty or property without due process of law, or to deny any person within its jurisdiction the equal protection of the laws, and this directly by the Federal Government. The radical upholders of centralization, in reconstruction times, undoubtedly believed that this brought the

hand of the Federal Government between a man and his neighbors and indeed all his private affairs; otherwise it would be surprising that it took nearly twenty years of great decisions by the Supreme Court to read the amendment in strict accordance with its simple words that it appiied only to a State and to due process of law of a State; that it did not, as had been done in early times after the Conquest, give the Norman Court, the centralized government, jurisdiction of all matters and causes on the mere plea of Englishry, or that a Norman was concerned. As it has therefore worked out, it is merely a new national guarantee, like that securing a republican form of government, of the cardinal liberty and property rights against law-making by the States; and it does not, under the plea that a person is being unfairly treated by a neighbor or an official, drag all matters of ordinary trade and private right into the Federal

courts.

Whether the extreme interpretation of the interstate commerce clause now proposed will carry us to this length it is too early now to say; nor, indeed, is this a controversial essay. That there has been for some years a decided trend in that direction, one must admit. The history of the interpretation by the courts and by Congress of the words "regulate commerce among the several States" has been to extend the meaning of commerce from the things transported, the physical instrumentalities of interstate commerce, the necessary documents concerning it, to the corporations and persons conducting it, the conditions of their labor and the rates they may charge-this by the year 1908—and of the words "among the several States” from the natural physical transportation across State lines to a combination or contract made in one or more States intended to act in others or in effect carried out in others.

It is perhaps obvious that we intend to withhold the right of conducting interstate commerce from any corporation not conforming to a Federal standard. Whether we shall go further and deny it to individuals; whether, indeed, Congress has the constitutional right to deny it to indi

viduals; and whether, on the other branch of the definition, we shall extend it from commerce, in the sense of interstate traffic, to manufacturing, mining, or producing goods intended to be sold outside of the State where they are manufactured, mined or produced; and to the returns, or the profits, or the fortunes, or the disposition of the fortunes, derived therefrom; and still more, to the contractual relations, the conditions of labor, etc., of the persons so engaged,-are all inatters for the future to settle.

The power of suspending laws or their application, or agreeing not to prosecute in certain cases or to pardon certain offenders, is a dangerous one in the hands of the Executive. Moreover, there is an increasing tendency today in Congress to grant legislative power to the Executive or to boards or commissions of his appointment. Notably has this been done in recent years in the case of making treaties, fixing customs duties, the rates of railways, and in the control of corporations,-all properly legislative matters. The excuse made is that Congress declares the general principle and the act of the President, for instance, in finding a state of affairs to exist upon which he may ratify a treaty or proclaim a commercial arrangement, is merely ministerial. An example of the length to which this theory may be carried is found in the recent railway regulation act or Hepburn Bill, where Congress merely proclaims that the rates shall be reasonable and without discrimination,-both mere expressions of the common law,and leaves the determination of what is reasonable between the Interstate Commerce Commission and the Supreme Court, neither of them legislative bodies. The common law may, indeed, be decided by a judicial body; but it is difficult to see why the alteration of the common law is not legislation. When, therefore, the commission fix a "just and reasonable" rate,' if they are applying the common law, their act is judiciai; if they are fixing other standards, it is legislative. Federal judges have

1U. S. Act of February 4, 1887, as amended June 29, 1906, Section 15.

374 DIVISION OF POWER BETWEEN CONGRESS AND STATES

consistently, from the beginning, refused to exercise other than judicial functions.

The leading modern English historian ends a long account of the attempted centralization of English administration under the Norman kings with the boast that from that time on until now there is no body of ten thousand English speaking men in the world, which is not governed by the laws that they make themselves.

I believe that the constitutional decisions of the next ten years will prove the most important in the history of our own republic. It is peculiarly the duty of those of our profession to point out the dangers that beset the path upon which the people may wish to go. Legislation is now pending in Congress which seems to me to be more radical, more un-English than anything that has been enacted in an English speaking legislature for many centuries. It has been the proud boast of the great statesmen and lawyers of England that we have no administrative law, no law peculiar to the government or administered by government officials, but that every officer, civil or military, must answer for his acts in the common law courts, and that every individual or association of individuals has the right to have their legality tried there, and tried there alone. To submit the judgment of the great right of freedom of contract and association to the judgment of an administrative official would be well on the road to the introduction of the whole European system of administrative law and government by bureaucracy. When a man is responsible for his acts or contracts not to legislatures or courts and juries, but to executive officers, you cease to be American and become European, if not Oriental, and when you give up your care for local selfgovernment and your home courts and juries, you are not far from the state of the kingdom of Italy or the Empire of Russia, where a mighty central government stretches its paralyzing hand between the laborer and his daily bread, the merchant and his trade, the citizen and his vote.

F. J. Stimson.

WHEN IS A BANK THE BONA FIDE OWNER OF A CHECK LEFT FOR DEPOSIT OR COLLECTION?

The boundary of our inquiry may be more closely defined by leaving out all cases that were the subject of special agreement,' or that were so endorsed by the depositor as to retain intentionally his ownership. These include a large number and involve the application of no principle save the most general one, that the agreement must be founded on proper authority, or be within proper legal limitations.

At the outset, it may be stated that the courts have always maintained that the title to checks deposited by, and credited to, a depositor who is a contemporaneous debtor, passes at once to the bank absolutely. This principle is so strongly fortified by reason and precedent that the mere statement of the rule will suffice. For the same reason, after an advance has been made thereon, the bank becomes either the absolute owner or a lienor for the amount of the advance. The rule is equally clear that a depositor who is credited with a check, and not as cash, retains his

1Richardson v. Louisville Bkg. Co., 36 C. C. A. 307; First National Bank of Elkhart v. Armstrong, 39 Fed. 231 (C. C.); Manufacturers' National Bank v. Continental Bank, 148 Mass. 553.

'Beal v. City of Somerville, 1 C. C. A. 508; Levi v. Bank, 5 Dill 107; First National Bank v. Reno Co. Bank, 1 McCrary 491; Sweeny v. Easter, 1 Wall 166; White v. National Bank, 102 U. Š. 658; Cecil Bank v. Farmers' Bank, 22 Md. 148; Mechanics' Bank v. Valley Packing Co., 70 Mo. 643; Milliken v. Shapleigh, 36 Mo. 598.

Titus v. Mechanics' National Bank, 35 N. J. Law 588, 592.

Balbach v. Frelinghuysen, 15 Fed. 675, 682; Armstrong v. National Bank of Boyertown, 90 Ky. 431; Taft v. Quinsigamond National Bank, 172 Mass. 363.

Metropolitan Nat. Bank v. Loyd, 90 N. Y. 530; Armstrong v. Nat. Bank of Boyertown, 90 Ky. 431, 436; Balbach v. Frelinghuysen, 15 Fed. 675; Scott v. Ocean Bank, 23 N. Y. 289; Giles v. Perkins, 9 East 12, 14.