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THE OREGONIAN CASE AND THE

AMERICAN COURTS.

The Albany Law Journal is very indignant at our strictures upon the action of the Supreme Court of the United States in this case. Our contemporary does not profess to be in possession of any account of the case other than our own, which it quite justifiably rejects as ex parte; and accordingly its indignation rests not upon knowledge of the merits of the controversy, but upon inherent conviction that the Supreme Court could not possibly do anything to deserve our censure. Now we frankly admit that our language was warm-warmer than is usual or generally desirable in legal criticism, but the moral aspects of the question, of which our contemporary is not in possession, were, we think, such as to justify no inconsidera

ble heat.

The Albany Law Journal speaks of Scottish capitalists being over-reached. We still prefer our own description that it was a case of Scottish investors being swindled. The story is short and simple. A company is formed in Dundee for the construction and letting of a railway in Oregon. To this company a capital of some £500,000 is subscribed, not for the most part by wealthy capitalists, but by hard working people, who have made their money by patient industry, and are anxious to better themselves and increase the hard-earned provision for their families. The company go to Oregon under a law which purports to give to foreign corporations the same rights and powers as domestic corporations of the same kind enjoy. By and by negotiations are entered into with a native

company for a lease of the line. The native company is incorporated under a statute which allows of incorporation for any lawful purpose, and one of the purposes expressly set forth in its articles of incorporation, is the taking a lease of a railroad. The bargain is completed. The American company enter into possession. A year or two pass, and then this company, having devastated the property, calmly announce that they repudiate the bargain. An action is begun, and the Circuit Court of the United States rejects the contentions of the repudiators as "frivolous," and sustains the lease.

An appeal is taken to the Supreme Court of the United States, and, after years of delay, that august tribunal sustains the repudiation, sets aside the lease, and in effect gives legal sanction to a barefaced breach of an honorable bargain. The result brings ruin and misery to hundreds who honestly invested their savings in a lawful enterprise, conducted by upright and honorable men, and who went to the United States, and entered into transactions there, confident that the privileges which statute expressly promised them would be upheld, and that bargains honestly made were safe to receive enforcement at the hands of the Federal Courts. We venture to affirm that such a result is unworthy of a rational or civilized system of jurisprudence.

Now it may be objected that this may all infer a stricture upon American law, but that it warrants no reflection upon the Supreme Court, which we are bound to assume correctly interpreted the law. This would be a just observation, if the American Court had been obliged unwillingly to give effect to a clear statutory provision. But the very contrary was the case. The difficulty of the Court was not to have to give effect to the statutory provisions, but to get over them. The natural reading of these provisions was admittedly all in favor of the Scottish company, and a strained construction had to be put upon them in order to permit of the result finally reached. The inference is obvious that this result was in accordance with the Court's conception of natural law or abstract justice. We do not accuse the Court, as our contemporary suggests, of being venal or partial; but we do accuse it of being warped

by prejudices and possessed by prepossessions quite unworthy of an enlightened jurisprudence.

The way in which the judgment was reached may be recapitulated in a single word. It was not disputed that the American company was incorporated under a law which expressly provides that any lawful enterprise mentioned in the articles of incorporation shall be within the powers of the corporation. It was admitted that amongst the purposes expressly mentioned in the articles of incorporation were both the construction and the hiring on lease of a railroad. In this state of the law and of the facts, the United States Court held that, notwithstanding the apparently clear provisions of the general statute, it was unconscionable to suppose that a company should have power by such a statute both to construct and to hire railroads; and accordingly they held that the company in question had no power to hire a railroad. Again, the Scottish company came to Oregon under a statute the plain intent of which was to give to foreign corporations the same rights and powers as domestic corporations enjoy. It was not disputed that this was the natural interpretation of the language used. But, again, in face of the language of the statute, the United States Court held that it was unconscionable to suppose that such powers were really conferred upon a foreign corporation.

The whole story suggests a reflection which must often be present to the minds of those on this side of the Atlantic who have business relations with America. Why is it that such a sense of insecurity prevails in regard to all American investments? Why is it, for example, that it is easier to get 6 per cent. over real property in America, than 4 per cent. in this country? It is not that America is distant, for the electric wires and the ocean racers have brought America very near to our doors. It is not that America is a back-going country, for her expansiveness is tenfold greater than our own. not that American government is unstable, for her Constitution has stood the test of a century. But it is because of the insurmountable dread that the negotiations will be vitiated by a swindle, and that the swindle will be one for which the

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law will give no remedy. This dread is born of experience.

The history of British investments in America is strewn with memories of swindles, for which the American Courts have been powerless to find redress. There are plenty of swindlers, in all truth, on this side the Atlantic, and an investor in a new company needs to be careful to whom he entrusts his money. But the investor on this side need be troubled with no apprehensions, that though the swindle be found out, the law will refuse to give him a remedy against it. The swindle may escape detection, the swindler may be unable to make good the loss; but it will not be the fault of the law if the wrong is not remedied. Now, why should it be otherwise in America? The Americans are of the same race, and their jurisprudence has the same traditions as our own. One can well understand an old system, such as the Roman law was before Prætorean intervention, or such as our land system was forty years ago, being warped by restrictions and technicalities which often render it impossible for the Court to give a remedy against undoubted wrong. But it is astonishing that it should be so with a young jurisprudence like that of America, and that these cases of wrong, against which there is no legal remedy, should abound.-(Scottish Law Magazine.)

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AMENDMENTS TO THE FEDERAL CONSTITUTION.

In former numbers of this magazine, [See LAW TIMES for April and July], I have considered two of the amendments which were proposed in the 50th Congress; the Blair Amendment relating to public schools and to the teaching of the principles of the Christian religion, and the Springer Amendment relative to marriage and divorce. But these are not a tithe of the amendments which have been proposed. The adoption of them all would make a curious patch-quilt of the document framed by our fathers.

I will proceed to mention the other proposed amendments, briefly examining some of the more important. Their number will astonish those who have not kept themselves informed upon the subject.

PROHIBITION AMENDMENT

PROPOSED BY SENATOR BLAIR OF NEW HAMPSHIRE.

This is another of the schemes to change our form of government; and it requires not a very close scrutiny to see that it involves the most radical change of all.

In order to realize the radical character of the transformation in the frame-work of our government which would be effected by this amendment, it is only necessary to examine the decisions of the Supreme Court of the United States, and observe upon what ground the laws of the States prohibiting the manufacture and sale of intoxicating liquors, have been sustained by that high tribunal.

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