The citizenship clause of the Fourteenth Amendment, by express declaration, creates and confers citizenship of the United States, as a federal right, upon all who are born or naturalized within and are suject to its jurisdiction. Formerly, citizenship of the United States within the States was understood to follow only from state citizenship. The Fourteenth Amendment directly reversed the conditions. Citizenship of the United States is now the primary right and status, proceeding directly from the federal government; while state citizenship is secondary and derivative from it. This effected a change in the relations between the United States and its citizens which has received little direct judicial consideration. The power to protect the lives of its citizens or subjects is an inherent power of every government. It was never doubted that the United States has this power, as a power necessarily implied, and may exercise it throughout the world outside the states. It is now judicially established, as above noted, that it may exercise such power within the states, for the vindication of federal rights or duties. The duty of a government to protect the lives of its citizens is correlative with the power. The citizen is entitled, as of right, to claim such protection. If the United States cannot exercise this power to its full extent within the states, it can be for no other reason than that it is reserved to the states, or to the people. In creating citizenship of the United States by the Fourteenth Amendment, there is no express reservation of this power. The established rule of constitutional construction now is that the United States has the powers commonly incidental to sovereignty except the powers expressly denied or reserved to the states or people, and all implied powers properly incidental to the powers granted. The Fourteenth Amendment expressly authorizes Congress to enforce its provisions, by appropriate legislation. Such legislation cannot, indeed, extend to establishing a complete code of laws. It must be limited to correction of the particular mischief resulting from violation of the Amendment. Legislation to protect citizens in their lives against mob violence, in default of such protection by the states, apparently goes no farther than to correct the mischief resulting from the default. It is difficult to see how it could otherwise be effectively corrected. It would seem that this must be regarded as appropriate legislation, if the express power to enforce the Amendment is to be made efficient.

It is now held that there is, in legal contemplation, a peace of the United States, existing within and throughout the states.

It

seems to be judicially regarded as comprehending at least the existence, exercise, and undisturbed enjoyment of the rights derived from or under the United States.1 If this can be taken as established, it would seem to follow that citizens of the United States, whatever may be said of other persons, are entitled to live in its peace, and to have it preserved for the protection of their lives. If the United States can legislate directly for the preservation of its peace within the states, the pending bill appears to be within its powers. If the power and duty to preserve the peace of the United States within the states belongs solely to the states, which it may not be wholly safe to concede, and which seems to be inconsistent with principles already established, the failure of the states to preserve it is a breach of duty toward the United States. In this view, it may be contended that the United States has power to deal with such a breach as an offence against itself, on the part of all individuals who contribute to it, directly or indirectly.

The United States has, as all governments have, a political and legal interest in the lives of its citizens. If it has not full power to protect them in their lives, within the states as it has elsewhere, it can be, as already observed, only because that duty rests solely upon the states. If so, it is a duty owed to the United States, as well as to individual citizens. It would seem that open and notorious neglect or omission of this duty on the part of a state, by suffering lawless mobs to murder citizens for want of legal protection, may be declared an offence against the United States, and if so, that the United States may punish all persons who contribute to it.

It may be said that if the United States has power to protect the lives of its citizens within the states, it must have power to protect their other personal and property rights, and so to supersede state laws by a system of federal legislation, which is impossible. This does not follow. There is no doubt that so far as the express provisions of the Fourteenth Amendment extend, federal legislation for its enforcement may extend, whatever the consequences. For example, if a state should omit to enact any legislation for the protection of a certain class of citizens against crimes of violence, forbidding and punishing such crimes only when committed against the other class or classes, it can hardly be doubted that Congress, under the enforcement clause, may supply the omission by direct legislation, or may perhaps annul the whole system

1 Ex parte Siebold, 100 U. S. 371, 394; In re Neagle, supra; Logan v. U. S., supra.

of discriminating laws, leaving the state to provide others which will conform to the requirement of equality. The consequences of the failure of a state to enforce laws made for protection against violence are no less disastrous to the unprotected class than the failure of the state to make any such laws. It is difficult to perceive why the power and the duty of Congress to interfere, under the enforcement clause, are not as clear in the one case as in the other.

Apart from the Fourteenth Amendment, it may well be that the United States owes its citizens protection in their lives while not owing them a complete system of laws for the protection of all personal and property rights, and that its power is co-extensive with its duty, but extends no farther.

Without attempting an exhaustive inquiry into this delicate and difficult subject, it can safely be assumed that preconceived opinions are not conclusive of the question. In view of express constitutional provisions, and in the present state of judicial decision, the existence or non-existence of this power in the federal government can be determined only by submitting a statute to the test of judicial examination. Albert E. Pillsbury.

BOSTON, February, 1902.

SOME ACTUAL PROBLEMS OF PROFES

THE

SIONAL ETHICS.

HE books on professional ethics, with all deference be it said, deal somewhat inadequately with their theme. They do not solve the problems which, so far at least as my observation extends, most often present themselves for solution, and the problems which they do discuss are treated with hardly sufficient care in analysis. The law schools usually ignore the subject, and attorneys actively engaged in their profession follow such a diversity of theory and practice that in many matters of considerable moment and frequency there can hardly be said to be even a The natural result of these conditions is that there is no well-defined professional standard to which attorneys can resort in cases of doubt, and therefore each attorney meets the questions which come to him and they come to all — with only such light as an untrained instinct can supply. The need of a reasoned theory of a lawyer's duty, illustrated and made vivid by actual experiences, seems to me, therefore, to be not the least of the many needs of the time. It is in the hope of contributing something to the elucidation of one very extensive class of professional problems that I have written the following pages. It may be added that all the questions discussed and all the illustrations used have come to my attention in one way or another in the actual practice of my profession and may, I believe, be fairly taken as typical of the general experience of lawyers.

I may be pardoned a brief preliminary analysis of the relation between attorney and client: it is necessary both to the definition of the immediate subject of the article and also to the clear comprehension of the point I shall try to make.

The primal fact, then, upon which the relation of attorney and client is based is that on the one hand the lawyer seldom, if ever, undertakes to bring about a definite result, such, for example, as the attainment of a particular kind of relief in a particular litigation, but that on the other hand he does undertake to devote his best judgment to those matters which may be intrusted to him. Viewed from that standpoint, his undertaking falls into that large class of contracts which import what is called a fiduciary obligation.

The receiver, the trustee, the guardian, the director, the

agent, the confidential secretary, in a word, the fiduciary of every character, whatever else he may promise, makes at least that pledge of his best judgment, and it is the confidence reposed in his judgment that gives both worth and dignity to his employment. Every fiduciary, therefore, should understand that when he allows his judgment to become impaired, he is not only committing a breach of contract, but he is committing a breach which involves in a peculiar and special degree his personal honor as a man who may be trusted.

Because the principal element of the fiduciary's employment lies in the pledge of his judgment, it follows that the principal temptations which he meets lie in those influences which tend to impair his judgment. These are legion and they range from strong drink to adverse interests. It is the adverse interest as affecting particularly the lawyer that I propose to consider in this article.

Before entering directly upon the subject, let me plead for its general importance. It is part of a larger subject of which the limits are not easily set. At any rate they far transcend the mere relation of lawyer and client and include the whole field of fiduciary employment in the community at large. The grosser forms of fiduciary wrongdoing, such as bribery, are well known and well understood, and are therefore to a considerable degree susceptible of prevention or remedy. In the subtler forms, however, which are not so well understood, and the effect of which is not so plainly visible, a great danger lies. Indeed, I hold it to be but a fair and moderate statement to say that the surrender of judgment by fiduciaries to interests adverse to their duty is the chief evil of our day. It is a commonplace of criminologists that the crimes of violence which characterized the elder ages have largely given way to crimes of fraud in the younger. It is not so clearly a commonplace, and in fact it will probably be questioned, and yet I believe it to be true, that what are usually regarded as crimes of fraud mainly consist, not in deceit, but in the breach of fiduciary contracts through the surrender to adverse interests.

The evil permeates all grades of society. Those transactions which we euphemistically term getting a rake-off, or making something on the side, or the like phrase, very usually involve it. The cook receives a rake-off from the butcher; the janitor gets a similar rake-off from the coal dealer; the insurance agent, who is the agent of the insured, gets his commission from the insurance company; the marine adjuster, who is supposed to be an impartial arbitrator of losses under marine insurance, makes a little on the