2 time are not created by the Constitution, for, as is said by Chief Justice Marshall, in Insurance Co. v. Canter,1‘A case in admiralty does not, in fact, arise under the Constitution or laws of the United States. These cases are as old as navigation itself, and the law admiralty and maritime, as it has existed for ages, is applied by our courts to the cases as they arise.' In New Jersey Steam Navigation Co. v. Merchants' Bank, it is declared that: 'By the Constitution, the entire admiralty power of the country is lodged in the federal judiciary, and Congress intended, by the ninth section, to vest the district courts with this power as courts of original jurisdiction.' The Constitution does not create a system of maritime law, nor does it exact that the system, as prevailing in England or in Europe, shall become the law of the United States; but recognizing the fact that the law maritime was then in force in the colonies, it confers the jurisdiction upon the federal courts."3 $ 170. COMMON LAW JURISDICTION OF UNITED STATES COURTS. In 1833 Duer wrote that the question of common law jurisdiction was open for further judicial investigation. It is apparent that what could be decided by the judges was not clearly denied by the Constitution. It has been repeatedly decided that the grant of jurisdiction in Admiralty involved no limitation upon the jurisdiction. "The 1 1 Pet. 511-546. 26 How. 344, 399. Murray v. C. & N. W. Ry., 62 Fed. 24. Duer, Constitutional Jurisprudence, 42. American Insurance Co. v. Canter, 1 Pet. 511-546; New Jersey Steam Navigation Co. v. Merchants' Bank, 6 How. 344-390. The right of a common law remedy, where the common law is competent to give it, is now reserved in admiralty by statute. Act of March 3, 1865, Ch. 78, 13 Stat. L. 483; The Moses Taylor, 4 Wall. 431, Federal Statutes Annotated, Vol. IV, 222. See p. 253 supra. same is true of the equitable jurisdiction. It is certainly not necessary to cite authority in support of the proposition that the Constitution of the United States neither created nor enacted a system of equitable jurisdiction and procedure, but, recognizing the existence of the system, it conferred thereunder upon the courts of the United States, jurisdiction. in equity, maintaining the pre-existing distinction. between equitable and legal remedies." 1 And in the cases which are relied upon as denying the common law jurisdiction, the court was not called upon to decide the question, and did not decide it and cited no authority. Wheaton v. Peters is the first case and the one generally relied upon as denying to Federal courts common law jurisdiction. The question involved in this case was whether, at common law, an author had a perpetual and exclusive property in his work after its publication, and not whether such a right existed at common law in the United States. The court admitted that it was a vexed question at common law whether such a perpetual and exclusive right to an author did exist, and did not decide that question, preferring to leave the question not in issue with the sweeping and unnecessary statement that "there can be no common law of the United States. The federal government is composed of twenty-four sovereign and independent States, each of which may have its local usages, customs, and common law. There is no principle which pervades the Union and has the authority of law that is not embodied in the Constitution or laws of the Union. The common law could be made a part of our federal 1 Murray v. C. & N. W. Ry. Co., 62 Fed. 24, 28. system only by legislation." The language in the closing lines of the above quotation not only is clearly obiter but involves both a begging of the question gratuitously discussed and at the same time a contradiction in terms. It is not denied that the Constitution recognized the common law as a system, and the only thing excluded is law not embodied in the Constitution and laws of the Union. And the Constitution expressly confers jurisdiction over cases at common law. The contradiction consists in the admission that jurisdiction excluded by a limitation in the Constitution could be conferred by legislation, and that a system of common law as such could be made a part of the federal system by legislation. The question whether the common law was not embodied in the Constitution is not discussed. The case of Smith v. Alabama' was founded entirely upon Wheaton v. Peters. The question presented to the court was "whether a statute of the State of Alabama, providing for the examining and licensing of engineers engaged in operating locomotive engines in that State was void, as applied to engineers running interstate trains, on the ground that it was an attempt to regulate interstate commerce." As was said by Mr. Justice Shiras in Murray v. C. & N. W. R. Co.,3 “the case did not in fact involve any question of common law." Though the case of Wheaton v. Peters has stood theoretically as authoritative, the Supreme Court of the United States constantly administered the common law in cases' brought before it, and determined what the common law was and ought to be without regard to the decisions of the State or States in which the controversy originated. The recognition of common law jurisdiction by the Federal courts is due to this: that if a right had its sole basis in the common law, and for that reason alone could not be considered by the federal tribunals, our institutions would rest upon a foundation denied existence by the courts. The denial of the existence of a system of federal common law is always flatly made without any consideration of what is involved therein. The denial of the law is accompanied by a denial of the jurisdiction. Both the common law and the jurisdiction thereover of the Federal courts is a fact, and if there is such a system of law there must be jurisdiction. What it must be intended to deny is that the recognition of a right at common law will not, apart from all other jurisdictional facts, give a remedy at the hands of federal judges,a contention which it is unnecessary to deny in the absence of agreement as to the content of the common law. There are in fact many examples of the manner in which the common law becomes the basis of jurisdiction conferred without limitation. In the case of U. S. v. Wong Kim Ark,' the Supreme Court adopted the common law rule which made the place of birth the criterion of nationality. Congress itself impliedly recognizes the existence of a federal common law. Under a treaty with China, Congress conferred upon As to what is a case, in the meaning of the Constitution, see Marshall, C. J., in Osborn v. Bank of U. S., 9 Wheat. 738, 819. 2169 U. S. 649. 2 United States Commissioners and Consuls of the United States in China certain jurisdiction over American citizens. This jurisdiction extended, first, to all laws of the United States, "but in all cases where such laws are not adapted to the object, or are deficient in the provisions necessary to furnish suitable remedies, the common law shall be extended over such citizens in China." 1 In Moore v. U. S., the common law jurisdiction of the Court of Claims is called in question, and the express ruling of the Supreme Court is to the effect that the general law controlling its action is the common law. "This court," says Shiras, J., of it, in Murray v. C. & N. W. R. Co., "is not a court in and for the District of Columbia, nor is it a court of any district or circuit. It has jurisdiction over cases arising in any of the States or Territories. It has jurisdiction to hear and determine cases against the United States. Of all the courts of the Union it is the one dealing with matters of national concern, arising under the Constitution and laws of the United States, and not under the local law of the several States." In Cox v. United States,' wherein suit was brought in the United States Court in Louisiana upon the bond of a navy agent, it was held that the bond must be deemed to be a contract performable at the city of Washington, "and the liability of the parties must be governed by the rules of the common law." To the same effect is the ruling in Duncan v. United States." In Swift v. Tyson, a case involving a doctrine of the 17 Opinions of Attorney-General, 503, 504. 2 91 U. S. 270. 8 62 Fed. 24, 28. 46 Pet. 172-204. 5 7 Pet. 435. 6 16 Pet. 1-18; see Bay v. Coddington, 5 Johns. Ch. 54; Coddington v. Bay, 20 Johns. 637. |