been recognized and adopted as one entire system, by the constitutions of Massachusetts, New York, New Jersey and Maryland. It has been assumed by the courts of justice, or declared by statute, with the like modifications, as the law of the land in every State. It was imported by our colonial ancestors, as far as it was applicable, and was sanctioned by royal charters and colonial statutes. It is also the established doctrine, that English statutes, passed before the immigration of our ancestors, and applicable to our situation, and in amendment of the law, constitute a part of the common law of this country."2

3

It is a familiar principle that statutes are to be construed in reference to the principles of the common law, for it is not to be presumed that the legislature intended to make any innovation upon the common law, further than the case absolutely requires. This has been the language of the courts in every age. It is said also that four things are to be considered in the interpretation of all statutes: First, what was the common law before the act? Second, what was the mischief against which the common law did not provide? Third, what remedy has the legislature provided to cure the defect? Fourth, what was the true reason of that remedy?"

But the decisions of the courts of the United States are even stronger than the Commentaries of Kent. They not only assert the existence of a national common law, but refuse to the so-called laws of the States any other force than that of local rules.

1 "The common law of England is the law of each State so far as each State has adopted it." Fleming v. Page, 9 How. 603, 618. 2 Kent's Commentaries, I, p. 471.

3 Kent's Commentaries, I, 463, 3d ed.

White v. Wager, 32 Barber, 250, 251; S. c. 25 N. Y. 328; Rosin v. Lidgerwood Mfg. Co., 89 A. D. (N. Y.) 245.

"The conclusion of a State court as to the time when a cause of action accrues in case of fraud or concealment, based, not on the construction of the State statute but on the view taken of the rule of common law, is not binding on the United States courts when called on to construe the common law and apply its principles to cases arising between citizens of different States.''1

The contrast to this opinion in one of equal force is indicative of the uncertainty surrounding an important question. Mr. Justice Grosscup is the author of

the following:

"There is within the boundaries of the several States, no common law of the United States as a distinct sovereignty; neither the Constitution nor Congress have adopted the law, and the power of the nation to make laws within the field of the power assigned to the Constitution, being exercised only by express enactments by Congress, or by treaties."

"3

The expression common law of sovereignty "is a sort of judicial bull. Mr. Justice Grosscup does not deny that there is within the boundaries of all the States a system of common law which is the basis of the decisions of the courts of the United States in matters where they have jurisdiction.

§ 188. THE COMMON LAW, STATE DECISIONS, AND THE JUDICIARY ACT. It is believed that the former

Murray v. Chicago & North Western R. R. Co., 62 Fed. 24, by Shiras, District Judge. "The Constitution itself recognizes the fact of the continued existence of the common law, and indeed it is based upon the principles thereof, and its correct interpretation requires that its provisions shall be read and construed in the light thereof."

2 See the first discussion of "Federal Common Law," in U. S. v. Worrall, 2 Dallas, 395, 419.

Swift v. Phil. etc. R. R. Co., 64 Fed. 59, Grosscup, District Judge.

of these opinions is not only correct as a historical fact but is the result of the decisions of the Supreme Court. In Swift v. Tyson,' Mr. Justice Catron said:

"The 34th section of the judiciary act of 1789, 'That the laws of the several States except where the Constitution, treaties, or statutes of the United States shall otherwise recognize or provide, shall be regarded as rules of decision in trials at common law in the courts of the United States,' has uniformly been supposed by the Supreme Court to be limited in its application to State laws strictly local; that is to say, to positive statutes of the States, and the construction thereof adopted by local tribunals, and to rights and titles to things having a permanent locality, such as the rights and titles to real estate, and other matters immovable and intra-territorial in their nature and character. The section does not extend to contracts or other instruments of a commercial nature; the true interpretation and effect whereof are to be sought not in the decisions of the local tribunals, but in the general principles and doctrines of jurisprudence. By all without the United States this court is looked to as the judiciary of the whole nation, known as the United States."

Practically the same result was attained by the New York courts:

"Judicial expositions by a court of another State of rules of the common law applicable to commercial transactions, do not bind the courts of this State." "

But the courts of the United States will take judicial notice, in the proper case, of the jurisprudence of a

116 Pet. I.

It should be noticed that this statute may be modified. That is, however, not necessary, as it will appear later, for the same practical result has been attained by construction by the courts.

3 St. Nicholas Bank of New York v. State National Bank, 128 N. Y. 26.

State, in the same manner as of the laws of the United States. Mr. Justice Story said:

"We are of opinion that the circuit court was bound to take judicial notice of the laws of Louisiana. The circuit courts of the United States are created by Congress, not for the purpose of administering the local law of a single State alone, but to administer the laws of all the States of the Union, in cases to which they respectively apply. The judicial power conferred on the general government by the Constitution, extends to many cases arising under the laws of the different States. And this court is called upon, in the exercise of its appellate jurisdiction, constantly to take notice of and administer the jurisprudence of all the States. That jurisprudence is, then, in no just sense, a foreign jurisprudence, to be proved, in the courts of the United States, but to be taken notice of judicially in the same manner as the laws of the United States are taken notice of by these courts.” 1

And the court may decide what, of the law of the State, is the law."

3

The exhaustive note to the case of Sonstiby v. Keely, shows that State statutes and decisions are not the guide for the Federal courts, but that they are subject to the system of law by which these courts are bound. The annotator says:

"Section 721, Revised Statutes, originally section 34 of the Judiciary Act (I St. 92), concerning the effect of State

1 Owings v. Hull, 9 Pet. 607.

2 Gelpcke v. Dubuque, 1 Wall. 220, Mr. Justice Miller dissenting. His position here throws light upon his prevailing opinion in the Slaughter House Cases, 16 Wall. 36. And the prevailing opinion of Mr. Justice Swayne herein is in conformity with his dissent in those cases.

3 II Fed. 580.

See Logan v. United States, 144 U. S. 263, quoted in preface.

5

decisions upon the Federal courts is construed only to include civil cases at common law, and not criminal offences against the United States; it is limited strictly to local law; that is to say to positive statutes of the State; to private statutes; and does not apply to questions of a general nature; as to contracts of a commercial nature, the true interpretation of which is sought in the doctrine of commercial jurisprudence. United States courts adopt and follow the decisions of the State courts in questions which concern merely the constitutions and the statutes of the State, given by the highest State tribunal as part of the law. It applies to the construction of a law providing for the administration of estates,1o or the construction of devises creating estates in fee; " but the mere construction of a will by a State court does not, as the construction of a statute of the State, constitute a rule of decision for the courts of the United States unless such construction had been so long acquiesced in as to become a rule of property.12 It applies to the principles establishing title to real property; 13 and the construction by the State

1 United States v. Reid, 2 How. 361.

2 Swift v. Tyson, 16 Pet. 1; Boyce v. Tabb, 18 Wall. 546. Swift v. Tyson, 16 Pet. 1.

Williamson v. Berry, 8 How. 495.

Boyce v. Tabb, 18 Wall. 546.

Swift v. Tyson, 16 Pet. I.

Luther v. Borden, 7 How. 1; Jefferson Branch Bank v. Skelly, 1 Black, 436.

Luther v.

Borden, 7 How. 1; Morgan v. Cartenius, 20 How. 1; Jefferson Branch Bank v. Skelly, I Black, 436.

• Lavin v. Emigrant Industrial Savings Bank, 1 Fed. Rep. 650; Cristy v. Pridgeon, 4 Wall. 196; see Leffingwell v. Warren, 2 Black, 603; Shelby v. Gay, 11 Wheat. 367.

10 Lavin v. Emigrant Industrial Saving Bank, 16 Blatch. 11, s. c. 1 Fed. Rep. 641.

11 Van Rensellaer v. Kearney, 11 How. 297; Carroll v. Lessee of Carroll, 16 How. 275.

12 Lane v. Vick, 3 How. 464.

13 Suydam v. Williamson, 24 How. 427; Chicago City v. Robbins, 2 Black, 418.