2

4

supreme court of the State statute establishing the rule of property. This rule of decision does not apply to the general principles of equity, not controlled by local law or usage; nor to remedies at common law or in equity; 3 but a non-resident complainant can ask no greater relief than he would have were he to resort to the State courts; • the rule applies on questions of jurisdiction of inferior courts of the State under State laws; as on a question of subjecting legal and equitable interests in real estate to the claims of creditors; but not to the practice of allowing ejectments to be maintained on equitable titles; nor to State laws regulating proceedings on executions and other process in suits at common law; nor to all rules governing procedure and practice; but it applies to rules of evidence; 10 and to statutes of limitations of the State; " as limitations of actions and executions on judgments; 12 except where the laws of the United States otherwise provide; 13 as in patent cases." The decisions of State courts will be followed as to the construction of a contract

1 Greene v. Neal's Lessee, 6 Pet. 45; Lauriat v. Stratton, 18 Blatch.

7

11

291; Ross v. Duval, 13 Pet. 11, s. c. II Fed. Rep. 107,

citing Polk's Lessee v. Wendell, 9 Cranch, 98; Jackson v. Chew, 12 Wheat. 162; Nicholson v. Levey, 5 Wall. 433.

326.

Neves v. Scott, 13 How. 268; Montejo v. Owen, 14 Blatch.

Robinson v. Campbell, 3 Wheat. 212.

Ewing v. St. Louis, 5 Wall. 413.

Jeter v. Hewitt, 22 How. 352.

Nicholson v. Levey, 5 Wall. 433.

Sheirburn v. De Cordova, 24 How. 423.

9 Wayman v. Southard, 10 Wheat. 1; Ross v. Duval, 16 Pet. 45. Brown v. Van Braam, 3 Dall. 344.

10 Hausknecht v. Claypool, 1 Black, 431,

" Leffingwell v. Warren, 2 Black, 599; Sayles v. Oregon Central R. Co., 6 Sawy. 31.

12 Sayles v. Oregon Central R. Co., 6 Sawy. 31; Sayles v. Louisville City R. Co., 9 Fed. 513.

13 Sayles v. Oregon Central R. Co., 6 Sawy. 31.

14 Ibid.

declared by the State court void, on general principles of public policy, unless the question whether the legislation impairs the obligation of the contract is involved: it applies to the interpretations of contracts made by the State, as statutes authorizing municipal corporations to subscribe to aid railroads extending beyond the limits of the city or county; and to issue bonds, but where the State law has become uncertain through repeated changes, the United States courts will decide upon their own principles; the rule does not hold in the question of a contract made by the State which would violate the Constitution of the United States; but it applies to the construction of a State grant, as a ferry franchise."

$189. JUDICIAL OPINION AS TO EXISTENCE OF THE COMMON LAW OF THE UNITED STATES. — In the case of Wheaton v. Peters, the court, in its opinion by Mr. Justice McLean, said:

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"It is clear there can be no common law in the United States. The Federal government is composed of twentyfour sovereign and independent States, each of which may have its local usages, customs, and common law. There

1 Delmas v. Insurance Co., 14 Wall. 661; see Bridge Proprietors v. Hoboken Co., 1 Wall. 175.

2 Gelpcke v. Dubuque, 1 Wall. 205; Mitchell v. Burlington, 4 Wall. 271.

3 Bridge Proprietors v. Hoboken Co., 1 Wall. 145; see Delmas v. Ins. Co., 14 Wall. 651.

Conway v. Taylor, 1 Black. 603.

8 Pet. 658. See also U. S. v. Hudson & Godwin, 7 Cranch, 32; Dred Scott Case, 19 How. 393; Call Publishing Co. v. The Western Union Telegraph Co., 181 U. S. 92, merely asserts that the principles of the common law apply to interstate commercial transactions except so far as they are modified by Congressional enactment. See also Mo. Pac. Ry. Co. v. U. S., 189 U. S. 274, which shows that the full exercise of a common law power by the Supreme Court depends only upon the statutory grant of right to appear in the subject matter by act of Congress to a commission.

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 part of our Federal system only by legislative adoption."

As late as 1887, in the case of Smith v. Alabama,1 Mr. Justice Matthews, writing the opinion of the court, emphatically declared that there would be no legal objection, either ex contractu or ex delicto, on the part of a carrier to those who employed him, except for a local law of each State, and that, "if the local law is held not to apply where the carrier is engaged in foreign or interstate commerce, then in the absence of laws passed by Congress or presumed to be adopted by it, there can be no rule of decision based on rights and duties supposed to grow out of the relation of such carriers to the public or individuals. In other words, if the law of the particular State does not govern the relation and prescribe the rights and duties which it implies, then there is, and can be, no law that does, until Congress expressly supplies it, or is held by implication to have supplied it, in cases within its jurisdiction over foreign and interstate commerce.'

These declarations put in the strongest possible language the proposition that there can be no common law in the Federal courts except as they enforce the common law of the respective States, or the Constitution and laws of the United States.

This doctrine was for a long time accepted without much question, in spite of the fact that the Federal courts were all the time actually rendering decisions. which had no foundation whatever except the common law. Such, for instance, is the decision in New York 1 124 U. S. 465.

Central R. R. Co. v. Lockwood,' in which it was held that a contract made in New York, exempting a railroad company from liability of negligence, was contrary to public policy, and therefore void in the Federal courts, although in the courts of the State of New York, the contract would be enforced as valid. Though the Federal Court adopted a different common law on this question from that of the State tribunals, Mr. Justice Matthews in the case of Smith v. Alabama, somewhat amusingly says that "the law as applied is none the less the law of the State." If the common law applied in such case is the State law, what business has the Federal Court to repudiate the common law doctrine there established, and make a different one for that State? The justice does not explain how the Federal courts were given power to make State law."

A similar situation has been created in respect to questions of commercial law. As an exception to the general doctrine that the Federal courts follow State decisions on property rights in the different States, there is a long line of cases holding that the Federal courts are not controlled by State decisions on questions of general commercial law. These questions, like the questions of public policy, when not based on any statute, are questions of common law purely. Yet the Federal courts, while persisting in the denial that they had any common law, have repudiated some of the common law doctrines of the States, and have created their own body of common law doctrines.3 The Supreme Court of the United States has ex

1 17 Wall. 357.

Editorial Discussion in Case and Comment.

U. S. v. Moore, 93 U. S. 270; Roehm v. Horst, 178 U. S. 1.

pressly decided in a recent case that the common law does give a rule of decision in a Federal court on a right not covered by Federal statutes nor by State laws. This was the case of Western Union Telegraph Co. v. Call Publishing Co.,' in which the court held "that the principles of common law are operative upon all interstate commercial transactions, except so far as they are modified by Congressional enactment.” The court refers with approval to the opinion of District Judge Shiras in Murray v. Chicago & N. W. R. Co. as one in which is collated a number of extracts from opinions, "all tending to show the recognition of a general common law existing throughout the United States, not, it is true, as a body of law distinct from the common law enforced in the States, but as containing the general rules and principles by which all transactions are. controlled, except so far as those rules and principles are set aside by express statute."

By applying the common law to interstate commerce the court does exactly what Mr. Justice Matthews said could not be done. If the common law administered by Federal courts in cases outside the range of

1 181 U. S. 92.

2 62 Fed. 24.

In U. S. v. Rodgers, 150 U. S. 249, the Admiralty jurisdiction was said to extend to the Detroit River connecting the Great Lakes and to the Great Lakes, the inference being that Congress had not intended to leave places outside the jurisdiction of any State without the protection of law. In McKennon v. Winn, 1 Oklahoma, 327, the court said that the Act of March 1, 1889, 25 Stat. 783, establishing a United States district court in the Territory, "gave the court authority, and imposed upon it the duty, to apply the established rules and principles of the common law to the adjudication of those cases of which it was given jurisdiction "; and Pyeatt v. Powell, 51 Fed. 551, is referred to as supporting that principle.