State law is not a Federal common law, what is it? And, when this body of common law doctrines which the Federal courts administer differs from the common law as the State courts enforce it, why is it not “distinct from" the common law enforced in the States? The language quoted may well mean merely to express the substantial unity of all the common law of the country, and to say that both Federal and State courts look to the same source for their rules of decision in matters not covered by statutes. It can hardly mean more than that. The common law of the Federal court is distinct from that of any State in the same sense that the common law of one State is distinct from that of another. Different jurisdictions, whether Federal or State, though looking to the same body of common law for rules of decision, act independently of each other in so doing. The supreme tribunal, notwithstanding the emphatic declarations to the contrary contained in earlier opinions of that court, now recognizes the existence of a Federal common law which the Federal courts administer unfettered by State decisions, not only where the State courts have concurrent jurisdiction, but also where the matters involved are not subject to any State law, but are exclusively within Federal control. $ 190. THE EXISTENCE OF A UNIFIED SYSTEM OF AMERICAN LAW. The argument from necessity for the existence of the common law of the United States was made by Madison in the Constitutional Convention. In speaking of the power of the national government to define felonies committed on the high seas as mentioned in the tenth clause of the Eighth Article, he said: "The test cannot be a foreign law nor can it be the law of the States. If the laws of the States were to prevail on this subject the citizens of different States would be subject to different punishments for the same offence at sea. There would neither be uniformity nor stability in the law. The proper remedy for all these difficulties is to vest the power proposed in the national legislature."1 Under the Fourteenth Amendment, the same need for uniformity exists everywhere, to cover acts on land as well as on the seas, for the same protection covers the citizen in every part of the United States. It seems reasonable that this protection existed from the beginning and that the same argument from necessity applied universally. In the statement of rights made by the first Continental Congress in 1774, the representatives of all the colonies asserted, "as great constitutional rights inherent in the people of all these colonies, that they were entitled to all the rights, liberties, and immunities of natural born subjects within the realm of England; to the common law of England, and especially to trial by a jury of the vicinage; to the immunities and privileges granted and confirmed to them by royal charter, or secured by their several codes or provincial laws, and to the right of peaceably assembling to consider grievances and to petition the king." 2 These thoughts were still in the minds of the framers of the Constitution when they were discussing the scope of the national government, and it was the idea that there should be an underlying system of law 1 Documentary History of the United States, Vol. II, 550. ' Journals, I, 29; George Ticknor Curtis, Constitutional History of the United States, 14. distinctly national and extending to the fundamental rights of persons.' Nor could the satire of Voltaire upon the diversity of local laws in France have been lost on the founders, any more than the work of D'Aguesseau in bringing uniformity into French law was lost on Story, Webster, and Edward Livingston, in the United States, and on Macaulay, in India. 66 The courts of the United States and those of the States are parts of the general judicial system created to administer the general system of jurisprudence. This interweaving of the State and national courts is rendered the more easy, because as to matters of procedure both are mainly governed by the same law. This is the old common law of England.3 "At first the Supreme Court of the United States endeavored to minimize the scope of the Fourteenth Amendment and limit its effect as far as possible to the protection of the colored race.1 This ruling, however, was a bare majority of the Justices and was soon reversed. guaranties of the personal rights, it is now held, apply to all men, of whatever race, color or citizenship, and also to corporations, lawfully doing business in a State, whether foreign or domestic.5 "As the possession of property, of which a person cannot be deprived, doubtless implies that such property may be acquired, it is safe to say that a State law which undertakes to deprive any class of persons of the general power to acquire property would also be obnoxious to the 1 Madison, Elliott's Debates, V, 135. Claflin v. Houseman, 93 U. S. 130, 137; Morgan v. N. Y. Building Ass'n, 73 Conn. 151, 46 Atl. 877; Moore v. U. S., 91 U. S. 270, 274. 3 Baldwin in Two Centuries of Growth of American Law, 29. same provision.1 Indeed we may go a step further, and say that as property can only be legally acquired, as between living persons by contract, a general provision against entering into contracts with respect to property, or having as their object the acquisition of property, would be equally invalid." 2 3 It is recognized practice and the mandate of the Judiciary Act that the courts of the United States. shall follow upon appeal the law of the State as determined by the State court. But, the law of the State having been construed, the case may be decided on common law principles, as was done in Gelpcke v. Dubuque. Decisions of State courts are not respected in other States, even under the circumstance upon the existence of which the provisions of the Judiciary Act were based, namely, the intention of the parties that the State law should govern. Of course these questions would not arise if the contemplation of the parties could fairly be said to be that the contract was made under the common law of the United States. Indeed, that seems to be the only way to preserve the security of contract. "The decisions of the court of one State upon a question of commercial law are not obligatory upon the courts of other States; and when such decisions are in conflict with the principles of the common law concurred in by the courts of this State, they will not control even as to contracts made here but to be performed in the State where such decisions were made." 1 Due process of law. 'Holden v. Hardy, 169 U. S. 306, Opinion of the Court by Mr. Justice Brown. 3 I Wall. 200. Faulkner v. Hart, 82 N. Y. 413. "The State courts may think that property has been taken by due process of law, but the United States courts be of opinion that there was want of due process.1 In such case the whole procedure under State authority, whether legislative, executive or judicial, may be set aside. Nor can this be effected only by the Supreme Court of the United States. The Circuit courts of the United States, if appealed to in an original suit, have the same power, and their mandate may defeat the execution of a judgment of the State court of last resort.2 "It is for the Federal courts also to say, in case of dispute, what 'liberty' is; and they have given it the widest interpretation. It includes, for instance, freedom of contract. No State, therefore, can limit a man's right to sell his labor or to hire labor, on his own terms, except so far as the good police of society may require.3 "In this way the Fourteenth Amendment has adjusted the relations of the State to the United States in matters of fundamental concern, and reset the very foundations of our political system. Of the constitutional question as to personal rights which are in litigation at the present time, a large majority probably arise under the first section of this Amendment. The Fifteenth Amendment strikes directly at the political prerogatives of the State, with regard to its own people. It is a denial of autonomy." Not only do the Federal judges have an indirect influence but in the development of the law their influence is in many cases direct and controlling. "Questions are likely to arise relating to construction which have never been passed upon by a State court. 1 Norwood v. Baker, 172 U. S. 269. 2 Baldwin, Two Centuries of Growth of American Law, 36. State v. Julow, 129 Mo. 163; Frorer v. People, 141 Ill. 171; Allgeyer v. Louisiana, 165 U. S. 578. ♦ Williams v. Mississippi, 170 U. S. 213. |