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But, it is asked, what law prevails in the Territories and the District of Columbia? The Constitution itself answers. Upon Congress is conferred (art. 1, sect. 8) the right "to exercise exclusive legislation" over the District of Columbia, and all places purchased for the erection of forts, arsenals, etc., and (art. 4, sect. 3) to "make all needful rules and regulations respecting the territory of the United States." Over the area covered by the Territories and the District of Columbia, therefore, there is but one sovereign. The territorial governments are simply the agencies of the nation, and are, in this respect, different from the States. But, as I have pointed out, there is a law of the land attached to every inch of our soil. It is, in some cases, the common law; in others, the civil law, dependent chiefly upon the character of the earlier dominion extended over it. Now there being but one sovereign, - the nation, - the common law or the civil law, as the case may be, is necessarily attributable to it, as the only supreme power in the State. Here the nation has succeeded to the earlier sovereignties which prescribed the common or civil law as the law of the land. There is, therefore, a common or civil law of the United States over those areas not yet taken into the boundaries of the States.

But there is no inconsistency between this and the position hereinbefore taken. Each inch of soil necessarily has its law of the land, but, in the areas in which the nation and State are coterritorial, the sovereignty to which all law is attributable, except such as is found in the Constitution of the United States and the laws in pursuance thereof, and the treaties, is that of the State. There the common law is not attributable to the United States as sovereign, because neither the Constitution, nor laws of the United States in pursuance thereof, have so adopted it. The distinction, though it might theoretically and speculatively be otherwise, is actual, as shown by the intendments of the Constitution and the doctrine of concurrent jurisdiction already pointed out, and it is only with actualities that the court can deal.

It is also asked, what law is in force upon the navigable waters of the United States, unless there be a general law of the United States? The answer is again found in the Constitution (art. 3, sect. 2), which extends the judicial power of the United States to all cases of admiralty and maritime jurisdiction. This is an express bestowal, in the fundamental law of the land, of all maritime power and authority, upon one of the departments of the nation. The bestowal is as broad and as exclusive as the power to declare war. It necessarily carries with it the code of rules applicable to maritime jurisdiction. That code is specifically a national code. It is neither common law nor general law. It is, in the language of Justice Bradley, in The Lottawanna, 21 Wall. 558, "like international laws, or the laws of war which have the effect of law in any country no further than they are accepted and received as such." The clause is

simply the bestowal upon the nation of a purely national power, selfenforcing by the employment of such rules as the nation alone may prescribe. But beyond this special jurisdiction, carved out of the general jurisdiction, and, for national purposes, bestowed exclusively upon the national government, the laws of the States within whose territories the navigable waters lie are still in force, subject to the exigencies and necessities of the maritime power. The territory covered by the navigable waters is under the law of the land which the proper State may prescribe. The existence, therefore, of this power in the nation, adds nothing to the proposition that there is a United States common law of the land.

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But it is said that, if there is no United States common law applying to the field of interstate commerce, there could have been, until the enactment of the Interstate Commerce Act, no law in that field whatever. And it is inferred from this that common carriers within that field, until the enactment of the Interstate Commerce Act, could not have been liable for refusing to receive goods or passengers, or delaying their arrival, or for other like wrongs or delinquencies. It is never safe to argue the existence of a law from the necessities that ought to give rise to it. The sovereign power does not always meet even the apparent needs. And, if law were always to be inferred where needs were found, I fear a diversity as wide as the personal predilections of the judges would be introduced. But the gaping vacuum upon which the argument is predicated does not in fact exist. The power of the nation over interstate commerce is exclusive only in respect of those features where a uniform rule is imperative, features that are essentially national affairs. In all other respects, until Congress acts, the field of interstate as well as intrastate commerce is occupied by the power and existing laws of the State. Into this latter classification, undoubtedly, would fall the duty of the common carrier to receive all proper goods offered to it for transportation, to make no undue discrimination between shippers of a like class, and to transport with reasonable expedition. There is nothing essentially national in these requirements. They can reasonably be left to the judgment of the local law where the goods are offered. Indeed, the constant and uninterrupted application of such local law to these fields of interstate commerce, through a century, forestalled the need of any national legislation, and constitutes a cogent illustration of the non-existence of a common law attributable to the nation as its sovereign and giver; for, how could the many modifications introduced by the State into these common-law duties and liabilities be effective if there existed also a national common law upon the same subjects, unmodified by Congress, and insusceptible of modification by the States?

Having duly considered these criticisms upon and variations from my former holding by some of the judges of the other circuits, I remain of the opinion that there is no national common or general

law, in the sense of a rule of civil conduct, prescribed by the nation, as sovereign, which can be made the basis of an action to recover back rates, simply because the court may find them to be unreasonable. So far as the existing law applicable to the subject of rates in interstate commerce was concerned, prior to the Interstate Commerce Act, the shipper and the carrier were at liberty to make such contract as they could agree upon; and such a contract would be left untouched, unless for such reasons as would justify the abrogation of contracts between other parties and upon other subjects. This, of course, does not exempt the carrier from the duty of carrying out the contracts actually made. If, between it and the shipper, a specific rate was fixed, such will control; and if no rate was fixed, the ordinary method employed by the law to supply the missing element of the contract is to be followed. If no rate was fixed, and the shipment was not made in contemplation of any specific rate, the impli cations of the law are that the parties intended a reasonable rate; and the exaction in such cases of an unreasonable rate can be made the basis of a recovery, not because of the existence of any law which prohibits the exaction of unreasonable rates generally, but because, in the particular case in hand, the exact rate is the omitted element of the contract, and must therefore be supplied by the impli cations of the law.

The majority of the counts in the declaration under consideration proceed expressly upon the theory that, irrespective of the contract. between the parties, the law prohibited the exaction of unreasonable rates, and allowed their recovery back upon a showing of the fact. To these counts, in my opinion, a demurrer ought to be sustained. Several of the counts are evidently drawn upon the theory that no specific rate was at the time agreed upon, or in contemplation, and that in view of this the rate actually exacted, being unreasonable, was contrary to the element of the contract read into it by the impli cations of the law. So far as these counts relate to shipments prior to the Interstate Commerce Act, they present some difficulties, and especially so, in view of the fact that they compress into single averments the different shipments of months and years, each of which must necessarily have been distinct from the other, and properly subject to distinct contracts or rates in contemplation. So far as these counts relate to shipments after the Interstate Commerce Act, I am clear that, in absence of the averment that no rates were published and in existence as is required by the law, the actions would not lie. By requiring the fixing and publication of these rates, the Interstate Commerce Act supplies at least prima facie evidence of the contract rate, which can only be overcome by averment in avoidance thereof. One of the counts proceeds upon the theory of unjust discrimination between shippers, but whether it alleges with sufficient preciseness that the discrimination was between shippers who, by reason of contemporaneousness of shipment, route traversed, and

character of product shipped, were entitled to like rates, does not clearly appear.

My conclusion, on the whole, is to sustain the motion, and allow the demurrers to be filed, intending to sustain the demurrers to all the counts, except those relating to discrimination, and those relating to shipments prior to the Interstate Commerce Act, which proceed upon the idea that an express contract for rates was not concluded, but was left to the implications of the law. On the counts of this character, I will hear the demurrer, to determine if the allegations of the count are sufficiently specific and single to bring them within the right of recovery.

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MORTON, J. By the statute of distributions of this State these heirs, standing in the same degree of relationship to the intestate, inherited his estate in equal proportions. But by the statute of New York, which carries the doctrine of representation farther than the law of this State, or, indeed, than the civil or common law, these heirs inherited per stirpes and not per capita. So that the estate in New York descended, one half to the wife of the plaintiff, and the other half to the defendant and his two brothers; being one sixth instead of one quarter to each.

Of the provisions and even existence of this statute, all the heirs were entirely ignorant during the whole of the transactions stated in the case. The plaintiff having discovered the mistake, now seeks by this action to reclaim of the defendant one third of the amount received by him on account of the sale of the New York lands, with interest from the time of its receipt. And the question now submitted to our decision is, whether he is entitled to a repetition of the whole or any part of this amount.

Had the parties been informed of their respective rights under the laws of New York, it cannot be doubted that the plaintiff would have retained one moiety of the land in that State, or would have received to himself one half of the consideration for which it was sold. The 1 The statement of facts, arguments of counsel, and parts of the opinion involving other questions, are omitted. — ED.

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distribution of the avails of the sale was made by the heirs upon the confident though mistaken supposition, that they were equally entitled to them. They acted in good faith, upon a full conviction that they were equal owners of the estate. It turned out, however, to the surprise of all of them, that they owned the estate in very unequal proportions, and that the defendant and his brothers had received not only the price of their own estate, but also the price of a part of the plaintiff's estate.

Equity would therefore seem to require, that the defendant should restore to the plaintiff the amount received for the plaintiff's estate. It was received by mistake, and but for the mistake would not have come to the defendant's hands. If the whole estate had been owned by the plaintiff, and the defendant, having no interest in it, had received the whole consideration, the equitable right of repetition would have been no stronger; it might have been more manifest. . . . That a mistake in fact is a ground of repetition is too clear and too well settled to require argument or authority in its support.

The misapprehension or ignorance of the parties to this suit related to a statute of the State of New York. Is this, in the present question, to be considered fact or law?

The existence of any foreign law must be proved by evidence showing what it is. And there is no legal presumption that the law of a foreign State is the same as it is here. 2 Stark. Ev. (Met calf's ed.), 568; Male v. Roberts, 3 Esp. Rep. 163. If a foreign law is unwritten, it may be proved by parol evidence; but if written, it must be proved by documentary evidence. Kenny Kenny v. Clarkson, 1 Johns. R. 385; Frith v. Sprague, 14 Mass. R. 455; Consequa v. Willings, 1 Peters's C. C. R. 229. The laws of other States in the Union are in these respects foreign laws. Raynham v. Canton, 3 Pick. 293.

The courts of this State are not presumed to know the laws of other States or foreign nations, nor can they take judicial cognizance of them, till they are legally proved before them. But when established by legal proof, they are to be construed by the same rules and to have the same effect upon all subjects coming within their operation, as the laws of this State.

That the lex loci rei sitæ must govern the descent of real estate, is a principle of our law, with which every one is presumed to be acquainted. But what the lex loci is, the court can only learn from proof adduced before them. The parties knew, in fact, that the intestate died seised of estate situated in the State of New York. They must be presumed to know that the distribution of that estate must be governed by the laws of New York. But are they bound, on their peril, to know what the provisions of these laws are? If the judicial tribunals are not presumed to know, why should private citizens be? If they are to be made known to the court by proof, like other facts, why should not ignorance of them by private indi

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