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ence to the federal legislative authority over the rules of evidence to be followed in the federal courts, it is declared in Potter v. National Bank:20 “ It is quite true that the 34th section of the Judiciary Act of 1789 — preserved totidem verbis, in section 721 of the present revision of the statutes — has been construed as requiring the federal courts, in all civil cases at common law, not within the exceptions named, to observe, as rules of decision, the rules of evidence prescribed by the laws of the States in which such courts respectively sit. But that section of the Act of 1789, as does section 721 of the Revised Statutes, expressly excepts from its operations cases Where the Constitution, treaties or statutes of the United States otherwise provide.' We have seen that the existing statutes of the United States do 'otherwise provide,' in that they forbid the exclusion of a witness upon the ground that he is a party to or interested in the issue, in any civil action whatever pending in a federal court, except in a certain class of actions, which do not embrace the one now before

'In all other respects,' that is, in all cases not provided for by the Statutes of the United States, the laws of the State, in which the federal court sits, constitute rules of decision as to the competency of witnesses in all actions at common law, in equity or in admiralty. It is clear, therefore, that the law of Illinois can have no bearing upon a case which, as here, is embraced or has been provided for by the federal statute.”

Section 914 of the Revised Statutes provides that in the federal courts in civil causes other than equity and admiralty,“ the practice, pleadings and forms and modes of proceeding ” shall conform “as near as may be” to the existing practice in the States in which they sit. There is thus left, even as to these causes, opportunity for variance of practice whether because of


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20 102 U. S. 163; 26 L, ed. 111.

21 There would seem to be a corresponding inability upon the part of Congress to fix the rules of evidence and procedure of state courts. Thus, for example, while it is competent for Congress to declare that certain unstamped documents shall not be received as evidence in the federal courts, they might still be so received in the state courts. Latham v. Smith, 45 Ill. 293; Bowlin v. Commonwealth, 2 Bush, 5.

constitutional necessity, as for example with reference to jury trial, or because of statutory direction. Thus the rules with reference to the compulsory production of documentary evidence, the amendment of pleadings, etc., are fixed by federal statute. So also, it is held that federal judges are not bound by state rules with reference to instructing the jury, the granting of new trials, the subn ission of special issues to the jury, the preparation of a case for appeal, etc.22

595. Unsettled 'Construction of State Law.

In Green v. Neal23 it was held that where a state court had changed its former construction of a law, the federal courts, upon a subsequent case coming before them, should do likewise and thus keep ever in accord with the latest decisions of the state courts. “ The same reason," the opinion declares, “which influences this court to adopt the construction given to the local law in the first instance, is not less strong in favor of following it in the second, if the state tribunals should change the construction.” The court, however, adds: “A reference is here made, not to a single adjudication, but to a series of decisions which shall settle the rule.” And in Leffingwell v. Warren” the court say: “The construction given to a statute of a State by the highest judicial tribunal of such State is regarded as a part of the statute, and is as binding upon the courts of the United States as the text (citing numerous cases). If the highest judicial tribunal of a State adopt new views as to the proper construction of such statute, and reverse its former decisions, this court will follow the latest settled adjudications.” Here again it will be observed that the court is careful to say not that it will always follow the latest construction of the state courts but the "latest settled adjudications."

It would appear then from these and other cases that though in general the federal courts when called upon to apply state

22 Cf. Bates, Federal Procedure at Law. 23 6 Pet. 291; 8 L. ed. 402. 24 2 Black, 599; 17 L, ed. 261.

laws will follow the last interpretation given to them by the respective state courts, this will not necessarily be done where a change of construction by the state courts has been a recent one, and not supported by such a line of decisions as to have become, to use the language of the opinion in Shelby v. Guy,25 “ a fixed and received construction,” and especially where the construction is one that for a considerable period of time has been the uniformly accepted one in the state courts.

A3 will later appear, the Supreme Court has held quite firmly to the doctrine that the construction by the state courts of the law relating to real property is to be followed by the federal courts, but in the recent case of Kuhn v. Fairmont Coal Co.,27 decided January 3, 1910, the court hold that this shall be the practice only where the state determinations have become established rules of property and action prior to the accruing of the rights of the parties litigant. In this case prior adjudications are reviewed and explained, the language employed in East Central Eureka Min. Co. v. Central Eureka Min. Co.28 and Brine v. Hartford Fire Ins. Co.29 being especially defined and re strained.30

25 11 Wh, 361; 6 L. ed. 495. 26 Section 600. 27 30 Sup. Ct. Rep. 140. 28 204 U. S. 266; 27 Sup. Ct. Rep. 258; 51 L. ed. 476. 29 96 U. S. 627 ; 24 L. ed. 858. 30 The following are given as rules that are “no longer to be questioned.”

“ 1. When administering state laws and determining rights accruing under those laws, the jurisdiction of the federal courts is an independent one, not subordinate to, but co-ordinate and concurrent with, the jurisdiction of the state courts.

2. Where, before the rights of the parties accrued, certain rules relating to real estate have been so established by state decisions as to become rules of property and action in the state, those rules are accepted by the federal court as authoritative declarations of the law of the State.

“ 3. But where the law of the State has not been thus settled, it is not only the right, but the duty, of the federal court to exercise its own judgment, as it also always does when the case before it depends upon doctrines of commercial law and general jurisprudence.

“4. So, when contracts and transactions are entered into and rights have accrued under a particular state or local decision, or where there has been no Justices Holmes, White, and McKenna dissented. 31 Chapter XLVIII.

$ 596. The Obligation of Contracts and the Construction of

State Law. In an earlier chapter has been considered the circumstances under which the federal courts refuse to be bound by the construction given to state law by the state courts when the impair ment of the obligation of contracts is involved.31

8 597. Federal Courts and the Common Law.

The general principle usually stated is that there is no federal common law — that, in other words, the law which the federal courts apply consists wholly and exclusively of the federal Constitution, treaties, the statutes of Congress, and the laws common and statutory of the several States of the Union.

The common law of the States consists of the principles of the English common law, developed and modified by American custom and judicial precedent. IIaving this great common substratum of the English common-law principles, the non-statutory law of the several States is, in very many respects, the same throughout the United States. But in other respects, statutory enactment and divergent customs and judicial determinations have led to important differences.

In general, however, excepting where statutes have expressly amended the English common law as it was at the time of the separation from England, or where clear judicial dicta to the contrary are to be found, the general doctrines of the English common law are held to be in force. 39 decision by the state court on the particular question involved, then the federal courts properly claim the right to give effect to their own judgment as to what is the law of the State applicable to the case, even where a different view has been expressed by the state court after the rights of the parties accrued. But even in such cases, for the sake of comity and to avoid con. fusion, the federal court should always lean to an agreement with the state court if the question is balanced with doubt."

32 Louisiana, whose law is founded on the Roman civil law, is an exception to this, but statute and judicial practice have brought the Louisiana law a long way toward conformity to the common law.


Strictly applying the doctrine that the federal courts, when exercising jurisdiction derived from the character of the parties to the causes tried, will apply the laws of the States applicable thereto, there is left no room for a federal common law, for, when not applying state law, the federal courts have only the function of interpreting and applying the federal Constitution and the treaties entered into and the laws passed in pursuance thereof.

That the federal courts have no jurisdiction derived directly from the common law has been unquestioned since the early case of Ex parte Bollman,33 in which the court say:

"As preliminary to any investigation of the merits of this motion, this court deems it proper to declare that it disclaims all jurisdiction not given by the Constitution or by the laws of the United States. Courts which originate in the common law possess a jurisdiction which must be regulated by the common law until some statute shall change their established principles; but courts which are created by written law, and whose jurisdiction is defined by written law, cannot transcend that jurisdiction. It is unnecessary to state the reasoning on which this opinion is founded, because it has been repeatedly given by this court; and with the decisions heretofore rendered on this point, no member of the bench has, even for an instant, been dissatisfied. The reasoning from the bar, in relation to it, may be answered by the single observation, that for the meaning of the term habeas corpus, resort must unquestionably be had to the common law; but the power to award the writ by any of the courts of the United States, must be given by the written law.”

That the federal courts not only have no common-law jurisdiction, but that, generally speaking, there is no federal common law as distinguishable from statute law (Constitution, treaties, acts of Congress) was declared in the comparatively early case of Wheaton v. Peters.34 In that case the court say:

“ It is clear that there can be no common law of the United States. The Federal Government is composed of twenty-four

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33 4 Cr. 75; 2 L. ed. 554. 34 8 Pet. 591; 8 L. ed. 1055.

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