sovereign and independent States, each of which may have its local usages, customs and common law. There 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 a part of our federal system only by legislative action." 35

§ 598. Interstate Commerce and Common Law.

This general doctrine that there is no federal common law requires considerable explanation, if not qualification. In the first place, with reference to those matters of which interstate commerce is the most important example, general common-law principles are held, in the absence of express legislative provision to the contrary, to apply.

In Western Union Telegraph Co. v. Call Publishing Co., decided in 1901 and reaffirming the doctrines of previous cases, with reference to the subject of interstate commerce, the court say:

"There is no body of federal common law separate and distinct from the common law existing in the several States, in the sense that there is a body of statute law enacted by Congress separate and distinct from the body of statute law enacted by the several States. But it is an entirely different thing to hold that there is no common law in force generally throughout the United States, and that the countless multitude of interstate commercial transactions are subject to no rules and burdened by no restrictions other than those expressed in the statutes of Congress." After defining the term "common law," the court continue: "Can it be that the great multitude of interstate commercial transactions are freed from the burdens created by the common law,. as so defined, and are subject to no rule except that to be found in the statutes of Congress? We are clearly of opinion that this cannot be so, and that the principles of the common law are operative

35 It should be said that the federal power to adopt common-law principles by statutory action may be exercised only with reference to those matters which by the Constitution are within the sphere of federal regulation. 36 181 U. S. 92; 21 Sup. Ct. Rep. 561; 45 L. ed. 765.

upon all interstate commercial transactions, except so far as they are modified by congressional enactment."

The principle here stated with reference to the subject of interstate commerce would seem to be applicable with reference to all other matters falling within the control of the Federal Govern

ment.

§ 599. General Principles of the Common Law as Distinguished from Their Special and Local Applications.

In Olcott v. The Supervisors Justice Strong, speaking for the court, says: "It must be kept in mind that it is only decisions upon local questions, those which are peculiar to the several States, or adjudications upon the meaning of the Constitution or statutes of a State, which the federal courts adopt as rules for their own judgments. That Whiting v. Fond du Lac County [a state decision sought to be held as controlling upon the federal courts] was not a determination of a question of local law is manifest. It is not claimed to have been that. But it is relied upon as having given a construction to the Constitution of the State. Very plainly, however, such was not its character or effect. The question considered by the court was not one of interpretation or construction. The meaning of no provision

It was

of the state Constitution was considered or declared. What was considered was the uses for which taxation generally, taxation by any government, might be authorized, and particularly whether the construction and maintenance of a railroad owned by a corporation, is a matter of public concern. decided that building a railroad, if it be constructed and owned by a corporation, though built by authority of the State, is not a matter in which the public has any interest of such a nature as to warrant taxation in its aid. For this reason it was held that the State had no power to authorize the imposition of taxes to aid in the construction of such a railroad and therefore that the statute giving Fond du Lac County power to extend such aid was invalid. This was a determination of no local question, 37 16 Wall. 678; 21 L. ed. 382.

or question of statutory or constitutional law construction. It was not decided that the legislature had not general legislative power; or that it might not impose or authorize the imposition of taxes for any public use. Now, whether a use is public or private is not a question of constitutional construction. It is a question of general law. It has as much reference to the Constitution of any other State as it has to the State of Wisconsin. Its solution must be sought not in the decisions of any single state tribunal, but in general principles common to all courts. The nature of taxation, what uses are public and what are private and the extent of unrestricted legislative power are matters which, like questions of commercial law, no state court can conclusively determine for us. This consideration alone satisfies our minds that Whitney v. Fond du Lac County furnishes no rule which should control our judgment, though the case is undoubtedly entitled to great respect."

§ 600. General Commercial Law: Swift v. Tyson.

The doctrine that when the question is not one of peculiarly local law and local interest, the federal courts will determine for themselves, without reference to the decisions of local courts what the law is, even though it be with reference to subjects exclusively within the legislative control of the States, and over which the federal courts obtain jurisdictional power only by reason of the citizenship of the parties litigant, has received especial application in the field of commercial law.

This principle with reference to commercial law was first laid down by the Supreme Court in the case of Swift v. Tyson, in which case, decided in 1842, was involved a doctrine of commercial law as applied to a New York transaction. The language of Justice Story who prepared the opinion has given rise to so much discussion that it will be necessary to quote it at length. He says:

"Admitting the doctrine to be fully settled in New York, it remains to be considered whether it is obligatory upon this court, 38 16 Pet. 1; 10 L. ed. 865.

if it differs from the principles established in the general commercial law. It is observable that the courts of New York do not found their decisions upon this point upon any local statute, or positive, fixed or ancient local usage: but they deduce the doctrine from the general principles of commercial law. It is, however, contended, that the 34th section of the Judiciary Act of 1789 furnishes a rule obligatory upon this court to follow the decisions of the State tribunals, in all cases to which they apply. That section provides that the laws of the several States, except where the Constitution, treaties or statutes of the United States shall otherwise require or provide, shall be regarded as rules of decision in trials at common law in the courts of the United States, in cases where they apply.' In order to maintain the argument, it is essential, therefore, to hold, that the word 'Laws' in this section, includes within the scope of its meaning the decisions of the local tribunals. In the ordinary use of language it will hardly be contended that the decisions of courts constitute laws. They are, at most, only evidence of what the laws are, and are not of themselves laws. They are often re-examined, reversed, and qualified by the courts themselves, whenever they are found to be either defective, or ill-founded, or otherwise incorrect. The laws of a State are more usually understood to mean the rules and enactments promulgated by the legislative authority thereof, or long established local customs having the force of laws. In all the various cases, which have hitherto come before us for decision, this court have uniformly supposed that the true interpretation of the 34th section limited its application to state laws strictly local, that is to say, to the positive statutes of the State, and the construction thereof adopted by the 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 intraterritorial in their nature and character. It never has been supposed by us, that the section did apply, or was supposed to apply, to questions of a more general nature, not at all dependent upon local statutes or local usages of a fixed and permanent operation, as, for example, to the construction of ordi

nary contracts or other written instruments, and especially to questions of general commercial law, where the state tribunals are called upon to perform the like functions as ourselves, that is, to ascertain upon general reasoning and legal analogies, what is the true exposition of the contract or instrument, or what is the just rule furnished by the principles of commercial law to govern the case. And we have not now the slightest difficulty in holding, that this section, upon its true intendment and construction, is strictly limited to local statutes and local usages of the character before stated, and does not extend to contracts and 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 commercial jurisprudence. Undoubtedly the decisions of the local tribunals upon such subjects are entitled to, and will receive, the most deliberate attention and respect of this court; but they cannot furnish positive rules, or conclusive authority, by which our own judgments are to be bound up and governed. The law respecting negotiable instruments may be truly declared in the language of Cicero, adopted by Lord Mansfield in Luke v. Lyde, 2 Burr. R. 883, 887, to be in a great measure, not the law of a single country only, but of the commercial world. Non erit alia lex Romae, alia Athenis, alia nunc, alia posthac, sed et apud omnes gentes, et omni tempore, una eademque lex obtinebit.

"It becomes necessary for us, therefore, upon the present occasion, to express our own opinion of the true result of the commercial law upon the question now before us. And we have no hesitation in saying, that a pre-existing debt does constitute a valuable consideration in the sense of the general rule already stated, as applicable to negotiable instruments." 39

39 In the important case of Burgess v. Seligman (107 U. S. 20; 2 Sup. Ct. Rep. 10; 27 L. ed. 359) the general attitude of the federal courts with reference to following the construction given by the state courts to state law is reviewed and stated as follows:

"The federal courts have an independent jurisdiction in the administra tion of state laws, co-ordinate with, and not subordinate to, that of the state courts, and are bound to exercise their own judgment as to the meaning and