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The doctrine declared in Swift v. Tyson has continued to guide the Supreme Court. Under its operation it has come about that it depends in many cases upon whether suit is brought in a federal or a state court, as to what law will be held applicable to the matter in dispute.40

effect of those laws. The existence of two co-ordinate jurisdictions in the same territory is peculiar, and the results would be anomalous and inconvenient but for the exercise of mutual respect and deference. Since the ordinary administration of the law is carried on by the state courts, it necessarily happens that, by the course of their decisions, certain rules are established which become rules of property and action in the State, and have all the effect of law, and which it would be wrong to disturb. This is especially true with regard to the law of real estate and the construction of state constitutions and statutes. Such established rules are always regarded by the federal courts, no less than by the state courts themselves, as authoritative declarations of what the law is. But where the law has not been thus settled, it is the right and duty of the federal courts to exercise their own judgment; as they also always do in reference to the doctrines of commercial law and general jurisprudence. So, when contracts and transactions have been entered into, and rights have accrued thereon under a particular state of the decisions, or when there has been no decision of the state tribunals, the federal courts properly claim the right to adopt their own interpretation of the law applicable to the case, although a different interpretation may be adopted by the state courts after such rights have accrued. But even in such cases, for the sake of harmony and to avoid confusion, the federal courts will lean towards an agreement of views with the state courts if the question seems to them balanced with doubt. Acting on these principles, founded as they are on comity and good sense, the courts of the United States, without sacrificing their own dignity as independent tribunals, endeavor to avoid, and in most cases do avoid, any unseemly conflict with well-considered decisions of the state courts. As, however, the very object of giving to the national courts jurisdiction to administer the laws of the States in controversies between citizens of different States was to institute independent tribunals which it might be supposed would be unaffected by local prejudices and sectional views, it would be a dereliction of their duty not to exercise an independent judgment in cases not foreclosed by previous adjudication.”

40 Cf. Brooklyn City, etc., Ry. Co. v. National Bank, 102 U. S. 14; 26 L. ed 61.

In Smith v. Alabama (124 U. S. 465; 8 Sup. Ct. Rep. 564; 31 L. ed. 508 ) the court say: "A determination in a given case of what that (common) law is may be different in a court of the United States from that which prevails in the judicial tribunals of a particular State. This arises from the circumstances that the courts of the United States, in cases within their jurisdietion where they are called upon to administer the law of the State in which they sit, or by which the transaction is governed, exercise an independent,

The doctrine of Swift v. Tyson has become so well established that there is little utility in questioning its abstract correctness. Several points may, however, be adverted to. First, it may be pointed out that its effect is to substitute law of federal creation (or at least federal judicial determination) for the state law with reference to matters which by the federal Constitution are left within the exclusive legislative power of the State.

Second: it may well be questioned whether there exists any “ general commercial law," such as the Supreme Court asserts to exist, and which it claims not itself to create but to find in existence, and to apply in place of the local peculiar law as laid down by the state courts.

In fact it would seem, as appears from the opinions of the Supreme Court, that a conceived convenience has been the real force leading the court to its position upon this point. And even as to this it may be doubted whether general commercial convenience is greatly advanced by a result which makes the law of a particular case depend in many instances upon the particular court – state or federal — in which it happens to be brought. 41 with reference to those questions of commercial law upon which there is in the State whose law is involved, no defining statute, or well-established local usage. Thus whatever may have been the doctrine adopted by the federal courts as deducible from the principles of general commercial law, it could not apply in a State in which a statute or well-established usage prescribes a different one. In other words, the doctrine of Swift v. Tyson goes no farther than to permit the federal courts to disregard those decisions of state courts which have themselves been founded, not upon statute or usage, but upon the abstract principles of general commercial law.

Finally, it is to be observed that the doctrine of Swift v. Tyson, however correct in principle, by no means furnishes a means whereby a uniform code of commercial law for the entire United States may be developed. In the first place, as already pointed out, such decisions as are declared under it are controlling only in the federal courts. The state courts still remaining free to adopt them or reject them as they see fit. In the second place the doctrine is applicable in the federal courts themselves only though concurrent, jurisdiction, and are required to ascertain and declare the law according to their own judgment. This is illustrated by the case of New York C. R. Co. v. Lockwood (17 Wall. 357; 21 L. ed. 627), where the common law prevailing in the State of New York in reference to the liability of common carriers for negligence received a different interpretation from that placed upon it by the judicial tribunals of the State; but the law as applied is none the less the law of that State.”

41 See generally in criticism of Swift v. Tyson, Hare's American Constitutional Law, Lecture LI.

42 Delmas v. Merchants' Mutual Ins. Co., 14 Wall. 661; 20 L. ed. 757. Professor Schofield questions whether it was necessary to admit this right of the state courts. See Nlinois Law Rev. IV, 547.

Summing up the discussion of the topic of the federal courts and state laws, it is apparent that in a number of directions the federal courts, while deriving jurisdiction from the nature of the parties but presumably applying state law, have in fact built up for themselves a considerable body of law which is neither laid down in the federal Constitution, treaties, and laws of Congress nor in conformity with the laws of the States as determined by their respective judicial tribunals.

Whether this body of law may properly be termed federal common law may possibly be questioned. It is unquestionably federal in the sense that it owes its authority to, and is applied by, the federal courts; and it is common in that it may be enforced by the federal courts throughout the Union. There is, however, good reason for holding that it is essentially state law. The fact that it differs from the law as laid down by the state courts is due to the peculiar circumstance that, under our judicial system, two co-ordinate sets of courts have the power to interpret and determine the common law of the sereral States. In other words, the federal courts have taken the position that, when sitting for the enforcement of state laws, they do not sit as tribunals subordinate to the state courts, but as tribunals co-ordinate with them; and that, therefore, they have an independent right to determine what is the non-statutory law of the State, using for that purpose the same sources of information that the state courts use in determining for themselves the same facts.

CHAPTER LIII.

SUITS BETWEEN STATES AND TO WHICH A STATE OR THE UNITED

STATES IS A PARTY PLAINTIFF.

& 601. Constitutional Provisions.

Article III of the Constitution provides that the judicial power of the United States shall extend “to controversies between two or more States.” During the colonial period disputes between the colonies, especially those in relation to boundaries, had been settled in the English courts. Thus, for example, Mason and Dixon's Line was thus established. Other intercolonial disputes were settled by the British Privy Council; for example, between Massachusetts and New Hampshire and New York in 1764.?

Under the Articles of Confederation, it had been provided that “ The United States, in Congress assembled, shall ... be the last resort, on appeal, in all disputes and differences now subsisting or that hereafter may arise between two or more States concerning boundary, jurisdiction, or any other cause whatever.”

This jurisdiction, the Articles went on to provide, should be exercised by Congress by the appointment for each case of a special tribunal whose decision should be final and conclusive. Under the power thus granted a number of intercolonial disputes were presented. Two of these (between Massachusetts and New York, and South Carolina and Georgia) were settled by compromise out of court. A third, between Pennsylvania and Connecticut, resulted in the confirmation to Pennsylvania of the Wyoming region. Upon the whole, however, it would appear that this mode of settlement of disputes between the colonies proved by no means effective, for in Rhode Island v. Massachusetts* we find Justice Baldwin in his opinion saying: “ It is

1 Penn. v. Baltimore, 1 Vesey, 44. 2 Cf. Story, Commentaries on the United States Constitution, $ 1675. 3 Jameson, Essays in Constitutional History, Chapter I. 4 12 Pet. 657; 9 L. ed. 1233.

a part of the public history of the United States of which we cannot be judicially ignorant, that at the adoption of the Constitution there were existing controversies between cleven States respecting their boundaries, which arose under their respective charters and had continued from the first settlement of the colonies.”

8 602. Boundary Disputes.

The most important class of cases which have required the exercise of the authority granted by the Supreme Court under the present Constitution to adjudicate between States have been those relating to disputed boundaries.

The first of these was that of New Jersey v. New York. In his opinion awarding the process of subpena, Chief Justice Marshall, after reciting the constitutional grant of judicial power, and referring to previous suits to which States had been parties and which had been entertained by the Supreme Court, said: “It has then been settled by our predecessors on great deliberation, that this court may exercise its original jurisdiction in suits against a State, under the authority conferred by the Constitution and existing acts of Congress.” The chief justice goes on to observe that should a defendant State, after due service of process, fail to appear (and, it is to be remarked that there is no means whereby a State may be compelled to appear in a suit brought against it) the complainant has the right to proceed ex parte to a final judgment.

The second boundary dispute between States brought before the Supreme Court was between Rhode Island and Massachusetts. This suit was brought in 1832, but was not finally determined until 1838. In this case it was strenuously urged that the consent which the States, by the adoption of the Constitution, had given for the entertainment by the Supreme Court of suits between themselves extended only to matters ordinarily judicially cogniz

65 Fet. 284; 8 L. ed. 127. • Rhode Island v. Massachusetts, 12 Pet. 657; 9 L. ed. 1233.

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