political axiom, that the judicial power of every well-constituted government must be co-extensive with the legislative,. and must be capable of deciding every judicial question which grows out of the constitution and laws.14 And it was the great. object of the federal constitution to establish three great departments of government, the legislative, the executive and the judicial; the first was to pass laws, the second was to approve and execute them, and the third was to expound and enforce them; and without the judicial department, it would be impossible to carry into effect the powers of the government."5 The basic principle upon which the power of the federal judiciary rests is the great principle which pervades the constitution, namely: that the constitution and valid laws and treaties of the United States are supreme, and that they control the constitution and laws of the respective states, and cannot be controlled by them.16

14 Cohens v. Virginia, 6 Wheat. 264, 448 (5:257); Osborn v. Bank, 9 Wheat. 738-903 (6:204).

4

15

15 Martin v. Hunters Lessee, 1 Wheat. 304, 328 (4:97).

16 McCulloch V. Maryland, 4 Wheat, 316, 437 (4:579).

CHAPTER IV.

THE ADMINISTRATION OF STATE LAWS BY THE FEDERAL

JUDICIARY.

§ 70. The great body of municipal law derived from state authority. As will fully and clearly appear from the authorities cited in the chapter next preceding, it is an axiom in the

1

3

American system of law and government that the constitution, laws, and treaties of the United States are the supreme law of the land, and the main purpose had in view by the founders of the government in giving to the United States supreme court appellate jurisdiction over the highest courts of the state in all cases involving a federal question was to preserve that supremacy and to declare void all state laws found to be in conflict therewith; and in all cases carried to the United States supreme court under the twenty-fifth section of the judiciary act,2 that court must determine for itself the construction and effect of any statute of a state brought under review. without reference to the previous adjudications of the highest court of the state upon the subject, and the same principle is applied in cases involving a federal question carried by writ of error or appea! from the circuit courts of the United States to the supreme court. Notwithstanding the limitations and restrictions imposed by the federal constitution upon the sovereignty of the states, yet, nevertheless, the government of the United States is a government of enumerated powers, restricted to certain specified purposes of government, national in their character, and the field of state legislation is very broad and comprehensive, and the ramifications of state powers touch and press upon the commonwealth at every vital point and regulate, to some extent, every important interest of the local community, and the great body of the municipal law of the states is derived from the authority of the states, respectively; and in a large class of cases the federal courts have concurrent jurisdiction with the courts of the states in the administration of purely local or state laws, and also those general principles of law and jurisprudence which constitute a part of the system of jurisprudence of all the states. It is the purpose of this chapter to point out some of the subjects of legislation reserved

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1 McCulloch V. Maryland, Wheat. 316, 437 (4:579); Gibbons v. Ogden, 9 Wheat. 1 (6:23). 2 U. S. Rev. Stat. sec. 709.

3 U. S. v. Muscatine, 8 Wall. 575, 587 (19:490); Bank v. Kelly, 1 Black, 436 (17:173); Hall v. De Cuir, 95 U. S. 485 (24:547).

4 Railroad Co. v. Otoe County, 16 Wall. 667 (21:375); Olcott v. Su

pervisors, 16 Wall. 678 (21:382); Pine Grove Township v. Talcott, 19 Wall. 666, 679 (22:227).

5 U. S. Rev. Stat. sec. 721; Reynolds v. Crawfordville Bank, 112 U. S. 405 (28:733); Ex parte McNeil, 13 Wall. 236 (20:624); The Orleans v. Phœbus, 11 Pet. 175 (9:677); Fitch v. Creighton, 24 How. 159 (16:596); Beauregard v.

to the states, and some of the instances in which state laws are administered by the federal courts, and in the administration of which they follow the construction given them by the highest courts of the state.

§ 71. Legislative recognition of state laws by act of congress. By the thirty-fourth section of the original judiciary act, it was enacted that: "The laws of the several states, except where the constitution, treaties or statutes of the United States 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. This section of the statute was a recognition of the lex loci; it was intended to give a rule of decision, and has no application to the practice of the courts."

§ 72. Construction of the thirty-fourth section of the judiciary act not uniform.-The section of the judiciary act above quoted, has often been the subject of construction in the supreme court of the United States; and the opinions of that court upon the subject have not always been expressed in language that is entirely harmonious; and what are the laws of the several states which are to be "regarded as rules of decision in trials at common law in the courts of the United States" have not been ascertained and defined, with precision and uniformity. The language of the section limits its application to trials at common law, and there is in the section nothing which requires its application to suits in equity or admiralty; nor is it applicable to criminal offense against the United States, nor where the constitution, treaties or statutes of the United States require other rules of decision. And while it has often been declared that the courts of the United States adopt and follow the decisions of the state courts in questions which concern merely the constitution and laws of the state, yet there are undoubtedly many exceptions to the rule.8

New Orleans, 18 How. 497 (15: 469); Christy v. Pridgeon, 4 Wall. 196 (18:322); Chicago & N. W. R. R. Co. v. Whitton, 13 Wall. 270 (20:571); Hinde V. Vattier, 5 Pet. 398 (8:168); Butz v. Muscatine, 8 Wall. 575 (19:490); Shelby v. Guy, 11 Wheat. 361 (6:495);

League v. Egery, 24 How. 264 (16:
655); McKeen V. Delancy, 5
Cranch, 22 (3:25); Williamson v.
Suydam, 6 Wall. 723 (18:967).

6 U. S. Rev. Stat. sec. 721.

7 Wyman v. Southard, 10 Wheat. 1 (6:253).

8 Bucher v. Cheshire R. Co., 125

§ 73. Independent and co-ordinate jurisdiction of the federal courts in the administration of state laws.-The federal courts have an independent jurisdiction in the administration 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 effect of those laws. The existence of two coordinate 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 ad-. ministration 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 in 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 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 in 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 the well-considered decisions of the state courts. As, however, the very object of giving to the federal 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