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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.” This provision has remained unaltered to the present day, and constitutes section 721 of the Revised Statutes.


$ 591. Force of State Interpretations.

What the proper construction of the state law is, which they are to apply, the Supreme Court of the United States has repeatedly declared is, subject to the exceptions hereinafter to be described, to be determined by the interpretation that has been given to it by the State that has enacted it. In Elmendorf v. Tyler12 Marshall says: “ The judicial department of every government, where such department exists, is the appropriate organ for construing the legislative acts of that government. On this principle the construction given by this court to the Constitution and laws of the United States is received by all as the true construction; and on the same principle the construction given by the courts of the several States to the legislative acts of those States is received as true, unless they come in conflict with the Constitution, laws, and treaties of the United States." Again, in Shelby County v. Guy,13 the Supreme Court declare: “ Nor is it questionable that a fixed and received construction of their respective statute laws in their own courts makes, in fact, a part of the statute law of the country, however we may doubt the propriety of that construction. It is obvious that this admission may at times involve us in seeming inconsistencies, as when States have adopted the same statutes and their courts differ in their construction. Yet that course is necessarily indicated by the duty laid on us to administer, as between certain individuals, the laws of their respective States according to the best lights we possess of what those laws are."

12 10 Wh. 152; 6 L. ed. 289. 13 11 Wh. 361; 6 L. ed. 495.

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Again, in Polk's Lessee v. Wendell14. the court say:

“ The sole object for which jurisdiction of cases between citizens of different States is vested in courts of the United States, is to secure to all the administration of justice upon the same principles on which it is administered between citizens of the same State. IIence, this court has never hesitated to conform to the settled doctrines of the States on landed property, where they are fixed, and can be satisfactorily ascertained; nor would it ever be led to deviate from them in any case that bore the semblance of impartial justice.”

14 5 Wh. 293; 5 L. ed. 92.

15 In Re Duncan (139 U. S. 449; 11 Sup. Ct. Rep. 573; 35 L. ed. 219) the contention was raised that a certain law appearing upon the statute books had not been constitutionally passed and was, therefore, not valid. As to this the Supreme Court of the United States said: “It is unnecessary to enter upon an examination of the rulings in the different States upon the question whether a statute duly authenticated, approved and enrolled can be impeached by resort to the journals of the legislature or other evidence for the purpose of establishing that it was not passed in the manner prescribed by the state Constitution. The decisions are numerous, and the results reached fail of uniformity. The courts of the United States necessarily adopt the adjudication of the state courts on the subject.” Citing South Ottawa v. Perkins, 94 U. S. 260; 24 L. ed. 154; Post v. Supervisors, 105 U. S. 667; 26 L. ed. 1204 ; Railroad Co. v. Georgia, 98 U. S. 359; 25 L. ed. 185.

In Daly v. James (8 Wh. 495; 5 L. ed. 670) Justice Johnson in a dissenting opinion says: Upon the question so solemnly pressed upon this court in the argument how far the decision of the court of Pennsylvania ought to have been considered as obligatory in this court, I would be understood as entertaining the following views: As precedents entitled to the highest respect the decisions of the state courts will always be considered; and in all cases of local law we acknowledge an established and uniform course of decisions of the state courts in the respective States as the law of this court; that is to say, that such decisions will be as obligatory upon this court as they would be acknowledged to be in their own courts."

In a dissenting opinion Justice Field in B. & 0. R. R. Co. v. Baugh (149 U. S. 368; 13 Sup. Ct. Rep. 914; 37 L. ed. 772) declares: “ The theory upon which inferior courts of the United States take jurisdiction within the several States is, when a right is not claimed under the Constitution, laws, or treaties of the United States, that they are bound to enforce as between the parties the law of the State.

It was

never supposed that upon matters arising within the State any law other than that of the State would be enforced, or that any attempt would be made to enforce any other law. It was never supposed that the law of the State would be enforced differently by the federal courts sitting in the State and the state courts; that there would be one law when a suitor went into the state courts, and another law when the suitor went into the federal courts, in relation to a cause of action arising within the State,-- a result which must necessarily follow if the law of the State can be disregarded upon any view which the federal judges may take of what the law of the State ought to be rather than what it is."


$ 592. Rule not One of Constitutional Necessity: Exceptions.

From the quotations which have been made, the general rule governing the construction of state law by the federal courts is sufficiently clear. We have now to consider the exceptions which have been made to its application.

First of all it is to be observed that the rule itself would appear to be one not so much of imperative constitutional necessity, as of comity adopted by the federal courts from a proper sense of the respect due to the States whose law they are supposed to administer, and that, therefore, the provision of section 721 of the Revised Statutes states a purely statutory and not a constitutional requirement.

$ 593. Equity.

Even this statutory requirement, it is to be observed, is a limited one, its application being limited to trials at common law, the entire field of equity procedure thus being omitted from its control. 16

In the comparatively early case of Boyle v. Zachariet? the Supreme Court said:

“ The acts of Maryland regulating the proceedings on injunctions, and other chancery proceedings, and giving certain effects to them in courts of law, are of no force in relation to the courts of the United States.

The whole question of the binding force upon the federal courts of state laws as interpreted by the state courts is considered in the Dred Scott case (Scott v. Sandford, 19 How. 393; 15 L. ed. 691), a majority of the court agreeing that the court was bound by the last decision of the Missouri court as to the effect of Scott's temporary residence in a free State.

16 By an act of May 8, 1792, it was provided, that the procedure in equity cases in the federal courts should be according to the peculiar principles, rules, and usages of equity as distinguished from common law courts.

17 6 Pet. 635; 8 L, ed. 527.

“The chancery jurisdiction given by the Constitution and laws of the United States is the same in all the States of the Union, and the rule of decision is the same in all. In the exercise of that jurisdiction the courts of the United States are not governed by the State practice; but the act of Congress of 1792 (ch. 36) has provided that the modes of proceeding in equity suits shall be according to the principles, rules and usages which belong to courts of equity, as contradistinguished from courts of law. And the settled doctrine of this court is, that the remedies in equity are to be administered, not according to the state practice but according to the practice of courts of equity in the parent country, as contradistinguished from courts of law, subject of course to the provisions of the act of Congress, and to such alterations and rules as in the exercise of the powers delegated by those acts, the courts of the United States may, from time to time, prescribe.” 18



18 Cf. Russell v. Southard, 12 How. 139; 13 ed. 927; Bein v. Heath, 12 How. 168; 13 L. ed. 939; Payne v. Hook, 7 Wall. 425; 19 L. ed. 260; Robin. son v. Campbell, 3 Wh. 212; 4 L. ed. 372; U. S. v. Howland, 4 Wh. 108; 4 L, ed. 526; McConihay v. Wright, 121 U. S. 201; 7 Sup. Ct. Rep. 940; 30 L. ed. 932; Neves v. Scott, 13 How. 268; 14 L. ed. 140. In Neves v. Scott (13 How. 268; 14 L. ed. 140) the court say: “When

case in equity may arise and be determined under the judicial power of the United States, the same principles of equity must be applied to it, and it is for the courts of the United States, and for this court in the last resort, to decide what those principles are, and to apply such of them to each particular case, as they may find justly applicable thereto. These principles may take part of the law of a State, or they may have been modified by its legislation, or usages, or they may never have existed in its jurisprudence. Instances of each kind may now be found in the several States. But in all the States, the equity law, recognized by the Constitution and by Acts of Congress, and modified by the latter, is administered by the courts of the United States, and upon appeal by this court."

In Payne v. Hook (7 Wall. 425; 19 L. ed. 260) the court, with reference to the argument that inasmuch as under the law of the State a chancery court had not jurisdiction in the premises, the federal court sitting as such had not, said: “If legal remedies are sometimes modified in the federal courts to suit the changes in the laws of the States, and the practice of their courts, it is not so with the equitable. The equity jurisdiction conferred on the federal courts is the same that the High Court of Chancery in England possesses; is subject to neither limitation nor restraint by state legislation, and is uniform throughout the different States of the Union.”

It does not clearly appear from the citations and quotations just how far the federal courts, when exercising their equity jurisdiction, are disposed to go in refusing to follow the sub stantive rules and law of the States. It is, however, quite clear that they take a very proper stand when they assert that their equity jurisdiction may not in any way be burdened by state law either by way of definition of what shall constitute equitable causes of action, or what procedure shall be followed or remedies applied. But in not a few cases the language, though for the most part obiter, is much broader than this, and indicates an apparent willingness to go beyond this and refuse to follow state law, even in statute form, with reference to substantive matters of law as distinguished from procedure and remedies. 19

8 594. Rules of Evidence.

Generally speaking, Congress may of course provide the rules of evidence to be adopted by the federal courts, and itself establish, or empower the courts themselves to establish, the rules governing their procedure in the trial of cases, the preparing and printing of records, the perfecting of appeals, etc. With refer

In Bein v. Heath (12 How. 168; 13 L. ed. 939) a case arising in Louisiana, in which State there was no equity as distinguished from common-law jurisdiction, the court say: “When an injunction is applied for in the circuit court of the United States sitting in Louisiana, the court grants it or not, according to the established principles of equity, and not according to the laws and practice of the State

in which there is no court of chan. cery, as distinguished from a court of common law.”

In Shetlield Furnace Co. v. Witherow (149 U. S. 574; 13 Sup. Ct. Rep. 936; 37 L. ed. 853) the court deny that a State by prescribing by statute an action at law can oust a federal court, sitting in equity, of its jurisdiction as such. Quoting Robinson v. Campbell (3 Wh. 212; 4 L. ed. 372) the opinion de. clares: “A construction that would adopt the state practice in all its extent would at once extinguish, in such States, the exercise of equitable jurisdic. tion. The acts of Congress have distinguished between remedies at common law and in equity, yet this construction would confound them. The court, therefore, thinks that to effectuate the purposes of the legislature the remedies in the courts of the United States are to be at common law and equity, as distinguished and defined in that country from which we derive our knowl. edge of those principles.”

is Cf. Columbian Law Rev, IV (1904), p. 589.

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