argued that the court should follow the courts of Maine, which had construed the language of a deed, for such decisions, he maintained, outlined a rule of property in that State. Allusion was made in the opinion to the argument, but the court closed with the view that such decisions "should not be regarded as conclusive on the mere construction of a deed as to matters and language belonging to the Common Law, and not to any local statute."

So, too, the court refused to follow a rule of evidence established by the court of last resort of Kentucky, and in Union Pacific Ry. Co. v. Yates,10 the court said: "The decisions of the courts of a State construing Common Law rules of evidence are not obligatory on the Federal Courts."

Whether punitive damages should be allowed was the question presented in Lake Shore R. R. v. Prentice." The court disagreeing with the rule, announced by State authorities, said: "This is a question not of local law, but of general jurisprudence, upon which the court in the absence of express statute regulating the subject, will exercise its own judgment, uncontrolled by the decisions of the courts of the several States."

Did the limits of this paper permit, many similar decisions could be cited, but I shall add but one more, that of Burgess v. Seligman.12 The action was commenced in the Federal court for the Eastern District of Missouri, the trial court holding that defendant, to whom a corporation had transferred a large amount of its stock as collateral, was not liable as a stockholder for the debts of the corporation. The fact that the court of last resort in Missouri had held otherwise in two cases was brought to its attention. It refused to follow the State court and presented its position in these words:

"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 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. . 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 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."

As we have seen the cases cited embrace commercial and mercantile papers, contracts, negligence, nuisance, evidence and damages. They have been selected because they show that the Supreme Court has recognized the right and the duty to announce what the true rule of the Common Law is whenever the question is presented, although their determination differs from that of the State courts where the controversy arose. Carefully considered as are the decisions of that court when it feels called upon to differ with the decisions of State courts, whether upon a direct review of such courts or of the Federal courts, it is readily apparent that its influence in the harmonious development of the law is immeasurable.

Further, these cases show, as do the great majority of the decisions of the Supreme Court, that the Federal courts have been both diligent and effective in applying and at the same time in broadening and developing the Common Law in accord with the intent of the framers.

How, then, has it happened that the impression has found lodgement in many minds that the United States courts have not employed Common Law principles and precedents in the development of National Law? The answer is simple, but it is at the same time conclusive, as authority will show. It is due to the unfortunate remark of Mr. Justice McLean in Wheaton v. Peters,13 decided in 1834. The learned Justice said: "It is clear there can be no Common Law of the United States. The Common Law could be made a part of our Federal system only by legislative adoption. When, therefore, a Common Law right is asserted, we must look to the State in which the controversy originated." This statement was clearly obiter for the case turns on the point that Congress by the Act of 1790, instead of sanctioning an existing right at Common Law as contended for (the literary property of an author in his works after publication), created that right, and the rights of the complainant must be sustained if at all under that act. This position was all that was needed for a decision. Whether there existed at one time such a Common Law right of authors in England or

13. 8 Peters, 591-658.

America was immaterial, and discussion of the inductive questions presented in the English cases of Millar v. Taylor's and Donaldson v. Beckett was not germane, for the vital questions in those cases were similarly decided, i. e., that since the Statute of 8 Anne that statute controlled the rights of authors in that country.

Wheaton v. Peters was decided early in 1834. At this time the question of State rights was a paramount subject. It was only in the year before, 1833, that Webster and Calhoun had engaged in vehement debate in the Senate on the Force Bill, and Webster made his famous speech in opposition to the position that the Union was a mere compact. It may well be that the discussion prevalent may have suggested the dicta in this case.

In saying that the statement of Mr. Justice McLean was unfortunate I do not mean that it thereby became the law, for it did not; or that it prevented the Federal courts from availing themselves of our great storehouse of Common Law principles, for it had no such effect. It was obiter, and was ever afterward so treated by the Supreme Court. Indeed, his remark was destined never to be quoted again by that court. Not even as a step in the upbuilding of an argument by the court has it ever been permitted a place. That fact has great significance to the lawyer who appreciates the wide familiarity of the Bench and the Bar with the first case to consider the effect of the copyright statute. In a few instances, it is true, the reasoning of Mr. Justice McLean upon this subject has been referred to by his successors, but never once in approval of his language.

What is treated as the substance and effect of his positionbut which, indeed, is very far from it-is to be found in Smith v. Alabama.16 It is interesting to note that this case had not to do with the Common Law even in the remotest degree. The question there presented was whether a statute of the State of Alabama providing for the examination and licensing of engineers engaged in operating locomotive engines in that State was void as applied to engineers running interstate trains, on the ground that it was an attempt to regulate interstate commerce. Hence, the question of the Common Law jurisdiction of Federal courts was not discussed by counsel, and probably not considered by the court as it did not present the point of decision. Therefore, it happened, as it quite often happens when the judge writes about matters not discussed

14. 4 Burr, 2303.

15. 4 Burr, 2408.

16. 124 U. S., 465, 478.

orally or in brief by counsel, and in turn followed by debate with associates around the consultation table-he wrote too broadly. He corrected as far as an obiter can ever correct one blunder in the Wheaton v. Peters obiter. He repudiated by indirection the suggestion that the United States courts have no Common Law and can have none except by legislative adoption. This was accomplished by citing Wheaton v. Peters as authority for a very different proposition, viz. that "there is no Common Law of the United States in the sense of a national customary law distinct from the Common Law of England as adopted by the several States each for itself, applied as its local law, and subject to such alteration as may be provided by its own Statutes."

This admits necessarily what Chief Justice Marshall asserted in the beginning of the court's history, that the court applies and enforces the Common Law. But the learned justice seemed to deem it important to give the assurance that the Common Law thus utilized is not a new creation, but the Common Law of England as adopted in the States. In other words, that the Common Law, enforced by the Federal courts, is the Common Law of England so far as applicable, and not separate and distinct from that law which might be called a National Customary Law. A few sentences farther along, but on the same page, he proceeds to show the inaccuracy of the opening phrase of the sentence quoted and which I now repeat, "There is no Common Law of the United States, in the sense of a National Customary Law." The contradictory sentence is, "There is, however, one clear exception to the statement that there is no National Common Law. The interpretation of the Constitution of the United States is necessarily influenced by the fact that its provisions are framed in the language of the English Common Law, and are to be read in the light of its history. The code of constitutional and statutory construction, which, therefore, is gradually formed by the judgments of this Court, in the application of the Constitution and the laws and treaties made in pursuance thereof, has for its basis so much of the Common Law as may be implied in the subject, and constitutes a Common Law resting on National authority."

Considered together these several propositions seem to mean that the Federal courts are constantly applying the Common Law rules and precedents of England and of this country to any appropriate situtation. When differing from a State court's conception of a Common Law rule, we (the court says) are correctly applying the same Common Law that the State court in our view

incorrectly attempted to apply. Our decisions construing the Constitution-framed in the language of the English Common Lawand the Statutes passed, in pursuance thereof, have gradually builded for National purposes solely what may be termed a Common Law existing on National authority. But it in no wise conflicts with the general Common Law of England and this country. It is rather an extension of the Common Law to meet the requirements of the Constitution and Congressional legislation in pursuance thereof. If I am correct in my conclusion as to the thought which the learned Justice intended to convey, then this dictum is in harmony, not only with the practice of the Federal courts, but also with their carefully expressed opinions, as I shall later show.

I have already called attention to a number of cases in which the Supreme Court has differed with State courts as to the true rule of the Common Law.

In United States v. Wong Kim Ark," the court had to determine whether Wong Kim Ark was a citizen of the United States. The court said: "The Constitution nowhere defines the meaning of these words. In this as in other respects, it must be interpreted in the light of the Common Law, the principles and history of which were familiarly known to the framers of the Constitution.18 The language of the Constitution as has been well said could not be well understood without reference to the Common Law." The Constitution and the several amendments contain many provisions to which that opinion applies with equal force. Take the Fifth Amendment as an illustration. It provides in part that "no person shall be deprived of life, liberty or property without due process of law." This amendment applies to the Federal Government only as has been decided many times. It was intended to operate as a restraint upon its power. It forbade the Federal Government from doing what every State Constitution forbade its Government from doing— which in turn but adapted a restraint upon government that was secured by the Great Charter. But how were the Federal courts to determine what constituted due process of law? By the Common Law of course, which through many decisions covering a period of centuries had come to be thoroughly settled and well understood.

Kohl v. United States1o presented the question whether the United States could exercise the right of eminent domain to acquire

17. 169 U. S.. 649.

18. Minor v. Happersett, 21 Wall, 162; Ex. parte Wilson, 114 U. S., Boyd v. United States, 116 U. S., 616-624-5.

117;