transactions are subject to no rules and burdened by no restrictions other than those expressed in the statutes of Congress.

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 the opinion that this cannot be so, and that the principles of the common law are operative upon all interstate commercial transactions except so far as they are modified by Congressional enactment..

...

In Interstate Commerce Commission v. Baltimore and Ohio

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Railroad, 145 U. S. 263, 275, it was said by Mr. Justice Brown, speaking for the court: "Prior to the enactment of the act of February 4, 1887, to regulate commerce, commonly known as the interstate commerce act, . . . railway traffic in this country was regulated by the principles of the common law applicable to common carriers."

Reference may also be had to the elaborate opinion of District Judge Shiras, holding the Circuit Court in the Northern District of Iowa, in Murray v. Chicago & Northwestern Railway, 62 Fed. Rep., 24, in which is collated a number of extracts from opinions of this court, all tending to show the recognition of a general common law existing throughout the United States, not, it is true, as a body of law distinct from the common law enforced in the States, but as containing the general rules and principles by which all transactions are controlled, except so far as those rules and principles are set aside by express statute.

CHAPTER XI

RULES OF AMERICAN COMMON LAW

Establishment of Common Law Rules.

Principles of justice are vague and uncertain so long as they exist only in the minds and hearts of the people. They become more definite by usage; that is, being used continuously by the people in settling disputes about business and property without going to law. They become rules of the common law when they have been applied and accepted by the courts.

A court of justice for the trial of cases is composed of a judge, who decides questions of law, and a jury, which decides questions of fact. In declaring a rule of the common law, the judge acts upon evidence of the law in the form of customs and usages, precedents established by decisions of previous cases, and statutes. He then declares the rule of law which governs the jury in deciding the matters of fact about which the parties to an action disagree. In deciding questions of fact, the jury acts upon evidence in the form of written documents presented by the parties in support of their contentions and in the form of testimony by word of mouth given by witnesses who know about the matters which are in dispute. Whenever, in a number of trials of similar cases, the same principle of law is applied, a rule of the common law is said to be established.

The establishment of a rule of the common law is explained in the case of Norway Plains Co. v. Boston and Maine Railroad,' decided in 1854 by the Supreme Judicial Court of Massachusetts, in which it was shown to the court and the jury that the railroad had received a shipment of goods directed to the Norway Plains Company and that a truckman sent by the plaintiff had been told that they were on the last car of the train and were at a place on the tracks where they were inaccessible so that delivery had to be postponed until the next day. The truckman went away, and the goods were destroyed by fire during the night. The question of law to be decided by the court was whether the railroad ought to be compelled to pay for the goods. The questions of fact to be decided by the jury were whether the truckman had actually called for the goods and been told that he could not get them and whether the goods had actually been burned up. Inasmuch as railroads were then a new means of transportation and there were no decided cases declaring the rule of law to be applied, the court, in deciding the question of law, was obliged to refer to the principles of right and wrong that were involved and to the usages, practices and rules of the common law that governed the liability of carriers of merchandise by older methods. Chief Justice Shaw said:

The liability of carriers of goods by railroads, the grounds and precise extent and limits of their responsibility, are coming to be subjects of great interest and importance to the community. It is a new mode of transportation, in some respects like the transportation by ships, lighters, and canal boats on water, and in others like that by wagons on land; but in some respects it differs from both. Though the II Gray (Mass.) Rep., 263, 266.

practice is new, the law, by which the rights and obligations of owners, consignees, and of the carriers themselves, are to be governed, is old and well established. It is one of the great merits and advantages of the common law, that, instead of a series of detailed practical rules, established by positive provisions, and adapted to the precise circumstances of particular cases, which would become obsolete and fail, when the practice and course of business to which they apply, should cease or change, the common law consists of a few broad and comprehensive principles, founded on reason, natural justice, and enlightened public policy, modified and adapted to the circumstances of all the particular cases which fall within it. These general principles of equity and policy are rendered precise, specific, and adapted to practical use, by usage, which is the proof of their general fitness and common convenience, but still more by judicial exposition; so that, when in a course of judicial proceeding, by tribunals of the highest authority, the general rule has been modified, limited and applied, according to particular cases, such judicial exposition, when well settled and acquiesced in, becomes itself a precedent, and forms a rule of law for future cases, under like circumstances. The effect of this expansive and comprehensive character of the common law is, that whilst it has its foundations in the principles of equity, natural justice, and that general convenience which is public policy; although these general considerations would be too vague and uncertain for practical purposes, in the various and complicated cases, of daily occurrences, in the business of an active community; yet the rules of the common law, so far as cases have arisen and practices actually grown up, are rendered in a good degree, precise and certain, for practical purposes, by usage and judicial precedent. Another consequence of this expansive character of the common law is, that when new practices spring up, new combinations of facts arise, and cases are presented for which there is no precedent in judicial decision, they must be governed by the general

principle, applicable to cases most nearly analogous, but modified and adapted to new circumstances, by considerations of fitness and propriety, of reason and justice, which grow out of these circumstances. The consequence of this state of the law is, that when a new practice or new course of business arises, the rights and duties of parties are not without a law to govern them; the general considerations of reason, justice and policy, which underlie the particular rules of the common law, will still apply, modified and adapted, by the same considerations, to the new circumstances. If these are such as give rise to controversy and litigation, they soon, like previous cases, come to be settled by judicial exposition, and the principles thus settled soon come to have the effect of precise and practical rules. Therefore, although steamboats and railroads are but of yesterday, yet the principles which govern the rights and duties of carriers of passengers, and also those which regulate the rights and duties of carriers of goods, and of the owners of goods carried, have a deep and established foundation in the common law, subject only to such modifications as new circumstances may render necessary and mutually beneficial.

Application of Common Law Rules.

The decisions of courts are not the law, but evidence of the law. Since the common law consists of "broad and comprehensive principles, founded on reason, natural justice, and enlightened public policy, modified and adapted to the circumstances of all the particular cases which fall within it," its applications may vary with the courts that render the decisions. For this reason it has become the rule in ascertaining the common law applicable to cases for the courts of a State to follow their own precedents and for a Federal court that

See Norway Plains Co. v. B. & M. R. R., 1 Gray (Mass.) Rep., 263.