"The questions under our consideration are questions of general commercial law, and depend upon the construction of a contract of insurance, which is by no means local in its character, or regulated by any local policy, or customs. "Whatever respect, therefore, the decisions of state tribunals may have on such a subject, and they certainly are entitled to a great respect, they cannot conclude the judgment of this court. "On the contrary we are bound to interpret this instrument according to our opinion of its true intent and object, aided by all the lights which can be obtained from all external sources whatsoever, and if the result to which we have arrived differs from that of these learned state courts, we may regret it, but it cannot be permitted to alter our judgment" (40). The United States courts have uniformly adhered to this position (41). The anomalous result is that the different parties to the same series of commercial paper or a commercial transaction may have different rights and liabilities in reference thereto, according to the law of the land, depending upon the place of residence of the parties and not upon the contract or agreement. Some of the states have adopted the policy of the decisions of the federal court in such matters (42). 40 Carpenter v. Providence-Washington Ins. Co., 16 Pet. 494-511. 41 Railway Co. v. National Bank, 102 U. S. 14. 42 Trehon v. Brown, 14 Ohio, 486. As early as 1823 Mr. Dane said: "A serious evil we are fast running into in most of our states. This inundation of books made in different states and nations will increase until we can shake off more of our local notions. Our true course is § 179. Express adoption of the common law. The common law of the various states differs very materially. In some of the states, the common law of England as it existed prior to the fourth year of King James I. is expressly adopted by statutes, and it results as a matter of course that the decisions of the courts of England subsequent to 1607, the date of the charter of Virginia, under which the colony was established, are not considered as binding (43). Other states fix the date of the common law so as to include the common law and all of the statutes in aid thereof prior to the Declaration of Independence, or prior to some arbitrary date during the Revolutionary period, so that the student may easily ascertain the fact in a particular jurisdiction by consulting the statutory or constitutional provision. If no express rules are fixed, the Declaration of Independence necessarily limits the period when the common law of England was a part of the law of the colonies (44). § 180. The national common law. In considering the existence of a common law of the nation, sufficient has been said to indicate that by natural growth a common law consisting of customs and usages must necessarily plain; that is, by degrees to make our laws more uniform and national, especially when there is nothing to make them otherwise but local feeling and prejudices. We have, in the common and federal law, the materials of national uniformity in many cases. We have a national judiciary promoting this unformity, and we have lawyers learned, industrious, and able to second the judiciary. We only want a general efficient plan supported with energy and national feelings." 1 Wilson's Works, 335, note. 43 Kallenback v. Dickinson, 100 Ill. 427. 441 Wash. Real Prop. 64; Minor's Inst., 67, 81. develop (45); but the student and the lawyer inquire how far the common law in the narrower sense has become adopted, if at all, into the federal system, and become operative in the federal courts (46). The question presents itself in two phases: First, as a source of jurisdiction. In the first case, when the question arose, there was a sharp conflict of opinion. In that case it was sought to punish the defendant criminally as to a matter not made a crime by any act of congress. The judges were divided on the question of jurisdiction, but it seems that the court adjudged a punishment (47). It is now well settled, however, that the federal courts have no jurisdiction of subjects of litigation except as conferred by the constitution or the law (48). The second phase in which questions as to the common law of the United States arise is as to whether rights are to be affected and adjudged according to the principles of the common law, irrespective of or contrary to the decisions of the state courts; and it would seem that even in cases which do not fall strictly within the domain of mar 45 Smith v. Alabama, 124 U. S. 478. 46 Mr. Justice McLean said: "It is clear there can be no common law of the United States. No one will contend that the common law, as it existed in England, has even been in force in all its provisions in any state in this Union. It was adopted so far as its principles were suited to the condition of the colonies; and from this circumstance we see what is common law in one state is not so considered in another. The judicial decisions, the usages and customs of the respective states, must determine how far the common law has been introduced and sanctioned in each." Wheaton et al. v. Peters et al., 8 Pet. 659. 47 United States v. Worrall, 2 Dall. 384; Cooley's Const. Lim., pp. 30, 526. 48 See In re Burrus, 136 U. S. 586, and note on the case, Id. 597-605. itime and commercial law, the federal courts may and do resort to and apply the common law of the land as such, even though their view of what that law is differs from the decisions of the state courts. It is not the intention to here discuss the question as to how far the national courts will follow the state courts as to what the law of a state is, but the discussion here will be limited to the common law of the nation. ILLUSTRATIONS. In Baltimore & Ohio Ry., v. Baugh (49) Mr. Justice Brewer speaking of a case involving the liability of the employer for an injury to an employee occasioned by the negligence of another servant of the same master said: "In Hough v. Railway Co., 100 U. S. 213, 226, was presented the liability of a company to its servant for injuries caused by negligence, and Mr. Justice Harlan thus expressed the views of the entire court: 'Our attention has been called to two cases determined in the supreme court of Texas, and which, it is urged, sustain the principles announced in the court below. After a careful consideration of those cases, we are of the opinion that they do not necessarily conflict with the conclusions we have reached. Be this as it may, the questions before us, in the absence of statutory regulations by the state in which the cause of action arose, depend on principles of general law, and in their determination we are not required to follow the decisions of the state courts.'" The court, however, wipes away all doubt on the matter of that law in the following language: "But passing beyond the mat 49 149 U. S. 368. ter of authorities, the question is essentially one of general law. It does not depend on any statute; it does not spring from any general usage or custom; there is in it no rule of property, but it rests on those considerations of right and justice which have been gathered into the great body of the rules and principles known as the 'common law.' There is no question as to the power of the states to legislate and change the rules of the common law in this respect as in others; but, in the absence of such legislation, the question is one determinable only by the general principles of law. Further than that, it is a question in which the nation as a whole is interested." ILLUSTRATION. § 181. Where the question does not involve a state law. The illustrations in the last section show that there is a common law of the nation which the courts will recognize. In the case of Murray's Lessee v. Hoboken Land and Improvement Co. (50), the process in question by which the plaintiff's title was divested was a warrant issued by federal officers in pursuance to federal law, and involved no question of state law or jurisdiction. The question was whether such process authorized by an act of congress was due process of law. Mr. Justice Curtis says: "We must look to those settled usages and modes of proceeding existing in the common law and statute law of England before the emigration of our ancestors, and which are shown not to have been unsuited to their civil and political condition by having been acted on by them after the settlement of this country. We apprehend 50 18 How. 227. |