t v yal He Nt i BANKS & COKPAAY LAW PUBLISHERS, BANY wy, AL Cornell Law School Library The border land of federal and state dec “Tt THE BORDER LAND FEDERAL AND STATE DECISIONS BEING THE SHARSWOOD PRIZE ESSAY FOR 1889, IN THE DEPARTMENT OF LAW, UNIVERSITY OF PENNSYLVANIA. BY GEORGE WHARTON PEPPER, A.B., LL.B., MEMBER OF THE PHILADELPHIA BAR, AND FELLOW OF THE DEPARTMENT OF LAW, UNIVERSITY OF PENNSYLVANIA. PHILADELPHIA: T. & J. W. JOHNSON & CO., 585 CHESTNUT STREET. > 1889. LA hE) CovYRIGHT BY T. & J. W. JOHNSON & CO., 1889. COLLINS PRINTING HOUSE, 705 Jayue Street. TABLE OF CONTENTS. INTRODUCTION, The harmony of National and State legislation . > The conflict of National and State judicial decisions . The grant of jurisdiction to the-Federal courts . ; Federal law supreme where jurisdiction is of the subject-matter State law supreme where jurisdiction is of the parties The tendency of the Federal courts to widen their jurisdiction The tendency of State courts to give statutes an extra-territorial operation . . . . . . . The purpose of this eneay Division of the subject PART I. The right of the Federal courts to carry their own theory of what the law is on a particular point into any given State, and to enforce it there in opposition to the local law. : = The assertion of this right and its consequences ‘ . . Classification of cases under Part I. ; 1. Cases involving the title to immovables_ . . State law followed by the Supreme Court This is done because of the lex ret site . . Not because of the sovereign right of the States. 2. Cases involving the interpretation of State constitutions and statutes. . . The common belief that State decisions vill always be followed . 7 : : This belief not wathonieed by ihe cases . . , Classification of cases under this head. i 2 Local decisions followed because of subject-matter, not because of construction of statutes . iv CONTENTS. PAGE A. Title to real property . . é : : i - 27 The local decisions will be followed . . ‘ . 382 B. Contracts . ‘ ‘ r i . 88 The local decisions may or may not be followed . 388 C. General law ‘ - ‘ ‘ : . Al The local decisions will not be liswod . ‘. - 438 Summary of these sub-heads_ . : 50 The present doctrine of the Supreme Guart ejimenaied with that of Chief Justice Marshall. é . 50 Division of opinion in the Court itself . ‘ . 51 8. Cases involving questions of general law . 5 52 The intention of the Framers that State law droite govern 93 The contrary view adopted by the Supreme Court . . d4 The confusion resulting from this view . . . . 65 General summary of PartI. . 2 : . . 69 The true status of State law in the Federal courts. ; . 7 The probability of perpetual conflict G7 How harmony may be secured . . : : a : » 17 Why the Federal courts should yield 78 PART II. The right of a State court to carry the law of its own State out of its geographical limits, and by applying it to causes of action accruing within the Federal domain, to give it an extra-territorial effect : . . ; : a . 80 The tendency to assert such aright . . . 80 Extra-territorial operation of statutes giving damages: for death , 81 The argument in support of such extra-territorial operation - 81 The ship alleged to be a part of the State in which it is owned . 81 The twofold nature of the ship . . ; : : - 82 The argument considered under two heads : ‘ 3 - 86 1. The cases bearing on extra-territoriality . ; a . 86 Crapo vs. Kelly. : ‘ ‘ ‘ : 3 . 86 The issue in the case. a : 3 . ‘ . 87 The decision in the court below. . : 2 - 88 The opinion of Mr. Justice Hunt . . ; - 93 A. The authorities as to the character of the dit ‘ - 93 They contradict the theory they are cited tosupport . 95 CONTENTS. Vv PAGE B. The general argument . s . 97 It is inconsistent with the decision of the Cour . 99 C. The conclusion . . : ; . 101 It is not a logical i ofnsenee fon the argument . . 101 McDonald vs. Mallory . ‘ i - 106 2. The alleged extra-territoriality of lows lave : . 108 Their express adoption by Congress . ; ‘ . 109 The Police Power of the State. : ; ‘ . 110 The ship a portion of the Nation, not of the State . : » 112 Extra-territoriality a doctrine of international law. ‘ . 114 Its history and claim on acceptation . 5 . 116 Its adoption by the States a trespass on the Peder domain . 118 General summary of Part II. . ‘ : : : . 118 The present position of the Supreme Court é ‘ ‘ . 121 TABLE OF CASES. PAGE Adams vs. Nashville, 5 Otto, 19 . ; ‘ ; i . 41 Aicardi vs. The State, 19 Wall. 635 : : ‘ 3 « 27 Amey vs. Allegheny City, 24 How. 364 . : ‘ ‘ - 27 Amis vs. Smith, 16 Pet. 308 . z ‘ : : . - 18 Bank vs. Bennington, 16 Blatch. 63 ‘ ; ‘ ‘ - 22 Bank vs. Daniel, 12 Pet. 32 . 3 : : d . 650 Bank of Hamilton vs. Dudley, 2 Pet. 499 ; ‘ é . 18 Beauregard vs. New Orleans, 18 How. 497. : ; - 18 Birtwhistle vs. Vardill, 5 B.& C. 488 . . ‘ ‘ - 104 Bondurant vs. Watson, 13 Otto, 281 : ‘ : - - 15 Boyce vs. Tabb, 18 Wall. 548 : ‘ : ‘ ‘ - 65 Boyd vs. Alabama, 4 Otto, 245. : : : : - 27 Boyle vs. Zacharie, 6 Pet. 648 . . : - 67 Brooke vs. The Railroad Company, 16 Weekly Notes of Cases (Phila.), 514. ; A ‘ . 54 Butz vs. The City of Maseating; 8 Wall. ‘375 : ‘ 46, 49 Chicago vs. Robbins, 2 Black, 418 . . ; : ; a: See Clarke vs. Smith, 13 Pet. 195 : ; ; : : - 18 Clarke vs. Van Surlay, 15 Wend. 436. 3 i ‘ ., 8l Cochran vs. Van Surlay, 20 Wend. 365 . i . ‘ . 81 Cooley vs. The Board of Wardens, 12 How. 299. ‘ - 109 County of Cass vs. Johnston, 5 Otto, 360 ; : : - 26 County of Henry vs. Nicolay, 5 Otto, 619. : . . 27 County of Leavenworth vs. Barnes, 4 Otto, 70 2 : . 41 Crapo vs. Kelly, 16 Wall. 610 81, 82, 86, 87, 91, 106, 107, 111, 118, 119, 121 Daly vs. James, 8 Wheat. 495 : ‘ : : ; » 12 Davis vs. Mason, 1 Pet. 503 . ‘ ‘5 : ‘ , . 18 E. B. Ward, Jr., 17 Fed. Rep. 456 ‘ ‘ ‘ . 82,115 Elmendorff vs. Taylor, 10 Wheat. 152 . ‘ 3 . 80, 40, 42 Ex parte McNiel, 138 Wall. 236. ‘ : : - 85,110 vill TABLE OF CASES. PAGE Fairfield vs. The County of Gallatin, 10 Otto, 47 38 Fisher vs. Haldeman, 20 How. 186 13 Frazier vs, Fredericks, 24 N. J. L. 166 . 87 Gardner vs. Collins, 2 Pet. 58 3 3 : . 82 Gelpcke vs. Dubuque, 1 Wall. 175 . : : ; . 84, 52, 77. Gibbons vs. Ogden, 9 Wheat. 207 . : : : 85, 94, 109 Groves vs. Slaughter, 15 Pet. 449 . ; . 48 Gut vs. The State, 9 Wall. 35 ‘ 27 Halley, The, 2 Priv. C. App. Cases, 193 3 82 Harpending vs. Reformed Dutch Church, 16 Pet. 455. 32 Harrisburg, The, 119 U. 8.199 3 5 : . 82,121 Harshman vs. Bates County, 92 U. 8. 569 . 26 Havemeyer vs. Iowa County, 3 Wall. 294 37 Henderson vs. Griffin, 5 Pet. 151 14 Hinde vs: Vattier, 5 Pet. 398 13 Inglis vs. The Sailor’s Snug Harbor, 3 Pet. 99 32 Jackson vs. Chew, 12 Wheat. 153 . 13 Jefferson Branch of the State Bank of Ohio vs. "Skelly, 1 Bick, 436 ‘ ‘ ‘ ‘ 47 Kain vs. Gibboney, 11 Otto, 362 67 Kelly vs. Crapo, 45 N. Y. 70. 88 Lee County vs. Rogers, 7 Wall. 181 37 Luke vs. Lyde, 2 Burr. R. 883 72 Luther vs. Borden, 7 How. 40 26 Martin vs. Funk, 75 N. Y. 184 9 McCutcheon vs. Marshall, 8 Pet. 240 ‘ - 26 McDonald vs. Mallory, 77 N. Y.547 . 106, 108, 111, 115, 121 McKeen vs. Delancey’s Lessee, 5 Cranch, 22 . - 29 Mutual Assurance Society vs. Watts, 1 Wheat. 290 15, 22 Nesmith vs. Sheldon, 7 How. 818 . 27 Nichols vs. Levy, 5 Wall. 483 32 Oates vs. The National Bank, 10 Otto, 245 24, 66 Ohio Life and Trust Company vs, Debolt, 16 How. 432 . | 87 TABLE OF CASES. ix PAGE Olcott vs. The Supervisors, 16 Wall. 678 - ; . 88, 60, 66 Orvis vs. Powell, 8 Otto, 176 i ; : 5 ; . 14 Pease vs. Peck, 18 How. 599 5 j . é ; . 46 Pine Grove vs. Talcott, 19 Wall. 666. ‘ . 4 . 88 Plestoro vs. Abraham, 1 Paige, 236. ‘ - : . 97 Polk’s Lessee vs. Wendell, 9 Cranch, 87; 5 Wheat. 293 . 11,17, 28 Pollard vs. Dwight, 4 Cranch, 421 z . . ‘i - 40 Porterfield vs. Clark, 2 How. 76 . 3 : : 5 . 82 Portland Bank vs. Stacey, 4 Mass. 661 . j . 83, 84, 87 Epoyident Institution vs. Massachusetts, 6 Wall. 630 - - 27 Gasah vs. Keyn, L. R. 2 Ex. Div. 63. ‘ u ‘ - 82 Railroad Company vs. Georgia, 8 Otto, 159 . 5 . . 27 Railroad Company vs. Lockwood, 17 Wall. 357. : . 62 Regina vs. Anderson, L. R.. 1 C.C.R.161 , : . 95 Richmond vs. Smith, 15 Wall. 429 2 ; ‘ x ~ “22 Ross vs. McLung, 6 Pet. 283 . : ; : e (9 Be Rowan vs. Runnels, 5 How. 144. ‘ ‘ ‘ j 43, 46 Ship vs. Miller, 2 Wheat. 324 5 ‘ j : 5 ee {382 Sill vs. Worswick, 1H. BL 690 2. 2. . . . 104 Sims vs. Irvine, 2 Dallas, 425 is . 7 s i » fd Suydam vs. Williamson, 24 How. 427. ‘ . 14 Swift vs. Tyson, 16 Pet.1 - 17, 55, 60, 63, 64, 67, 68, 72 Thompson vs. Hudson, L. R. 4H. L.C. 27. i : ‘ 8 Thomson vs, Lee County, 3 Wall. 327 . ‘ ’ ‘ . 87 Thuret vs. Jenkins, 7 Mart. (La.) 318. 2 . 82, 84, 85, 87 Town of Concord vs. Portsmouth Savings Bank, 92 U. 8.625 38 Town of Genoa vs. Woodruff, 2 Otto, 502. : : . 66 Town of South Ottowa vs. Perkins, 4 Otto, 261. : » 27 Town of Venice vs. Murdock, 2 Otto, 494. g j 49, 66 Truly vs. Wanzer, 5 How. 141 a z . ‘: : . 44 United States vs. Fox, 4 Otto, 315 ‘ : z F . 82 United States vs. Morrison, 4 Pet.124 . ; : 4 . 42 Varnum vs. Camp, 1 Green, 329 . ; ‘ : ; . 87 Vidal vs. Girard’s Executors, 2 How. 127 2 , : . 68 x TABLE OF CASES. Walker vs, State Harbor Commissioners, 17 Wall. 650 Waring vs. Jackson, 1 Pet. 570 Watson vs. Tarpley, 18 How. 519 . Webster vs. Cooper, 14 How. 488 . Wilcox vs. Jackson, 13 Pet. 498 Williamson vs. Ball, 8 How. 566 Williamson vs. Berry, 8 How. 549 . Williamson vs. The Church, 8 How. 549 Wilson vs. McNamee, 102 U. S. 572 Wilson vs. Mason, 1 Cranch, 24 PAGE 82, 34 13 44 27 13 14 14, 30 14 108 27 TEXT-BOOKS AND TREATISES CITED. PAGE Biddle, George W.: Retrospective Legislation ; : . 51 Bischof: Grundriss des Positiven internationalen Seerechts 96, 112 Bluntschli: Moderne Volkerrect . ‘ F ‘i - 96,112 Burrill: The Law of Assignments : F 2 ‘ 87, 88 Cooley: Principles of Constitutional Law ; : é 1, 133 Elliott’s Debates . < q A 7 e F - 16, 58, 58 Federalist if . ‘ : j z : 2 Hall: Treatise on Tutaraaitonsl tam . 7 s . 116 Hare, J. I. Clark: The Law of Contracts . - - 65 Henry, Morton P.: Admiralty Jurisdiction and —, . 112 Kent’s Commentaries . 3 ‘ ‘ 96, 112 Lawrence : Handbook of Titsenational Eas . ‘ 7 . 116 McMaster and Stone: Pennsylvania and the Federal Constitu- tion . : oh . 58 Magruder: John Metall“ Anietoat Siaveamen Sand . . 583 Patterson : Federal Restraints on State Action F 5 94, 108 Phillimore: International Law é - i 5 : . 118 Stimson, F. J., and Smith, Munroe: “State Statute and Com- mon Law” . ‘ - 3 - ‘i ‘ : . Story: Conflict of tinge sg : * a . 82 Vattel . é 7 j é , é 95, 96 Wharton: Conflict of — P F B : - - 82, 95 Wheaton: International Law . 5 . ‘ ; ‘ . 95 Wildman: International Law 3 , . - < 96, 113 THE BORDER LAND OF FEDERAL AND STATE DECISIONS. INTRODUCTION. “In strictness there can be no such thing as a con- flict of laws between State and Nation,” says Cooley in his Principles of Constitutional Law.’ “The laws of both operate within the same territory; but if in any particular case their provisions are in conflict, one or the other is void.” He is speaking, as the context shows, of statute law, and he is enunciating the theory upon which the marvellous balance between national and State legislation is maintained. So perfect has this theory been found in practice, that we turn to the domain of judicial decision in full confidence that similar harmony will be found to prevail there also. A glance at the reports, however, reveals the exist- ence of a large class of cases on which our two sys- tems of courts assert their liberty to differ, and atten- tion is thus called toa state of things which would seem alike unparalleled in the history of jurisprudence, and abhorrent to the spirit of the Constitution of the United States. 1 P. 133. 1 2 THE BORDER LAND OF It seems impossible that an instrument which has made such adéquate provision for the emergencies of legislation should be found to be at fault in questions of judicial decision. The provisions of the instrument itself, the explanations of its ablest expounders, and -the construction put upon these provisions in a long line of cases by the Federal courts, negative the ex- istence of such a possibility. As far as the Constitu- tion itself is concerned, the same care seems to have been taken to avoid a conflict between the State and Federal courts as was successfully exerted in the case of the Legislatures. It appears that the Federal jurisdiction of a cause must be derived from one of two sources—the subject-matter or the parties. In the former case, which includes questions arising un- der the Constitution, laws, and treaties of the United States, the Federal courts are supreme. The purpose is to have one supreme arbiter, whose decisions upon such questions shall be final. If it were not so, and if the final decision might rest with the courts of the several States, their various interpretations would cause, in the words of Hamilton, “a hydra in govern- ment from which nothing but contradiction and con- fusion could proceed.” In these cases, therefore, the Supreme Court of the United States has appellate jurisdiction over the courts of the several States, and is thus enabled to harmonize and control the develop- ment of the law in the tribunals of State and nation. 1 Federalist, No. 80. FEDERAL AND STATE DECISIONS. 3 In the latter case, which includes suits between citizens of different States, the purpose is to have a tribunal indifferent between the parties which shall discover the law of the State that is to govern the controversy, and apply it with impartial justice. As to the declaring of State law, the local courts are as supreme in this case as the Federal courts were seen to be in the former; and the Supreme Court of the United States has no more right to contradict the Supreme Court of Pennsylvania as to what is the local law on any point, than the State court has to in- terpret an Act of Congress in defiance of the decision of the highest court in the nation. If it were not so, to extend the reasoning of Hamilton, the strange spectacle would be presented of an independent de- velopment of the laws of each State by the Federal and local courts, with no superior tribunal to review the train of decisions. It is in this latter case that the conflict of judicial decisions has arisen, and the strange spectacle referred to above has actually been presented. The Federal courts in suits between citizens of different States have developed a tendency to extend to the subject- matter a jurisdiction which depends upon the parties. Instead of impartially applying the law as they have found it in the several States, they have asserted their right to correct or set aside that law, and to substitute for it their own theory of what the law should be. What at first seem to have been sporadic instances of 4 THE BORDER LAND OF this tendency have at length become so numerous that there is no longer any certainty that the local law will be enforced. Distinct theories on important points are entertained in the State and Federal courts, and Justice has taken to herself the double face of Janus, giving an unblushing assent to the opposite conclu- sions of the two tribunals. Nor has this tendency to overstep the limits of the jurisdiction been manifested in the Federal courts only. A. curious instance of it has lately been developed in the State courts, and the local tribunals have manifested their readiness to give to the statutes of their respective States an extra-territorial effect. It is true that these attempts on the part of the local courts can never assume such threatening proportions as the Federal encroachments can, for to. overstep the boundaries of State jurisdiction is to enter upon the Federal domain —an act of trespass which can be summarily checked by the Supreme Court or by Congress. But there are cases in which the apparent sanction of the Supreme Court and the silence of Congress have lent an air of authority to what are conceived to be unauthorized assumptions of power by the courts of the several States. It is the purpose of this essay to call attention to some of the more important manifestations of this ten- dency to widen the jurisdiction both on the part of the State and Federal judiciary, and to discover the rules, if rules there be, which have governed the action of the FEDERAL AND STATE DECISIONS. 5 courts. This will involve, on the one hand, a discus- sion of the status of State law in the Federal courts; and, on the other, an investigation of how far the laws of a State may be enforced beyond its borders. This discussion will be facilitated if a preliminary division of the subject is made into those cases in which the question at issue was as to the right of the Federal courts to carry their own theory of what the law is on a particular point into any given State, and to enforce it there in opposition to the local law; and into those cases in which the State courts were asked to carry the law of their respective States out of the geographical limits of those States, and, by applying it to causes of action accruing within the Federal domain, to give it an extra-territorial effect. It is evi- dent from what has been said that the questions aris- ing under the former division of the subject are vastly more important and more numerous than those which fall under the latter; but in the second division there is at least one case which, on account of the important principle it involves, seems amply to justify the classi- fication which has been adopted. Reference is made - to the case where, in the absence of a Federal statute giving damages for death from negligence, such dam- ages are given by virtue of a local statute, although the cause of action accrued on the high seas; and where the ratio decidendi depended upon the specious argument that the ship is a floating portion of the State in which it is owned. 6 THE BORDER LAND OF The former division represents a phase’ of the ten- dency which has been at work ever since the early days of our national existence, while the latter illustrates a principle which has been enunciated in this connection only in recent times. In discussing these questions it will be convenient to keep the two divisions separate and distinct, and to state as independent conclusions such inferences as may result from the consideration. FEDERAL AND STATE DECISIONS. 7 I, Cases in which the question is as to the right of the Federal Courts to carry their own theory of what the law is on a particular point into any given State, and to enforce it there in opposition to the Local Law. BrErForE beginning a detailed examination of the cases which are comprehended within this division, a word may be- said as to the nature of the conflict which has been referred to. Since a mere difference of citizenship between plaintiff and defendant is suf- ficient to enable the Federal jurisdiction to attach in any case, it at once becomes obvious that there is no limit to the questions of law which may be passed upon concurrently by State and Federal courts. The thousands of intricate commercial questions, the knotty problems of real estate law, the mooted inter- pretation of State statutes and constitutions, are laid every day before both systems of courts. It is not difficult to realize the confusion which must needs en- sue if each tribunal is to work out its own theories and enforce its decrees without regard for the decisions of the other. Neither is answerable to the other as to this mass of cases, and there is no arbiter or common superior to which both must own allegiance. The 8 THE BORDER LAND OF situation is a novel one, for we have here the spectacle of a judicial power which, in the case of the Supreme Court of the United States, is superior to the legis- lative. The Legislatures of the several States are unable to control the action of that tribunal, and Congress is in no better position. The jurisdiction of Congress is limited to those matters which are speci- fically entrusted to it by the Constitution, but many of the great questions of the commercial and common law do not fall within the circle of those provisions. In consequence of this state of things, and in the ab- sence of any means of producing harmony, rights which may have accrued on adjoining properties re- ceive such different judicial treatment that one litigant wins in one court upon the same set of facts as are relied upon by the party who is unsuccessful in the other. In the days when the prerogative jurisdiction of the Chancellor embraced many cases which would not now be entertained in ‘equity, and when the com- mon law, on the other hand, was most strongly domi- nated by the strictum jus of Rome, the two sides of Westminster Hall never presented a more striking contrast than do many points of the administration of the Federal law in Ninth Street, and of the local law in Sixth Street. Lord Westbury’s “plain man” would “undoubtedly hold up his hands with astonishment at the state of the law’? if he were informed that the a 1 Thompson vs. Hudson, L. R. 4 H. L. C. 27. FEDERAL AND STATE DECISIONS. 9 success or failure of a suitor’s action depended, not upon settled legal principles, but upon his choice of a tribunal. The word choice is used advisedly, for if it seems advisable to a plaintiff to seek in a Federal court a remedy which the law of the State denies him, he may, by a concerted plan, assign his claim to a citizen of another State, and so prevail where he would otherwise have succumbed.” This, then, is the state of things which is to be ex- amined. The field is a large one, and would form, perhaps, a better subject for a treatise than for an essay; but an attempt will be made to present, as briefly as possible, the results of the examination of a large number of cases, and it may be that this outline sketch will gain in clearness what a more detailed ex- amination would lose through its own bulk. In attempting to classify the cases for the purpose of discussion, it will be found convenient to adopt as the fundamentum divisions the general ground which the Court in each case has assigned as the reason for its decision. Upon this principle the cases appear to fall naturally into three groups, which are:— 1. Cases which involve the title to immovables and local laws of real property. 2. Cases which involve the interpretation of State constitutions and statutes. 3. Cases which involve questions of general, and & 1 Alb. L. J. 446. 2 Martin vs. Funk, 75 N. Y. 134. 10 THE BORDER LAND OF especially of commercial, law, and the commercia traditions of particular States. It may be remarked, in passing, that the order i which these groups stand represents their relative im: portance during the early stages of our national de velopment, while at the present time that order woulc seem to be almost exactly reversed. In the days o the conflicting land-grants, and of the disputes be tween the different States, the real estate cases eclipsec in importance the commercial questions which came u] for adjudication. Now, the intricate problems whicl invariably arise as the result of an advanced state o industrial development would seem entitled to th foremost place in a classification that depends upo1 the magnitude of the issues at stake. It will also b seen that the second group is distinguished from th others by a matter only of form, not of substance and hence it is obvious that, as regards subject-matter it may often include them both. 1. CASES WHICH INVOLVE THE TITLE TO ImmMov ABLES AND Locau Laws or REAL PROPERTY. An examination of the cases in the Supreme Cour of the United States which fall under this head show that the local laws of real property have uniforml: been enforced in the Federal courts. It is too stron; a statement, in view of all the circumstances of th case, to assert that the Supreme Court is bound bv th FEDERAL AND STATE DECISIONS. 11 local holdings—although this assertion is frequently made.' The doctrine of obligation has been expressly repudiated by Mr. Justice Johnson, as will presently appear; and an attempt will be made to show that in any event the line of argument adopted by the Court in deciding these cases has rendered the application of that doctrine impossible. In order to discuss the more important cases on this point, the following summary has been prepared. It contains the typical cases in chronological order, and an effort has been made to state them in such a way as to show the point of view from which the Supreme Court has regarded them. In Sims vs. Irvine,’ decided by the Supreme Court in 1799, the question involved was as to whether a legal right of entry to certain land had been acquired by one of the parties. It was admitted by his opponent that, according to the common law of Pennsylvania, where the property lay, the right of entry was a good one; but an attempt was made to go behind the local law and to question its intrinsic claim on the consideration of the Court. This the Court refused to permit, de- claring that why the law gave the right was inimate- rial; and stating that, “having incorporated itself with property and tenures,” it must be regarded by the United States courts as a rule of decision. In 1820 the Supreme Court decided the great case of Polk’s Lessee vs. Wendell,? which had come before 1 Chicago vs. Robbins, 2 Black, 418. 2 3 Dallas, 425. 3 5 Wheat. 293. 12 THE BORDER LAND OF them once before in 1815.1 This was an action involy- ing the title to certain lands in Tennessee under con- flicting grants from the parent State of North Carolina. Mr. Justice Johnson discussed at length the relation of the Federal and State courts upon the question, and announced generally that the local holdings would be followed. In commenting, however, upon the ar- guments at the bar, he repudiated the doctrine of ob- ligation, remarking (p. 306): “We will respect the decisions of the State tribunals, but there are limits which no court can transcend.” He points out that the decisions in North Carolina and in Tennessee on the validity of entries to perfect title were at direct variance, and that opposite constructions of the same laws constituted rules of decision in their respective courts. “Nevertheless,” he said, “if it is the law upon their own citizens, we are willing to apply the same rules of property to all others.” In Daly vs. James,” decided in 1823, the case turned upon the interpretation of a clause in a will disposing of real property. The clause had already received judicial construction in the Supreme Court of Penn- sylvania, but it was urged by counsel that this was not a case in which the local holding was conclusive. Mr. Justice Washington, without discussing whether or not the local decision was to be regarded as con- clusive, says (p. 535): “Upon a question of so much \, 1 9 Cranch, 87. 7 8 Wheat. 495. FEDERAL AND STATE DECISIONS. 13 doubt, this Court, which always listens with respect to the adjudications of the courts of the different States, when they apply, is disposed, upon this point, to acquiesce in the decision of the Supreme’ Court of Pennsylvania.” The word “heirs,” in that connection, was accordingly determined to be a word of limitation. In Jackson vs. Chew,' which came up in 1827, the Court were called upon to construe a devise of lands in New York, and to determine its validity. Thompson, J., declared that the otherwise difficult inquiry was “very much narrowed by applying the rule which has uniformly governed this Court, that where any principle of law, establishing a rule of real property, has been settled in the State courts, the same rule will be applied by this Court that would be applied by the State tribunals.” Jackson vs. Chew was followed by a number of cases,’ in all of which the same doctrine was announced. In Fisher vs. Haldman,* decided in 1857, the ques- tion was as to whether a pre-emption right to a certain island in the Susquehanna River could be obtained by settlement. This, said the Court, is a question of fact, depending upon the history and traditions of 112 Wheat. 153. 2 Waring vs. Jackson, 1 Pet. 570; Davis vs. Mason, Id. 503; Bank of Hamilton vs. Dudley, 2 Id. 492; Hinde vs. Vattier, 5 Id. 398; Clarke vs. Smith, 138 Id. 195; Wilcox vs. Jackson, Id. 498; Amis vs. Smith, 16 Id. 8303; Beauregard vs. New Orleans, 18 How. 497. 5 20 How. 186. 14 THE BORDER LAND OF Pennsylvania; and it is to be determined by a refer- ence to the decision of the courts of that State. The question was accordingly decided in the negative. In Suydam vs. Williamson,’ which came up from New York in 1860, the question was presented to the Court whether they would adhere to their own opinion as previously expressed in cases’ growing out of the identical property before them, or whether they would adopt an opposite view which had since. been put forth by the New York Court of Appeals. Mr. Justice Campbell declared that the New York decision was unquestionably to be followed. ‘“'The subject of the dispute is real property situated within the State of ~ New York, and her laws exclusively govern.” Orvis vs. Powell,’ decided in 1878, was a suit in chancery to foreclose a mortgage. The mortgagors had aliened, different lots at different times after the mortgage. The decree of the Circuit Court for the Northern District of Illinois had ordered the lots to be sold in the inverse order of the dates of convey- ance. It was contended that the mortgage was a lien on all equally; but Mr. Justice Miller said: “We are relieved from any discussion of what is the true equi- table rule on the subject, because we consider that when such rule is adopted it is, within the decisions of 1 24 How. 427. * Williamson vs. Berry, 8 How. 549; Williamson vs. The Church, Id. 565; Williamson vs. Ball, Id. 566. 3 8 Otto, 176. FEDERAL AND STATE DECISIONS. 15 this Court, a rule of property affecting the title to real estate, and as such is to be governed, in its application in this Court, by the law of the State where the land lies.” Bondurant vs. Watson! came up from Louisiana in 1880. The question was whether or not the Supreme Court would abide by the local rule that an unrecorded mortgage has no effect as to third persons. Mr. Jus- tice Woods declared that the Court would be bound by the Louisiana decisions “establishing, as they do, a rule of real property.” These, then, are the principal ¢ases on this point in the Supreme Court of the United States. In all of them the Federal courts have followed the decisions of the local tribunals, and, in language more or less definite, have referred to them as conclusive.? Before taking up the consideration of the line of argument employed in these cases, it may be well to notice here one cogent reason why the Federal courts can never be bound to follow the decisions of the State courts where the jurisdiction of the former depends only upon the citizenship of the parties. This reason involves the ground for giving the Federal courts cognizance of suits between citizens of different States, and it is properly adverted to in this place, for, although it fur- nishes the only true rule of decision in cases of this 1 13 Otto, 281. ? See also Mutual Assurance Society vs. Watts, 1 Wheat. 290; Henderson vs. Griffin, 5 Pet. 151. 16 THE BORDER LAND OF kind, it enters as a factor into only one of the opinions which have been examined. The purpose of that grant of jurisdiction was, as is well known, to avoid the pos- sibility of the prejudice or bias which a State court might show in favor of its own citizen and against a stranger! If a case were to arise to-day in which such bias could be discovered, the Supreme Court would be bound not to follow the decision of the local court by the very conditions of its jurisdiction. Nor is it to be imagined that such bias could never actually exist. A reference to the debates in the Federal con- ventions shows how real a thing this prejudice was in the estimation of the speakers,” and the spirit which prompted the local Legislatures in the childhood of the nation to pass the famous retaliatory acts* might easily have influenced the local courts as well. Now the best way for the Federal courts to avoid this local bias and to discharge themselves of the duty laid upon them by the Constitution, is for them to ascertain the law which any given State enforces in suits between its own citizens and to apply it in the case at the bar. So thought the framers of the Judiciary Act when they wrote :— “The laws of the several States, except where the Constitution, treaties, or statutes of the United States ’ See also Elliott’s Debates, vol. ii. p. 406. * Id. p. 892. * Act of Sept. 24, 1789, c. 20, § 34, 1 Stat. 92; now Rev. Stat. § 721. FEDERAL AND STATE DECISIONS. 17 shall otherwise require or provide, shall be regarded as rules of decisions in trials at common law, in the courts of the United States, in cases where they apply.” It remained for Mr. Justice Story’ to construe “laws” as “statute laws,” and so to defeat a great part of the object contemplated by the Constitution. If the rea- son for the grant of jurisdiction had been kept in view it is inconceivable that such a construction could have been adopted. As it is, only one opinion in the whole series shows that this fundamental principle was used as a practical rule of decision. Mr. Justice Johnson has already been quoted as saying in Polk’s Lessee vs." Wendell :? “Tf it is the law upon their own citizens we are willing to apply the same rules of property to all others.” And in a passage which is quoted below he puts in a negative way the test. which has been insisted on. But both ‘these statements are deprived of much of their weight by being involved in the line of argument to the discussion of which we are thus invited. If the foregoing considerations are correct, it will follow that strict logic would require the Supreme Court not merely to enforce the local law in these cases because it happens to coincide with the lex rei site (although practically the result is the same), but, in 1 Swift vs. Tyson, 16 Pet. 1. 2 5 Wheat. 298. 2 18 THE BORDER LAND OF the absence of bias, to enforce that law because it 1s the law of the local courts. The philosophical distinc- tion between these two positions is obvious. | A glance at the summary of cases given above shows that in assigning a reason for following the local holdings the Court wavered between two positions and finally settled upon the one which is conceived to be erroneous. In Sims vs. Irvine there was an almost complete recognition of the true theory, that the local law should be followed because it was the local law; while in the later cases, as, for example, in Suydam vs. ‘Williamson, the controlling consideration appears to have been that the property in dispute was governed by the lew rei site. Polk’s Lessee vs. Wendell affords an instance of the struggle between these two theories, and the opinion of Mr. Justice Johnson shows that the reason for the jurisdiction is gradually being merged in the consideration of the nature of the property. Said the learned judge in that case :— “The sole object for which jurisdiction of cases between citizens of different States is vested in the courts of the United States is to secure to all the administration of justice, upon the same principles ‘upon which it is administered between citizens of the same State.” This statement of an undoubted principle would have amply justified the application of the law of Tennessee to that particular case, because that was the law which would have been administered in a FEDERAL AND STATE DECISIONS. 19 suit between two citizens of Tennessee. The lan- guage of the learned judge is forcible. “The sole object,” he says, and he leaves no room for the theory that there is the collateral object of correcting the local law or of subjecting it to an independent development. Yet the force of his argument is greatly impaired when he goes on to say :— “Hence this Court has never hesitated to conform to the settled doctrines of the State on landed prop- erty, 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.” It may be that this reference to landed property is simply an illustration of the early practice of the Court of confining themselves with scrupulous ex- actness to the case in hand, and it is possible that the learned judge did not mean to imply that the local law would be followed only in cases involving real property. But, whatever his true meaning was, this and similar statements have been subsequently construed by the Court as exclusive statements and they have governed their decisions accordingly. In other words, the Court in these cases was dealing with property which is subject to the lex rez site, and that law would govern the case, independently of the nature of the tribunal in which the controversy arose. In point of fact, however, that tribunal owed its juris- diction of the case to the citizenship of the parties, 20 THE BORDER LAND OF and the reason for the decision should have brought that fact prominently into view. Instead of assigning as a ground for their action the consideration which would have influenced the State court in a similar case, the Supreme Court should have declared that they followed the State court in the absence of bias because its decisions showed what measure of justice ats own citizens would receive. This difference of thought is well illustrated by contrasting the first extract from Mr. Justice John- son’s opinion with the rule of decision laid down by Mr. Justice Campbell in Suydam vs. Williamson :— “Communis et recta sententia est, in rebus immo- bilibus servadum esse jus lociin quo bona sunt. sita.” The reasoning of one is based upon the nature of the parties ; the reasoning of the other upon the nature of the subject-matter. It will doubtless be said that the distinction is a metaphysical one, and that the practical result is the same, no matter what the line of argument is which jeads up to it. It is submitted, however, that this difference of thought affords an adequate explanation of much of the conflict which exists under the groups of cases which are yet to be con- sidered. It has been admitted that, in the absence of bias, the Federal courts will follow the local laws of real property, but it is contended that the very reasons which they have assigned for so doing have compelled them in other cases to override that law. Their line FEDERAL AND STATE DECISIONS. 21 of argument having been once adopted, they were forced to decide whether they would be consistent with themselves or consistent with the reason for their jurisdiction. That they adopted the former alternative is seen by what has already been said, and the results of that action may be summarized as follows: In the cases in this group the Supreme Court has gone into the several States to do justice between the citizens of different States. That justice was to be the same which would be awarded in suits between citizens of the same State. It so happened that the great cases which engrossed the attention of the Court when it was laying the precedents for after years were cases the subject-matter of which is at the common law governed by the lex rei site. Armed with this ancient principle as a rule of decision they enforced the State law, not because tt was the State law, but because it was the law of the place where the land lay. This, as has been said, was well enough as long as real property was in dispute; but the Court made use of such commendable exactness in confining themselves to the case before them, that the statement that State law would be followed where questions as to real pro- perty were involved came to be regarded as an exclu- sive statement; and when the growth of inter-state commerce brought questions of personal property be- fore the Court they decided, as will presently appear, that State law should not apply. 22. THE BORDER LAND OF 2. CASES WHICH INVOLVE THE INTERPRETATION oF State CONSTITUTIONS AND STATUTES. The mass of decisions which fall into line under. this head present many striking and curious contrasts. In the vast majority of cases the Supreme Court has accepted the construction put by the courts of a State upon its own constitution and statutes, and has in general always assigned the same reason for so doing. That reason is that the judicial department of a gov- ernment is the appropriate organ for construing the legislative acts of that government. This principle has been enunciated in various forms and often in such forcible language that the Court would at first sight seem to have left themselves no alternative but to follow the Jocal law in every case. It has been said that a State would not be sovereign and inde- pendent as to a constitution and laws which it could not, by its own appointed tribunals, construe, any more than it would be if it could not adopt or enact them.’ In one of the earlier cases it was said that in administering the local law of a State the courts of the United States follow implicitly the settled deci- sions of the courts of last resort of the State in. question.” It is, therefore, somewhat surprising to find the uniformity of decision frequently interrupted ' Bank vs. Bennington, 16 Blatch. 63. * Mutual Assurance Soc. vs. Watts, 1 Wheat. 279. FEDERAL AND STATE DECISIONS. 23 by point-blank refusals to adhere to the rule as stated. These exceptions (if they are to be called exceptions) are so numerous and their character is so varied that it is submitted that much of the certainty of the rule as usually stated is taken away. It is contended that the cumulative effect of the decisions comes down merely to this—that the Supreme Court will follow the State court in the construction of its own laws, PROVIDED that those laws do not involve some ques- tion of general or commercial law about which the Federal courts have their own theory. In other words, it is not a case of oblegation to follow local decisions because they are occupied in construing their own laws—as the general belief on this subject seems to take for ‘granted ; but it is a case only of probability that those decisions will be followed, and that, too, only when the laws to which they refer happen to relate to a limited class of subjects. In short, upon the line of argument already adverted to, a State is sovereign only in those directions in which the Supreme Court chooses to permit it to be sove- reion; and the control of that august tribunal is not limited to any constitutional question or question of national supremacy; it extends to the multitude of cases in general and commercial law on which two intelligent opinions may be entertained. Congress, indeed, has no power to regulate contracts, and it cannot legislate as to what shall constitute a valuable consideration, but it is contended, nevertheless, that 24. THE BORDER LAND OF an examination of the decisions of the Supreme Court will uphold the following statement: If the Pennsyl- vania Legislature were to pass an act declaring that the holder of a note given as collateral security for a pre-existing debt was not a holder for a valuable con- sideration, and if that act were construed in a train of decisions by the local Supreme Court to cover some case not strictly within its letter, the Supreme Court of the United States would yet not hesitate to disre- gard those decisions in a case where the local court would enforce them. Such an act would be merely declaratory of the law of Pennsylvania, of the common law, and of the practice in the Court of Chancery; but it would be contrary to the theory of the Supreme Court of what the law ought to be,! and would, there- fore, have to yield. It is admitted that this is not the view usually adopted,’ and it is, therefore, submitted with diffidence, and with a consciousness that it must stand or fall according to the weight of evidence which may be brought.to its support from the consideration of the cases themselves. In order to examine the position of the Supreme Court on this question more satisfactorily, the follow- ing division of this subject is suggested — Questions arising under the State constitutions and statutes involving— * Oates vs. The National Bank, 10 Otto, 245. * See 16 Am. Law Rev. 760. FEDERAL AND STATE DECTSIONS. 25 A. The Title to Real Property. B. Contract Rights. C. Matters of General Law. This classification rests on no logical basis; it is simply for the purpose of convenience in discussion ; but it will become an extremely useful one if it shall appear that the writer is justified in the following assertion: in cases falling under the first head it is probable that the local decisions will be followed, no matter what the opinion of the Court as to their orig- inal soundness ; in cases falling under the second head, they may or may not be followed, the question being determined by whether or not the Court conceive that contract rights have been impaired by those decisions ; in cases falling under the third head, it is probable that they will not be followed, whenever the Court en- tertain an opinion upon the point of law in question which differs from the opinion of the State Court. The word “probable” is used because it would seem that in every case the Court consider themselves at liberty to use their own discretion—the strongest as- sertions to the contrary being so qualified that their force is only apparent., If the foregoing considerations are correct it follows that the claim of the local decisions on the attention of the Supreme Court is founded—not upon the fact that they are local decisions, nor yet upon the fact that the judiciary of a State is engaged in construing its legis- lative acts—but upon the accident of the subject-mat- 26 THE BORDER LAND OF ter which happens to have occupied the minds of the legislature. It is not denied that in a multitude of opinions the individual judges have expressed views more or less in conflict with this position; but it is submitted that such expressions can have little weight in comparison with the actual result of the adjudicated cases. Before filling in the outline which has been sug- gested above, a word may be said in regard to the relative footing upon which State constitutions and statutes stand. The restraining influence which a con- stitution exerts upon the action of the legislature is analogous to that which is exerted one degree lower in the scale by the legislature itself upon the courts. It may be that there is a difference in the degree of cer- tainty that the local decisions will be followed between cases in which the State constitution is involved in the discussion and those in which the point at issue is merely the interpretation of an act of assembly. Certain it is that the majority of the cases in which the greatest deference has been paid to State decisions have been those in which the State constitution itself was in question. The County of Cass vs. Johnston,! where the Supreme Court overruled their prior deci- sion’ in deference to a contrary opinion subsequently expressed by the Supreme Court of Missouri, is an illustration of this class; and the note? will be found 1 5 Otto, 360. ? Harshman vs. Bates Co., 92 U. 8S. 569. * McCutchen vs. Marshall, 8 Pet. 240; Luther vs. Borden, 7 How. FEDERAL AND STATE DECISIONS. 27 to comprise a number of cases in which similar doc- trine has been announced. In digests, text-books, and essays, however, the two are always treated indiscriminately, and it will be seen hereafter that the distinction between them (if distinc- tion there be) is not always observed. No stress is here laid upon the point, and it is mentioned only on account of its suggestiveness. A. Real Property: the local decisions will probably be Jollowed. Since the Supreme Court profess to be bound by local holdings in cases involving real property, and also in cases of local statutory construction, it might be expected that they would consider a conjunction of the two as absolutely conclusive upon them. That they, however, have considered themselves at liberty to disregard the local decisions where such a course seemed to them advisable, will be seen from the early case of Wilson vs. Mason,’ decided in 1801. In that case there was a question as to certain conflicting sur- 40; Nesmith vs. Sheldon, Id. 818; Webster vs. Cooper, 14 Id. 488 ; Amey vs. Allegheny City, 24 Id. 364; Provident Institution vs. Mas- sachusetts, 6 Wall. 630; Gut vs. The State, 9 Id. 35; Richmond vs. Smith, 15 Td. 429; Aicardi vs. The State, 19 Id. 685; Town of S. Ottowa vs. Perkins, 4 Otto, 261; Boyd vs. Alabama, 4 Id. 245; County of Henry vs. Nicoley, 5 Id. 619; R. R. Co. vs. Georgia, 8 Id. 159. 11 Cranch, 24. 28 THE BORDER LAND OF veys under an act of the Virginia Legislature passed before the separation of Virginia and Kentucky. T'wo points were involved: first, an alleged conflict between a Virginia law and the Constitution of the United States, which is immaterial here; and, second, as to whether the court would follow the decisions of the local tribunals in construing an act of assembly which described surveys, and the method in which they were to be made. This the Court refused to do, Chief Justice Marshall declaring that the Virginia act was to be interpreted without regard to the local hold- ing. It is possible that a statement made many years afterwards, in the opinion of the Court in Polk’s Lessee vs. Wendell,! may be an explanation of this departure from the rule. It was there said that the peculiar situ- ation of Kentucky and Tennessee, with relation to the parent States of Virginia and North Carolina, and the statutory provisions and course of decisions that had grown out of this relation, had imposed upon the Court “the necessity of pursuing a course which nothing but necessity could have reconciled to its ideas of law or policy.” If this “necessity” was the existence of bias, then the decision in Wilson vs. Mason is unexception- able; if, however, it was anything less tangible, it is hard to reconcile that decision with principle. The case is not cited by way of an attempt to shake the general rule that local decisions will be followed in 1 5 Wheaton, 293. 7 Id. 302. FEDERAL AND STATE DECISIONS. 29 cases involving the construction of statutes on which land titles depend ; but it is interesting as an example of a case in which the Supreme Court would feel justi- fied in departing from that rule, and as a tendency to show that the doctrine of obligation is looked upon with disfavor by the Court. In McKeen vs. Delancy’s Lessee,! which was a case from Pennsylvania, the point at issue was the admis- sibility in evidence of the reading of the exemplifica- tion of a deed. The case turned on the construction of a Pennsylvania statute, and the Court decided to follow the interpretation given by the local courts. “Tn construing the statutes of a State on which land titles depend,” said the Court, “infinite mischief would ensue should this Court observe a different rule from that which has been long established in the State.” There is here no suggestion of the true issue at stake —the right of the judiciary of a State to construe the legislative acts of that State in a field in which it is sovereign, even the fact that it is a case of statutory construction is dwarfed by the consideration that the title to real estate is involved. When, in the case before the Court, the title to real property was found to depend on the local common law, and when no statute entered into the problem, it has been seen the Court enforced the law of the State, not because it was the law of the State, but because it was the lex rez sete ; now when 1 5 Cranch, 22. 30 THE BORDER LAND OF the right of the State to have its own acts construed by its own tribunals is called in question, the difficulty is sought to be solved by the statement that infinite mischief would ensue if land titles should be unsettled. ‘Why, it may well be asked, should the citizen whose bonds are held in reference to a certain statute be sub- jected to the operation of a foreign law, rather than his neighbor, who has chosen to invest in real estate? It would seem to be an argument worthy of Eryx- imachus, that local decisions with respect to real pro- perty should be regarded as fixed because they relate to immovables—while those which affect the title to personalty should be subject to change, inasmuch as they are concerned with what is movable. And yet, with but little exaggeration, this is the rule of decision which has been adopted. In Elmendorf vs. Taylor,! the decisions of the Kentucky Court were followed as to what constituted sufficient notice for the entering of a caveat against issuing a patent. Chief Justice Marshall presented the question in its true aspect with his usual force and clearness in an opinion to which reference will presently be made. It is to be noticed that the Court have availed them- selves of every circumstance which would give color to a refusal to follow the local holdings. In William- son vs. Berry’ it appeared that a private Act for the 110 Wheat. 152. ; ? 8 How. 495. FEDERAL AND STATE DECISIONS. 31 relief of a trustee under a will had been passed by the New York Legislature. It had been held by the highest court of that State that the act in question had vested the legal estate in the trustee." Chancellor ‘Kent and Chancellor Walworth had settled the con- struction by well-considered opinions. The Supreme Court of the United States rejected the local holdings and construed for themselves. Mr. Justice Wayne declared that the “obligation” to follow the State con- struction of statutes did not extend to private acts of legislature. From this decision Chief Justice Taney, Mr. Justice Catron, and Mr. Justice Nelson dissented. The opinion of the last-named judge is a clear and forcible presentation of the true principle which should govern such cases. He disposes of the alleged dis- tinction between general and private acts by arguing as follows: “It is no answer to this view to say that the question here is the construction of a private statute of New York. That assumes the very point in controversy. The point is, Can this Court reach the question involving the construction of the statute? That depends upon the prior one, whether Chancellor Kent acted in the exercise of the jurisdiction of this Court in expounding the statute. If he did, the ques- tion upon its construction is concluded; and whether the construction be right or wrong is a matter not in- quirable into in this collateral way.” 1 Clarke vs. Van Surlay, 15 Wend. 486; Cochran vs. Van Surlay, 20 Id. 365. 32 THE BORDER LAND OF Walker vs. State Harbor Commissioners,’ decided in 1873, marks a return to the old “non sequitur” line of argument. There the question was as to the meaning of the term “tide-lands” as used in a California Act. Mr. Justice Swayne declares that the local interpreta- tion is to be followed, as a rule of property is thereby established, and reasserts the proposition as to what michief would ensue were any other rule adopted. It is to be remembered that the truth of this statement is not called. in question; the contention merely is that the argument proves too much to render the position of the Supreme Court tenable, for the mischief would be and is proportionately great when the local deci- sions on other points are disregarded. The examina- tion of the cases on this subject? might be carried on indefinitely, but enough has been said to establish the desired conclusion that in the vast majority of cases the local decisions have been followed, not because the several States have a right to demand that they shall be followed, but because the subject-matter with which the statutes deal is always, say the Court, to be gov- erned by the lex rez site. Chief Justice Marshall alone has kept the true principle clearly in view, and 117 Wall. 650. * See Nichols vs. Levy, 5 Wall. 433; U.S. vs. Fox, 4 Otto, 315; Shipp vs. Miller, 2 Wheat. 324; Gardner vs. Collins, 2 Pet. 58; Inglis vs. Sailor’s Snug Harbor, 8 Id. 99; Ross vs. M’Lung, 6 Id. 283; Harpending vs. Reformed Dutch Church, 16 Id. 455; Porter- field vs. Clark, 2 How. 76. FEDERAL AND STATE DECISIONS. 33 has shown that to follow local decisions in the con- struction of statutes is a duty which the Supreme Court owes to the individual States of the Union.! B. Contracts: the State decisions may or may not be followed. Under this head falls that most interesting series of cases involving various questions with reference to municipal bonds. In these cases the Supreme Court has carried on a crusade against all attempts on the part of State courts to reconsider and overrule their earlier decisions, when in those decisions they had de- clared that certain acts of legislature were in harmony with the State constitution. The Court has here as- sumed the always indefinite and frequently quixotic duties of a knight-errant in regard to contracts, al- though it is hard to say whence the authority for such an assumption was derived. Whenever it could be made to appear that contract rights were injuriously affected by a local decision, that decision was set aside on the ground that such a contract was a proper object for the exercise of the Supreme Court’s protecting care. If Mr. Justice Story was right in saying that “laws” meant only “statute laws,” it is hard to see how a State by the decisions of its Court can be said to “pass a law impairing the obligation of contracts”—unless 1 See post, p. 40. 34. THE BORDER LAND OF “law” in the constitution is the generic term in rela- tion to which the “law” of the Judiciary Act is only a species—which is the exact reverse of the true state of the case. The argument is that a decision to the effect that a State statute is in harmony with the State constitution, and a decision occupied in construing that statute become as much a part of the act as the words in which it is put forth.’ It is then said that a decision which subsequently declares that the act in question is unconstitutional, sins against fundamental principles of justice by violating the sanctity of en- gagements entered into on the faith of the earlier decisions. But it would seem that such an argument is deprived of all force by the consideration that the last decision, made by a court competent to make it, declares that there never has existed any such statute; that it is void ab iitio on account of its unconstitu- tionality, and that it.is impossible to make a contract on the faith of that which has never existed. Such decisions do not alter or vary the law—they simply declare that a supposed statute, together with the prior decisions of the Court, are to be set aside, be- cause they are in conflict with the law. Such is the line of argument advanced by Mr. Justice Miller in his famous dissenting opinion in Gelpcke vs. Dubuque’-— the leading case on this branch of the subject. In that ? Walker vs. State Harbor Commissioners, 17 Wall. 648. 2-1 Wall. 175. FEDERAL AND STATE DECISIONS. 35 case it appears that the Supreme Court of Iowa had, in a series of decisions, affirmed the right of the legis- lature to authorize municipal corporations to subscribe to railroads which extended beyond the county limits. Subsequently the Court changed its position, and, over- ruling its prior decisions, declared that the legislature had exceeded its powers, and that the act was uncon- stitutional. ‘Then, when the title to personal property acquired in the interim was involved, the Supreme Court were called upon to decide whether or not they ’ would follow the local holding, and they decided that they would not. The usual statement—that they were compelled to choose between the earlier and the later holdings—is theoretically faulty. The Supreme Court of Iowa was competent to overrule its own decisions, and, having done so, those earlier decisions are to be considered as having never been the law of the State. This point is insisted on because, in view of it, one of the arguments of Mr. Justice Swayne to the effect that the earlier decisions were in harmony with the law of sixteen States in the Union, assumes a significance which the learned judge did not contemplate. If, when Gelpcke vs. Dubuque came up, the law of Iowa de- clared that the legislature never had a certain power, while the law of sixteen other States declared that it had, the Supreme Court, on their own showing, were compelled to choose—not between the earlier and later decisions of Iowa, because the earlier were as though they had never existed—but between the law of Iowa 36 THE BORDER LAND OF and the law of sixteen other States. In other words the Court, in forcing the law of these other States upon the sovereign State of Iowa, tacitly admitted that they would administer what they thought ought to be the ~ law in that State, and not what the law actually was. It is believed that this view of the case has never been emphasized. It will be remarked that this position on the part of the Court would be impregnable, provided that its jurisdiction of the case grew out of the sub- ject-matter; but, as the jurisdiction of the Federal courts depended merely on the citizenship of the par- ties, the duties of the Supreme Court were altogether different. The true principle was completely lost sight of by the Court, and even Mr. Justice Miller, in his able dissent, leaves much to be desired in this parti- cular. He indeed points out what it was which misled the Court, but he does not present the real ground on which to criticise the decision. He speaks slightingly of the “fancied duty of this Court to enforce contracts over and beyond that appertaining to other courts,” and he points out the confusion which results from two conflicting laws in the same territory ; but he nowhere dwells on the constitutional right of the citizen of Iowa to have the same law administered when his adversary is a citizen of New York, as his own courts would ad- minister in a suit against his next-door neighbor. The same criticism applies with added force to the reason- ing of Mr. Justice Swayne.