prescience to realize that a system of national courts was necessary to protect the new government in retaining and defending the privileges and duties imposed upon it by this new and untried document. The experience of the states under the Articles of Confederation had taught this beyond peradventure. And our history since the adoption of the Constitution has shown that if state courts alone had been intrusted with the duty of construing the Constitution, especially in those doubtful and difficult questions as to the relative powers of the states and the nation, it would have been rendered impotent to accomplish the objects for which it was designed. The national courts and the long line of great jurists who have sat in them have saved it from this fate, and given it vigor and vitality. If, as some say, they have made of it an instrument which its original draftsman never designed and of which they never dreamed, it is fair to say in their vindication that they have made of us a nation of which our fathers never dreamed. The judicial power of the United States courts, as a whole, is conferred by article 3, § 2, par. 1, of the Constitution, which provides: "The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority; to all cases affecting ambassadors, other public ministers and consuls; to all cases of admiralty and maritime jurisdiction; to controversies to which the United States shall be a party; to controversies between two or more states; between a state and citizens of another state; between citizens of different states, between citizens of the same state claiming lands under grants of different states, and between a state, or the citizens thereof, and foreign states, citizens or subjects." It will appear, when we come to consider the distribution of this general mass among the different federal courts, that Congress has not exhausted the powers conferred upon it by this section, and that it has left many controversies to the state courts which it could have bestowed upon the federal courts. DERIVATION OF POWERS OF FEDERAL COURTS 2. The federal courts are courts of limited jurisdiction. and derive their powers solely from statute. Except as to the subjects intrusted to the Supreme Court by paragraph 2 of this same section, an act of Congress is necessary before the courts can take cognizance of any of the cases above named.1 As the national government is a government of delegated powers only, its courts are courts of special jurisdiction only, and hence the party applying to them for relief must first satisfy them that they have the right to give it.2 This must be shown by reference to some statute giving the right to the relief sought, for the United States, as a nation, have no common law. NO FEDERAL COMMON LAW 3. There is no, general common law of the United States as a nation, and hence the common-law rights administered by the federal courts arise incidentally in exercising some statutory jurisdiction conferred upon them. 1 U. S. v. Hudson, 7 Cranch, 32, 3 L. Ed. 259; In re Wisner, 203 U. S. 455, 27 Sup. Ct. 150, 51 L. Ed. 264; Columbus Iron & Steel Co. v. Kanawha & M. R. Co. (C. C.) 171 Fed. 713. See "Courts," Dec. Dig. (Key-No.) § 255; Cent. Dig. § 792. 2 GRACE v. AMERICAN CENT. INS. CO., 109 U. S. 278, 3 Sup. Ct. 207, 27 L. Ed. 932; Fishback v. Western Union Telegraph Co., 161 U. S. 96, 16 Sup. Ct. 506, 40 L. Ed. 630; McEldowney v. Card (C. C.) 193 Fed. 477, 482. See "Courts," Dec. Dig. (Key-No.) §§ 255, 261; Cent. Dig. $$ 792-794. Before the adoption of the federal Constitution, each state was an independent sovereign, with its own body of laws, the basis of which, as to the original thirteen states, was the English common law. The formation of the national government made no change in this respect, and the organization of the national courts merely resulted in additional tribunals, before whom questions of general jurisdiction would come in the states where they sat, and in the cases of which they are given jurisdiction. The federal court of a state is not an alien tribunal. It takes judicial notice of all things of which a court of the same state would take judicial notice, and is in many particulars, to be presently discussed, controlled by the decisions of the state. court. 3 The fact that the United States, as a nation, have no common law, was decided very early in its history. In U. S. v. Hudson an attempt was made to prosecute the defendant as guilty of a common-law libel, but the court held that the prosecution would not lie. In the later case of Wheaton v. Peters the Supreme Court reiterated that there was no common law of the United States, but that the law of the state was administered by the federal court, including so much of the common law as that state had adopted. This subject has undergone much discussion of recent years, and expressions may be found in judicial opinions intimating that there is a body of common law of the United States as a nation. They are in cases where the federal courts have not felt themselves bound by decisions of courts of the state. Properly construed they do not assert a right to administer any federal common law, but merely a right of independent judgment in deciding ques 8 7 Cranch, 32, 3 L. Ed. 259. See "Common Law," Dec. Dig. (KeyNo.) § 13; Cent. Dig. § 11; "Courts," Dec. Dig. (Key-No.) § 261; Cent. Dig. § 792. 48 Pet. 591, 8 L. Ed. 1055. tions of general interest in which the nation at large is interested. Or, to put it in another way the federal courts in such cases are not asserting the existence of any federal common law but merely claiming the right to differ with the courts of, the state on the question what is the common law when that question is one of general importance. As the federal courts were designed to protect nonresidents, this right of independent judgment as to what is the common law is essential to the accomplishment of the object for which they were created. 5 This distinction is well drawn by Mr. Justice Matthews in Smith v. Alabama, where he says: "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 alterations as may be provided by its own statutes. A determination in a given case of what that law is may be different in a court of the United States from that which prevails in the judicial tribunals of a particular state. This arises from the circumstance that the courts of the United States, in cases within their jurisdiction, where they are called upon to administer the law of the state in which they sit or by which the transaction is governed, exercise an independent though concurrent jurisdiction, and are required to ascertain and declare the law according to their own judgment. This is illustrated by the case of New York Cent. R. Co. v. Lockwood, 17 Wall. 357 [21 L. Ed. 627], where the common law prevailing in the state of New York, in reference to the liability of common carriers for negligence, received a different interpretation from that placed upon it by the judicial tribunals of the state; but the law as 5 SMITH v. ALABAMA, 124 U. S. 465, 8 Sup. Ct. 564, 31 L. Ed. 508. See "Common Law," Dec. Dig. (Key-No.) § 13; Cent. Dig. § 11; "Courts," Dec. Dig. (Key-No.) § 261; Cent. Dig. § 792. applied was none the less the law of that state." The language of Mr. Justice Brewer in Western Union Telegraph Co. v. Call Publishing Co. probably means no more than this. So also his language in Kansas v. Colorado." THE LAW.ADMINISTERED 4. A federal court of original jurisdiction administers the body of law of the state wherein it sits, whenever questions arising under that law come before it in controversies of which it is given jurisdiction. For instance, federal courts are given cognizance of controversies between citizens of different states. Such a controversy may involve almost any question which might arise in a state court between citizens of the state, whether at common law, in equity, or questions of extraordinary remedies. In the absence of congressional enactments specially bearing upon it, the federal court would try the case substantially as the state court, following the decisions of the latter in some instances, and striking out along its own lines in others. Hence it is now necessary to consider how far state laws and decisions are binding upon the federal courts, and how far they may be disregarded. SAME-LAW OF LOCAL STATE WHEN NO WRIT- 5. Under section 721, Rev. St. U. S. [U. S. Comp. St. 1901, p. 581], the laws of the several states, except where the Constitution, treaties, or statutes of the United States otherwise require or provide, shall 181 U. S. 92, 21 Sup. Ct. 561, 45 L. Ed. 765. 7 206 U. S. 46, 27 Sup. Ct. 655, 51 L. Ed. 956. See "Courts," Dec. Dig. (Key-No.) §§ 261, 359; Cent. Dig. §§ 792, 939-949, 978. 1 |