held on the circuit as early as 1798 that the United States had no common law of their own, and that the "common law, therefore, of one State is not the common law of another; but the common law of England is the law of each State, so far as each State has adopted it; and it results from that position, connected with the judicial act, that the common law will always apply to suits between citizen and citizen, whether they are instituted in a Federal, or State, Court."" So the Supreme Court itself had said, in 1834, in a famous judgment, concurred in by Mr. Justice Story himself, that "it is clear, there can be no common law of the United States. The federal government is composed of twenty-four sovereign and independent States; each of which may have its local usages, customs and common law. There is no principle which pervades the union and has the authority of law that is not embodied in the constitution or laws of the union. 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.''

The State courts have looked upon the doctrine announced in Swift v. Tyson with an unfriendly eye. In some, its authority is denied. In none will it affect the disposition of a cause turning upon its own law, and not pending in the federal courts. It has,

1 United States v. Worrall, 2 Dallas' Reports, 384, 394. 2 Wheaton v. Peters, 8 Peters' Reports, 658.

* See Forepaugh v. Delaware, Lackawanna and Western R. R. Co., 128 Pennsylvania State Reports, 217; 18 Atlantic Reporter, 503.

however, been repeatedly reaffirmed by the Supreme Court of the United States, though the later decisions appear to limit its effect to questions growing out of commercial transactions not wholly confined to a single State.1

The right of recovery on a cause of action of a commercial nature will therefore often depend on the court which the plaintiff selects. If he sues in a State court, the common law of the State, as the judicial authorities of that State declare it to be, will be applied; if he sues in a court of the United States, the common law of the State as the judicial authorities of the United States declare it to be. Each tribunal will profess to decide by the same rule-the law of the State; but the federal court will really apply the common law of England, as it is generally understood to be, instead of the common law of that State as it is locally understood to be.

The relations between the federal and State courts which have been described obviously present many occasions for conflicts of authority. That such conflicts are so infrequent is mainly due to a spirit of comity, which the judges of each sovereignty should and generally do show to those of the other. The federal courts are also prohibited by Act of Congress from issuing any injunction to stay proceedings in a State court, except in certain cases arising under the bankruptcy laws. Independent of any statute, how

1

Western Union Telegraph Co. v. Call Publishing Co., 181 United States Reports, 92. See Article on the Common Law of the Federal Courts, by Edward C. Eliot, American Law Review, XXXVI, 498.

ever, the general principles of jurisprudence forbid any direct attempt either by a court of the State to control the action of a court of the United States or by a court of the United States to control the action of a State court, except to the limited extent for which provision is made in the national Constitution.1 Each court, this exception aside, exercises powers belonging to an independent sovereign, and therefore subject to control by that sovereign only.

The equitable jurisdiction of the courts of the United States enables them to interfere in disputes arising out of State elections in certain cases in which the claim is set up that rights held under the Constitution or laws of the United States have been violated. Actions for such relief are rare, and instances have occurred in which the remedy has been abused for political purposes.2

The centralizing and nationalizing tendencies which set in early in the nineteenth century and were so greatly strengthened by the course of events during and following soon after the Civil War have greatly weakened the position and influence of the State courts. They have thus rendered the State bench less attractive. In 1791, John Rutledge, an associate justice of the Supreme Court of the United States, resigned that office for the Chief Justiceship of South

1 Diggs v. Wolcott, 4 Cranch's Reports, 179; M’Kim v. Voorhies, 7 Cranch's Reports, 279.

2 See the proceedings in the case of Kellogg v. Warmoth in the United States Circuit Court in Louisiana in 1872. McPherson's "History of Reconstruction," 100-108.

Carolina. During the last half century, several Chief Justices of States have resigned to become Associate Justices of the Supreme Court of the United States. Associate Justices of Supreme Courts in the smaller States have also frequently resigned to accept the position of District Judge, attracted by the life tenure, larger salary, and retiring pension.

CHAPTER XI

RELATIONS BETWEEN THE COURTS OF DIFFERENT STATES

EVERY State has all the rights of an independent sovereign, except so far as its sovereignty is limited by the Constitution of the United States. As respects each other the States are for most purposes in the position of foreign governments. The courts of one are regarded by those of any other as foreign courts, except so far as the Constitution may have prescribed a different rule.

No legal process from a court can have any inherent force outside of the territorial boundaries of the government in which it is issued. The law of that government may attach certain consequences to the fact of its service in a foreign country, but it can do so only with reference to the effect of the proceeding on persons or property subject to its own jurisdiction. Courts, as a general rule, can act only when they have jurisdiction over the person, the subject-matter, and the cause.

In rare cases, jurisdiction over the subject-matter may be regarded as giving jurisdiction over the person, so far as may be necessary to uphold a judgment settling the possession or title to property. Such a proceeding is, either in form or substance, one not in personam but in rem. The commonest instance is a suit in admiralty to enforce a maritime lien, such