(see United States v. Reid, 12 How. 361), or where the Constitution, treaties, or statutes of the United States require other rules of decision. But with these, and some other exceptions which will be referred to presently, it must be admitted that it does provide that the laws of the several States shall be received in the courts of the United States, in cases where they apply, as the rules of decision in trials at common law.

It has been held by this court that the decisions of the highest court of the State in regard to the validity or meaning of the constitution of that State, or its statutes, are to be considered as the law of that State, within the requirement of this section. In Leffingwell v. Warren, 2 Black, 599, this court said, in regard to the statutes of limitations of a State: "The construction given to a statute of a State by the highest tribunal of such State is regarded as a part of the statute, and is as binding upon the courts of the United States as the text."

In the case of Luther v. Borden, 7 How. 1, 40, Chief Justice Taney said: "The point then raised here has been already decided by the courts of Rhode Island. The question relates altogether to the constitution and laws of that State; and the well-settled rule in this court is, that the courts of the United States adopt and follow the decisions of the State courts in questions which concern merely the constitution and laws of the State." See also Post v. Supervisors, 105 U. S. 667.

It is also well settled that where a course of decisions, whether founded upon statutes or not, have become rules of property as laid down by the highest courts of the State, by which is meant those rules governing the descent, transfer, or sale of property, and the rules which affect the title and possession thereto, they are to be treated as laws of that State to the Federal courts.

The principle also applies to the rules of evidence. In Ex parte Fisk, 113 U. S. 713, 720, the court said: "It has been often decided in this court that in actions at law in the courts of the United States the rules of evidence and the law of evidence generally of the State prevail in those courts." See also Wilcox v. Hunt, 13 Pet. 378; Ryan v. Bindley, 1 Wall. 66.

There are undoubtedly exceptions to the principle that the decisions of the State courts, as to what are the laws of that State, are in all cases binding upon the Federal courts. The case of Swift v. Tyson, 16 Pet. 1, which has been often followed, established the principle that if this court took a different view of what the law was in certain classes of cases which ought to be governed by the general principles of commercial law, from the State court, it was not bound to follow the latter. There is, therefore, a large field of jurisprudence left in which the question of how far the decisions of State courts constitute the law of those States is an embarrassing one.

There is no common law of the United States, and yet the main

body of the rights of the people of this country rest upon and are governed by principles derived from the common law of England, and established as the laws of the different States. Each State of the Union may have its local usages, customs, and common law. Wheaton v. Peters, 8 Pet. 591; Pennsylvania v. Wheeling, &c., Bridge Co., 13 How. 518.

When, therefore, in an ordinary trial in an action at law we speak of the common law we refer to the law of the State as it has been adopted by statute or recognized by the courts as the foundation of legal rights. It is in regard to decisions made by the State courts in reference to this law, and defining what is the law of the State as modified by the opinions of its own courts, by the statutes of the State, and the customs and habits of the people, that the trouble arises.

It may be said generally that wherever the decisions of the State courts relate to some law of a local character, which may have become established by those courts, or has always been a part of the law of the State, that the decisions upon the subject are usually conclusive, and always entitled to the highest respect of the Federal courts. The whole of this subject has recently been very ably reviewed in the case of Burgess v. Seligman, 107 U. S. 20. Where such local law or custom has been established by repeated decisions of the highest courts of a State, it becomes also the law governing the courts of the United States sitting in that State.

We are of opinion that the adjudications of the Supreme Court of Massachusetts, holding that a person engaged in travel on the Sabbath day, contrary to the statute of the State, being thus in the act of violating a criminal law of the State, shall not recover against a corporation upon whose road he travels for the negligence of its servants, thereby establish this principle as a local law of that State, declaring, as they do, the effect of its statute in its operation upon the obligation of the carrier of passengers. The decisions on this subject by the Massachusetts court are numerous enough and of sufficiently long standing to establish the rule, so far as they can establish it, and we think that, taken in connection with the relation which they bear to the statute itself, though giving an effect to it which may not meet the approval of this court, they nevertheless determine the law of Massachusetts on that subject.1

1 In CHICAGO UNION BANK v. KANSAS CITY BANK, 136 U. S. 223 (1890), which involved the question as to the validity of a deed of trust of all the debtor's property under the assignment laws of Missouri, it was found that under the decisions of the Supreme Court of the State the instrument would be valid, while in the Circuit Courts of the United States for Missouri similar instruments had been held void. The court thereupon followed the rule of decision of the State courts, using this language:

"The question of the construction and effect of a statute of a State, regulating assignments for the benefit of creditors, is a question upon which the decisions of the highest court of the State, establishing a rule of property, are of controlling authority

b. Common Law in Federal Jurisprudence.

SMITH v. ALABAMA.

124 United States, 465. 1888.

[PLAINTIFF in error was arrested for violation of a statute of Alabama making it criminal for an engineer to operate a railroad engine without a license, which could be obtained by examination before a State board. He claimed that he was engaged only in operating a train from a point in Alabama to a point in Mississippi, and that as to him the State statute was invalid as a regulation of interstate commerce, and sought release from imprisonment under the charge by writ of error in the State courts; and the writ being refused, appealed to this court. The court held that the matter, although affecting interstate commerce, was within the regulation of the States, unless such regulation contravenes some Federal law on the subject; and that the general rights and duties of persons within the State are to be determined by the common and statutory law of the State. On this question the following language is

used: -]

MR. JUSTICE MATTHEWS delivered the opinion of the court.

It is that law which defines who are or may be common carriers, and prescribes the means they shall adopt for the safety of that which is committed to their charge, and the rules according to which, under varying conditions, their conduct shall be measured and judged; which declares that the common carreir owes the duty of care, and what shall constitute that negligence for which he shall be responsible.

in the courts of the United States. Brashear v. West, 7 Pet. 608, 615; Allen v. Massey, 17 Wall. 351; Lloyd v. Fulton, 91 U. S. 479, 485; Sumner v. Hicks, 2 Black, 532, 534; Jaffray v. McGehee, 107 U. S. 361, 365; Peters v. Bain, 133 U. S. 670, 686; Randolph's Executor v. Quidnick Co., 135 U. S. 457. The decision in White v. Cotzhausen, 129 U. S. 329, construing a similar statute of Illinois in accordance with the decisions of the Supreme Court of that State as understood by this court, has therefore no bearing upon the case at bar. The fact that similar statutes are allowed different effects in different States is immaterial. As observed by Mr. Justice Field, speaking for this court, 'The interpretation within the jurisdiction of one State becomes a part of the law of that State, as much so as if incorporated into the body of it by the legislature. If, therefore, different interpretations are given in different States to a similar local law, that law in effect becomes by the interpretations, so far as it is a rule for our action, a different law in one State from what it is in the other.' Christy v. Pridgeon, 4 Wall. 196, 203. See also Detroit v. Osborne, 135 U. S. 492.”

This last case is followed in ETHERIDGE v. SPERRY, 139 U. S. 266 (1891), with reference to the validity of a chattel mortgage authorizing mortgagee to retain possession and sell, the decisions of Iowa, where the case arose, being followed rather than certain decisions of the Supreme Court of the United States on that subject.

But for the provisions on the subject found in the local law of each State, there would be no legal obligation on the part of the carrier, whether ex contractu or ex delicto, to those who employ him; or if the local law is held not to apply where the carrier is engaged in foreign or interstate commerce, then, in the absence of laws passed by Congress or presumed to be adopted by it, there can be no rule of decision based upon rights and duties supposed to grow out of the relation of such carriers to the public or to individuals. In other words, if the law of the particular State does not govern that relation, and prescribe the rights and duties which it implies, then there is and can be no law that does until Congress expressly supplies it, or is held by implication to have supplied it, in cases within its jurisdiction over foreign and interstate commerce. failure of Congress to legislate can be construed only as an intention not to disturb what already exists, and is the mode by which it adopts, for cases within the scope of its power, the rule of the State law which until displaced discovers the subject.

The

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 alteration as may be provided by its own statutes. Wheaton v. Peters, 8 Pet. 591. 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 Railroad Co. v. Lockwood, 17 Wall. 357, 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 applied was none the less the law of that State.

In cases, also, arising under the lex mercatoria, or law merchant, by reason of its international character, this court has held itself less bound by the decisions of the State courts than in other cases. Swift v. Tyson, 16 Pet. 1; Carpenter v. Providence Washington Insurance Co., 16 Pet. 495; Oates v. National Bank, 100 U. S. 239; Railroad Company v. National Bank, 102 U. S. 14.

There is, however, one clear exception to the statement that there is no national common law. The interpretation of the Constitution of the United States is necessarily influenced by the fact that its provisions are framed in the language of the English common law, and are to be read in the light of its history. The code of consti

tutional and statutory construction which, therefore, is gradually formed by the judgments of this court, in the application of the Constitution and the laws and treaties made in pursuance thereof, has for its basis so much of the common law as may be implied in the subject, and constitutes a common law resting on national authority. Moore v. United States, 91 U. S. 270.

1 MR. JUSTICE BRADLEY dissented.

Judgment affirmed.

In the following cases expressions are used or decisions made indicating that there is no common law of the United States as distinct from the States: U. S. v. Worrall, 2 Dall. 384; U. S. v. Hudson, 7 Cranch, 32; U. S. v. Coolidge, 1 Wheat. 415; Wheaton v. Peters, 8 Pet. 591, 658; Kendall v. U. S., 12 Pet. 524, 621; Bucher v. Railroad Co., 125 U. S. 583; In re Barry, a case in the United States Circuit Court for the Southern District of New York, reported as a note to the case of In re Burrus, 136 U. S. 586, 597. These cases and others are cited and considered in Gatton v. Chicago, R. I., & P. R. Co., 95 Iowa, 112.