bidding a foreign corporation to sue upon a contract made within a State, until it shall have procured a certificate authorizing it to do business there, does not prevent the maintenance of such an action at common law in a Federal court, unless the statute makes such contracts void. It has been said that a District Court should not hold an act of Congress to be unconstitutional, unless, in a clear case, to prevent irreparable injury to property.50

477a. Common law of the United States. The Supreme Court has frequently laid down the doctrine that there is no common law of the United States regulating civil cases or criminal prosecutions.2 "There is no body of Federal common law separate and distinct from the common law existing in the several States in the sense that there is a body of statute law enacted by Congress separate and distinct from the body of statute law enacted by the several States." "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." "It is an entirely different thing to hold that there is no common law in force generally throughout the United States, and that the countless multitude of interstate

Auto Club of America, 225 U. S. 489; Sullivan v. Beck, 79 Fed. 200; Eastern B. & L. Ass'n v. Bedford, 88 Fed. 7; Groton Bridge & Mfg. Co. v. Am. Bridge Co., 151 Fed. 871. See $87, supra. Contra, Re Monongahela Distillery Co., 186 Fed.

220.

49 Michie v. N. H. & H. R. Co., 151

Fed. 694. Contra, Am. L. & Tr. Co. v. Grand Rivers Co., 159 Fed. 775.

50 U. S. v. Scott, 148 Fed. 431; Ex parte Wood, 155 Fed. 190; St. Louis & S. F. R. Co. v. Hadley, 155 Fed. 220; Consolidated Gas Co. v. New York, 157 Fed. 849.

§ 477a. 1 Wheaton v. Peters, 8 Peters 591; Smith v. Alabama, 124

U. S. 465, 478, 8 Sup. Ct. 564;
Western Union Tel. Co. v. Call Pub.
Co., 1 U. S. 92, 47 L. ed. 765. See
DuPonuceau on Jurisdiction passim;
Denver & R. G. R. Co. v. U. S., C.
C. A., 211 Fed. 64.

2 U. S. v. Worrall, 2 Dallas, 384, 1 L. ed. 426; U. S. v. Hudson, 7 Cranch. 32, 3 L. ed. 259; U. S. v. Coolidge, 1 Wheaton 415, 4 L. ed. 124; Manchester v. Massachusetts, 139 U. S. 240, 262, 35 L. ed. 159, 166. See infra, § 483.

3 Western Union Tel. Co. v. Call Publishing Co., 181 U. S. 92, 45 L. ed. 765, per Mr. Justice Brewer.

4 Smith v. Alabama, 124 U. S. 465, 478, 8 Sup. Ct. 564. Per Mr. Justice Matthews.

commercial transactions are subject to no rules and burdened by no restrictions other than those expressed in the statutes of Congress.

"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 constitutional 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."

5 Ibid. Murray v. Chicago & N. W. Ry. Co., 62 Fed. 24, 33, 34, per Oliver P. Shiris J.; "The meaning to be given to this last sentence quoted from the opinion of Mr. Jus tice Matthews is not at all clear. If it be true that the Supreme Court, in construing the provisions of the Constitution, and the laws and treaties made in pursuance thereof, has the right to adopt, as the basis of its construction, so much of the common law as may be implied in the subject, which proposition seems to be affirmed, then is it not true that the principles of the common law, so far as applicable to the subjectmatter, are recognized as in force touching matters of national control? It is evident that it was present to the mind of the learned justice whose opinion we are considering that it would not do to hold that the failure of Congress to legislate touching the duties and obligations of common carriers engaged in interstate commerce left the public without any law for its protection, and therefore the suggestion is made that: The 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.' The rules prevailing in the different states may be variant or antagonistic. A delivery of goods may be made to a common carrier in California, for transportation to New York. Do the legal relations, duties and obligations existing between the shippers and carrier vary and change as the shipment passes state boundaries, so as to accord with the local law of each State through which the carrier may choose to take them? Upon such a theory, what becomes of the principle that the exclusive control of foreign and interstate commerce was committed to congress in order to secure a uniform rule touching the same? I would amend the statement of Mr. Justice Matthews so that it should read: The failure of congress to legislate can be construed only as an intention not to disturb what already exists; and as, at the time of the adoption of the constitution,

The failure of Congress to legislate can be construed only as an intention not to distrub what already exists; and as, at the time of the adoption of the Constitution, common carriers, under the principles of the common law, were subject to certain duties and obligations, the failure on the part of Congress to legislate thereon evinces the legislative intent to leave the rules and principles of the common law in force, as controlling and defining the relations, duties, and obligations of common carriers engaged in interstate commerce.6

Independently of any statute, Federal courts sustain suits against telegraph companies, railroad companies, or other com

forcible illustration of the fact that
the government of the United States
does recognize and enforce the prin-
ciples of the common law with re-
gard to subjects wholly within na-
tional control, and not as part of
the municipal law of any state, is
found in connection with the or-
ganization and proceedings of the
court of claims. This court is not
a court in and for the district of
Columbia nor is it a court of any
* As to this
district or circuit. *
court thus organized, and clothed
with a jurisdiction wholly national
in its character, the express ruling
of the Supreme Court is to the ef-
fect that the general law controlling
its action is the common law

#

is conferred "The conclu

Ibid. (41, 42): sion I reach upon this subject is · that at the time of the separation of the colonies from the mother country, and at the time of the adoption of the constitution, there was in existence a common law, derived from the common law of England, and modified to suit the surroundings of the people; that the adoption of the Constitution and consequent creation of the national government did not abrogate this common law; that the division of governmental powers and duties between the national and state governments provided for in the constitution did not deprive the people who formed the Constitution of the benefits of the common law; that, as to such matters as were by the Constitution committed to the control of the national government, there were applicable thereto the law of nations, the maritime law, the principles of equity, and the common law, according to the nature of

the particular matter; that, to se-
cure the enforcement of these several
systems when applicable, the Con-
stitution and congress, acting in fur-
therance of its provisions, have
created the Supreme Court of the
United States and the other courts
inferior thereto, and have conferred
upon these courts the right and
power to enforce the principles of
the law of nations, of the law mari-
time, of the system of equity, and of
the common law in all cases coming
within the jurisdiction of the fed-
eral courts, applying, in each in-
stance, the system which the nature
of the case demands; that, as to all
matters of national importance over
which paramount legislative control
upon congress, the
courts of the United States (the
Supreme Court being the final ar-
biter), have the right to declare what
are the rules deducible from the
principles of general jurisprudence
which control the given case, and to
define the duties and obligations of
the parties thereto; that the com-
mon law now applicable to matters
committed to the control of the na-
tional government is based upon the
common law of England, as modified
by the surroundings of the colonists
and as developed by the growth of
our institutions since the adoption
of the constitution, and the changes
in the business habits and methods
of our people; that the binding
force of the principles of this com-
mon law, as applied to matters af-
fecting the entire people, and placed
under the control of the national
government, is not derived from the
action of the states, and is no more
subject to abrogation or modifica

mon carriers for unjust discrimination, or excessive charges,8 for transportation in the course of interstate commerce.

$ 477b. The effect of decisions of State courts, establishing Rules of Property. When the decisions of the State courts establish a rule of property, they will be followed by the Federal courts, unless they relate solely to questions of commercial law,1 or involve the application of principles of the common law which are general throughout the United States.2 Thus the Federal courts will follow the decisions of the State courts, at least if they were made before the cause of action arose and in the absence of constitutional difficulties.

Water rights, the right to a wharf extending into navigable

tion by state legislation than are the principles of the law of nations or of the law maritime."

7 Western U. Tel. Co. v. Call Pub. Co., 181 U. S. 92, 45 L. ed. 765.

8 Murray v. Chicago & N. W. Ry. Co., 62 Fed. 24; contra, Swift v. Phila. & R. R. Co., 58 Fed. 858; S. C. 64 Fed. 59, 60; per Grosscup, J.: "The right to recover from common carriers for unreasonable exactions must be found in some positive law of the land, applicable to the case in hand. Such a prohibition is in fact found in the common law; but it is not applicable to the case in hand, unless there be a common law of the United States, as a distinct sovereignty, because the regulation of the rates upon which the suit is dependent is within the scope of the interstate commerce, and an exclusively national affair, in which the need of uniformity is imperative. There is no common law of the United States, as a distinct sovereignty; and there being no pronouncement of congress upon this subject, either expressly or impliedly, outside of the interstate commerce act, and this action not having been brought under the inter

state commerce act, there is no law, either of the United States or the state, applicable to the case in hand, and there can therefore be no recovery."

As to the liability of a railroad company for damages caused by fire, see Denver & R. G. Co. v. U. S., C. C. A., 241 Fed. 64.1

§ 477b. 1 Neves v. Scott, 13 How. 268, 271, 14 L. ed. 140; Gaines v. Fuentes, 92 U. S. 10, 20, 23, L. ed. 524, 528; Lorman v. Clarke, 2 McLean, 568, 577; Nichols v. Eaton, 91 U. S. 716, 729, 23 L. ed. 254, 258; Ellis v. Davis, 109 U. S. 485, 27 L. ed. 1006; Fisher v. Shropshire, 147 U. S. 133, 37 L. ed. 109; St. Louis & S. F. R. v. S. W. Tel. & T. Co., C. C. A., 121 Fed. 276; Alabama Consol. Coal & Iron Co. v. Baltimore Tr. Co., 197 Fed. 347. See supra, § 82. Graysonia-Nashville Lumber Co. v. Goldman, C. C. A., 247 Fed. 423; Ramsay v. Crevlin, C. C. A., 254 Fed. 813.

2 Supra, § 477.

3 Hart v. Dair, C. C. A., 244 Fed. 897. See other authorities cited in this section, infra, section 477c.

4 Chicago, B. & Q. R. Co. V. Board of Sup'rs. of Appanoose