property already existing under state law, which it protects from undue process prejudicial to the right; but there must be such right before it can call on the amendment for defense. Whence does that right come? It can only come from state law, because the amendment does not originate or confer it, but only defends it from illegal assault. Therefore, it would seem that unless state law recognizes this right of life, liberty, property or equality, there is nothing for the amendment to operate upon; and therefore we must find such right vested under state law. The Constitution says that no state shall pass an ex post facto law. A federal court has right to say whether an act is ex post facto, because that is the particular thing inhibited. The Constitution says that no state shall pass a law impairing the obligation of a contract. It might seem that a federal court does not say what is an obligatory contract under state law contrary to a state decision, but that the federal court can say whether an act of the state is an impairment of its obligation, for that is the particular thing inhibited. So, it might seem that the federal court does not say what is a right of liberty, what may be done under it, or what is property under state law; but that it can say, of its own judgment, regardless of state judgment, whether the action of the state upon it as undue process, as that is the particular thing inhibited Remember, that the amendment gives nothing, except protection to existing right. Hence state decisions as to what are such rights, whether they do or do not exist, are, or ought to be, controlling. I say state decisions as what are such rights, not as to whether the process by which the state may impair them is due proc

ess; the latter is clearly for federal decision.

9

This doc

trine would accord to the states what all concede they had before the amendment, would take nothing from the national power. It would preserve the benefit of local self-government, the dignity of the states as erst it was. It prevents, largely, at least, the very objectionable feature of different courts in the same state propounding the law differently on the same state of facts, and thus promotes symmetry of the system of law. It preserves the Union, because it prevents clash and conflict between state and federal governments. This clash may occur at any time. In the past it has occurred, and it is only dependent upon the public interest and excitment existing at any particular crisis what disaster it may bring. In 1813, in Hunter v. Martin, the Supreme Court of Virginia, denying the right of the United States Supreme Court to entertain a writ of error to its judgment, refused to acknowledge a reversal or to carry out the mandate of the federal Supreme Court, and the latter court reversed the refusal, and itself awarded execution. The clash later between the federal Supreme Court and that of Iowa in the matter of the validity of railroad bonds in Gelpcke v. Dubuque10 is another instance. Justice Miller speaks11 of the disagreeable duty he was compelled to perform in following decisions of the federal Supreme Court as a circuit judge, to commit to jail over one hundred citizens of Iowa for disobeying a federal decision, they obeying in good faith an injunction from a state court

94 Munford, 1; 1 Wheat. 304.

10 1 Wall. 175.

11 Butz v. City, 8 Wall. 587.

-one commanding them to do, the other not to do, a certain thing. Other instances of legal collision have occurred. This doctrine that state decisions control as to the substance of rights under state law, not the procedure affecting them, is not merely a matter of commity between state and nation, but of positive law; for the Judiciary Act of 1789 says: "The laws of the several states, except where the Constitution, treaties or statutes of the United States otherwise provide, shall be regarded as rules of decision in trials at common law, in courts of the United States, in cases where they apply." Why this enactment? Because the laws of the states gave, created, governed life, liberty and property, not laws of the United States, and this being so, deference was to be paid them in federal courts, first, because parties had right to claim or deny title under them; and, second, in order to avoid having conflicting rules of decision in the same state. Now, "the laws of the several states" include state constitutions, statutes, common law and decisions expounding them.12 It will be obzserved that the statute says that state laws shall be the rule of decision "in trials at common law." It is not to be inferred from this that there is to be in federal courts on the same facts different decisions on property rights in equity and law cases; that is, that the federal courts will follow state courts in the one case and not in the other. It might be so thought from some cases;13 but I understand those cases to refer

12 Bucher v. Cheshire, 125 U. S. 582.

13 Boyle v. Zacharie, 6 Peters 648; Russell v. Southard, 12 How. 139.

14

to practice, and not to the law of the right of things.1 But Bucher v. Cheshire, just cited, upholds this distinction. I think that clause means only that it was not designed to infringe on principles of equity governing chancery courts, as the rules in many respects are different. It surely can not mean that a federal court acting in a state in a chancery cause need not follow an equity court of that state in its decisions of equity law on the same facts, but would in a law action, and thus have clashing decisions. But, at any rate, commity, harmony certainly unite to say that in equity cases state decisions on state law should be followed, and such is the universal practice. It may be that some federal decisions do not harmonize with this view; some decisions seeming to go into the field of declaring what the law of the state is, what it should be held to be, contrary to state decisions; but in the main the federal courts do follow this line.

14 Opinion in Brine v. Insurance Co. 96 U. S. 634.

Chapter 18.

STATE DECISIONS-HOW FAR THEY CONTROL FEDERAL COURTS.

In conformity with principles stated in the last pages it has been again and again held that laws of the state tell in federal courts what is good title to land, and, indeed, to personal property, except under the commercial law, and that state decisions are conclusive thereon.

"This court looks to the law of the state in which land is situated for the rules which govern its descent, alienation and transfer, and the effect and construction of wills and other conveyances." 1

"The laws of the state in which lands are situated control exclusively its descent, alienation and transfer, and the effect and construction of instruments intended to conrey it." 2

It is perfectly clear that no title to lands can be acquired or passed, unless according to the law of the state in which they are situated. That governs its descent, devise, alienation or other mode of its transfer. 3

1 De Vaughn v. Hutchinson, 165 U. S. 566; Clark v. Clark, 178 U. S. 186, 20 Sup. Ct. 873.

2 Brine v. Ins. Co. 96 U. S. 627.

3 Clark v. Graham, 6 Wheat. 577; Clark v. Clark, 178 U. S. 186; Abraham v. Casey, 179 U. S. 210.