APPLICATION OF COMMON LAW AND STATE STATUTORY Chapter RULES. common law. There is no common law of the United States in No national the sense of a national customary law, no abstract pervading principle of the common law under which the federal courts can take jurisdiction. Thus, there are no common-law offenses against the United States, nor is there a common law of copyright. The federal courts have jurisdiction only of such offenses as are defined by Acts of Congress, and copyright is dependent wholly upon legislation by Congress under the grant of power" to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries." this does not mean, in cases of which the federal courts have jurisdiction, that they are without rules of decision in the absence of statutory enactment. It has frequently been declared by the courts that the principles and definitions of the common law will be followed and applied in the construction of constitutions, statutes, and contracts. But Principles of the common law applicable to common carriers regulated railway traffic before the enactment of the Interstate Commerce Act of February 4, 1887. Kentucky Bank v. Adams Express stitution, giving jurisdiction to the federal courts of cases between citizens of different States. 4 See Smith v. Alabama, (1888) 124 U. S. 465; Wheaton v. Peters, (1834) 8 Pet. (U. S.) 591. 5 U. S. v. Eaton, (1892) 144 U. S. 677; Benson v. McMahon, (1888) 127 U. S. 457; U. S. v. Britton, (1883) 108 U. S. 199; U. S. v. Worrall, (1798) 2 Dall. (U. S.) 384. Banks v. Manchester, (1888) 128 U. S. 244. 7 Ch. 104, 3 Fed. Stat. Annot. 809. See Interstate Commerce Commission v. Baltimore, etc., R. Co., (1892) 145 U. S. 263. Chapter Co. was an action to recover the value of packages containing money, which, on their transportation from one State to another in charge of a messenger of the company, were destroyed by fire. The express company set up in defense a clause in the bill of lading exempting them from liability for loss by fire. It was held that the defendants, as common carriers, could not, by any contract, relieve themselves from responsibility for their own negligence or that of their servants and agents, and this because such a contract is unreasonable and contrary to public policy. It was said by Mr. Justice Brewer, in Western Union Tel. Co. v. Call Pub. Co., that "the whole argument of the opinion [in the above case] proceeds upon the assumption that the common-law rule in respect to common carriers controlled." State laws as rules of decision. Section 721, Rev. Stat. U. S., provides that "the laws of the several States, except where the Constitution, treaties, or statutes of the United States otherwise require or provide, shall be regarded as rules of decision in trials at common law, in the courts of the United States, in cases where they apply." It has been generally held under this statute that decisions of State courts on questions of general jurisprudence are not binding upon the federal courts, but that modifications declared by a State constitution or statute will be given full effect in the federal courts sitting within that State. In line with this principle is the recognition of the validity of a State statute providing: "No con tract, receipt, rule, or regulation shall exempt any corporation engaged in transporting persons or 8 (1876) 93 U. S. 174. 9 (1901) 181 U. S. 92. But property by railway from liability of a common car- Chapter rier, or carrier of passengers, which would exist had no contract, receipt, rule, or regulation been made or entered into," so far as it concerns liability for injuries happening within the State in a matter of interstate commerce. In sustaining the statute, the court, speaking through Mr. Justice Gray, said: "The question of the right of a railroad corporation to contract for exemption from liability for its own negligence is, indeed, like other questions affecting its liability as a common carrier of goods or passengers, one of those questions not of merely local law, but of commercial law or general jurisprudence, upon which this court, in the absence of express statute regulating the subject, will exercise its own judgment, uncontrolled by the decisions of the courts of the State in which the cause of action arises. the law to be applied is none the less the law of the State; and may be changed by its legislature, except so far as restrained by the constitution of the State or by the Constitution or laws of the United States." The federal courts apply the principles of the common law as adopted by the several States each for itself as its local law, and "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 ascer 1 Chicago, etc., R. Co. v. Solan, (1898) 169 U. S. 133. Chapter tain and declare the law according to their own judgment." 2 I. Application f common ples by State courts Jn inter Mate transactions. And in the State courts the principles of the Law princi- common law may be applied in cases arising upon interstate transactions. The case of Western Union Tel. Co. v. Call Pub. Co.3 was an action begun in a State court to recover sums alleged to have been wrongfully charged and collected in making unjust discrimination against the plaintiff in the transmission of press dispatches. The case was submitted to the jury upon the propositions that where there is dissimilarity in the services rendered a difference in charges is proper, and that no recovery can be had unless it is shown, not merely that there is a difference in the charges, but that that difference is so great as, under dissimilar conditions of service, to show an unjust discrimination, and that the recovery must be limited to the amount of the unreasonable discrimination, and was affirmed by the Supreme Court of the State. In sustaining the State courts, the Supreme Court of the United States, Mr. Justice Brewer delivering the opinion, said that no one can doubt the inherent justice of the rules thus laid down." It was further said that the tele graph company " contends that there is no federal common law, and that such has been the ruling of this court; there was no federal statute law at the time applicable to this case, and as the matter is interstate commerce, wholly removed from State jurisdiction, the conclusion is reached that there is no controlling law, and the question of rates is left entirely to the judgment or whim of the telegraph 2 Per Mr. Justice Matthews, in Smith v. Alabama, (1888) 124 U. S. 465. 3 (1901) 181 U. S. 92. company. I. We are clearly of opinion that Chapter this cannot be so, and that the principles of the common law are operative upon all interstate commercial transactions except so far as they are modified by congressional enactment." Congress may make provision as to contracts for interstate carriage, permitting a carrier to limit its liability to a particular sum in consideration of lower rates for transportation. But in the absence of congressional legislation on the subject, a State may require a common carrier, although in the execution of a contract for interstate carriage, to be liable for the whole loss resulting from negligence in the discharge of its duties, notwithstanding a contract may have been entered into between the carrier and the shipper limiting the carrier's liability. It makes no difference as to the power of the State in this respect whether the principle is enacted into a statute, or results from the rules of law enforced in the State courts, so far as the principle may be applied in trials in the State courts.5 Control of limiting contracts liability. 66 JUDICIAL DEFINITIONS OF THE TERM COMMERCE. The Constitution gives no definition of the word commerce." In determining the extent of the power granted to Congress "to regulate commerce,' it is necessary to understand what the word means in this connection, or, at least, to know to what sub 4 Chicago, etc., R. Co. v. Solan, (1898) 169 U. S. 133. See also Peirce v. Van Dusen, (1897) 78 Fed. Rep. 693; Ohio, etc., R. Co. v. Tabor, (1895) 98 Ky. 503; Galveston, etc., R. Co. v. Fales, (1903) 33 Tex. Civ. App. 457; Pittman v. Pacific Express Co., (1900) 24 Tex. Civ. App. 595. Pennsylvania R. Co. v. Hughes, (1903) 191 U. S. 477. See, in this connection, Richmond, etc., R. Co. v. R. A. Patterson Tobacco Co., (1898) 169 U. S. 311, discussed infra, p. 162. |