§ 169]

Common Law.

253

construction thereof, the federal courts follow their own judgment, guided, of course, by the decisions of the Supreme Court of the United States. But many cases, particularly cases which are in the federal courts by reason of diversity of citizenship of the parties, do not involve the constitution, laws, or treaties of the United States, or any rights arising under them, but only the application of general principles of law, or the construction of the constitutions or statutes of the different states; and in these cases the federal courts apply the general principles of law, or the constitutional or statutory provisions which would have been applied had such cases been tried in the state courts. The federal courts follow the decisions of the state courts in the construction of their own constitutions and states, and also in cases involving some established rule of property. But in other cases, which are to be decided according to the general principles of law, the federal courts determine for themselves what such general principles are, without feeling themselves bound to follow the decisions of any particular state (Railroad Company v. National Bank and Burgess v. Seligman).

In all the states except Louisiana the common-law system, that is, the English system of law, is recognized as in force, so far as consistent with the institutions and conditions under which we live; while in that state the prevailing system of law is that known as the civil law, as embodied in the Code Napoleon, which was in force in France at the time the Louisiana Territory was acquired by the United States. Therefore, in cases tried in the federal courts sitting in any of the states except Louisiana, it is presumed that the rights of parties are determined by the common law, save as it may have been modified or superseded by state statutes; that is, the common law is the general law for each of these states (Smith v. Alabama). It can hardly be said, however, that there is a common law of the United States, for so far as cases are to be determined by general law, in the absence of statutory provisions, the federal courts are presumed to follow the general law as it exists in the state where the federal court sits, or in the state according to the law of which the case is to be de

cided, although, as already indicated, the federal courts are not bound by the decisions of the state courts interpreting the general law, except so far as the decisions of the state courts have become rules of property. A subject-matter which is placed. within the control of Congress, such as interstate commerce, is assumed to be subject to the general rules of the common law so far as Congress has not legislated with reference to it. (See Western Union Telegraph Co. v. Call Publishing Co.)

There are no common-law crimes against the United States, that is to say, no acts are punishable in the federal courts as crimes save as they have been made criminal by federal statutes. However, when a punishment is provided by federal statute for an act generally described by the terms used in the common-law definitions of crimes, the courts will consider the common-law definition as indicating the scope of the language used in the statute.

170. Conflicting Jurisdiction of Federal and State Courts. It seldom occurs that there can be any conflict of jurisdiction between a federal and a state court. Any apparent conflict is usually determined by the application of the principle' of comity (see above, § 143), in accordance with which one court will not interfere with or take jurisdiction over a matter as to which another court has already acquired jurisdiction. But should any conflict as to jurisdiction arise, the final authority to decide must necessarily be in the federal court, and no state court can interfere with the proceedings in a federal court, nor with officers of a federal court acting in pursuance of its orders or judgments (Riggs v. Johnson County). Redress for wrongs committed by an officer acting under the federal authority should be sought in the federal courts. But on the other hand, a federal officer, acting without authority, may be called to account in a state court for any wrong done or injury committed, subject to the power of the federal courts to review or inquire into the case for the purpose of determining whether the officer was justified by federal authority in what he has done or has attempted to do.

§ 171]

Conflicting Jurisdiction.

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171. Authority of the Judiciary to Pass upon the Constitutionality of Statutes.

In discussing the relations of the departments of government to each other, it has already been indicated that, in a case properly coming before a court, the court has the power to determine the constitutionality of a statute. (See above, § 7.) This power is exercised by the federal courts with reference to statutes passed by Congress, as well as by state courts in determining the constitutionality of state statutes, and no further discussion of the subject is necessary. It is sufficient to say that neither the legislative nor the executive department of the federal government is independent of the constitution, and that, in the decision of a case properly before it, a court may properly determine whether the action of Congress or of an officer of the executive department is in violation of the constitution, and therefore invalid.

Part VI.

The States and Territories.

CHAPTER XXX.

RELATIONS OF FEDERAL AND STATE GOVERNMENTS.

172. References.

J. Story, Constitution, §§ 1813-1825; J. R. Tucker, Constitution, §§ 310319; T. M. Cooley, Constitutional Law, ch. xi; H. C. Black, Constitutional Law, ch. x; The Federalist, Nos. 43, 44; Luther v. Borden (1848, 7 Howard, 1; 17 Curtis' Decisions, 1; McClain's Cases, 595; Thayer's Cases, 191); Texas v. White (1868, 7 Wallace, 700; Thayer's Cases, 302; McClain's Cases, 838).

173. Relations of States and Federal Government under the

Constitution.

In discussing the historical development of our constitutional system, it has already been pointed out that the state governments came into existence in practically their present form before the federal constitution was adopted (see above, § 9) and that by reason of the establishment of the federal government, they were deprived of such powers and only such powers as are expressly denied to them in the federal constitution or are inconsistent with the powers given to the federal government. (See above, § 16.) The states remain sovereign and independent with reference to each other; but the authority which they can exercise over their citizens is inferior to the power which the federal government acting within the scope of the federal

States and Federal Government.

§ 173] 257 constitution can exercise over the same persons as citizens of the United States. The states do not derive their powers from the federal government under the constitution but are merely limited in their powers by that constitution, and the authority of the federal government operates primarily and directly upon its citizens and not upon the states.

Still there are necessarily some relations between state governments and the different departments of the federal government, and there are some relations of the states to each other which are provided for or recognized by the federal constitution. For instance, the legislatures of the states provide how presidential electors are chosen (Const. Art. II, § 1, ¶ 2); and the times, places, and manner of holding elections for senators and representatives in Congress are prescribed in each state by the legislature thereof subject to revision by Congress (Art. I, § 4, ¶ 1). Further, it is provided that the states may organize their militia and appoint the officers thereof, subject to the superior authority of the United States when the militia is called into the service of the United States (Art. I, § 8, ¶ 16). Again, appeals from the courts of last resort in a state to the Supreme Court of the United States are provided for in cases where federal questions are involved and the decision is against the right, privilege, or immunity claimed under the constitution, laws, or treaties of the United States or the authority thereof. (See above, § 158.) And there is, further, an express guarantee of the preservation and protection of the state governments by the United States, which will be considered in the next section. It is evident from these various provisions, as well as from the historical relations between the state governments and the federal government, that while the federal government was organized as a sovereign and permanent government, the perpetual existence of the states was at the same time fully recognized and provided for. "The constitution in all its provisions looks to an indestructible Union, composed of indestructible states " (Texas v. White).