armed hand, the ultima ratio regum. The so-called commercial law is likewise a law only in name. Upon many questions arising in the business dealings of men, the laws of modern civilized states are substantially the same, and it is therefore common to say that such is the commercial law, but, except as a convenient phrase, such general law does not exist. There must be a State, or government, of which every law can be predicated, and to whose authority it owes its existence as law. Without such sanetion it is not law at all; with such sanction it is law without reference to its origin or the concurrence of other states or people. Such sanction it is the prerogative of the courts of each State itself to declare. Their jurisdiction is final and exclusive, and in this respect there is no distinction between statute and common law. It is universally conceded that, as to statutes, the decisions of the state courts are binding upon all other tribunals; yet such decisions have no higher sanction than those upon the common law, for what the latter determine, equally with the former, is the law of the particular State.

The law of a State consists, it is said, of the Constitution, treaties, and statutes of the United States, the Constitution and statutes of the State, and the common law, not of any or all other counties, but of that State. There is a common law of England, and a common law of the State mainly founded thereon, but with certain differences, and the only tribunal competent to pass authoritatively on such differences is the state court. This familar illustration is used. In the United States the universal doctrine has always been that the English colonists brought with them, and made part of their laws, all the common law of England that was not unsuited to their new situation. No part of the common law of England is better settled than the doctrine of ancient lights. The Court of Chancery of New Jersey, in Robeson v. Pittenger, 2 N. J. Eq. 57 (1838), held that the same doctrine was part of the common law of New Jersey. The Supreme Court of Pennsylvania, on the other hand, starting with the same premises, and reasoning on the same principles, but proceeding cautiously from the dictum of Rogers, J., in Hoy v. Sterrett, 2 Watts, 331 (1834), to the unanimous decision of the court in Haverstick v. Sipe, 33 Pa. 368 (1859), held that the doctrine of ancient lights

by prescription was not part of the common law of Pennsylvania. No tribunals of any other State presumed to question that the common law of New Jersey and the common law of Pennsylvania differ on this point. What is law in one State is not law in the other, not because it was or was not the common law of England, but because it is or is not the law of the respective states. And, though it rests only on the decisions of the courts, it is none the less absolutely and indisputably the law than if it had been made so by statute.

It is insisted the so-called commercial law derives all its force from its adoption as part of the common law, and a decision on the commercial law of a State stands upon precisely the same basis as a decision upon any other branch of the common law, and that the only ground upon which any foreign tribunal can question either, is that it does not agree with the premises or the reasoning of the court. But the same ground, it is argued, would enable it to question a decision upon a statute because a different construction seemed to it nearer the true intent of the legislative language, and this it is universally conceded no foreign court can do. There is no difference, it is claimed, in principle. The decisions of a state court upon its common law and on its statutes must therefore, it is said, stand unquestioned, because it is the only authority competent to decide, or they must be alike questionable by any tribunal which may choose to differ with its reasons or its conclusions. Mitchell, J., who pronounced the opinion, declares that it is not probable that the doctrine of such a distinction would ever have got a foothold in jurisprudence, and it would certainly have been long ago abandoned, had it not been for what he calls the unfortunate misstep that was made in the opinion in Swift v. Tyson, 41 U. S. 16 Pet. 1, 10 L. ed. 865. Since then the courts of the United States have, he says, persisted in the recognition of a mythical commercial law, and have professed to decide so-called commercial questions by it in entire disregard of the law of the State where the question arose. To the proposition that as to such questions the state courts also have similiar liberty, he replies that it would be sufficient answer that such a course, by reading into a contract a new duty not in contemplation of the parties, and not part of it by the law of the place where it is

made, is in principle and in practical effect impairing the obligation of the contract, which even the sovereign power of a State is prohibited from doing. But he rests the decision on the broader ground that the doctrine itself is unsound.

It is asserted that the best professional opinion has long regarded it as indefensible on principle, and is thus very recently summed up by the opinion of Stytes, "one of the most learned of living jurists": "Questions growing out of contracts made and to be performed in a State are decided by the national court of last resort, not in accordance with the customary or unwritten law of the State where they orignated, as expounded by its courts, but agreeably to some theoretic view of a general commercial law, which does not exist, and is not to be found in the books. The state courts, on the other hand, adhere to their own precedents, and do not consider themselves entitled to impair the obligation of contracts that have been made in reliance on the principles which they have laid down through a long series of years. The result is a conflict of jurisdiction which there are no means of allaying. Whether a recovery shall be had on a promissory note, which has been taken as collateral security for an antecedent debt against a maker, from whom it was obtained by fraud, is thus made to turn in New York, Pennsylvania and Ohio, not on any settled rule, but on the tribunal by which the cause is heard; and if that is federal, the plaintiff will prevail; if it is local, the defendant. Such a result tends to discredit the law. The enumeration might be carried further, but enough has, perhaps, been said to show that no uniform rule can be deduced from the decisions of the English and American courts under the commercial law, and that the certainty requisite to justice can be obtained only by following the local tribunals as regards the contracts made in each locality.

"The several states of this country are collectively one nation, but they are as self-governing in all that concerns their purely internal commerce as if the general government did not exist; and when the will of the people of New York or Pennsylvania is declared on such matters through their representatives in the local legislatures, expressly, or by long continued acquiescence in the rules enunciated by their judges, it cannot be set aside by Con

gress short of an amendment of the Constitution. Had the New York Legislature declared that notes made and negotiated in that State should follow the rule laid down in Coddington v. Bay, 20 Johns. 637, the federal tribunals would have been bound to carry it into effect, notwithstanding any attempt of the national Legislature to introduce a different principle; and it is inconceivable that the judicial department of the government can exercise a greater authority in this respect than the legislative."

1

The opinion concludes that the distinction recognized by the federal court between the binding effect of decisions on commercial law, and on statutes, is utterly untenable; that the law declared by state courts to govern on contracts made within their jurisdiction is conclusive everywhere; and the departure made by the United States courts is to be regretted and certainly not to be followed.

In entire accordance with this view, are, it is insisted, the Pennsylvania cases of Brown v. Camden & A. R. Co. 83 Pa. 316, and Brooke v. New York, L. E. & W. R. Co. 108 Pa. 530; and the decisions in Ohio, Knowlton v. Erie R. Co. 19 Ohio St. 260; in Illinois, Pennsylvania Co. v. Fairchild, 69 Ill. 260; Milwaukee & St. P. R. Co. v. Smith, 74 Ill. 197; in Iowa, Talbott v. Merchants Despatch Transp. Co. 41 Iowa, 247; Robinson v. Merchants Despatch Transp. Co. 45 Iowa, 470; in Connecticut, Hale v. New Jersey Steam Nav. Co. 15 Conn. 539; in Kansas, Atchison, T. & S. F. R. Co. v. Moore, 29 Kan. 632; in South Carolina, Bridger v. Asheville & S. R. Co. 27 S. C. 462; in Georgia, Atlanta & C. A. L. R. Co. v. Tanner, 68 Ga. 390; in Mississippi, Me Master v. Illinois Cent. R. Co. 65 Miss. 271; in Texas, Cantu v. Bennett, 39 Tex. 303; Ryan v. Missouri, K. & T. R. Co. 65 Tex. 13; and perhaps in other states.

These cases are not noticed in detail, further than to quote the terse and forcible summary made by Scott, J., in Knowlton v. Erie R. Co. 19 Ohio St. 260: "As the contract was made within the jurisdiction of New York, and contemplated no action outside of that jurisdiction, it is clear that the question of its validity must be determined solely by the laws of New York. The rights and obligations of the parties to such a contract, and in respect to the 'Hare, Const. pp. 1107, 1117, and see Lecture 51, passim.

manner of its execution, cannot be affected by the laws or policy of other states. If no cause of action arose to the plaintiff under his contract when the accident occurred, the transaction cannot be converted into a cause of action by the fact that the parties have subsequently come within the jurisdiction of Ohio.

The result of the decision is that as the validity of the contract is to be determined by the law of New York, as decided by the courts of that State, there is no reason why the courts of Pennsylvania should not enforce it, for the general rule is, that courts will enforce contracts valid by the law of the place where made, unless they are injurious to the State, or to its citizens.'

The contract in question, it is said, does not directly affect the State or its citizens in any way, nor is it in any way contrary to justice or morality. It is even doubted whether it is so far contrary to the policy of the State that it would have been invalid if it had been made in Pennsylvania. It is admitted that it had some exceptional features, which, it might be argued, take it out of the ordinary rule governing the contracts of common carriers, and the case of Coup v. Wabash, St. L. & P. R. Co., 56 Mich. 111, is a strong authority for that position. But without stopping to discuss that point, which the general view adopted renders unnecessary, it was considered sufficient to say that even if it would not have been valid if made in Pennsylvania, its enforcement as a New York contract does not in any way derogate from the laws of Pennsylvania, or injure or affect the policy of the State, any more than would a foreign contract for what would be usurious in Pennsylvania, and that the courts have never hesitated to enforce.

So far as the decision can be considered as yielding state policy to comity, if it can be so regarded, while the opinion expressly disclaims such a concession, its force is weakened by the fact that Paxson, Ch. J., and Clark, J., were absent, and Sterrett united in the following dissent of Williams, J.: "I dissent from the judg ment in this case because I cannot agree that a well settled rule of public policy of this Commonwealth must give way to considerations of mere comity. The contract set up as a defense to this action is a release to a common carrier from liability for its own 'Story, Conf. L. §§ 38, 244.