Page:Harvard Law Review Volume 8.djvu/355

SUPREME COURT ON JUDICIAL LEGISLATION. 339 ordains that no State shall deny to any person within its jurisdic- tion the equal protection of" the laws"? Does this, too, refer only to statutes? Or does it embrace all the rules and regulations, legislative and judicial, which govern the relations of citizens to each other and to the State? It will be interesting to see how far the court will sacrifice to consistency when this question is pre- sented to them. In individual opinions of members of the court the distinction has, in fact, been more than once abandoned. There is no sugges- tion of it, for example, in the following dissenting opinion of Mr. Justice Johnson in Daly v. James ^ : — "Upon the question so solemnly pressed upon this court in the argu- ment how far the decision of the Court of Pennsylvania ought to have been considered as obligatory on this court, I would be understood as entertain- ing the following views : As precedents entitled to the highest respect the decisions of the State courts will always be considered ; and in all cases ot local law we acknowledge an established and uniform course of decisions of the State courts in the respective States as the law of this court ; that is to say, that such decisions will be as obligatory upon this court as they would be acknowledged to be in their own courts." In Beauregard v. New Orleans,'-^ Mr. Justice Campbell said oi this jurisdiction : — " Upon cases like the present, the relation of the courts of the United States to a State is the same as that of its own tribunals. They administer the laws of the State, and to fulfil that duty they must find them as they exist in the habits of the people and in the exposition of their constituted authorities. Without this, the peculiar organization of the judicial tribunals of the States and the Union would be productive of the greatest mischief and confusion." The argument is briefly and forcibly stated in a recent dissent- ing opinion of Mr. Justice Field in B. & O. R. R. Co. v. Baugh,^ as follows: — " The theory upon which inferior courts of the United States take juris- diction within the several States is, when a right is not claimed under the Constitution, laws, or treaties of the United States, that they are bound to enforce as between the parties the law of the State. It was never supposed that upon matters arising within the State any law other than that of the 1 8 Wheat. 495, 542. 2 18 How. 497, 502. » 149 U. S. 368, 403.