Page:Harvard Law Review Volume 8.djvu/356

340 HARVARD LAW REVIEW. State would be enforced, or that any attempt would be made to enforce any other law. It was never supposed that the law of the State would be enforced differently by the Federal courts sitting in the State and the State courts ; that there would be one law when a suitor went into the State courts, and another law when the suitor went into the Federal courts, in rela- tion to a cause of action arising within the State, — a result which must necessarily follow if the law of the State can be disregarded upon any view which the Federal judges may take of what the law of the State ought to be rather than what it is." ^ The decisions in such cases, however, particularly those made in the last half century, show plainly that the court does not now assent to this view of its duty, and refuses to regard the decisions of State tribunals as obligatory upon it. To be sure, it may still be said to be the general rule that in determining what is the law of a State the Supreme Court will follow the decisions of its high- est court; but this rule is stated as one voluntarily adopted by the court for one reason or another, and not as a duty imposed upon it by the organic law. Thus, in cases involving the title to real property, and in questions of wills, inheritance, and descent, as well as in most cases of statutory construction, it is almost invari- ably the rule that the local decisions will be given a controlling efifect. The reason usually assigned is, in real property cases, that the lex rei sitae should govern ; and, in the other cases, that great confusion and mischief would result from the adoption of any other rule. The true reason, that the court is administering, not its own, but a foreign law, is no longer advanced. In two lines of cases of particular importance the Supreme Court refuses to follow this general rule, and applies a law of its own, though if the reason here suggested for the rule be sound, the cases are not distinguishable on principle from those which adhere to the rule. The court has repeatedly announced that in mat- ters of what is variously called "general commercial law,"^ " gen- 1 The theory of obligation is supported also by the opinions in Dred Scott v. Sand- ford, 19 How. 393. The majority of the court in that case concurred in the opinion of Mr. Justice Nelson that upon the question of the effect of the plaintiff's temporary residence in a free State they were concluded by the decision of the Supreme Court of Missouri. " Our conclusion therefore is," the opinion reads, " upon this branch of the case, that the question involved is one depending solely upon the law of Missouri, and that the Federal court sitting in the State, and trying the case before us, was bound to follow it." 2 Gates V. National Bank, 100 U. S. 239; Brooklyn City R. R. Co. v. National Bank, 102 U. S. 14.