SUPREME COURT ON JUDICIAL LEGISLATION. 33/ State or its citizens are opposed to another State or its citizens. To secure the full effect of so fundamental a provision against all evasion and subterfuge, it is necessary that its construction should be committed to that tribunal which, having no local attachments, will be likely to be impartial between the different States and their citizens." ^ The privilege of a citizen of Massachusetts who sues a fellow-citizen is to receive a just application of the law of that State, and, to comply with the Constitution, the privilege of a citizen of Connecticut suing in Massachusetts need be neither more nor less, but the same.^ It was to secure this end that jurisdiction was conferred upon the Federal courts.^ It is worth noting, too, in this connection that since the object of the makers of the Constitution was to put the parties upon terms of equality, an enlargement of the jurisdiction which favors an alien results in an evil of the same degree and character as when a citi- zen receives the benefit of the court's bias.* Moreover, the first Congress, many of whose members had taken part in the framing of the Constitution, passed a law declaratory on the subject, and provided that in the Circuit Courts in trials at common law the laws of the several States should be regarded as rules of decision.^ In construing this statute, however, a distinction has been made by the court, and " the laws of the several States " have been held not to include the laws declared by the courts, and to refer only to the laws of the Legislature. That the decisions of State courts construing State constitutions and statutes should control Federal decisions upon the same question seems never to have been doubted by the court before Gelpcke v. Dubuque. " The judicial de- partment of every government, where such department exists," wrote Chief Justice Marshall, " is the appropriate organ for con- 1 The Federalist, No. LXXX. 2 The sole object for which jurisdiction of cases between citizens of different States is vested in the courts of the United States is to secure to all the administration of justice upon the same principle upon which it is administered between citizens of the same State." Mr. Justice Johnson, in Polk's Lessee v. Wendell, 5 Wheat. 293, 302. 8 Ibid.
- Mr. Geo. W. Pepper has discussed this whole subject very clearly in a little book
entitled " The Borderland of State and Federal Decisions." ^ " The laws of the several States, except where the Constitution, treaties, or stat- utes of the United States shall 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." Act of Sept. 24, 1789. § 34; i Statutes at Large, 92; Rev. Stat. § 721.
