342 HARVARD LAW REVIEW. plaintiff had given no consideration, and then declared that the Supreme Court was under no obligation to apply that law.^ The defendant had urged that the case was controlled by the thirty- fourth section of the Judiciary Act, providing that the laws of the several States shall be regarded as rules of decision in trials at common law in the courts of the United States in cases where they apply; -and there was no answer to this, except to say that the law of a State is not to be found in the decisions of its courts. The question of judicial legislation, as already defined, was there- fore plainly involved. The opinion met the issue without evasion, and adopted the old fiction without hesitation. " It will hardly be contended," it said, " that the decisions of courts constitute laws. They are at most only evidence of what the laws are, and are not of themselves laws. They are often re-examined, reversed, and qualified by the courts themselves, wherever they are found to be either defective, or ill-founded, or otherwise incorrect. The laws of a State are more usually understood to mean the rules and enactments promulgated by the legislative authority thereof, or long established local customs having the force of laws. . . . We have not now the slightest difficulty in holding that this section upon its true intendment and con- struction is strictly limited to local statutes and local usages of the character before stated, and does not extend to contracts and other instruments of a commercial nature, the true interpretaticn and effect whereof are to be sought, not in the decisions of the local tribunals, but in the general principles and doctrines of commercial jurisprudence." This decision is the origin of the anomalous doctrine of the general commercial law, now firmly established in the jurispru- dence of the United States. Few defend it now on any ground but that of expediency, and the decisions which apply it admit by a fair implication that its title to respect rests chiefly on prescrip- tion.2 Certainly it is difficult to define the position of the general 1 This doctrine is now established by many decisions. See the cases reviewed in Mr. Justice Brewer's opinion in B. & O. R. R. Co. v. Baugh, 149 U. S. 368. In Watson v. Tarpley, 18 How. 517, the court, in deference to the general commercial law, refused to apply a statute of Mississippi prescribing the time when the payee or indorsee of a bill of exchange, upon refusal to accept by the drawee, can sue the drawer. The opinion, curiously enough, was delivered by that most determined upholder of State rights, Mr. Justice Daniel. 2 B. & O. R. R. Co. V. Baugh, 149 U. S. 368. Mr. Justice Field in that case ex- presses his repentance that he ever assented to the doctrine of Swift v. Tyson, and declares his faith (p. 403) that " this, like other errors, will in the end die among its worshippers."
