348 HARVARD LAW REVIEW. "In order to come within the provision of the Constitution of the United States, which declares that no State shall pass any law impairing the obligation of contracts, not only must the obligation of a contract have been impaired, but it must have been impaired by a law of the State. The prohibition is aimed at the legislative power of the State, and not at the decisions of its courts." ^ Another writer has found means to support the decision without calling to his aid the supposed Federal question. Professor James B. Thayer has given his approval to the principle of Gelpcke v. Dubuque as " a rule of administration " to be followed by the Federal courts.^ He points out that to require the Federal courts to follow the State decisions in every case would defeat the purpose of the jurisdiction, since, if the law of the State and Federal courts were the same in all cases without exception, the effect of prejudice against non-residents would be equally operative in both tribunals. That some rule of administration is necessary to attain the end of the jurisdiction may be conceded, as it appears to the writer, with- out accepting either his definition of the rule or his conception of the cases in which it should be applied. " If," he says, " the rule be understood in this sense only^that any contract which was held good at the time of making it by the highest court of the State, and which came within a reaso7iable interpretation of the State con- stitution and law, will be sustained in the United States courts, I think it is a sound one and should be upheld." The application of the rule he would confine to classes of cases where the State courts are likely to be under a local bias. But just here appears to be the real difficulty. Where a local bias has affected the decision of the State court, it is undoubtedly the duty of the Federal court to examine the issue independently of the State decision, to inquire, in effect, whether the law of the State has not been changed for the purposes of a particular case and to the prejudice of a citizen of another State. The object of the jurisdiction, it must be remem- bered, is to secure the same law for an alien that would be applied in the case of a citizen. But the rule announced in Gelpcke v. Dubuque ignores this object, and declares, as qualified by Pro- ^ Mr. Justice Miller had already formed this opinion before his dissent in Gelpcke V. Dubuque. In Knox v. Exchange Bank, 12 Wall. 379, 383, he said : — " It must be the Constitution or statute of the State which impairs the obligation of a contract, or the case does not come within our jurisdiction." His opinion in Rail- road Co. V. Rock, 4 Wall. 181, is to the same effect.
- Gelpcke z'. Dubuque, 4 Harv. Law Rev. 311.
