Page:Harvard Law Review Volume 8.djvu/185

169 NOTES. 169 time jurisdictions, but also and more especially from the intenal neces- sity of the case, that there muat be a common law of the United States separate and distinct from that of the several States ; that in the absence of statutory regulation by Congress, this national common law with the national system of equity and maritime law, affects and controls all legal relations as to which the Federal Government has exclusive jurisdiction. Judge Shiras does not deny that the national jurisdiction in the regula- tion of interst ite commerce is exclusive, and that therefore neither the statutory nor the common law of the several Slates can affect this subject- matter. But here the lines of reasoning diverge. Judge Grobscup, start- ing from the hypothesis that there is no national common law, gives an opinion, the natural and logical conclusion from which would be th; t before the Interstate Commeice Act, interstate commerce was en'irely without legal sanction of any kind whatsoever ; that therefore, not only was there no obligation imposed upon the common carrier, such as ex- isted under the common law of England, to charge no more than reason- able rates or to carry for any one who offers to pay his charges, but, even in case of a contract to carry and a breach thereof, there could be no recovery because the contract itself would be without the sanction of any law. True it is. Judge Grosscup does not state these conclusions in his opinion, but they are the logical deductions therefrom. Judge Shiras thinks, however, notwithstanding various dicta of the Supreme Court of the United States, that there is a common law of the United States distinct and separate from that of the several States ; that before the Interstate Commerce Act was enacted, the common law of England, as it stood at the time of the Revolution, modified by the changed conditions of our country, governed and controlled all legal rela- tions such as interstate commerce, as to which national regulation is tx- iusive ; that therefore a common carrier was not only bound to accept goods for interstate commerce carriage from any person offering to pay reasonable charges, but that such cairier was also bound not to charge in excess of a reasonable rate, and that, under the sanction of the com- mon law, excessive charges could be recovered back. The decision does not touch upon the effect of the Interstate Commerce Act, because the alleged overcharges were made before that Act went into effect. Another interesting, though in no way doubtful point, decided in this case is that an action for the recovery of these excessive charges can be maintained in the State courts, and that the national exclusive control of interstate commerce does not, in the absence of statutory regulation to the c )ntrary, give the Federal courts exclusive jurisdiction of causes arising out of interstate commerce transactions. I'l this connection the valuable article of Professor Blewett Lee of the Northwestern University Law Sv hool, in 2 Northwestern Law Review, page 200 " Is there a Federal Common Law?" is worth noting. In it the opinion of Judge Grosscup in the Swift case is subjected to a power- ful criticism, and a line of thought developed from an exhaustive review of the Federal authorities in accordance with that now expressed by Judge Shiras in the Murray case. Dispatch, — The method of hearing argument by talking io counsel seems to be in vogue in England to- day, and the appellate courts seem to be on the qui vive for bad law and frivolous motions, ready to dis-