Page:Harvard Law Review Volume 8.djvu/359

343 SUPREME COURT ON JUDICIAL LEGISLATION. 343 commercial law before this case. In what sense was it " general "? If by this is meant that it was the law in a great majority of juris- dictions professing to be governed by the same law, it was none the less not the law of New York, as declared by the authority established finally to determine that law. If it means that it was the law of the United States, as distinguished from the several States, the authority to pronounce and enforce it must be found in the Constitution, and the Constitution makes no reference to the subject. What was really done by Swift v. Tyson was to provide an unusually clear example of the very truth which the opinion denied. It created for commercial cases a common law of the United States. Before that, the existence of such a thing had often been denied.^ The rule of the case is law now, because the United States government through its courts and marshals will enforce it. It was not law before that case, however commendable to reason, because there was no government or authority to enforce it. For our present purpose it is to be noted that on the admission made in the opinion as to the law of New York, the case was one which squarely raised the question whether or not the decisions of courts are laws, that is, whether or not judges make law, and. that the court answered it in the negative, rating the decisions of courts even below local customs in this respect. To this opinion the court has since clung, if one may judge solely by what it has said on the subject. Let us now see if it has uniformly acted upon it. Gelpcke v. Dubuque required a construction of certain sections of the Constitution and of a statute of the State of Iowa. The Supreme Court of that State prior to 1859 had rendered a series of decisions^ upholding the right of the Legislature to authorize municipal corporations to subscribe for the bonds of railroad com- panies whose lines extended beyond the corporate limits. In 1859 the court, though conceding that bonds issued under such laws were valid in the hands of innocent purchasers, decided by a narrow majority to restrain a proposed issue. ^ In 1862 the turn, about was completed by a unanimous decision squarely overruling 1 Tucker's Blackstone, Vol. I. Appendix, 422-433 ; Wheaton v. Peters, 8 Pet. 591, 658. 2 Dubuque Co. v. Pacific R. R. Co., 4 Greene, i ; The State v. Bissel, 4 Greene, 328; Clapp V. Cedar Co., 5 Iowa, 15; Ring v. Johnson Co., 6 Iowa, 265; State v. Johnson Co., 10 Iowa, 157.
 * Stokes V. County of Scott, 10 Iowa, 166.