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in cases where they apply." has been held that this section does not render it obligatory upon the courts of the United States to follow the decisions of the State courts upon questions concerning contracts and other instruments of a commercial nature. Said STORY, J.: 'In order to maintain the argument (that this section renders it obligatory upon the courts of the United States to follow the decisions of the State tribunals in all cases to which they apply), it is essential to hold that the word 'laws,' in this section, includes within the scope of its meaning the decisions of the local tribunals. In the ordinary use of language it will hardly be contended 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, whenever they are found to be either defective or illfounded 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. In all the various cases which have hitherto come before us for decision, this court have uniformly supposed that the trueinterpretation of the thirty-fourth sec tion limited its application to State laws strictly local, that is to say, to the positive statutes of the State, and the construction thereof adopted by the local tribunals, and to rights and titles to things having a permanent locality, such as the rights and titles to real estate, and other matters immovable and intraterritorial in their nature and character. It never has been supposed by us that the section did apply, or was designed to apply, to questions of a more general nature, not at all dependent upon local statutes or local usages of a fixed and permanent operation, as, for example, to the construction of ordinary contracts or other written instruments, and especially to questions of general commercial law, where the State tribunals are called upon to perform the like functions as ourselves, that is, to ascertain upon general reasoning and legal analogies, what is the true exposition of the contract or instrument, or what is the just rule furnished by the principles of commercial law to govern the case. And we have not now the slightest difficulty in holding that this

section, upon its true intendment and construction, 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 interpretation 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. Undoubtedly the decisions of the local tribunals upon such subjects are entitled to, and will receive, the most deliberate attention and respect of this court; but they cannot furnish positive rules or conclusive authority by which our own judgments are to be bound up and governed. The law respecting negotiable instruments may be truly declared, in the language of Cicero, adopted by LORD MANSFIELD in Luke v. Lyde, 2 Burr. R. 883, 887, to be, in a great measure, not the law of a single country only, but of the commercial world: "Non erit alia lex Romæ, alia Athenis, alia nunc, alia posthac, sed et apud omnes gentes, et omni tempori, una eademque lex obtenebit." Swift v. Tyson, 16 Pet. 18 (1842).

A judgment of the highest court of a State is not a law within the meaning of the provision of the United States constitution which declares that no State shall pass any law impairing the obligation of contracts. Said GRAY, J., in New Orleans Water Works Company v. Louisiana Sugar Refining Co., 8 Sup. Ct. Rep. 741: "This court has no jurisdiction to review a judgment of the highest court of a State, on the ground that the obligation of a contract has been impaired, unless some legislative act of the State has been upheld by the judgment sought to be reviewed. The general rule, as applied to this class of cases, has been clearly stated in two opinions of this court, delivered by MR. JUSTICE MILLER: 'It must be the constitution or some law of the State which impairs the obligation of the contract, or which is otherwise in conflict with the constitution of the United States; and the decision of the State court must sustain the law or constitution of the State, in the matter in which the conflict is supposed to exist, or the case for this court does not arise.' Railroad Co. v. Rock, 4 Wall. 177, 181. 'We are not authorized by the judiciary act to review the judgments of the State courts, because their judgments refuse to give effect to valid contracts, or because those judgments, in their effect,

impair the obligation of contracts. we did, every case decided in a State court could be brought here, where the party setting up a contract alleged that the court had taken a different view of its obligation to that which he held.' Knox v. Bank, 12 Wall. 379, 383."

Pro

Customs and Usages Are Included in the Word Laws as Used in Treaties. The Supreme Court of the United States has uniformly held that in the term laws, as used in a treaty, is included custom and usage, when once settled; though it may be comparatively of recent date, and is not one of those to the contrary of which the memory of man runneth not, which contributed so much to make up the common law code. Strother v. Lucas, 12 Pet. 410 (1838); United States v. Arredondo, 6 Pet 715 (1832).

Common Law.-The phrase "common law," found in the seventh amendment to the constitution of the United States, which declares that "in suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact once tried by a jury shall be otherwise re-examinable in any court of the United States than according to the rules of the common law," is used in contradistinction to equity and admiralty and maritime jurisprudence. The constitution had declared, in the third article, "that the judicial power shall extend to all cases in law and equity arising under this constitution, the laws of the United States and treaties made or which shall be made under their authority," etc., and to all cases of admiralty and maritime jurisdiction. It is well known that, in civil causes, in courts of equity and admiralty, juries do not intervene, and that courts of equity use the trial by jury only in extraordinary cases to inform the conscience of the court. When, therefore, we find that the amendment requires that the right of trial by jury shall be preserved in suits at common law, the natural conclusion is that this distinction was present to the minds of the framers of the amendment. By common law they meant what the constitution denominated in the third article 'law;' not merely suits, which the common law recognized among its old and settled proceedings, but suits in which legal rights were to be ascertained and determined in contradistinction to those where equitable rights alone were recognized, and equitable remedies were

A proceeding to take land in virtue of the government's eminent domain, and determining the compensation to be made for it. when initiated in a court, is a suit at common law within the meaning of the elventh section of the Judiciary act of 1789, conferring jurisdiction of suits of a civil nature at common law or in equity upon the circuit courts. Said the court: "When in the eleventh section of the Judiciary act of 1789 jurisdiction of suits of a civil nature at common law or in equity was given to the circuit courts, it was intended to embrace not merely suits which the common law recognized as among its old and settled proceedings, but suits in which legal rights were to be ascertained and determined as distinguished from rights in equity, as well as suits in admiralty. The right of eminent domain always was a right at common law. It was not a 'right in equity, nor was it even the creature of a statute. The time of its exercise may have been prescribed by statute, but the right itself was superior to any statute. That it was not enforced through the agency of a jury is immaterial, for many civil as well as criminal proceedings at common law were without a jury. Kohl v. U. S., 91 U. S. 376.

Martial and Military Law Defined and Distinguished. "As the phrases 'martial law' and 'military law' are sometimes carelessly used as meaning the same thing, it is proper to point out the broad distinction between them. The constitution authorizes congress to raise and support armies, and to make rules for the government thereof. Acting

under this authority congress has passed divers acts prescribing the rules and articles of war, and providing for the government and discipline of the troops. These rules constitute the military law, and are directly sanctioned by the constitution; but they apply only to persons in the military or naval service of the government. What is called martial law, however, has a far wider scope and application. When once established it is made to apply alike to citizen and soldier. To call this system by the name of law seems something of a misnomer. It is not law, in any proper sense, but merely the will of the military commander to be exercised by him only on his responsibility to his government or superior officer. Sir Matthew Hale said (Hist. C. L. 54): It is in truth and reality no law, but something indulged rather than allowed as law.' In the famous petition of right in the reign of Charles I, it was solemnly enacted, that no commission should issue to proceed in England according to martial law, and the principle was reasserted in the bill of rights of 1688. In the case of Grant z'. Gould, 2 Hen. Blackst. 99, decided in the year 1792, Lord Loughborough said that martial law, in the sense in which we are now considering it, did not exist in England, was contrary to the constitution, and had been for a century totally exploded. We make these references merely to illustrate how odious this system is to the spirit of liberty and good government. That martial law must be permitted to prevail on the actual theatre of military operations in time of war, is an avoidable necessity. It results from the very nature of war, which is simply an appeal to force, and where it is being waged it necessarily suspends and displaces the ordinary laws of the land by those usages which are known as the laws of war. If a commanding officer finds within his lines a person, whether citizen or alien, giving aid or information to the enemy, he can arrest and detain him so long as may be necessary for the security or success of his army. This is the power of a military commander on the actual scene of military operations, and when hostile armies are confronted with each other we may, for the purposes of the present case, go further, and admit that, if, in a district remote from the theatre of military operations, the popular sentiment is so disloyal to the

un

government that one who aids and abets the public enemy cannot be rendered powerless for mischief, and brought to justice by the arm of the civil law, that fact would justify the government in treating such district as virtually attached to the theatre of military operations, and in enforcing therein martial law or the laws of war, so far as might be necessary to the public safety. We may concede the right to do this as the exercise of a constitutional power resulting from the power to wage war. But beyond the enforcement of martial law on the actual field of military operations, which is the result of an overmastering necessity, and its establishment in districts which, though remote from the seat of war, are yet so far in sympathy with the public enemy as to obstruct the administration of the laws through the civil tribunals, and render a resort to military power a necessity as the only means of restraining the disloyal from overt acts, and preserving the authority of the government, we know of no ground upon which its exercise can be defended. It is the result of an absolute necessity during a period of war, and should terminate with the necessity itself. The doctrine that a state of war itself suspends, at once and everywhere the constitutional guaranties of our liberty and property, finds no support in the constitution, and is inconsistent with every principle of civil liberty and free government. Johnson v. Jones, 44 Ill. 153. See also Griffin v. Wilcox, 21 Ind. 376. 377.

Revenue laws, within the meaning of the acts of congress, are those laws which, upon their face, are plainly designed to raise revenue, and not those under which revenue may incidentally arise. The Nashville, 4 Biss. (U. S.) 188; U. S. v. Morton, 91 U. S. 566; Warner v. Fowler, 1 Blatch. (U. S.) 311.

According to Law.-An averment in a complaint that an affidavit was made according to law, will be held, after verdict and judgment, to mean that it was made within the time prescribed by law. McElhaney v. Gilleland, 30 Ala. 183.

A Verdict Against Law.-A verdict of a jury in disobedience to the instructions of the court, although the instruction itself was not correct in point of law, is a verdict "against law," within the meaning of subd. 6, § 193 of the Practice Act of California, which

Smith v. Dygert, 12 Barb. (N. Y) 613. See also Joquith v. Richardson, 8 Metc. (Mass.) 213.

According to the case of Com. v. Allen, 11 Metc. (Mass.) 403, travellers in carriages who meet in a road are required, under a penalty, seasonably to drive their carriages to the right of the middle of the travelled part of the road; and they cannot avoid the penalty by seasonably turning to the right of the wrought part of the road, though they leave sufficient room for the trav ellers whom they meet to pass with convenience and safety in the use of ordinary care and skill. Com. v, Allen, in Metc. (Mass.) 403. See also Simmonson v. Stellenmerf, 1 Edm. (N. Y.) Sel. Cas. 194; O'Maley v. Dorn, 7 Wis. 236; Pike v. Boswick, 51 N. Y. Super. (44 Hun) 626; Pigott v. Engle, 60 Mich. 221; Johnson & Co. v. Small, B. Mon. (Ky.) 25.

Though the statute requires a traveller to keep to the right, yet it does not justify him in stubbornly keeping on that side, and thus causing a collision which a slight change on his part might have avoided. O'Maley v. Dorn, 7 Wis. 236.

And though the rule of the road is not to be adhered to, if, by departing from it, an injury can be avoided, yet, where parties meet on the sudden, and an injury results, the party on the wrong side should be held answerable, unless it appears clearly that the party on the right had ample means and op. portunity to prevent it. Chaplin v. Hawes, 3 C. & P. 554.

Application of the Rule.-The law of the road, as it is commonly termed, does not apply to buildings that are being moved through a public highway. Graves v. Shattuck, 35 N. H. 257.

The statute (1 Rev. Stat., ch. 695, §1) requiring carriages meeting upon the highway to turn seasonably to the right has no application to the meeting of railroad cars with common vehicles; and where it appears that the plaintiff turning to the left, his carriage was struck by the defendant's car, it was held that this did not, of itself, constitute such negligence on the part of the plaintiff as to put him in the wrong. Hegan v. Eighth Avenue R. Co., 15 N. Y. (1 Smith) 380.

A traveller on horseback meeting another horseman or a vehicle is not required to turn in any particular way to avoid collision; he must exercise due

care under the circumstances. Dudley v. Bolles, 24 Wend. (N. Y.) 465.

It is ordinarily the duty of one on horseback to yield the travelled path to one in a vehicle. Washburn v. Tracy, 2 Chip. 136.

In Grier v. Sampson, 27 Pa. St., it was held that where a horseman or light vehicle can pass with safety to the left of a heavy loaded team, it is their duty to give way, and leave the choice to the more unwieldy vehicle.

In England, the rule of the road as to keeping the proper side applies to saddled horses as well as carriages; and if a carriage and horse are to pass, the carriage must keep its proper side, and so must the horse. Turley v. Thomas, 8 C. & P. 103.

Teams Heavily Loaded.-A person on foot or on horseback cannot compel a teamster who has a heavy draught to leave the beaten part of the road if there is sufficient room to pass; and this rule applies where a person on horseback meets a buggy carrying three persons drawn by a single horse. Beach v. Parmeter, 23 Pa. St. 196.

Mail Stage. A mail stage coach is protected by act of congress from obstruction, but is subject in all other respects to the laws of the road. Bolton v. Colder, I Watts (Pa.) 360.

Bicycles.-In Pennsylvania, bicycles, tricycles, and all vehicles propelled by hand or foot, and all persons by whom "they are used, etc., upon the public highways, shall be entitled to the same rights and subject to the same restrictions in the use thereof, as are prescribed by law in the cases of persons. using carriages drawn by horses." Act April 23rd, 1889; L. 1889, No. 43, p. 44. For a similar statute see Parkyns v. Priest, 7 Q. B. Div. 313.

In New York, the act of June 25th, 1887, L. 1887, ch. 705, is substantially the same as the Pennsylvania statute, supra.

A North Carolina statute which forbids the use upon a certain road "of a bicycle, tricycle, or other nonhorse vehicle without the express permission of the superintendent" (Priv. Acts, 1185c, 14), does not destroy the lawful use of property, but is a reasonable police regulation. State v. Yopp. 97 N. Car. 477. Compare Purple . Greenfield, 138 Mass. 7; Regina v. Mathias, 2 F. & F. 570.

Roads Subject to the Rule.-The law of the road, Rev. Stats. of Massachusetts, ch. 51, § 1, extends to all places appro