It is frequently asserted that there is no common law of the United States in the sense that it is recognized as a rule of deci sion in the federal courts. This idea, which is found in varying forms of expression in opinions of the United States supreme court, seems to have had its origin in what has been characterized as a dictum of McLean, J., in Wheaton v. Peters, 8 Pet. (U. S.) 591, 8 L. Ed. 1055, where he said : "It is clear there can be no common law of the United States, the said government is composed of 24 sovereign and independent states ; each of which may have its local usage, customs, and common law: there is no principle which pervades the Union and has the authority of law, that is not embodied in the constitution or laws of the Union. The common law could be made a part of our federal system only by legislative adoption." This was repeated in Kendall v. U. S., 12 Pet. (U. S.) 524, 9 L. Ed. 1181. But in Bucher v. It. Co., r25 U. S. 555, 8 Sup. Ct. 974, 31 L. Ed. 795, it is said that the common law of the United States rests on the principles derived from the common law of England. Of course this explanation might apply simply to the United States as a territorial explanation, and indeed that case referred to the common law as prevailing in the District of Columbia, as did also Ex parte Watkins, 7 Pet. (U. S.) 568, 8 L. Ed. 786. In Murray v. Ry. Co., 62 Fed. 24, Shir as,. J., said: "To me it seems clear, beyond question, that neither in the constitution, nor in the statutes enacted by Congress nor in the judgments of the Supreme Court of the United States can there be found any sub stantial support for the proposition that, since the adoption of the constitution, the principles of the common law have been whol ly abrogated touching such matters as are by that instrument placed within the exclu sive control of the national government." To the same effect, Kansas v. Colorado, 206 U. S. 46, 96, 27 Sup. Ct. 655, 51 L. Ed. 956.
And in an interesting article by Alton B. Parker on "The Common Law Jurisdiction of United States Courts," in 17 Yale L. J. 1, it is urged that the common law is recognized as a rule of decision in a majority of cases and that the contention to the contrary is due entirely to the unfortunate obiter dictum?, of Mr. Justice McLean, above quoted.
See Commox LAW.
The original jurisdiction of the district court in certain cases, and the appellate jurisdiction of the supreme court to review the decisions of state courts, depend upon the existence in the case of what is termed a federal question. This is a question arising
in a litigated case, and necessary to its de cision, involving the construction of the con stitution, or a law or treaty of the United States. See FEDERAL QUESTION.
Where such questions are clearly presented by the answer in that court, and the decree rendered could not have been made without adversely deciding them, and they are sub stantial as involving the jurisdiction of the circuit court over property in its possession and the effect to be given to its decree, the writ of error will not be dismissed; Wabash R. Co. v. Adelbert College, 208 U. S. 38, 28 Sup. Ct. 182, 52 L. Ed. 379.
Where the federal jurisdiction rests upon the fact that a federal question is involved, the right of the defendant to be sued in the district of which he is an inhabitant may be waived. The fact of residence is not juris dictional ; Logan & Bryan, v. Postal Tele graph & Cable Co., 157 Fed. 570.
The jurisdiction over appeals and writs of error from state courts depends on whether a federal question is involved. See that title.
Decedents' Estates. Federal equity juris diction extends to the administration of de cedents' estates, where it concerns citizens and residents of different states; but they will be governed and controlled by the statu tory rules and regulations of the particular state ; Newberry v. Wilkinson, 199 Fed. 673, 118 O. C. A. 111, citing Lawrence v. Nelson, 143 U. S. 215, 12 Sup. Ct. 440, 36 L. Ed. 130.
Matters of pure probate, in the strict sense of the words, are not within the jurisdiction of the federal courts. Where a state law, statutory or customary, gives to the citizens of the state, in an action or suit inter partes, the right to question or assail probate, at law or in equity, the federal courts, on behalf of citizens of other states, will enforce such remedies ; but such suit must relate to inde pendent controversies, and not to those aris ing on an application to probate, or a mere method of procedure ancillary to the original procedure ; Farrell v. O'Brien, 199 U. S. 89, 25 Sup. Ct. 727, 50 L. Ed. 101.
See FEDERAL QUESTION ; POLITICAL QUES TION; MOOT CASES; JUDICIAL POWER; JU RISDICTION; APPEAL AND ERROR; CONFLICT OF LAWS; IMPAIRING THE OBLIGATION OF CONTRACTS; BANKRUPT LAWS; CONSULAR COURTS.