made, and we do not place the correctness of the determination of the circuit court in refusing to permit this question to go to the jury upon the ground that it was a point decided between the parties, and therefore res judicata as between them and the present action, but upon the ground that the supreme court of the State in its decision had given such a construction to the meaning of the words" charity" and "necessity" in the statute as to clearly show that the evidence offered upon that subject was not sufficient to prove that the plaintiff was travelling for either of those purposes. The court in its opinion, which is reported in Bucher v. Railroad Co., 131

Massachusetts decision as to "necessity" and chari

Mass. 156, said: "The act of plaintiff in thus travelling on the Lord's day was not an act of necessity within the meaning of the statute. . . . In order to constitute an act of charity, such as is ty" followed. exempted from the Lord's day act, the act which is done must be itself a charitable act. The act of ascertaining whether a charity is needful is not the charity; but, so far as the statute is concerned, the only question in that case would be, is this act a necessary act? That involves the question, whether the act is one which it is necessary to do on the Lord's day; and no previous neglect to obtain the requi site information on a previous day creates a necessity for obtaining it on the Lord's day." After citing other cases which had been decided in that court, it was further said: “It is apparent that the plaintiff's duty to his sister was made subservient to his secular business. We are, therefore, of opinion that the ruling should have been given that there was no evi, dence which would justify the jury in finding that the plaintiff was travelling from necessity or charity within the meaning of the statute.' Taking, therefore, this construction of the language of the statute, as well as prior decisions to the same purport in which we think we are bound to follow the supreme court of the State, we agree that the record in this case as in that does not furnish evidence which should have gone to the jury upon that branch of the subject.

Sunday as a

sachusetts

The other assignment of error, in regard to the effect of travelling on the Lord's day in violation of the statute of Travelling on Massachusetts, submitted as a defence to what would otherwise be a liability of the railroad for defence-Mas- the negligence of its servants, presents the matter in a somewhat different aspect. It is not easy to see that there was anything in the case as it arose in the cir cuit court which required a construction of the meaning of that statute, after eliminating what has just been suggested as to the signification of the words "necessity" or "charity." The remainder is a short prohibition against travelling upon

eases.

the Lord's day, and provides for the imposition of a penalty for so doing. This is very plain; it admits of no doubt as to its meaning, and its validity has never been controverted. When, therefore, the supreme court of Massachusetts, in a long line of decisions, has held that the violation of this statute may be set up as a defence to a liability growing out of the negligence of a railroad company in carrying passengers upon its road, it must have been on some other ground than that to be found in the expressions used in the statute itself. There is no such provision in it, and there is no necessary inference to be drawn from its language that it was intended to control the relations between the passenger and the carrier, or to modify the obligations of the one to the other. The language of the court in Stanton v. Railroad Co., already cited, is that "because the plaintiff was engaged in the violation of law, without which he would not have received the injury sued for, he cannot obtain redress in a court of justice." This principle would seem to be as applicable to a man engaged in any other transaction forbidden by law as to that of violating the Sabbath. Whether the doctrine thus laid down is a sound one, and whether, if it be not sound as it commerds itself to our judgment, we should follow it as being supported by the decisions of the supreme court of Massachusetts in numerous instances, presents in this case the only serious question for our consideration. Hamilton v. City of Boston, 14 Allen, 475; Bosworth v. Swansey, 10 Metc. 363; Jones v. Andover, 10 Allen, 18; Day v. Railway Co., 135 Mass. 113; s. c., 15 Am. & Eng. R. R. Cas. 150; Read v. Railroad Co., 140 Mass. 199. If the proposition, as established by the repeated decisions of the highest court of that State, were one which we ourselves believed to be a sound one, there would be no difficulty in agreeing with that court, and, consequently, affirming the ruling of the circuit judge in the present case. But without entering into the argument of that subject, we are bound to say that we do not feel satisfied, that upon any general principles of law by which the courts that have adopted the common-law system are governed, this is a true exposition of that law. On the contrary, in the case of Railroad Co. v. Tow-Boat Co., doctrine criti23 How. 209, this court had under consideration cised. the same question. It arose in regard to the effect of a statute of Maryland forbidding persons to work or do any bodily labor, or willingly suffer any of their servants to do any manner of labor on the Lord's day, works of charity or necessity excepted," and prescribing a penalty for a breach thereof. It was held by this court that where a vessel was prosecuting her voyage on Sunday, and was injured by piles

Massachusetts

negligently left in the river, this statute making travelling on Sunday an offence and punishing it by a penalty constituted no defence to an action for damages by the vessel. A number of cases were cited sustaining that view of the subject, and the court, through Mr. Justice Grier, used this language: "We do not feel justified, therefore, on any principles of justice, equity, or of public policy, in inflicting an additional penalty of seven thousand dollars on the libellants, by way of set-off, because their servants may have been subject to a penalty of twenty shillings each for the breach of the statute.' In that case, however, there had been no decision of the courts of Maryland holding that a violation of the Sabbath would constitute a defence to the action against the company which had left the piles in the river. In this view of the matter it is not unworthy of consideration that, shortly after the injury in the present case was inflicted, the general court of Massachusetts passed a statute, to which we have already referred, declaring that travelling on the Lord's day should not "constitute a defence to an action against a common carrier of passengers for any tort or injury suffered by a person so travelling."

al court is bound to follow Mass. court.

The question then arises, how far is this court bound to follow the decisions of the Massachusetts supreme court on that subject? The Congress of the United States, in the act by How far feder which the Federal courts were organized, enacted that "the laws of the several States, except where the constitution, treaties or statutes of the United States otherwise require or provide, shall be regarded as rules of decision in trials at common law, in the courts of the United States, in cases where they apply." Rev. St. § 721; Judiciary Act. § 34, 1 U. S. St. at Large, 92. This statute has been often the subject of construction in this court, and its opinions have not always been expressed in language that is entirely harmonious. What are the laws of the several States which are to be regarded "as rules of decision in trials at common law," is a subject which has not been ascertained and defined with that uniformity and precision desirable in a matter of such great importance. The language of the statute limits its application to cases of trials at common law. There is, therefore, nothing in the section which requires it to be applied to proceedings in equity, or in admiralty; nor is it applicable to criminal offences against the United States (see U. S. v. Reid, 12 How. 361), or where the constitution, treaties, or statutes of the United States require other rules of decision. But with these, and some other exceptions which will be referred to presently, it must be ad mitted that it does provide that the laws of the several States

shall be received in the courts of the United States, in cases. where they apply, as the rules of decision in trials at common law. It has been held by this court that the decisions of the highest court of the State in regard to the validity or meaning of the constitution of that State, or its statutes, are to be considered as the law of that State, within the requirement of this section. In Leffingwell v. Warren, 2 Black, 599, this court said, in regard to the statutes of limitations of a State: "The construction given to a statute of a State by the highest tribunal of such State is regarded as a part of the statute, and is as binding upon the courts of the United States as a text." In the case of Luther v. Borden, 7 How. 40, Chief Justice Taney said: "The point then raised here has been already decided by the courts of Rhode Island. The question relates altogether to the constitution and laws of that State; and the well-settled rule in this court is, that the courts of the United States adopt and follow the decisions of the State courts in questions which concern merely the constitution and laws of the State." See also Post v. Supervisors, 105 U. S. 667. It is also well settled that where a course of decisions, whether founded upon statutes or not, have become rules of property as laid down by the highest courts of the State, by which is meant those rules governing the descent, transfer, or sale of property, and the rules which affect the title and possession thereto, they are to be treated as laws of that State by the Federal courts. The principle also applies to the rules of evidence. In Ex parte Fisk, 113 U. S. 720, the court said: "It has been often decided in this court that in actions at law in the courts of the United States the rules of evidence and the law of evidence generally of the State prevail in those courts." See also Wilcox v. Hunt, 13 Pet. 378; Ryan v. Bindley, 1 Wall. 66. There are undoubtedly exceptions to the principle that the decisions of the State courts, as to what are the laws of that State, are in all cases binding upon the Federal courts. The case of Swift v. Tyson, 16 Pet. 1, which has been often followed, established the principle that if this court took a different view of what the law was in certain classes of cases which ought to be governed by the general principles of commercial law, from the State court, it was not bound to follow the latter. There is, therefore, a large field of jurisprudence left in which the question of how far the decisions of State courts constitute the law of those States is an embarrassing one. There is no common law of the United States, and yet the main body of the rights of the people of this country rest upon and are governed by principles derived from the common law of England, and established as the laws of the different States. Each State of the Union may have its local usages,

customs, and common law. Wheaton v. Peters, 8 Pet. 591; Pennsylvania v. Bridge Co., 13 How. 518. When, therefore, in an ordinary trial in an action at law we speak of the common law we refer to the law of the State as it has been adopted by statute or recognized by the courts as the foundation. of legal rights. It is in regard to decisions made by the State courts in reference to this law, and defining what is the law of the State as modified by the opinions of its own courts, by the statutes of the State, and the customs and habits of the people, that the trouble arises. It may be said generally that wherever the decisions of the State courts relate to some law of a local character, which may have become established by those courts, or has always been a part of the law of the State, that the decisions upon the subject are usually conclusive, and always entitled to the highest respect of the Federal courts. The whole of this subject has recently been very ably reviewed in the case of Burgess v. Seligman, 107 U. S. 20. Where such local law or custom has been established by repeated decisions of the highest courts of a State it becomes also the law governing the courts of the United States sitting in that State.

We are of opinion that the adjudications of the supreme court of Massachusetts, holding that a person engaged in travel on the Sabbath day, contrary to the statute of the State, being thus in the act of violating a criminal law of the State, shall not recover against a corporation upon whose road he travels for the negligence of its servants, thereby establish this principle as a local law of that State, declaring, as they do, the effect of its statute in its operation upon the obligation of the carrier of passengers. The decisions on this subject by the Massachusetts court are numerous enough and of sufficiently long standing to establish the rule, so far as they can establish it, and we think that, taken in connection with the relation which they bear to the statute itself, though giving an effect to it which may not meet the approval of this court, they nevertheless determine the law of Massachusetts on that subject.

FIELD and HARLAN, JJ., dissented.

Injuries to Passengers Travelling on Sunday.-See note to Johnson v. Missouri Pac. R. Co., 23 Am. & Eng. R. R. Cas. 434; McDonough v. Metropolitan R. Co., 137 Mass. 354; Day v. Highland St. R. Co., 15 Ib. 150; Commonwealth v. Louisville, etc., R. Co., 6 Ib. 216; Knowlton v. Milwaukee City R. Co., 16 Ib. 330.