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it prays for a decree that will affect it and them in equal measure,

The defendants declare that the Company's control of the railroads will enure to the benefit of all the States through which they run: Does not this suggest an economic question which each State is entitled to consider for itself? Washington declares that its policy is violated. What of the policies of the other States? An examination of the railway laws of these States will disclose more or less resemblance to the laws of Washington, but not complete agreement with them. In fact, there is a Montana statute expressly permitting the harmonizing of two competing railroads by lease. 1

Even were the laws of all these States substantially alike, the Supreme Court would not be entitled to assume that the attitude of Washington toward the defendants is adopted by its neighbors. Likeness of texts does not imply uniformity in interpretation, and even a uniform interpretation, gleaned from local decisions in other cases, would not permit the Court to say that the policies of North Dakota, Montana and Idaho are by way of being enforced in the suit at bar. The enforcement of a policy is a question of expediency which each State must decide for itself,” and, while the silence of these States in respect of the Securities Company may not be attributed to approbation, it certainly does not suggest opposition.

These observations are not intended to point out a cura ble defect in pleading, for in my judgment the Supreme Court has no jurisdiction over mere conflicts of policy between States. They are intended to emphasize the illegal selfishness which a State of the Union displays when it prays the Supreme Court to exalt its own policy as a rule of law in other States.


46. Even assuming the transaction complained of to be of a kind forbidden in Washington, does it follow that the State can require the Supreme Court of the United States to enforce its local laws beyond its borders ? Cer

See State v. Montana R., (1898) 21 Mont. 221. 2 See Bank of Augusta v. Earle (1839) 13 Peters, 594. 3 See SS. 33, 65, 66.

tainly not if the law in question is of a penal nature, for it is a settled principle of international law that no state can call upon a foreign court to enforce its penal statutes, 1

Penal laws,” says the Supreme Court, “strictly and properly are those imposing punishment for an offence committed against the state, and which, by the English and American constitutions, the executive of the state has the power to pardon."2

The laws of Washington in question do not fall within this strict definition of penal laws.

A somewhat broader definition may perhaps be deduced from the judgment in Wisconsin v. Pelican Ins. Co., where a statute imposing a pecuniary penalty upon corporations for violations of law was declared penal, although it does not appear that the executive had power to pardon, that is to say, to remit a penalty imposed. Even this definition is not pertinent in the case at bar, for Washington does not sue for any penalty.

In Huntington v. Attrills the Court said :

“ The question whether a statute of one State, which in some aspects may be called penal, is a penal law in the international sense, so that it cannot be enforced in the courts of another State, depends upon the question whether its purpose is to punish an offence against the public justice of the State, or to afford a private remedy to a person injured by the wrongful act.”

Read by itself this statement might suggest a still broader definition of a penal law; namely, any law enforcible by a public, as distinguished from a private suit, and such a definition would apply to the suit at bar; but read in connection with the whole opinion, it does not appear that the court intended to define all laws as penal which are enacted for the protection of public interests, but only such of these as impose punishments for their violation ; much less to define all public suits brought in foreign courts as penal, but only such as seek to secure the imposition abroad of punishments prescribed at home.

47. In my opinion, however, the suit of Washington does not turn on the question whether the local law it seeks

| Wisconsin v. Pelican Insurance Co. (1888) 127 U. S. 265.

Huntington v. Attrill (1892) 146 U. S. 657. 8(1892) 146 U. S. 673.


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to enforce abroad is of a penal nature. I think the real question is much broader. Has the Supreme Court the right to disrupt a transaction consummated in New Jersey because it is not sanctioned by a law made in Washington, whether this law be of a penal or a civil nature?

Judge Story's well-known statement: “The laws of no nation can justly extend beyond its own territories except as regards its own citizens. They can have no force to control the sovereignty or rights of any other nation, within its own jurisdiction,"1 declares a limitation of general acceptance, because it is based upon the principle that the power of a sovereign as expressed in its statutes constrains those persons only who are subject to its jurisdiction. If this were all, the impotency of the statutes, as such, in a foreign territory would be readily appreciated. But the exigencies of intercourse between civilized nations often lead the courts of one country to accord a certain respect to the laws of another. This respect is the foundation of private international law, and it is not necessary to consider here whether it should be uniformly rendered or with held according to general principles, or whether its manifestation should depend upon the degree of reciprocal respect displayed by the country whose law is in question."

Jurists in inculcating this respect sometimes give the impression that a tribunal deciding a cause in the light of a foreign statute is really aiding a foreign state to enforce its laws abroad, which is the very thing that Washington is trying to accomplish in the present suit. This is not the proper office of the court, which is instituted for the enforcement of the laws of its own sovereign exclusively. Nor, in theory of law, is this the true meaning of the court's action, as I shall endeavor to show.

48. When a foreign statute is called to the attention of a court, the court does not accept it in its original significance as a command, but tests it by some domestic standard of law.3 Recognition will not be accorded if it would effect


The Apollon (1824) 9 Wheaton, 370. ? See Hilton v. Guyot (1895) 159 U. S. 113.

See Caldwell v. Van Vlissingen (1851) 9 Hare 425, Thompson v. Waters (1872) 25 Mich. 221.


within the jurisdiction a result repugnant to domestic law. 1

If the statute is substantially duplicated in the local law there is no conflict of laws' at all. The court administers the local law.

If the statute differ from the local law, but can be recognized without effecting a breach of this law, the propriety of recognition will still be immediately determined by some domestic rule. Take, for example, the common case of a judicial interpretation of a contract according to the terms of a foreign law. The law is recognized indeed, but not on the theory that a foreign legislature has given it authority. It is recognized in conformity to the principle of domestic law that parties competent to make a contract are, speaking generally, free to choose the law that shall govern its interpretation, and the court simply finds that a particular law has been expressly or impliedly chosen.2 In other words, the foreign law is not given the force of a legislative act, but is treated as an element in a particular contract. Again, for example, where a court sustains a right of action accruing under a foreign statute, 3 there is no direct enforcement of a foreign law as such. There is an application of the domestic rule that a person becoming entitled to a right of action may enforce it in any court having jurisdiction of the defendant.

49. Had the Securities Company been organized under an English statute, Washington could not induce an English court to condemn the holding of stocks on the ground that the consequences were repugnant to Washington law. The Court would respect the law of England under which the Company was formed.

I have said that there is no constitutional objection to a State's bringing suit in the court of a sister State,4 and, were the present suit founded on good cause, it seems that a New Jersey court could give the desired relief. But


Rousillon v. Rousillon (1880) 14 Ch. D. 351 ; Edgerly v. Bush (1880) 81 N. Y. 199. 2 See Canada Southern R. v. Gebhard (1883) 109 U. S. 527.

4 See S. 35. Northern Pacific R. v. Babcock, (1893) 154 U. S. 190.


the New Jersey court, like the English, would in this case decline to be bound by Washington laws.

While there is a bond between the States of the Union that makes the United States a nation among the nations ; while there is a homogeneity among the people who owe allegiance to the United States that makes them a national community, there is this likeness between the States and the nations-each State, like each nation, is free from subjection to the laws of any other.

“The several States are of equal dignity and authority,” says the Supreme Court, “and the independence of one implies the exclusion of power from all others. And so it is laid down by jurists, as an elementary principle, that the laws of one State have no operation outside of its own territory, except so far as is allowed by comity

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This independence is not qualified by the clause in the Federal Constitution, declaring that “ Full faith and credit shall be given in each State to the public acts, records and judicial proceedings of every other State."' 2 This clause does not give the laws of a State ex territorial authority. It does not require a State to govern persons within its jurisdiction by the laws of another State. It simply imposes upon these fraternal States as an express obligation that recognition of each other's laws and judgments as foundations of rights which, among civilized nations, is supposed to be freely adopted as a proper aid to intercourse.

50. Is Washington's position improved in point of law by bringing suit in the Supreme Court of the United States instead of in a New Jersey court. If so, the Federal court must be empowered to apply some principle of law governing interstate relations which the State court, if competent, is, at all events, not bound to administer.

We have remarked that the complainant in appealing to the“ law of the land," as well as to its own written law, invokes some rule supposed to affect all parties to the suit, and we first turn to the Federal Constitution, which says: “ This Constitution, and the laws of the United States, which shall be made in pursuance thereof, and all treaties made, or which shall be made, under the authority of the

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2 Art. 4, S. 1.

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