CHAPTER XI

RELATIONS BETWEEN THE COURTS OF DIFFERENT STATES

Every State has all the rights of an independent sovereign,

except so far as its sovereignty is limited by the Constitution

of the United States. As respects each other the States are for

most purposes in the position of foreign governments. The courts

of one are regarded by those of any other as foreign courts,

except so far as the Constitution may have prescribed a different

rule.

No legal process from a court can have any inherent force outside

of the territorial boundaries of the government in which it is

issued. The law of that government may attach certain

consequences to the fact of its service in a foreign country, but

it can do so only with reference to the effect of the proceeding

on persons or property subject to its own jurisdiction. Courts,

as a general rule, can act only when they have jurisdiction over

the person, the subject-matter, and the cause.

In rare cases, jurisdiction over the subject-matter may be

regarded as giving jurisdiction over the person, so far as may be

necessary to uphold a judgment settling the possession or title

to property. Such a proceeding is, either in form or substance,

one not _in personam_ but _in rem_. The commonest

instance is a suit in admiralty to enforce a maritime lien, such

as that given by the universal law of the sea for seamen's wages.

Wherever the vessel is found, this lien is recognized and will be

enforced by seizing and selling her, but only after some kind of

public notice has been given to all who have any pecuniary

interest in her to appear and be heard. In such a suit, personal

notice to her owners, served within the jurisdiction of the

government to the courts of which the seamen may resort, is not

indispensable. The presence of the ship within the power of the

court is enough.

While State courts have no admiralty jurisdiction, they can

adjudicate upon a claim of title or right of possession to fixed

property within the territorial limits of their State, although

the parties adversely interested are not and have not been

personally served with process there or anywhere. Here again

their power over the property necessarily implies such power of

control over those who might lay claim to it as will suffice to

settle any dispute over its ownership or possession. But in all

ordinary cases they are not only powerless to subject any one to

obedience to their judgments who is not personally within the

State in which they exist, but powerless so to subject one who is

personally within it, but who did not belong there and was not

there served with process in the original proceeding leading up

to the judgment, unless he voluntarily took part in the

proceeding.

In most civilized nations there is a recognized form of

proceeding by which a judgment of a foreign court, fairly

rendered after giving a proper opportunity to the defendant for a

hearing, can be enforced by process from a domestic tribunal.

This is styled making the foreign judgment executory. The

English common law did not recognize such a right, and gave no

remedy to one desiring to enforce a foreign judgment, except that

of bringing a fresh suit. In like manner, whoever has recovered

a judgment against an inhabitant of any State, in a court held

outside of that State, can enforce it against him in his own

State only by bringing a new action. This either is, or is in

the nature of, the common law action of "debt on judgment"; and

only two defenses are available. These are, first, that no such

judgment exists or is in force; and, second, that if it exists,

it was rendered by a court having no jurisdiction over the

subject-matter or the defendant.[Footnote: Pennoyer _v._

Neff, 95 U. S. Reports, 714; Grover & Baker Sewing Machine

Co. _v._ Radcliffe, 137 U. S. Reports, 287.] If there was

jurisdiction, it is of no consequence that it was erroneously or

unfairly exercised. The remedy for that must be sought in the

State where the judgment was pronounced. Even fraud on the part

of the plaintiff in procuring it, though a defense against a

judgment of a foreign country is not one against a judgment of

another State.[Footnote: Christmas _v._ Russell, 5 Wallace's

Reports, 290.] These rules are established by Art. IV, Sec. I of

the Constitution of the United States and by Acts of Congress

passed to enforce it.[Footnote: U. S. Revised Statutes,

Sec. 905.]

Commercial intercourse between the different States is so great

and so constant that questions in the courts of one often arise

which turn on the law of another. Those who do any act do it

with implied reference to the law of the place where it is done,

so far as respects its legal consequences. If it is a wrongful

act there, it will in most instances be deemed a wrongful act

everywhere. If it leads to a certain result as regards property

rights there, it will ordinarily give a right of action anywhere,

to secure the benefit of that result.

The law of each State is largely an unwritten common law. Even

in those where they have full codes defining civil rights, these

codes are expressed in terms for the definitions of many of which

the common law gives the rule. But this common law is not

precisely the same in any two States. In minor points certainly,

and perhaps in capital ones, there will be a divergence. In

England there is one uniform common law. Here, divided as we are

for most business purposes into forty-five different

sovereignties, it is multiform.

If, then, the court of one State in determining the legal effect

of a transaction having its seat in another must be governed by

the common law of that State, where is it to be found? If there

have been decisions of its highest courts in regard to what it is

with reference to the point in question, they will ordinarily be

accepted as conclusive.

This is not by virtue of the provision in the Constitution of the

United States that full faith and credit is to be given in each

State to the public records and proceedings of the others. That

refers to the effect of public records and proceedings upon the

rights of those who are or claim under parties to them. Such

decisions as those which have been described are accepted as

conclusive as to the rights of those who were not parties to

them, and simply because they are considered the best evidence

attainable of a rule of unwritten law of general application.

But they are not universally so considered. The rule that

transactions are governed by the law of the place where they have

their seat is one founded on the presumed intent of the parties

to them. But in fact the parties to a business transaction act

on their general notions of what the law is or must be, rather

than on any particular knowledge of what courts have declared

that it is. The rule that one country will accept the opinion of

the judicial authorities of another as to what its law is, is one

not to be pressed so far as to sacrifice essential justice. In

this point of view, some courts hold that it is permissible to

disregard decisions of other States which are based on a

departure from what is generally considered a settled doctrine of

the common law as to a commercial question. This is

substantially the same position taken by the Supreme Court of the

United States, and elsewhere described,[Footnote: See Chap. X.]

concerning the right of a federal court to refuse to be bound by

State decisions as to the unwritten law affecting foreign trade

or trade between the States.[Footnote: Faulkner _v._ Hart,

82 N. Y. Reports, 413, 423.]

Another rule of practice of great importance is that in the

absence of proof to the contrary the courts will presume, in a

State basing its jurisprudence on the English common law, that

the unwritten law of any other American State is the same as its

own. As the reason of this rule fails in the case of Louisiana,

Florida and Texas, which were subject to organized governments

not derived from Great Britain at the time when they were

incorporated into the United States, it is not applied to

them.[Footnote: Norris _v._ Harris, 15 California Reports,

253.]

Decisions of a court constitute a precedent of binding obligation

only within the particular territorial jurisdiction which is

subject to its process. In the tribunals of one State decisions

rendered in another on legal points are, so far as respects

transactions not governed by its local law, without any

authoritative force. They may be read, just as the opinions of

an author expressed in a legal treatise, or as the decisions of

an English or German court might be, for what they appear to be

worth. No formal proof that they were really the deliverances of

the court from which they purport to emanate is necessary to

support their use for this purpose.

The reported decisions of courts of other States, whether

published officially or unofficially, may be cited in argument in

any cause, to fortify the claims of counsel as to the proper

rules to be followed in reaching a decision. For this use they

are introduced simply for the intrinsic value of the reasoning

and conclusions.

If it is claimed that they prove the law of the State from which

they come to be of a certain nature (and that is a material point

in the case), they should be made the subject of proof before

argument.[Footnote: Hanley _v._ Donoghue, 116 U. S. Reports,

1.] In many States this is dispensed with by statutes allowing

courts to take judicial notice of all reported decisions in other

States; that is, in effect, to take any means which they think

proper to learn what they are. It is also the general practice

of the bar where no such statutes exist to allow the reports of

other States to be read for any purpose without objection.

Most States have statutes to facilitate the proof in court of the

statute laws of other States. The mode prescribed by Act of

Congress (Revised Statutes, Sec. 905) under the constitutional

provision, to which reference has been made, involves

considerable expense for the proper certification of copies.

Common provisions of State legislation are that all courts may

take judicial notice of the laws of other States (that is, take

them into account without any formal proof at all), or that a

copy of the official publications containing them shall be

competent evidence of what they are.

There is a certain spirit of comity to which courts often give

expression in rendering assistance to courts of other countries.

This judicial comity has been defined as "the deference commonly

paid by the courts of one jurisdiction to the laws or proceedings

of another, in causes affecting rights claimed under such laws or

proceedings."[Footnote: "Dict. of Philosophy and Psychology,"

_Comity_.] As between courts of the different States in the

United States this sentiment naturally is particularly strong.

In pursuance of it, it is usual, if there has been a judicial

appointment in one State of a representative of the law to

administer an estate of any kind, part of which is in another

State, for the courts of the latter to give him such further

powers or appointment as may be necessary to put in his

possession or control whatever is within their jurisdiction. An

administrator of the estate of a deceased person would thus be

appointed, almost as a matter of course, administrator of such

estate in whatever State property or rights of action belonging

to it might be found. A receiver appointed by a court of equity

to take possession of property would ordinarily, in like manner,

be appointed to the same office wherever any part of such

property might be situated; and in some States such an officer

has been permitted to sue for it under his original appointment.

The general doctrine, however, is that a receiver in chancery

(that is, a receiver appointed by a court of equity) is simply an

arm of the court which appoints him, and has no authority to act

outside of the territorial jurisdiction of that court.[Footnote:

Hale _v._ Allinson, 188 U. S. Reports, 56.]

A receiver of an insolvent corporation often finds that it has

shareholders living in several different States, who have not

fully paid in their subscriptions to its capital stock. In such

case, if the statute of the State under the laws of which it was

incorporated provided for the appointment of a receiver for

insolvent corporations of that character, he may be regarded in

other States as one to whom each shareholder, in legal effect,

promised to pay such part of his subscription as had not been

previously paid to the corporation itself. On this theory of

liability, a foreign receiver has a right of action by virtue of

his official position, indeed, but not because of authority from

a foreign court to use that position for such a purpose. He sues

as one to whom the shareholder promised to make a payment, and on

a direct contract between the two, which is implied by

law.[Footnote: Fish _v._ Smith, 73 Conn. Reports, 377; 47

Atlantic Reporter, 711; 84 American State Reports, 161.]

The sentiment or rule (for from being a sentiment it has risen to

be a rule) of comity between States both aids in the enforcement

in one of rights acquired under the other,[Footnote: Finney

_v._ Guy, 189 U. S. Reports, 335, 346.] and in the

prevention by one of acts which would infringe on prohibitions

created by the other. Thus, if a corporation of one State has

been organized to do business in another, it may be enjoined in

its home State from amalgamating with a corporation of the other,

contrary to the public policy of the other as declared by its

courts.[Footnote: Coler _v._ Tacoma Railway and Power Co.,

70 New Jersey Law Reports; 54 Atlantic Reporter, 413.]

As no legal process can be effective outside the limits of the

sovereignty by authority of which it is issued, no court of a

State can summon before it witnesses not found within its

jurisdiction, who live in another State. This, in view of the

free intercourse and trade between all parts of the United

States, would work intolerable hardship had not statutes been

passed by every State permitting testimony to be taken outside of

its limits by written deposition for use in civil cases.

So far as criminal causes are concerned, this mode of relief

generally cannot be pursued, owing to the common provision in our

State Constitutions that the accused must be confronted by the

witnesses against him. Most of the Northeastern States, to meet

this difficulty, have passed statutes requiring their citizens

when summoned by a local magistrate at the request of a court of

another State to appear and testify before it in such a

prosecution, to do so upon receiving payment for their time and

expenses, on pain of a considerable pecuniary

forfeiture.[Footnote: New Hampshire inaugurated this legislation

more than sixty years ago. Public Stat., ed. 1842, 382. Most of

the statutes apply only to adjoining or neighboring States, and

some require reciprocity on their part.]

* * * * *

Lawyers of one State have no right to practice in any other. By

courtesy and on motion of a member of the bar, it is customary

for the courts of other States to allow them to participate in

the conduct of any particular cause. In some States, lawyers who

have removed their residence into them from another may in the

same manner be admitted to their bar; in most there is a standing

rule on the subject which requires proof of their having

practiced in the courts of their original State for a certain

number of years, and otherwise provides for an examination into

their legal attainments.

* * * * *

The American Judiciary · 第 3 / 17 章