plaintiffs within the State of Alabama, it was insisted, that a corporation could not contract in any State of the Union but in that by the law of which it was created, and that its existence would not be recognized on any principle of comity; and the Circuit Court of the United States so decided; but on writ of error to the Supreme Court, the judgment was reversed,* the Court holding this language:

"It has, however, been supposed that the rules of comity between foreign nations do not apply to the States of this Union; that they extend to one another no other rights than those which are given by the Constitution of the United States; and that the courts of the general government are not at liberty to presume, in the absence of all legislation on the subject, that a State has adopted the comity of nations towards the other States as a part of its jurisprudence, or that it acknowledges any rights but those which are secured by the Constitution of the United States. The court think otherwise. The intimate union of these States as members of the same great political family, the deep and vital interests which bind them so closely together, should lead us, in the absence of proof to the contrary, to presume a greater degree of comity, and friendship, and kindness toward one another, than we should be authorized to presume between foreign nations. And when (as without doubt must occasionally happen) the interest or policy of any State requires it to restrict the rule, it has but to declare its will, and the legal presumption is at once at an end. But until this is done, upon what grounds could this court refuse to administer the law of international comity between these States? They are sovereign States; and the history of the past, and the events which are daily occurring, furnish the strongest evidence that they have adopted toward each other the laws of comity in their fullest extent."

It was certainly very difficult successfully to contend for the principle insisted on in this case by the defendants, for it amounted substantially to the proposition that a corporation of one State can do no commercial business, can make no contract, can, indeed, do nothing in any other State of the Union but in that in which, by the law of the State, it has been created. But the doctrine of comity between the States, presents itself in other and more important aspects.

So in regard to slavery, the question has arisen whether the owner of slaves which are brought from a State where domestic servitude is allowed, and taken into a State where that institution is absolutely forbidden by its municipal legislation, can be

* Bank of Augusta v. Earle, 13 Peters, 519. Mr. Justice McKinley dissented.

*

it

protected in his property by the fact that the slaves are merely in transitu, and brought in with the bona fide intention of tak ing them to some State where their proprietor may lawfully hold them. This proposition has been affirmed in Illinois; has been denied in New York,+ and has been left in doubt by the Supreme Court of Massachusetts. It is not seriously asserted that the owner's right can be maintained under the Constitution of the United States, nor that in this sense the absolute prohibition of domestic slavery by the State laws is unconstitutional; but it is very earnestly insisted that property in slaves, under these circumstances, is protected by the doctrine of comity which we have above discussed.

The point is very far from being free of difficulty, and if the rule of comity is to be considered as settled to the full extent of the language of the Supreme Court above cited, it will be difficult to show that it does not cover this case; but before it shall be so finally determined, much reflection is necessary. The doctrine of comity has been established and applied by powers wholly foreign, entirely distinct from and independent of each other, the mutual relations of whose citizens are comparatively rare, and almost, if not quite, exclusively commercial, and the rules of whose intercourse rest entirely on the great unwritten law of nations, of which this comity forms in fact but a part.

Such is not at all the condition of the States of this Union. They are mutually dependent on each other in various ways, and all recognize in certain cases a common sovereign; their intercourse is in the highest degree frequent and intimate; their relations quite as much political as commercial; and they have undertaken, by the terms of a carefully prepared instrument, to declare with precision their relative rights and duties. In this case, to substitute for the clear and definite language of the Constitution anything so vague and uncertain as the comity of nations, is not only to subject the relations and independence of the States to a condition of alarming perplexity, but to make the judiciary the sole arbiter of the gravest political questions,

* Willard v. The People, 4 Scammon, 461. People v. Lemon, 5 Sandford, 681.

193.

Commonwealth v. Aves, 18 Pickering,

and to give them, in framing their decisions, no better guide than a fluctuating and unsettled notion of international courtesy.

The federal Constitution contains a provision in regard to the laws of the States, and the judicial proceedings of their tribunals, which, though it gives them no extra-territorial effect, has still some bearing on our present subject. The Constitution of the United States, by Article IV, Section 1 of that instrument, declares that, "Full faith and credit shall be given in each State to the public acts, records, and judicial proceedings of every other State; and the Congress may, by general laws, prescribe the manner in which such acts, records, and proceedings shall be proved, and the effect thereof." In pursuance of this power, the Congress of the United States, by act of May 26, 1790, ch. 38, provided the mode by which records and judi cial proceedings should be authenticated. Under these constitutional and statutory provisions, various decisions have been made, the general result of which is, that a judgment is conclusive in every other State, if a court of the particular State where it was rendered would hold it so.* But Congress has never acted on the power in the Constitution as to the public acts or laws of the States, any further than to declare that they shall be authenticated by having the seal of the respective States affixed thereto; nor is this method regarded as exclusive of any other which the States may adopt. And the States have differed as to the manner in which they should be proved. In some cases, strict proof of them, as foreign laws, has been required; but the courts of other States, and the Supreme Court of the United States, influenced by the peculiar and intimate connection of the States, have shown a disposition to relax the usual rules of proof in this respect; in regard, however, to the details of this matter, which properly belongs to the domain of evidence, I refer the reader to Mr. Greenleaf's very valuable work, where the authorities will be found collected.

The student of American law, in his consideration of the subject which we are now discussing, will not forget that the

* Mills v. Duryee, 7 Cranch, 481; Hampton v. McConnel, 3 Wheat. 234; 1 Kent. Comm p. 250, and cases there cited.

Act of 26th May, 1799, ch. 38

Bank of Augusta v. Earle, 13 Peters, 525; Ogden, arguendo.

Greenleaf on Evidence, § 489.

laws of the States, as has been already intimated, are subject in many important cases to the power of the Union; the second section of the sixth article of the federal Constitution declaring that, "The 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 United States, shall be the supreme law of the land; and the judges in every State shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding." This provision necessarily makes the States subordinate to the govern ment of the Union, in all matters which, by the federal charter, fall within the demesne of Congress; and the supremacy of the federal government, in these respects, is maintained and enforced, as we shall hereafter see, by the Supreme Court of the United States.

While discussing the question of the territorial effect of statutes, we have also to notice an interesting question which has been presented in this country with reference to the juris diction of the States over criminal acts planned or contrived in a State of which the offending party is a citizen, but consummated in another, and without the culprit ever being actually present in the latter State. It is well settled, as a general rule that penal laws have no extra-territorial effect.* And so a State cannot pass an act making the offence of counterfeiting its current bills, committed out of the State, indictable and punishable in its courts. But, on the other hand, it is equally well settled, that in the case put, where the offence is contrived in one State and executed in another, the party is liable to the criminal jurisdiction of the State where the offence is consummated, though he have never himself been within the limits of the latter State. So, where an indictment was found in Massachu setts against a resident in New York for uttering forged notes in the first-mentioned State, through an innocent agent, the defendant remaining all the while in New York, the defendant was held guilty in Massachusetts. So again, where one was indicted in New York for obtaining money by fraudulent pre

* Scoville v. Canfield, 14 J. R. 338.

State v. Knight, Taylor's N. C. Rep. 65. 69.

Commonwealth v. Harvey, 8 Am. Jur.

tenses from a firm in that State, by exhibiting to them fictitious receipts for property signed by a person in Ohio, although the defendant was a citizen of Ohio and had never been in New York, and the receipts were drawn and signed in Ohio, and the offence was committed by the receipts being presented in New York by innocent agents employed by the parties in Ohio,—it was held that the culprit was liable to the civil jurisdiction of New York.* It will be observed that these are cases which apply to mala per se,-to offences against persons or property which are such in all civilized countries; and it may well be doubted whether the rule would hold good as to mere mala prohibita, as, for instance, laws to protect the revenue or the currency, of which the alleged offender may be not merely ignorant, but not chargeable with knowledge.

An interesting question connected with the present branch of our subject arises, as to the time when statutes are to take effect. The old English rule was, that if the act was not directed to operate from any particular time, it took effect from the first day of the session at which it passed, though this date was purely fictitious, and might be weeks or indeed months before the act was assented to by the sovereign, or, in fact, even before the bill was brought in; and this extraordinary application of the doctrine of relation was actually adhered to and acted upon in England as late as the latter part of the last century. The rule was finally altered by the statute 33 George III, c. 13, which declared that laws shall operate from the time of their receiving the royal assent. Where two statutes, passed

* People v. Adams, 8 Denio, 190; s. c. on appeal, 1 Coms. 173. See, to the same point, State v. Ellis, 3 Conn. 185; Barkhamstead v. Parsons, 3 Conn. 1; Commonwealth v. Gillespie, 7 Serg. & Rawle, 469; People v. Rathbun, 21 Wend. 509. In England, the rule that the offence is considered to be committed where it is consummated, holds good as between the different counties, and as between Ireland and England. King v. Brisac, 4 East, 164; Rex v. Johnson, 6 East, 583; s. c. 7 Id. 65.

+ 33 Henry VI, 18 Bro. 33; 1 Lev. 91; Attorney-General v. Panter, 6 Bro. P. C. 486; Latless v. Holmes, 4 T. R. 486; Dwarris on Stat. p. 544; R. v. Bailey, R. & R. C. C. 1; 1 Russ. C. & M. 109. The severity of the old English rule is well illustrated by the trial of Sir William Parkyns for high treason, in 1695,

before Lord C. J. Holt, Lord C. J. Treby, and Mr. Justice Rokeby. He prayed to be allowed counsel, but was refused, because the statute, 7 William III, c. 3, allowing counsel to persons indicted for treason, did not go into effect till the next day after that on which he was tried. It was in vain that the prisoner quoted a part of the preamble, which said that such an allowance was just and reasonable. The reply of Lord C. J. Holt was, that he must administer the law as he found it, and could not anticipate the operation of an act of Parliament by even a single day. Sir William Parkyns was convicted and executed. See the case reported in the thirteenth volume of the State Trials, Howell's ed. and cited in Mr. Lieber's Hermeneutics, p. 118; see also Kent's Com. vol. i, p. 456.