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§ 9. Rules of action.- Courts judicially formulate rules of action, but only by applying to a particular party an existing law. The court ascertains by trial that the party is within a rule which is law, and the facts necessary to its special operation upon him. What that law enjoins in general the court adjudicates and administers in the particular case. Thus, in a statute before me is this provision: "Every person guilty of fighting any duel, although no death or wound ensues, is punishable by imprisonment in the penitentiary not exceeding one year." This is a statute-a law. Mr. A. is accused of the offense and brought before a court of competent jurisdiction, by proper form of accusation and by proper arrest, and not pleading guilty a trial takes place. The court ascertains by the verdict of a jury that A. is guilty of the acts denounced in the statute. The sentence based on that verdict is that "you, Mr. A., be imprisoned in the penitentiary one year." The statute was general that every person so guilty should be so imprisoned. That was making a law - prescribing a rule of conduct. The court having judicially ascertained that A. had done these acts applied the law to him- repeats the statutory rule of action on A. Enacting the rule is legislative; trying A. and applying the rule to him, repeating and formulating it for accomplishing the imprisonment provided for in the rule, is judicial.
§ 10. Legislative rules of action - Essential limitations.Even rules of action are not valid laws, if, when enacted by the legislature, they are judicial in their nature or trench on the jurisdiction and functions of the judiciary. The legisla ture may prescribe rules of decision which will govern future cases; these rules will have the force of law; so general rules of practice, regulating remedies and so operating as not to take away or impair existing rights, may be made applicable to pending as well as subsequent actions.' But it has no power 1 Riggs v. Martin, 5 Ark. 506; 18 Ind. 303; Evans v. Montgomery, Smith v. Judge, 17 Cal. 558; United 4 Watts & S. 218; Oriental Bank v. States v. Samperyac, 1 Hempst. 118; Freeze, 18 Me. 109; Read v. FrankCutts v. Hardee, 38 Ga. 350; Rath- fort Bank, 23 id. 318; Woods v. Buie, bone v. Bradford, 1 Ala. 312; Coosa 5 How. (Miss.) 285; United States R. S. B. v. Barclay, 30 id. 120; Hope Bank v. Longworth, 1 McLean, 35; v. Johnson, 2 Yerg. 123; Lockett v. Taggart v. McGinn, 14 Pa. St. 155; Usry, 28 Ga. 345; Ralston v. Lothain, Van Norman v. Judge, 45 Mich. 204.
to administer judicial relief,- it cannot decide cases, nor direct how existing cases or controversies shall be decided by the courts; it cannot interfere by subsequent acts with final judgments of the courts. It cannot modify such judgments,' nor grant or order new trials. No declaratory act, that is, one professing to enact what the law now is or was at any past time, can affect any existing rights or controversies.3
§ 11. The merits of every legal controversy depend on the rights of the parties as determined by the law as it was when the rights in question accrued, or the wrong complained of was done. A statutory right, however, is inchoate until re
1 Denny v. Mattoon, 2 Allen, 361. 2 Atkinson v. Dunlap, 50 Me. 111; Griffin v. Cunningham, 20 Gratt. 31; Reid, Adm'r, v. Strider, 7 id. 76; Calhoun v. McLendon, 42 Ga. 405; Reiser v. Wm. Tell, etc. Assoc. 39 Pa. St. 147; Carleton v. Goodwin, 41 Ala. 153; O'Conner v. Warner, 4 Watts & S. 227; Arnold v. Kelley, 5 W. Va. 446; De Chastellux v. Fairchild, 15 Pa. St. 18; Greenough v. Greenough, 11 id. 489; McCabe v. Emerson, 18 id. 111; United States v. Klein, 13 Wall. 128; United States v. Samperyac, 1 Hempst. 118; Bagg's Appeal, 43 Pa. St. 512; Taylor v. Place, 4 R. I. 324; Erie, etc. R. R. Co. v. Casey, 1 Grant's Cas. 274; Miller v. Fiery, 8 Gill, 147; Crane v. McGinnis, 1 Gill & J. 463; Trask v. Green, 9 Mich. 366; Bates v. Kimball, 2 D. Chip. 77; Burch v. Newbury, 10 N. Y. 374; Commonwealth v. Johnson, 42 Pa. St. 448; Inhabitants of Durham v. Inhab. of L. 4 Greenl. 140; Ex parte Darling, 16 Nev. 98; Davis v. Village of Menasha, 21 Wis. 491; Kendall v. Dodge, 3 Vt. 360.
3 Tilford v. Ramsey, 43 Mo. 410; People v. Supervisors, 16 N. Y. 425, 432; Ogden v. Blackledge, 2 Cranch, 272; Gordon v. Inghram, 1 Grant's Cas. 152; Dash v. Van Kleeck, 7 John. 477; Mongeon v. People, 55 N. Y. 613; McLeod v. Burroughs, 9
Ga. 213; Lambertson v. Hagan, 2 Pa. St. 25; Peyton v. Smith, 4 McCord, 476; Hall v. Goodwyn, id. 442; Grigsby v. Peak, 57 Tex. 142; Van Norman v. Judge, 45 Mich. 204. It was held (Alvord v. Little, 16 Fla. 158) that an act extending the time to appeal, passed after the expiration of the time allowed therefor by existing law, did not affect vested rights, because it applied only to the remedy. So does a statute of limitations; but an act would not be sustained which revived a right of action after it was barred by the existing law. Girdner v. Stephens, 1 Heisk. 280; Adamson v. Davis, 47 Mo. 268; Thompson v. Read, 41 Iowa, 48; Pitman v. Bump, 5 Oregon, 17; Wood on Lim. § 11. The leg. islature is not only incapable of performing judicial functions, but it can confer no other than judicial powers on the courts. The Auditor v. Atchison, etc. R. R. Co. 6 Kans. 500; S. C. 7 Am. R. 575; Burgoyne v. Supervisors, 5 Cal. 9; Dickey v. Hurlburt, id. 343; Hayburn's Case, 2 Dall. 409; Railway Co. v. Board Pub. Works, 28 W. Va. 264. See United States v. Ferreira, 13 How. 40.
+ Pacific, etc. Co. v. Joliffe, 2 Wall. 450; Vanderkar v. Railroad Co. 13 Barb. 390; People v. Supervisors, 3 id. 332.
duced to possession or fixed and perfected by a judgment.' It is judicial to determine what the law was or is; and the kind and measure of redress due to parties, founded upon the facts of a case, by application of that law. New laws cannot be passed to affect existing controversies, or to interfere with the administration of justice according to those principles.
To pass new rules for the regulation of new controversies is in its nature a legislative act; but if these rules interfere with the past or the present, and do not look wholly to the future, they violate the definition of a law as a rule of civil conduct; because no rule of civil conduct can with consistency operate upon what occurred before the rule itself was promulgated. Whether in their inquiries the legislature and the courts proceed upon the same or different evidence does not change the nature of legislative acts. Nor can their inquiries, deliberations, orders and decrees be both judicial and legislative, because a marked difference exists between the functions of judicial and legislative tribunals. The former decide upon the legality of claims and conduct; the latter make rules upon which in connection with the constitution these decisions should be founded. Legislative power prescribes rules of conduct for the future government of the citizen or subject; while judicial power punishes or redresses wrongs growing out of a violation of rules previously established. The distinction lies, in short, between a sentence and a rule.1
§ 12. Statutes have no extraterritorial effect.- Statutes derive their force from the authority of the legislature which enacts them; and hence, as a necessary consequence, their authority as statutes will be limited to the territory or country to which the enacting power is limited. It is only within
1 Norris v. Crocker, 13 How. 429; The Irresistible, 7 Wheat. 551; Calhoun v. McLendon, 42 Ga. 407; United States v. Mann, 1 Gallison, 177; United States v. Passmore, 4 Dall 372; Town of Guilford v. Supervisors, 13 N. Y. 143; Hampton v. Commonwealth, 19 Pa. St. 329; Stoever v. Immell, 1 Watt, 258; Williams v. Commissioners, 35 Me. 345; Tivey v. People, 8 Mich. 128; Commonwealth v. Duane, 1 Binn. 601. It de
volves on the courts, not the legis-
2 Merrill v. Sherburne, 1 N. H. 204.
4 Ex parte Shrader, 33 Cal. 283; Cooley's Con. L. 110, 111.
these boundaries that the legislature is law maker, that its laws govern people, that they operate of their own vigor upon any subject. No other laws have effect there as statutes. Statutes of other states, or national jurisdictions, are foreign laws, of which the courts do not take judicial notice. They may be proved and taken into consideration in proper cases, subject to the provisions of domestic statutes and of the constitution; but they are so considered only by the principles of the common and international law, originating in the comity which exists between nations and by force of the federal constitution between the states of the Union.1
The observance or recognition of foreign laws rests in comity and convenience, and in the aim of the law to adapt its remedies to the great ends of justice. But there is a limit to this principle of comity; and cases may and do arise where the observance of foreign laws would neither be convenient nor answer the purposes of justice. Foreign laws are not regarded where they conflict with our own regulations, our local policy, or do violence to our views of religion or public morals.3
Whatever force and obligation the laws of one country have in another depends upon the laws and municipal regulations of the latter; that is to say, upon its own proper jurisprudence and polity, and upon its own express or tacit consent. When
1 Shaw v. Brown, 35 Miss. 246, 316; Minor v. Cardwell, 37 Mo. 353; Clarke v. Pratt, 20 Ala. 470; Harrison v. Harrison, id. 629; Cockrell v. Gurley, 26 id. 405; Woodward v. Donally, 27 id. 196; Mobile & O. R. Co. v. Whitney, 39 id. 471; Bank of Augusta v. Earle, 13 Pet. 519; Carey v. Cincinnati, etc. R. R. Co. 5 Iowa, 357; Debevoise v. N. Y. etc. R. R. Co. 98 N. Y. 377; S. C. 50 Am. R. 683; Land Grant Railway v. Commissioners, 6 Kan. 252; Pickering v. Fisk, 6 Vt. 107; Andrews v. Herriott, 4 Cow. 508, and note; Saul v. His Creditors, 5 Mart. (N. S.) 569; 3 Am. & Eng. Cyclop. L. 502.
Articles 798 and 799 of the penal code of Texas provide for the punishment of robbery, theft, and the know.
ingly receiving of stolen property, though perpetrated in a foreign country or state, if the property was brought into the state, provided that by the law of the foreign country or state the inculpatory act would have been the offense charged in the indictment. It was held in Cummins v. State, 12 Tex. App. 121, that in such a case the law of the foreign country or state is an element of the offense and an issuable fact to be alleged in the indictment, but the indictment need not aver that the accused was punishable or amenable to the laws of the foreign country or state.
2 Pickering v. Fisk, 6 Vt. 107; Story, Conf. L. § 35. 3 Id.
a statute or the unwritten or common law of the country forbids the recognition of the foreign law, the latter is of no force whatever. When both are silent, then the question arises, which of the conflicting laws is to have effect. Generally, force and effect will be given by any state to foreign laws in cases where from the transactions of the parties they are applicable, unless they affect injuriously her own citizens, violate her express enactments, or are contra bonos mores.1
The courts of one state will not enforce the penal, nor the police, revenue or political laws of another. Crimes are in their nature local, and the jurisdiction of them is local. They are cognizable and punishable exclusively in the country where they are committed."
§ 13. As every nation possesses an exclusive sovereignty and jurisdiction within its own territory, its laws affect and bind directly all property, whether real or personal, within that territory; and all persons who are resident within it, whether natural-born subjects or aliens, and also all contracts made and acts done within it. A state may, therefore, regulate the manner and circumstances under which such property, in possession or in action, within it shall be held, transmitted, bequeathed, transferred or sued for; the condition, capacity, and state of all persons within it; the validity of contracts and other acts done within it; the resulting rights and duties growing out of these contracts and acts; and the remedies and modes of administering justice in all cases calling for the in
1 Lawrence's Wheaton (2d ed.), 162; Bouv. L. Dic. tit. Conflict of Laws; Story, Conf. L. §§ 23, 29; Minor v. Cardwell, 37 Mo. 354; 3 Am. & Eng. Cyclop. L. 502-503; Caldwell v. Vanvlissengen, 9 Hare, 425; Fenton v. Livingstone, 3 Macq. H. L. Cas. 497; Gardner v. Lewis, 7 Gill, 377; Beard v. Basye, 7 B. Mon. 144.
The Antelope, 10 Wheat. 66, 123; Scoville v. Canfield, 14 John. 338; Commonwealth v. Green, 17 Mass. 515; Folliott v. Ogden, 1 H. Black. 135; Ogden v. Folliott, 3 T. R. 733; Wolff v. Oxholm, 6 M. & S. 99; King of Two Sicilies v. Wilcox, 1 Sim. (N.
S.) 301; Holman v. Johnson, 1 Cowp. 343; James v. Catherwood, 3 D. & R. 190 (16 Eng. C. L. 165); Randall v. Van Rensselaer, 1 John. 95; Stevens v. Brown, 20 W. Va. 450; Woods v. Wicks, 7 Lea, 40. See South Carolina R. R. Co. v. Nix, 68 Ga. 572; Whart. Am. L. § 253.
James v. Catherwood, 3 D. & R. 190; Planche v. Fletcher, 1 Doug. 251; Bristol v. Sequeville, 5 Exch. 275; Quarrier v. Colston, 1 Phil. 147. See Henry v. Sargeant, 13 N. H. 321. 4 Rafael v. Verelst, 2 W. Black. 1058.
5 Story's Conf. L. § 620.