페이지 이미지

of another state in certain cases is applied by comity, when proved; if not proved, there is no comity invoked, and the lex fori governs.

In Monroe v. Douglass," Foot, J., speaking for the court of appeals, said: “It is a well-settled rule, founded on reason and authority, that the lex fori, or, in other words, the laws of the country to whose courts a party appeals for redress, furnish, in all cases, prima facie, the rule of decision; and if either party wishes the benefit of a different rule of law, as, for instance, the lex domicilii, lex loci contractus, or the lex rei site, he must aver and prove it." 3

$ 185. State statutes in the federal courts.- It was enacted by congress in 1789 “ that the laws of the several states, except where the constitution, treaties or statutes of the United States shall 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.” 4 The circuit courts of the United States are created by congress, not for the purpose of administering the local law of a single state alone, but to administer the laws of all the states in the Union, in cases to which they respectively apply. The judicial power conferred on the general government, by the constitution, extends to many cases arising under the laws of the different states. And the supreme court is called upon, in the exercise of its appellate jurisdiction, constantly to take notice of and administer the jurisprudence of all the states. That jurisprudence is then, in no just sense, a foreign jurisprudence, to be proved in the courts of the United States by the ordinary modes of proof by which the laws of a foreign

1 See O'Rourke v. O'Rourke, 43 O'Conner, 28 Vt. 776; Whidden v. Mich. 58; Martin v. Martin, 1 Sm. & Seelye, 40 Me. 247; Stokes v. Macken, M. 176; Bock v. Lauman, 24 Pa. St. 62 Barb. 145; Bristow v. Sequeville, 435; Peacock v. Banks, Minor (Ala.), 5 Ex. 275, 279; Lide v. Parker, 60 Ala. 387; Williams v. Wade, 1 Met. 82; 165. Greenwade v. Greenwade, 3 Dana, 25 N. Y. 447, 452. 495; McDonald v. Myles, 12 S. & M. 3 Norris v. Harris, 15 Cal. 254; 279; Story's Conf. L. (7th ed.) 8 637a; Greenwade v. Greenwade, 3 Dana, Monroe v. Douglass, 5 N. Y. 447; 497; Tarlton v. Briscoe, 4 Bibb, 73; Bean v. Briggs, 4 Iowa, 464; Sayre v. Thurston v. Percival, 1 Pick. 415. Wheeler, 32 Iowa, 559; Allen v. Wat- 4 Sec. 34, Judiciary Act 1789, 1 Stat son, 2 Hill (S. C.), 319; Woodrow v. at Large, 92; sec. 721, R. S. U. S.

country are to be established; but it is to be judicially taken notice of in the same manner as the laws of the United States are taken notice of by these courts. The relation in which the circuit courts of the United States stand to the states in which they respectively sit and act is precisely that of their own courts as to the rules of decision. A party forfeits nothing by going into a federal tribunal. Jurisdiction having attached, his case is tried there upon the same principles, and its determination is governed by the same considerations, as if it had been brought in the proper state tribunal of the same locality. The law of any state of the Union, whether depending upon statutes or upon opinions, is a matter of which the courts of the United States are bound to take notice without plea or proof. It thus appears that the courts of the United States have jurisdiction to administer a jurisprudence not wholly nor chiefly within the domain of congress. They administer between the proper parties the jurisprudence of the states. They are governed like the state courts by the valid statutes of the state. Where no federal question is involved, they follow the decisions of the highest court of the state in its construction of its own constitution or other written laws.5

1 Owings v. Hull, 9 Pet. 607, 624; 3 McNiel, Ex parte, 13 Wall. 236, Bennett v. Bennett, Deady, 309, 311; 243; Clark v. Smith, 13 Pet. 195 ; Pennington v. Gibson, 16 How. 65, McNiel v. Holbrook, 12 Pet. 84; Part81; Railroad Co. v. Bank of Ashland, ridge v. The Ins. Co. 15 Wall. 573, 12 Wall. 229; Covington Drawbridge 580; Lorman v. Clarke, 2 McLean, 568. Co. v. Shepherd, 20 How. 227; El- 4 Lamar v. Micou, 114 U. S. 218, wood v. Flannigan, 104 U. S. 568; 223; Hanley v. Donoghue, 116 id. 6. Course v. Stead, 4 Dall. 27, n. ; Cheever 5 Township of Elmwood v. Marcy, v. Wilson, 9 Wall. 108; Griffing v. 92 U. S. 289; Allen v. Massey, 17 Gibb, 2 Black, 519; Jones v. Hayes, Wall. 354; Leffingwell v. Warren, 2 4 McLean, 521; Gordon v. Hobart, Black, 599; Townsend v. Todd, 91 2 Sunner, 401; Mewster v. Spalding, U. S. 452; Tioga R. R. Co. v. Bloss6 McLean, 24; Smith v. Tallapoosa, burg, etc. R. R. Co. 20 Wall. 137; Har2 Woods, 574; Merrill v. Dawson, pending v. Dutch Church, 16 Pet. 493; Hempst. 563; Woodworth v. Spaf- Supervisors v. United States, 18 Wall. fords, 2 McLean, 168; Bird v. Com- 71, 81; Gut v. State, 9 id. 35; Gelpcke monwealth, 21 Gratt. 800; Gormley v. Dubuque, 1 id. 175; Christy v. v. Clark, 134 U. S. 338; Case v. Kelly, Pridgeon, 4 id. 196; Adams v. Nash133 id. 21; Louisville, etc. R. R. Co. ville, 95 U. S. 19; Peik v. Chicago, v. Mississippi, id. 587; Peters v. Bain, etc. R. Co. 94 id. 164; Stone v. Wisid. 670.

consin, id. 181; Shelby v. Guy, 11 2 Lessee of Livingston v. Moore, 7 Wheat. 361; Smith v. Kernochen, 7 Pet. 469, 542.

How. 198; De Wolf v. Rabaud, 1 Pet.

§ 186. Marshall, C. J., has thus defined comprehensively the primary authority to interpret laws: “This court has uniformly professed its disposition, in cases depending on the laws of a particular state, to adopt the construction which the courts of the state have given to those laws. This course is founded on principles supposed to be universally recognized, that the judicial department of every government, where such department exists, is the appropriate organ for construing the legislative acts of that government. Thus, no court in the universe, which professed to be governed by principle, would, we presume, undertake to say that the courts of Great Britain, or of France, or of any other nation, had misunderstood their own statutes, and therefore erect itself into a tribunal which should correct such misunderstanding. We receive the construction given by the courts of the nation as the true sense of the law, and feel ourselves no more at liberty to depart from that construction than to depart from the words of the statute. On this principle the construction given by this court to the constitution and laws of the United States is received by all as the true construction; and on the same principle, the construction given by the courts of the several states to the legislative acts of those states is received as true, unless they come in conflict with the constitution or treaties of the United States.” 1

The federal courts will follow the latest settled adjudications. They are called on to administer the laws of the states, and the states are not politically foreign to each other, though there is no connection between them in legislation; therefore those courts take notice of state laws when they are officially published, and only when they are found in the official statute books of the state."

479; King v. Wilson, 1 Dill. 555; v. Viles, 2 id. 675; McCluny v. SilliUnion Horse Shoe Works v. Lewis, man, 3 id. 270; United States v. Mor1 Abb. (U. S.) 518; Coates v. Muse, 1 rison, 4 id. 124; City of Richmond v. Brock. 539; Newman v. Keffer, 1 Smith, 15 Wall. 429; Shelby v. Guy, Brunner, Col. Cas. 502.

11 Wheat. 367. Elmendorf v. Taylor, 10 Wheat. 152, 2 Leffingwell v. Warren, 2 Black, 159; Harpending v. Dutch Church, 599; Gelpcke v. Dubuque, 1 Wall. 16 Pet. 493; Bell v. Morrison, 1 Pet. 175; Kountze v. Omaha, 5 Dill. 443. 351;D'Wolf v. Rabaud, id. 479; Beach 3 Ennis v. Smith, 14 How. 400, 429

$ 187. They adopt the local law of real property as ascertained by the decisions of the state courts, whether those decisions are grounded on the interpretation of statutes, or on unwritten law which has become a fixed rule of property in the state. The power of the state to regulate the tenure of real property within her limits and the modes of its acquisition and transfer, and the rules of its descent, and the extent to which testamentary disposition may be exercised by its owners, is undoubted. It is an established principle of law, everywhere recognized, arising from the necessity of the case, that the disposition of immovable property, whether by deed, descent or any other mode, is exclusively subject to the government within whose jurisdiction the property is situated. The power of the state in this respect follows from her sovereignty within her limits as to all matters over which jurisdiction has not been expressly or by necessary implication transferred to the federal government. The title and modes of disposition of real property within the state, whether inter vivos or testamentary, are not matters placed under the control of federal authority.?

$ 188. Foreign statutes, how proved.— Though statutes have no extraterritorial operation, yet, by comity, foreign laws are recognized everywhere when shown for certain purposes; they materially affect the status and rights of persons born, married, divorced or domiciled; of persons who have entered into contracts, or have suffered wrong in the country where they are in force, for various purpose not necessary here to enumerate.3

1 Jackson v. Chew, 12 Wheat. 153, ney, 11 How. 297; Porterfield v. 167; M'Keen v. Delancy's Lessee, 5 Clark, 2 How. 76; Barker v. Jackson, Cr. 32; Polk's Lessee v. Wendall, 9 1 Paine, 559; Gormley v. Clark, 134 Cr. 98; Thatcher v. Powell, 6 Wheat. U. S. 338. See Amy v. Watertown 119, 127; Daly v. James, 8 id. 535; (No. 1), 130 id. 301. Ross v. M’Lung, 6 Pet. 283, 285; Green 2 United States v. Fox, 94 U. S. 315; v. Lessee of Neal, 6 id. 291; Hender- McCormick v. Sullivant, 10 Wheat. son v. Griffin, 5 id. 151; Inglis v. 202. The Trustees, etc. 3 Pet. 99, 127; 3 Story, Conf. L. SS 17–38; Beard Davis v. Mason, 1 Pet. 503; Waring v. Basye, 7 B. Mon. 144; Whart. Conf. V. Jackson, id. 570; Nichols v. Levy, L ch. V; Heirn V. Bridault. 37 5 Wall. 433; United States v. Fox, 94 Miss. 209; Edgerly v. Bush, 81 N. Y. U. S. 315; Van Rensselaer v. Kear- 199; Trasher v. Everhart, 3 Gill & J

$ 189. Foreign laws are taken into consideration on the principles of international law. All laws are foreign to every country in which they do not operate of their own vigor; they are foreign to every country or state lying outside of the territorial jurisdiction of the law-maker. The states of the American Union are foreign to each other in their legislation. The principles of international law, however, apply with greater force between the people of the several states than between the subjects of foreign nations.?

The dismemberment or conquest of the enacting state will not render the laws in force foreign after the transfer to a new sovereign or jurisdiction.

$190. Foreign statutes have to be proved as matter of fact.* This follows necessarily from the court not taking judicial notice of them, and from their having effect only by comity on the principles of the common law. Statutes are records, and by the common law have to be proved as such by an examined and sworn copy, or by exemplification. The public seal of a state, affixed to the exemplification of a law, proves 234; Dennick v. Central R. R. Co. 103 Kelton, 1 Tex. 434; Hazelton v. ValU. S. 11; Kline v. Baker, 99 Mass. entine, 113 Mass. 472; Ely v. James, 253; Mitchell v. Wells, 37 Miss. 235. 123 id. 36; Trasher v. Everhart, 3

1 Brackett v. Norton, 4 Conn. 517. Gill & J. 234; Bock v. Lauman, 24 2 Shaw v. Brown, 35 Miss. 246. Pa. St. 435; Ingraham v. Hart, 11

3 Stokes v. Macken, 62 Barb. 145; Ohio, 255; Cecil Bank v. Barry, 20 State v. Patterson, 2 Ired. L 346; Md. 287; Hemphill v. Bank of Ala. Prell v. McDonald, 7 Kan. 426; Calkin 68. & M. 44; Harris v. White, 81 N. Y. v. Cocke, 14 How. 227; Fremont v. 532; Holmes v. Broughton, 10 Wend. United States, 17 How. 542, 557; 75. Brice v. State, 2 Overt. 254; Egnew 6 Bock v. Lauman, 24 Pa. St. 435, v. Cochrane, 2 Head, 329; Doe v. Es- 445. lava, 11 Ala. 1028; Cucullu v. Louis- 61 Whart. Ev. SS 94, 95, 309; Story's iana Ins. Co. 5 Mart. (N. S.) (La.) 613; Conf. L. S 641; Bailey v. McDowell, 2 United States v. Turner, 11 How. 663. Harr. 34; Church v. Hubbart, 2

McKenzie v. Wardwell, 61 Me. 136 ; Cranch, 237; Stewart v. Swanzy, 23 Kline v. Baker, 99 Mass. 253; Brack- Miss. 502; Warner v. Commonwealth, ett v, Norton, 4 Conn. 517; Dyer v. 2 Va. Cas. 95; Owen v. Boyle, 15 Me. Smith, 12 id. 384; Lockwood v. Craw. 147; Lincoln v. Battelle, 6 Wend. 475; ford, 18 id. 361 ; Brush v. Scribner, 11 Zimmerman v. Helser, 32 Md. 274; id. 407; Tuten v. Gazan, 18 Fla. 751; Ennis v. Smith, 14 How. 400, 426-429; Consequa v. Willings, 1 Pet. C. C. 225, Lacon v. Higgins, 3 Stark. 178; Jones 229; Owen v. Boyle, 15 Me. 147; v. Maffet, 5 S. & R. 523; Baltimore, Charlotte v. Chouteau, 33 Mo. 194; etc. R. R. Co. v. Glenn, 28 Md. 287. Diez, In re, 56 Barb. 591 ; Bryant v.

« 이전계속 »