The American Judiciary

by Simeon E. Baldwin

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.]