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The object of this volume is to treat of American Inter-State Law as the same exists under our peculiar system of duplex gov. ernment, and it is therefore no part of our purpose to discuss the doctrine of international law, or law of nations, as the same exists between, and is recognized by, nations and states that are entirely foreign to each other; but to this we will only refer when necessary in connection with the more immediate subject of our work.
Nor is it our purpose, except as its relevancy may incidentally occur, to treat of the political powers, or of the political functions, of the several departments of the State or national governments; for, as a general principle, the exercise of these is not the subject of judicial cognizance or control.1 Thus, in Williams v. Suffolk Ins. Co.,2 the Supreme Court of the United States advert to this as a settled principle, in these words: “In the cases of Foster v. Neilson, 2 Pet. 253, 307, and Garcia v. Lee, 12 Pet. 511, this court has laid down the rule, that the action of the political branches of the government, in a manner that belongs to them, is conclusive.” In the case of Mississippi
* Gelston 0. Hoyt, 3 Wheat. 246; Taylor 0. Martin, 2 Curt. 154; Fel. lows 0. Blacksmith, 19 How. 366; Clark o. Braden, 16 How. 635; United States o. Palmer, 3 Wheat. 610; Wil. liams 0. Suffolk Ins. Co., 13 Pet. 415; Garcia 0. Lee, 12 Pet. 511; Scott o.
Jones, 5 How. 343; Luther v. Borden, 7 How. 1; United States o. Holliday, 3 Wall. 407; Jones v. Walker, 2 Paine, 688; Georgia o. Stanton, 6 Wall. 50; Mississippi o. Johnson, 4 Wall. 475; Wisconsin o. Duluth, 2 Dillon, 406.
13 Pet. 420.
v. Johnson, President of the United States, there was an appli. cation by bill in equity for a writ of injunction, to restrain the President from executing certain acts of Congress, and the Suipreme Court of the United States, in denying the application, said: “Suppose the bill filed and the injunction prayed for allowed. If the President refuse obedience, it is needless to observe that the court is without power to enforce its process. If, on the other hand, the President complies with the order of the court, and refuses to execute the acts of Congress, is it not clear that collision may occur between the executive and legislative departments of governinent? May not the House of Representatives impeach the President for such refusal? And, in that case, could the court interfere in behalf of the President thus endangered by compliance with its mandate, and restrain by injunction the Senate of the United States from sitting as a court of impeachment? Would the strange spectacle be offered to the public world of an attempt by this court to arrest proceedings in that court? These questions answer themselves.” So, also, in the case of Fellows v. Blacksmith, in which the validity of an Indian treaty was attempted to be drawn in question, the Supreme Court of the United States said: “An objection was taken on the argument, to the validity of the treaty, on the ground that the Tonawanda band of the Seneca Indians were not represented by the chiefs and head men of the band, in the negotiations and execution of it. But the answer to this is, that the treaty, after executed and ratified by the proper authorities of the government, becomes the supreme law of the land, and the courts can no more go behind it for the purpose of annulling its effect, and operation, than they can behind an act of Congress.”
In the case of The Cherokee Nation v. Georgia, 3 and cited in Georgia v. Stanton, 4 the United States Supreme Court, MarSHALL, Ch. J., said: “The bill requires us to control the legislature of Georgia, and to restrain the execution of its physical force. The propriety of such an interposition by the court inay be well questioned. It savors too much of the exercise of political power, to be within the province of the judicial department.”
14 Wall. 500.
35 Pet. 1.
In the same case, JOHNSON, J., said in reference to the bill of complaint: “Much of the matters herein contained by way of complaint, would seem to depend for relief upon the exercise of political powers; and, as such, appropriately devolving upon the executive, and not the judicial department of the government."1
American Inter-State Law -- Defined. - The term American Inter-State Law, as here used, embraces the law which governs the American States in their dealings and relations with each other, as well as with the national government, and the extent of recognition and binding force which is accorded the citizens and laws of each State, and of the national government, in the American courts. 2
* Any case which asks the court to • The term American Inter - State entertain jurisdiction of a political Law is somewhat akin to American question, and to decide it, will not be private international law, but it is considered by the same. To do so much broader and more comprehen. would encroach upon the supreme
sive. On the general subject the powers of the co-ordinate branches reader is referred to Story's Conf. of of government. U. S. 0. Baker, 5 Laws; Wharton's Conf. of Laws; Blatchf. 6; The Hornet, 2 Abb. 35; Burge's Commentaries on Colonial The Protector, 12 Wall. 700; Van Ant Law; Gardner's Institutes of Ameri. werp 0. Hulburd, Blatchf. 426; can Law; Westlake's Private InternaGrossmeyer 0. U. S., 4 Nott & H. 1; tional Law, and Foote's Private Inter. Marbury o. Madison, 1 Cr. 166. national Law, a work just published
LAW OF NATIONS AND UNIVERSAL LAW.
1. Comity. Although the relations of the several American States to each other do not rest upon the ordinary principles of comity alone, yet these relations are not such as to exclude the doctrine of comity from their inter-state code, or from their conduct toward each other as separate states, for municipal purposes; but such rather as should increase their good neighborhood and regard for each other. 1
The observance of comity is not a matter of obligation, ordinarily, between states, but is mere matter of voluntary courtesy and favor, which may be extended or withheld at pleasure. It is in virtue of this voluntary consent, expressed or implied, and this only, that the laws of one entirely independent state are enforced or administered in the courts of another, to any extent, or in any respect whatever in the absence of compact or treaty stipulations providing therefor. 3
But where no inhibition to the exercise thereof exists, then such comity is impliedly permitted, as to such matters, and to such an extent, as does not conflict with the local policy, or differ from the local laws of the forum, when the rights of persons are involved, which are of a transitory nature. 4 Not, however, for the enforcement of penalties, or in penal actions, or matters of police, or for the punishment of offenses against the state;5 nor
as to statutory rights of action, or statutory remedies. This comity is not the comity of the courts, though sometimes so called, but is the comity of the state, and is merely administered by the courts, where permitted by the state, as other laws are adıninistered. In a case cited in the note the ruling is unambiguous and express, that "comity extends only to enforce obligations, contracts, and rights under provisions of law of other countries, which are analagous or similar to those of the state where the litigation arises.”3
So, too, it was said in Arkansas, that the rule of comity will not be enforced as against domestic law or the legal rights and interests of citizens, or to their injury.4 When a government undertakes to enforce or administer laws of other communities, care must be taken that no injury results therefrom to its own citizens. The municipal laws of a State are of no force in other States, and cannot in other States conter a right. They have no extra-territorial force as laws. 6 But where they enter into a contract they are regarded, and enforced, as a part of the contract, and not as mere laws.
2. Natural Right. It is a well settled maxim of the law that “natural right is that which has the same force among all
It is written on the hearts of all mankind. Hence it is that there are certain rights and liabilities which, being personal, and founded in natural right, do follow the person of the parties into every country into which they may come. These
1 Pickering v. Fisk, 6 Vt. 102. Jus. tice CHRISTIANCY, in treating this subject in Thompson v. Waters, 25 Mich. 214, uses the following language: “But upon the principle of comity, which is a part of the law of nations, recognized, to a greater or less extent, by all civilized govern. ments, effect is frequently given in one State or country to the laws of another, in a great variety of ways, especially upon questions of contract rights to property, and rights of action connected with, or depending upon, such foreign laws, without which commercial and business in. tercourse between the people of dif
ferent States and countries could scarcely exist.”
? Bank of Augusta v. Earle, 13 Pet. 519; Thompson v. Waters, 25 Mich. 214, 240.
Hughes v. Klingender, 14 La Ann. 857.
4 Woodward v. Roane, 23 Ark. 523. 5 Woodward v. Roane, 23 Ark. 523,
Olivier v. Townes, 2 Mart. (N. s.) 93.
6 Milne v. Morton, 6 Binn. 365 ; Hoyt v. Thompson, 19 N. Y. 207; Woodward v. Roane, 23 Ark. 523, 537.
? Branch's Principia, 69; Jus natur. ale est quod apud homines eandem habet potentiam. 7 Co. 12.