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question of law depending upon the Constitution, laws, or treaties of the United States has been erroneously decided by the State court upon the facts before it,—while the law of that State, being known to its court as law, is of course within the judicial notice of this court at the hearing on error,—yet, as in the State court the laws of another State are but facts, requiring to be proved in order to be considered, this court does not take judicial notice of them, unless made part of the record sent up, as in Green v. Van Buskirk, 7 Wall. 139. The case comes, in principle, within the rule laid down long ago by Chief Justice Marshall: “That the laws of a foreign nation, designed only for the direction of its own affairs, are not to be noticed by the courts of other countries, unless proved as facts, and that this court, with respect to fact, is limited to the statement made in the court below, cannot be questioned.” Talbot v. Seeman, 1 Cranch, 1, 38.

Where by the local law of a State (as in Tennessee, Hobbs v. Memphis & C. R. Co., 9 Heisk. 873) its highest court takes judicial notice of the laws of other States, this court also, on writ of error, might take judicial notice of them. But such is not the case in Maryland, where the Court of Appeals has not only affirmed the general rule that foreign laws are facts, which, like other facts, must be proved before they can be received in evidence in courts of justice; but has held that the effect which a judgment rendered in another State has by the law of that State is a matter of fact, not to be judicially noticed without allegation and proof; and consequently that an allegation of the effect which such a judgment has by law in that State is admitted by demurrer.

From these considerations it follows that the averment, in the third count of the declaration, that by the law of Pennsylvania the judgment entered in that State against Charles Donoghue and John Donoghue was valid and enforceable against Charles, who had been served with process in that State, and void against John, who had not been so served, must be considered, both in the courts of Maryland, and in this court on writ of error to one of those courts, an allegation of fact, admitted by the demurrer.

Upon the record before us, therefore, the plaintiff appears to be entitled, under the Constitution and laws of the United States, to judgment on this count. The general judgment for the defendant is erroneous, and the right of both parties will be secured by ordering, in the usual form, that the Judgment of the Court of Appeals of Maryland be reversed,

and the case remanded to that court for further proceedings not inconsistent with this opinion.

Section 2.


4 Wash. C. C., 371. 1823.

In 1820 the State of New Jersey passed an act regulating the business of dredging for oysters. This act excluded the inhabitants and residents of other States from the privilege of taking or gathering oysters in any of the rivers, bays and waters of the State. One of the penalties privided by the statute was the forfeiture of the boat and apparatus used by any non-resident in gathering oysters in violation of the statute.

The defendant, one of the constables of Cumberland County, arrested the plaintiff, a non-resident of New Jersey, whom he found, gathering oysters in Maurice River Cove, and seized his boat and sold it. The plaintiff brought an action of trespass for the taking of his property in the United States Circuit Court for the Eastern District of Pennsylvania. The plaintiff contended that the New Jersey Act of 1820 infringes that section of the Constitution of the United States which declares that "the citizens of each State shall be entitled to all the privileges and immunities of citizens in the several States."

WASHINGTON, Circuit JUSTICE, delivered the opinion of the court.

The inquiry is, what are the privileges and immunities of citizens in the several States? We feel no hesitation in confining these expressions to those privileges and immunities which are, in their nature, fundamental; which belong, of right, to the citizens of all free governments, and which have, at all times, been enjoyed by the citizens of the several States which compose this Union from the time of their becoming free, independent, and sovereign. What these fundamental principles are, it would perhaps be more tedious than difficult to enumerate. They may, however, be comprehended under the following general heads; Protection by the government; the enjoyment of life and liberty, with the right to acquire and possess property of every kind, and to pursue and obtain happiness and safety; subject nevertheless to such restraints as the government may justly prescribe for the general good of the whole. The right of a citizen of one State to pass through or to reside in any other State for the purposes of trade, agriculture, professional pursuits or otherwise; to claim the benefit of the writ of habeas corpus; to institute and maintain actions of any kind in the courts of the State; to take, hold, and dispose of property, either real or personal; and an exemption from higher taxes or impositions than are paid by the other citizens of the State, may be mentioned as some of the particular privileges and immunities of citizens, which are clearly embraced by the general description of privileges deemed to be fundamental; to which may be added, the elective franchise, as regulated and established by the laws or constitution of the State in which it is to be exercised. These, and many others which might be mentioned, are strictly speaking, privileges and immunities, and the enjoyment of them by the citizens of each State in every other State was manifestly calculated to use the expression of the preamble to the corresponding provision in the old Articles of Confederation) "the better to secure and perpetuate mutual friendship and intercourse among the people of the different States of the Union.” But we cannot accede to the proposition which was insisted on by the counsel, that, under this provision of the Constitution, the citizens of the several States are premitted to participate in all the rights which belong exclusively to the citizens of any other particular State, merely upon the ground that they are enjoyed by those citizens; much less, that in regulating the use of the common property of the citizens of such State, the legislature is bound to extend to the citizens of all the other States the same advantages as are secured to their own citizens. A several fishery, either as the right to its respects running fish, or such as are stationary, such as oysters, clams and the like, is as much the property of the individual to whom it belongs as dry land or land covered by water; and is equally protected by the laws of the State against the aggressions of others; whether citizens or strangers. Where those private rights do not exist to the exclusion of the common right, that of fishing belongs to all the citizens or subjects of the State. It is the property of all; to be enjoyed by them in subordination to the laws which regulate its use. They may be considered tenants in common of this property; and they are so exclusively entitled to the use of it, that it cannot be enjoyed by others without the tacit consent or the express permission of the sovereign who has the power to regulate its use. * * * * The oyster beds belonging to a State may be abundantly sufficient for the use of the citizens of that State, but might be totally exhausted and destroyed if the legislature could not so regulate the use of them as to exclude the citizens of the other States from taking them, except under such limitations and restrictions as the laws may prescribe."

Judgment entered for defendant.

Section 3.



24 HOWARD, 66. 1860.

Willis Lago, a free negro resident of Kentucky, assisted a slave to escape and then he, himself, fled to Ohio. Lago's act being a crime under the laws of Kentucky, the Governor of Kentucky demanded him as a fugitive from justice to be delivered up by the Governor of Ohio. The demand was refused, whereupon Kentucky brought suit in the United States Supreme Court asking for a mandamus to compel Dennison, the Governor of Ohio, to deliver Lago to the State authorities. Kentucky claimed that the matter in dispute was covered by Art. IV, Sec. 2, of the Constitution of the United States, which reads thus : "A person charged in any State with treason, felony, or other crime, who shall flee from justice and be found in another State, shall on demand of the Executive authority of the State from which he fled, be delivered up, to be removed to the State having jurisdiction of the crime.” To execute this obligation of the Constitution, the Act of Congress of 1793 was passed, which provides: "It shall be the duty of the executive authority of the State or Territory to which such person shall have fled, to cause him or her to be arrested and secured, and notice of the arrest to be given to the executive authority making such demands, or to the agent of such authority appointed to receive the fugitive to be delivered to such agent when he shall appear."

MR. CHIEF JUSTICE TANEY delivered the opinion of the court.


The clause (of the Constitution) in question. . . . authorizes the demand to be made by the Executive authority of the state where the crime was committed, but does not in so many words specify the officer of the State upon whom the demand is to be made, and whose duty it is to have the fugitive delivered and removed to the State having jurisdiction of the crime.

The demand being thus made, the Act of Congress declares, that, “it shall be the duty of the Executive authority of the State," to cause the fugitive to be arrested and secured and delivered to the agent of the demanding State. The words, “it shall be the duty,” in ordinary legislation, imply the assertion of the power to command and to coerce obedience. But looking to the subject-matter of this law, and the relations which the United States and the several States bear to each other, the court is of the opinion, the words "it shall be the duty” were not used as mandatory and compulsory, but as declaratory of the moral duty which this compact created, when Congress had provided the mode of carrying it into execution. The act does not provide any means to compel the execution of this duty, nor inflict any punishment for neglect or refusal on the part of the Executive of the State; nor is there any clause or provision in the Constitution which arms the government of the United States with this power. Indeed, such a power would place every State under the control and dominion of the General Government, even in the administration of its internal concerns and reserved rights. And we think it clear, that the Federal Government, under the Constitution, has no power to impose on a State officer, as such, any duty whatever, and compel him to perform it; for if it possessed this power it might overload the officer with duties which would fill up all his

time, and disable him from performing his obligations to the State, and might impose upon him duties of a character incompatible with the rank and dignity to which he was elevated by the State.

It is true that Congress may authorize a particular State officer to perform a particular duty; but if he declines to do so, it does not follow that he may be coerced or punished for his refusal. And we are far from supposing, that in using the word “duty," the statesmen who framed and passed the law, or the President who approved and signed it, intended to exercise a coercive power over State officers not warranted by the Constitution.

The motion for the mandamus must be overruled.

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