Page:Harvard Law Review Volume 8.djvu/349

333 SUPREME COURT ON JUDICIAL LEGISLATION. 333 actively, so that hereafter facts falling within that ruling shall be governed by the present decision without reference to the time of their occurrence. The decision would be the same, whether Riggs V. Palmer was an instance of judicial legislation or not. Where a court is examining the unwritten law of a foreign jurisdiction the situation appears to be different. The decisions of the foreign courts are neither the laws nor the evidence of the laws of the court. The cotsrts of one State are powerless to make or to declare the laws which shall govern another. There are cases, nevertheless, in which a court is called upon to declare what is the law of another jurisdiction. Such a case, for example, is one in which the parties have agreed to refer their conduct to the standard of a foreign law. To decide the case it is necessary for the court to state what is the foreign law. The court, indeed, has the power to examine and to decide the case on the merits, inde- pendently of the foreign law, for it is certain that its decision can never be reversed by the foreign courts ; but such a course would be a gross abuse of power, and is, as a matter of fact, rarely re- sorted to. The decisions of such cases invariably profess to be according to the foreign law agreed upon. Suppose that in such a case a decision in point of the foreign court of last resort is cited. What, if anything, will the decision of the case necessarily affirm of the foreign decision? If it is followed and applied, the court may be declaring either (i) that it is the law of the foreign state, or (2) that it is conclusive evidence of that law. Clearly there is no question of judicial legislation decided here. But how, if it is repudiated and a different rule is applied to the decision of the case? In that event we have seen that in the case of a domestic decision the court may be declaring either (i) that the decision cited never was the law, or (2) that, though it was the law, it is now changed. In the case of a foreign decision the second alter- native is absent, for the court has no power to change the foreign law. To repudiate the foreign decision, therefore, necessarily in- volves the opinion that it is not the law of the foreign state, which is equivalent to saying that the judges who made it did not make it a part of the law of that state, and that they did not legislate. An illustration of such a ruling in practice is provided by the case of Faulkner v. Hart^ in the New York Court of Appeals. The facts, which were submitted to the court in an agreed statement, 1 82 N. Y. 413.