HKB
THE EARLY RULE
As to the extrastate protection of rights which have not matured into final judgments, the full faith and credit clause has never abolished the general principle of the dominance of local policy over the rules of comity.[94] This was stated by Justice Nelson in the Dred Scott case, as follows: "No State, * * *, can enact laws to operate beyond its own dominions, * * * Nations, from convenience and comity, * * *, recognizes [sic] and administer the laws of other countries. But, of the nature, extent, and utility, of them, respecting property, or the state and condition of persons within her territories, each nation judges for itself; * * *" He added that it was the same with the States of the Union in relation to another. It followed that even though Dred had become a free man in consequence of his having resided in the "free" State of Illinois, he had nevertheless upon his return to Missouri, which had the same power as Illinois to determine its local policy respecting rights acquired extraterritorially, reverted to servitude under the laws and judicial decisions of that State.[95]
DEVELOPMENT OF THE MODERN RULE
In a case decided in 1887, however, the Court remarked: "Without doubt the constitutional requirement, Art. IV, Sec. I, that 'full faith and credit shall be given in each State to the public acts, records, and judicial proceedings of every other State,' implies that the public acts of every State shall be given the same effect by the courts of another State that they have by law and usage at home."[96] And this proposition was later held to extend to State constitutional provisions.[97] More recently this doctrine has been stated in a very mitigated form, the Court saying that where statute or policy of the forum State is set up as a defense to a suit brought under the statute of another State or territory, or where a foreign statute is set up as a defense to a suit or proceedings under a local statute, the conflict is to be resolved, not by giving automatic effect to the full faith and credit clause and thus compelling courts of each State to subordinate its own statutes to those of others, but by appraising the governmental interest of each jurisdiction and deciding accordingly.[98] Obviously this doctrine endows the Court with something akin to an arbitral function in the decision of cases to which it is applied.
TRANSITORY ACTIONS: DEATH STATUTES
The initial effort in this direction was made in connection with transitory actions based on statute. Earlier, such actions had rested upon the common law, which was fairly uniform throughout the States, so that there was usually little discrepancy between the law under which the plaintiff from another jurisdiction brought his action (lex loci) and the law under which the defendant responded (lex fori). In the late seventies, however, the States, abandoning the common law rule on the subject, began passing laws which authorized the representatives of a decedent whose death had resulted from injury to bring an action for damages.[99] The question at once presented itself whether, if such an action was brought in a State other than that in which the injury occurred, it was governed by the statute under which it arose or by the law of the forum State, which might be less favorable to the defendant. Nor was it long before the same question presented itself with respect to transitory action ex contractu, where the contract involved had been made under laws peculiar to the State where made, and with those laws in view.
ACTIONS UPON CONTRACT: WHEN GOVERNED BY LAW OF PLACE OF MAKING