while imposing a duty, at the same tine confer a right upon the citizens to claim damages for its nonperformance, are not criminal. If all the laws of the latter description are held penal, in the sense of criminal, that clause in the constitution which relates to records and judgments is of comparatively little value. There is a large and constantly increasing number of cases that may in one sense be termed penal, but can in no sense be classed as criminal. Examples of these may be found in suits for damages for negligence in causing death, for double damages for the injury to stock where railroads have neglected the state laws for fencing in their tracks, and the liability of officers of corporations for the debts of the company by reason of their neglect of a plain duty imposed by statute. I cannot think that judgments on such claims are not within the protection given by the constitution of the United States. I therefore think the order in this case should be affirmed." Pages 200-205, 70 Md., and pages 654--656, 16 Atl. Rep.

A writ of error was sued out by the plaintiff, and allowed by the chief justice of the court of appeals of Maryland, upon the ground "that the said court of appeals is the highest court of law or equity in the state of Maryland, in which a decision in the said suit could be had; that in said suit a right and privilege are claimed under the constitution and statutes of the United States, and the decision is against the right and privilege set up and claimed by your petitioner under said constitution and statutes; and that in said suit there is drawn in question the validity of a statute of, and an authority exercised under, the United States, and the decision is against the validity of such statute and of such authority."

It thus appears that the judgment recovered in New York was made the foremost ground of the bill, was fully discussed and distinctly passed upon by the majority of the court of appeals of Maryland, and was the only subject of the dissenting opinion; and that the court, without considering whether the validity of the transfers impeached as fraudulent was to be governed by the law of New York or by the law of Maryland, and without a suggestion that those transfers alleged to have been made by Attrill with intent to delay, hinder, and defraud all his creditors were not voidable by subsequent as well as by existing creditors, or that they could not be avoided by the plaintiff, claiming under the judgment recovered by him against Attrill after those transfers were made, declined to maintain his right to do so by virtue of that judgment, simply because the judgment had, as the court held, been recovered in another state, in an action for a penalty.

The question whether due faith and credit were thereby denied to the judgment rendered in another state is a federal question, of which this court has jurisdiction on this writ of error. Green v. Van Buskirk, 5 Wall.

307, 311; Crapo v. Kelly, 16 Wall. 610, 619; Dupasseur v. Rochereau, 21 Wall. 130, 134; Crescent City Livestock Co. v. Butchers' Union Slaughter-House Co., 120 U. S. 141, 146, 147, 7 Sup. Ct. Rep. 472; Cole v. Cunningham, 133 U. S. 107, 10 Sup. Ct. Rep. 269; Carpenter v. Strange, 141 U. S. 87, 103, 11 Sup. Ct. Rep. 960.

In order to determine this question, it will be necessary, in the first place, to consider the true scope and meaning of the fundamental maxim of international law stated by Chief Justice Marshall in the fewest possible words: "The courts of no country execute the penal laws of another." The Antelope, 10 Wheat. 66, 123. In interpreting this maxim, there is danger of being misled by the different shades of meaning allowed to the word "penal" in our language.

In the municipal law of England and America, the words "penal" and "penalty" have⚫ been used in various senses. Strictly and primarily, they denote punishment, whether corporal or pecuniary, imposed and enforced by the state for a crime or offense against its laws. U. S. v. Reisinger, 128 U. S. 398, 402, 9 Sup. Ct. Rep. 99; U. S. v. Chouteau, 102 U. S. 603, 611. But they are also commonly used as including any extraordinary liability to which the law subjects a wrongdoer in favor of the person wronged, not limited to the damages suffered. They are so elastic in meaning as even to be familiarly applied to cases of private contracts, wholly independent of statutes, as when we speak of the "penal sum or "penalty" of a bond. In the words of Chief Justice Marshall: "In general, a sum of money in gross, to be paid for the nonperformance of an agreement, is considered as a penalty, the legal operation of which is to cover the damages which the party in whose favor the stipulation is made may have sustained from the breach of cortract by the opposite party." Tayloe v. SandIford, 7 Wheat. 13, 17.

Penal laws, strictly and properly, are those imposing punishment for an offense committed against the state, and which, by the English and American constitutions, the executive of the state has the power to par don. Statutes giving a private action against the wrongdoer are sometimes spoken of as penal in their nature, but in such cases it has been pointed out that neither the liability imposed nor the remedy given is strictly penal.

The action of an owner of property against the hundred to recover damages caused by a mob was said by Justices Willes and Buller to be "penal against the hundred, but certainly remedial as to the sufferer." Hyde v. Cogan, 2 Doug. 699, 705, 106. A statute giving the right to recover back money lost at gaming and, if the loser does not sue within a certai time, authorizing a qui tam action to b brought by any other person for threefold the amount, has been held to be remedial as to the loser, though penal as regards the suit

some courts have held that the wrong must be one which would be actionable by the law of the place where the redress is sought, as well as by the law of the place where the wrong was done. See, for example, The Halley, L. R. 2 P. C. 193, 204; Phillips v. Eyre, L. R. 6 Q. B. 1, 28, 29; The M. Moxham, 1 Prob. Div. 107, 111; Wooden v. Railroad Co., 126 N. Y. 10, 26 N. E. Rep. 1050; Ash v. Railroad Co., 72 Md. 144, 19 Atl. Rep. C43. But such is not the law of this court. By our law, a private action may be maintained in one state, if not contrary to its own policy, for such a wrong done in another, and actionable there, although a like wrong would not be actionable in the state where the suit is brought. Smith v. Condry, 1 How. 28; The China, 7 Wall. 53, 64; The Scotland, 105 U. S. 24, 29; Dennick v. Railroad Co., 103 U. S. 11; Railway Co. v. Cox, 145 U. S. 593, 12 Sup. Ct. Rep. 905.

Upon the question what are to be considered penal laws of one country, within the international rule which forbids such laws to be enforced in any other country, so much reliance was placed by each party in argument upon the opinion of this court in Wisconsin v. Insurance Co., 127 U. S. 265, 8 Sup. Ct. Rep. 1370, that it will be convenient to quote from that opinion the principal propositions there affirmed:

"The rule that the courts of no country execute the penal laws of another applies, not only to prosecutions and sentences for crimes and misdemeanors, but to all suits in favor of the state for the recovery of pecuniary penalties for any violation of statutes for the protection of its revenue, or other municipal laws, and to all judgments for such penalties." Page 290, 127 U. S., and page 1374, 8 Sup. Ct. Rep.

"The application of the rule to the courts of the several states and of the United States is not affected by the provisions of the constitution and of the act of congress, by which the judgments of the courts of any state are to have such faith and credit given to them in every court within the United States as they have by law or usage in the state in which they were rendered." Page 291, 127 U. S., and page 1375, 8 Sup. Ct. Rep.

"The essential nature and real foundation of a cause of action are not changed by recovering judgment upon it; and the technical rules, which regard the original claim as merged in the judgment, and the judgment as implying a promise by the defendant to pay it, do not preclude a court, to which a judg ment is presented for affirmative action, (while it cannot go behind the judgment for the purpose of examining into the validity of the claim,) from ascertaining whether the claim is really one of such a nature that the court is authorized to enforce it." Pages 292,❘ 293, 127 U. S., and page 1375, 8 Sup. Ct. Rep.

"The statute of Wisconsin, under which the state recovered in one of her own courts

the judgment now and here sued on, was in the strictest sense a penal statute, imposing a penalty upon any insurance company of another state doing business in the state of Wisconsin without having deposited with the proper officer of the state a full statement of its property and business during the previous year. The cause of action was not any private injury, but solely the offense committed against the state by violating her law. The prosecution was in the name of the state, and the whole penalty, when recovered, would accrue to the state." Page 299, 127 U. S., and page 1378, 8 Sup. Ct. Rep.

Such were the grounds upon which it was* adjudged in that case that this court, under the provision of the constitution giving it original jurisdiction of actions between a state and citizens of another state, had no jurisdiction of an action by a state upon a judgment recovered by it in one of its own courts against a citizen or a corporation of another state for a pecuniary penalty for a violation of its municipal law.

Upon similar grounds, the courts of a state cannot be compelled to take jurisdiction of a suit to recover a like penalty for a violation of a law of the United States. Martin v. Hunter, 1 Wheat. 304, 330, 337; U. S. v. Lathrop, 17 Johns. 4, 265; Delafield v. Illinois, 2 Hill, 159, 169; Jackson v. Rose, 2 Va. Cas. 34; Ely v. Peck, 7 Conn. 239; Davison v. Champlin, Id. 244; Haney v. Sharp, 1 Dana, 442; State v. Pike, 15 N. H. 83, 85; Ward v. Jenkins, 10 Metc. (Mass.) 583, 587; 1 Kert, Comm. 402--404. The only ground ever suggested for maintaining such suits in a state court is that the laws of the United States arc, in effect, laws of each state. Claflin v. Housen:an, 93 U. S. 130, 137; Platt, J., in U. S. v. Lathrop, 17 Johns. 22; Ordway v. Bank, 47 Md. 217. But in Claflin v. Houseman the point adjudged was that an assignee under the bankrupt law of the United States could assert in a state court the title vested in him by the assignment in bankruptcy; and Mr. Justice Bradley, who delivered the opinion in that case, said the year before, when sitting in the circuit court, and speaking of a prosecution in a court of the state of Georgia for perjury committed in that state in testifying before a commissioner of the circuit court of the United States: "It would be a manifest incongruity for one sovereignty to punish a person for an offense committed against the laws of another sovereignty." Ex parte Bridges, 2 Woods, 428, 430. See, also, Loney's Case, 134 U. S. 372, 10 Sup. Ct. Rep. 584.

Beyond doubt (except in cases removed from a state court in obedience to an express act of congress, in order to protect rights under the constitution and laws of the United states) a circuit court of the United States cannot entertain jurisdiction of a suit in behalf of the state, or of the people thereof, to recover a penalty imposed by way of punishment for a violation of a statute of the state;

"the courts of the United States," as observed by Mr. Justice Catron, delivering a judgment of this court, "having no power to execute the penal laws of the individual states." Gwin v. Breedlove, 2 How. 29, 36, 37; Gwin v. Barton, 6 How. 7; Iowa v. Chicago, B. & Q. R. Co., 37 Fed. Rep. 497; Ferguson v. Ross, 38 Fed. Rep. 161; Texas v. Day Land & Cattle Co., 41 Fed. Rep. 228; Dey v. Chicago, M. & St. P. Ry. Co., 45 Fed. Rep. 82.

For the purposes of extraterritorial jurisdiction, it may well be that actions by a common informer, called, as Blackstone says, "popular actions,' because they are given to the people in general," to recover a penalty imposed by statute for an offense against the law, and which may be barred by a pardon granted before action brought, may stand on the same ground as suits brought for such a penalty in the name of the state or of its officers, because they are equally brought to enforce the criminal law of the state. 3 Bl. Comm. 161, 162; 2 Bl. Comm. 437, 438; Adams v. Woods, 2 Cranch, 336; Gwin v. Breedlove, above cited; U. S. v. Connor, 138 U. S. 61, 66, 11 Sup. Ct. Rep. 229; Bryant v. Ela, Smith, (N. H.) 396. And personal disabilities imposed by the law of a state, as an Incident or consequence of a judicial sentence or decree, by way of punishment of an offender, and not for the benefit of any other person, such as attainder, or infamy, or incompetency of a convict to testify, or disqualification of the guilty party to a cause of divorce for adultery to marry again,—are doubtless strictly penal, and therefore have no extraterritorial operation. Story, Confl. Law, §§ 91, 92; Dicey, Dom. 162; Folliott v. Ogden, 1 H. Bl. 123, and 3 Term R. 726; Logan v. U. S., 144 U. S. 263, 303, 12 Sup. Ct. Rep. 617; Dickson v. Dickson, 1 Yerg. 110; Ponsford v. Johnson, 2 Blatchf. 51; Com. v. Lane, 113 Mass. 458, 471; Van Voorhis v. Brintnall, 86 N. Y. 18, 28, 29.

The question whether a statute of one state, which in some aspects may be called penal, is a penal law, in the international sense, so that it cannot be enforced in the courts of another state, depends upon the question whether its purpose is to*punish an offense against the public justice of the state, or to afford a private remedy to a person injured by the wrongful act. There could be no better illustration of this than the decision of this court in Dennick v. Railroad Co., 103 U. S. 11.

In that case it was held that, by virtue of a statute of New Jersey making a person or corporation, whose wrongful act, neglect, or default should cause the death of any person, liable to an action by his administrator, for the benefit of his widow and next of kin, to recover damages for the pecuniary injury resulting to them from his death, such an action, where the neglect and the death took place in New Jersey, might, upon general principles of law, be maintained in a circuit

court of the United States held in the state of New York, by an administrator of the deceased, appointed in that state.

Mr. Justice Miller, in delivering judgment, said: "It can scarcely be contended that the act belongs to the class of criminal laws which can only be enforced by the courts of the state where the offense was committed; for it is, though a statutory remedy, a civil action to recover damages for a civil injury. It is, indeed, a right dependent solely on the statute of the state; but when the act is done for which the law says the person shall be liable, and the action by which the remedy is to be enforced is a personal and not a real action, and is of that character which the law recognizes as transitory and not local, we cannot see why the defendant may not be held liable in any court to whose jurisdiction he can be subjected by personal process or by voluntary appearance, as was the case here. It is difficult to understand how the nature of the remedy, or the jurisdiction of the courts to enforce it, is in any manner dependent on the question whether it is a statutory right or a common-law right. Wherever, by either the common law or the stat ute law of a state, a right of action has become fixed, and a legal liability incurred, that liability may be enforced, and the right of action pursued, in any court which has jurisdiction of such matters, and can obtain jurisdiction of the parties." 103 U. S. 17, 18.

That decision is important as establishing two points: (1) The court considered "criminal laws," that is to say, laws punishing crimes, as constituting the whole class of penal laws which cannot be enforced extraterritorially. (2) A statute of a state, manifestly intended to protect life, and to impose a new and extraordinary civil liability upon those causing death, by subjecting them to a private action for the pecuniary damages thereby resulting to the family of the deceased, might be enforced in a circuit court of the United States held in another state, without regard to the question whether a similar liability would have attached for a similar cause in that state. The decision was approved and followed at the last term in Railway Co. v. Cox, 145 U. S. 593, 605, 12 Sup. Ct. Rep. 905, where the chief justice, speaking for the whole court, after alluding to cases recognizing the rule where the laws of both jurisdictions are similar, said: "The question, however, is one of general law, and we regard it as settled in Dennick v. Railroad Co."

That decision has been also followed in the courts of several states. Herrick v. Railway Co., 31 Minn. 11, 16 N. W. Rep. 413; Chicago, etc., R. Co. v. Doyle, 60 Miss. 977; Knight v. Railroad Co., 108 Pa. St. 250; Morris v. Railway Co., 65 Iowa, 727, 23 N. W. Rep. 143; Railway Co. v. Lewis, 24 Neb. 848, 40 N. W. Rep. 401; Higgins v. Railroad Co., 155 Mass. 176, 29 N. E. Rep. 534.

In the case last cited, a statute of Connect

676

fcut having provided that all actions for injuries to the person, including those resulting instantaneously or otherwise in death, should survive, and that for an injury resulting in death from negligence the executor or administrator of the deceased might maintain an action to recover damages not exceeding $5,000, to be distributed among his widow and heirs in certain proportions, it was held that such an action was not a penal action, and might be maintained under that statute in Massachusetts by an administrator, appointed there, of a citizen thereof, who had been instantly killed in Connecticut by the negligence of a railroad corporation; and the general principles applicable to the case were carefully stated as follows: "These principles require that, in cases of other than penal actions, the foreign law, if not contrary to our public policy, or to abstract justice or pure morals, or calculated to injure the state or its citizens, shall be recognized and enforced here, if we have jurisdiction of all necessary parties, and if we can see that, consistently with our own forms of procedure and law of trials, we can do substantial justice between the parties. If the foreign law is a penal statute, or if it offends our own policy, or is repugnant to justice or to good morals, or is calculated to injure this state or its citizens, or if we have not jurisdiction of parties who must be brought in to enable us to give a satisfactory remedy, or if, under our forms of procedure, an action here cannot give a substantial remedy, we are at liberty to decline jurisdiction." 155 Mass. 180, 29 N. E. Rep. 535.

The provision of the statute of New York now in question, making the officers of a corporation, who sign and record a false certificate of the amount of its capital stock, liable for all its debts, is in no sense a criminal or quasi criminal law. The statute, while it enables persons complying with its provisions to do business as a corporation, without being subject to the liability of general partners, takes pains to secure and maintain a proper corporate fund for the payment of the corporate debts. With this aim, it makes the stockholders individually liable for the debts of the corporation until the capital stock is paid in, and a certificate of the payment made by the officers, and makes the officers liable for any false and material representation in that certificate. The individual liability of the stockholders takes the place of a corporate fund, until that fund has been duly created; and the individual liability of the officers takes the place of the fund, in case their statement that it has been duly created is false. If the officers do not truly state and record the facts which exempt them from liability, they are made liable directly to every creditor of the company, who by reason of their wrongful acts has not the security, for the payment of his debt out of the corporate property, on which he had a right to rely. As the statute imposes a

burdensome liability on the officers for their wrongful act, it may well be considered penal, in the sense that it should be strictly construed. But as it gives a civil remedy, at the private suit of the creditor only, and measured by the amount of his debt, it is as to him clearly remedial. To maintain such a suit is not to administer a punishment imposed upon an offender against the state, but simply to enforce a private right secured under its laws to an individual. We can see no just ground, on principle, for holding such a statute to be a penal law, in the sense that it cannot be enforced in a foreign state or country.

The decisions of the court of appeals of New York, so far as they have been brought to our notice, fall short of holding that the liability imposed upon the officers of the corporation by such statutes is a punishment or penalty which cannot be enforced in another state.

In Garrison v. Howe, the court held that the statute was so far penal that it must be construed strictly, and therefore the officers could not be charged with a debt of the corporation, which was neither contracted nor existing during a default in making the report required by the statute; and Chief Justice Denio, in delivering judgment, said: "If the statute were simply a remedial one, it might be said that the plaintiff's case was within its equity; for the general object of the law doubtless was, beside enforcing the duty of making reports for the benefit of all concerned, to enable parties proposing to deal with the corporation to see whether they could safely do so." "But the provision is highly penal, and the rules of law do not permit us to extend it by construction to cases not fairly within the language." 17 N. Y. 458, 465, 466.

In Jones v. Barlow, it was accordingly held that officers were only liable for debts actually due, and for which a present right of action exists against the corporation; and the court said: "Although the obligation is wholly statutory, and adjudged to be a penalty, it is in substance, as it is in form, a remedy for the collection of the corporate debts. The act is penal as against the defaulting trustees, but is remedial in favor of creditors. The liability of defaulting trustees is measured by the obligation of the company, and a discharge of the obligations of the company, or a release of the debt, bars the action against the trustees." 62 N. Y. 202, 205, 206.

The other cases in that court, cited in the court of appeals of Maryland in the present case, adjudged only the following points: Within the meaning of a statute of limitations applicable to private actions only, thes action against an officer is not "upon a lia bility created by statute, other than a penalty or forfeiture," which would be barred in six years, but is barred in three years as “an action upon a statute for a penalty or forfeiture where action is given to the party ag