CHAPTER XXIX.

POWER OF CONGRESS AS TO PROOF OF STATE

RECORDS AND PROCEEDINGS.

§ 1297. THE first section of the fourth article declares: "Full faith and credit shall be given in each "state to the public acts, records, and judicial proceed"ings of every other state. And the congress may by "general laws prescribe the manner, in which such "acts, records, and proceeding shall be proved, and "the effect thereof."

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§1298. The articles of confederation contained a provision on the same subject. It was, that "full faith and credit shall be given in each of these states to the records, acts, and judicial proceedings of the courts and magistrates of every other state." It has been said, that the meaning of this clause is extremely indeterminate; and that it was of but little importance under any interpretation, which it would bear. The latter remark may admit of much question, and is certainly quite too loose and general in its texture. But there can be no difficulty in affirming, that the authority given to congress, under the constitution, to prescribe the form and effect of the proof is a valuable improvement, and confers additional certainty, as to the true nature and import of the clause. The clause, as reported in the first draft of the constitution, was, " that full faith and credit shall be given in each state to the acts of the legislature, and to the records and judicial proceedings of the courts and magistrates of every other state." The amendment was subsequently

1 Art. 4.

2 The Federalist, No. 42.

reported, substantially in the form, in which it now stands, except that the words, in the introductory clause, were, "Full faith and credit ought to be given, (instead of "shall "); and, in the next clause, the legislature shall, (instead of, the congress "may"); and in the concluding clause, " and the effect, which judgments obtained in one state shall have in another," (instead of, "and the effect thereof.") The latter was substituted by the vote of six states against three; the others were adopted without opposition; and the whole clause, as thus amended, passed without any division.1

§ 1299. It is well known, that the laws and acts of foreign nations are not judicially taken notice of in any other nation; and that they must be proved, like any other facts, whenever they come into operation or examination in any forensic controversy. The nature and mode of the proof depend upon the municipal law of the country, where the suit is depending; and there are known to be great diversities in the practice of different nations on this subject. Even in England and America the subject, notwithstanding the numerous judicial decisions, which have from time to time been made, is not without its difficulties and embarrassments.

1 Journal of Convention, p. 228, 305, 320, 321.

2 See Starkie on Evid. P. 2, § 92, p. 251, and note to American ed. P. 4, p. 569; Appleton v. Braybrook, 6 M. & Selw. 34,; Livingston v. Maryland Insurance Company, 6 Cranch, 274; S. C. 2. Peters's Cond. R. 370; Talbot v. Seeman, 1 Cranch, 1, 38; S. C. 1 Peters's Cond. R. 229; Raynham v. Canton, 3 Pick. R. 293; Conseequa v. Willings, 1 Peters's Cir. R. 225, 229; Church v. Hubbard, 2 Cranch, 187, 238; S. C. 1 Peters's Cond. R. 385; Yeaton v. Fry, 5 Cranch, 335, 343; S. C. 2 Pe- ́ ters's Cond. R. 273; Picton's case, 24, Howell's State Trials, 494, &c.; Vandervoorst v. Smith, 3 Caine's R. 155; Delafield v. Hurd, 3 Johns. R. 310. See also Pardessus Cours de Droit. Commer. P. 6. tit. 7, ch. 2, partout.

§ 1300. Independent of the question as to proof, there is another question, as to the effect, which is to be given to foreign judgments, when duly authenticated, in the tribunals of other nations, either as matter to maintain a suit, or to found a defence to a suit. Upon this subject, also, different nations are not entirely agreed in opinion or practice. Most, if not all of them, profess to give some effect to such judgments; but many exceptions are allowed, which either demolish the whole efficiency of the judgment, as such, or leave it open to collateral proofs, which in a great measure impair its validity. To treat suitably of this subject would require a large dissertation, and appropriately belongs to another branch of public law.1

§1301. The general rule of the common law, recognised both in England and America, is, that foreign judgments are primâ facie evidence of the right and matter, which they purport to decide. At least, this may be asserted to be in England the preponderating weight of opinion; and in America it has been held, upon many occasions, though its correctness has been recently questioned, upon principle and authority, with much acuteness.3

§ 1302. Before the revolution, the colonies were deemed foreign to each other, as the British colonies

1 See authorities in preceding note, and Walker v. Whittier, 1 Doug. R. 1; Phillips v. Hunter, 2 H. Bl. 409; Johnson's Dig. of New-York Rep. Evid. V; Starkie on Evidence, P. 2, § 67, p. 206; Id. § 68, p. 214; Bissell v. Briggs, 9 Mass. R. 462; Bigelow's Dig. Evid. C., Judgment, D. E. F. H. I.; Hitchcock v. Aickin, 1 Caine's R. 460.

2 See authorities in preceding notes; and Starkic on Evid. P. 2, § 67; p. 206 to 216, and Notes of American Ed. ibid.; Plummer v. Woodbourne, 4 Barn. Cresw. 625.

3 Starkie on Evid. P. 2, § 67, p. 206 to 216; Bigelow's Dig. Evid. C. and cases cited in Kaims's Equity, B. 3, ch. 8, p. 375.

are still deemed foreign to the mother country, and, of course, their judgments were deemed foreign judgments within the scope of the foregoing rule. It followed, that the judgments of one colony were deemed re-examinable in another, not only as to the jurisdiction of the court, which pronounced them; but also as to the merits of the controversy, to the extent, in which they were then understood to be re-examinable in England. In some of the colonies, however, laws had been passed, which put judgments in the neighbouring colonies upon a like footing with domestic judgments, as to their conclusiveness, when the court possessed jurisdiction. The reasonable construction of the article of the confederation on this subject is, that it was intended to give the same conclusive effect to judgments of all the states, so as to promote uniformity, as well as certainty, in the rule among them. It is probable, that it did not invariably, and perhaps not generally, receive such a construction; and the amendment in the constitution was, without question, designed to cure the defects in the existing provision.3

§ 1302. The clause of the constitution propounds three distinct objects; first, to declare, that full faith and credit shall be given to the records, &c. of every other state; secondly, to prescribe the manner of authenticating them; and thirdly, to prescribe their effect, when so

1 Bissell v. Briggs, 9 Mass. R. 462; Commonwealth v. Green, 17 Mass. R. 515, 543.

2 This was done in Massachusetts by the Provincial act of 14 Geo. 3, ch. 2, as to judgments of the courts of the neighbouring colonies. See Bissell v. Briggs, 9 Mass. R. 462, 465; Ancient Colony and Province Laws, [ed. 1814,] p. 684.

3 See Kibbe v. Kibbe, 1786, Kirby R. 119; James v. Allen, 1786, 1 Dall. R. 188; Phelps v. Holker, 1788, 1 Dall. R. 261; 3 Jour. of Cong. 12 Nov. 1777, p. 493; S. C. 1 Secret Journal, p. 366; Hitchcock v. Aicken, 1 Caine's R. 460, 478, 479.

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authenticated. The first is declared, and established by the constitution itself, and is to receive no aid, nor is it susceptible of any qualification by congress. The other two are expressly subjected to the legislative power.

§ 1303. Let us then examine, what is the true meaning and interpretation of each section of the clause. "Full faith and credit shall be given in each state to "the public acts, records, and judicial proceedings of "every other state." The language is positive, and declaratory, leaving nothing to future legislation. "Full "faith and credit shall be given;" what, then, is meant by full faith and credit? Does it import no more than, that the same faith and credit are to be given to them, which, by the comity of nations, is ordinarily conceded to all foreign judgments? Or is it intended to give them a more conclusive efficiency, approaching to, if not identical with, that of domestic judgments; so that, if the jurisdiction of the court be established, the judgment shall be conclusive, as to the merits? The latter seems to be the true object of the clause; and, indeed, it seems difficult to assign any other adequate motive for the insertion of the clause, both in the confederation and in the constitution. The framers of both instruments must be presumed to have known, that by the general comity of nations, and the long established rules of the common law, both in England and America, foreign judgments were prima facie evidence of their own correctness. They might be impugned for their injustice, or irregularity; but they were admitted to be a good ground of action here, and stood firm, until impeached and overthrown by competent evidence, introduced by the adverse party. It is hardly conceivable, that so much solicitude should have been exhibited to introduce, as