amendments, it was adopted without any apparent resistance.1 By the laws since passed by Congress, it is declared, that no conviction or judgment, for any capital or other offences, shall work corruption of blood, or any forfeiture of estate. (a) The history of other countries abundantly proves, that one of the strong incentives to prosecute offences, as treason, has been the chance of sharing in the plunder of the victims. Rapacity has been thus stimulated to exert itself in the service of the most corrupt tyranny; and tyranny has been thus furnished with new opportunities of indulging its malignity and revenge; of gratifying its envy of the rich and good; and of increasing its means to reward favorites, and secure retainers for the worst deeds.3

§ 1301. The power of punishing the crime of treason against the United States is exclusive in Congress; and the trial of the offence belongs exclusively to the tribunals appointed by them. A State cannot take cognizance, or punish the offence; whatever it may do in relation to the offence of treason, committed exclusively against itself, if, indeed, any case can, under the Constitution, exist, which is not at the same time treason against the United States. 4

1 Journal of Convention, 221, 269, 270, 271.

2 Act of 1790, ch. 36, § 24.

8 See 1 Tuck. Black. Comm. App. 275, 276; Rawle on Const. ch. 11, pp. 143 to 145.

4 See The People v. Lynch, 11 Johns R. 553; Rawle on Const. ch. 11, pp. 140, 142, 143; Id. ch. 21, p. 207; Sergeant on Const. ch. 30 [ch. 32].

(a) But on the breaking out of the civil war in 1861 new acts were passed for the punishment of treason, and for the confiscation of the property of rebels. The punishment of treason may now at the discretion of the court be fine and imprisonment. Act of July 17, 1862, 12 Stat. at Large, 589. A question having

been made whether the fee in the real estate of rebels might not be confiscated, it was expressly provided in the confisca tion acts that no punishment or proceedings should be construed to work a forfeiture of the real estate of the offender, longer than his natural life. See Bigelow v. Forrest, 9 Wall. 339.

CHAPTER XXIX.

POWER OF CONGRESS AS TO PROOF OF STATE RECORDS AND
PROCEEDINGS.

§ 1302. 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 proceedings of every other State. And the Congress may by general laws prescribe the manner in which such acts, records, and proceedings shall be proved, and the effect thereof." (a)

§ 1303. The articles of confederation contained a provision on the same subject. It was, that "full faith and credit shall be given in each of the 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.2 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 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

1 Art. 4.

(a) See Cole v. Cunningham, 133 U. S. 107; Bonaparte v. Baltimore, 104 U. S.

2 The Federalist, No. 42.

592; Board of Public Works v. Columbia College, 17 Wall. 521.

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

§ 1304. 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.2

§ 1305. 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 judgments, 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. 3

§ 1306. The general rule of the common law, recognized both

1 Journal of Convention, pp. 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; Talbot v. Seeman, 1 Cranch, 1, 38; Raynham v. Canton, 3 Pick. R. 293; Consequa v. Willings, 1 Peters's Cir. R. 225, 229; Church v. Hubbard, 2 Cranch, 187, 238; Yeaton v. Fry, 5 Cranch, 335, 343; Picton's Case, 24 Howell's State Trials, 494, &c.; Vandervoorst v. Smith, 3 Caines's R. 155; Delafield v. Hurd, 3 Johns. R. 310. See also Pardessus, Cours de Droit Commer. P. 6, tit. 7, ch. 2 partout.

3 See authorities in preceding note, and Walker v. Whittier, 1 Doug. R. 1; Phillips r. 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; Bige. low's Digest, Evid. C., Judgment, D. E. F. H. I. ; Hitchcock v. Aicken, 1 Caines's R.

in England and America, is, that foreign judgments are prima 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, (a) and in America it has been held, upon many occasions,1 (b) though its correctness has been recently questioned, upon principle and authority, with much acuteness.2 § 1307. Before the revolution, the colonies were deemed foreign to each other, as the British colonies are still deemed foreign to the mother country, and, of course, their judgments were decmed foreign judgments within the scope of the foregoing rule.3 It followed, that the judgments of one colony were deemed reexaminable 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 neighboring colonies upon a like footing with domestic judgments, as to their conclusiveness, when the court possessed jurisdiction.1 The

1 See authorities in preceding notes; and Starkie on Evid. P. 2, § 67; pp. 206 to 216, and notes of American ed. Id.; Plummer v. Woodbourne, 4 Barn. & Cressw. 625. 2 Starkie on Evid. P. 2, § 67, pp. 206 to 216; Bigelow's Dig. Evid. C. and cases cited in Kames's Equity, B. 3, ch. 8, p. 375; Story on Confl. of Laws, § 608, and cases cited.

8 Bissell v. Briggs, 9 Mass. R. 462; Commonwealth v. Green, 17 Mass. R. 515, 543. 4 This was done in Massachusetts by the Provincial act of 14 Geo. III., ch. 2, as to judgments of the courts of the neighboring colonies. See Bissell . Briggs, 9 Mass. R. 462, 465; Ancient Colony and Province Laws [ed. 1814], p. 684.

(a) The rule of conclusiveness on the merits is now the settled rule of the courts of England. Bank of Australasia v. Nias, 16 Q. B. 717; Scott v. Pilkington, 2 Best & S. 11 Godard v. Gray, L. R. 6 Q. B. 139; Castrique v. Imrie, L. R. 4 H. L. 414; In re Trufort, 36 Ch. D. 600. Bigelow, Estoppel, 261, 5th ed. But it is also held, in the latest English authority, that fraud may be shown against the foreign judgment though that be to try the facts of the case again. Vadala v. Lawes, 25 Q. B. D. 310, by the Court of Appeal, following Abouloff v. Oppenheimer, 10 Q. B. D. 295, also by the Court of Appeal. But see contra, Castrique v. Behrens, 2 El. & E. 209; Flower v. Lloyd, 10 Ch. D. 327, 333,

by James and Thesiger, L. JJ. Further, see Bigelow, Estoppel, 254, 255, 5th ed.

(b) In Lazier v. Westcott, 26 N. Y. 146, it is said, "The rule may now be regarded as firmly settled in England, that the judgment is conclusive, so far as to preclude a retrial upon the merits. It remains competent for the defendant to show that the foreign court had not jurisdiction of the subject-matter of the writ, or that he was never served with process, or that the judgment was fraudulently obtained. Henderson v. Henderson, 6 Q. B. 288; Ferguson ». Mahon, 11 Ad. & El. 38; Ricardo v. Garcias, 12 Cl. & Fin. 368; Bank of Australasia v. Nias, 16 Q. B. 717." And in support of the same doc

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.1

§ 1308. The clause of the Constitution propounds three distinct objects: first, to declare, that full faith and credit shall be given the records, &c. of every other State; secondly, to prescribe the manner of authenticating them; and thirdly, to prescribe their effect, when so 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.

§ 1309. 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 in

1 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 Congress, 12 Nov. 1777, p. 493; s. c. 1 Secret Journal, p. 366; Hitchcock v. Aicken, 1 Caines's R. 460, 478, 479.

trine are cited Taylor v. Bryden, 8 Johns. 173; Monroe v. Douglas, 4 Sandf. Ch. 126; Silver Lake Bank v. Harding, 5 Ohio, 545; Story, Confl. of Laws, § 607. Further, see Bigelow, Estoppel, ch. 6, 5th ed.

A foreign judgment in rem is conclu sive everywhere. Ennis v. Smith, 14 How. 400; and see Monroe v. Douglas, 4 Sandf. Ch. 126.