§ 1311. The next clause of the section is, " And the Congress may by general laws prescribe the manner in which such acts, records, and proceedings shall be proved, and the effect thereof." It is obvious, that this clause, so far as it authorizes Congress to prescribe the mode of authentication, is wholly beside the purpose of the preceding. Whatever may be the faith and credit due to the public acts, records, and proceedings of other States, whether prima facie evidence only, or conclusive evidence; still the mode of establishing them in proof is of very great importance, and upon which a diversity of rules exists in different countries. The object of the present provision is to introduce uniformity in the rules of proof (which could alone be done by Congress). It is certainly a great improvement upon the parallel article of the confederation. That left it wholly to the States themselves to require any proof of public acts, records, and proceedings, which they might from time to time deem advisable; and where no rule was prescribed, the subject was open to the decision of the judicial tribunals, according to their own views of the local usage and jurisprudence. Many embarrassments must necessarily have grown out of such a state of things. The provision, therefore, comes recommended by every consideration of wisdom and convenience, of public peace and private security. § 1312. But the clause does not stop here. The words added 551. Others hold that it is precluded. Field v. Gibbs, 1 Pet. C. C. 156; Green v. Sarmiento, Id. 76; Lincoln v. Tower, 2 McLean, 473; Westerwelt v. Lewis, Id. 511; Todd v. Crumb, 5 McLean, 172; Pearce v. Olney, 20 Conn. 544; Hoxie v. Wright, 2 Vt. 263; Newcomb v. Peck, 17 Vt. 302; Willcox v. Cassick, 2 Mich. 165; Bimeler v. Dawson, 4 Scam. 536; Welch v. Sykes, 3 Gil. 197; Roberts v. Caldwell, 5 Dana, 512. In the recent case of Cheever v. Wilson, 9 Wall. 108, this point was brought to the attention of the court, but not passed upon. The case arose in the District of Columbia, and involved the validity of a decree of divorce which had been granted in Indiana on the application of the wife. The husband had appeared in the case, but it was insisted that the wife had only a colorable and fraudulent residence in the State, and consequently the Indiana court had no jurisdiction. The court say, p. 123: "That she did reside in the county where the petition was filed is expressly found by the decree. Whether this finding is conclusive or only primâ facie sufficient, is a point on which the authorities are not in harmony. We do not deem it necessary to express any opinion upon the point. The testimony is clearly sufficient until overcome by adverse testimony. None adequate to that result is found in the record. Giving to what there is the fullest effect it only raises a suspicion that the animus manendi may have been wanting." The conclusiveness of a judgment, however, does not preclude other States legislating on the subject of the remedy that may be had upon such judgment when it is sought to be enforced therein. McElmoyle v. Cohen, 13 Pet. 312.] are," and the effect thereof." Upon the proper interpretation of these words some diversity of opinion has been judicially expressed. Some learned judges have thought, that the word "thereof" had reference to the proof, or authentication; so as to read, "and to prescribe the effect of such proof, or authentication." Others have thought, that it referred to the antecedent words, "acts, records, and proceedings;" so as to read, "and to prescribe the effect of such acts, records, and proceedings." Those, who were of opinion, that the preceding section of the clause made judgments in one State conclusive in all others, naturally adopted the former opinion; for otherwise the power to declare the effect would be wholly senseless; or Congress could possess the power to repeal or vary the full faith and credit given by that section. Those, who were of opinion, that such judgments were not conclusive, but only primâ facie evidence, as naturally embraced the other opinion; and supposed, that until Congress should, by law, declare what the effect of such judgment should be, they remained only prima facie evidence. § 1313. The former seems now to be considered the sounder interpretation. But it is not, practically speaking, of much importance, which interpretation prevails; since each admits the competency of Congress to declare the effect of judgments, when duly authenticated; so always, that full faith and credit are given to them; and Congress by their legislation have already carried into operation the objects of the clause. The act of 26th of May, 1790, ch. 39 (ch. 11), after providing for the mode of authenticating the acts, records, and judicial proceedings of the States, has declared," and the said records and judicial proceedings, authenticated as aforesaid, shall have such faith and credit given to them in every court within the United States, as they have by law or usage in the courts of the State from whence the said records are or shall be taken."2 It has been settled upon solemn argument, that this enactment does declare the effect of the records, as evidence, when duly authenticated. It gives them the same faith and credit as they have in the State court from which they are taken. If in 1 See Bissell v. Briggs, 9 Mass. R. 462, 467; Hitchcock v. Aicken, 1 Caines's R. 460; Green v. Sarmiento, 1 Peters's Cir. R. 74; Field v. Gibbs, Id. 155; Commonwealth v. Green, 17 Mass. R. 515, 544, 545. 2 By the act of 27th March, 1804, ch. 56, the provisions of the act of 1790 are enlarged, so as to cover some omissions, such as State office books, the records of territorial courts, &c. such court they have the faith and credit of the highest nature, that is to say, of record evidence, they must have the same faith and credit in every other court. So, that Congress have declared the effect of the records, by declaring, what degree of faith and credit shall be given to them. If a judgment is conclusive in the State, where it is pronounced, it is equally conclusive everywhere. If reëxaminable there, it is open to the same inquiries in every other State. It is, therefore, put upon the same footing as a domestic judgment. But this does not prevent an inquiry into the jurisdiction of the court, in which the original judgment was given to pronounce it; or the right of the State itself to exercise authority over the persons, or the subject-matter. The Constitution did not mean to confer a new power or jurisdiction; but simply to regulate the effect of the acknowledged jurisdiction over persons and things within the territory.2 1 Mills v. Duryee, 7 Cranch, R. 481; Hamden v. M'Connell, 3 Wheat. R. 234; 1 Kent's Comm. Lect. 12, p. 243, 244; Sergeant on Const. ch. 31 [ch. 33]. 2 Bissell v. Briggs, 9 Mass. R. 462, 467; Shumway v. Stillman, 4 Cowen's R. 292; Borden v. Fitch, 15 Johns. R. 121; [1 Story on Confl. of Laws, § 609; McElmoyle v. Cohen, 13 Pet. 312; Wood v. Watkinson, 17 Conn. 500; D'Arcy v. Ketchum, 11 Howard, 165; E. H. B]. CHAPTER XXX. POWERS OF CONGRESS ADMISSION OF NEW STATES, AND ACQUISITION OF TERRITORY. § 1314. THE third section of the fourth article contains two distinct clauses. The first is," New States may be admitted by the Congress into this Union. But no new States shall be formed or erected within the jurisdiction of any other State, nor any State be formed by the junction of two or more States, or parts of States, without the consent of the legislature of the States concerned, as well as of the Congress." § 1315. A clause on this subject was introduced into the original draft of the Constitution, varying in some respects from the present, and especially in requiring the consent of two-thirds of the members present of both houses to the admission of any new State. After various modifications, attempted or carried, the clause substantially in its present form was agreed to by the vote of eight States against three.1 3 § 1316. In the articles of confederation no provision is to be found on this important subject. Canada was to be admitted of right, upon her acceding to the measures of the United States. But no other colony (by which was evidently meant no other British colony) was to be admitted, unless by the consent of nine States.2 The eventual establishment of new States within the limits of the Union seems to have been wholly overlooked by the framers of that instrument. In the progress of the revolution it was not only perceived that, from the acknowledged extent of the territory of several of the States, and its geographical position, it might be expedient to divide it into two States; but a much more interesting question arose, to whom of right belonged the vacant territory appertaining to the crown at the time of the revolution, whether to the States, within whose chartered limits it was situated, or to the Union in its federative capacity. This was a subject 1 Journal of Convention, p. 222, 307, 308, 309, 310, 311, 365, 385. of long and ardent controversy, and (as has been already suggested) threatened to disturb the peace, if not to overthrow the government of the Union. It was upon this ground, that several of the States refused to ratify the articles of confederation, insisting upon the right of the confederacy to a portion of the vacant and unpatented territory included within their chartered limits. Some of the States most interested in the vacant and unpatented western territory at length yielded to the earnest solicitations of Congress on this subject.2 To induce them to make liberal cessions, Congress declared that the ceded territory should be disposed of for the common benefit of the Union, and formed into republican States, with the same rights of sovereignty, freedom, and independence, as the other States; to be of a suitable extent of territory, not less than one hundred, nor more than one hundred and fifty miles square; and that the reasonable expenses incurred by the State, since the commencement of the war, in subduing British posts, or in maintaining and acquiring the territory, should be reimbursed.3 § 1317. Of the power of the general government thus constitutionally to acquire territory under the articles of the confederation, serious doubts were at the time expressed; more serious than, perhaps, upon sober argument, could be justified. It is difficult to conceive, why the common attribute of sovereignty, the power to acquire lands by cession, or by conquest, did not apply to the government of the Union, in common with other sovereignties ; unless the declaration, that every power not expressly delegated was retained by the States, amounted to (which admitted of some doubt) a constitutional prohibition. Upon more than one occasion it has been boldly pronounced to have been founded in usurpation. "It is now no longer," said The Federalist in 1788, "a point of speculation and hope, that the western territory is a mine of vast 1 2 Pitk. Hist. ch. 11, p. 17, 19, 24, 27, 28, 29, to 32; Id. 32 tò 36; 1 Kent's Comm. Lect. 10, p. 197, 198. See also, 1 Secret Journals of Congress in 1775, p. 368 to 386; Id. 433 to 438; Id. 445, 446. 2 1 Tuck. Black. Comm. App. 283, 284, 285, 286; 2 Pitkin's Hist. ch. 11, p. 33 to 36; 1 U. S. Laws (Duane & Bioren's Edition), p. 467, 472; ante, vol. 1, § 227, 228. 3 See 1 Secret Journals of Congress, 6th Sept. 1780, p. 440 to 444; 6 Journal of Congress, 10th Oct. 1780, p. 213; 2 Pitkin's Hist. ch. 11, p. 34, 35, 36; 7 Journal of Congress, 1st March, 1781, p. 43 to 48; Land Laws of U. S., Introductory chapter, 1 U. S. Laws, p. 452 (Duane & Bioren's Edition). 4 See Amer. Insur. Company v. Canter, 1 Peters's Sup. R. 511, 542. |