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juridical action of a foreign state is produced in evidence to determine rights and obligations in any forum, it is entirely immaterial whether such juridical action was exhibited in written law-statutes or codes-or by the customary unwritten law of the foreign state. To suppose that Congress may give the statutes of one of the several States an effect or operation in the other States, which could not be given to its unwritten common law, seems inconsistent or without apparent reason. For rights and obligations which in one State rest on common law alone may exactly correspond with those which in another have been declared by statute, and in most of the States those which are attributed to common law are far more important than any resting on statute.'

But the particular and inferior cannot defeat the general and superior; the exception is not to be made more general than the rule to which it is an exception,' and in answer to such an interpretation it must be urged that such a power in Congress to extend the local law of the several States would be an immeasurable limitation of the two most fundamental and general principles of the Constitution. One of these is, that the States are to be mutually independent in the exercise of those powers which have not been granted to the national government; the other, that powers are granted to Congress specifically, or are specific in respect to certain relations. Such a power in Congress would be manifestly indeterminate, and be an indefinite restriction on the exercise by the States of their reserved powers.

Whatever power may have been intended, it is evident that the law resulting from it will form part of the quasiinternational law of the Union, limiting the States in the exercise of their reserved powers in respect to domestic aliens. But the other sections of this Article have this effect also, and, therefore, like statutes in pari materia, they may be inter

1 As has been noted above, Mr. Cobb assumes that public acts in the provision may include any rule of law.

Sedgwick on Constr. 287. Lieber's Hermeneutics, 168:-"The general and superior prevails over the specific and inferior; no law, therefore, can be construed counter to the fundamental law. If it admits another construction, this must be adopted."

preted by each other. These other sections contain specific limitations of the States in this exercise of these powers, and the expression of these implies the exclusion of an interpretation of this provision, which would authorize a more general inter-limitation at the will of Congress. Expressio unius est exclusio alterius.

It is no a priori assertion to say that such an idea is utterly contrary to the spirit of the Constitution,' and the objection applies against attributing to any written evidence of the juridical action of a State, whether public act, record, or judicial proceeding, any legal operation or effect, in the other States, beyond an effect as evidence.

623. The conclusiveness of judgments, coming within the general rule, as to the merits of a claim in distinction from a simple recognition of their genuineness, has been shown to be supported by a great weight of judicial decision.

Yet, notwithstanding the frequency of occasions for judicial exposition of the doctrine, it has not been very clearly shown, in the opinions, upon what principle of interpretation records of judicial proceedings, in the recognized cases of exception, have been excluded from the operation of the Constitution and the statute.

This exclusion may perhaps be founded upon an argument like the following. The provision is either an international compact as between the States, and, therefore, to be interpreted by rules applicable to the explanation of international compacts, in which case the meaning of the terms used is to be ascertained by a standard common to the contracting parties, or it is like a statutory enactment, and its meaning is referable to language before used by the enacting person, the integral people of the United States. In either case, then, a "judi

'Lieber's Pol. Hermen. 177:-"A primary rule suggested by mere common sense, and yet so frequently abandoned, both in religion and politics, and always the more flagrantly so the more men are obliged by the unsoundness of their view to resort to special pleading, is that we ought not to build arguments of weighty importance on trifling grounds, not to hang burdens of great weight on slight pegs; for instance, an argument of the highest national importance upon the casual position of a word. This rule applies to all and every construction, indeed, but it naturally becomes the more important, the more important the sphere is in which we have to construe."

cial proceeding," within the meaning of the Constitution, or “a judgment," within the intent of the statute, is not merely whatever any one State may call such. There must be a criterion common to the States, as contracting parties, or as constituting one political person. This cannot be any other than that given by "common law" previously having national or quasi-international extent; and by this rule only the decrees of judicial bodies having jurisdiction, as that is understood at common law, can be intended in the Constitution, or be affected by the action of Congress.' So, in excluding judgments in criminal cases, it may be argued that they are incidental to a local system of discipline.'

But, from the language of judges in some cases, it would appear that this exclusion in these instances is attributable to a contrariety between the local law under which the judgment had originally been given and some rule of right comprehended in the local law of the forum of jurisdiction. If this

1 Hitchcock v. Aiken, 1 Caines, 460, Livingston, J.:-" A sentence thus obtained deserves not the name of a judgment." Aldrich v. Kinney, 4 Conn. 384. Roger v. Coleman, Hardin, 416. Thurber v. Blackburne, 1 N. H. 245. Starbuck v. Murray, 5 Wendell, 158, Marcy, J.:-" For what purpose does the defendant question the jurisdiction of the court? Solely to show that its proceedings and judgments are void, and therefore the supposed record is not a record. Unless a court has jurisdiction, it can never make a record which imparts absolute verity to the party over whom it has usurped jurisdiction." See also Earthman v. Jones, 2 Yerger, 484. See analogous reasoning in deciding what acts or statutes may be aided by the law of Congress, where, in 9 Mass. 468, Parsons, C. J., says of another case:-"The court were of opinion that the full faith and credit that were to be given to public acts of the Legislature were confined to acts which a Legislature had lawful authority to pass, and that it was not within the jurisdiction of the Legislature of Massachusetts to license the sale of land in New Hampshire."

1 Greenleaf's Ev. § 376.

Thus, in Bissell v. Briggs, 9 Mass. 472, Judge Sewell dissented, holding that inquiry into the merits was not precluded, and said:-" Other suggestions might be made of cases arising under laws esteemed to have been enacted against public faith, or contra bonos mores; or judgments recovered against positive regulations within the State to which they are brought to be enforced. Such, for instance, would be judgments upon usurious or gaming contracts, illegal and void where made, but which may happen to be recovered where no such restraints are recognized." In Kilburn v. Woodworth, 5 Johns. 40, the court say:"To bind a defendant personally by a judgment when he was never personally summoned, or had notice of the proceeding, would be contrary to the first principles of justice." In Borden v. Fitch, 15 Johns. 143, Thompson, C. J.:-" Although I have a very strong conviction that the Constitution of the United States and law of Congress cannot be applied to a judgment which we consider void upon the first principles of justice, so as to make it conclusive upon it," &c., doubting whether a contrary doctrine was intended by Mills v. Duryee. See also the lan

be the principle, it is difficult to see why its effect should be limited to these instances, and why it will not apply in any cases where the judgment has been pronounced under a law which, in the forum of jurisdiction, is held contrary to natural justice. But this would be nothing else than the doctrine that no judgment is in these cases more than prima facie evidence. It seems not improbable that in cases hereafter arising, wherein great differences of opinion as to the ethical character of the subject-matter of the judgment may be ascribed to the political peoples of the State in which it originates, and that wherein it is produced in evidence, these views may be urged in modification of the rule now received.'

From the language of some decisions it would seem that the judgments which are made conclusive evidence under the statute are discriminated from others by some doctrine of private international law, including the ordinary idea of international comity as something to be administered by the courts of law, intensified and amplified by a patriotic contemplation of the political relations of the States towards each other."

guage of Mr. Justice Johnson, in Mills v. Duryee, ante, p. 254, note, and Judge Parker's citation of it in Hall v. Williams, Pick. 242; also, Gibbon, Ch. J., in Steel v. Smith, 7 Watts & Serg. 450. Some authorities speak in a vague way of impeaching judgments from other States, by showing that they were fraudulently obtained. But these cannot be sustained in connection with the general rule, except as they apply to judgments obtained by a fraudulent simulation of juris-. diction. See McRae v. Mattoon, 13 Pick. 53, and Cowen and Hill's note to Phillips on Ev.

1 Cases of the litigation of rights and obligations arising out of the existence of slavery will readily occur to the reader.

2 In Bissell v. Briggs, 9 Mass. 478, Sewall, J., alluding to this, says: "The comity we are disposed to extend on these occasions will not be reciprocated therefore in all the States. * * In adhering to the common law, we should have a system of rules which will be uniformly administered and which afford a sufficient comity for every purpose of equal and exact justice in cases where the rights of individuals are principally affected." See similar expressions, ib. p. 475; and the allusion to comity in Borden v. Fitch, 15 Johns. 143, by Thompson, Ch. J.

This interpretation of the constitutional provision according to the supposed requirements of comity, is a different thing from ascribing the provision to a spirit of comity, as by Sedgwick, J., in Bartlett v. Knight, 1 Mass. 409:-" As by our union a greater degree of comity is due to the proceedings of our sister States than to those of States which are in every respect foreign, the Constitution has provided," &c. But then these provisions which may have been dictated by comity, are not afterwards to be interpreted according to whatever a judge may sup pose comity to require. In Baxley v. Linah, 4 Harris, 16 Penn. 249, the received doctrine is attributed to "a regard to constitutional law, to judicial uniformity and State harmony." A judge may find the measure of State harmony in constitutional law, but cannot find the measure of constitutional law in what he may consider State harmony. Catron, J., in D'Arcy v. Ketchum, 11 Howard, 175,

In this connection it would be necessary to know whether this comity is, in each State, whatever the local sovereignty may allow to be such, or whether there is some general standard of comity for all the States, and one identified in authority with the quasi-international law.'

§ 624. In determining the force of this provision, an inquiry arises as to the extent of the word State.

It has been seen in the cases cited from the reports of the United States courts, that judgments of State courts have been supposed to have in the courts of the United States the like effect which, by the force of this provision and the acts of Copgress, they can have in the courts of the several States.

But the judgments of United States Circuit and District courts are not supposed to have, either in the State courts or in other United States courts, any effect attributable to this provision."

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A greater difference of opinion has arisen on the question whether the District of Columbia and the Territories of the

seems inclined to do this, saying:-"In construing the act of 1790, the law as it stood when the act was passed must enter into that construction; so that the existing defect in the old law may be seen and its remedy by the act of Congress comprehended. Now, it was most reasonable, on general principles of comity and justice, that among States and their citizens united as ours are, judgments rendered in one should bind citizens of other States, where defendants had been served with process, or voluntarily made defence."

1

1 So Mr. Cobb (ante, p. 262, n.) indicates comity as determining what laws of the several States may be made operative in other States under his interpretation of this provision, and assumes that it is competent for the national judiciary, in the last resort, to determine the extent of its requirements. But if there is anything clear in connection with the doctrine of comity, as ordinarily understood in private international law, it certainly is that, within his own jurisdiction, each possessor of sovereign power determines independently what it is that comity requires.

* Pepoon v. Jenkins, 2 Johns. Cases, 119; Mason's Adm. v. Lawrason, 1 Cranch's C. C. R., 190; Buford v. Hickman, Hempstead's C. C. R., 232. There are cases in which, without particular reference to this provision, it seems to be held that such judgments should be regarded as domestic judgments in the State courts. See Barney v. Patterson's Lessee, 6 Har. & Johns. 182, 202; St. Albans v. Bush, 4 Vern. 58; Rochelle's heirs v. Bowers, 9 Louisiana, 528. Contra, in Baldwin v. Hale, 17 Johns. 272, it is held that a circuit court of the U. S. "is to be regarded as a court of another government. Their records, therefore, as to this purpose, are foreign records." Also, Griswold v. Sedgwick, 1 Wend. 131.

The judgments of the several U. S. Circuit and District courts are, as between each other, regarded as domestic judgments. But their conclusiveness in such case is not attributed to this provision. Reed v. Ross, 1 Bald. C. C. 36; Montford v. Hunt, 3 Wash. C. C. 28. The manner of proving a record prescribed by the law of Congress may, however, be adopted by a United States court as appropriate for such judgments. Tooker v. Thompson, 3 McLean 94; Buford v. Wickman, Hempstead's C. C. R. 232; and see 2 Johns. Cases (2d ed.) 119, note.

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