in order of authority, would be the legislative action of Congress, if intended as an exercise of the power here granted.'

The act of Congress, of the 26th of May, 1790, is entitled, An act to prescribe the mode in which the public acts, records, and judicial proceedings of each State shall be authenticated, so as to take effect in every other State, the first section of which is as follows: "The acts of the Legislatures of the seve ral States shall be authenticated by having the seal of their respective States affixed thereto. The records and judicial proceedings of the courts of any State shall be proved or admitted in any other court within the United States by the attestation of the clerk, and the seal of the court annexed, if there be a seal, together with a certificate of the judge, chief justice, or presiding magistrate, as the case may be, that the said attestation is in due form. 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."

The act of March 27, 1804, entitled, An act supplementary, &c., i. e., to the above. The first section, providing for the authentication of "all records and exemplifications of office books which are or may be kept in any public office of any State, not appertaining to a court," concludes-" and the said records and exemplifications, authenticated as aforesaid, shall have such faith and credit given to them in every court and office within the United States, as they have by law or usage in the courts or offices of the States from whence the same are or shall be taken." The second section of the same act is as follows: "All the provisions of this act, and the act to which this is a supplement, shall apply as well to the public acts, records,

The question of the relative authority of the three departments of the gov ernment, in deciding on the extent of the powers vested in each by the Constitution, is one of public law which cannot be here examined. It may be admitted that in the ultimate application of law to relations of private persons in cases falling within the judicial power, the judiciary is supreme-without allowing that the legislative and executive will be bound to limit their subsequent action, in reference to other persons, by the rule of public law which should be enunciated by the judiciary in those cases.

I. St. U. S. 122, 2 B. & D. 102.

office books, judicial proceedings, courts, and offices of the respective Territories of the United States, and countries subject to the jurisdiction of the United States, as to the public acts, records, office books, judicial proceedings, courts, and offices of the several States."

§609. But in determining how far Congress has by this legis lation used, or proposed to use, the power which has been granted to "prescribe the effect of," &c., it is necessary first to refer to judicial opinions in cases wherein these statutes have been relied on as determining rights and obligations of private persons.

From a review of the cases wherein the judgment of a court of some one State has been pleaded' in the courts of another State, or in some one of the national courts, it appears to have been settled doctrine, at least since the year 1813, that the record of the judgment of a court of ordinary or general jurisdiction, in a matter of civil controversy, authenticated in the manner prescribed by the statute, is, in all courts within the United States, conclusive evidence of the right and obligation decided by it, and that the merits of the original cause of action will not be investigated in the forum, except as they might be in the State wherein the judgment was rendered, provided the party against whom it is produced was actually, by service of process or by appearance, within the jurisdiction of the court rendering the judgment.

Although the judgments of courts of limited jurisdiction'

1 Pleaded, i. e., either sued on, or relied on as defence.

2 That a conviction for felony does not render a witness incompetent in other States. Commonw. v. Green, 17 Mass. 543; but contra, State v. Chandler, 2 Hawks, 400.

The rule that the acts of courts of limited jurisdiction must be shown to be within their powers (ante, vol. I. p. 501, n. 1), has been held to apply in pleading judgments of such courts from other States. See Thomas v. Robinson, 3 Wend. 269; Sheldon v. Hopkins, 7 Wend. 435; Elliot v. Ray, 2 Bl. Ind. 31. The question, whether the court will take judicial cognizance of the law of a sister State as to the jurisdiction of the inferior court whose judgment is pleaded, or will require proof thereof as of matter of fact, has been variously decided. The same question seems to occur in pleading the judgment of any court of another State. (As it is only the United States courts which take judicial notice of the laws of the several States as domestic laws. Greenleaf on Ev. §§ 489, 490.) See Clark's Ex. v. Day, 2 Leigh, 175, and the argument and cases cited in the notes by Cowen, Hill, and others, to the American editions of Phillips on Evidence, Part II. ch. 5, sec. 4. Perhaps this judicial cognizance of the law determining the existence and authority of the courts, &c., whose records, &c., are to be proved in the

have in many cases been excepted from the benefit of the statute,' the later opinion seems to be, that they are included in the descriptive words of the Constitution, and that, if they be courts of record, the records and judicial proceedings of such courts may be proved under the statute, with the same conclusiveness which may thereby have been given to those of courts of ordinary jurisdiction. And in some cases, where the court has regarded conclusiveness as the effect of the Constitution rather than the statute, they have been held conclusive when proved by common-law methods.

The conclusiveness of judgments coming within the rule has, in the majority of judicial opinions, been considered incidental to that giving full faith and credit to the public acts, &c., which is enjoined by the first clause of the provision. There is a minority, of those supporting that conclusiveness, who hold that conclusiveness to be an effect produced by the statute of Congress, and beyond any consequent upon giving full faith and credit to those acts, &c.'

manner prescribed, is precisely what is meant by giving full faith and credit. In State of Ohio v. Hinchman, 27 Penn. (3 Casey), 483, the court held, that it should, in these cases, notice judicially the laws of the other States, as it notices laws of the forum. It derived this doctrine from the assumption that in these actions the State court is an inferior court in respect to the Supreme Court of the United States, and that as that court would judicially notice the laws of the State in which the judgment originated, so should its inferior, the State court in which the action was brought. See, also, Rogers v. Burns, ib. 527, and Baxley v. Linah, 16 Penn. (4 Harris), 243.

1 King v. Van Gilder, 1 Chipman, 60; Warren v. Flagg, 2 Pick. 448; Witherwax v. Averell, 6 Cowen, 589; Cole v. Driskel, 1 Blackf. Ind. 16; Cone v. Cotton, 2 Id. 82; Kean v. Rice, 12 S. & R. 203.

* Green . Sarmiento, 1 Peters, C. C. 74; Taylor v. Barrow, 10 Foster, 78; Robinson v. Prescott, 4 N. H. 450; Mahurin v. Bickford, 6 N. H. 567; Thomas v. Robinson, 3 Wend. 267; Snyder v. Wise, 10 Barr, 157; Bissell v. Edwards, 5 Day, 363; Starkweather v. Loomis, 2 Ver. 573; Blodget v. Jordan, 6 Id. 580; Scott v. Cleveland, 3 Mon, 62.

3 Thomas v. Robinson, 3 Wend. 269; Silver Lake Bk. v. Harding, 5 Hammond, Oh. 545, S. C. 1 Wright's Oh. 430; Kuhn v. Miller, Id. 127.

It is difficult to distinguish the prevailing doctrine on this point among the opinions which agree as to the conclusiveness of the judgment. But this difference of opinion has been connected with a difference as to the syntactical construction of the last clause of the provision; some reading the grant as one of power to prescribe the effect of the manner of proof of the public acts, &c.; others, as one of power to prescribe the effect of the public acts, &c.; and the first reading seems now generally adopted (Story's Commentaries, §§ 1312, 1313) by the majority of those who maintain the conclusiveness of the judgment. In Commentaries, 1312, Story represents the first reading as adopted exclusively by those who maintain the conclusiveness of the judgment; and the latter, as received only by those who deny it. But this seems to be a mistake. The difference as to the syntax is found among those who deny as well as among those who maintain the

§ 610. The rights and obligations of private persons which may, in one of the States, be determined according to the tenor of a judgment obtained in another State, must be attributed to the operation of either the local law of the forum of jurisdiction or of the national law (quasi-international) contained in the Constitution and the statute of Congress. But, if attributed to the latter, the legal assertion and denial of these rights and obligations will be a case arising under the Constitution and laws of the United States and within the judicial power of the United States irrespectively of the character of the parties.' The conclusiveness of the judgment in these cases has been ascribed either to the Constitution or to the statute of Congress; and whenever the judgment has been held conclusive evidence, the court has at the same time enforced the right and obligation declared by it. Unless, therefore, the conclusiveness of the judgment as evidence is something distinguishable from its operation or efficacy in determining a relation between persons within the forum, the right and obligation enforced must, in the adjudged cases, have been ascribed to national (quasi-international) law, as opposed to local or State law. The leading cases will therefore be here examined with reference to this distinction."

§ 611. In Armstrong v. Carson's Ex. (1794), 2 Dallas, 302, Wilson, J., in U. S. C. C., supported the conclusiveness of the record, deciding that nul tiel record was the only plea allowable. But his opinion does not notice the distinction between effect as evidence and legal operation on the rights of parties.

conclusiveness. Story, ibid, says that it "is not, practically speaking, of much importance which interpretation prevails." If their conclusiveness is to be admitted, it is not of much importance as to judgments susceptible of proof under the present statute, which reading is adopted. But in respect to such as have been proved by other methods (see post, p. 269, n.) and those of some justice's courts, it is important (see ante, p. 246, n. 3); and as to "public acts" (see post, § 621). It is also important in determining the question stated in section 609. See ante, § 368.

2 It will be noticed that the discrimination here attempted becomes important, and even possible, only because in each State of the Union there is a national and a local law, to one or the other of which every legal effect must be ascribed. In England, foreign judgments are by the weight of later authority held conclusive evidence (1 Starkie's Ev. p. 228, 6th Am. Ed). But there the right and obligation which is enforced under the foreign judgment cannot derive its legal existence from any other authority than that which declares such judgment conclusive as evidence; there being but one source for all law prevailing in the forum.

3

Ib. 302:-"Whatever doubts there might be on the words of the Constitution, the act of Congress effectually removes them, declaring in direct terms that

§ 612. In the case of Hitchcock v. Aiken (1803), 1 Caines, the judgment of a court of another State was, by the majority, consisting of Justices Radcliff and Kent and Chief Justice Lewis, held prima facie evidence only. They considered, or at least Radcliff and Kent were of opinion, that the words "effect thereof," in the Constitution, related to the "acts, records, and judicial proceedings," not to the manner of proof therein also spoken of, and that the giving "full faith and credit" to the record of another State, as thereby required, involved only its recognition as a genuine testimonial of the juridical action of a State, without ascribing to it any operation or effect in the forum to maintain any legal right and obligation. They thought Congress had been empowered to give the judgment an effect whereby the right and obligation, existing under it in the State where it had been rendered, should become actualized or realized in the forum; and that the judgment could not be held conclusive without admitting that it had acquired this operation or effect under the statute. But they were of opinion that Congress had, beyond providing for the proof of the record, done no more than was already effected by the first clause of the provision.'

Of the two members of the court who maintained the conclusiveness of the judgment, Thompson, J., agreeing with the majority that the words "effect thereof" related to the "acts," &c., and not to the proof, held that Congress had, under the power granted, given effect to the judgment, and Livingston, J., considered the words "effect thereof" as relating to the manner of proof, and supposed that the operation of such proof in authenticating such "acts," &c., was the only effect within the power of Congress. In maintaining the conclusiveness of the judgment' he attributed it solely to that giving faith and credit

the record shall have the same effect in this court as in the court from which it was taken."

The same court afterwards adhered to the doctrine of this case in Post v. Neafie, 3 Caines, 26; Jackson v. Jackson, 1 Johns. 424; Taylor v. Bryden, 8 Ib. 173; Paulding v. Bird's Ex., 13 Ib. 205.

In this case, Livingston, J., used the term "domestic" to designate the judgments of other States of the U. S., 1 Caines, 468, and to distinguish them from judgments obtained in foreign states. The reader will remember the use of the terms domestic and foreign in ch. xiii, and xx. of this work.