to the record which was required by the provision itself. But whether either of these judges intended to recognize in this that legal operation which Kent and Radcliff had supposed to be essential to support the doctrine of the conclusiveness of the judgment, or, on the contrary, to distinguish effect, as evidence, from legal operation, is not very clear. In the later cases they seem to have been understood as making this distinction, and not as referring the realization of the right and obligation to the Constitution and statute.

§ 613. So in Bartlett v. Knight (1805), 1 Mass. 401,' such judgment was unanimously held prima facie evidence only. Sedgwick, J., admitted that Congress might, under the provision, have given them an effect which would have made them conclusive evidence; though it does not appear whether, like Radcliff and Kent in Hitchcock v. Aiken, he held that, before admitting it as conclusive, it must be supposed to have received legal operation."

§614. In Roger v. Coleman (1810), Hardin's Ky. R., 415:— Judge Trimble, supporting the conclusiveness of the judgment, seems to limit the effect produced by the provision and the statute to an effect as evidence.'

1

1 In reporter's note on p. 410, it is said that in Noble v. Gold, occurring in Massachusetts several years earlier, it had been held that the judgments of the courts of record in the several States were placed, in all respects, upon the same footing with our domestic judgments."

2 Sedgwick, J., 1 Mass. 409:-"It will appear that as well the effect of records, &c., as their mode of authentication, is by the Constitution within the power of Congress."

In Curtis v. Gibbs (1805), Pennington's R. 399, N. J., Judge Pennington, in an opinion apparently extrajudicial on this point, maintaining the conclusiveness of the judgment, referred the term "effect" to the "acts," &c.; yet said, p. 404, "It will not, I trust, be contended that by the effect is meant a legal coercive power. The effect is to depend on the credit given them," &c.

"The late learned and lamented Judge Trimble," said Baldwin, J., in 4 Peters, 470. The reader will be struck by the words italicised in the citation, as indicating how little the questions respecting slavery had then attracted judicial attention. Hardin, p. 415:-"We cannot, however, give into such a construction of the Constitution of the United States, when using the expressions, 'full faith and credit,' as would assign to the judgment of a sister State no greater credibility nor claim from us any greater faith that the language, precepts, or commands thereof were orthodox, according to the immutable principles of justice, than if it were the sentence of a foreign, heterogeneous government. Such a construction would make that part of the Cons. a mere senseless, dumb article. With a guarantee of a republican form of government as given by that Cons., with one common declaration as to the rights of man in society, with homogeneous sentiments of general jurisprudence, and that similarity of trial and of the evidence admissible on that trial which prevails in the States, all of whom have drawn their notions of justice from the

§ 615. In Green v. Sarmiento (1810), 3 Wash. C. C. R., 17, and S. C. 1 Peters, C. C., 74, and in Field v. Gibbs, ibid. 157, Judge Washington, in the Circuit court, held the record conclusive evidence "not only of the existence of the judgment, but of the right which it has decided." (1 Peters, C. C., 82.) He referred the "effect thereof" to the "acts" (ib. 78, 80); and, from the whole opinion, he seems to have distinguished such effect as something beyond that faith and credit which he thought already fixed by the Constitution itself.' He held that Congress, having power to do so, had intended "to declare the force and effect to be given to the records and judicial proceedings when so authenticated." But the force and effect which he considered hereby given he distinguished to be an effect as evidence, different from legal operation; making the distinction plainer by asserting a power in Congress to go beyond the present Act in declaring the effect of judgments of one State in other States, and to make them directly operative on private persons.

same common source, there can exist no just cause of jealousy against these different tribunals. To give such faith and credit to the records abroad as they would have at home, is certainly giving them full faith and credit. The Cons, of the U. S. can require no more, and the law of Congress on the subject (whether we regard the effect of the authentication by which the credit and faith is to be demanded or the effect of the contents of the record) can mean no more or less."

1 Though he observes, 1 Peters, C. C., 82, that, in the State of its origin, the record is "evidence and conclusive evidence, not only of the existence of the judgment, but of the right which has been decided. If you, then, deny to such judgment the force and effect given to it by the laws" of the State of origin, " you deprive it of the same faith and credit which the same laws attribute to it; and, in truth, the latter expressions, as used in the act of Congress, are synonymous with the former."

2 Answering the objection that if the judgment is to have such effect in the other States that it had in the State of origin "it would create a lien on lands, or that an execution might issue from the court wherein it had been rendered in those other States, or that a scire facias would lie," the Judge observes, p. 82 of the report, "These, if they be evils, are altogether imaginary. The judgment itself has no extra-territorial force, the laws of the State" of its origin "can give it none, nor does it obtain it from the act of Congress. The courts of the other States are enjoined to give it such faith and credit as it is entitled to in the State" of its origin. "If it be conclusive evidence of the rights it establishes in the court of" that State, "it is conclusive here; and this is all that the act of Congress requires. There, however, is no doubt in my mind but that Congress may give to the judgments of one State all the effect which it is complained may follow the rule laid down by the court; and I confess that I can see no good reason why such an effect may not in part be given. Why ought not an execution to issue upon a judgment rendered in one State against the person and effects of the defendant found in any other? It is unnecessary, however, to moot the policy of the measure, which must rest with Congress in its wisdom to adopt, if it should seem right to that body to do so."

§ 616. In Bissell v. Briggs (1813), 9 Mass., 467, the majority held such judgment conclusive evidence in a certain class of cases, though excluding judgments in cases like that in which the judgment sued on was given.' Sewall, J., dissented, adhering to the earlier case, Bartlett v. Knight, and appeared to hold, with Radcliff and Kent, in Hitchcock v. Aiken, that conclusiveness included legal operation and effect, which was not incidental to giving full faith and credit to the record, and had not been prescribed by the statute. Parsons, C. J., giving the opinion of the majority, seems to exclude the idea that, in admitting the conclusiveness of the judgment as evidence, any legal operation or effect on the rights of parties within the forum is implied to have been caused by the Constitution, or the law of Congress. He referred the words "effect thereof" to the manner of proof, and not to the "acts, records, and judicial proceedings." Sedgwick and Thatcher, JJ., who, with Sewall,

This case was decided without reference to the contemporary case, Mills v. Duryee, in the Supreme Court of the United States.

29 Mass., 472, Sewall, J.:-"Does faith and credit, whether full or determined by the laws and usages of the State from whence the record is authenticated, import legal effect and operation? This import, though professedly stated, I believe, to be the true construction, was practically denied in all the cases which occurred where the same words used in the Articles of Confederation were brought in question."

9 Mass., 467. Parsons, C. J., noticing the objection that "the provision in the Federal Constitution has no force until Congress declare the effect of judg ments rendered in any of the United States, and that Congress has made. no such declaration," says: "But this objection is founded on an erroneous construction of the Constitution,-for, by the express words of the Constitution, all the effect is given to judgments rendered in any of the United States which they can have, by securing to them full faith and credit, so that they cannot be contradicted, or the truth of them denied. And the future effect which Congress was to give relates to the authentication, the mode of which is to be prescribed. In this sense Congress understood the subject; for, after providing a mode of authentication, it is enacted that judgments so authenticated shall have the same faith and credit given to them in every State as they have in the State from which they were taken. But neither our own statute [referring to act of Mass., 1795, c. 61], nor the Federal Constitution, nor the act of Congress, had any intention of enlarging, restraining, or in any manner operating upon the jurisdiction of the Legislatures, or of the courts of any of the United States. The jurisdiction remains as it was before; and the public acts, records, and judicial proceedings contemplated, and to which full faith and credit are to be given, are such as were within the jurisdiction of the State whence they shall be taken." And on p. 469, "From this reason it is manifest that judgments rendered in any other of the United States are not, when produced here as the foundation of actions, to be considered as foreign judgments, the merits of which are to be inquired into, as well as the jurisdiction of the courts rendering them. Neither are they to be considered as domestic judgments rendered in our courts of record, because the jurisdiction of the courts rendering them is a subject of inquiry. But such judgments, so far as the court rendering them had jurisdiction, are to have in our courts full faith and

J., had decided Bartlett v. Knight, were not present at the argument or the decision of this case. Parker, J., concurred in the opinion of the Chief Justice.'

§ 617. In Mills v. Duryee (1813), 7 Cranch, 481, Jones, counsel for the party proffering the judgment, is reported to have said, "It is admitted that a record authenticated pursuant to the act of Congress is to have the effect of evidence only; but it is evidence of the highest nature, viz., record evidence." The opinion of the court, delivered by Mr. Justice Story, has since always been referred to as the leading authority; and, though somewhat ambiguous on this point, it seems to have been understood as supporting the doctrine that the judgment can be held absolutely conclusive evidence, and yet be said to have an effect as evidence only, distinguishable from operation of law determining rights and obligations of private persons."

credit. They may, therefore, be declared on as evidences of debt or promises; ⚫ and on the general issue the jurisdiction of the court rendering them is put in issue, but not the merits of the judgments."

'But in some points this does not agree with the opinion of Parker, C. J., in Warren v. Flagg (1825), 2 Pick., 449:-" It is perfectly clear that by this article nothing was settled but that the acts, &c., authenticated as Congress should prescribe, were to be received as conclusive evidence of the doings of the tribunals in which the acts passed. And it is equally clear that the effect of such acts was to be determined by Congress. The act of Congress passed in 1790 prescribes the mode of authentication; but, we should say, except for the decision of the Supreme Court of the United States [Mills v. Duryee], has not determined the effect for it only provides, in the words of the Constitution, for the faith and credit' to be given to acts, &c., so authenticated,―leaving the effect uncertain, as it was by the Constitution."

27 Cranch, 484, Story, J.:-" It is argued that the act provides only for the admission of such records as evidence, but does not declare the effect of such evidence when admitted. This argument cannot be supported. The act declares that the record, duly authenticated, shall have such faith and credit as it had in the State court from whence it is taken. If, in such court, it has the faith and credit of evidence of the highest nature, viz., record evidence, it must have the same faith and credit in every other court. Congress have, therefore, declared the effect of the record, by declaring what faith and credit shall be given to it." And, p. 485," Were the construction contended for by the plaintiff in error to prevail, that judgments of the State courts ought to be considered prima facie evidence only, this clause in the Constitution would be utterly unimportant and illusory. The common law would give such judgments precisely the same effect. It is manifest, however, that the Constitution contemplated a power in Congress to give conclusive effect to such judgments; and we can perceive no rational interpretation of the act of Congress, unless it declares a judgment conclusive when a court of the particular State where it is rendered would pronounce the same decision."

Here, it will be noticed, Judge Story regards the conclusiveness of the judg ment as that effect which Congress was empowered to give, and one not incidental to giving full faith and credit to the judgment when proved. In his Comm., §§ 1312, 1313, Judge Story noticed the variety of judicial opinions as to the

Mr. Justice Johnson, dissenting, opposed the doctrine which allows no plea other than nul tiel record, and urged the objection that judgments rendered without jurisdiction would necessarily, under such a rule of pleading, be held conclusive. But his argument that such judgments should not be held conclusive because contrary to natural justice, seems competent to overthrow, in any case, the doctrine of the conclusiveness of the record, as evidence to determine the merits of the subjectmatter of the judgment.'

Marshall, C. J., affirmed the doctrine of the court in this case in Hampton v. McConnell (1818), 3 Wheaton, 234, and in Mayhew v. Thatcher (1821), 6 Wheaton, 129, intimating in the

66

relative force of the provision itself, and of the statute, arising from differences as to the syntax of the words " and the effect thereof," saying that the opinion which connects them with the proof, or authentication, and which attributes the conclusiveness of the judgment to the first clause of the provision, 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." Then, referring to Mills v. Duryee, &c., he adds:-" 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." The meaning of the concluding sentence is not very obvious. It is, however, quoted by Judge Wayne, in McEmoyle v. Cohens, 13 Peters, 327, as having been " well said."

In Conflict of Laws, § 609, Story says:-" The Constitution did not mean to confer any new power upon the States, but simply to regulate the effect of their acknowledged jurisdiction over persons and things within their territory. It did not make the judgments of other States domestic judgments to all intents and purposes, but only gave a general validity, faith, and credit to them as evi

dence."

17 Cranch, 486, Johnson, J. :-" Now if, in this action, nul tiel record must necessarily be pleaded, it would be difficult to find a method by which the enforcing of such a judgment could be avoided. Instead of promoting, then, the object of the Constitution, by removing all cause for State jealousies, nothing could tend more to enforce them than enforcing such a judgment. There are certain eternal principles of justice which never ought to be dispensed with, and which courts of justice never can dispense with but when compelled by positive statutes. One of those is, that jurisdiction cannot be justly exercised by a State over property not within the reach of its process, or over persons not subjected to their jurisdiction by being found within their limits. But if the States are at liberty to pass the most absurd laws on this subject, and we admit of a course of pleading which puts it out of our power to prevent the execution of judgments obtained under those laws, certainly an effect will be given to that Article in the Constitution in direct hostility with the object of it." "I am unwilling to be precluded, by a technical nicety, from exercising our judgment at all upon such cases."