Commentaries on the Constitution of the United States (1833)
by Joseph L. Story
Power of Congress as to Proof of State Records and Proceedings
§ 1297. 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 proceeding shall be proved, and the effect thereof.”
§ 1298. The articles of confederation contained a provision on the same subject. It was, that “full faith and credit shall be given in each of these states to the records, acts, and judicial proceedings of the courts and magistrates of every other state.”1 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 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 mended, passed without any division.3
§ 1299. 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.4
§ 1300. 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 judgment, 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.5
§ 1301. The general rule of the common law, recognised both in England and America, is, that foreign judgments are primâ 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; and in America it has been held, upon many occasions,6 though its correctness has been recently questioned, upon principle and authority, with much acuteness.7
§ 1302. 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 deemed foreign judgments within the scope of the foregoing rule.8 It followed, that the judgments of one colony were deemed re-examinable 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 neighbouring colonies upon a like footing with domestic judgments, as to their conclusiveness, when the court possessed jurisdiction.9 The 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.10
§ 1302[a]. The clause of the constitution propounds three distinct objects; first, to declare, that full faith and credit shall be given to the records, etc. 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.
§ 1303. 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 instruments must be presumed to have known, that by the general comity of nations, and the long established rules of the common law, both in England and America, foreign judgments were primâ facie evidence of their own correctness. They might be impugned for their injustice, or irregularity; but they were admitted to be a good ground of action here, and stood firm, until impeached and overthrown by competent evidence, introduced by the adverse party. It is hardly conceivable, that so much solicitude should have been exhibited to introduce, as between confederated states, much less between states united under the same national government, a clause merely affirmative of an established rule of law, and not denied to the humblest, or most distant foreign nation. It was hardly supposable, that the states would deal less favourably with each other on such a subject, where they could not but have a common interest, than with foreigners. A motive of a higher kind must naturally have directed them to the provision. It must have been, “to form a more perfect Union;” and to give to each state a higher security and confidence in the others, by attributing a superior sanctity and conclusiveness to the public acts and judicial proceedings of all. There could be no reasonable objection to such a course. On the other hand, there were many reasons in its favour. The states were united in an indissoluble bond with each other. The commercial and other intercourse with each other would be constant, and infinitely diversified. Credit would be every where given and received; and rights and property would belong to citizens of every state in many other states than that, in which they resided. Under such circumstances it could scarcely consist with the peace of society, or with the interest and security of individuals, with the public or with private good, that questions and titles, once deliberately tried and decided in one state, should be open to litigation again and again, as often as either of the parties, or their privies, should choose to remove from one jurisdiction to another. It would occasion infinite injustice, after such trial and decision, again to open and re-examine all the merits of the case. It might be done at a distance from the original place of the transaction; after the removal or death of witnesses, or the loss of other testimony; after a long lapse of time, and under circumstances wholly unfavourable to a just understanding of the case.
§ 1304. If it should be said, that the judgment might be unjust upon the merits, or erroneous in point in law, the proper answer is, that if true, that would furnish no ground for interference; for the evils of a new trial would be greater, than it would cure. Every such judgment ought to be presumed to be correct, and founded in justice. And what security is there, that the new judgment, upon the re-examination, would be more just, or more conformable to law, than the first? What state has a right to proclaim, that the judgments of its own courts are better founded in law or in justice, than those of any other state? The evils of introducing a general system of re-examination of the judicial proceedings of other states, whose connexions are so intimate, and whose rights are so interwoven with our own, would far outweigh any supposable benefits from an imagined superior justice in a few cases.11 Motives of this sort, founded upon an enlarged confidence, and reciprocal duties, might well be presumed to have entered into the minds of the framers of the confederation, and the constitution. They intended to give, not only faith and credit to the public acts, records, and judicial proceedings of each of the states, such as belonged to those of all foreign nations and tribunals; but to give to them full faith and credit; that is, to attribute to them positive and absolute verity, so that they cannot be contradicted, or the truth of them be denied, any more than in the state, where they originated.12
§ 1305. The next section of the clause 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 primâ 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.
§ 1306. But the clause does not stop here. The words added 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.”13 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 primâ facie evidence.
§ 1307. 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. 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.”14 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 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 every where. If re-examinable there, it is open to the same inquiries in every other state.15 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.16
1. Art. 4.
2. The Federalist, No. 42.
3. Journal of Convention, p. 228, 305, 320, 321.
4. See Starkie on Evid. P. 9. § 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; S.C. 2. Peters’s Cond. R. 370; Talbot v. Seeman, 1 Cranch, 1, 38; S.C. 1 Peters’s Cond. R. 229; Raynham v. Canton, 8 Pick. R. 293; Conseequa v. Willings, 1 Peters’s Cir. R. 225, 229; Church v. Hubbard, 2 Cranch, 187, 238; S. C. 1 Peters’s Cond. R. 385; Yeaton v. Fry, 5 Cranch, 335, 343; S. C. 2 Peters’s Cond. R. 273; Picton’s case, 24, Howell’s State Trials, 494, etc.; Vandervoorst v. Smith, 3 Caine’s R. 155; Delafield v. Hurd, 3 Johns.R. 310. See also Pardessus Cours de Droit. Cornmet. P. 6. tit. 7, ch. 2, partout.
5. See authorities in preceding note, and Walker v. Whittier, 1 Doug. R. 1; Phillips v. Hunter, 2 H. BI. 409; Johnson’s Dig. of New-York Rep. Evid. V; Starkie on Evidence, P. 2, § 67, 206; Id. § 68, p. 214; Bissell v. Briggs, 9 Mass. R. 462; Bigelow’s Dig. Evid. C., Judgment, D. E. F. H. I.; Hitchcock v. Aickin, 1 Caine’s R. 460.
6. See authorities in preceding notes; and Starkie on Evid. P. 2, § 67; p. 206 to 216, and Notes of American Ed. ibid.; Plummer v. Woodbourne, 4 Barn. Cresw. 625.
7. Starkie on Evid. P. 2, § 67. p. 206 to 216; Bigelow’s Dig. Evid. C. and cases cited in Kaims’s Equity, B. 3, ch. 8, p. 375.
8. Bissell v. Briggs, 9 Mass. R. 462; Commonwealth v. Green, 17 Mass. R. 515, 543.
9. This was done in Massachusetts by the Provincial act of 14 Geo. 3, ch. 2, as to judgments of the courts of the neighbouring colonies. See Bissell v. Briggs, 9 Mass. R. 462, 465; Ancient Colony and Province Laws, [ed. 1814,] p. 684.
10. See Kibbe v. Kibbe, 1786, Kirby R. 119; James v. Allen, 1786, 1 Dall. R. 188; Phelps v. HoIker, 1788, 1 Dall. R. 261; 3 Jour. of Cong. 12 Nov. 1777, p. 493; S. C. 1 Secret Journal, p. 366; Hitchcock v. Aicken, 1 Caine’s R. 460, 478, 479.
11. Green v. Sarmiento, 1 Peters’s Cir. R. 74, 78 to 80; Hitchcock v. Aicken, 1 Caine’s R. 462.
12. Green v. Sarmiento, 1 Peters’s Cir. R. 74, 80, 81; Bissell v. Briggs, 9 Mass. R. 462, 467; Commonwealth v. Green, 17 Mass. R. 515, 544, 545.
13. See Bissell v. Briggs, 9 Mass. R. 462, 467; Hitchcock v. Aicken, 1 Caine’s R. 460; Green v. Sarmiento, 1 Peters’s Circt. R. 74; Field v. Gibbs, Id. 155; Commonwealth v. Green, 17 Mass. R. 515, 544, 545.
14. 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 book’s, the records of territorial courts, etc.
15. MiIls v. Duryee, 7 Cranch. R. 481; Hampden v. M’Connell, 3 Wheat. R. 234; 1 Kent’s Comm. Lect. 12, p. 243, 244; Sergeant on Const. ch. 31, [ch. 33.] 16. Bissell v. Briggs, 9 Mass. R. 462, 467; Shumway v. Stillman, 4 Cowen’s R. 292; Borden v. Fitch, 13 Johns. E. 121.