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Hitchcock v. Aicken.

gress made in pursuance of it, and may seriously affect the administration of justice in every state. It is, therefore, peculiarly interesting, that it should receive a correct and uniform decision. It has, on former occasions, incidentally occurred in this court, and opinions have been intimated; but it has not received a direct determination, From the best consideration I am able to give it, I am led to the conclusion, that the judgments of the courts of other states in the union are to be viewed in the light of foreign judgments only.

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Independent of the constitution of the United States, and the act of congress alluded to, it is clear that the judgments or decrees of the courts of a neighboring state, when made the ground of an original suit here, would be considered as foreign judgments, and, as such, by the English law and our own, would be received as prima facie evidence of the justice of the plaintiff's demand, but liable to be examined and impeached by the defendant. This would follow from the single consideration that the jurisdiction of each state, with respect to its internal administration of justice, is distinct and independent of every other. It remains therefore, to be seen whether the constitution and act of congress have created a different rule.

In the examination of this subject, it may be proper to notice that the former confederation contained similar provision. By the confederation it was declared, that "full faith and credit should be given in these states to the records, acts, and judicial proceedings of the courts and magistrates of every other state." At an early period, doubts appear to have arisen as to the import of the terms full faith and credit. In the case of Phelps v. Holker, reported in 1 Dall, the supreme court of Pennsylvania decided, that this article of the confederation should not be so construed as to make a judgment, obtained on a foreign attachment in Massachusetts, conclusive in Pennsylvania.

The constitution of the United States, it seems, intended to remove these doubts, and plainly distinguishes between

Hitchcock v. Aicken.

the faith and credit which shall be due to such records, acts, and judicial proceedings, and their legal effect or operation. It first declares, nearly in the terms of the confederation, that "full faith and credit shall be given to the public acts, records, and judicial proceedings of any other state," and then distinctly provides, that "congress may, by general laws, prescribe the manner in which such acts, records, and judicial proceedings shall be proved, and the effect thereof." The full faith and credit, intended by the constitu

tion, *cannot be interpreted to mean their legal [*476] effect, for otherwise, the subsequent provision that congress may prescribe the effect would be senseless and nugatory. The constitution makes a plain distinction between credit and effect; and that distinction, I think, is consistent with that principle of the common law, which ascribes absolute verity to the records and judicial proceedings in our own courts. When a judgment, or recovery in our own courts, is pleaded, it is alleged as a fact, the record of which cannot be denied, and is conclusive of the fact, and it is, accordingly, the subject of a peculiar mode of trial but its legal effect, or operation on the rights of the parties, is still to be considered, and frequently may form a distinct question. The provision in the constitution, relative to the judicial proceedings of the courts of the different states, can extend no farther.

Congress have the power to prescribe the mode of proof, and the effect. By their act of the 26th May, 1790, they have prescribed the mode of proof, but they have not declared the effect, unless the following words of the act be considered in that light: "And the said records and judi cial 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."

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At first view, the framers of this act seem to have intended a regulation beyond the provision contained in the

Hitchcock v. Aicken.

constitution; but if this was their intent, I think they have not accomplished their end. The constitution itself declares that full faith and credit shall be given to such proceedings. This imports absolute verity. It cannot be increased in degree, and congress had not the power to diminish the credit. When therefore, the act declares that such faith and credit shall be given to them as they have by law or usage in the courts of the state from whence they are taken, it can mean no other than full faith and credit. From the nature of the thing, it can mean no more, and without impeaching the absolute verity ascribed to them by the constitution, it cannot mean less. It, therefore, leaves the credit and

the question, as to the legal effect and operation, [*477] precisely where they were, and the power to prescribe the effect remains unexecuted.

It is easy to perceive, that serious difficulties would' occur in attempting to carry this power into execution, and these difficulties have probably, embarrassed, and deterred congress from exercising it. In their act, we find the same terms, "faith and credit," which are used in the constitution, and those only. The constitution, however, makes the distinction, as has been shown, between credit and effect. With this distinction, plainly drawn, I cannot suppose that congress meant to confound it by treating the terms faith and credit, as synonymous with effect. On the contrary, they must be considered as conveying the same sense, both in the constitution and the act; and, of course, that congress have not executed the power of declaring the effect. Until that be done, the legal operation of such judgments must be the same as it was before there existed any legislative provision on the subject. Nothing more than the mode of authentication was, therefore, provided for by the act of congress. When so authenticated, they are entitled to full faith and credit; but they are to be received as evidence merely, by which their contents are undeniably established, and their effect or operation, not being declared, remains as at the common law.

Hitchcock v. Aicken.

I am sensible, that the case of Armstrong v. Carsons, 2 Dall. 302, stands in opposition to this doctrine. That was an action of debt in the circuit court of the United States, for the district of Pennsylvania, brought on a judgment obtained in New Jersey, in which the counsel for the defendant yielded the position that the judgment was conclusive; and the court, without a previous discussion, adopted the idea, on the supposition that the act of congress had declared the effect to be conclusive. The presiding judge, in delivering the opinion of the court, states the act as having expressly declared the effect. In terms, he was evidently inaccurate, and whatever respect may be due to the decisions of that court, its opinion, in this instance, does not appear to me to be correct, nor to have been founded on a deliberate examination of the subject.

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Upon the construction of this article *of the constitution, and the act of congress, I am, therefore, of opinion, that the judgments of other states are to be considered in the light of foreign judgments, and, when made the foundation of a suit in our own courts, are not conclusive, but from courtesy, are to be admitted as presumptive evidence only of a title to recover, according to our own laws. To allow them a greater effect might be attended with much inconvenience, and produce an irregular interference of jurisdiction between different states, and, in some cases, enable them to prescribe the law to each other. The consequences cannot easily be foreseen, and might often lead to injustice and individual oppres sion.

I am of opinion that the verdict be set aside, and a new trial be awarded.

KENT, J. The important question arising in this case is, what is to be the effect in this court, of the judgment in Vermont, according to the constitution and laws of the United States?

The constitution declares that a full faith and credit shall VOL. I.

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Hitchcock v. Aicken.

be given in each state, to the public acts, records, and judicial proceedings of every other state, and that congress may, by general laws, prescribe the manner in which such acts, records, and proceedings shall be proved, and the effect thereof.

This injunction, that they were to receive full faith and credit in every state, made a part also of the articles of confederation; but, under those articles, it seems to have been understood that the question on the effect of such records and judicial proceedings was still left open. In the case of James v. Allen, 1 Dall. 188, in the court of common pleas at Philadelphia, in the year 1786, a question arose on the effect of a discharge under the insolvent law of New Jersey and the construction of this article in the confederation was brought into discussion, and it was contended that a judgment, or other judicial proceedings of another state, was, by this article, rendered unexaminable, and conclusive evidence.

But the court said, that the article would not admit of that construction, and that it was chiefly intended to oblige each state to receive the records of another, as full [*479] evidence of such acts and judicial proceedings.

Again, in the case of Phelps v. Holker, 1 Dall. 261, in the supreme court of Pennsylvania, in April term, 1788, an action of debt was brought upon a judgment in Massachusetts; which judgment was obtained against the defendant by default, and founded on an attachment of a blanket, which was shown to the sheriff as the reputed property of the defendant, and the question was, whether the judgment was conclusive evidence of the debt. It was contended, on one side, that the judgment was, by the articles of confederation, rendered conclusive, and that it made no dif ference in the case that the judgment was obtained by the process of a foreign attachment. The other side insisted that the articles of confederation provide only that, in mat ters of evidence, mutual faith and credit should be given, and especially, that they ought not to be conclusive when

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