ternational or quasi-international provisions of the Constitution, reference must be had to the most common juridical use made of them by the States, or their political predecessors, in determining the same class of relations.

Since there was formerly within the same territorial dominion a national municipal law which, in its application to persons, had the effect of private international law within the several colonial jurisdictions into which that dominion was divided, and also an ordinary international law having similar effect between the several colonial polities, though dependent in each upon its own several will,' that municipal law having national extent and authority, and that international law having local extent and authority but a general recognition under the several and independent juridical action of the different colonies or States, must together be taken for the international law formerly prevailing within the dominion of the present United States and enforced by their political predecessors. The use of words which formerly obtained in the application of each of these divisions of that law to persons and things, or circumstances and relations, correspondent with those contemplated in these provisions, would be properly received as indicating the verbal usage common to the parties who established the Constitution, in interpreting these international or quasiinternational provisions. If the terms employed in the Constitution have also had a particular meaning in the local municipal (internal) laws of the several States, it will be controlled by the use they may have had in those legislative and judicial acts which were expository of this international or quasi-international law and usage as received by the possessors of sovereign power who established the Constitution, or by those who were their political predecessors in the same territorial jurisdiction; whether the rule announced by such acts emanated from the central imperial authority and operated as law in the strict sense, or from the different local authorities, and was law in the imperfect sense only, as between the colonial jurisdictions or the succeeding States, because dependent, for

VOL II-16

1 Ante, Ch. vII.

its effect on private persons within each, upon their several will and consent.

Besides, when the actual use of words in the jurisprudence of legislating states has not been sufficiently determinate to indicate legislative intention, the anterior action of the lawgiver in regard to the same subject-matter may be referred to, to interpret laws, treaties, or any act of a legislative character.' The particular meaning of the words of these provisions in the Fourth Article may be sought by comparing the various possible meanings, as known by usage of words, with the known effects of the antecedent juridical action of the constituent parties, or their political predecessors, in reference to persons and things in corresponding circumstances; or, in other words, by comparing the possible effects of these provisions with the effects of the antecedent international law and usage obtaining among the colonies and States in their exercise of a several and correlative jurisdiction, over persons and things, similar to that which the States now have under that distribution of power which is established by other parts of the Constitution."

§ 606. Or, to repeat in substance the same rule of interpretation under a more condensed form, whether these provisions are or are not to be regarded as law in the strict sense and the private municipal (internal) law of the whole country as one nation, and whether the States or private persons are to be regarded as their immediate subjects; yet, to ascertain their effect on the relations of private persons, reference must be had to the anterior juridical action of the constituent parties in the de

Dig. L. I., t. 3, De legibus, etc., 37. Si de interpretatione legis quæratur, in primis inspiciendum est, quo jure civitas retro in ejusmodi casibus usa fuisset; optima enim est legum interpres consuetudo. The custom meant seems to be one which existed before the statute (lex) was enacted. Yet the last sentence is often quoted as meaning that the customary interpretation of a statute is the best, or the correct interpretation: e. g. Sedgwick on Statutory and Constitutional Law, 255. But of what use would such a rule be when a statute is to be interpreted for the first time.

• 2 Such a determination of the meaning of words by the former law is probably distinguished as construction by some of those who make a distinction between interpretation and construction. The same international law and usage will hereinafter be referred to in the construction of these provisions as public law; that is, in ascertaining which of the four views or constructions of these provisions, already mentioned ante, § 602, is to be adopted.

termination of relations arising under the same or parallel circumstances; that is, to the international private law of the colonial period and the periods of the revolution and the confederation, as it existed in the two forms already described, viz. :

1. The municipal law of the whole empire, affecting relations between the inhabitants of its various jurisdictions as constituting the parts of one integral nation.

2. That rule of imperfect authority, more properly called international, which prevailed among these various jurisdictions as they were independent and distinct, under their several acceptance of international law as a rule for political communities, and which rested within each such jurisdiction upon its several local authority, for its legal effect upon private persons; though, also, judicially derived from the general juridical practice of nations, as indicating the rule of natural reason regulating the international allowance of the effects of different municipal laws.'

CHAPTER XXII.

OF THE DOMESTIC INTERNATIONAL PRIVATE LAW OF THE UNITED STATES. THE SUBJECT CONTINUED. OF THE FIRST SECTION OF THE FOURTH ARTICLE OF THE CONSTITUTION.

§ 607. The first of the provisions of the Constitution which are herein before spoken of as having a specific international character is that contained in the first section of the Fourth Article, viz.:

"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 proceedings shall be proved, and the effect thereof.”

If the acts, records, and judicial proceedings here spoken of are manifestations of the juridical power of the States by which rights and obligations in relations incident to conditions of freedom and its contraries are created or proved to exist,' this provision may obviously be of much importance in connection with the subject of this treatise.

§ 608. The first in importance of questions of interpretation, arising under this clause, is the general one of its object, or, more specifically, what is intended by giving "full faith and credit to," &c., and what is that "effect" which the Congress is hereby empowered to prescribe by general laws.

Of the existing juridical opinion which in this inquiry it is proper first to examine,' the first in order of time, if not

As for example in Coleman v. Guardian of negro Ben, 2 Bay, 485. 2 See ante, § 603.

For remarks on the order to be pursued in these inquiries, see ante, § 490. In proportion to its nearness in time to the adoption of the Constitution a statute may have a peculiar authority in interpretation, on the doctrine of contemporaneous exposition, distinct from that authority which it has in being legislative exposition. See Sedgwick on Construction, p. 593; and for cautions in applying the doctrine, see Story's Comm., § 406.

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 several 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.

* L. St. U. S. 122, 2 B. & D. 102.

II. Stat. U. S. 298, 3 B. & D. 621.