If, as is held by the smaller number of judicial opinions, the conclusiveness of judgments coming within the received rule is an effect caused by the law of Congress, and not one incidental to giving full faith and credit as required by the Constitution, it seems difficult to say why the power should be held to be limited to prescribing an effect as evidence, and not to extend to giving the judgment operation or legal effect on the relations of private persons.

So it appears that the judges who support the conclusiveness of the judgment on this reading of the provision are generally those who also intimate that Congress may go farther and prescribe a greater effect. On the other hand, the opinion that no greater effect, than effect as evidence, can ever be attributed to the judgment, when proved, seems connected with the doctrine held by the greater number of judges, that the conclusiveness of the judgment is incidental to their receiving full faith and credit as provided by the first clause of the provision. Some judges may have regarded legal operation or effect as involved in the giving full faith and credit; but the terms have been generally considered peculiarly appropriate to designate the reception of the record as evidence, distinct from any effect on the substantive rights of the parties.

§ 620. It is probable that Mr. Madison, who was prominent in giving the provision its present expression, always understood the effect spoken of to be the legal operation of the public acts, &c., and as meaning far more than effect as evidence merely. From his language in the Federalist,' whose au

policy of the government upon the vital questions affecting the whole people is to be irrevocably fixed by the decisions of the Supreme Court, the instant they are made in ordinary litigation between parties in personal actions, the people will have ceased to be their own rulers, having to that extent practically resigned their government into the hands of that eminent tribunal. Nor is there in this view any assault upon the court or the judges. It is a duty from which they may not shrink to decide cases properly brought before them, and it is no fault of theirs if others seek to turn their decisions to political purposes."

The Federalist, No. 42:-"The power of prescribing, by general laws, the manner in which the public acts, records, and judicial proceedings of each State shall be proved, and the effect they shall have in other States, is an evident and valuable improvement on the clause relating to this subject in the Articles of Confederation. The meaning of the latter is extremely indeterminate and can be of little importance under any interpretation which it will bear. The power here established may be rendered a very convenient instrument of justice, and be particularly beneficial on the borders of contiguous States, where the effects liable to

thority, as contemporary exposition, has always been allowed, it is evident that he attributed to this provision a vastly greater importance than could have belonged to the provision in the Articles of Confederation, and supposed that by it some indefinite but highly energetic power had been given to Congress. But the question is, whether the nation which adopted the Constitution took the same view of the new clause.

1

§ 621. In determining the force of written enactments, the words used must be interpreted with reference to the circumstances under which they were promulgated. From these,

too, the reason or motive of the author of the rule is to be known, if it may be known independently of the enactments themselves. Among these circumstances is the pre-existing law and what would have continued to be law in reference to similar objects if the enactment had not been introduced.'

justice may be suddenly and secretly translated, in any stage of the process, within a foreign jurisdiction."

No great importance seems to have been attached to the clause in the Convention. From the observations which have been reported, it is clear that, whatever power in respect to judgments may have been intended, those who spoke on the subject did not mean to give a power of extending the statutes of the States. See remarks of Madison and Randolph, Aug. 29, and of Mason, Wilson, and Randolph, Sept. 3, in the Journal of the Convention (Madison Papers, 5 Elliot Debates). In the Virginia Convention, June 23, 1788, Mr. Mason-"The latter part of this clause, Sir, I confess I do not understand-Full faith and credit to be given to all acts; and how far it may be proper that Congress shall declare the effects, I cannot clearly see into." Mr. Madison-"It appears that this is a clause which is absolutely necessary. I never heard any objection to this clause before, and have not employed a thought on the subject (3 Elliot's Deb. 584). The clause was substituted in Convention, Sept. 3, 1787, for "And the Legislature shall, by general laws, prescribe the manner in which such acts, records, and [judicial] proceedings shall be proved, and the effect which judgments obtained in one State shall have in another" (Journal, Sept. 1). Assuming that legal operation beyond effect as evidence, was here intended, it does not follow that the word was to have the same meaning in the clause which was adopted. Some of those whose observations are reported may have proposed to give Congress power to execute judgments (see in Madison Papers observations of Madison and others, Aug. 29); but the majority may not have intended such a grant of power. If the sense of the Convention was expressed by the reported remarks against a power to extend State laws, it is as fair to infer that, in adopting the present reading in room of that above quoted, the Convention intended to preclude even judgments from receiving legal effect, as it is to conclude that they intended making the legal operation of public acts, records, and judicial proceedings all equally dependent on Congress. (Compare the arguments of Cobb on Slavery, p. 190; and 2 Curtis' Hist. of Const. 449, note.) The dangers to which this kind of interpretation is liable, are well stated in Story's Comm., §§ 406, 407.

1

Story's Comm., §§ 406, 407.

Lieber's Hermeneutics, pp. 121-128.

Ante, pp. 230-241. Heydon's Case, 3 Rep. 7.

and Stat. Const. Law, 235. Story's Comm., § 405.

1 Bl. Com. 87. Sedgwick,

It is superfluous to show that in the absence of this provision every effect which the acts, records, and judicial proceedings of one State, or which the manner of proving them could have in the courts of other States, would have been determined by the common law of the forum, including whatever might be applicable in that body of rules which is judicially known as international private law, until changed by local legislation.'

By this customary law two questions would have to be determined: 1. How such acts, &c., may be authenticated. 2. How far they may operate in the forum to determine rights and obligations of private persons.

Now, since the Constitution speaks of "effect" after having given power to prescribe the manner of proof, it would seem that the effect intended was something different from the authentication, and that it must be operative on the rights and obligations of persons.

But then the circumstance is to be noticed, that the whole grant of power to Congress is preceded by the requisition of faith and credit for these acts, &c., and that a similar requisition was already existing in the Articles of Confederation. It is evident that, if the constitutional provision had, like its prototype, been limited to this requisition, the manner of proving such acts, &c., under the customary law in this respect, might vary greatly in the different States. For, as judicial tribunals are not cognizant of the laws of foreign jurisdictions, the proof of their public acts of every kind must be made under the local customary method of proving matters of fact. There might obviously then occur, in the different States, such a variety of practice in this respect as would amount to an unequal giving of faith and credit.

The manner of proof, and the effect of the manner of proof (which reading seems most general), are instrumentalities

1

Story's Comm. § 1304. In the ordinary phrase, this recognition of foreign judgments is attributed to the comitas gentium. See Ellenborough, in Alves . Bunbury, 4 Camp. 30.

for causing faith and credit. Since, therefore, effect is mentioned, for the first time, when Congress is empowered to prescribe the manner of proof, it seems quite as natural to infer that the whole power given is subordinate to the object of the first clause-the giving faith and credit to the written evidences of the juridical action of the States-as to infer that it was intended to produce an effect greater than any incidental to their receiving full faith and credit.

§ 622. In the corresponding clause in the Articles of Confederation, the acts of "courts and magistrates" of the States are, with their records and judicial proceedings, the subject spoken of.'

2

The constitutional provision relates to "the public acts," &c., of the States themselves. The judgments of its courts are, in a sense, acts of the State itself, but there can be no doubt that the legislative acts of the States are included within the meaning of the term, and the clause has been so understood by Congress and the judiciary. The act of 1790 indicates how the legislative acts of the States shall be authenticated, but no mention is made of any effect which they may have, or of the faith and credit to be given to them. If the conclusiveness of judgments is caused by the law of Congress, the effect implied in such conclusiveness, whatever that may be, cannot be supposed to belong to a State statute under the existing law of Congress. But if, as held in most of the cases,

Art. IV., the last paragraph:- "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."

Before adopting its actual provisions, the framers of the Constitution considered and rejected others relating to the same general objects, and more or less resembling the former in their verbal composition. If these rejected propositions or any rejected terms or phrases may be referred to as indicating the intention of the authors of the actual phraseology, it is because these propositions and phrases show what the framers of the Constitution did not intend to say. The value of the debates in the Convention and in the ratifying State conventions, as showing the usus loquendi of the time and as contemporary exposition of the adopted phraseology, is a distinct thing. But it is not uncommon to find interpretations in which the rejected phraseology is made to control that which was substituted for it. Yet where a more specific term has been rejected for one more general, the former may well be supposed to have been intended within the latter. The clause under consideration was substituted in the Convention, Sept. 1st and 3d, for the 16th of the articles proposed Aug. 6, 1787, which read :- Full faith shall be given in each State to the acts of the Legislatures, and to the records and judicial proceedings of the courts and magistrates, of every other State." See Journal. Madison Papers, 1240, 1448.

the conclusiveness of a judgment, when proved in the manner prescribed, is caused by the constitutional provision and not by the law of Congress, it would seem that a State statute might be held equally conclusive as to any rights and obligations declared by it. No effect or legal operation has, it is believed, ever been claimed for a State statute, when proved in the manner prescribed.' But, from the collocation of acts with records and judicial proceedings in the Constitution, it would seem that Congress might "prescribe" for a State statute whatever effect it is competent for that body to prescribe for a judgment of such State, and that it might be made as conclusive evidence in other States, as judgments are or can be made, in respect to rights and obligations of persons who are bound by it within the State whose act it is. And if Congress can, in reference to judgments, do more than has been done in making them conclusive as evidence, and can give them additional effect and operation in every State, it seems difficult to say why similar operation and effect may not also be given to the statutes of a State, or to such, at least, as determine the rights and obligations of persons in relations which can, in their nature, continue in other jurisdictions."

When, under customary international private law, the

1 In 1 Caines, 481, Judge Kent, arguing against the conclusiveness of the judg ment as evidence, said:" It is pretty evident that the Constitution meant nothing more by full faith and credit, than what respected the evidence of such proceedings, for the words are applied to public acts as well as to judicial matters." Earthman v. Jones, 2 Yerger, 486. Catron, J.:-" Congress has no power conferred, by the Constitution, to subject one State sovereignty to the legislation of another, nor has the exercise of such a power been attempted by the act of 1790.”

The reader may think the consequences of this provision very remotely connected with the subject of this treatise; and, indeed, the writer has been led to devote so much space to its consideration solely by the observations of Mr. Thomas R. R. Cobb, of Georgia, in the first vol., pub. Aug., 1858, of his work on the Law of Negro Slavery, §§ 205-215. Holding, from the dicta in the adjudged cases, that Congress may give an effect to judgments beyond effect as evidence, Mr. Cobb argues that they may give a like effect to the acts of the States, which term, as used in the provision, he also assumes to be equivalent to laws in the general sense. Under this interpretation, Mr. Cobb urges that Congress may give effect or operation to the laws of the several States which determine status in the place of domicil, so far as to maintain those rights of masters, in respect to escaped slaves and slaves brought with them in visiting or passing through the free States, which, in the judgment of Congress and the national judiciary, those States are bound by comity to recognize; having also in the same work endeavored to show that the possession of their slaves by owners in these circumstances, should be recognized in the free States on this principle. The suggestion of this doctrine, though by a private jurist, will show the importance which may hereafter attend on the understanding of this provision.