last case an exception as to judgments rendered without personal jurisdiction. The discrimination of the effect judicially ascribed to the Constitution and law of Congress, in being an effect as evidence only, distinguishable from legal determination of the rights and obligations in support of which the judgment might be produced in the forum, was further illustrated by the cases in the Supreme Court of the United States, McEmoyle v. Cohen (1839), 13 Peters, 312,' and Bank of the State of Alabama v. Dalton (1850), 9 Howard,' 522. In these the validity of a statutory limitation of the time for bringing suit in the forum upon judgments obtained in other States was sustained, on the ground that the remedy upon the judgment was entirely dependent upon the local law of the State wherein the action was brought, and in no wise affected either by the law of the State in which it had been obtained, or by the statute of Congress. In D'Arcy v. Ketchum (1850), 11 Howard, 175, the doctrine of the court is repeated, with the rejection of judgments rendered against parties not personally within the jurisdiction, or not appearing by attorney.* 1 1 13 Peters, 324, Op. of the court, by Wayne, J.:-"But the point might have been shortly dismissed with this sage declaration, that there is no direct constitutional inhibition upon the States, nor any clause in the Constitution from which it can be even plausibly inferred, that the States may not legislate upon the remedy in suits upon the judgments of other States, exclusive of all interference with their merits." This intimation that the merits of a legal claim may be unquestioned where the law-giver refuses a remedy, would have been a better illustration for Senator Benjamin's argument, noticed in the first volume, p. 582, than any there adduced by him. 2 9 Howard, 528. Op. of the court, by Catron, J. :- "As to what further 'effect' Congress may give to judgments rendered in one State and sued in another does not belong to this inquiry: we have to deal with the law as we find it, and not with the extent of the power Congress may have to legislate farther in this respect. That the legislation of Congress, so far as it has gone, does not prevent a State from passing acts of limitation to bar suits on judgments rendered in another State, is the settled doctrine of this court," &c. In the Supreme Court of Tennessee, Hunt v. Lyle, Catron, Ch. J., said :-" Congress having declared the force and effect of judgments and decrees in sister States to be the same as in the States where they were rendered, it is our duty to execute this decree rendered in Virginia, just as there it would have been executed, had," &c. * Also Hubbell v. Cowdry (1809), 5 Johns. 132; Jones' admr. v. Hook's admr. (1824), 2 Randolph, Va. 303; Cameron v. Murtz (1827), 4 McCord, 278; but contra, Morton v. Naylor (1833), 1 Hill's S. C. 439. Catron, J., delivering Op. of the court, concludes:-"We cannot bring our minds to doubt that the act of 1790 does not operate on or give additional force to the judgment under consideration." But how, under the decisions, could this be well predicated of the effect of the act, in any case, if the effect given is only effect as evidence? § 618. "A case arises within the meaning of the Constitution whenever any question respecting the Constitution, laws, or treaties of the United States has assumed such a form that the judicial power is capable of acting upon it. That power is capable of acting only when the subject is submitted to it by a party who asserts his rights in the form prescribed by law. It then becomes a case." Now the rights which may thus be asserted and denied in an action, the formal application of remedial justice, must, it would seem, be substantive or primary rights, as distinguished from secondary, remedial, or adjective rights; and the secondary, remedial, or adjective right to produce certain evidence, in support of an action, cannot itself be the subject of an action. If the admitted conclusiveness of the judgment presupposes operation of the Constitution and statute of Congress on the right and obligation which the judgment is adduced to prove, the assertion of that right is a case arising under the Constitution and law of the United States, and within the judicial power of the United States extending to cases under certain laws. But by limiting the "effect" declared by Congress to an effect as evidence, the right and obligation sought to be enforced in the action are left dependent on local or State law, and therefore not within the judicial power of the national government, except as they may be controverted in cases arising between certain persons. If no decision of a State court against a claim founded on a judgment rendered in another State had ever been brought up to the Supreme Court of the United States as a case "arising under the Constitution and laws of the United States," that circumstance might afford a negative argument that the conclusiveness of the judgment under the statute of Congress is regarded as entirely distinct from its legal operation. I have not been able to find any case of this kind in the reports of the Supreme Court.' But by the Supreme Court of Penn 'Osborne v. U. S. Bank, 9 Wheaton, 819; 1 Curtis' Comm. § 1. 21 Starkie's Ev. 1:—“Every system of municipal law consists of substantive and adjective provisions. Substantive, which define primary rights and duties; adjective, which provide means for preventing or remedying the violation of substantive provisions." The cases cited from these reports were all on appeals from the U. S. Circuit or District courts. sylvania it is said, in a recent suit on such a judgment (1856), State of Ohio v. Hinchman, 27 Penn. (3 Carey), 483, "A judg ment of this court adverse to the rights arising out of the federal Constitution and legislation would be reviewable in the Supreme Court of the United States." The numerous other cases, in the State courts, later than Mills v. Duryee, and following it as the leading authority, though with the limitations given in the rule herein before stated (p. 246), do not throw much light on the point under consideration. The weight of judicial opinion seems to support the doctrine that legal operation or effect on the substantive rights of the parties is not involved in the received doctrine of the conclusiveness of judgments under the statute. $619. From the nature of the judicial function there can be no authoritative judicial opinion as to any further effect which Congress may hereafter prescribe." The same doctrine is held in Rogers v. Burns, 27 Penn. (1856) (3 Carey), 527. It had been before laid down by Lewis, J., in the court below. See Baxley v. Linah (1851), 16 Penn. (4 Harris), 243. For the application of the doctrine in these cases, see the note ante, p. 246, n. 3. Besides those already noted, the principal authorities are 15 Johns. 143; 19 ib. 161; 4 Cowen, 292, 523; 8 ib. 311; 5 Wend. 155; 6 ib. 447; 17 Mass. 543; 6 Pick. 244; 13 ib. 53; Metcalf, 333; 9 S. & R. 252; 10 ib. 240; 12 ib. 203; 7 Watts & Serg. 447; 4 Munf. 241; 1 NH. 242; 4 Conn. 380; 3 Hawks, 401; 1 Hammond, 124; 1 Blackf. Ind. 109; 2 Verm. 263; 4 ib. 67; 2 Leigh, 172; 2 Yerger, 376, 484; 8 ib. 142; 1 Green, N. J. 70; 5 Gill & Johns. 507; I Hill's So. C. 439; 18 Geo. 725; 2 McLean, C. C. 511; 2 Woodbury & Minot, 4; 2 Paine's C. C. 507. Similar cases under the Articles of Confederation are 1 Dallas, 188, 261; Kirby, 119. The questions arising under the provision of the Constitution are, with the cases, very elaborately examined in notes to the American editions of Phillips on Evidence, Part II. ch. I. § 6, and in App. to Am. Leading Cases, ed. 1855, note to McEmoyle v. Cohen. Judicial opinion can be expressed only in cases arising out of some power claimed (ante, vol. I., p. 429, n. 3). While the decision of the Supreme Court of the U. S. is admitted to be final as between the parties in such cases, it is, for all the rest of the world, only an element for juristical deduction (ante, vol. 1., p. 526, n. 3). But the action of the other departments of the national government cannot be prospectively limited by any number of such decisions (ante, p. 245, n.). President Lincoln, in his Inaugural, March 4, 1861, has said:-"I do not forget the position assumed by some, that constitutional questions are to be decided by the Supreme Court, nor do I deny that such decisions must be binding in any case upon the parties to a suit, as to the object of that suit, while they are also entitled to very high respect and consideration in all parallel cases by all other departments of the government; and, while it is obviously possible that such decision may be erroneous in any given case, still the evil effect following it being limited to that particular case-with the chance that it may be overruled, and never become a precedent for other cases-can better be borne than could the evils of a different practice. At the same time the candid citizen must confess that, if the VOL. II.-17 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. § 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 judg ments (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. 3 Ante, pp. 230-241. Heydon's Case, 3 Rep. 7. 1 Bl. Com. 87. Sedgwick, and Stat. Const. Law, 235. Story's Comm., § 405. |