offender must suffer, as well as himself, will help to restrain a man, not only by the sense of his duty, and dread of personal punishment, but also by his passions and natural affections; and will interest every dependent and relation, he has, to keep him from offending.1 But this view of the subject is wholly unsatisfactory. It looks only to the offender himself, and is regardless of his innocent posterity. It really operates, as a posthumous punishment upon them; and compels them to bear, not only the disgrace naturally attendant upon such flagitious crimes; but takes from them the common rights and privileges enjoyed by all other citizens, where they are wholly innocent, and however remote they may be in the lineage from the first offender. It surely is enough for society to take the life of the offender, as a just punishment of his crime, without taking from his offspring and relatives that property, which may be the only means of saving them from poverty and ruin. It is bad policy too; for it cuts off all the attachments, which these unfortunate victims might otherwise feel for their own government, and prepares them to engage in any other service, by which their supposed injuries may be redressed, or their hereditary hatred gratified. Upon these and similar grounds, it may be presumed, that the clause was first introduced into the original draft of the constitution; and, after some amendments, it was adopted without any apparent resistance. By the laws since passed by congress, it is declared, that no conviction or judgment, for any capital or other offences, shall work corruption of blood, or any

1 4 Black. Comm. 382. See also Yorke on Forfeitures.

2 See Rawle on Const. ch. 11, p. 145, 146.

3 Journal of Convention, 221, 269, 270, 271.

forfeiture of estate.1 The history of other countries abundantly proves, that one of the strong incentives to prosecute offences, as treason, has been the chance of sharing in the plunder of the victims. Rapacity has been thus stimulated to exert itself in the service of the most corrupt tyranny; and tyranny has been thus furnished with new opportunities of indulging its malignity and revenge; of gratifying its envy of the rich, and good; and of increasing its means to reward favourites, and secure retainers for the worst deeds.2

§ 1296. The power of punishing the crime of treason against the United States is exclusive in congress; and the trial of the offence belongs exclusively to the tribunals appointed by them. A state cannot take cognizance, or punish the offence; whatever it may do in relation to the offence of treason, committed exclusively against itself, if indeed any case can, under the constitution, exist, which is not at the same time treason against the United States.

1 Act of 1790, ch. 36, § 24.

2 See 1 Tuck. Black. Comm. App. 275, 276; Rawle on Const. ch. 11, p. 143 to 145.

3 See The People v. Lynch, 11 Johns. R. 553; Rawle on Const. ch. 11, p. 140, 142, 143; Id. ch. 21, p. 207; Sergeant on Const. ch. 30, [ch. 32.]

CHAPTER XXIX.

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 proceed"ings 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." 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. 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

1 Art. 4.

2 The Federalist, No. 42.

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 amended, passed without any division.1

§ 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.2

1 Journal of Convention, p. 228, 305, 320, 321.

2 See Starkie on Evid. P. 2, § 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, 3 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, &c.; Vandervoorst v. Smith, 3 Caine's R. 155; Delafield v. Hurd, 3 Johns. R. 310. See also Pardessus Cours de Droit. Commer. P. 6. tit. 7, ch. 2, par

tout.

§ 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.1

§ 1301. The general rule of the common law, recognised both in England and America, is, that foreign judgments are prima 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, though its correctness has been recently questioned, upon principle and authority, with much acuteness.3

§ 1302. Before the revolution, the colonies were deemed foreign to each other, as the British colonies

1 See authorities in preceding note, and Walker v. Whittier, 1 Doug. R. 1; Phillips v. Hunter, 2 H. Bl. 409; Johnson's Dig. of New-York Rep. Evid. V; Starkie on Evidence, P. 2, § 67, p. 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.

2 See authorities in preceding notes; and Starkic on Evid. P. 2, § 67; p. 206 to 216, and Notes of American Ed. ibid.; Plummer v. Woodbourne, 4 Barn. Cresw. 625.

3 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.