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make choice of language more apt to render a domestic judg-
ment as binding here, as if it had been obtained in one of

ourown courts. What other fignification, so natural or obvi-*#"

ous, can be affixed to the terms “full faith and credit,” as that whentheexistence of these judgments is once established (to ascertain which required no constitutional provision)they shall be received as containing the whole truth and right between the parties, and that the matters, or points fettled by them shall not be drawn into dispute elsewhere. If open to litigation, there is an end of all faith and credit whatever, and the pretenfions of the parties are investigated as if they had not already been difcuffed, and properly adjusted. Now, to give full faith and credit to a record, cannot confift with not believing it ourselves, or permitting others to make averments against it. If the constitution imposes on us the first of these duties, we disregard the injunction the moment we allow others, or permit ourselves to discredit or impeach a domestic judgment. I am at a loss to conceive, how the true import of this article could ever become a fubject of debate, or receive a construction destroying it altogether, and with it, one cement of union betweenthese flates. When we give credence to an instrument we do not barely believe in its being or existence, but, affent to its contents; fo if credit be given to an ambaffador, by the court to which he is sent, the latter do not thereby only admit that he is invested with that charaćter, but that what he fays is true. It is the fame when a witness is credited; it is his relation which is believed; not merely that he appears as a witness. In like manner, if full faith and credit be given to a deposition, it does not only imply, that we admit there is fuch a writing, but that we fully and implicitly rely on its contents. Why fhould a different meaning be adopted when fimilar terms are applied to a judgment # If we take them in the fame fense, and in my estimation, they admit of no other, then, by giving full faith and credit to a judgment, we not only agree that such judgment has been rendered, (which depends altogether on the proof of that faćt) but that we believe it to be just, and that the matter, in dispute, was properly decided. If it be otherwise, so long as we obey a constitution

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Daniel Aicken.


Nov. 1803.

Hitchcock and

Daniel Aicken.

al injunction, we cannot do wrong in regarding it in a light
which the terms of the instrument import, and which
appears to have been the design of those who compos.
edit. - -
At the time of our confederation (for a like article is
found in that first band of union) it was natural, after it had
been agreed, that the “free inhabitants of each state should
“be entitled to all the immunities of free citizens in the 0.
ther states,” to engraft a provision on this subject, and co-
fidering the general conformity between the laws and judi.
cial proceedings of the different states, it would not have
comported with courtefy, mutual confidence, or goodfense,
to pay no more refpect to domestic adjudications, than to
those of foreign nations, of whose laws we were ignorint,
and whose modes of proceeding did not accord with those
with which we had been familiar, and which wehadbtenac-
customed to regard as the best, for the attainment of justics
Little doubt, therefore, can remain, as to the intention of
those who confented to this article of the constitution.
Butifthelanguageof thisarticlebe of doubtful ignification,
some have fupposed every ambiguity removed by the act of
congress which passed the 26th May 1790. After prescrib.
ing the mode in which the records and judicial proceeding
of one state, shall be authenticated, so as to be admitted as
proved by the court of another, this act provides: " That
“the said records and judicial proceedings, authenticated."
“aforesaid, shall have fuch faith and credit given to them in
“every court within the United States, as they have bylaw
“or usage, in the courts of the state from whence theid
“records are taken.”
This law was paired in virtue of powers given to congreč
by the 4th article of the constitution, and if they rel;
poffeffed the right of declaring the effect of domestic judg:
ments, and these words apply to that object, they are in".
ligible and effectual. If understood in that light, we *

1 Vol. L. U.
p 115. Fol-;

weils' edition.

compelled to esteem a judgment rendered in Vermont, wit" |

properly authenticated, as binding and final, as it would be regarded by the court from which the exemplification comes ; and as there is no proof of its not being condu"

there, we must prefume it to be fo, and, of course, it must *:::

be equally fo here. But my opinion is drawn from the con- \-->~ {titution, and is altogether independent of this act; for, it is He': and not clear, that congress had any thing to do with the effeót Daniel'Aitken. of domestic judgments. It is extraordinary, to say the least, that after the conftitution had declared, that “full faith and credit” were to be given them, it should be left with congress to vary their operation, if they thought proper. The effect could as eafily be settled by the conftitution, as referred to congress. I am, therefore, inclined to think, that the “#ff,” spoken of in the 4th article, refers to the proof to be prefcribed by congrefs, that being its immediate antece. dent. They were first to say how these judgments were to be proved, and then declare the effect of fuch proof, and perhaps this is the true intent of the act, which substantially fays, that fuch proof (after prescribing its nature) shall be as good evidence abroad, of the existence of the judgment, as the record itself is at home. Instead, then, of expecting congress to fettle the effect of domestic judgments, we must not look further than the constitution itself, which will be found fufficiently explicit. I am not apprized, that a serious difficulty has ever been entertained by the courts of the United States, respecting the true meaning of this article. In the circuit court of the United States, for the district of Pennfylvania, when Judge Wilson presided, the point we are now discuffing, was confidered as a clear one.

An action of debt had been brought on a judgment ren- 2 Dall. 3c2, dered in New-Jersey, in which the plea was nil debet. The plaintiffs infifted, that this plea was inadmiffible, and that “nul tiel record,” being the only plea which the courts of New-Jersey would fustain if the action had been brought there, (by which the existence of the judgment is denied) was the only proper plea in Pennsylvania. . .

It is stated in the report, that Ingerfoll, who was concerned for the defendant, declined, arguing the point, thinking it clearly against him.

Wilson, in delivering the opinion of the court, says, “There can be no difficulty in this cafe. If the plea would "be bad in the courts of New-Jersey, it is bad here; for,


NEw-YQRK,' whatever doubts there might be, on the words of the com:

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“ftitution, the act of congress effectually removes them;
“declaring in direct terms, that the record fhall have the
“fame ‘fect in this court, as in the court from which it was
“taken. In the courts of New-Jersey, no fuch plea would
“be fustained, and, therefore, it is inadmiffible in any court
“fitting in Pennsylvania.” -
This decifion, of a court of the United States, although
not of the last refort, is entitled to a respectful confider-
I am aware that, in fome instances, mischief may refilt
from making this rule universal, or from too rigidanadher-
ence to it; particularly when the proceedings are by foreign
attachment, or without a personal fummons or arrest of the
defendant. Sitting here “Jus dicere et non jus dare," it
would be a fufficient answer to all complaints of this kind
to say, “Ita lex feripta est”; or, perhaps we poffers the
power, and I think we do, in extraordinary cafes, and where
it is manifest the proceedings have been exparte,of confider-
ing them as exceptions to the general law, and as not con-
templated by the constitution. This would be a better
course than to render null and void one of its most important
and falutary provisions. A cafe of this kind occurred in Penn.
sylvania, where an action was brought on a judgmentin
Maffachusetts, obtained in a foreign attachment, whereonth:
sheriff had seized a blanket as the defendants's reputed pro-
perty. The fupreme court of that state determined, north"
domestic judgments were not conclusive evidence of debt
generally fpeaking, but, that this being a proceeding in
rem, was not to be extended further than the propert; i.
tached, for by the very words of the Maffachusetts' law,

which was read, it appeared, that judgment and execution, 1.

in a foreign attachment, were confined to the goods attack ed. This cafe happened under the confederation “whole “articles,” says the chief justice, “must not be construed “to work evident mischief and injustice.” This decifion, in which there is much good fenfe, instead of derogating from harmonizes with my conftruction of the constitution. Let: law be ever fo plain, cafes must and will happen which were

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not foreseen, or would have been provided for; and courts *:

must then determine, according to the reason and fpirit of the provifions, whether they include the particular fubject *:: and before them. These are the cafes, which, “lex non exacte Dima'ak". “definit, fed arbitrio boni viri permittit.” Now no violence is done to my understanding of this article in saying, that it does not embrace a judgment which has been rendered against a party to whom no opportunity was afforded of controverting his adversary’s demand, and,who, instead of being defended by himself or by counsel of his own choice, had no other representative than an old blanket, or a log of wood. A sentence thus obtained, in defiance of the maxim “audi alteram partem,” deserves not the name of a judgment: it is rather a filent and neceffary act of the court, not proceeding from an exercife of discretion and reflection, or founded on a confideration of the respective rights of the parties, but the confequence of certain rules which allow a judgment in fome cafes to be entered, whether the defendant has been served with process or not. If, in the cafe which arose in Pennsylvania, the plaintiff, inflead of proceeding against a blanket, had arrested the defendant, who had thereupon interposed a plea, it can hardly be doubted that the court would have held the judgment conclusiveon the ground of reason alone, it ought to prevail as a general rule, that a judgment like this, should be binding and

final throughout the United States. The fear of committing

injustice, by blindly enforcing it, has too much of refinement in it. It is not fo much because a court abroad has done right, that we lend our aid to carry its decrees into effed, as because it was competent to decide the question and the parties were heard before it. Wantonly to open fuch judgments from an apprehension of doing iniquity, will be attended with great hardship and inconvenience to the fuccessful Party. At an immense expense, and after great labor and dehy, he has had a trial with us, and fucceeded; the most emiment counsel have been employed; witneffes, from different parts of the world, have either attended in person, or been examined on commisfion, and a jury of twelve men have pronounced in his favor, whose verdict has been confirmed by

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