Nov. 1803. to enforce it, without examining into the grounds of it, or NEW-YORK, into the conduct of the court or jury, who decided it. These impreffions, instead of being effaced, have acquired Hitchcock and ftrength from pofterior research. Fitch V. Daniel Aicken; By the common law of England, the confideration of foreign judgments need not be stated in the declaration, for Doug. 5. they are received as evidence of debt, liable to be impeached by the defendant, on the ground of injustice, or because of being irregularly, or unduly obtained. When a perfon, having obtained judgment in one court, applies to the tribunal of another state to put it in force, the interpofition of the latter, it is faid, is not ex neceffitate, but only ex comitate, and, therefore, it may enquire into the original merits, to fee, whether there be a good ground for awarding execution; otherwise, it might fanction injuftice. This reafoning is plaufible, and has been adopted, among others, by Lord Kaims in his Principles of Equity, a work, of which no profeffional gentleman should be ignorant. But, with proper deference, I must be allowed to obferve, that this method of treating a foreign judgment, renders it little better than a dead letter. If the whole merits are to be reviewed, the party may as well recur at once to his original cause of action, as to a record which the defendant is at liberty thus to impeach. Where he has appeared, and the matter has been fully liti gated before a foreign tribunal, it would perhaps be a rule lefs liable to exception to admit it, without any examination, as conclufive of every thing within it, between the immediate parties thereto.. The rule, however, in England, and the practise here, are otherwife; nor can I perceive, in any of the cafes, a difference between the effect of a foreign judg ment by default, and one where a defence had been interpofed, although Lord Kaims appears to think a distinction exifts. For, after stating a cafe, in which a court in Scotland refused to carry into effect a judgment rendered by the king's bench, he obferves, that this decree was reverfed by the house of Lords, because, " in England, the decree of a foreign fu"preme court has fuch credence, that judgment is immedi"ately given, without entering into the merits, provided the Principles of "matter has been litigated." Finding no authority for this Equity 373. NEW-YORK, diftinction, found as it is, I am not at liberty, if the judg Nov. 1803. ment before us is to be regarded as a foreign one, to avail Hitchcock and myfelf of it, in deciding this caufe, and to fay, here the matter was litigated, and therefore the judgment is conclusive. Fitch V. Daniel Aicken. It becomes neceffary then to enquire, whether, by the conftitution of the United States, any difference be created in this particular, between judgments rendered out of, and within the United States. The former, for the fake of distinction, we will call foreign, the latter, domeftic judge ment, although this appellation in common parlance be confined to judgments of our own courts. We cannot fuppofe that those who penned the conftitution, were ignorant that a judgment, when the ground of action in its native ftate, if the expreffion be allowed, could not be contested, while others were fubjected to the ftricteft fcrutiny. In the latter defcription, were included, as well judgments recovered extra territorium, as within any one of the United States, which at common law were all on the fame footing. To introduce a diftinction between domeftic and foreign judgments, and to place the former on the moft favoured footing, must have been their intention; otherwife, they would have been filent, or used terms declaratory only of the common law, fo as to render them evidence of debt, but not conclufively fo. It remains to be afcertained whe ther this intention has been well expreffed, or whether the terms used, are fo ambiguous or unintelligible as to render this article of the conftitution fenfelefs and nugatory, which must be the cafe, if the justice of this judgment can be examined by us. When the object of an inftrument admits of no doubt, we should not hastily reject the expreffions as not adequate, or incompetent thereto. Without too much conftraining their meaning, it is our duty, if they will bear the fenfe which they were intended to convey, to understand them accordingly. The firft fection of the fourth article declares, "That full faith and credit fhall be given in each state, to the "public acts, records, and judicial proceedings, of every o"ther state. And congrefs may, by general laws, prescribe "the manner in which fuch acts, records, and proceedings, "fhall be proved, and the effect thereof." It is difficult to Nov, 1803. Fitch V. Daniel Aicken. make choice of language more apt to render a domeftic judg- NEW-YORK, nent as binding here, as if it had been obtained in one of ourown courts. What other fignification, fo natural or obvi- Hitchcock and ous, can be affixed to the terms "full faith and credit," as that when the existence of thefe judgments is once eftablished (to afcertain which required no conftitutional provifion) 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 difpute 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 conftitution impofes on us the firft of thefe duties, we difregard the injunction the moment we allow others, or permit ourselves to difcredit 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 conftruction destroying it altogether, and with it, one cement of union between these states. When we give credence to an inftrument we do not barely believe in its being or exiftence, but, affent to its contents; fo if credit be given to an ambaffador, by the court to which he is fent, the latter do not thereby only admit that he is invested with that character, but that what he fays is true. It is the fame when a witnefs is credited; it is his relation which is believed; not merely that he appears as a witnefs. 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 should a different meaning be adopted when similar terms are applied to a judgment? If we take them in the fame fenfe, and in my eftimation, they admit of no other, then, by giving full faith and credit to a judgment, we not only agree that fuch judgment has been rendered, (which depends altogether on the proof of that fact) but that we believe it to be juft, and that the matter, in difpute, was properly decided. If it be otherwife, fo long as we obey a conftitution Nov. 1803. NEW-YORK, al injunction, we cannot do wrong in regarding it in a light which the terms of the inftrument import, and which appears to have been the defign of those who compofed it. Hitchcock and Daniel Aicken. 1 Vol. L. U. S. P 115. Folwells' edition. 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 o ther states," to engraft a provision on this subject, and confidering the general conformity between the laws and judi cial proceedings of the different states, it would not have comported with courtesy, mutual confidence, or good sense, to pay no more respect to domestic adjudications, than to thofe of foreign nations, of whofe laws we were ignorant, and whofe modes of proceeding did not accord with those with which we had been familiar, and which we had been ac customed to regard as the best, for the attainment of justice, Little doubt, therefore, can remain, as to the intention of those who confented to this article of the conftitution. But if the language of this article be of doubtful fignification, fome have supposed every ambiguity removed by the act of congrefs which paffed the 26th May 1790. After prefcrib ing the mode in which the records and judicial proceedings of one state, shall be authenticated, fo as to be admitted as proved by the court of another, this act provides: "That "the faid records and judicial proceedings, authenticated as ❝ aforesaid, shall have fuch faith and credit given to them in "every court within the United States, as they have by law ❝or ufage, in the courts of the state from whence the faid "records are taken." This law was paffed in virtue of powers given to congrefs, by the 4th article of the conftitution; and if they really poffeffed the right of declaring the effect of domestic judg ments, and thefe words apply to that object, they are intelligible and effectual. If understood in that light, we are compelled to esteem a judgment rendered in Vermont, when 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 conclufive Fitch V. Daniel Aicken. there, we must presume it to be fo, and, of course, it muft NEW-YORK Nov. 1803. be equally fo here. But my opinion is drawn from the conftitution, and is altogether independent of this act; for, it is Hitchcock and not clear, that congrefs had any thing to do with the effect 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 easily be fettled by the constitution, as referred to congrefs. I am, therefore, inclined to think, that the "effect," spoken of in the 4th article, refers to the proof to be prescribed by congrefs, that being its immediate antecedent. They were first to say how thefe 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 prefcribing its nature) fhall be as good evidence abroad, of the existence of the judgment, as the record itself is at home. Instead, then, of expecting congrefs to fettle the effect of domestic judgments, we must not look further than the conftitution 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, refpecting the true meaning of this article. In the circuit court of the United States, for the diftrict of Pennfylvania, when Judge Wilfon prefided, the point we are now difcuffing, was confidered as a clear one. An action of debt had been brought on a judgment rendered in New-Jerfey, 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-Jerfey would fuftain 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 ftated in the report, that Ingerfoll, who was concerned for the defendant, declined, arguing the point, thinking it clearly against him. Wilfon, in delivering the opinion of the court, fays, "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, 2 Dall. 30 |