Nov. 1803. Fitch V. « NEW-YORK," whatever doubts there might be, on the words of the con«ftitution, the act of congrefs effectually removes them ; Hitchcock and « declaring in direct terms, that the record fhall have the fame effect in this court, as in the court from which it was "taken. In the courts of New-Jersey, no fuch plea would «be fuftained, and, therefore, it is inadmiffible in any court «fitting in Pennsylvania.” Daniel Aicken. I Dall. 254. This decifion, of a court of the United States, although not of the laft refort, is entitled to a refpectful confideration. I am aware that, in fome inftances, mischief may refult from making this rule univerfal, or from too rigid an adherence to it; particularly when the proceedings are by foreign attachment, or without a perfonal fummons or arrest of the defendant. Sitting here "Jus dicere et non jus dare," it would be a fufficient anfwer to all complaints of this kind to fay, "Ita lex fcripta eft"; or, perhaps we poffefs the power, and I think we do, in extraordinary cafes, and where it is manifeft the proceedings have been ex parte, of confidering them as exceptions to the general law, and as not contemplated by the conftitution. This would be a better courfe than to render null and void one of its most important and falutary provisions. A cafe of this kind occurred in Pennsylvania, where an action was brought on a judgment in Maffachusetts, obtained in a foreign attachment, whereon the fheriff had feized a blanket as the defendants's reputed property. The fupreme court of that ftate determined, not that domeftic judgments were not conclufive evidence of debt, generally speaking, but, that this being a proceeding in rem, was not to be extended further than the property attached, for by the very words of the Maffachusetts' law, which was read, it appeared, that judgment and execution, in a foreign attachment, were confined to the goods attached. This cafe happened under the confederation « whofe "articles," fays the chief juftice, muft not be conftrued "to work evident mischief and injustice." This decifion, in which there is much good fenfe, inftead of derogating from, harmonizes with my conftruction of the conftitution. Let a law be ever fo plain, cafes muft and will happen which were Fitch, V. Daniel Aicken. not foreseen, or would have been provided for; and courts NEW-YORK, Nov. 1803. must then determine, according to the reafon and spirit of the provifions, whether they include the particular fubject Hitchcock and before them. Thefe are the cafes, which, "lex non exacte "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 adverfary's demand, and who, inftead of being defended by himself or by counfel of his own choice, had no other representative than an old blanket, or a log of wood. A fentence thus obtained, in defiance of the maxim "audi alteram partem," deferves not the name of a judgment: it is rather a filent and neceffary act of the court, not proceeding from an exercife of difcretion and reflection, or founded on a confideration of the refpective 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 ferved with procefs or not. If, in the cafe which arofe in Pennsylvania, the plaintiff, inftead of proceeding against a blanket, had arrefted the defendant, who had thereupon interpofed a plea, it can hardly be doubted that the court would have held the judgment conclufive→→ on the ground of reafon alone, it ought to prevail as a general rule, that a judgment like this, fhould be binding and final throughout the United States. The fear of committing injuftice, 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 effect, as because it was competent to decide the question and the parties were heard before it. Wantonly to open fuch judgments from an apprehenfion of doing iniquity, will be attended with great hardship and inconvenience to the fuccefsful party. At an immenfe expenfe, and after great labor and delay, he has had a trial with us, and fucceeded; the moft eminent counsel have been employed; witnesses, from different parts of the world, have either attended in perfon, or been examined on commiffion, and a jury of twelve men have pronounced in his favor, whofe verdict has been confirmed by Nov. 1803. Hitchcock and V. Daniel Aicken. NEW-YORK, the court :-But, before execution, the defendant efcapes to another state, where he is fued on this judgment. It is alleg ed there, that the merits have not been fairly tried, and the judges, giving way to certain qualms left they may commit a wrong in carrying our judgment into effect, try the caufe again. By this time, perhaps, the plaintiff's witneffes are dead, or not to be found: at any rate, the additional cofts, pains, and delay, are intolerable. Thus the inconveniencies of opening domestic judgments, on the suggestion of the party who pretends to be aggrieved, will far outweigh thofe which may be the confequence of a contrary rule, to which it will be eafy to make exceptions as fit cafes occur. As then, this is a judgment neither in rem, which, like fentences in the admiralty, bind only the property and fecure the vendee; nor by default, where the defendant was not fummoned; but is against the perfon; and after a full defence and hearing, the constitution of the United States, and the reasonablenefs of the thing, conftrain me to regard it as conclufive of every matter determined by it, between the parties to the record. I cannot, therefore, liften to any allegation to the contrary, nor confent to another trial, the avowed object of which is, to impeach its verity and justice, and to bring on before us a new difcuffion of the original merits. Radcliff J. The question fubmitted to our decifion is, whether the judgment in Vermont, is to be confidered in the light of foreign judgments, and evidence prima facie only of the plaintiff's demand, or fhall conclude the defendant. If it is to be viewed in the light of foreign judgments only, then a new trial is to be awarded in the prefent action, otherwife, judgment is to be rendered for the plaintiffs. This question arifes on the first fection of the 4th article of the constitution of the United States, and the act of congrefs, made in pursuance of it, and may seriously af fect the administration of justice, in every state. It is, there fore, peculiarly interefting, that it fhould receive a correct and uniform decifion. It has, on former occafions, incidentally occurred in this court, and opinions have been intimated, but it has not received a direct determination. From the best confideration I am able to give it, I am led Nov. 1803. to the conclufion, that the judgments of the courts of other NEW-YORK, states in the union, are to be viewed in the light of foreign judgments only. Independent of the conftitution of the United States, and the act of congress alluded to, it is clear, that the judgments or decrees of the courts of a neighbouring state, when made the ground of an original fuit here, would be confidered as foreign judgments, and as fuch, by the English law and our own, would be received as prima facie evidence of the justice of the plaintiff's demand, but liable to be examined and impeached by the defendant. This would follow from the fingle confideration that the jurifdiction of each state, with refpect to its internal administration of juftice, is diftinct and independent of every other. It remains, therefore, to be feen, whether the conftitution and act of congrefs have created a different rule. In the examination of this fubject, it may be proper to notice, that the former confederation contained a fimilar provision. By the confederation it was declared, that "full "faith and credit fhould be given in these states, to the re"cords, acts, and judicial proceedings of the courts and "magiftrates of every other state." At an early period, doubts appear to have arisen as to the import of the terms full faith and credit. In the cafe of Phelps v. Holker, reported in 1 Dall. the fupreme court of Pennsylvania decided, that this article of the confederation fhould not be fo conftrued, as to make a judgment, obtained on a foreign attachment, in Massachusetts, conclufive in Pennsylvania. The conftitution of the United States, it feems, intended to remove these doubts, and plainly diftinguishes between the faith and credit which fhall be due to fuch records, acts, and judicial proceedings, and their legal effect or operation. It first declare, nearly in the terms of the confederation, that "full faith and credit fhall be given to the public acts, "records, and judicial proceedings of any other ftate," and then diftinctly provides, that "congrefs may, by general laws prefcribe the manner in which fuch acts, records, "and judicial proceedings fhall be proved, and the effect thereof." The full faith and credit, intended by the con Hitchcock and V. Daniel Aicken. Nov. 1803. Fitch v. NEW YORK, ftitution, cannot be interpreted to mean their legal effect, for otherwife, the fubfequent provifion that congrefs may Hitchcock and prefcribe, the effect would be fenfelefs and nugatory. The Daniel Aicken. conftitution marks a plain diftinction between credit and ef- fect; and that diftinction, I think, is confiftent with that principle of the common law, which ascribes abfolute verity to the records and judicial proceedings in our own courts. When a judgment, or recovery in our own courts is pleaded, it is alleged as a fact, the record of which cannot be denied, and is conclufive of the fact, and it is, accordingly the subject of a peculiar mode of trial; but its legal effect, or operation on the rights of the parties, is ftill to be confidered, and frequently may form a distinct queftion. The provifion in the conftitution, relative to the judicial proceedings of the courts of the different ftates, can extend no farther. Congrefs have the power to prefcribe the mode of proof, and the effect. By their act, of the 26th May 1790, they have prefcribed the mode of proof, but they have not declared the effect, unless the following words of the act be confidered in that light: "And the faid records and judicial proceed"ings, authenticated as aforefaid, fhall 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 faid records are, or shall be taken.” At first view, the framers of this act seem to have intended a regulation beyond the provifion contained in the conftitution; but if this was their intent, I think, they have not accomplished the end. The conftitution itself declares, that full faith and credit fhall be given to fuch proceedings. This imports abfolute verity. It cannot be increased in degree, and congrefs had not the power to diminish the credit. When, therefore, the act declares, that such faith and credit shall be given to them, as they have by law or ufage, in the courts of the ftate from whence they are taken, it can mean no other than full faith and credit. From the nature of the thing, it can mean no more, and without impeaching the abfolute verity aferibed to them by the conftitution, it cannot mean lefs. It, therefore, leaves the credit and the queftion, as to the legal effect and operation, precifely where |