Nov. 1863. they were, and the power to prescribe the effect remains NEW-YORK, unexecuted. It is easy to perceive, that serious difficulties would occur in attempting to carry this power into execution, and thefe difficulties have, probably, embarraffed and deterred congrefs from exercifing it. In their act, we find the fame term, "faith and credit," which are used in the conftitution, and thofe only. The conftitution, however, makes the diftinction, as has been fhewn, between credit and effect. With this diftinction, plainly drawn, I cannot fuppofe that congrefs meant to confound it by treating the terms faith and credit, as fynonimous with effect. On the contrary, they must be confidered as conveying the fame sense, both in the constitution and the act; and of course, that congress have not executed the power of declaring the effect. Until that be done, the legal operation of fuch judgments, must be the fame as it was before there existed any legislative provision on the fubject. Nothing more than the mode of authentication was, therefore, provided for by the act of congrefs. When fo authenticated, they are entitled to full faith and credit; but they are to be received as evidence merely, by which their contents are undeniably established, and their effect or operation, not being declared, remains as at the common law. I am fenfible, that the cafe of Armstrong v. Carfon ftands in oppofition to this doctrine. That was an action of debt in the circuit court of the United States, for the district of Pennsylvania, brought on a judgment obtained in New-Jerfey, in which the counsel for the defendant yielded the pofition, that the judgment was conclufive; and the court, without a previous difcuffion, adopted the idea, on the supposition, that the act of congrefs had declared the effect to be conclufive. The prefiding judge, in delivering the opinion of the court, ftates the act, as having expressly declared the effect. In terms he was evidently inacurate, and whatever refpect may be due to the decifions of that court, its opinion, in this inftance, does not appear to me to be correct, nor to have been founded on a deliberate examination of the fubject. Upon the conftruction of this article of the conftitution, Hitchcock and V. Daniel Aicken. 2 Dall. 302. NEWY-ORK, and the act of congrefs, I am, therefore, of opinion, that th Nov. 1803. Fitch V. Daniel Aicken. judgments of other states are to be confidered in the light Hitchcock and foreign judgments, and when made, the foundation fuit in our own courts are not conclufive, but from courte are to be admitted as prefumptive evidence only of a title w recover, according to our own laws. To allow them a greater effect, might be attended with much inconvenience, and produce an irregular interference of jurifdiction between different ftates, and, in fome cafes, enable them to prescribe the law to each other. The confequences cannot easily be forefeen, and might often lead to injuftice and individual oppreffion. I am of opinion, that the verdict be fet afide, and a new trial be awarded. Kent J. The important question arifing in this cafe is, what is to be the effect in this court, of the judgment in Vermont, according to the conftitution and laws of the United States? The conftitution declares, that a full faith and credit fhall be given in each state, to the public acts, records, and judicial proceedings of every other state, and that congrefs may, by general laws, prescribe the manner in which fuch acts, records, and proceedings, fhall be proved, and the effect thereof. This injunction, that they were to receive full faith and credit in every state, made a part also of the articles of confederation; but, under thofe articles, it feems to have been understood, that the question on the effect of fuch records and judicial proceedings, was still left open. In the cafe of 1 Dal. 188. James v. Allen, in the court of common pleas at Philadel phia, in the year 1786, a question arofe on the effect of a discharge under the infolvent law of New-Jerfey, and the construction of this article in the confederation was brought into difcuffion, and it was contended, that a judgment, or other judicial proceedings of another ftate, was, by this ar ticle, rendered unexaminable and conclufive evidence. But the court faid, that the article would not admit of that construction, and that it was chiefly intended to oblige each state to receive the records of another, as full evidence Nov. 1803. Fitch, V. Daniel Aicken. of fuch acts and judicial proceedings. Again, in the cafe of NEW-YORK, Phelps v. Holber, in the fupreme court of Pennsylvania, in April term '88, an action of debt was brought upon a judge Hitchcock and ment in Masachusetts; which judgment was obtained against the defendant by default, and founded on an attachment of a blanket, which was fhewn to the fheriff as the reputed 1 Dallas, 261. property of the defendant, and the queftion was, whether the judgment was conclufive evidence of the debt. It was contended, on one fide, that the judgment was, by the articles of confederation, rendered conclusive, and that it made no difference in the cafe, that the judgment was obtained by the process of a foreign attachment. The other fide infifted, that the articles of confederation, provide only, that in matters of evidence, mutual faith and credit should be given, and efpecially, that they ought not to be conclufive when founded on foreign attachment. The court decided, that the defendant was still at liberty to controvert and deny the debt, and that the articles of confederation muft not be construed to work fuch evident injuftice, as was contained in the doctrine urged by the plaintiff. Another cafe I fhall mention, was that of Kibbe v. Kibbe, decided in the fuperior court of Kirby 119. Connecticut, in the year 1786. It was an action of debt on a judgment obtained in Masachusetts by default, and founded on the attachment of a handkerchief, and fo, like the preceding cafe, a proceeding in rem. The queftion came before the court on demurrer, and judgment was given for the defendant, on the ground, that the court in Maffachusetts had no jurisdiction of the caufe; but, the court admitted, that full credence ought to be given to judgments in other states, where both parties were within the jurifdiction of the court, and the defendant duly ferved with procefs, and had, or might have had, a fair trial of the caufe. It appears from thefe decifions, that judgments in other flates were not regarded under the confederation, as of binding and conclufive effect; and the defendant was admitted. to deny the regularity and equity of the proceedings, by which the judgment was obtained. This was placing the judgments of the other ftates on the bafis of foreign judgments, which are received only as prima facie evidence of the Nov. 1803. NEW-YORK, debt; and it lies with the defendant to impeach the justice thereof, or to fhew them to have been irregularly or unduly granted. Hitchcock and V. Daniel Aicken. Sinclair v. Frafer. Cited in Doug. 5. pendix pa.6-7. in the cafe of Galbreath and Neville. Such being the received conftruction of the injunction, that full faith and credit was to be given to the judical proceedings of other states. It remains to fee, whether the cafe is altered under the exifting constitution of the United note and in ap- States. That conftitution, by authorifing congrefs, to prefcribe not only the manner in which the acts, records and proceedings of other states fhall be proved, but their effect evidently diftinguished between giving full faith and credit, and the giving effect to the records of another ftate, and until congrefs fhall have declared by law what that effect shall be, the records of different ftates, are left precifely in the fituation they were in under the articles of confederation. Laws vol. i. 115 The act of congrefs of 26th May 1790, is entitled "an "act to prescribe the mode in which the public acts, records, "and judicial proceedings in each ftate, fhall be authenti"cated, fo as to take effect in every other state." After prefcribing the mode of authentication, it declares that the records and judicial proceedings, fo authenticated, shall have fuch faith and credit given to them in every court within the United States, as they have by law or usage in the courts of the ftate from whence they are taken. This act leaves the queftion as to the effect of fuch records precifely where it found it. The articles of confederation, in the first inftance, and the constitution in the fecond, had already declared that fuch records and proceedings, were to receive full faith and credit, and this act, without precribing the effect, defines, or rather qualifies the faith and credit they are to receive. Inftead of full faith and credit, they are to receive fuch faith and credit. We are bound to give the judgment faith and cre dit, and this faith and credit was confidered by the ftate courts, while fitting under the government of the articles of confederation, as requiring full affent to the proceedings contained in the record, as matters of evidence and fact, but not as abfolutely barring the door against any examination of the regularity of the proceedings, and the juftice of the judgment. Nov.1803. I ought here to notice the cafe of Armstrong v. Executors NEW-YORK, of Carfon, as leaning against the conclufions I have drawn. I was an action of debt, brought in the circuit court of the United States for Pennsylvania district, on a judgment obbtained in the ftate of New-Jersey. Hitchcock and V. Daniel Aicken. The question was, whether the plea of nil debet was good, 2 Dallas 302. and the court was of opinion, the plea being bad in NewJerfey, was bad there alfo, for that whatever doubts there might be on the words of the conftitution, the act of congress effectually removed them, by declaring in direct terms, that the record fhould have the fame effect in that court, as in the court from which it was taken. But the reafon given for this opinion, if the report of the cafe be correct, is clearly founded in miftake. The act of congrefs does not declare the record fhall have the fame effect, but only the fame faith and credit, and there is a manifeft and effential difference between the one mode of expreffion and the other. If, therefore, as the court intimated, there were doubts on the words of the conftitution, those doubts, fo far from being removed, are rather increafed by the law. The language of the constitution is, at least, as cogent and comprehenfive, if not more fo, than the language of the law. It is pretty evident, that the conftitution meant nothing more by full faith and credit, than what respected the evidence of fuch proceedings; for the words are applied to public acts, as well as to judicial matters, nor ought the act of congrefs to be carried further than the words will warrant. When we reflect in what manner judgments may, in fome inftances, be obtained, as in the cafes cited by the attachment of a handkerchief or blanket, it is more favorable to the harmony of the union, and to public juftice, that the judgments of the several states should be put on the footing of foreign judgments, than that they should be held absolutely binding and conclufive, or as much fo, as they may be by the laws of the ftate which authorifed the proceeding; and if we may question the binding force of the proceeding or judgment in one cafe, we may in another; for, the act of congrefs has no exceptions, and must receive an uniform |