Vol. IV.]

PENNYWIT v. FOOTE.

[No. 3.

After the state had joined the Southern Confederacy, and while it was in arms against the Union, the case was tried. The attorney for defendants, who was retained and appeared before the war, continued to do so on the trial of the case, and consented to a trial. It is claimed these facts gave the court jurisdiction over the person, but the other side insists that such appearance could confer no power on the court to do an unauthorized act, and that the war worked a revocation of this agency.

1. Article 4, section 1, of the Constitution of the United States provides that "full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state; and the Congress may, by general laws, prescribe the manner in which such acts and proceedings shall be proved, and the effect thereof." Under the power thus conferred, Congress passed the Act of May 26, 1790, which provided that "the records and judicial proceedings of the courts of any state shall be proved or admitted in any other court within the United States, by the attestation of the clerk and the seal of the court annexed, if there be a seal, together with the certificate of the judge, chief justice, or presiding magistrate, as the case may be, that the attestation is in due form. And the said records and proceedings, authenticated as aforesaid, shall have such 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 state from whence said records are or shall be taken."

Leaving out of view for the present the facts relied on as a defence in this case, let us inquire as to the scope and meaning of this constitutional provision and the act of Congress.

What acts, records, and judicial proceedings are entitled to full faith and credit, and what is a judgment of a court of a state that imports absolute verity?

By the Act of 1790, a judgment which is valid in the state where rendered becomes, in the other states, a debt of record, not reëxaminable upon the merits, but it does not carry with it into another state the efficacy of a judgment against person or property that can be enforced by execution. To give it that force in another state, it must by action be made the judgment of such other state.

Hence it follows that such judgment is only evidence in another state that the subject matter of the original suit has become a debt of record, which cannot be avoided by a plea of nul tiel record. McElmoyle v. Cohen, 13 Pet. 330.

In an action on such judgment in another state, whatever pleas would be good in the state where rendered would be good in such other state. Hampton v. Mc Connell, 3 Wheat. 234.

The constitutional provision was not intended to confer a new power of jurisdiction on the courts of any state, but to prescribe the effect in other states of the acknowledged jurisdiction over persons and things within the state. Every judgment depends, for its force and validity, on the competency and authority of the tribunal which pronounces it, and may be assailed by showing a want or failure of jurisdiction over the subject matter or the person, even though absolutely conclusive in other particulars.

The manifest design of the Constitution was to give faith and effect to

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PENNYWIT v. FOOTE.

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valid judgments, and not to enable the courts of one state to exercise a usurped or illegal authority over the citizens of other states of the Union, who are not amenable to the jurisdiction of the tribunal.

Without the constitutional provision and the Act of 1790, the judgments of one state would stand in the tribunals of the others on the same footing as foreign judgments, and only be respected on the principles of comity between nations, and not as a duty imposed by the paramount organic law. How far such judgments of a state of the Union, when duly authenticated, are entitled to faith and credit, and are conclusive, is a problem by no means free from difficulty. It has been productive of numerous decisions, not always harmonious.

One of the earliest cases was Bissell v. Briggs, 9 Mass. 462, where it was said: "Whenever, therefore, a record of a judgment of any state is produced as conclusive evidence, the jurisdiction of the court is open to inquiry. And upon the same principle, if a court of any state should render a judgment against a man not within the state, nor bound by its laws, nor amenable to the jurisdiction of its courts; and if that judgment should be produced in any other state against the defendant, the jurisdiction of the court might be inquired into, and if a want of jurisdiction appeared, no credit would be given the judgment.

"In order to entitle the judgment rendered to the full faith and credit mentioned in the federal Constitution, the court must have jurisdiction, not only of the cause, but of the parties."

The same view was declared and enforced in Hall v. Williams, 6 Pick. 222.

In Rose v. Himely, 4 Cranch, 269, Chief Justice Marshall says: "Upon principle, it would seem that the operation of every judgment must depend on the power of the court to render that judgment. . . . In some cases, the jurisdiction depends as well on the state of things as on the constitution of the court."

For a long time after the adoption of the Constitution, it was supposed that its effect, in connection with the Act of 1790, was to render the judgments of each state equivalent to domestic judgments in every other state; and this view was supported by the language of the Court in Mills v. Duryee, 7 Cranch, 484. It was so held in that case, and that a plea of nil debet was not a proper plea to an action on such judgment.

So far as the merits of that case are concerned, the doctrine there laid down is still adhered to; but as to the validity of a judgment dependent on the power of the court, quite a different view is now entertained.

Mr. Justice Story, who delivered that opinion, elsewhere says: "But this does not prevent an inquiry into the jurisdiction of the court, in which the original judgment was given, to pronounce it; or the right of the state itself to exercise authority over the person or the subject matter. The Constitution did not mean to confer upon the states a new power or jurisdiction, but simply to regulate the acknowledged jurisdiction over persons and things within their territory." Story on Const. sec. 1313. Again he says: "It did not make the judgments of other states domestic judgments to all intents and purposes, but only gave a general validity and credit to them as evidence." Story on Conflict of Laws, sec. 609. Chancellor Kent (1 Kent Com. 281, and vol. 2, p. 95, and note) says:

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"It is only when the jurisdiction of the court in another state is not impeached, either as to the subject matter or the person, that the record of the judgment is entitled to full faith and credit."

This distinction is strongly supported by D'Arcy v. Ketchum, 11 Howard S. C. 165, where the case of Mills v. Duryee was limited and explained.

It was there held that the constitutional provision and act of Congress giving full faith and credit to the judgments of each state, in every other state, do not refer to judgments rendered by a court having no jurisdiction of the parties that it only referred to valid judgments.

It is an important feature of that case, that by the law of the State of New York, where the judgment was rendered, it was valid. It was a judgment against two joint debtors, only one of whom was served. Under the state law, this was a valid judgment against both, and if the language of the Act of 1790 had full force, this judgment, when properly authenticated, "shall have such faith and credit given it in every court within the United States as it had by law or usage in the courts of the state from whence it was taken;" and yet when sued on in Louisiana, it was held void as to the party not served, though valid by New York law. It was said: "The international law as it existed among the states in 1790, that a judgment rendered in one state, assuming to bind the person of a citizen of another, was void within the foreign state, when the defendant had not been served with process or voluntarily made defence, because neither the legislative jurisdiction nor that of the courts of justice had binding force. . . . In our opinion, Congress did not intend to overthrow the old rule."

In Webster v. Reed, 11 Howard, 437, the defendant offered to defeat the force of a judgment by showing want of service, and it was held it could be done.

In Starbuck v. Murray, 5 Wend. 148, it is said: "Unless a court has jurisdiction, it can never make a record which imports uncontrollable verity to the party over whom it has usurped jurisdiction, and he ought not therefore to be estopped by any allegation in the record from proving any fact that goes to establish the truth of the plea alleging want of jurisdiction. So long as the question is in issue, the judgment of a court of another state is, in effect, like a foreign judgment—it is prima facie evidence."

From a careful review of numerous cases, we find the rule now well settled that neither the constitutional provision, that full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state, nor the act of Congress passed in pursuance thereof, prevents an inquiry into the jurisdiction of the court in which a judgment offered in evidence was rendered, and such a judgment may be contradicted as to the facts necessary to give the court jurisdiction, and if it be shown that such facts did not exist, the record will be a nullity, notwithstanding it may recite that they did exist, and this is true either as to the subject matter or the person, or in proceedings in rem as to the thing. Harris v. Hardiman et al. 14 Howard S. C. 334; Borden v. Filch, 15 Johns. 141; Christmas v. Russell, 5 Wallace, 290; Elliot v. Piersol et al. 1 Pet. 328; United States v. Arredondo, 6 Pet. 691; Vorhees v. Bank

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of U. S. 10 Pet. 475; Moulin v. Insurance Co. 4 Zab. 222; Mackay v. Gordon, 34 New Jersey, 286; Wilson v. Bank of Mt. Pleasant, 6 Leigh, 570; Story on Const. sec. 1307; Story on Confl. of Laws, sec. 609; Thompson v. Whitman, 18 Wallace, 457; Spencer v. Brockway, 1 Qhio, 261; Goodrich v. Jenkins, 6 Ohio, 44; Anderson v. Anderson, 8 Ohio, 108; Paine's Lessees v. Mooreland, 15 Ohio, 445.

It follows that while a judgment of a competent court of any state of the Union, that has jurisdiction or authority over the person and subject matter, is conclusive upon the merits of the controversy in every state, yet the power of the court to render it is an open question in an action like the present.

It is competent, therefore, in such action, to inquire into the authority of the pretended court to exercise judicial functions, whether this record comes from a lawful tribunal, within a state of the Union, whether that tribunal had jurisdiction of the subject matter, and whether it had by any legal method obtained jurisdiction over the person, in order to determine whether it was a valid judgment under the Constitution. Either of these inquiries does not affect the merits of the controversy in the orig· inal action.

II. Was this record a judical proceeding of a court of one of the states of the United States ?

The state had seceded and dissolved its connection with the United States. It declared independence, and joined the Confederacy. These acts were null and void, but on this foundation a new Constitution with allegiance to the Confederate States was adopted, and for the time was maintained by armed rebellion. Civil war ensued. The existence of this new authority was being determined by wager of battle.

This usurping government was one unknown to the Constitution, and in direct antagonism to it and the authority of the federal laws and authority. It could acquire no legal authority over the people of the United States, and no actual power beyond the range of its guns. When the armed forces, raised to establish this new government and make good their declaration of secession and independence, surrendered, this unlawful state government fell. The present Constitution and state government of Arkansas is not the successor of that, and derives none of its power from its prior existence. The Congress refused to recognize it, or the validity of its acts. By the reconstruction acts, it was declared there was no legal state government to represent the state in the Union, and Congress took steps to organize a government in conformity to the paramount laws of the Union.

The courts of this usurped state government, set up on the ruins of the old, and dependent for its existence on organized treason, had no power over citizens of other states not domiciled there. It could acquire none by the steps taken. The defendants might cheerfully enter their appearance, and consent to have their case tried by a court of a state government in harmony with the Union, that recognized the binding force of the Constitution and laws of the United States, and where he was entitled to all the rights and immunities of a citizen of the United States, while he would be utterly unwilling to consent to be tried by a foreign court of a nation at war with his government, and where his rights as an American citizen are ignored.

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These defendants never consented to surrender their rights as citizens of the United States, guaranteed by its laws, and commit the issue to a court of new organization. The convention had no power to transfer this case from out the protection of federal laws, and make it amenable to the decision of a court unknown to them. What, then, was the status of the State of Arkansas, and the circuit court of Crawford County, under the new state organization, as a state of the Confederacy?

In Texas v. White, 7 Wall. 700, Chief Justice Chase says:

"Not only, therefore, can there be no loss of the separate and independent autonomy of the states, through their union under the Constitution, but it may be not unreasonably said that the preservation of the states, and the maintenance of their governments, are as much within the design and care of the Constitution as the preservation of the Union and maintenance of the national government. The Constitution, in all its provisions, looks to an indestructible Union, composed of indestructible states. Our conclusion, therefore, is that Texas continued to be a state, and a state of the Union, notwithstanding the transactions to which we have referred."

In these remarks, the word state is used, not to mean the political organization or government. The chief justice says: "The people, in whatever territory dwelling, either temporarily or permanently, and whether organized under a regular government, or united by looser and less definite relations, constitute the state. A state, in the ordinary sense of the Constitution, is a political community of free citizens, occupying a territory of defined boundaries, and organized under a government sanctioned and limited by a written constitution, and established by the consent of the governed. It is the union of such states, under a common constitution, which forms the distinct and greater political unit, which that Constitution designates as the United States, and makes of the people and states which compose it one people and one country.' Using the term "state" in this sense, it was said by the court "that Texas continued to be a state, and a state of the Union." After reciting the steps taken by the state to go out of the Union and join the Confederacy, much the same as in the case of Arkansas, it is added: "When the war closed there was no government in the state, except that which had organized for the purpose of waging war on the United States. . . . . That government immediately disappeared. . . . . There being no government in constitutional relations with the Union, it became the duty of the United States to provide for the restoration of such a government." Speaking of the acts of the rebel legislature of Texas, the court say: "It cannot be regarded in the courts of the United States as a lawful legislature, or its acts lawful."

It is added, however, that it was for some purposes a government de facto, an actual government, which, though unlawful and revolutionary, possessed power over its own people in such matters as did not affect the duty of the state, or the people of the state, to the Union. The Chief Justice says:

"It is not necessary to attempt an exact definition within which the acts of such a state government must be treated as valid or invalid. It may be said, perhaps with sufficient accuracy, that acts necessary to peace and good order among citizens—such, for example, as acts sanctioning