It is superfluous to show that in the absence of this provision every effect which the acts, records, and judicial proceedings of one State, or which the manner of proving them could have in the courts of other States, would have been determined by the common law of the forum, including whatever might be applicable in that body of rules which is judicially known as international private law, until changed by local legislation.'

By this customary law two questions would have to be determined: 1. How such acts, &c., may be authenticated. 2. How far they may operate in the forum to determine rights and obligations of private persons.

Now, since the Constitution speaks of "effect" after having given power to prescribe the manner of proof, it would seem that the effect intended was something different from the authentication, and that it must be operative on the rights and obligations of persons.

But then the circumstance is to be noticed, that the whole grant of power to Congress is preceded by the requisition of faith and credit for these acts, &c., and that a similar requisition was already existing in the Articles of Confederation. It is evident that, if the constitutional provision had, like its prototype, been limited to this requisition, the manner of proving such acts, &c., under the customary law in this respect, might vary greatly in the different States. For, as judicial tribunals are not cognizant of the laws of foreign jurisdictions, the proof of their public acts of every kind must be made under the local customary method of proving matters of fact. There might obviously then occur, in the different States, such a variety of practice in this respect as would amount to an unequal giving of faith and credit.

The manner of proof, and the effect of the manner of proof (which reading seems most general), are instrumentalities

1

Story's Comm. § 1804. In the ordinary phrase, this recognition of foreign judgments is attributed to the comitas gentium. See Ellenborough, in Alves r. Bunbury, 4 Camp. 30.

Story's Comm. §§ 1304, 1305.

Story's Comm. §§ 1304, 1311, and cases.

4 Ante, p. 247, n. 4.

for causing faith and credit. Since, therefore, effect is mentioned, for the first time, when Congress is empowered to prescribe the manner of proof, it seems quite as natural to infer that the whole power given is subordinate to the object of the first clause-the giving faith and credit to the written evidences of the juridical action of the States-as to infer that it was intended to produce an effect greater than any incidental to their receiving full faith and credit.

§ 622. In the corresponding clause in the Articles of Confederation, the acts of "courts and magistrates" of the States are, with their records and judicial proceedings, the subject spoken of.'

The constitutional provision relates to "the public acts," &c., of the States themselves. The judgments of its courts are, in a sense, acts of the State itself, but there can be no doubt that the legislative acts of the States are included within the meaning of the term, and the clause has been so understood by Congress and the judiciary. The act of 1790 indicates how the legislative acts of the States shall be authenticated, but no mention is made of any effect which they may have, or of the faith and credit to be given to them. If the conclusiveness of judgments is caused by the law of Congress, the effect implied in such conclusiveness, whatever that may be, cannot be supposed to belong to a State statute under the existing law of Congress. But if, as held in most of the cases,

1 Art. IV., the last paragraph:-" Full faith and credit shall be given in each of these States to the records, acts, and judicial proceedings of the courts and magistrates of every other State."

Before adopting its actual provisions, the framers of the Constitution considered and rejected others relating to the same general objects, and more or less resembling the former in their verbal composition. If these rejected propositions or any rejected terms or phrases may be referred to as indicating the intention of the authors of the actual phraseology, it is because these propositions and phrases show what the framers of the Constitution did not intend to say. The value of the debates in the Convention and in the ratifying State conventions, as showing the usus loquendi of the time and as contemporary exposition of the adopted phraseology, is a distinct thing. But it is not uncommon to find interpretations in which the rejected phraseology is made to control that which was substituted for it. Yet where a more specific term has been rejected for one more general, the former may well be supposed to have been intended within the latter. The clause under consideration was substituted in the Convention, Sept. 1st and 3d, for the 16th of the articles proposed Aug. 6, 1787, which read:-" Full faith shall be given in each State to the acts of the Legislatures, and to the records and judicial proceedings of the courts and magistrates, of every other State." See Journal. Madison Papers, 1240, 1448.

the conclusiveness of a judgment, when proved in the manner prescribed, is caused by the constitutional provision and not by the law of Congress, it would seem that a State statute might be held equally conclusive as to any rights and obligations declared by it. No effect or legal operation has, it is believed, ever been claimed for a State statute, when proved in the manner prescribed.' But, from the collocation of acts with records and judicial proceedings in the Constitution, it would scem that Congress might "prescribe" for a State statute whatever effect it is competent for that body to prescribe for a judgment of such State, and that it might be made as conclusive evidence in other States, as judgments are or can be made, in respect to rights and obligations of persons who are bound by it within the State whose act it is. And if Congress can, in reference to judgments, do more than has been done in making them conclusive as evidence, and can give them additional effect and operation in every State, it seems difficult to say why similar operation and effect may not also be given to the statutes of a State, or to such, at least, as determine the rights and obligations of persons in relations which can, in their nature, continue in other jurisdictions."

When, under customary international private law, the

1 In 1 Caines, 481, Judge Kent, arguing against the conclusiveness of the judg ment as evidence, said:" It is pretty evident that the Constitution meant nothing more by full faith and credit, than what respected the evidence of such proceedings, for the words are applied to public acts as well as to judicial matters." Earthman v. Jones, 2 Yerger, 486. Catron, J.:-" Congress has no power conferred, by the Constitution, to subject one State sovereignty to the legislation of another, nor has the exercise of such a power been attempted by the act of 1790.”

2 The reader may think the consequences of this provision very remotely connected with the subject of this treatise; and, indeed, the writer has been led to devote so much space to its consideration solely by the observations of Mr. Thomas R. R. Cobb, of Georgia, in the first vol., pub. Aug., 1858, of his work on the Law of Negro Slavery, §§ 205-215. Holding, from the dicta in the adjudged cases, that Congress may give an effect to judgments beyond effect as evidence, Mr. Cobb argues that they may give a like effect to the acts of the States, which term, as used in the provision, he also assumes to be equivalent to laws in the general sense. Under this interpretation, Mr. Cobb urges that Congress may give effect or operation to the laws of the several States which determine status in the place of domicil, so far as to maintain those rights of masters, in respect to escaped slaves and slaves brought with them in visiting or passing through the free States, which, in the judgment of Congress and the national judiciary, those States are bound by comity to recognize; having also in the same work endeavored to show that the possession of their slaves by owners in these circumstances, should be recognized in the free States on this principle. The suggestion of this doctrine, though by a private jurist, will show the importance which may hereafter attend on the understanding of this provision.

juridical action of a foreign state is produced in evidence to determine rights and obligations in any forum, it is entirely immaterial whether such juridical action was exhibited in written law-statutes or codes-or by the customary unwritten law of the foreign state. To suppose that Congress may give the statutes of one of the several States an effect or operation in the other States, which could not be given to its unwritten common law, seems inconsistent or without apparent reason. For rights and obligations which in one State rest on common law alone may exactly correspond with those which in another have been declared by statute, and in most of the States those which are attributed to common law are far more important than any resting on statute.'

But the particular and inferior cannot defeat the general and superior; the exception is not to be made more general than the rule to which it is an exception, and in answer to such an interpretation it must be urged that such a power in Congress to extend the local law of the several States would be an immeasurable limitation of the two most fundamental and general principles of the Constitution. One of these is, that the States are to be mutually independent in the exercise of those powers which have not been granted to the national government; the other, that powers are granted to Congress specifically, or are specific in respect to certain relations. Such a power in Congress would be manifestly indeterminate, and be an indefinite restriction on the exercise by the States of their reserved powers.

Whatever power may have been intended, it is evident that the law resulting from it will form part of the quasiinternational law of the Union, limiting the States in the exercise of their reserved powers in respect to domestic aliens. But the other sections of this Article have this effect also, and, therefore, like statutes in pari materia, they may be inter

'As has been noted above, Mr. Cobb assumes that public acts in the provision may include any rule of law.

2 Sedgwick on Constr. 287. Lieber's Hermeneutics, 168:-"The general and superior prevails over the specific and inferior; no law, therefore, can be construed counter to the fundamental law. If it admits another construction, this must be adopted."

preted by each other. These other sections contain specific limitations of the States in this exercise of these powers, and the expression of these implies the exclusion of an interpretation of this provision, which would authorize a more general inter-limitation at the will of Congress. Expressio unius est exclusio alterius.

It is no a priori assertion to say that such an idea is utterly contrary to the spirit of the Constitution,' and the objection applies against attributing to any written evidence of the juridical action of a State, whether public act, record, or judicial proceeding, any legal operation or effect, in the other States, beyond an effect as evidence.

§ 623. The conclusiveness of judgments, coming within the general rule, as to the merits of a claim in distinction from a simple recognition of their genuineness, has been shown to be supported by a great weight of judicial decision.

Yet, notwithstanding the frequency of occasions for judicial exposition of the doctrine, it has not been very clearly shown, in the opinions, upon what principle of interpretation records of judicial proceedings, in the recognized cases of exception, have been excluded from the operation of the Constitution and the statute.

This exclusion may perhaps be founded upon an argument like the following. The provision is either an international compact as between the States, and, therefore, to be interpreted by rules applicable to the explanation of international compacts, in which case the meaning of the terms used is to be ascertained by a standard common to the contracting parties, or it is like a statutory enactment, and its meaning is referable to language before used by the enacting person, the integral people of the United States. In either case, then, a “judi

Lieber's Pol. Hermen. 177:-" A primary rule suggested by mere common sense, and yet so frequently abandoned, both in religion and politics, and always the more flagrantly so the more men are obliged by the unsoundness of their view to resort to special pleading, is that we ought not to build arguments of weighty importance on trifling grounds, not to hang burdens of great weight on slight pegs; for instance, an argument of the highest national importance upon the casual position of a word. This rule applies to all and every construction, indeed, but it naturally becomes the more important, the more important the sphere is in which we have to construe."