Full faith and credit in the early congress

Virginia Law Review

Volumn 95, Issue 5, 2009, Pages 1201-1279

  Sachs, Stephen E ^a  

^a NONE

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EID: 70349712831     PISSN: 00426601     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (552)

1. U.S. Const, art. IV, §1.
2. Robert H. Jackson, Full Faith and Credit-The Lawyer's Clause of the Constitution, 45 Colum. L. Rev. 1, 3 (1945).
3. 28 U. S. C § 1738C (2006).
4. See Ralph U. Whitten, The Original Understanding of the Full Faith and Credit Clause and the Defense of Marriage Act, 32 Creighton L. Rev. 255, 261 (1998) (offering examples).
5. Baker v. Gen. Motors Corp., 522 U.S. 222, 233 (1998).
6. Douglas Laycock, Equal Citizens of Equal and Territorial States: The Constitutional Foundations of Choice of Law, 92 Colum. L. Rev. 249, 296 (1992).
7. Id.
8. See 28 U.S.C. §§1738A-1738B (2006);
9. see also 18 U.S.C. §2265 (2006) (protection orders).
10. See, e.g., Larry Kramer, Same-Sex Marriage, Conflict of Laws, and the Unconstitutional Public Policy Exception, 106 Yale L.J. 1965, 2003 (1997) (describing the Clause as granting a power to "[rjefine and implement, not undermine or abolish," and arguing that DOMA exceeded that power by allowing states to disregard marriages sanctioned elsewhere);
11. Letter from Laurence H. Tribe, Ralph S. Tyler, Jr., Professor of Constitutional Law, Harvard Law Sch., to Senator Edward M. Kennedy (May 24,1996),
12. reprinted in 142 Cong. Rec. S5931-33 (daily ed. June 6,1996) (arguing that the Clause only empowers Congress "to enforce [its] self-executing requirements insofar as judicial enforcement alone, as overseen by the Supreme Court, might reasonably be deemed insufficient");
13. cf. Jeffrey L. Rensberger, Same-Sex Marriages and the Defense of Marriage Act: A Deviant View of an Experiment in Full Faith and Credit, 32 Creighton L. Rev. 409, 412 n.6 (1998) (listing sources).
14. See, e.g., Gillian E. Metzger, Congress, Article IV, and Interstate Relations, 120 Harv. L. Rev. 1468 (2007).
15. Laurence H. Tribe, Saenz Sans Prophecy: Does the Privileges or Immunities Revival Portend the Future-or Reveal the Structure of the Present?, 113 Harv. L. Rev. 110, 152 (1999)
16. (quoting Baker v. Gen. Motors Corp., 522 U.S. 222, 232 (1998));
17. accord Franchise Tax Bd. v. Hyatt, 538 U.S. 488, 494 (2003).
18. See Nelson v. George, 399 U.S. 224, 229 (1970).
19. Milwaukee County v. M.E. White Co., 296 U.S. 268, 276-277 (1935) (describing the "very purpose" of the Clause as "to alter the status of the several states as independent foreign sovereignties. and to make them integral parts of a single nation").
20. Hughes v. Fetter, 341 U.S. 609, 611 (1951);
21. see also id. ("[F]ull faith and credit does not automatically compel a forum state to subordinate its own statutory policy to a conflicting public act of another state.").
22. Pink v. A.A.A. Hwy. Exp., 314 U.S. 201, 210 (1941).
23. 28 U.S.C. § 1738(2006).
24. An Act to prescribe the mode in which the public Acts, Records, and judicial Proceedings in each State, shall be authenticated so as to take effect in every other State, ch. 11,1 Stat. 122 (1790).
25. 28 U.S.C.§ 1738 (2006).
26. See, e.g., Sanford N. Caust-Ellenbogen, False Conflicts and Interstate Preclusion: Moving Beyond a Wooden Reading of the Full Faith and Credit Statute, 58 Fordham L. Rev. 593,593 & n.4 (1990) (listing citations).
27. See Sun Oil Co. v. Wortman, 486 U.S. 717 (1988);
28. M'Elmoyle v. Cohen, 38 U.S. (13 Pet.) 312 (1839).
29. See Baker v. Gen. Motors Corp., 522 U.S. 222 (1998);
30. see also Polly J. Price, Full Faith and Credit and the Equity Conflict, 84 Va. L. Rev. 747, 756 (1998) ("Courts have never been sure about the applicability of full faith and credit to equitable decrees of state courts.").
31. Restatement (Second) of Conflict of Laws §103 (1971);
32. see also Thomas v. Wash. Gas Light Co., 448 U.S. 261,285 (1980) (plurality opinion) (considering "the substantial interests of the second jurisdiction").
33. But see William L. Reynolds, The Iron Law of Full Faith and Credit, 53 Md. L. Rev. 412, 438 (1994) (doubting whether, "[djespite. the prestige of the American Law Institute,. Section 103 provides an accurate statement of the law").
34. See, e.g., Willis L.M. Reese & Vincent A. Johnson, The Scope of Full Faith and Credit to Judgments, 49 Colum. L. Rev. 153, 178 (1949) ("[T]he language of the clause, taken together with that of the implementing statute, is so sweeping as to make inevitable the existence of some exceptions to its literal command.");
35. id. at 161 (identifying five categories of exceptions).
36. See Articles of Confederation art. IV, cl. 2 ("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.").
37. See, e.g., David E. Engdahl, The Classic Rule of "Full Faith and Credit," 118 Yale L.J. 1584 (2009);
38. Kurt H. Nadelmann, Full Faith and Credit to Judgments and Public Acts: A Historical-Analytical Reappraisal, 56 Mich. L. Rev. 33 (1957);
39. Ralph U. Whitten, The Constitutional Limitations on State Choice of Law. Full Faith and Credit, 12 Mem. St. U. L. Rev. 1 (1981);
40. Ralph U. Whitten, The Constitutional Limitations on State-Court Jurisdiction: A Historical-Interpretive Reexamination of the Full Faith and Credit and Due Process Clauses (Part One), 14 Creighton L. Rev. 499 (1981);
41. Whitten, supra note 4;
42. see also Daniel A. Crane, The Original Understanding of the "Effects Clause" of Article IV, Section 1 and Implications for the Defense of Marriage Act, 6 Geo. Mason L. Rev. 307 (1998).
43. Compare, e.g., Whitten, supra note 4,
44. with Engdahl, supra note 25.
45. This Article does not discuss in equal detail the substantive effect accorded to state laws in other states, an issue I will address in a future work.
46. See, e.g., Kramer, supra note 9;
47. Mark D. Rosen, Why the Defense of Marriage Act is Not (Yet?) Unconstitutional: Lawrence, Full Faith and Credit, and the Many Societal Actors That Determine What the Constitution Requires, 90 Minn. L. Rev. 915 (2006);
48. Joseph William Singer, Same Sex Marriage, Full Faith and Credit, and the Evasion of Obligation, 1 Stan. J. C.R. & C.L. 1 (2005);
49. see also sources cited supra note 9.
50. See generally James R. Pielemeier, Why We Should Worry About Full Faith and Credit to Laws, 60 S. Cal. L. Rev. 1299, 1302 (1987) (asserting that "[t]he constitutional history of the full faith and credit clause is sparse").
51. See, e.g., Walter Wheeler Cook, The Powers of Congress Under the Full Faith and Credit Clause, 28 Yale L.J. 421 (1919);
52. Edward S. Corwin, The "Full Faith and Credit" Clause, 81 U. Pa. L. Rev. 371 (1933);
53. George P. Costigan, Jr., The History of the Adoption of Section I of Article IV of the United States Constitution and a Consideration of the Effect on Judgments of that Section and of Federal Legislation, 4 Colum. L. Rev. 470 (1904);
54. Crane, supra note 25;
55. Jackson, supra note 2;
56. Laycock, supra note 6;
57. Max Radin, The Authenticated Full Faith and Credit Clause: Its History, 39IllL. Rev. 1, 6 (1944);
58. G.W.C.Ross, "Full Faith and Credit" in a Federal System, 20 Minn. L. Rev. 140, 143 (1936);
59. James D. Sumner, Jr., The Full-Faith-and-Credit Clause-Its History and Purpose, 34 Or. L. Rev. 224 (1955);
60. James Weinstein, The Federal Common Law Origins of Judicial Jurisdiction: Implications for Modern Doctrine, 90 Va. L. Rev. 169 (2004);
61. Rex Glensy, Note, The Extent of Congress' Power Under the Full Faith and Credit Clause, 71 S. Cal.L. Rev. 137 (1997);
62. Julie L.B. Johnson, Comment, The Meaning of "General Laws": The Extent of Congress's Power Under the Full Faith and Credit Clause and the Constitutionality of the Defense of Marriage Act, 145 U. Pa. L. Rev. 1611,1617-22 (1997).
63. 11 U.S. (7 Cranch) 481 (1813).
64. See, e.g., David P. Currie, The Constitution in Congress: The Federalist Period, 1789 - 1801, at 103 (1997).
65. I have discovered no additional attempts from 1822 until at least 1850.
66. See generally Ralph H. Dwan & Ernest R. Feidler, The Federal Statutes-Their History and Use, 22 Minn. L. Rev. 1008 (1938).
67. See An Act To Provide for the Safe-Keeping of the Acts, Records, and Seal of the United States, and for Other Purposes, ch. 14, §2,1 Stat. 68,68 (1789).
68. See Tarlton v. Briscoe, 8 Ky. (1 A.K. Marsh.) 67, 69 (1817).
69. United States v. Amedy, 24 U.S. (11 Wheat.) 392,393-394 (1826) (reporter's headnote).
70. Id. at 405 (argument of counsel).
71. Id. at 406 (majority opinion).
72. But see Tobias A. Dorsey, Some Reflections on Not Reading the Statutes, 10 Green Bag 2d 283, 295-298 (2007) (noting that modern courts have relied on unenacted titles of the U.S. Code despite contrary inferences from the text of actual session laws).
73. Geoffrey Gilbert, The Law of Evidence 15 (London, J.F. & C. Rivington et al. 4th ed. 1777).
74. For more on Gilbert's influence, see John H. Langbein, Historical Foundations of the Law of Evidence: A View from the Ryder Sources, 96 Colum. L. Rev. 1168 (1996) or 2
75. James Wilson, The Works of the Honourable James Wilson, L.L.D. 88 (Phila., Lorenzo Press 1804) (quoting Gilbert with regard to the "faith and credit to be given to the honesty and integrity of credible and disinterested witnesses").
76. Gilbert, supra note 40, at 16.
77. Id. at 7.
78. Id. at 14.
79. Id.
80. see also Owings v. Nicholson, 4 H. & J. 66,105-106 (Md. 1815) (Buchanan, J., dissenting) (discussing "the established rule of evidence, that authenticated copies of records are required, in the absence of the originals, as the next best evidence, and cannot be supplied by parol").
81. Gilbert, supra note 40, at 19-20;
82. see also infra note 103 (discussing Engdahl's interpretation of this phrase).
83. See, e.g., Frey v. Wells, 4 Yeates 497, 500 (Pa. 1808) ("The record of a foreign court was not evidence to the court, and must go to the jury proveable by testimony. In the nature of the case, it could not be otherwise; because the judge could not be supposed to know the seal or attestation of the foreign court, so as to try upon inspection. For this, or for other reasons, it was a principle that a foreign judgment could not be declared upon as a record.");
84. see also Delafield v. Hand, 3 Johns. 310, 314 (N.Y. 1808) (refusing to recognize a foreign court's seal, and requiring the validity of the foreign record to be proved as fact);
85. Henry v. Adey, (1803) 102 Eng. Rep. 582 (K.B.) (same for Grenada);
86. Moisés v. Thornton, (1799) 101 Eng. Rep. 1402 (K.B.) (same for the corporate seal of the University of St. Andrews in Scotland);
87. Olive v. Gwin, (1650) 145 Eng. Rep. 409, 410 (Exch.) (same for Wales); cf. Engdahl, supra note 25, at 1602-1603 (discussing Olive).
88. See Craig v. Brown, 6 F. Cas. 721, 722 (C.C.D. Pa. 1816) (No.3328) (Washington, Circuit Justice) (noting that "[c]ach state has a form of its own for authenticating records," and that "it is not to be supposed that [a] judge should be acquainted with any other form than that of his own state or court");
89. United States v. Johns, 4 U.S. (4 Dall.) 414, 416 (C.C.D. Pa. 1806) (per curiam) ("[T]he officer entitled to affix the seal is a regulation very different in the different states.").
90. If these types of evidence were "all beyond the reach of the party," Chief Justice Marshall once suggested, "other testimony inferior in its nature might be received"; but he considered such evidence to be the "most proper, if not the only modes of verifying foreign judgments." Church v. Hubbart, 6 U.S. (2 Cranch) 187,238 (1804) (Marshall, C.J.).
91. See Ross, supra note 29, at 143;
92. see also 3 William Blackstone, Commentaries *421-22.
93. On the modern treatment of contracts of record, see generally D.H. Overmyer Co. v. Frick Co., 405 U.S. 174 (1972).
94. See, e.g., Phillips v. Hunter, (1795) 126 Eng. Rep. 618, 621 (Exch. Ch.) (finding such a judgment conclusive "between the parties");
95. Burrows v. Jemino, (1726) 93 Eng. Rep. 815 (K.B.);
96. see also Rapalje v. Emory, 2 U.S. (2 Dall.) 51, 52 (Phila. Ct. C. Pl. 1790) (Shippen, President) ("[T]he judgments of foreign courts must necessarily bind ours, and be considered as conclusive, at least in those cases, where the aid of this court is not asked to carry their judgments into effect."),
97. aff d, 2 U.S. (2 Dall.) 231 (Pa. 1795).
98. See, e.g., Walker v. Witter, (1778) 99 Eng. Rep. 1,4 (K.B.).
99. 3 Blackstone, supra note 49, at *25;
100. see also Phillips, 126 Eng. Rep. at 622 (Eyre, L.C.J., dissenting) ("It is in one way only that the sentence or judgment of the Court of a foreign state is examinable in our courts, and that is, when the party who claims the benefit of it applies to our courts to enforce it.");
101. cf. Croudson v. Leonard, 8 U.S. (4 Cranch) 434, 442 (1808) (Washington, J.) (describing the English doctrine as holding that "[t]he judgment of a foreign court is equally conclusive, except in the single instance where the party claiming the benefit of it applies to the courts in England to enforce it, in which case only the judgment is prima facie evidence").
102. "See Douglas v. Forrest, (1828) 130 Eng. Rep. 933 (Ct. Com. Pl.) (treating a Scottish judgment like that of any other foreign country);
103. Otway v. Ramsay, (1737) 107 Eng. Rep. 1113 n.a (K.B.) (Ireland);
104. cf. Engdahl, supra note 25, at 1604-1605 (discussing Otway).
105. Walker, 99 Eng. Rep. at 4;
106. see also id. at 6 (opinion of Buller, J.) ("[I]t is stated to be a judgment of a Court in Jamaica. As such it is to be tried by the country,... and not by the Court.");
107. Hall v. Odber, (1809) 103 Eng. Rep. 949, 951-52 (K.B.);
108. Collins v. Mathew, (1804) 102 Eng. Rep. 1152, 1152 n.b (K.B.);
109. Galbraith v. Neville, (1789) 99 Eng. Rep. 5 n.2, (K.B);
110. Crawford v. Witten, (1773) 98 Eng. Rep. 584, 584 (K.B.);
111. Anon., (1773) 98 Eng. Rep. 582 (K.B.);
112. Sinclair v. Fraser, (1771) 2 Pat. App. Cas. 253, 254 (H.L.) (receiving a Jamaican judgment "as evidence prima facie of the debt," and thus requiring the defendant "to impeach the justice thereof, or to show the same to have been irregularly obtained");
113. cf. Croudson, 8 U.S. at 442.
114. See generally Engdahl, supra note 25, at 1599-1601 (describing the history of this doctrine in England).
115. See Gilbert, supra note 40, at 26;
116. see also 1 Joseph Chitty, A Practical Treatise on Pleading, and on the Parties to Actions, and the Forms of Actions 480-481 (London, W. Clarke & Sons 1809).
117. Id.
118. See e.g., Ewer v. Jones, (1703) 92 Eng. Rep. 124, 125 (K.B.) (Holt, C.J.) ("The sentence of a Civil Law Court in a foreign realm shall be executed in a Court of the same nature here, and proceeding after the same law; and no prohibition, because the temporal Courts proceed by a due law, and we must give credit to the sentence." (footnote omitted));
119. see also Penhallow v. Doane's Adm'rs, 3 U.S. (3 DaIl.) 54, 116 (1795) (opinion of Cushing, J.);
120. M'Grath v. Candalero, 16 F. Cas. 127, 128 (D.S.C. 1794) (No.8809) (citing Ewer);
121. Ludlow v. Dale, 1 Johns. Cas. 16, 17 (N.Y. 1799) (Kent, J.) (noting that admiralty judgments were regarded as universally binding, while other kinds of foreign judgments were respected only as a matter of comity).
122. See, e.g., R. v. Grundon, (1775) 98 Eng. Rep. 1105,1109 (K.B.) (Mansfield, C.J.) ("The King's Courts, if the college do not exceed their jurisdiction, have no cognizance, no superintendance. So with respect to sentences of the Ecclesiastical Court; the Temporal Courts must consider them as final and conclusive until reversed. So in cases within the jurisdiction of the Admiralty Courts, their judgment is conclusive until reversed.");
123. see also McConnell v. Kenton, 1 Ky. (Hughes) 257, 290 (1799) (argument of counsel) ("It is a settled principle that where any matter belongs to the jurisdiction of one court so peculiarly, that other courts can only take cognizance of the same subject indirectly and incidentally, the latter are bound by the decision of the former, and must give credit to it.");
124. Vandenheuvel v. United Ins. Co., 2 Cai. Cas. 216, 257 (N.Y. 1805) (opinion of Kent, J.) ("But if a matter belongs to the jurisdiction of one court so peculiarly as that other courts can only take connusance of the same subject indirectly and incidentally, the rule is then more extensive and un- equivocal. The latter courts are bound by the sentence of the former, until it be reversed,. and must give credit to it universally and without exception. This rule has been illustrated in the case of sentences in the ecclesiastical courts touching marriages and wills; in the exchequer touching the condemnation of forfeited goods; and in the admiralty touching prizes, and in all of which cases, those courts have exclusive jurisdiction.").
125. See generally Max Rheinstein, The Constitutional Bases of Jurisdiction, 22 U. Chi. L. Rev. 775 (1955).
126. (1808) 103 Eng. Rep. 546,547 (K.B.).
127. See Bartlet v. Knight, 1 Mass. (1 Will.) 401, 410 (1805) (opinion of Sedgwick, J.).
128. Compare Thomas Erskine, The Speech of Lord Erskine, in the House of Lords, (the 8th of March, 1808) on Moving Resolutions Against the Legality of the Orders in Council 47-48 (London, James Ridgway 1808) (arguing that admiralty decisions based on the law of nations would be recognized, "because full faith must be given to the acts of courts of competent jurisdiction," but when "particular [foreign] governments have taken upon them to make ordinances and regulations contrary to the law of nations, and without the consent of other states," English courts "uniformly pronounce such ordinances to be absolutely void"),
129. with id. ("If this could be legally done by any particular state [e.g., by domestic law], our courts here would be bound to respect such ordinances as engrafted on the law of nations-").
130. See, e.g., Laycock, supra note 6, at 304 ("The complete phrase 'full faith and credit' appears not to have been used prior to the Articles of Confederation."); cf. Radin, supra note 29, at 16 (arguing that "[t]he combination 'faith and credit' does not demonstrably occur in England before" the 1770s).
131. George Carew, Fraud and Violence Discovered and Detected: Or, a Remonstrance of the Interessed in the Ships Bona Esperanza and Henry Bona Adventura of London 110 (London, William Godbid 1662);
132. see also The Treaty of Peace Between the Crowns of France and Spain, Concluded and Sign'd by His Eminency Cardinal Mazarine, and Don Lewis Méndez de Haro, Plenipotentiarys of Their Most Christian and Catholick Majestys, in the Isle Call'd of the Pheasants, in the River of Bidassoa, upon the Confines of the Pyrenean Mountains, the Seventh of November, 1659, art. XVII, in A General Collection of Treatys, Declarations of War, Manifestos, and Other Publick Papers, Relating to Peace and War, Among the Potentates of Europe, from 1648 to the Present Time 39,47 (London, J. Darby 1710);
133. cf. William Barton, A Dissertation on the Freedom of Navigation and Maritime Commerce, and Such Rights of States, Relative Thereto, as Are Founded on the Law of Nations 236-237 (Phila., John Conrad & Co. 1802) ("Sea-papers, therefore, relating to the shipping and marine trade of a particular country, and verified in due form by officers of the customs, admiralty, or other proper agents of that government, should justly meet with full faith and credit from the public agents of other nations.").
134. A Monition for the Transmission of a Process in a Cause of Appeal in the Arches, in The Clerk's Instructor in the Ecclesiastical Courts 378, 380 (London, E. & R. Nutt 1740).
135. Gilbert, supra note 40, at 14.
136. See Robert Brady, A Continuation of the Complete History of England 206 (London, Edward Jones 1700) (describing a letter from King Edward IH to Parliament, and noting that "[a]t the Close of his Letter he tells them, [t]hat the Persons [with whom the letter was sent] came over to declare his Condition and Business, willing them to give full Faith and Credit to what they should say").
137. Dominick Molloy, The Vindication of Dominick Molloy, Merchant, Against the False and Scandalous Aspersions of John Crump and Hosea Coates, Merchants 24 (Dublin, n. pub. 1750) (reproducing an affidavit certified by Charles Asgill, as well as a certificate by Anthony Weldon that Asgill was "one of his Majesty's Justices of the Peace for this City of London ... and that to all Affidavits before him made, and by him signed, full and undoubted Faith and Credit is and ought to be given, both in Judgment Courts and out thereof);
138. see id. (adding a further certificate by other notaries "[t]hat Mr. Anthony Weldon ... is a Notary and Tabellion Public... faithful, lawful and of Trust; to whose Acts full Faith and Credit is and ought to be given, both in Courts and thereout");
139. see also Adultery: The Very Interesting and Remarkable Trial of Mrs. Elizabeth Hankey 6-7 (London, Proprietor 1783) (noting, with respect to an affidavit, "that the said paper, marked No. 1, is duly signed by and with the proper hand writing of Mark Holman, deputy register of the said court, and that full faith and credit, is and ought to be given thereto");
140. 1 Nicolas Magens, An Essay on Insurances 299 (London, J. Haberkorn 1755) ("We the underwritten Merchants here in Leghorn do attest, that the above-written Dr. Gio Battista Gamerra is, as he stiles himself, a Notary Public, and that to his Firm and Signature full Faith and Credit is given in Court and without; and in Testimony thereof, &c") .
141. Laycock, supra note 6, at 304.
142. Molloy, supra note 69.
143. See, e.g., 2 John Erskine, An Institute of the Law of Scotland 657 (Edinburgh, John Bell 1773) ("After the writings are produced in court, just duplicates of them are made out, collated, and signed by the clerk, which are called transumpts, and are, by the decree of the judge, declared to bear as full faith or credit as an extract from the record of that court. As therefore an extract from a proper record is as effectual as the principal writing, except in an action of proper improbation, so is a decree of tran- sumpt.");
144. John E. Hall, The Practice and Jurisdiction of the Court of Admiralty 98 (Bait., Geo. Dobbin & Murphy 1809) (asking that a registered copy of an instrument "have as full faith and credit as the original");
145. id. at 87 & n.* (noting that the proceedings in one case "shall have full faith and credit" as admissible evidence in another case, "[f]or the records in one judgment are proof in another").
146. See Dacosta and Villa Real, (1733) 93 Eng. Rep. 968, 969 (K.B.) (describing the ecclesiastical judgment as "proper and conclusive evidence," for "it was a cause within their jurisdiction");
147. Jones v. Bow, (1692) 90 Eng. Rep. 735, 735 (K.B.) ("And upon debate the Court were all of opinion, that this sentence, whilst unrepealed, was conclusive against all matters precedent, and that the Temporal Courts must give credit to it until 'tis reversed, it being a matter of [mere] spiritual conusance.");
148. Bunting v. Lepingwell, (1585) 76 Eng. Rep. 950, 952 (K.B.) (noting that "the conusance of the right of marriage belongs to the Ecclesiastical Court, and the same Court has given sentence in this case"); Francis Buller, An Introduction to the Law Relative to Trials at Nisi Prius 244 (London, Strahan & Woodfall 5th ed. 1790) ("[W]here-ever a matter comes to be tried in a collateral way, the decree, sentence, or judgment of any court, ecclesiastical or civil, having competent jurisdiction, is conclusive evidence of such matter.");
149. see generally Engdahl, supra note 25, at 1612-1613 (describing the effect of ecclesiastical judgments).
150. Bunting, 76 Eng. Rep. at 952,
151. cited in Robins v. Crutchley, (1760) 95 Eng. Rep. 721 (K.B.) (argument of counsel);
152. see also Phillips v. Hunter, (1795) 126 Eng. Rep. 618, 622 (Exch. Ch.) (Eyre, L.C.J., dissenting) ("In [such] cases, we give entire faith and credit to the sentences of foreign courts, and consider them as conclusive upon us.");
153. Nadelmann, supra note 25, at 44-46.
154. See, e.g., Whiting Sweeting, A Remarkable Narrative of Whiting Sweeting; Who Was Executed at Albany in the State of New York for Murder 5-6 (Early Am. Imprints, 1st ser., No. 27,768, Exeter, N.H., Henry Ranlet 2d Exeter ed. 1794) ("Would it not have deserved a moment's thought, whether a party of men having a lawful warrant, and though cloathed with the authority of law, getting drunk and committing a riot, ought not to leave a doubt on the mind whether full faith & credit ought to be placed upon their testimony in a cause of life & death; and of the truth of so many circumstances related by them, happening in their heat and zeal; fomented by many extraordinary circumstances, and plentiful draughts of rum, which they said they had with them?").
155. 22 J. Continental Cong. 20. Of course, the heightened evidentiary value was not given to the content of the sailor's will, but rather to its authenticity.
156. See 27 J. Continental Cong. 571 (certifying, in a 1784 letter from the speaker of the Georgia Assembly to the Continental Congress, "that John Wilkinson. is. Clerk of the said House of Assembly, and that I have carefully compared the said Extracts with the Original Journals,. and find the same to be just and true Copies therefrom," and therefore that "all due Faith and Credit are and ought to be had and given to the Attestation of the said John Wilkinson, and to the said Extracts");
157. see also 11 id. at 663 ("full faith and absolute Credit");
158. 31 id. at 623 ("all due faith, credit and authority");
159. Letter from Charles, King of Spain, to Congress (Sept. 25,1784),
160. in 6 The Revolutionary Diplomatic Correspondence of the United States 820,820 (Francis Wharton ed., Wash., D.C., Gov't Printing Office 1889) (naming Don Diego De Gardoqui as his negotiator, and asking "that you will give entire faith and credit to all that in my name he shall say to you").
161. See 1 H.R. Jour. app. at 314 ("These are to certify, that Bowes Reed, Esquire, whose name is subscribed to the annexed certificate, certifying the annexed law to be a true copy taken from the original enrolled in his office, is, and was at the time of signing thereof, Secretary of the State of New Jersey; and that full faith and credit is, and ought to be due to his attestation as such.");
162. see also id. app. at 311-312 (North Carolina, Rhode Island).
163. See, e.g., Hitchcock v. Aicken, 1 Cai. 460,469 (N.Y. 1803) (Livingston, J., dissenting) ("[I]f credit is given to an ambassador by the court to which he is sent, the latter do not thereby only admit that he is invested with that character, but that what he says is true. It is the same when a witness is credited; it is his relation which is believed; not merely that he appears as a witness. In like manner if full faith and credit be given to a deposition, it does not only imply that we admit there is such a writing, but that we fully and implicitly rely on its contents.");
164. see also Curtis v. Gibbs, 2 N.J.L. 399,400-405 (1805) (opinion of Pennington, J.).
165. See sources cited supra note 25.
166. Nadelmann, supra note 25, at 38-39.
167. Act Providing What Shall Be Good Evidence To Prove Foreign and Other Debts, and To Prevent Vexations and Unnecessary Suits at Law, Pleading Discounts in Bar (Md. 1729),
168. reprinted in James Bissett, Abridgment and Collection of the Acts of Assembly of the Province of Maryland, at Present in Force 136, 136 (Early Am. Imprints, 1st ser., No. 8391, Phila., William Bradford 1759). This statute repealed and reenacted an earlier act of 1715.
169. See Bissett, supra, at 359;
170. see also Nadelmann, supra note 25, at 39.
171. Act of Assembly 1731, P.L. 129 (S.C.), reprinted in 1 Joseph Brevard, An Alphabetical Digest of the Public Statute Law of South-Carolina 316, 316 (Charleston, S.C., John Hoff 1814);
172. see also Nadelmann, supra note 25, at 39;
173. cf. Act of Assembly 1721, P.L. 117 (S.C.), reprinted in 1 Brevard, supra, at 315-316 (making certain copies of do- mestic records "as good evidence in the said courts as the original could or might have been, if produced to the said courts").
174. An Act To Enable Persons To Bring Forward and Maintain Actions of Debt in the Executive Courts Within This Province upon Judgments Recovered in the Neighboring Governments, and upon Judgments Recovered Before Justices of the Peace in this Province, ch. 322, pmbl., 14 Geo. 3 (Mass. 1774), in The Charters and General Laws of the Colony and Province of Massachusetts Bay 684 (Early Am. Imprints, 2d ser., No. 32,028, Boston, T.B. Wait & Co. 1814) [hereinafter Massachusetts Act 1774];
175. see also Nadelmann, supra note 25, at 40.
176. Massachusetts Act 1774 pmbl.
177. Id. §2.
178. Id. §1.
179. 9 J. Continental Cong. 887 (emphasis added). The full provision stated "[t]hat 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, and that an Action of Debt may lie in the Court of Law in any State for the Recovery of a Debt due on Judgment of any Court in any other State; provided the Judgment Creditor gives sufficient Bond with Sureties before Said Court before whom [the] Action is brought to respond in Damages to the Adverse Party in Case the original Judgment Should be afterwards reversed and Set aside."
180. Id. Minor changes to the language were made in the handwriting of delegate James Duane. See id. at 887 n.5.
181. Id. at 887 n.5.
182. Id. at 895-896
183. Id. In final form, the clause read as follows: "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." Articles of Confederation art. IV, cl. 2.
184. Radin read the journals differently; he portrayed the printed version of the November 11 committee report as inaccurate, since it included additional language not suggested (on his view) until the proposed amendment of November 12.
185. See Radin, supra note 29, at 4 n.8. But this reading ignores the differences in language between the report's version and the amendment (notably the insertion of the second proviso), as well as the statement that the report's extra language was "struck out in Congress" (rather than simply not added in the first place).
186. 9 J. Continental Cong. 887 n.5. Indeed, other clauses proposed by the committee also had some of their language "struck out" by Congress, even though the journals contain no mention of the process of striking them.
187. See id. at 887 & n.2 (concerning the power to discipline members of Congress);
188. id. at 890 & n.l (concerning lands claimed under grants of different states).
189. See Whitten, supra note 4, at 280 n.82.
190. Committee Report on Carrying the Confederation into Effect and on Additional Powers Needed by Congress (Aug. 22, 1781), in 1 The Documentary History of the Ratification of the Constitution 143,144 (Merrill Jensen ed., 1976) (first and third alterations in original).
191. The committee was composed of Edmund Randolph, Oliver Ellsworth, and James M. Varnum. Id. at 143;
192. see also Engldahl, supra note 25, at 30.
193. 1 S. C. L. (1 Bay) 8,8 (C.P. & Gen. Sess. 1784).
194. Id. at 10.
195. "Id.;
196. accord M'Grath v. Candalero, 16 F. Cas. 127, at 127-28 (D.S.C. 1794) (No. 8809) (responding to a claim that courts must give "full faith and credit" to admiralty judgments by noting that "the sentence of an admiralty court duly constituted must receive full credit in foreign countries").
197. See, e.g., Kibbe v. Kibbe, 1 Kirby 119,126 (Conn. Super. Ct. 1786) ("It appears by the pleadings, that the defendant was. not within the jurisdiction of the Court... at the time of the pretended service of the writ; therefore, the court had no legal jurisdiction of the cause, and so no action ought to be admitted on said judgment: But full credence ought to be given to judgments of the courts in any of the United States, where both parties are within the jurisdiction of such courts at the time of commencing the suit.");
198. Millar v. Hall, 1 U.S. (1 Dall.) 229, 232 (Pa. 1788) (noting that the court had considered "the principles of the law of nations, and the reciprocal obligation of the states under the articles of confederation");
199. Camp v. Lockwood, 1 U.S. (1 Dall.) 393,403 (Pa. C.P. Phila. County 1788) (recognizing a confiscation proceeding in Connecticut without mentioning the Confederation Clause, instead relying on "the peculiar relation that these States stand in to one another," as "bound together by common interests, and. jointly represented and directed as to national purposes, by one body as the head of the whole");
200. Doane's Adm'rs v. Penhallow, 1 U.S. (1 Dall.) 218,219-220 (Pa. C.P. Phila. County 1787) ("[W]e think ourselves indispensably bound to give full faith and credit to the legal acts of our Sister States; and ... the judgments given in their courts will have their full effect here. But it is not every discontinuance that will disable a Plaintiff to hold a Defendant to bail in a second action.").
201. 1 U.S. (1 Dali.) 188, 188-189 (Pa. C.P. Phila. County 1786).
202. Id. at 191.
203. Id. at 191-192
204. Id. at 192 (emphasis added). Likewise, in Phelps v. Holker, 1 U.S. (1 Dall.) 261 (Pa. 1788), the Pennsylvania Supreme Court rejected a claim that the judgments of other states, even if rendered without actual notice, had conclusive res judicata effect. Indeed, Justice Rush asked whether, "[i]f this Judgment were as conclusive as the Plaintiff contends, might he not issue an execution at once?"
205. Id. at 264 (opinion of Rush, J.). Although the court did not discuss the issue more broadly than the case required, the defense counsel had argued generally for an authentication-based reading of the Articles, stating that they "only provide, that, in matters of evidence, mutual faith and credit shall be given to the records, acts, and judicial proceedings of the States,"
206. id. at 261-262 (argument of counsel).
207. Engdahl reads the James court's reference to "full evidence," as well as Gilbert's use of the word "full," to indicate "evidentiary sufficiency," in the sense that a foreign money judgment was prima facie sufficient to support a recovery (if still rebuttable).
208. See Engdahl, supra note 25, at 1608-09,1615;
209. cf. Gilbert, supra note 40, at 19. He thus reads the Clause's reference to "Full Faith and Credit" to "allud[e] to the prima facie evidence rule long employed by the common law courts," although Congress retains a power of augmenting this effect by statute.
210. Engdahl, supra note 25, at 1609;
211. see also id. at 1621. This interpretation is intriguing, but there are at least two reasons for doubt. First, Engdahl draws the parallel from Gilbert's description of the testimony of a single witness as prima facie sufficient for a fact to be "fully proved."
212. See id. at 1609 (emphasis added)
213. see also Gilbert, supra note 40, at 20. This mild description is a far cry from the mandatory conclusions that Gilbert thought must be drawn from records given under the Great Seal or Broad Seal-records which were "of the greatest Validity, and to which the Jury ought to give Credit, under the Penalty of an Attaint."
214. Gilbert, supra note 40, at 14;
215. accord Monition, supra note 66, at 380 (referring to full faith and credit given "under Pain of the Law, and Contempt thereof). Second, this interpretation muddies the Clause's distinction between the "Faith and Credit" of a record and its "Effect." To the extent that the reference to "Full" faith and credit concerned issues of admissibility, if "Full" meant "prima facie," it would be odd for a properly-authenticated state judgment to be merely prima facie evidence of its own existence and contents. Alternatively, if "Full" addressed issues of substantive effect-and mandated that a record "shall be given" prima facie effect in particular- then its grant of a power in Congress to "declare the Effect" would seem to contradict this mandate, unless the first sentence is implausibly read as a default rule only. Some of the proposals in Congress extended something less than prima facie effect to certain judgments, but they did not generate constitutional objections on these grounds.
216. See infra Part III.F.
217. See, e.g., Engdahl, supra note 25;
218. Laycock, supra note 6, at 291-93;
219. Nadelmann, supra note 25, at 53-62;
220. Whitten, supra note 4, at 288-295
221. See 2 The Records of the Federal Convention of 1787, at 188 (Max Farrand ed., 1911) [hereinafter 2 Farrand]. In debates on August 29, James Wilson and Dr. William Johnson understood the Clause as providing that "Judgments in one State should be the ground of actions in other States," and that legislative acts should be included "for the sake of Acts of insolvency &c," which prompted Charles Pinckney to propose a separate bankruptcies clause.
222. Id. at 447.
223. See supra note 94 and accompanying text.
224. 2 Farrand, supra note 105, at 448.
225. Id. ("Whenever the Act of any State, whether Legislative Executive or Judiciary shall be attested & exemplified under the seal thereof, such attestation and exemplification, shall be deemed in other States as full proof of the existence of that act-and its operation shall be binding in every other State, in all cases to which it may relate, and which are within the cognizance and jurisdiction of the State, wherein the said act was done.").
226. Id. ("Full faith ought to be given in each State to the public acts, records, and judicial proceedings of every other State; and the Legislature shall by general laws, determine the proof and effect of such acts, records, and proceedings.").
227. Id. at 485 ("Full faith and credit ought to be given in each State to the public acts, records, and Judicial proceedings of every other State, and the Legislature shall by general laws prescribe the manner in which such acts, Records, & proceedings shall be proved, and the effect which Judgments obtained in one State, shall have in another.").
228. Id. at 488.
229. Id.
230. The Federalist No. 42, at 287 (James Madison) (Jacob E. Cooke ed., 1961). The Clause was discussed briefly in the Virginia ratification convention, where George Mason asked "how far it may be proper that congress shall declare the effects" of state acts. 3 Jonathan Elliot, The Debates in the Several State Conventions 529 (Wash., D.C., Jonathan Elliot 1836). Madison replied that "this is a clause which is absolutely necessary. I never heard any objection to this clause before, and have not employed a thought on the subject."
231. Id.
232. The Federalist No. 42, supra note 113, at 287.
233. 2 Farrand, supra note 105, at 488.
234. See Whitten, supra note 4, at 264.
235. Cf. Bissell v. Edwards, 5 Day 363, 367 (Conn. 1812) (Baldwin, J., concurring) ("The Constitution... provides, that Congress may, by law, prescribe the manner in which they shall be proved, and the effect thereof. Until Congress shall prescribe the mode of proof, they are to be proved to the satisfaction of the court; and perhaps, according to the mode required by the common law, for proving foreign judgments; and when so proved, full faith is to be given to them." (emphasis added)).
236. Some have argued along these lines that the Clause requires states to give effect to judgments according to preexisting international law. The better view, however, seems to be that the Clause merely leaves such law in place, to operate of its own force.
237. See generally Caleb E. Nelson, Originalism and Interpretive Conventions, 70 U. Chi. L. Rev. 519,593-595 (2003) (citing sources).
238. Gilbert, supra note 40, at 19.
239. Act of Feb. 2,1786 §9 (Del.), in Laws of the General Assembly, of the Delaware State 9,10 (Early Am. Imprints, 1st ser., No. 19,600, Wilmington, Del., Jacob A. Killen & Co. 1786).
240. A similar law was enacted by Virginia in 1805.
241. See An Act for Carrying into Execution the Constitution of the Mutual Assurance Society Against Fire on Buildings of the State of Virginia, Lately Adopted at a General Meeting §18, ch. 24 (Va. Jan. 29, 1805) (providing that "a copy relative to any delinquent member or subscriber [of the society], from the records of the said society,. [properly authenticated] under the seal of the society, shall be received as evidence, and have as full faith and credit m all the courts of this commonwealth, as if the originals were produced in any action, motion or suit"),
242. reprinted in 3 (n.s.) Samuel Shepherd, The Statutes at Large of Virginia, from October Session 1792, to December Session 1806, Inclusive 145,148 (Richmond, Samuel Shepherd 1836).
243. Ch. 11, 1 Stat. 122 (1790) (codified as amended at 28 U.S.C §1738 (2006)).
244. Robinson v. Prescott, 4 N.H. 450,453 (1828).
245. The issue was brought before the First Congress by Rep. William Loughton Smith of South Carolina, who on February 1,1790, suggested that a bill be drafted to exercise Congress' powers under the Clause. 1 Annals of Cong. 1144 (Joseph Gales ed., 1834).
246. Smith's interest in an issue dear to creditors was understandable; a commercial attorney and a member of the Middle Temple, he had "opposed the strong debtor-relief measures that the legislature passed in the mid-1780s," and was a Federalist supporter of Hamilton's economic programs. "Smith, William Loughton," in American National Biography 314 (John A. Garraty & Mark C. Carnes eds., 1999).
247. A three-person committee was then appointed to draft the bill, presenting it on April 28. 1 Annals of Cong. 1144 (Joseph Gales ed., 1834);
248. 2 Annals of Cong. 1601 (1834).
249. The committee consisted of John Page, George Thatcher, and James Jackson. 1 id. at 1144. Thatcher and Jackson both had legal training.
250. See Biographical Directory of the U.S. Congress, Jackson, James, (1757-1806), http://bioguide.congress.gov/ scripts/biodisplay.pl?index=J000017 (last visited Apr. 4, 2009);
251. Biographical Directory of the U.S. Congress, Thatcher, George, (1754-1824), http://bioguide.congress.gov/ scripts/biodisplay.pl?index=T000141 (last visited Apr. 4,2009).
252. See 2 Annals of Cong. 1603 (1834) ("The committee [of the whole] made an amendment to the bill, which was reported to the House; and being concurred with, the bill was ordered to be engrossed for a third reading.").
253. See, e.g., American Legislation, Vt. J. & Universal Advertiser (Windsor, Vt.), Mar. 3,1790, at 1;
254. House of Representatives: April 28, Herald of Freedom (Boston), May 7,1790, at 63;
255. Proceedings of the Columbian Federal Congress, Mass. Spy: Or, The Worcester Gazette (Worcester, Mass.), Feb. 18,1790, at 2.
256. See 1 Annals of Cong. 1005-07 (Joseph Gales ed., 1834). The Senate records on the day the bill passed are particularly sparse.
257. See 9 Documentary History of the First Federal Congress 260 (Kenneth R. Bowling & Helen E. Veit eds., 1988) (Diary of William Maclay, May 4,1790) ("I felt in some degree the effects of the bad Wine We had drank, for I had an head Ach. A great deal of Business was done this day in the Senate in the Way of passing & reading bills but no Debate of any Consequence.").
258. Congress. House of Representatives, Pa. Mercury & Universal Advertiser (Phila.), Feb. 6,1790, at 3 (emphasis added).
259. 1 Annals of Cong. 1144 (Joseph Gales ed., 1834).
260. 2 Annals of Cong. 1601 (1834).
261. Id. at 1603, 1605. In one mention of the bill, the Annals also leave off the last clause of the title ("so as to take effect in every other State"), but this may be a simple error, as the House Journal for the same day records the full title.
262. See 1 H.R. Jour. 204;
263. 2 Annals of Cong. 1601 (1834). Another mention of the bill without reference to "effect" seems more clear;
264. see id. at 1605 ("A message from the Senate informed the House that they have passed the bill to prescribe the mode in which the public acts, records, and judicial proceedings in each State shall be authenticated.");
265. Proceedings of Congress, Providence Gazette & Country J., May 22,1790, at 2 ("A message was received from the Senate, informing the House, that they have passed the bill prescribing the mode of authenticating the acts, records and proceedings, of the several States.").
266. Statutory compilations do not provide a clear characterization of the 1790 Act. Compare Thomas Herty, A Digest of the Laws of the United States of America 428 (Bait., W. Pechin 1800) (listing the Act under the heading "Records &c. Authentication of), with 1 The Laws of the United States of America 115 (Phila., Richard Folwell 1796) (labeling the last sentence of the 1790 Act in the margin as pertaining to "the effect thereof).
267. See also Roe v. Doe ex dem. Neal, Dud. 168,1 Ga. Rep. Ann. (Michie) 441, 443 (Warren Super. Ct. 1832) (describing the 1790 Act as "the act of congress, directing how the records of the courts of one State to another should be certified").
268. An Act To Provide for the Safe-Keeping of the Acts, Records, and Seal of the United States, and for Other Purposes, ch. 14, §5,1 Stat. 68,68-69 (1789).
269. The provision likely refers to the court of appeal for prize cases, see Articles of Confederation art. IX, §1;
270. Henry J. Bourguignon, The First Federal Court: The Fed-
271. eral Appellate Prize Court of the American Revolution, 1775-1787, at 113 (1977), rather than the tribunal created to settle disputes between the states, see Articles of Confederation art. IX, §2.
272. An Act for Regulating Processes in the Courts of the United States, and Providing Compensations for the Officers of the Said Courts, and for Jurors and Witnesses (Process Act of 1792), ch. 36, §12,1 Stat. 275, 279 (1792).
273. An Act To Provide More Effectually for the Settlement of Accounts Between the United States, and Receivers of Public Money, ch. 20, § 2, 1 Stat. 512,513 (1797) (emphasis added).
274. An Act To Enable the Proprietors of Lands Held by Titles Derived from the United States To Obtain Copies of Papers from the Proper Department, and To Declare the Effect of Such Copies, ch. 6, 3 Stat. 721 (1823).
275. An Act for Authenticating Certain Records, ch. 61, §3, 9 Stat. 346, 347 (1849).
276. See Penhallow v. Doane's Adm'rs, 3 U.S. (3 DaIl.) 54 (1795). One attorney claimed that Congress had "declared the Effect of the Records of the State Courts," but not "of the former courts of Adm[iralt]y." William Patterson's Notes of Arguments in the Supreme Court (Feb. 12, 1795), in 6 The Documentary History of the Supreme Court of the United States, 1789 - 1800, at 465 (Maeva Marcus ed., 1998).
277. See, e.g., William Baude, The Judgment Power, 96 Geo. LJ. 1807, 1828-31 (2008).
278. See Bartlet v. Knight, 1 Mass. 401, 409-410 (1805) (opinion of Sedgwick, J.).
279. See Buchanan v. Rucker, (1808) 103 Eng. Rep. 546, 547 (K.B.);
280. see also sources cited in James Weinstein, The Federal Common Law Origins of Judicial Jurisdiction: Implications for Modern Doctrine, 90 Va. L. Rev. 169, 191-99 (2004).
281. See Bartlet, 1 Mass. at 410.
282. See 9 J. Continental Cong. 895-896 (requiring "notice in fact... of the original writ upon which such judgment shall be founded");
283. see also supra note 91 and accompanying text
284. See 2 Farrand, supra note 105, at 448 (providing that a sister-state judgment should be "binding in every other State, in all cases to which it may relate, and which are within the cognizance and jurisdiction of the State, wherein the said [judgment was rendered]");
285. see also supra note 108 and accompanying text.
286. See infra Parts .C, .E-.F.
287. 11 U.S. (7 Cranch) 481, 486 (1813) (Johnson, J., dissenting).
288. 52 U.S. (11 How.) 165 (1850).
289. See, e.g., Semtek Int'l Inc. v. Lockheed Martin Corp., 531 U.S. 497, 506-507 (2001);
290. Currie, supra note 31, at 103.
291. See Process Act of 1792, ch. 36, §1,1 Stat, at 275-76;
292. An Act To Regulate Processes in the Courts of the United States, ch. 21, §1,1 Stat. 93, 93 (1789);
293. An Act To Provide for the Safe-Keeping of the Acts, Records, and Seal of the United States, and for Other Purposes, ch. 14, 1 Stat. 68, 68 (1789). These functions are now performed by Fed. R. Civ. P. 44(a)(1).
294. See Warder v. Arell, 2 Va. (2 Wash.) 282, 298 (1796) ("[T]hough they form a confederated government, yet the several states [in] their individual sovereignties, and, with respect to their mu[tu]al laws, are to each other foreign.").
295. See Caleb Nelson, Preemption, 86 Va. L. Rev. 225, 246-249 (2000).
296. Laycock has argued that "records" should be read here to include legislation. Laycock, supra note 6, at 294. But given the frequent and precise listing of "Acts, Records, and Judicial Proceedings," both in the title of the Act and in the language of the Clause itself, a reading that would make "Acts" superfluous seems unlikely.
297. See Whitten, The Constitutional Limitations on State Choice of Law, supra note 25, at 52-53; see also supra note 53 and accompanying text.
298. The very idea was considered a reductio. See Mills v. Duryee, 11 U.S. (7 Cranch) 481, 485 (1813);
299. see also Phelps v. Holker, 1 U.S. (1 Dall.) 261,264 (Pa. 1788) (opinion of Rush, J.).
300. 5 Nathan Dane, A General Abridgment and Digest of American Law, with Occasional Notes and Comments 217 (Boston, Cummings, Hilliard & Co. 1824).
301. American Precedents of Declarations 31 (Benoni Perham ed., Boston, Barnard B. Macanulty 1802);
302. compare with Engdahl, supra note 25, at 1604-1606 (discussing locality).
303. American Precedents of Declarations, supra note 156, at 31.
304. Id. at 32.
305. See Mills, 11 U.S. at 485; cf. Baker v. Gen. Motors Corp., 522 U.S. 222, 241 (1998) (Scalia, J., concurring in judgment) ("[T]he Constitution 'did not make the judgments of other States domestic judgments to all intents and purposes, but only gave a general validity, faith, and credit to them, as evidence. No execution can issue upon such judgments without a new suit in the tribunals of other States.'"
306. (quoting Thompson v. Whitman, 85 U.S. (18 Wall.) 457, 462-463 (1873))).
307. See An Act to Provide More Effectually for the Settlement of Accounts Between the United States, and Receivers of Public Money, c. 20, §6, 1 Stat. 512, 515 (1797) ("And be it further enacted, That all writs of execution upon any judgment obtained for the use of the United States, in any of the courts of the United States in one state, may run and be executed in any other state, or in any of the territories of the United States, but shall be issued from, and made returnable to the court where the judgment was obtained, any law to the contrary notwithstanding.").
308. As Whitten notes, a judgment could have a conclusive effect without itself serving as a ground for a writ of execution.
309. See Whitten, supra note 4, at 284-285 Yet under the theory of domestic judgments employed by these commentators, that possibility is ignored: if sister-state records were domestic for the purposes of a debt action, they would not be foreign for the purposes of execution.
310. Spegail v. Perkins, 2 Root 274,274 (Conn. Super. Ct. 1795).
311. Baldwin v. Kellogg, 1 Day 4,7 (Conn. 1802).
312. Nixon v. Young, 2 Yeates 155, 160 (Pa. 1796).
313. Mathew Coleman v. Guardian of a Free Negro Named Ben, 2 S.C.L. (2 Bay) 485, 487 (Const. App. 1803);
314. see also Pettit v. Seaman, 2 Root 178,180 (Conn. Super. Ct. 1795) ("The person of the petitioner being attached ... gave jurisdiction to the courts of this state. Yet the plaintiff by this acquired no greater rights... than he would have had, had he prosecuted the action in the state of New York.-Besides, by the Constitution. full faith and credence is to be given, by each state to the laws, records and judicial proceedings of the other states; we are therefore bound to respect the laws and judicial proceedings of the state of New York." (emphasis added)).
315. See, e.g., Adams v. Griffeth, 1 Del. Cas. 243 (Del. CP. 1799);
316. Smith v. Blagge, 1 Johns. Cas. 238, 239 (N.Y. 1800) ("We cannot officially know the forms of another state, and therefore they ought to be proved [under the 1790 Act].");
317. see also M'Farlane v. Harrington, 2 S.C.L. (2 Bay) 555 (Const. App. 1804).
318. Adams, 1 Del. Cas. at 244 (argument of counsel).
319. Eilmore v. Millss, 2 N.C. (1 Hayw.) 359,359 (N.C Super. L. & Eq. 1796);
320. see also Pepoon v. Jenkins, 2 Johns. Cas. 119,119 (N.Y. 1800) ("[I]t remains with the court to decide upon the sufficiency of the evidence.").
321. 2 U.S. (2 Dall.) 302 (CCD. Pa. 1794).
322. Id. at 303 (reporter's headnote).
323. Id. (Wilson, J.). Indeed, Wilson was among those who had previously had "doubts" on the meaning of the self-executing sentence; see supra text accompanying note 115.
324. See, e.g., Bastable v. Wilson, 1 Cranch C.C. 124, 2 F. Cas. 1012, 1012 (C.C.D.C. 1803) (No.1097) (refusing, without argument, a plea of nil debet to an action of debt on a Virginia judgment);
325. Banks v. Greenleaf, 2 F. Cas. 756, 759 (CCD. Va. 1799) (No. 959) (Washington, Circuit Justice) King v. Van Gilder, 1 D. Chip. 59, 60-61 (Vt. 1797) (opinion of Chipman, C.J.) ("In cases to which [the 1790 Act] extends, I consider that we are bound to admit copies authenticated in the mode therein prescribed, and to allow the judgments their full effect, yet, they may be admitted on other proof of their authenticity; but, unless the record be authenticated agreeably to that act, the judgment will be considered as having the effect of a foreign judgment only.").
326. Sykes v. Goldsborough, 1 Del. Cas. 491, 492 (Del. CP. 1796) (Johns, J.) (also citing Phelps v. Holker, 1 U.S. (1 Dall.) 261 (Pa. 1788)).
327. Wright v. Tower, 1 Browne app. at i, xi (Pa. C.P. Luzerne County 1801).
328. Id. at x-xi.
329. Id. at xi; see also Whitten, supra note 4, at 306-11 (describing Rush's argument in great detail). An earlier decision in Pennsylvania had been unclear, treating authenticated copies as "conclusive evidence," but arguably conclusive only as to the existence of the original. See Baker v. Field, 2 Yeates 532, 532 (Pa. 1800) ("To make a record conclusive evidence, and to give it 'such faith and credit in every other court of the United States, as it has by law or usage in the courts of the state, from whence such record is taken,' it must be authenticated according to the act of the Union; but... the usual certificates may be received as prima facie evidence of the record [that is, of its existence and contents], and may be shewn to the jury." (last emphasis added)). Wright neither mentioned nor attempted to distinguish Baker, which suggests that the two decisions were not seen as inconsistent.
330. 3 S.C.L. (1 Brev.) 110 (Const. App. 1802).
331. Id. at 114 (opinion of Grimke, J.).
332. Id. (opinion of Grimke, J.). By contrast, Justice Johnson, who would later dissent in Mills, did not enter the dispute between conclusive and prima facie effect. Instead, he argued that the evidentiary effect was separate from the question of the proper plea. The plaintiffs would receive "all the benefit intended to be secured by the constitution, by giving an exemplification in evidence, under the plea of nil debet"; were sister-state judgments treated as the sort of domestic judgments appropriate for nul tiel record, "the next step would be to decide that a [writ of execution on] a judgment in a sister State, might be maintained in this State." Id. (opinion of Johnson, J.). Johnson and Grimke were each joined by another justice, while Justice Brevard dissented on grounds similar to those of Armstrong.
333. See id. (Brevard, J., dissenting) (noting that foreign judgments are merely prima facie evidence of the debt, but that "surely this is not the footing on which the solemn judgments, and judicial proceedings of the courts of law of the several States, united under the same general government, and constituting the nation, are placed in relation to each other"). Brevard later recognized, however, that the judgments of sister states lacked the full effect of domestic judgments. See Reynold's Ex'rs v. Torrance, 4 S.C.L. (2 Brev.) 59, 61 (Const. App. 1806) ("[T]he authority derived from the probate of a will... in another of the United States, will not extend to this, so as to empower the executor to meddle with the effects... of the deceased within this State.").
334. The court had previously encountered the issue in 1800 and 1801, but had declined to reach it, describing it as "a question of considerable moment." Rush v. Cobbett, 2 Johns. Cas. 256, 257-58 (N.Y. 1801);
335. see also Smith v. Blagge, 1 Johns. Cas. 238, 238-239 (N.Y. 1800).
336. Cai. 460,481 (N.Y. 1803) (opinion of Kent, J.).
337. 182 Id. at 480 (emphasis added);
338. see also id. at 475-76 (opinion of Radcliff, J.) ("The full faith and credit, intended by the Constitution[,] cannot be interpreted to mean their legal effect, for otherwise the subsequent provision that Congress may prescribe the effect would be senseless and nugatory." (emphasis added));
339. id. at 476 ("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 conclusive of the fact. but its legal effect, or operation, on the rights of the parties, is still to be considered, and frequently may form a distinct question.");
340. id. at 483 (opinion of Lewis, C.J.) ("For, where is the use of Congress prescribing, by general laws, the effect of such judgments. if by full faith and credit absolute verity is intended." (emphasis added)).
341. Id. at 480 (opinion of Kent, J.) (emphasis added);
342. see also id. at 477 (opinion of Radcliffe, J.) ("When so authenticated, they are entitled to full faith 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." (emphasis added)). Kent's Commentaries, published long after Hitchcock, would not take this view, but would merely restate the Supreme Court's subsequent holdings in Mills v. Duryee and Hampton v. M'Connel. See 1 James Kent, Commentaries on American Law 243-244 (N.Y., O. Halstead 1826).
343. 1 Cai. at 468 (Livingston, J., dissenting) ("To introduce a distinction between domestic and foreign judgments. must have been their intention; otherwise, they would have been silent.");
344. see also id. at 463-464 (Thompson, J., dissenting) ("The framers of this Constitution, doubtless, well understood the light in which foreign judgments were viewed in courts of justice, and must have intended, by this article, to place the States upon a different footing with respect to each other than that on which they stood in relation to foreign nations.").
345. Id. at 471 (Livingston, J., dissenting).
346. Id.; cf. 5 Dane, supra note 155, at 217 ("The effect of what? Of the record that is before declared by the constitution to be entitled to full faith and credit, when found to be a record. The effect thereof then applies to the proof.). But see Corwin, spra note 29, at 374 (1933) (describing it as "clear[]" that "the word 'effect' is construed as referring to the effect of the records when authenticated, not to the effect of the authentication"). Justice Story would later take a similar position to Livingston's in his Commentaries on the Constitution, see 3 Joseph Story, Commentaries on the Constitution of the United States §§1306-07, at 181-83 (Boston, Hilliard, Gray & Co. 1833);
347. Engdahl, supra note 25, at 1588 n.10, 1589 n.17, 1652-54, but this was not his position as of 1805, see Joseph Story, A Selection of Pleadings in Civil Actions 295-296 (Salem, Mass., Barnard B. Macanulty 1805) (attributing a judgment's effect to the 1790 Act, not the Clause, in response to another's argument that "[t]he act of Congress seems to provide for the evidence only").
348. See supra note 94 and accompanying text.
349. See supra text accompanying notes 113 & 114.
350. See, e.g., Farley v. Shippen, Wythe 254, 266 n.e (Va. Ch. 1794) (noting that, although removal across state borders might defeat a writ of execution, the Effects Clause seemed "to shew that provision for such cases as these, among others, was intended to be made").
351. Hitchcock, 1 Cai. at 471 (Livingston, J., dissenting) (emphasis added);
352. but see id. at 465-466 (Thompson, J., dissenting) ("If nothing more was intended than to declare the manner of authenticating such records and proceedings, this part of the act is useless; nay, worse, it is mischievous, being calculated to mislead.").
353. Id. at 472 (Livingston, J., dissenting).
354. Id. Livingston wondered whether, "in extraordinary cases," a court might be empowered to declare particular judgments "as exceptions to the general law, and as not contemplated by the Constitution"; such intervention, he argued, "would be a better course than to render null and void one of its most important and salutary provisions." Id. Kent, however, would have none of this.
355. See id. at 481-482 (opinion of Kent, J.) ("[I]f we may question the binding force of the proceeding or judgment in one case, we may in another; for, the act of Congress has no exceptions, and must receive a uniform construction.").
356. The act reads in full as follows: Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That from and after the passage of this act, all records and exemplifications of office books, which are or may be kept in any public office of any state, not appertaining to a court, shall be proved or admitted in any other court or office in any other state, by the attestation of the keeper of the said records or books, and the seal of his office thereto annexed, if there be a seal, together with a certificate of the presiding justice of the court of the county or district, as the case may be, in which such office is or may be kept; or of the governor, the secretary of state, the chancellor or the keeper of the great seal of the state, that the said attestation is in due form, and by the proper officer; and the said certificate, if given by the presiding justice of a court, shall be farther authenticated by the clerk or prothonotary of the said court, who shall certify under his hand and the seal of his office, that the said presiding justice is duly commissioned and qualified; or if the said certificate be given by the governor, the secretary of state, the chancellor or keeper of the great seal, it shall be under the great seal of the state in which the said certificate is made. And the said records and exemplifications, authenticated as aforesaid, shall have such faith and credit given to them in every court and office within the United States, as they have by law or usage in the courts or offices of the state from whence the same are, or shall be taken.
357. Sec. 2. And be it further enacted, That all the provisions of this act, and the act to which this is a supplement, shall apply as well to the public acts, records, office books, judicial proceedings, courts and offices of the respective territories of the United States, and countries subject to the jurisdiction of the United States, as to the public acts, records, office books, judicial proceedings, courts and offices of the several states.
358. An Act Supplementary to the Act Intituled "An Act To Prescribe the Mode in Which the Public Acts, Records and Judicial Proceedings in Each State Shall Be Authenticated so as To Take Effect in Every Other State," ch. 56, 2 Stat. 298, 298-299 (1804) (codified as amended at 28 U.S.C §1739 (2006)).
359. See Scott A. Taylor, Enforcement of Tribal Court Tax Judgments Outside of Indian Country: The Ways and Means, 34 N.M. L. Rev. 339, 352 (2004).
360. 13 Annals of Cong. 554 (1852). The committee was composed of Nicholson, Thomas Griffin of Virginia (who was at the time also a justice of oyer and terminer in his home state), and James Holland of North Carolina, a former justice of the peace.
361. See Biographical Directory of the U.S. Congress, Griffin, Thomas, (1773-1837), http://bioguide.congress.gov/scripts/biodisplay.pl?index=G000467 (last visited Mar. 29, 2009);
362. Biographical Directory of the U.S. Congress, Holland, James, (1754-1823), http://bioguide.congress.gov/scripts/biodisplay.pl?index=H000718 (last visited Mar. 29, 2009).
363. A Bill Supplementary to the Act, Intituled, "An Act To Prescribe the Mode in Which the Public Acts, Records, and Judicial Proceedings in Each State, Shall Be Authenticated so as To Take Effect in Every Other State," 8th Cong. (Nov. 2, 1803).
364. See 13 Annals of Cong. 625 (1803);
365. see also 4 H.R. Jour. 436 (1803), 440, 446, 459.
366. 13 Annals of Cong. 979 (1804);
367. see A Bill Supplementary to the Act, Entitled, "An Act To Prescribe the Mode in Which the Public Acts, Records and Judicial Proceedings in Each State, Shall Be Authenticated so as To Take Effect in Every Other State," 8th Cong. (Feb. 7, 1804).
368. 4 H.R. Jour. 681-82 (1804);
369. 3 S. Jour. 402-04 (1804).
370. The issue of "office copies" of court records had arisen in Jenkins v. Kinsley, 3 Johns. Cas. 2d 474 (N.Y. 1794), and had been resolved in favor of admitting them on commonlaw grounds.
371. See also Gilbert, supra note 40, at 23-24 (discussing office copies).
372. See Nadelmann, supra note 25, at 61.
373. 2 Stat, at 299.
374. Act of Dec. 8, 1792-Oct. 1,1893, ch. 100, §2 (Va.), reprinted in Joseph Tate, A Digest of the Laws of Virginia 456 (Richmond, Shepherd & Pollard 1823).
375. Act of Assembly 1803, 2 Faust 498 (S.C), reprinted in 1 Brevard, supra note 83, at 319-320
376. 28 U.S.C. §1733 (2006).
377. Id. §1734 (empowering courts to enter an order reciting the substance of a lost or destroyed court record, and providing that "[s]uch order, subject to intervening rights of third persons, shall have the same effect as the original record").
378. Id. §1736 ("Extracts from the Journals of the Senate and the House of Representatives, and from the Executive Journal of the Senate when the injunction of secrecy is removed, certified by the Secretary of the Senate or the Clerk of the House of Representatives shall be received in evidence with the same effect as the originals would have.").
379. Id. §1740 ("Copies of all official documents and papers in the office of any consul or vice consul of the United States, and of all official entries in the books or records of any such office, authenticated by the consul or vice consul, shall be admissible equally with the originals.").
380. Id. §1744 ("Copies of letters patent or of any records, books, papers, or drawings belonging to the United States Patent and Trademark Office and relating to patents, authenticated under the seal of the [PTO] and certified by the Under Secretary of Commerce for Intellectual Property and Director of the [PTO],... shall be admissible in evidence with the same effect as the originals.").
381. Wade v. Wade, 1 N.C. 601, Cam. & Nor. 486 (Ct. Conf. 1804). In 1805, New Jersey's Justice Pennington argued at length for a conclusive-effect reading of the 1790 Act in his concurrence in Curtis v. Gibbs, 2 N.J.L. (1 Penning.) 399 (1805) (opinion of Pennington, J.), but the majority held only that New Jersey would not enforce a judgment rendered by foreign attachment.
382. Mass. (1 Will.) 401 (1805). According to the reporter, the court had taken a different position "some years since" in the unreported case of Noble v. Gold, but none of the justices seemed concerned by the precedent.
383. See id. at 410.
384. Id. at 404.
385. See supra note 124.
386. 2141 Mass. (1 Will.) at 404-405 (opinion of Thatcher, J.).
387. Id. at 407 (opinion of Sewall, J.) (first emphasis added).
388. See Nadelmann, supra note 25, at 64.
389. Bartlet, 1 Mass. (1 Will.) at 409.
390. Id. at 407-408
391. See, e.g., supra note 53 and accompanying text;
392. see also Cole v. Driskell, 1 Blackf. 16,16 (Ind. 1818) ("Foreign Courts, and Courts not of record, are in this respect considered in the same point of view.").
393. Hitchcock v. Aicken, 1 Cai. 460, 480 (N.Y. 1803) (opinion of Kent, J.). Thus, while "matters proper for jury determination, which appear from the record to have been fairly submitted to them, cannot be overhauled," this rule did not "bar[] the door against any examination of the regularity of the proceedings, and the justice of the judgment." Id. Kent would also argue later that "the defendant must impeach the judgment, by showing, affirmatively, that it was unjust, by being irregularly or unfairly procured";
394. rather than "granting a new trial... upon every question of fact," something must be shown to have been procedurally wrong or unfair in the initial judgment. Taylor v. Bryden, 8 Johns. 173, 177 (N.Y. 1811) (Kent, J.).
395. Bartlet, 1 Mass. (1 Will.) at 404 (argument of counsel).
396. Id. at 409.
397. Id. at 410.
398. Cf. Smith v. Rhoades, 1 Day 168 (Conn. 1803) (finding that a lack of personal service could be cured by notice and appearance).
399. 15 Annals of Cong. 372 (1806).
400. H.R. 46, 9th Cong., (1st Sess. 1806). The bill reads in full as follows:
401. Sec. 1. BE it enacted by the Senate and House of Representatives of the United States of America, in Congress assembled, That in any action at law or suit in chancery, in a court of any state, on a judgment or decree of a court of record of any other state, or in which such judgment or decree is given in evidence, the record of the said judgment or decree, exemplified and proved in the manner prescribed in the [1790 Act], shall be conclusive evidence of the debt or right therein adjudged or decreed, against any party thereto, who appeared, or was personally served with legal notice to appear, in the action or suit, wherein the said judgment or decree was rendered or passed; but against a party, who neither appeared, nor was personally served with legal notice to appear, it shall be prima facie evidence only:
402. Provided always, that nothing herein contained shall operate to prevent any party from pleading, or giving in evidence, a reversal, release or satisfaction of such judgment or decree, or any other cause of defence in law or equity, accruing after the said judgment or decree.
403. Id. (emphasis added). Foreign money judgments had been enforced on a theory that the judgment created an implied promise to pay; such a theory would not extend to adjudications of rights other than money damages, such as divorces. See Jackson v. Jackson, 1 Johns. 424 (N.Y. 1806) (holding illegitimate a Vermont divorce of New York domiciliaries);
404. see also Barber v. Root, 10 Mass. (10 Tyng) 260, 266 (1813) (describing Vermont's laws, which allowed citizens of other states to obtain divorces there, as "an annoyance to the neighboring states, injurious to the morals and habits of their people, and . to be reprobated in the strongest terms, and ... counteracted by legislative provisions in the offended states").
405. Price, supra note 21, at 756.
406. H.R.46.
407. Id.
408. See supra note 61 and accompanying text.
409. 15 Annals of Cong. 1010 (1806).
410. Id.
411. 5H-R-Jour(18/26).
412. 15 Annals of Cong. 1017 (1806).
413. Id. The vote does not appear to have followed party lines.
414. 15 Annals of Cong. 236, 240, 242 (1806). The committee was composed of Joseph Anderson of Tennessee, Samuel Mitchill of New York, and Israel Smith of Vermont. Id. at 236. While the Annals record neither the committee's amendments nor the Senate's concerns, it is worth noting that Anderson represented a rural Western state, with fewer creditors and more debtors. The House delegations from Tennessee and Kentucky had been generally opposed to the measure; of the nine House representatives from these states in the Ninth Congress, four had spoken or voted against the bill, and none had voted in favor.
415. See id. at 1010, 1017.
416. 16 Annals of Cong. 245 (1807).
417. See H.R. 37, 9th Cong., 2d Sess. (1807).
418. 16 Annals of Cong. 359 (1807).
419. H.R. 20, 10th Cong., 2d Sess. (1808).
420. Compare Wilson v. Robertson, 1 Tenn. (1 Overt.) 266,268 (Super. L. & Eq. 1808) ("The true rule seems to be, that as a matter of evidence, we are bound by the Constitution and act of Congress to consider it a record of the judgment, being authenticated as the act prescribes; but the manner of effectuating or obtaining execution of the judgment is left to the laws of the State where suit is brought upon it."), with Rogers v. Coleman, 3 Ky. (Hard.) 413, 416-17 (adopting a conclusive-effect reading, but cautioning that "[w]here the trial is evidently exporte. it would be too rigid and unjust, to say that such cases were contemplated by the constitution, and by the act of congress"). That November, a South Carolina court reiterated that the 1790 Act "does not declare what effect such authenticated proceedings shall have, as it might have done under the authority of the constitution." Flourenoy v. Durke, 2 S.C.L. (2 Brev.) 256,258 (Const. App. 1808).
421. H.R. 20.
422. Id. (emphasis added).
423. Id.
424. 19 Annals of Cong. 898 (1809).
425. See, e.g., Garland v. Tucker, 4 Ky. (1 Bibb) 361 (1809);
426. Lassly v. Fontaine, 14 Va. (4 Hen. & M.) 146,149 (1809) (Tucker, J.).
427. Justice Washington, who had cited Armstrong approvingly on circuit ten years earlier,
428. see Banks v. Greenleaf, 2 F. Cas. 756, 759 (CCD. Va. 1799) (No.959), did so again in the 1810 case of Green v. Sarmiento, 10 F. Cas. 1117 (CCD. Pa. 1810) (No. 5760), as did the Circuit Court of the District of Columbia in Short v. Wilkinson, 22 F. Cas. 15 (C.C.D.C. 1811) (No. 12,810). Washington's explanation of the doctrine in Green, however, was somewhat strained; he noted that it would be "idle, if not mischievous," for Congress to reduce the credit accorded to sister-state judgments based on "the rule of the state laws and usages"; yet he also praised the 1790 Act for giving "only such credit, as they possess in the state where they were rendered." 10 F. Cas. at 1119-1120 Moreover, while Washington declined to reach the question of whether judgments would be conclusive even in the absence of personal notice, he stated that "if they should be so found, then I can only say, that the act of congress was not passed with sufficient consideration."
429. Id. at 1120.
430. 2 Isaac Espinasse, A Digest of the Law of Actions and Trials at Nisi Prius 443 (NjY., Gould, Banks & Gould 3d London ed. corr. 1811) (emphasis added).
431. Senate Debates, Feb. 11, 1811, in Legislative and Documentary History of the Bank of the United States: Including the Original Bank of North America 305 (M. St. Clair Clarke & D.A. Hall eds., Wash., D.C., Gales & Seaton 1832). Crawford's justification of this state of affairs, however, was somewhat idiosyncratic: "The effect of a record ought to depend upon the laws of the State of which it is a record, and therefore the power to prescribe the effect of a record was wholly unnecessary, and has been so held by Congress-no law having been passed to prescribe the effect of a record."
432. Id.
433. 23 Annals of Cong. 719 (1812). Milnor, Langdon Cheves of South CaroUna, and Lyman Law of Connecticut were appointed to the committee.
434. 24 Annals of Cong. 1232 (1812) (emphasis added);
435. see also House of Representatives, N.Y. Com. Advertiser, Mar. 26,1812, at 3 ("Mr. Milnor, of the committee who were appointed to enquire what alterations are necessary in the act respecting the authentication of the public acts, records, &c. of one state in another, reported that it is not expedient at present to make any alterations-ordered to lie on the table." (emphasis added)). The full content of the report is unfortunately not preserved in the Annals, American State Papers, or the U.S. Congressional Serial Set.
436. Winchester v. Evans, 3 Tenn. (1 Cooke) 420, 428-429 (1813).
437. 11 U.S. (7 Cranch) 481 (1813).
438. 19 F. Cas. 85 (C.C.D.N.C. 1812) (No.10,896). Nadelmann notes that some editions provide an erroneous date of 1813. Nadelmann, supra note 25, at 65 n.157. Marshall would join the majority in Mills, which Nadelmann and Whitten attribute to his general custom of refraining from dissents. See id. at 68; Whitten, supra note 4, at 329 n.249.
439. 19 F. Cas. at 85.
440. Id.
441. Id. Marshall had earlier described the term "full faith and credit" in the context of authenticating copies of foreign laws, describing that task as not among those functions of foreign consuls "to which, to use its own language, the laws of this country attach full faith and credit." Church v. Hubbart, 6 U.S. (2 Cranch) 187, 237 (1804) (Marshall, C.J.).
442. The case was filed on Feb. 3,1812. See Index to the Appellate Case Files of the Supreme Court of the United States, 1792-1909, National Archives Microfilm Publication No.408 (1963), roll 11.
443. 19 F. Cas. at 85.
444. 11 U.S. (7 Cranch) 481, 483 (1813). Also decided in March was Bisseil v. Briggs, 9 Mass. 462 (1813), in which the Massachusetts Supreme Judicial Court reversed its earlier holding in Bartlet v. Knight and adopted an intermediate position, whereby sisterstate judgments were neither fully foreign nor fully domestic. Chief Justice Parsons repeated Justice Livingston's position that the self-executing sentence of the Clause itself gives judgments "all the effect. which they can have," yet he argued that the "jurisdiction of the court rendering it is open to inquiry," even if it would not have been in the state of origin.
445. Id. at 467. Justice Sewall wrote a spirited dissent, noting that his colleagues in the Bartlet majority (Thatcher and Sedgwick) had been absent for the argument and decision of the case-and had they been present, the three could have formed a majority for reaffirming Bartlet.
446. See id. at 470 (Sewall, J., dissenting). Sewall also sharply criticized Parsons' intermediate position, arguing that "[t]o inquire of the jurisdiction of a supreme or superior court, from which a judgment is certified," is to deny the decision "the effect to which [it] would be entitled" in the rendering state.
447. Id. at 474. Moreover, a sister-state judgment might have misapplied the law of the enforcing state, or might have been based on laws contrary to public policy; and the prima facie standard allowed such judgments to be revisited.
448. Id. at 476-77. Finally, he noted that in the case at bar, the defendants were officers of Massachusetts, who were sued in trespass while visiting New Hampshire for official acts done in Massachusetts, with their plea of their offices in defense rejected on demurrer.
449. Id. at 477-478
450. 262 Mills, 11 U.S. at 485.
451. Id.
452. Id.
453. S S.C.L. (1 Brev.) 110, 1802 WL 520 (Const. App. 1802).
454. MHs, 11 U.S. at 486 (Johnson, J., dissenting).
455. Id.
456. See Transcript of Record at 1-3, Mills, 11 U.S. (7 Cranch) 481 (1813) (No.536), reprinted in Appellate Case Files of the Supreme Court of the United States, 17921831, National Archives Microfilm Publication No. 214 (1962), roll 22.
457. 52 U.S. (11 How.) 165 (1850).
458. Mills, 11 U.S. at 484.
459. 26 Annals of Cong. 791 (1813).
460. Id. at 1228.
461. The elder Ingersoll had, however, argued against a conclusive-effect reading of the Articles of Confederation's Clause in James v. Allen. See 1 U.S. (1 DaIl.) 188, 190 (Pa. CP. 1786).
462. Charles Jared Ingersoll, A View of the Rights and Wrongs, Power and Policy, of the United States of America 62 (1808) (emphasis added).
463. H.R. 45,13th Cong., 2d Sess., §§1-2 (1814). The bill read in full as follows:
464. To prescribe the mode of authenticating the public acts, records, and judicial proceedings of the several states, and for declaring the effect of certain judicial proceedings.
465. Be it enacted by the senate and house of representatives of the United States of America in congress assembled, That the original or transcripts of the public acts of the legislatures of any state shall be authenticated by having affixed thereto the seal of the state, accompanied by the certificate of the officer entrusted by law with the custody of such public acts: that the records and judicial proceedings of the courts of any state shall be authenticated so as to be admitted in evidence in the courts of any other state, by having the seal of the court, if any there be, affixed to such record or judicial proceeding, or a transcript thereof, accompanied by the certificate of the clerk of such court, or of the officer entrusted by law with the custody of such records or judicial proceedings, with a certificate of a judge or justice of the court, as the case may be, that the said attestation is in due form.
466. Sec. 2. Be it further enacted, That in all cases where a suit or action is brought in any court within the United States on a judgment or decree rendered or pronounced in a court of some state, other than the one where such second suit or action is brought, and it appears from the record or transcript authenticated as aforesaid, that the defendant or defendants had personal notice of the first suit or action, by the service of process or otherwise, the judgment or decree shall be considered as conclusive evidence of the right of the plaintiff or plaintiffs of the debt, duty, or thing expressed in such decree or judgment: but the person or persons so sued may nevertheless take advantage, in the regular way, of any satisfaction of such judgment or decree after the rendition or pronouncing thereof; and may also take advantage, in the proper way, of any good matter in bar of of [sic] such decree or judgment, of which he, she, or they had been deprived of the use by the fraud of the adverse party or parties: Provided, The truth of such matter, with the fact of the fraud, be verified by the oath or solemn affirmation of the person or persons sued, or one or more of them before filing such defence.
467. Sec. 3. Be it further enacted, That in all cases where a suit or action is brought in any court within the United States, on a judgment or decree rendered or pronounced in a court of some state, other than the one where such second suit or action is brought, and it appears, from the record or transcript authenticated as aforesaid, that the defendant or defendants had not personal notice of such suit or action, the judgment or decree shall be considered as prima facia evidence of the right of the plaintiff or plaintiffs to the debt, duty, or thing expressed in such decree or judgment, and a judgment or decree shaU be forthwith entered or pronounced therefor, unless the person or persons so sued sets forth in due course of law good matter in bar of the original suit or action, or in satisfaction or avoidance of the judgment or decree, verified in either instance by the oath or solemn affirmation of the defendant, or some one of the defendants where there are several, before the filing of such defence: Provided always, That persons sued as heirs, executors, administrators, or otherwise, in right of others, shall not be compelled to verify their defence as aforesaid, but by the oath or af-firmation of some third person interested, or by their own affidavit to the best of their knowledge and belief.
468. Sec. 4. Be it further enacted, That the rights, powers, and privileges of executors and administrators, or others legally entrusted with the administration of the estates of deceased persons, in any of the United States, vested by law and the proper judicial tribunal, shall be in every other state as valid and effectual, to all intents and purposes, as in the state where vested or granted; and the record or judicial proceeding by which such powers are vested, or a transcript thereof, shall be authenticated in the manner prescribed herein in relation to other records and judicial proceedings, and be in like manner received as evidence.
469. Sec. 5. And be it further enacted, That this act shall be considered as repealing so much of any other preceding act as contravenes the provisions of this act.
470. Id. §2. The bill also provided explicitly that fraud in procuring the original judgment would be a legitimate defense.
471. Id. ̌3.
472. How was this relaxed effect for judgments without personal service consistent with Ingersoll's personal views? As an advocate, his father had championed the enforcement of judgments even when personal service or actual notice was absent.
473. See Phelps v. Holker, 1 U.S. (1 Dall.) 261,263 (Pa. 1788) (argument of counsel) ("[T]here can be no difference between a Judgment in a Foreign attachment, and one obtained in any other species of action"). Yet the younger Ingersoll's bill did not treat judgments without personal service as conclusive; rather, he seemed to envision some range of freedom outside the self-executing constitutional requirement. Even this relaxed effect for such judgments creates some discomfort for modern audiences, who have learned that such service is unlawful under the Due Process Clause, as in Pennoyer v. Neff, 95 U.S. 714, 723-724 (1877). But Congress did not assume a judgment would always be set aside in the absence of personal service; the cases and bills discussed here show judgments rendered without personal service were thought to be potentially enforceable. This could have occurred even in federal cases, as the bills were to apply to "any court within the United States," H.R. 45 §§2-3 (emphasis added), and there is no indication in the debates that such enforcement by a federal court would have violated due process.
474. H.R. 45 §4.
475. Fenwick v. Sears's Adm'rs, 5 U.S. (1 Cranch) 259, 268 (1803).
476. See, e.g., Riley v. Riley, 3 Day 74 (Conn. 1808); Reynold's Ex'rs v. Torrance, 4 S.C.L. (2 Brev.) 59 (1806);
477. see also Riley, 3 Day at 76-77 (argument of counsel) (citing cases from Massachusetts, New York, North Carolina, and Pennsylvania).
478. But see Stephens's Ex'rs v. Smart's Ex'rs, 4 N.C. 83, 83 (1814) ("[T]he probate and letters testamentary issued in South-Carolina, are sufficient to enable the plaintiff to sue here.").
479. See Riley, 3 Day at 88 (argument of counsel) (citing the Clause).
480. 27 Annals of Cong. 2022 (1814). Contemporaneously, but without apparent awareness of the debates in the House, Senator Outerbridge Horsey of Delaware delivered an address on the appointment and removal powers of the President in which he expressed a belief that Congress had not yet exercised the power to prescribe the effect of state records-and, indeed, that the power could not be as vast as the text had made it seem:
481. Indeed there are parts of the constitution which will not bear a literal construction. Take for instance, Art. 4, Sect. 1. Congress has undertaken to prescribe the manner in which such acts, records and proceedings shall be proved, but they have not undertaken, and probably never will undertake, to prescribe the effect they are to have. What is the true import of the words "full faith and credit," is a question that has puzzled the bar and the bench, and about which a contrariety of opinion exists among the learned in the law. But the word 'effect,' take it literally and it conveys a most extraordinary power to Congress-A power which would swallow up the state sovereignties. An act of the legislature of any one state is a public act, and by this section Congress has the power... to declare what effect such an act shall have in another state. The legislature of Virginia, for instance, [may] pass an act limiting the rights of suffrage to freeholders; take this section literally, and Congress may declare that such act shall have the same effect in Pennsylvania or Massachusetts as it has in Virginia and vice versa. An effect which I am sure would not be very kindly received either in Pennsylvania or Massachusetts.
482. Congress. Senate of the U. States, Daily Nat'l Intelligencer (Wash., D.C), May 5, 1814, at 2.
483. 28 Annals of Cong. 416 (1815).
484. 13 Johns. 192 (N.Y. 1816).
485. But see Buford v. Buford, 18 Va. (4 Munf.) 241 (1814) (adhering to Mills despite the defendant's arguments that the records "should be [only] of as much efficacy to the plaintiff, as if the originals were produced").
486. ReId v. Gibbs, 9 F. Cas. 15, 16 (CCD.N.J. 1815) (No.4766).
487. S.M. Phillipps, A Treatise on the Law of Evidence 253 n.a (John A. Dunlap ed., N.Y., Gould, Banks, & Gould 1st Am. ed. 1816).
488. See Biographical Directory of the U.S. Congress, Spencer, John Canfield (17881855), http://bioguide.congress.gov/scripts/biodisplay.pl?index=S000727 (last visited Feb. 9,2009).
489. 31 Annals of Cong. 431 (1817).
490. See Biographical Directory of the U.S. Congress, Nelson, Hugh, (1768-1836), http://bioguide.congress.gov/scripts/biodisplay.pl?index=NOOOO 35 (last visited Apr. 2, 2009).
491. 31 Annals of Cong, at 500-501 (1817) (emphasis added);
492. see also H.R. Doc. No 15-17 (6 U.S. Cong. Serial Set, 1817).
493. The full text read as follows: Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That the record of any final judgment or final decree, in any suit of any court of any state, when authenticated in the manner required by law, shall have the same effect given to it in every court of the United States, and of every other state, as such record would have by law or usage, if used or prosecuted in any other court of the state from which the said record shall be taken: Provided, That no such record shall be deemed conclusive against the parties thereto, their heirs, executors, or administrators, or persons claiming under them, or either of them, unless it shall appear on the face of such record, that the party against whom such record shall be alleged, his testator, intestate, ancestor or grantor, had been personally served with process to compel his or their appearance, in the same suit and in the same court, or that such party had actually appeared in the same suit and in the same court, before the rendition of the judgment or the passing of the decree: And provided further, That no lien or charge shall be created by any such final judgment or final decree upon any real or personal estate, situated out of the state at the time, where such judgment was rendered or such decree was passed.
494. Sec. 2. And be it further enacted, that whenever manucaptors or bail, or sureties for the personal appearance of any person in any court of any state, shall produce to a judge or justice of some court of record in any other state, the recognizance of bail, or the copy of a bail piece, or a copy of the instrument by which such manucaptors, bail, or sureties became bound, duly authenticated according to law, it shall be the duty of such judge or justice, to certify upon some part of such recognizance, or copy of a bail piece, or instrument as aforesaid, that the same is duly authenticated according to law; and thereupon to endorse the same with his own proper hand, with the date of doing so; which certificate and endorsement, with the recognizance, or copy of a bail piece, or instrument as aforesaid, shall have the same effect to authorize the said manucaptors, bail or sureties to arrest and take their principal in such other state, and to remove him to such place as shall be proper and necessary for the purpose of surrendering him in their discharge, as the said recognizance, copy of a bail piece, or other instrument as aforesaid might or could have by law or usage in the state where such bail was given.
495. H.R. 17,15th Cong., 1st Sess. (1817).
496. Id. § 51.
497. Id.
498. Id.
499. 215 U.S. 1(1909).
500. U.S. Const, art. IV, §2, cl. 2.
501. But see Respublica v. Gaoler of the City and County of Philadelphia, 2 Yeates 263 (Pa. 1798) (holding, without explanation, that "[i]n the relation in which the several states composing the union, stand to each other, the bail in a suit entered in another state, have a right to seize and take the principal in a sister state, provided it does not interfere with the interests of other persons, who have arrested such principal").
502. Article IV also contains a procedure for apprehending fugitive slaves. Id. §2, cl. 3. Nelson was from Virginia, and while the effect of such a provision on fugitive slaves (or those assisting them) is not mentioned in the recorded debates, it was quite possibly on the minds of those discussing the measure. Cf. S. Doc. 26-273 (358 U.S. Cong. Serial Set, 1840) (reprinting an exchange of letters between the governors of Georgia and Maine concerning the latter's refusal to extradite persons accused of "stealing" a slave and bringing him North).
503. Younger v. Harris, 401 U.S. 37,44 (1971) (Black, J.).
504. 31 Annals of Cong. 532. The amendments were minor and technical; the amended version is reprinted in id. at 534-535 Perhaps as a result, the subject was not sufficiently enthralling to keep the House's attention for long:
505. After the Committee had spent some time on the subject, Mr. Clay (Speaker) rose, and observing that as-either from its being the last day of the year or from some other cause, he knew not what-the House seemed less interested in this subject than its importance merited, moved that the Committee rise--- And the House adjourned to Friday next.
506. Id. at 532.
507. The committee report had described the purpose of the bill as to "give confidence and security to commercial men in every part of the United States," which may have aroused the concern of debtor-state representatives.
508. See id. at 501.
509. Id. at 535.
510. Id. at 536.
511. Id-at 535-536
512. Id. at 564.
513. Id.
514. Id.
515. Id. at 565.
516. Id. at 536. The amendment was subsequently defeated.
517. Id. at 565.
518. See id. at 565, 591, 607.
519. Id. at 536.
520. Id. at 564. It is possible that these remarks were misreported, for the reporter during this period often showed greater interest than understanding. One report of the proceedings in Congress gives a very brief summary of the day's debates, noting unhelpfully that "[t]his is a subject too dry and technical to interest readers generally; but it has afforded an occasion for the display of much legal ability and eloquence." Congress, N.Y. Com. Advertiser, Jan. 12, 1818, at 2.
521. 31 Annals of Cong. 565 (1808).
522. Id.
523. Id.
524. Id. at 799. John Forsyth of Georgia, an opponent of the bill, sought a vote "to try the principle of the bill, which, having been so largely debated, must by this time be perfectly understood." A "large majority" then voted to postpone the bill indefinitely. The disappointment of the Annals' reporter is clear: "So the bill, after so much learning, labor, and ability displayed upon it, was finally rejected."
525. Id. Nelson complained in a contemporaneous letter that other matters, such as "the case of John Anderson and the privileges of the House... have of late [occupied] us entirely and have shut out more important subjects from our consideration." Letter from Sen. Hugh Nelson to Evette (Jan. 29, [1818]), in Hugh Nelson Correspondence and Deposition, 18081833, 47 (unpublished manuscripts, on file with the Library of Congress). For more on the case of John Anderson,
526. see Josh Chafetz, Democracy's Privileged Few 223-24 (2007).
527. In the Senate, George Washington Campbell-who had opposed the 1806 bill as a member of the House, see supra text accompanying note 233-asked on March 4 that the Judiciary Committee inquire into whether the existing laws should be extended to the records and judicial proceedings of territories as well as states. 31 Annals of Cong. 228. The committee duly began its consideration, only to report two days later that this precise step had been taken in 1804-while Campbell had been a member of the House,
528. see Biographical Directory of the U.S. Congress, Campbell, George Washington (1769-1848), http://bioguide.congress.gov/scripts/biodisplay.pl? index=C000083 (last visited May 18, 2007)-and that further legislation on the subject would be "unnecessary and inexpedient." 31 Annals of Cong, at 230-31 (1808);
529. see also S. Doc. 15-154 (Early Am. Imprints, 2d ser., No. 46, 242, 1818).
530. 15 Johns. 121,143 (N.Y. 1818).
531. Chew v. Randolph, 1 Miss. (Walker) 1 (1818);
532. Thurber v. Blackbourne, 1 N.H. 242 (1818). The latter case also discussed the meaning of the Effects Clause, holding that the Constitution "provides for the admissibility of such records as evidence, but does not direct the mode in which they should be authenticated, nor does it declare what shall be the effect of the evidence when admitted."
533. Id. at 243.
534. Gerault, Adm'x v. Anderson, 1 Miss. (Walker) 30 (1818);
535. see also id. at 32-33 (comparing the various merits of Hitchcock, Bartlet, and Bissel). Courts in Kentucky and New Jersey delivered opinions adhering to the conclusive-effect position during this period,
536. see Cobb v. Thompson, 8 Ky. (1 A.K. Marsh.) 507 (1819);
537. Olden v. Hallet, 5 NJ.L. (2 Southard) 466 (1819), and by the next year the latter courts began to describe the issue as fully settled, compare Lanning v. Shute, 5 NJ.L. (2 Southard) 778, 779-80 (1820) (Kirkpatrick, C.J.) ("The question... has been considered and settled in this court. in the case of Olden v. Hallet; and since that time, in the same way, in. the case of Hampton v. M'Connel. This last is conclusive, for, being a constitutional question, it belongs to that court to settle the law, and, having settled it, we are bound by the decision; we have no further discretion upon it."), with id. (Southard, J., concurring) ("I concur in the opinion of the court, but I do it under the irresistible weight of authority alone. My judgment is not satisfied.").
538. 16 U.S. (3 Wheat.) 234, 234-235 (1818) (argument of counsel) (noting that "there was no averment in the declaration" that the defendant had appeared, "and the proceeding ... might have been by attachment in rem, without notice to the party"). 321 Id. at 235 n.c.
539. 3 S.C.L. (1 Brev.) 110, 1802 WL 520, at *3 (Const. App. 1802) (Brevard, J., dissenting).
540. 35 Annals of Cong. 893 (1820).
541. Id.
542. Id.
543. Id. at 897.
544. See Andrews v. Montgomery, 19 Johns. 162, 164 (N.Y. 1821) ("I consider that Court as paramount, when deciding on an article of the Constitution, and an Act of Congress passed under its express injunction; and whatever might be my individual opinion, I should feel it my duly to surrender it to their controlling authority.").
545. 38 Annals of Cong. 757 (1822) (emphasis added).
546. See id. at 803;
547. Seventeenth Congress: First Session, Providence Gazette, Feb. 6, 1822, at 1.
548. Warren v. Flagg, 19 Mass. (2 Pick.) 448, 449 (1823) (first emphasis added).
549. See, e.g., Flower v. Parker, 9 F. Cas. 323, 324-25 (CCD. Mass. 1823) (No.4891) (Story, Circuit Justice) ("The judgments of no state courts can bind, conclusively, any persons who are not served with process, or amenable to their jurisdiction. [T]he principal seems universal, and is consonant with the general principles of justice, that the legislature of a state can bind no more than the persons and property within its territorial jurisdiction.");
550. Shumway v. Stillman, 6 Wend. 447, 453 (N.Y. 1831) (identifying two exceptions to the conclusive-effect rule, namely when it appeared "by the record that the defendant was not served with process," and when a defendant claimed that he did not appoint the attorney who claimed to represent him); cf. Mayhew v. Thatcher, 19 U.S. (6 Wheat.) 129 (1821) (holding an appearance sufficient to cure a lack of personal service for full faith and credit purposes, "even supposing there was any objection to the proceeding by attachment").
551. 52 U.S. (11 How.) 165, 176 (1850).
552. See 1 Journal of the Congress of the Confederate States of America 881 ("And upon any judgment or decree rendered in a court of record of any one of the Confederate States upon personal service, an action may be maintained at any time within six years from the rendition of such judgment or decree in the proper court of any other State in which the defendant may reside.").