Article 4, Section 1
Hall v. Williams6 Pick. 232 Mass. 1828
Parker, C. J. . . . All agree, that until the adoption of the national constitution, the principles of the common law which are applicable in every country to judgments of the tribunals of foreign countries, were applicable to the judgments of the courts of the several States when sought to be enforced by the judiciary power of any State other than that in which they were rendered: that is, they were considered only as primâ facie evidence of debt, were to be declared upon, not as records, but as showing a consideration for a promise or debt, and a plea of nul tiel record was not a proper plea, but non assumpsit or nil debet, according to the form of the declaration.
This was definitively settled in England as the true character of foreign judgments, as early as the year 1778, and had long before been the received law of that country. Walker v. Witter, 1 Doug. 1.
Such was the law, before the revolution, in this and all the colonies and provinces, and so continued until the adoption of the national government, as appears by numerous decisions in the several State courts, which will hereafter be cited to another point; except that by the statute of 14 Geo. 3, c. 2, in Massachusetts, it was provided that an action of debt might be sustained on judgments of courts of the neighboring colonies, (alluding probably to the old league between the then New England provinces,) and that the records of those judgments, attested by the clerk of the courts rendering the same, should be good and sufficient evidence. And the statute of the Commonwealth of 1795, c. 61, placed the judgments of courts of all the United States on the same footing on which they were intended to be placed by the constitution of the United States; an act of legislation which was quite unnecessary after the act of Congress of 1790 before referred to. Under these provisions the judgments of sister States are no longer to be considered as mere foreign judgments, to be proved like other facts by testimony to the jury; but are to be treated altogether as domestic judgments in regard to the proof of their existence, and therefore the issue on a plea of nul tiel record is to be tried by the court only, so that such a plea concluding to the country is undoubtedly bad, as before stated.
But in regard to the conclusiveness of such judgments to all intents and purposes, there is yet a question of considerable importance, which has been discussed and decided in almost every State in the union in which there are printed reports of their judicial decisions; and the question is presented now by the issue taken on the second and third pleas to this action. The defendants, in answer to the declaration, say that neither of them was served with notice of the suit in which the judgment was rendered, nor appeared or authorized any one to appear for him in the action, and that Fiske was never an inhabitant of, or resident in the State of Georgia. The plaintiffs reply that the defendants are estopped by the record to deny these facts, and the record being set forth on oyer, the defendants demur to the replication of estoppel. If it appeared by the record that the defendants had notice of the suit, or that they appeared in defence, we are inclined to think that it could not be gainsaid; for as we are bound to give full faith and credit to the record, the facts stated in it must be taken to be true, judicially; and if they should be untrue by reason of mistake or otherwise, the aggrieved party must resort to the authorities where the judgment was rendered, for redress, for he could not be allowed to contradict the record by a plea and by an issue to the country thereon. But if the record does not show any service of process, or any appearance in the suit, we think he may be allowed to avoid the effect of the judgment here, by showing that he was not within the jurisdiction of the court which rendered it, for it is manifestly against first principles, that a man should be condemned, either criminally or civilly, without an opportunity to be heard in his defence.
It cannot be pretended, we think, that a citizen of Massachusetts, against whom a judgment may have been rendered in Illinois or Missouri, he never having been within a thousand miles of those States, should be compelled by our courts to execute that judgment, it not appearing by the record that he received any manner of notice that any suit was pending there against him, and being ready to show that he never had any dealings with the party who has obtained the judgment; and yet this must be the consequence, if the doctrine contended for by some is carried to its full length, viz. that the record of a judgment is to have exactly the same effect here as it would have in Illinois or Missouri; for in those States, if the process has been served according to their laws, which may be in a manner quite consistent with an utter ignorance of the suit by the party without the State, the judgment would be binding there until reversed by some proceedings recognised by their laws.
If it be said that a party thus aggrieved may obtain redress by writ of error, or a new trial, in the State where the judgment was rendered, it is a sufficient answer, that never having been within their jurisdiction or amenable to their laws, he shall not be compelled to go from home to a distant State, to protect himself from a judgment, which never, according to universal principles of justice, had any legal operation against him.
The laws of a State do not operate, except upon its own citizens, extra territorium; nor does a decree or judgment of its judicial tribunals, except so far as is allowed by comity, or required by the constitution of the United States; and neither of these can be held to sanction so unjust a principle. If the States were merely foreign to each other, we have seen that a judgment in one would not be received in another as a record, but merely as evidence of debt, controvertible by the party sued upon it. By the constitution, such a judgment is to have the same effect it would have in the State where it was rendered; that is, it is to conclude as to every thing over which the court which rendered it had jurisdiction. If the property of a citizen of another State, within its lawful jurisdiction, is condemned by lawful process there, the decree is final and conclusive. If the citizen himself is there and served with process, he is bound to appear and make his defence, or submit to the consequences; but if never there, there is no jurisdiction over his person, and a judgment cannot follow him beyond the territories of the State, and if it does, he may treat it as a nullity, and the courts here will so treat it, when it is made to appear in a legal way that he was never a proper subject of the adjudication. These principles were settled in a most lucid and satisfactory course of reasoning by Chief Justice Parsons, in the opinion of the Court delivered by him in the case of Bissell v. Briggs, 9 Mass. R. 462. This exposition of the constitutional provision respecting the records and judicial proceedings, authenticated as the act of Congress requires, takes a middle ground between the doctrine as held by the Court of this State in the case of Bartlett v. Knight, 1 Mass. R. 401, and by the court of New York in the case of Hitchcock et al v. Aicken, 1 Caines's R. 460, in both of which it was held that the constitution and act of Congress had produced no other effect than to establish definitely the mode of authentication, leaving in other respects such judgments entirely upon the footing of foreign judgments according to the principles of the common law. But in the case of Bissel v. Briggs, the principle settled is, that by virtue of the provision of the constitution and the act of legislation under it, a judgment of another State is rendered in all respects like domestic judgments, when the court where it was recovered had jurisdiction over the subject acted upon and the person against whom it was rendered, leaving open for inquiry in the court where it was sought to be enforced the question of jurisdiction, and taking the obvious distinction between the effect of the judgment upon property within the territory, and the person who was without it. It was thought that this was carrying the sanctity of judgments of other States as far as was consistent with the safety of the citizen who was not amenable to their laws, and as far as is required by the spirit or letter of the constitution of the United States.
The doctrine thus established here has been approved and adopted by the courts of the great States of Pennsylvania and New York, in both of which before it had been held, that the judgments of the several States were to be treated as foreign judgments. The case of Borden v. Fitch, 15 Johns. Rep. 121, is full to this point, and was after the publication of the case of Mills v. Duryee, determined in the Supreme Court of the United States, 7 Cranch, 481, hereafter to be noticed. In this case the opinion of Chief Justice Parsons in the case of Bissell v. Briggs is spoken of as putting the question upon a sound principle; and so also in the case of Benton v. Burgot, 10 Serg. & Rawle, 242, in Pennsylvania, where the same doctrine is laid down in the opinion of the court delivered by Mr. Justice Duncan.
The principle upon which this exception is made to the conclusiveness in every particular, of the judgments of other States, is well expressed by Mr. Justice Johnson, of the Supreme Court of the United States, when dissenting from the decision of the court in the case of Mills v. Duryee. He says it is an eternal principle of justice, "that jurisdiction cannot be justly exercised by a State over property not within the reach of its process, or over persons not owing them allegiance or not subjected to their jurisdiction by being found within their limits."
Indeed, so palpable is this principle, that no doubt could exist in the mind of any lawyer upon the subject, but for the construction supposed to be given to the constitution of the United States, and the act of Congress following it, in the case of Mills v. Duryee, 7 Cranch, 481, and resanctioned in the case of Hampton v. M'Connel, 3 Wheat. 234, in the brief opinion delivered by Chief Justice Marshall. This construction, when first referred to in this Court in the case of the Commonwealth v. Green, was supposed to have put an end to all questions on this subject, and to have established as the law of the land, that a judgment recovered in one State by a citizen thereof against a citizen of another, was absolute and incontrovertible, and would admit of no inquiry even as to the jurisdiction of the court which rendered it. This Court yielded a painful deference to the decision, without that close examination it would have received if presented to them otherwise than incidentally, and if its bearing had been of importance in the case then before the Court; but the notice taken of the case was merely the expression of an opinion arguendo, and not a judicial determination of the question. And as a further reason for not receiving the doctrine implicitly as authority, it may be remarked, that the case to which it was applied was one clearly within the jurisdiction of the court which decided it, so that the point now raised was not brought into question.
This is not the first occasion we have had to regret a too prompt submission to the decision of the Supreme Court of the United States; not however from any diminution of entire respect for that eminent tribunal, but because we have found that further consideration has brought about a qualification of the doctrine which seemed to have been definitively settled, or that some qualifying principle in the case itself has been overlooked by us, in our readiness to yield supremacy to that court on all questions in which by the constitution their judgment is paramount. I allude to the decisions of that court on State insolvent laws, in the case of Sturges v. Crowninshield, 4 Wheat. 122, the effect of which we understood to be, to overrule the decision of this Court in the case of Blanchard v. Russell; in consequence of which we dismissed several cases which might have been maintained on the grounds of that decision. We have since learned by the case of Ogden v. Saunders, 12 Wheat. 213, that there is no decision of the Supreme Court of the United States militating with our decision, and feel ourselves justified in recurring to the principle there decided as the law of this Commonwealth.
The case of Mills v. Duryee has, as its importance merited, undergone a revision in almost every State court in the Union, of whose decisions we have any printed account; and the opinion has been unanimous, without the dissenting voice, so far as we can learn, of a single judge, that that case, however unqualified it may appear in the report, does not warrant the conclusion, that judgments of State courts are in all respects the same when carried into another State to be enforced, as they are in the State wherein they are rendered, but that in all instances, the jurisdiction of the court rendering the judgment may be inquired into. In truth, all of them sanctioning the principles, and some of them by express reference, which were asserted by this Court in the case of Bissell v. Briggs, as the only just exposition of the provision in the constitution of the United States in relation to the records and judicial proceedings of States.
In the State of Maine it does not appear that their courts, since the separation, have been called to consider the question.
In New Hampshire there is a most express limitation of the effect of such judgments, similar to the case of Bissell v. Briggs: the opinion being delivered by Bell J., now a senator of that State in Congress, and concurred in by Woodbury J., holding the same situation. Thurber v. Blackbourne, 1 New Hampsh. R. 246.
In Connecticut the same doctrine was held and ably enforced by Chief Justice Hosmer, in the opinion of the whole Court as delivered by him. Aldrich v. Kinney, 4 Connect. R. 380.
In New York and Pennsylvania the cases before cited maintain the same doctrine; also Shumway v. Stillman, 4 Cowen, 292.
In New Jersey it was decided that the judgment of a State court is conclusive under the constitution and laws of the United States, between the parties, both parties being in court and a defence made or opportunity had to make it, not otherwise. Curtis v. Gibbs, Pennington, 405.
In Kentucky, if the judgment of a State court be founded on the appearance of the defendant or the actual service of process on his person, the judgment is conclusive, except when it might be impeached in the courts of the State where it is given. But where the defendant did not appear and had constructive notice only, (as by attachment or publication,) it is not conclusive, but may be inquired into and impeached. Rogers v. Coleman, Hardin, 413. The opinion delivered by Mr. Justice Trimble, now of the Supreme Court of the United States, is very full and able, and puts the conclusiveness of the judgment altogether upon the fact of the party's having had an opportunity to defend himself.
With such a cloud of witnesses in favor of the construction given to the clause of the constitution which is in question, by this Court in the case of Bissell v. Briggs, we may well rest upon that as the true construction, if it is not the most clearly and explicitly overruled by the only tribunal whose authority ought to be submitted to, the Supreme Court of the United States. But notwithstanding all these decisions, many of which are subsequent in point of time to the case of Mills v. Duryee, and most of them commenting on it, we should be bound to give up the point, if that case settles the question as conclusively as it has been supposed it did.
But all the State judges who have considered that case, are of opinion that it was intended only to embrace judgments where the defendant had been a party to the suit by an actual appearance and defence, or at least by having been duly served with process when within the jurisdiction of the court which gave it; and they formed their opinion upon the following clause in the opinion of Mr. Justice Story, viz. "In the present case the defendant had full notice of the suit, for he was arrested and gave bail, and it is beyond all doubt that the judgment of the Supreme Court of New York was conclusive upon the parties in that State." If this is all that was intended to be decided, the case harmonizes with the general course of decisions in the State courts as before cited, and it is in no respect different from the decision of this Court in the case of Bissell v. Briggs.
In a slight examination of the case made by us when considering the case of Commonwealth v. Green, we supposed the decision to be more extensive, and felt bound to yield to it in a collateral question not essential to a determination of the cause then before the Court; but having the general question now brought distinctly before us, we fully concur with the numerous learned judges who have given the restricted construction as above stated, to the decision of the case of Mills v. Duryee.
We therefore are all of opinion, that the record of a judgment of a court of another State is not conclusive evidence, but that to the extent stated in the case of Bissell v. Briggs it is examinable, in order to ascertain whether the party against whom it is produced was subject to the judicial process on which it is grounded; and that where it appears by the record itself that there was no appearance, and no notice which he was bound to attend to, the judgment against him is a dead letter beyond the territory within which it was pronounced.
The Founders' Constitution
Volume 4, Article 4, Section 1, Document 13
The University of Chicago Press
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