Commentaries on American Law

with a right to debate, but not to vote, in the House of Representatives. (a)

The unpatented lands belonging to the United States, within the states of Ohio, Indiana, Illinois, Michigan, and the territory of Wisconsin, arose from cessions from the states of Virginia, Massachusetts, Connecticut, and New York, before the adoption of the present Constitution of the United States. (b) North Carolina, South Carolina, and Georgia made similar cessions of their unpatented lands, and which now compose the states of Tennessee, Alabama, and Mississippi. The lands so ceded were intended to be, and were considered, as constituting a common fund, for the benefit of the Union; and when the states in which the lands are now situated were admitted into the Union, the proprietary right of the United States to those unimproved and unsold lands was recognized. Those lands belong to the United

(a) Ordinance of Congress of 18th July, 1787. Acts of Congress of August 7, 1789; January 14, 1805; March 3, 1817; February 16, 1819; April 24, 1820; March 30, 1822. The acquisition of the foreign territories of Louisiana and Florida by the United States, by purchase, was to be supported only by a very liberal and latitudinary construction of the incidental powers of the government under the Constitution. The objections to such a construction, which were urged at the time, are stated in 3 Story's Comm. 156-161. But the constitutionality of the acquisition of foreign territory is vindicated, established, and settled by the Supreme Court, as one necessarily flowing from the power of the Union to make treaties. American Ins. Co. v. Canter, 1 Peters, 511. It belongs, therefore, upon that principle, exclusively to the President, with the advice and consent of two-thirds of the members of the Senate present to make the acquisition. But in 1845, Congress, by joint resolution, under the power in the Constitution (art. 4, sec. 3), that "new states may be admitted by the Congress into this Union," admitted the foreign and independent state of Texas into the Union as a separate state, upon terms to which Texas afterwards acceded. Resolution of Congress of March 1, 1845. This was giving a new legislative construction, of enormous efficacy and extent, to the constitutional power to acquire foreign states, and would appear to be contrary to the principle of construction recognized by the Supreme Court, that the annexation of foreign states, out of the limits of the United States, must be the act of the treaty-making power.

(b) That of New York was made March 1, 1781, under the authority of the act of the legislature of that state, of the 19th February, 1780. That of Virginia was made March 1, 1784, under the authority of an act of the 20th December, 1783. That of Massachusetts, on the 19th of April, 1785, under the authority of the acts of that state, of 13th November, 1784, and 17th March, 1785; and that of Connecticut on the 14th September, 1786, under the authority of an act of that state of May, 1786. That of South Carolina, in August, 1787. The title to the lands belonging to the United States west of the Mississippi is supported by treaties made with Great Britain, in 1783, 1818, 1827, and with France, in 1803, and with Spain, in 1820, and with Mexico, in 1831. Vide Elliott's American Diplomatic Code, Washington, 1834, 2 vols., which is a most valuable compilation of all the treaties down to that date, in which the United States have any interest.

States, as part of their public domain, subject to the Indian right and title of occupancy, in all cases in which the same has not been lawfully extinguished. It is not to be concealed, however, that the title of the United States to the unappropriated lands lying within the limits of the separate states has been seriously questioned by some of them, as by Mississippi, Illinois, and Indiana. The latter state, in January, 1829, advanced a claim to the exclusive right to the soil and eminent domain of all the unappropriated lands within her acknowledged boundaries; and in 1830, Mississippi put forth a similar claim. But the cessions of the territorial claims of the separate states to the western country were called for by the resolutions of Congress of the 6th September and 10th of October, 1780, and were made upon the basis that they were to be "disposed of for the common benefit of the United States."(c) It was stipulated by Congress, in the last resolution, that the lands to be ceded should be disposed of for the common benefit of the United States; be settled and formed into distinct republican states, with a suitable extent of territory; become members of the American Union, and have the same rights of sovereignty, freedom, and independence as

the other states. It was likewise provided by the ordi- * 260 nance of July 13, 1787, for the government of the territory of the United States northwest of the river Ohio, that the legislatures of the districts or new states to be erected therein should "never interfere with the primary disposal of the soil by the United States, in Congress assembled, nor with any regulations Congress may find necessary for securing the title in such soil to the bona fide purchaser." (a)

(a) For disposing of the lands of the United States, numerous land offices have been established by acts of Congress in the states of Ohio, Indiana, Illinois, Missouri, Louisiana, Mississippi, Alabama, Michigan, and Arkansas, and in the territories of Wisconsin, Iowa, and Florida. See Gordon, Digest of the Laws of the United States, 1837, 321-389, in which all the statute provisions relative to the disposition of the public domain of the United States are collected, and clearly and neatly arranged and digested. By the act of Congress of September 4, 1841, c. 16, ten per cent of the net proceeds of the sales of the public lands, to be made subsequent to the 31st of December, 1841, within the limits of the states of Ohio, Indiana, Illinois, Alabama, Missouri, Mississippi, Louisiana, Arkansas, and Michigan, were to be paid to those states respectively; and the residue of those net proceeds, subject to certain provisos, should be divided, half-yearly, among the twenty-six states of the Union, and the

5. Effect of State Judgments. By the Constitution of the United States, Congress were, by general laws, to prescribe the manner in which the public acts, records, and judicial proceedings of every state should be proved, and the effect thereof in every other state. In pursuance of this power, Congress, by the act of May 26, 1790, provided the mode by which records and judicial proceedings should be authenticated, and then declared that they should have such faith and credit given to them in every court within the United States as they had by law or usage in the courts of the state from whence the records were taken. Under this act it was decided, in the case of Mills v. Duryee, (b) that if a judgment, duly authenticated, had, in the state court from whence it was taken, the faith and credit of the highest nature, viz. record evidence, it must have the same faith and credit in every other court. It was declaring the effect of the record, to declare the faith and credit that were to be given to it. The Constitution intended something more than to make the judgments of state courts prima facie evidence only. It contemplated a power in Congress to give a conclusive effect to such judgments. A judgment is, therefore, conclusive in every other state, if a court of the particular state where it was rendered would hold it conclusive. Nil debet is not a good plea in a suit on a judgment in another state, because not a good plea in such state. Nul tiel record is the proper plea in such a case. The same decision was followed in Hampton v. M'Connel, (c) * 261 and the doctrine contained in it may now be considered as the settled law of the land. It is not, however, to be understood that nul tiel record is, in all cases, the necessary plea; but any special plea may be pleaded which would be good to avoid the judgment in the state where it was pronounced. (a) And in Mayhew v. Thatcher, (b) the court would seem to imply District of Columbia, and the territories of Wisconsin, Iowa, and Florida, according to their respective federal representative population, as ascertained by the last census, to be applied by the legislatures of the said states to such purposes as they should direct.

(b) 7 Cranch, 481.

(a) Shumway v. Stillman, 4 Cowen, 292.

(b) 6 Wheaton, 129.-In Thurber v. Blackbourne, 1 N. H. 242, it was held that nil debet was a good plea to debt on a judgment of another state when it did not appear by the record that the defendant had notice of the suit. And in Spencer v. Brockway, 1 Ohio, 259; Holt v. Alloway, 2 Blackf. (Ind) 108, and Hoxie v. Wright, 2 Ver

that a judgment in one state, founded on an attachment in rem, would not be conclusive evidence of the debt in other states, if the defendant * had not personal notice of the * 262 suit, so as to have enabled him to defend it.1yl

mont, 263, the judgment of another state, regularly obtained, when the defendant had been served with process, or had otherwise appeared, was held to be conclusive evidence of the debt. But the defendant must have had due notice to appear, and be subject to the jurisdiction of the court, or if a foreigner or non-resident, he must have actually appeared to the suit, or the judgment of another state will not be deemed of any validity. This is a plain principle of justice, which pervades the jurisprudence of this and of all other countries. Killburn v. Woodworth, 5 Johns. 37; Aldrich v. Kinney, 4 Conn. 380; Bissell v. Briggs, 9 Mass. 462; Fisher v. Lane, 8 Wils. 297; Buchanan v. Rucker, 9 East, 192; Douglas v. Forrest, 4 Bing. 686, 702; Becquet v. MacCarthy, 2 Barn. & Adol. 951; Bruce v. Wait, 1 Mann. & Gr. 1; Pawling v. Bird, 13 Johns. 192; Earthman v. Jones, 2 Yerger, 484; Miller v. Miller, 1 Bailey (S. C.), 242; Benton v. Burgot, 10 Serg. & Rawle, 240; Rogers v. Coleman, Hardin, 413; Borden v. Fitch, 15 Johns. 121; Hall v. Williams, 6 Pick. 232; Bates v. Delavan, 5 Paige, 305; Bradshaw v. Heath, 13 Wendell, 407. See also infra, ii. 120. The doctrine in Mills v. Duryee is to be taken with the qualification that in all instances the jurisdiction of the court rendering the judgment may be inquired into, and the plea of nil debet will allow the defendant to show that the court had no jurisdiction over his person. It is only when the jurisdiction of the court in another state is not impeached, either as to the subject-matter or the person, that the record of the judgment is entitled to full faith and credit. The court must have had jurisdiction, not only of the cause, but of the parties, and in that case the judgment is final and conclusive. If the suit in another state was commenced by the attachment of property, the defendant may plead in bar, that no process was served on him, and that he never appeared, either in person or by attorney. Starbuck v. Murray, 5 Wendell, 148; Shumway v. Stillman, 6 Wendell, 447; Wilson v. Niles, 2 Hall (N. Y.), 358; Gleason

yl A judgment of another state may be claimed to be used in one of the following ways: (1.) As evidence. (2.) As the foundation of a right giving a cause of action. (3.) As a bar to an action. (4.) As a judgment on which execution is claimed. It may, in fact, be used in any of the first three ways, but not in the fourth. (See notes, supra.) Burnley v. Stevenson, 24 Ohio St. 474; Turley v. VOL. I.- 19

on which the court of the other state founded its jurisdiction, the parties are said to be at liberty to show that jurisdiction had not been acquired. Wilcox v. Kassick, 2 Mich. 165; Coit v. Haven, 30 Conn. 190, 198. Although if the court is one of general jurisdiction, the presumption is in favor of the validity of its pro

Dreyfus, 33 La. Ann. 885. No fraud or irregularity in the service which is not suffi cient to oust the jurisdiction can have any effect on the validity of the foreign state judgment. Peel v. January, 35 Ark. 331; Jardine v. Reichert, 39 N. J. L. 165.

As to the validity and effect to be given to a judgment of a United States court in a state court, see Dupasseur v. Rochereau, 21 Wall. 130.

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6. Power of Congress over the Militia. - Congress have authority to provide for calling forth the militia, to execute the laws of the

v. Dodd, 4 Metcalf, 333; Story, Comm. on the Conflict of Laws, §§ 586-590; Rangely v. Webster, 11 N. H. 299. But an important distinction is here to be observed, that a proceeding by foreign attachment, and against garnishees to judgment and execution, if binding in the state, is conclusive everywhere as a proceeding in rem against movable property and debts attached or garnished; but the judgment is of no force against the person of the debtor who had not been served with process, or appeared in the foreign attachment, nor against his property in another jurisdiction. Cochran v. Fitch, 1 Sandf. Ch. 142. The process by attachment of property of, and of debts due to non-residents, or of persons absent from the jurisdiction, will subject the property attached to execution upon the judgment or decree founded on the process; but it is considered as a mere proceeding in rem, and not personally binding, or having any extra-territorial force or obligation. Story, Comm. on the Conflict of Laws, § 568; Chew v. Randolph, Walker (Miss.), 1; Overstreet v. Shannon, 1 Mo. 529 [375 of republication]. A special plea in bar of a suit on a judgment in another state, to be valid, must deny, by positive averments, every fact which would go to show that the court in another state had jurisdiction of the person, or of the subject-matter. Harrod v. Barretto, 1 Hall (N. Y.), 155.

ceedings. Dunbar v. Hallowell, 34 Ill. 168; Folger v. Columbian Ins. Co., 99 Mass. 267, 273; Buffum v. Stimpson, 5 Allen, 591; Jarvis v. Robinson, 21 Wis. 523. See Miller v. United States, 11 Wall. 268, 299. But see Warren v. McCarthy, 25 Ill. 95, 103; Smith v. Mulliken, 2 Minn. 319. Except in case of a special statutory authority, with regard to which such courts stand on the same footing with courts of limited jurisdiction. Wyatt v. Rambo, 29 Ala. 510, 521, 522; Commonwealth v. Blood, 97 Mass. 538; Folger v. Columbian Ins. Co., 99 Mass. 267; Allen v. Blunt, 1 Blatchf. 480. 1 So, if the record recites an appearance by attorney, these cases generally allow the attorney's authority to be disproved. Shelton v. Tiffin, 6 How. 163, 186; Harshey v. Blackmarr, 20 Iowa, 161, 173; Kerr v. Kerr, 41 N. Y. 272, 275; Lawrence v. Jarvis, 32 Ill. 304. Contra, Warren v. Lusk, 16 Mo. 102; Baker v. Stonebreaker, 34 Mo. 172.

But when the record recites facts sufficient to give the court jurisdiction, including such matters as service of pro

cess on the defendant or his personal appearance, the better opinion seems to be that those facts cannot be controverted by the parties in another state. Field v. Gibbs, Peters, C. C. 155; Wilcox v. Kassick, 2 Mich. 165; Lincoln v. Tower, 2 McLean, 473; Thompson v. Emmert, 4 McL. 96; Pritchett v. Clark, 4 Har. (Del.) 280; Wescott v. Brown, 13 Ind. 83; Lawrence v. Jarvis, 32 Ill. 304; Lapham v. Briggs, 27 Vt. 26; Wilson v. Jackson, 10 Mo. 329, 334; Shelton v. Tiffin, 6 How. 163, 186. (Just as similar recitals in the record of a domestic court of limited jurisdiction would be conclusive. Sheldon v. Wright, 1 Seld. (5 N. Y.) 497, 516; Wyatt v. Rambo, 29 Ala. 510. Contra, Sears v. Terry, 26 Conn. 272.) Although there are weighty decisions and dicta that the jurisdiction of the court of another state may be inquired into in all cases. Starbuck v. Murray, 5 Wend. 148; Carleton v. Bickford, 13 Gray, 591; Folger v. Columbian Ins. Co., 99 Mass. 267, 273; Kerr v. Kerr, 41 N. Y. 272, 275; Noyes v. Butler, 6 Barb. 613; Hoffman v. Hoffman, 46 N. Y. 30; Norwood v. Cobb, 24

rl Galpin v. Page, 18 Wall. 85.

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