CHAPTER XXIX. POWER OF CONGRESS AS TO PROOF OF STATE 656. THE first section of the fourth article declares: "Full faith and credit shall be given in each "state to the public acts, records, and judicial proceed"ings of every other state. And the congress may by "general laws prescribe the manner, in which such "acts, records, and proceedings shall be proved, and the effect thereof." § 657. It is well known, that the laws and acts of foreign nations are not judicially taken notice of in any other nation; and that they must be proved, like any other facts, whenever they come into operation or examination in any forensic controversy. The nature and mode of the proof depend upon the municipal law of the country, where the suit is depending; and there are known to be great diversities in the practice of different nations on this subject. Even in England and America the subject, notwithstanding the numerous judicial decisions, which have from time to time been made, is not without its difficulties and embarrassments. § 658. Independent of the question as to proof, there is another question, as to the effect, which is to be given to foreign judgments, when duly authenticated, in the tribunals of other nations, either as matter to maintain a suit, or to found a defence to a suit. Upon this subject, also, different nations are not entirely agreed in opinion or practice. Most, if not all of them, profess to give some effect to such judgments; but many exceptions are allowed, which either demolish the whole efficiency of the judgment, as such, or leave it open to collateral proofs, which in a great measure impair its validity. To treat suitably of this subject would require a large dissertation, and appropriately belongs to another branch of public law. § 659. The general rule of the common law, recognised both in England and America, is, that foreign judgments are primâ facie evidence of the right and matter, which they purport to decide. At least, this may be asserted to be in England the preponderating weight of opinion; and in America it has been held, upon many occasions, though its correctness has been recently questioned, upon principle and authority, with much acute ness. 660. Before the revolution, the colonies were deemed foreign to each other, as the British colonies are still deemed foreign to the mother country; and, of course, their judgments were deemed foreign judgments within the scope of the foregoing rule. It followed, that the judgments of one colony were deemed re-examinable in another, not only as to the jurisdiction of the court, which pronounced them; but also as to the merits of the controversy, to the extent, in which they were then understood to be re-examinable in England. In some of the colonies, however, laws had been passed, which put judgments in the neighbouring colonies upon a like footing with domestic judgments, as to their conclusiveness, when the court possessed jurisdiction. The reasonable construction of the article of the confederation on this subject is, that it was intended to give the same conclusive effect to judgments of all the states, so as to promote uniformity, as well as certainty, in the rule among them. It is probable, that it did not invariably, and perhaps not generally, receive such a construction; and the amendment in the constitution was, without question, designed to cure the defects in the existing provision. § 661. The clause of the constitution propounds three distinct objects; first, to declare, that full faith and credit shall be given to the records, &c. of every other state; secondly, to prescribe the manner of authenticating them; and thirdly, to prescribe their effect, when so authenticated. The first is declared, and established by the constitution itself, and is to receive no aid from, nor is it susceptible of any qualification by, congress. The other two are expressly subjected to the legislative power. CHAPTER XXX. POWERS OF CONGRESS -ADMISSION OF NEW STATES, AND ACQUISITION OF TERRITORY. § 662. THE third section of the fourth article contains two distinct clauses. The first is "New states 66 may be admitted by the congress into this Union. "But no new state shall be formed or erected within "the jurisdiction of any other state, nor any state be "formed by the junction of two or more states, or parts of states, without the consent of the legislature "of the states concerned, as well as of the congress." 66 § 663. In the articles of confederation no provision is to be found on this important subject. Canada was to be admitted of right, upon her acceding to the measures of the United States. But no other colony (by which was evidently meant no other British colony) was to be admitted, unless by the consent of nine states. The eventual establishment of new states within the limits of the Union seems to have been wholly overlooked by the framers of that instrument. In the progress of the revolution it was not only perceived, that from the acknowledged extent of the territory of several of the states, and its geographical position, it might be expedient to divide it into two states; but a much more interesting question arose, to whom of right belonged the vacant territory appertaining to the crown at the time of the revolution, whether to the states, within whose chartered limits it was situated, or to the Union in its federative capacity. This was a subject of long and ardent controversy, and (as has been already suggested) threatened to disturb the peace, if not to overthrow the government of the Union. It was upon this ground, that several of the states refused to ratify the articles of confederation, insisting upon the right of the confederacy to a portion of the vacant and unpatented territory included within their chartered limits. Some of the states most interested in the vacant and unpatented western territory, at length yielded to the earnest solicitations of congress on this subject. To induce them to make liberal cessions, congress declared, that the ceded territory should be disposed of for the common benefit of the Union, and formed into republican states, with the same rights of sovereignty, freedom, and independence, as the other states; to be of a suitable extent of territory, not less than one hundred, nor more than one hundred and fifty miles square; and that the reasonable expenses incurred by the state, since the commencement of the war, in subduing British posts, or in maintaining and acquiring the territory, should be reimbursed. § 664. It was doubtless with reference principally to this territory, that the article of the constitution, now under consideration, was adopted. The general precaution, that no new states shall be formed without the concurrence of the national government, and of the states concerned, is consonant to the principles, which ought to govern all such transactions. The particular precaution against the erection of new states by the partition of a state without its own consent, will quiet the jealousy of the larger states; as that of the smaller will also be quieted by a like precaution against a junction of states without their consent. Under this provision no less than eleven states have, in the space of little more than forty years, been admitted into the Union upon an equality with the original states. And it |