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 *260 the other states. It was likewise provided by * the ordinance of July 13th, 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) 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 26th, 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 (c) Journals of the Confed. Congress, vi. 123, 147; viii. 256, 259; ix. 47; x. 92; xi. 160; xii. 92. (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 4th, 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 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. 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) and the doctrine contained * in it may now be considered *261 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 (b) 7 Cranch, 481. (c) 3 Wheaton, 234; and in Wernwag v. Pawling, 5 Gill & Johns. 500. (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 Vermont, 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, 3 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; Earthınan 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, that a judgment in one state, founded on an attachment in rem, would not be conclusive evidence of the debt in other *262 states, if the defendant had not personal notice of the suit, so as to have enabled him to defend it.1 and the plea of nil debet will allow the defendant to show that the court had no juris. diction 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 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 every where 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. 1 Judgments of other States. — As to the necessity of notice mentioned in the note (b) of the last page, see D'Arcy v. Ketchum, 11 How. 165; Christmas v. Russell, 5 Wall. 290, 305. As to appellate proceedings, see Nations v. Johnson, 24 How. 195. If the record does not recite the facts 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 presump tion is in favor of the validity of its proceedings. 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. 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, 178; Kerr v. Kerr, 41 N. Y. 272, 275; Lawrence . Jarvis, 6. Power of Congress over the Militia.- Congress have authority to provide for calling forth the militia, to execute the laws of the Union, suppress insurrections and repel invasions; and to provide 82 Ill. 304. Contra, Warren v. Lusk, 16 Mo. 102; Baker v. Stonebraker, 34 Mo. 172. But when the record recites facts sufficient to give the court jurisdiction, including such matters as service of process 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; Westcott 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 Texas, 551; Coit v. Haven, 30 Conn. 190, 198; (Christmas v. Russell, 5 Wall. 290, 305, but see Cheever v. Wilson, 9 Wall. 108, 123;) Rape v. Heaton, 9 Wis. 328. In Hendrick v. Whittemore, 105 Mass. 23, 28, Carleton v. Bickford is cited, and it is there said that the reason domestic judgments cannot be thus impeached collaterally by the parties thereto, is because the remedy by review or writ of error is held to be more appropriate. Other cases to the point that judgments obtained after an attachment of a non resident defendant's property, but without personal service or appearance by him, are not binding in personam in other states, are Easterly v. Goodwin, 35 Conn. 273; McVicker v. Beedy, 31 Me. 814. See Wright v. Boynton, 37 N. H. 9; Cooper v. Reynolds, 10 Wall. 308, 318. The statement in these cases, and supra, 261, n. (b), that the attachment operates as a proceeding in rem, must be taken with great caution. Bold Buccleugh, 7 Moore, P. C. 267, 282; Megee v. Beirne, 39 Penn. St. 50. But in a suit on a judgment obtained in another state, although the jurisdiction and notice to the defendant may be inquired into, it cannot be set up that the judgment was obtained by fraud. Christmas v. Russell, supra. In this case, also, a state law which in substance provided that judgments recovered in other states against citizens of that state should not be enforced in the courts of the latter, if the cause of action which was the foundation of the judgment would have been barred in her courts by her statutes of limitations, was held unconstitutional for like reasons. But states may prescribe reasonable periods of limitation to actions on judgments obtained in other states. Ib. 300; Bank of Alabama v. Dalton, 9 How. 522; post, 419, n. 1. It results from the general doctrine that a judgment recovered in another state is a bar to an action for the same cause and between the same parties. McGilvray v. Avery, 30 Vt. 538; Child v. Eureka Powder Works, 45 N. H. 547; North Bank v. Brown, 50 Me. 214. Although an appeal is pending. Bank of North America v. Wheeler, 28 Conn. 433. The constitutional provision applies to a decree of divorce which is valid and effect. ual by the laws of the state where it was obtained. Cheever v. Wilson, 9 Wall. 108; post, ii. 117, n. 1. As to foreign judgments, see ii. 120, n. 1. for organizing, arming, and disciplining the militia, and for governing such part of them as may be employed in the service of the United States; reserving to the states, respectively, the appointment of the officers, and the authority of training the militia, according to the discipline prescribed by Congress. (a) The President of the United States is to be the commander of the militia, when called into actual service. The act of 28th of February, 1795, authorized the President, in case of invasion, or of imminent danger of it, to call forth such number of militia most convenient to the scene of action as he might judge necessary. The militia so called out are made subject to the rules of war; and the law imposes a fine upon every delinquent, to be adjudged by a court-martial composed of militia officers only. These militia courts-martial are to be held and conducted in the manner prescribed by the articles of war; and the act of 18th of April, 1814 prescribes the manner of holding them. During the war of 1812, the authority of the President of the United States over the militia became a subject of doubt and difficulty, and of a collision of opinion between the general government and the governments of some of the states. It was the opinion of the government of Connecticut, that the militia could not be called out, upon the requisition of the general government, except in a case declared and founded upon the existence of one of the specified exigencies; that, when called out, they could not be taken from under the command of the officers duly appointed by the states, or placed under the immediate command of an officer of the army of the United States. Nor could the United States lawfully detach a portion of the privates from the body * of the company to which they belonged, and which 263 *was organized with proper officers. This would, in the opinion of the government of Connecticut, impair, and eventually destroy, the state militia. When the militia are duly called into the service of the United States, they must be called as militia, furnished with proper officers by the state. Similar difficulties arose between the government of the United States and the state of Massachusetts, on the power of the national government over the militia. Both those states refused to furnish detachments of militia for the maritime frontier, on ar exposition of the Constitution, which they deemed sound and just. (a) Const. art. 1, sec. 8. |