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 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." (a) 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 pro*260 vided by the ordinance of July 13th, 1787, for the gov ernment of the territory of the United States northwest of . the river Ohio, that the legislatures of the districts or new states

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.

(a) Journals of the Confed. Congress, vol. vi. pp. 123, 147. Ibid. vol. viii. pp. 256, 259. Ibid. vol. ix. p. 47. Ibid. vol. x. p. 92. Ibid. vol. xi. p. 160. Ibid. vol. xii.

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) 1

Effect of

(5.) By the constitution of the United States, con- public regress were, by general laws, to prescribe the manner cords. 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 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

(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's Digest of the Laws of the United States, 1837, pp. 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. (b) 7 Cranch, 481.

1 Although the act of congress, 1 May, 1820, prohibits the purchase of lands on account of the United States, except by special law, yet the United States may acquire the legal title to land taken as the security of a debt. Neilson v. Lagow, 12 How. U. S. 98.

2 An action of debt will not lie against an administrator in one state, on a judgment

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. 261 M'Connel, (a) 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. (b) And in Mayhew v. Thatcher, (c) the

(a)

Wheaton, 234; and in Wernwag v. Pawling, 5 Gill & Johnson, 500.

(b) Shumway v. Stillman, 4 Cowen's Rep. 292.

(c) 6 Wheaton, 129.-In Thurber v. Blackbourne, 1 N. H. Rep. 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 Hammond's Ohio Rep. 122; Holt v. Alloway, 2 Blackf Ind. Rep. 108, and Hoxie v. Wright, 2 Vermont Rep. 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. Kilburn v. Woodworth, 5 Johns. Rep. 37. Aldrich v. Kinney, 4 Conn. Rep. 380. Briggs, 9 Mass. Rep. 462. Fisher v. Lane, 3 Wils. Rep. 297. Buchanan v. Rucker,

2

Bissell v.

obtained against a different administrator of the same intestate, appointed under the authority of another state. It seems there is no privity between the two administrators, and the judgment cannot be regarded as one in rem against the estate as a corporate unity. Stacy v. Thrasher, 6 How. U. S. 44, 60; McLean v. Meek, 18 How. U. S. 16.

In an action upon a bond conditioned for the payment of a debt by instalments, the plaintiff recovered judgment in New Hampshire for the penalty, and execution was issued for the first instalment then due. A suit having been brought in Vermont on the judgment, it was held that the judgment did not create an absolute indebtedness, which would sustain an action of debt in the common form, or by setting forth the judgment, the execution, and the subsequent breaches. Dimmick v. Brooks, 21 Vermont R. 569. 2 The notice must be such as the state giving it is competent to direct. Mere knowledge of the pendency of the suit is not sufficient. State tribunals have no authority beyond the limits of the state; it seems that notice served on a person resident in another state, and while he is within such state, will not render the foreign judgment binding upon him. Ewer v. Coffin, 1 Cush. (Mass.) R. 23.

court would seem to imply that a judgment in one state, founded on an attachment in rem, would not be conclusive

9 East's Rep. 192. Douglas v. Forrest, 4 Bing. Rep. 686, 702. Becquet v. MacCarthy, 2 Barnw. & Adolph. 951. Bruce v. Wait, 1 Manning & Granger, 1. Pawling v. Bird, 13 Johns. Rep. 192. Earthman v. Jones, 2 Yerger's Tenn. Rep. 484. Miller v. Miller, 1 Bailey's S. C. Rep. 242. Benton v. Burgot, 10 Serg. & Rawle, 240. Rogers v. Coleman, Hardin's Rep. 413. Borden v. Fitch, 15 Johns. Rep. 121. Hall v. Williams, 6 Pick. Rep. 232. Bates v. Delavan, 5 Paige, 305. Bradshaw v. Heath, 13 Wendell, 407. See, also, infra, vol. 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's Rep. 148. Shumway v. Stillman, 6 Wendell's Rep. 447. Wilson v. Niles, 2 Hall's N. Y. Rep. 358. Gleason v. Dodd, 4 Metcalf, 333. Story's Comm. on the Conflict of Laws, sec. 586-590. Rangely v. Webster, 11 N. H. Rep. 299.1 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

1 The record of a judgment obtained in another state is of itself prima facie evidence that the court possessed the jurisdiction which it assumed to exereise. Bank of United States v. Merchants Bank, 7 Gill, 415: and see Moulin v. Ins. Co. 4 Zabr. 222: and one who alleges a want of jurisdiction must show it upon the face of the record according to the law of the state where the judgment was rendered. Lapham v. Briggs, 1 Wms. (Verm.) 26. The defendant may plead that he was not served with process, Rathbone v. Terry, 1 R. I. 73; D'Arcy v. Ketchum, 11 How. U. S. 165; Noyes v. Butler, 6 Barb. 613: and though the recital upon the record of an appearance by attorney is prima facie evidence of an appearance of the party in interest, Houston v. Dunn, 13 Tex. 476; it may be shown that the attorney appeared without authority. Sherrard v. Nevius, 2 Carter (Ind.) 241; Thompson v. Emmert, 15 Ill. 415; Bodurtha v. Goodrich, 3 Gray, 508; and see Pearce v. Olney, 20 Conn. 544; Wilcox v. Kassick, 2 Gibbs (Mich.) 165; Newcomb v. Peck, 17 Verm. 302.

The record of a judgment pronounced by an inferior tribunal, and which does not admit of authentication according to the law of the United States, is not conclusive within the constitutional provision. Taylor v. Barron, 10 Fost. 78: so of a judgment rendered by a justice of the peace in another state. Snyder v. Wise, 10 Barr. 157; Robinson v. Prescott, 4 N. H. 450. But a judgment, valid by the laws of the state where it is pronounced, is entitled to full faith, though neither plaintiff nor defendant was at the time a resident of the state. Randolph v. Keiler, 21 Mis. 557: so is the probate of a will when certified conformably to the requirements of the act. Haile v. Hill, 13 Mis. 612.

In a suit in New York upon a judgment rendered there, a decree of a competent court of Connecticut, enjoining proceedings in that state upon the record, is conclusive evidence that the judgment was originally procured by fraud as set forth in the decree. Dobson v. Pearce, 2 Kern. 156.

evidence of the debt in other states, if the defendant *262 had not personal notice of the suit, so as to have enabled him to defend it.

Power of congress over

(6.) Congress have authority to provide for calling the militia. forth the militia, to execute the laws of the Union, suppress insurrections and repel invasions; and to provide 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 to 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.

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 Sandford's Ch. R. 142.1 The process by attachment of property of, and of debts due to nonresidents, 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 extraterritorial force or obligation. Story's Comm. on the Conflict of Laws. Ibid. sec. 568. Chew v. Randolph, Walker's Miss. R. 1. Overstreet v. Shannon, 1 Missouri Rep. 529. 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's N. Y. Rep. 155.

(a) Const. art. 1, sec. 8.

Whitney v. Walsh, 1 Cush. (Mass.) R. 29. See the case of The Globe, N. Dist. N. Y. Law Rep. February, 1851, p. 488, where the court was of opinion that a judgment in rem, rendered in pursuance of an act of Ohio, would be a nullity in other states, unless the owner of the vessel proceeded against appeared in the suit, or had due notice and opportunity to make a defence. See, also, The Velocity, N. Dist. of N. Y., reported in Law Rep. June, 1850, p. 61. But see the opinion of Mr. Justice Nelson reversing the decree of the district judge in the case of The Globe. C. C. North Dist. N. Y. Dec. 1852: 15 Law Rep. 421. See Ridley v. Ridley, 24 Miss. 648; Woodruff v. Taylor, 20 Verm. 65.