The Constitution of the United States of America: Analysis and Interpretation Part 123

[729] United States _v._ Burr, 4 Cr. 470, Appx. (1807).

[730] There have been a number of lower court cases in some of which convictions were obtained. As a result of the Whiskey Rebellion convictions of treason were obtained on the basis of the ruling that forcible resistance to the enforcement of the revenue laws was a constructive levying of war. United States _v._ Vigol, 28 Fed. Cas. No.

16,621 (1795); United States _v._ Mitch.e.l.l, 26 Fed. Cas. No. 15,788 (1795). After conviction, the defendants were pardoned. _See also_ for the same ruling in a different situation the Case of Fries, 9 Fed. Cas.

Nos. 5,126 (1799); 5,127 (1800). The defendant was again pardoned after conviction. About a half century later partic.i.p.ation in forcible resistance to the Fugitive Slave Law was held not to be a constructive levying of war. United States _v._ Hanway, 26 Fed. Cas. No. 15,299 (1851). Although the United States Government regarded the activities of the Confederate States as a levying of war, the President by Amnesty Proclamation of December 25, 1868, pardoned all those who had partic.i.p.ated on the southern side in the Civil War. In applying the Captured and Abandoned Property Act of 1863 (12 Stat. 820) in a civil proceeding, the Court declared that the foundation of the Confederacy was treason against the United States. Sprott _v._ United States, 20 Wall. 459 (1875). _See also_ Hanauer _v._ Doane, 12 Wall. 342 (1871); Thorington _v._ Smith, 8 Wall. 1 (1869); Young _v._ United States, 97 U.S. 39 (1878). These four cases bring in the concept of adhering to the enemy and giving him aid and comfort, but these are not criminal cases and deal with attempts to recover property under the Captured and Abandoned Property Act by persons who claimed that they had given no aid or comfort to the enemy. These cases are not, therefore, an interpretation of the Const.i.tution.

[731] 325 U.S. 1 (1945).

[732] 89 Law. Ed. 1443-1444 (Argument of Counsel).

[733] 325 U.S. 35.

[734] Ibid. 34-35. Earlier Justice Jackson had declared that this phase of treason consists of two elements: "adherence to the enemy; and rendering him aid and comfort." A citizen, it was said, may take actions "which do aid and comfort the enemy--* * *--but if there is no adherence to the enemy in this, if there is no intent to betray, there is no treason." Ibid. 29. Justice Jackson states erroneously that the requirement of two witnesses to the same overt act was an original invention of the Convention of 1787. Actually it comes from the British Treason Trials Act of 1696 (7 and 8 Wm. III, C. 3).

[735] 330 U.S. 631 (1947).

[736] Ibid. 635-636.

[737] 330 U.S. 631, 645-646. Justice Douglas cites no cases for these propositions. Justice Murphy in a solitary dissent stated: "But the act of providing shelter was of the type that might naturally arise out of pet.i.tioner's relations.h.i.+p to his son, as the Court recognizes. By its very nature, therefore, it is a non-treasonous act. That is true even when the act is viewed in light of all the surrounding circ.u.mstances.

All that can be said is that the problem of whether it was motivated by treasonous or non-treasonous factors is left in doubt. It is therefore not an overt act of treason, regardless of how unlawful it might otherwise be." Ibid. 649. The following summary, taken from the Appendix to the Government's brief in Cramer _v._ United States, 325 U.S. 1 (1945), and incorporated as note 38 in the Court's opinion (pp. 25-26), contains all the cases in which, prior to Kawakita _v._ United States, which is dealt with immediately below, construction of the treason clause has been involved except grand jury charges and cases to which interpretation of the clause was incidental: Whiskey Rebellion cases: United States _v._ Vigol, 28 Fed. Cas. No. 16,621 (1795), United States _v._ Mitch.e.l.l, 26 Fed. Cas. No. 15,788 (1795) (constructive levying of war, based on forcible resistance to execution of a statute; defendants convicted and later pardoned). House tax case: Fries's Case, 9 Fed. Cas.

Nos. 5,126, 5,127 (1799, 1800) (constructive levying of war, based on forcible resistance to execution of a statute; defendant convicted and later pardoned). The Burr Conspiracy: Ex parte Bollman, 4 Cr. 75 (1807); United States _v._ Burr, 25 Fed. Cas. Nos. 14,692a (1806); 14,693 (1807) (conspiracy to levy war held not an overt act of levying war). United States _v._ Lee, 26 Fed. Cas. No. 15,584 (1814) (sale of provisions a sufficient overt act; acquittal). United States _v._ Hodges, 26 Fed. Cas No. 15,374 (1815) (obtaining release of prisoners to the enemy is adhering to the enemy, the act showing the intent; acquittal). United States _v._ Hoxie, 26 Fed. Cas. No. 15,407 (1808) (attack of smugglers on troops enforcing embargo is riot and not levying of war). United States _v._ Pryor, 27 Fed. Cas. No. 16,096 (1814) (proceeding under flag of truce with enemy detachment to help buy provisions is too remote an act to establish adhering to the enemy). United States _v._ Hanway, 26 Fed. Cas. No. 15,299 (1851) (forcible resistance to execution of Fugitive Slave Law no levying of war). United States _v._ Greiner, 26 Fed. Cas. No. 15,262 (1861) (partic.i.p.ation as members of state militia company in seizure of a federal fort is a levying of war). United States _v._ Greathouse, 26 Fed. Cas. No. 15,254 (1863) (fitting out and sailing a privateer is a levying of war; defendants convicted, later pardoned).

Cases of confiscation of property or refusal to enforce obligations given in connection with sale of provisions to the Confederacy: Hanauer _v._ Doane, 12 Wall. 342 (1871); Carlisle _v._ United States, 16 Wall.

147 (1873); Sprott _v._ United States, 20 Wall. 459, 371[Transcriber's Note: "371" is incorrect--case occupies 20 Wall. 459-474 (1874)] (1874); United States _v._ Athens Armory, 24 Fed. Cas. No. 14,473 (1868) (mixed motive, involving commercial profit, does not bar finding of giving aid and comfort to the enemy). United States _v._ Cathcart and United States _v._ Parmenter, 25 Fed. Cas. No. 14,756 (1864). Chenoweth's Case (unreported: _see_ Ex parte Vallandigham, 28 Fed. Cas. No. 16,816, at 888 (1863)) (indictment bad for alleging aiding and abetting rebels, instead of directly charging levying of war). Case of Jefferson Davis, 7 Fed. Cas. No. 3621a (1867-71) (argument that rebels whose government achieved status of a recognized belligerent could not be held for treason; Davis was not tried on the indictment); _see_ 2 Warren, Supreme Court in United States History (1934 ed.) 485-487; Watson, Trial of Jefferson Davis (1915) 25 Yale L.J. 669. Philippine insurrections: United States _v._ Magtibay, 2 Phil. 703 (1903), United States _v._ De Los Reyes, 3 Phil. 349 (1904) (mere possession of rebel commissions insufficient overt acts; strict enforcement of two-witness requirement; convictions reversed); United States _v._ Lagnason, 3 Phil. 472 (1904) (armed effort to overthrow the government is levying war). United States _v._ Fricke, 259 F. 673 (1919) (acts "indifferent" on their face held sufficient overt acts). United States _v._ Robinson, 259 F. 685 (1919) (dictum, acts harmless on their face are insufficient overt acts).

United States _v._ Werner, 247 F. 708 (1918), affirmed in 251 U.S. 466 (1920) (act indifferent on its face may be sufficient overt act). United States _v._ Haupt, 136 F. (2d) 661 (1943) (reversal of conviction on strict application of two-witness requirement and other grounds; inferentially approves acts harmless on their face as overt acts).

Stephan _v._ United States, 133 F. (2d) 87 (1943) (acts harmless on their face may be sufficient overt acts; conviction affirmed but sentence commuted). United States _v._ Cramer, 137 F. (2d) 888 (1943).

[738] 343 U.S. 717.

[739] Ibid. 732. For citations on the subject of dual nationality, _see_ ibid. 723 note 2. Three dissenters a.s.serted that Kawakita's conduct in j.a.pan clearly showed he was consistently demonstrating his allegiance to j.a.pan. "As a matter of law, he expatriated himself as well as that can be done." Ibid. 746.

[740] Ex parte Bollman, 4 Cr. 75 (1807).

[741] United States _v._ Burr, 4 Cr. 470 (1807).

[742] Cramer _v._ United States, 325 U.S. 1 (1945).

[743] Haupt _v._ United States, 330 U.S. 631 (1947).

[744] Ex parte Bollman, 4 Cr. 75, 126, 127 (1807).

[745] 12 Stat. 589. This act incidentally did not designate rebellion as treason.

[746] Miller _v._ United States, 11 Wall. 268, 305 (1871).

[747] Wallach _v._ Van Riswick, 92 U.S. 202, 213 (1876).

[748] Lord de la Warre's Case, 11 c.o.ke, 1 a. A number of cases dealt with the effect of a full pardon by the President of owners of property confiscated under this act. They held that a full pardon relieved the owner of forfeiture as far as the Government was concerned, but did not divide the interest acquired by third persons from the Government during the lifetime of the offender. Illinois Central R. Co. _v._ Bosworth, 133 U.S. 92, 101 (1890); Knote _v._ United States, 95 U.S. 149 (1877); Wallach _v._ Van Riswick, 92 U.S. 202, 213 (1876); Armstrong's Foundry _v._ United States, 6 Wall. 766, 769 (1868). There is no direct ruling on the question of whether only citizens can commit treason. In Carlisle _v._ United States, 16 Wall. 147, 154-155 (1873), the Court declared that aliens while domiciled in this country owe a temporary allegiance to it and may be punished for treason equally with a native-born citizen in the absence of a treaty stipulation to the contrary. This case involved the attempt of certain British subjects to recover claims for property seized under the Captured and Abandoned Property Act, 12 Stat.

820 (1863) which provided for the recovery of property or its value in suits in the Court of Claims by persons who had not rendered aid and comfort to the enemy. Earlier in United States _v._ Wiltberger, 5 Wheat.

76, 97 (1820), which involved a conviction for manslaughter under an act punis.h.i.+ng manslaughter and treason on the high seas, Chief Justice Marshall going beyond the necessities of the case stated that treason "is a breach of allegiance, and can be committed by him only who owes allegiance either perpetual or temporary."

ARTICLE IV

STATES' RELATIONS

Section 1. Full faith and credit Page Sources and effect of this provision 651 Private international law 651 Importance of the const.i.tutional provision 652 Acts of 1790 and 1804 652 Force and effect of same 652 Judgments: Primary concern of the provision 653 Two princ.i.p.al cla.s.ses of judgments 653 Effect to be given in forum State 653 Jurisdictional prerequisite 657 Judgments in personam 658 Jurisdictional question 659 Service on foreign corporations 660 Service on out-of-State owners of motor vehicles 660 Judgments in rem 661 Thompson _v._ Whitman 661 Divorce decrees 662 Jurisdictional prerequisite: Domicile 662 Haddock _v._ Haddock 662 Emergence of the domicile question 663 Williams I and II 664 Cases involving claims for alimony or property arising in forum State 666 Recent cases 668 State of the law today: quaere 670 Decrees awarding alimony, custody of children 670 Collateral attack by child 671 Decrees of other types 672 Probate decrees 672 Adoption decrees 673 Garnishment decrees 673 Fraud as a defense to suits on foreign judgments 674 Penal judgments: types ent.i.tled to recognition 674 Recognition of rights based upon Const.i.tutions, statutes, common law 675 The early rule 675 Development of the modern rule 675 Transitory actions: Death statutes 676 Actions upon contract: When governed by law of place of making 677 Stockholder-corporation relations.h.i.+p 677 Fraternal benefit society--member relations.h.i.+p 678 Insurance company, building and loan a.s.sociation--contractual relations.h.i.+ps 679 Workmen's compensation statutes 681 Development of section to date and possibilities 682 Evaluation of results 682 Scope of powers of Congress under section 683 Full faith and credit in the federal courts 684 Judgments of foreign States 685 Section 2. Interstate comity 686 Clause 1. The comity clause 686 Sources 686 Theories as to its purpose 686 How implemented 688 "Citizens of each State" 688 Corporations 688 "All privileges and immunities of citizens in the several States" 689 Discrimination in private rights 691 Access to courts 691 Taxation 692 Clause 2. Fugitives from justice 693 Duty to surrender 693 "Fugitive from justice" 694 Procedure of removal 695 Trial of fugitive after removal 695 Clause 3. Fugitives from labor 696 Section 3. New States and government of territory, etc. 697 Clause 1. Admission of States 697 Doctrine of equality of the States 697 Earlier scope of the doctrine 698 Citizens.h.i.+p of inhabitants 699 Judicial proceedings 699 Property rights; United States _v._ Texas 700 Rights conveyed to private persons before admission of State 700 Clause 2. Property and territory; regulatory powers of Congress 701 Property of the United States 701 Methods of disposing 701 Public lands 701 Power of the States 702 Power of Congress over territories 703 Section 4. Obligations of United States to the States 704 Republican form of government 704 Protection against domestic violence 704 Decline in importance of this guaranty 704

STATE'S RELATIONS

Article IV

Section 1. Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings 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.

Sources and Effect of This Provision

PRIVATE INTERNATIONAL LAW

The historical background of the above section is furnished by that branch of private law which is variously termed "Private International Law," "Conflict of Laws," "Comity." This comprises a body of rules, based largely on the writings of jurists and judicial decisions, in accordance with which the courts of one country or "jurisdiction" will ordinarily, in the absence of a local policy to the contrary, extend recognition and enforcement to rights claimed by individuals by virtue of the laws or judicial decisions of another country or "jurisdiction."

Most frequently applied examples of these rules include the following: the rule that a marriage which is good in the country where performed (_lex loci_) is good elsewhere; likewise the rule that contracts are to be interpreted in accordance with the laws of the country where entered into (_lex loci contractus_) unless the parties clearly intended otherwise; also the rule that immovables may be disposed of only in accordance with the law of the country where situated (_lex rei sitae_);[1] also the converse rule that chattels adhere to the person of their owner and hence are disposable by him, even when located elsewhere, in accordance with the law of his domicile (_lex domicilii_); also the rule that regardless of where the cause arose, the courts of any country where personal service can be got upon the defendant will take jurisdiction of certain types of personal actions, hence termed "transitory," and accord such remedy as the _lex fori_ affords. Still other rules, of first importance in the present connection, determine the recognition which the judgments of the courts of one country shall receive from those of another country.

IMPORTANCE OF THE CONSt.i.tUTIONAL PROVISION

So even had the States of the Union remained in a mutual relations.h.i.+p of entire independence, still private claims originating in one would often have been a.s.sured recognition and enforcement in the others. The framers of the Const.i.tution felt, however, that the rules of private international law should not be left as among the States altogether on a basis of comity, and hence subject always to the overruling local policy of the _lex fori_, but ought to be in some measure at least placed on the higher plane of const.i.tutional obligation. In fulfillment of this intent the section now under consideration was inserted, and Congress was empowered to enact supplementary and enforcing legislation.

THE ACTS OF 1790 AND 1804

Congressional legislation under the full faith and credit clause, so far as it is pertinent to adjudication thereunder, is today embraced in section 687 of t.i.tle 28 of the United States Code, which consolidates the acts of May 26, 1790 and of March 27, 1804.[2] "The acts of the legislature of any State or Territory, or of any country subject to the jurisdiction of the United States, shall be authenticated by having the seals of such State, Territory, or country affixed thereto. The records and judicial proceedings of the courts of any State or Territory, or of any such country, shall be proved or admitted in any other court within the United States, by the attestation of the clerk, and the seal of the court annexed, if there be a seal, together with a certificate of the judge, chief justice, or presiding magistrate, that the said attestation is in due form. And the said records and judicial proceedings, so authenticated, shall have such faith and credit given to them in every court within the United States as they have by law or usage in the courts of the State from which they are taken."

FORCE AND EFFECT OF SAME

Several points clearly emerge: (1) the word "effect" is construed as referring to the effect of the records when authenticated, not to the effect of the authentication; (2) the faith and credit which is required by the rules of private international law is superseded as to "the records and judicial proceedings" of each State by a rule of complete obligation; as to these the local policy of the forum State can validly have no application. On the other hand, (3) while the act of 1790 lays down a rule for the authentication of the statutes of the several States, it says nothing regarding their extraterritorial operation; and (4) it is similarly silent regarding the common law of the several States. These silences, however, have been repealed, in part, by judicial decision. (_See_ pp. 675-682.)

Judgments: The Primary Concern of the Provision

TWO PRINc.i.p.aL CLa.s.sES OF JUDGMENTS

Article IV, section 1, has had its princ.i.p.al operation in relation to judgments. The cases fall into two groups: First, those in which the judgment involved was offered as a basis of proceedings for its own enforcement outside the State where rendered, as for example, when an action for debt is brought in the courts of State B on a judgment for money damages rendered in State A; secondly, those in which the judgment involved was offered, in conformance with the principle of _res judicata_, in defense in a new or "collateral" proceeding growing out of the same facts as the original suit, as for example, when a decree of divorce granted in State A is offered as barring a suit for divorce by the other party to the marriage in the courts of State B.