The meaning and background of the interstate comity clause of the federal Constitution

223 Pages·014.232 MB·English

by  Bill, Shirley Akerman

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THE UNIVERSITY OF CHICAGO
x THE MEANING AND BACKGROUND OF THE INTERSTATE COMITY
CLAUSE OF THE FEDERAL CONSTITUTION\
A DISSERTATION SUBMITTED TO
THE FACULTY OF THE DIVISION OF THE HUMANITIES
IN CANDIDACY FOR THE DEGREE OF
DOCTOR OF PHILOSOPHY
DEPARTMENT OF HISTORY
BY
SHIRLEY AKERMAN BILL
CHICAGO, ILLINOIS
JUNE, 1950
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UMI Number: 3189424
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ACKNOWLEDGMENTS
The author appreciates the patient aid and guidance of
Professors William T. Hutchinson and Avery Craven of the Depart­
ment of History, University of Chicago.
She also Is Indebted to Leo F. Stock of the Carnegie In­
stitute of Washington, D. C. for his generous loan of the notes
he has taken in preparation for the publication of additional
volumes on the work of the British Parliament with respect to
North American affairs.
For constant encouragement and for invaluable suggestions
with respect to the preparation of her manuscript, she is deeply
grateful to Donald W. Riddle, her friend and colleague at the
Chicago Undergraduate Division of the University of Illinois.
11
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TABLE OF CONTENTS
Page
ACKNOWLEDGMENT.......................................... il
Chapter
I. INTRODUCTION ................... . . . . . . . . 1
II. FULL FAITH AND CREDIT AND THE NATIONAL GOVERNMENT:
; 1776-1815 14
III. PRIVATE INTERNATIONAL LAW AS A BACKGROUND FOR
FULL FAITH AND CREDIT...................... 40
IV. THE PROBLEM OF FAITH TO RECORDS UNDER VARIOUS
ASPECTS OF ENGLISH L A W .................... 59
V. ENGLAND, HER COLONIES, COMITY, AND THE COMMON LAW 88
VI. COMITY IN EARLY AMERICAN CONFEDERATIONS.... Ill
VII. AMERICAN PRACTICE PRIOR TO 1815 IN MATTERS SUP-
PLEMENTARY TO COMITY...................... 119
I VIII. INTER-COLONIAL AND INTERSTATE COMITY AS APPLIED
j BY THE COURTS TO 1815....................... 139
j IX. THE CONCEPT OF COMITY IN LEGISLATIVE ENACTMENTS
i 1619-1815...................... ' 162
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X. THE MEANING AND BACKGROUND OF THE INTERSTATE
j COMITY CLAUSE OF THE FEDERAL CONSTITUTION. . . . 179
1 BIBLIOGRAPHY. . .......................................... 200
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"The first and governing maxim in the
interpretation of a statute is to dis­
cover the meaning of those who made it.
The first rule, subservient to the
principle of the governing maxim, is,
to discover what the law was, before
the statute was made."
James Wilson
Philadelphia, 1790
lv
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CHAPTER I
INTRODUCTION
M M M M M M M M M M tO
The Constitution which resulted from the deliberations
held in Philadelphia in the summer of 1787 has not lacked for
historians to tell of its birth and development from that time
to this day. Learned treatises have paid tribute to its longevity,
its adaptability, and its satisfactory solution of the problems
of coercion and the division of powers. No one today would deny
the obvious fact that the American conception of federalism has
been a success and has proven Itself capable of withstanding many
political, social and economic assaults upon its existence.
Viewing federalism as a problem of adjustments between
several governments within one sovereignty, it is clear that the
problem throughout our history has been of a two-fold nature,
(a) the relations between each state and the central government,
(b) the relations between the states themselves. Clearly no
federal structure would long endure unless (b) were as satisfac-
; torily regulated as (a). Yet, those who have written upon our
j; constitutional history have given almost exclusive attention to
|i (a). To put this another way, a survey of writings upon the
i Constitution indicates that the matter of the apportionment of
j powers between the center and the parts, the old imperial problem
I of the British empire, has been the favored approach almost to
j the eclipse of the equally important one of the relationship of
] the parts to each other. Perhaps historians have adopted this
| course because of the nature of events. They have concentrated
i
I upon, and taken their cue for interpretation from, the two times
in our history when federalism has not worked— the years before
; the American Revolution, and before the opening of the Civil War.
In both of these instances, and especially in the latter one, the
1
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i crisis came largely because of the failure to maintain a harmonl-
j ous relationship between the center and the parts. The much
| longer periods when federalism has worked may be credited In good
I
I part to the successful adjustment of the various parts to one
another.
It would of course be foolish to assert that the only
reason for the coming of these two crises can be found in the
conflict between the central government and the parts. Surely,
the failure of the states to get along with each other because
of fugitive slaves helped, In some measure, to bring about the
crisis in 1860. And It might also be argued that England, aware
of frequent bickering among the colonies, was perhaps not Inclined
to take their discontent In the years 1763-1775 too seriously.
One could also indicate with fairness and accuracy that although
historians of our day point out that the conflict in 1775 came
partly because of the political maladjustment between the colonies
and the mother country, the latter on the eve of the Revolution
refused to accept the constitutional premises of the colonial
argument. John Adams, and others who thought as he did, maintained
that during the century or more preceding 1775 practice had estab­
lished an imperial constitution, federal in nature. Parliament
and the Crown denied that these developments had the force of
fundamental law, and ignoring the de facto adjustments of past
! decades insisted upon their power under a unitary constitution
i which probably existed de Jure.1 Thus, the mother country denied
■ that the issue of federalism was valid or pertinent.
Admitting the truth of these, and perhaps of other, excep-
v tlons to the generalizations made above, the fact remains that'
' there still exist partial "blind spots" in writings upon the
'H’or modern scholarly opinion on the bases of the constl-
: tutlonal argument 1763-1775 see Robert L. Schuyler, Parliament
I and the British Empire: some constitutional controversies concern-
| lng imperial legislative Jurls^lctTo^n (New York: Columbia Unl-
' versity £r e s s, 19£§)'"and Charles Mf~McIlwain, The American
| Revolution, a Constitutional Interpretation (New ^ork: The Mac-
j millan Co., 1925).
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3
Constitution. These "blind spots" offer opportunities for study
by those Interested in its history. Surely the comparative neglect
of inter-colonial, and, later, of interstate, relationships is
one of these. Broadly speaking this omission is the Justiflca-
i
I tlon of the subject of this Inquiry— the study of the background
; and meaning of Article IV, Section 1 of the federal Constitution.
This reads,
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.
There is no detailed treatment by a historian interested
in the operation of federalism of this clause's probable sources
nor of its possible meaning to the men who placed it in the funda­
mental law.1 Many monographs and histories of the formative
period, 1776-1789, of the Constitution do not mention it at all.
Nor is there any considerable attention to its direct ancestor,
Article IV of the Articles of Confederation. The most that can
be found are a few general remarks of approbation bestowed by
writers in the course of their studies of the more usual consti­
tutional subjects.
Excerpts from the writings of three well-known historians
show agreement upon the great significance of the Interstate
i comity provisions in both the Articles of Confederation and the
| Constitution. They are, however, but allusions in passingj con-
i gratulatory nods and words of praise dispensed a propos of other
matters. George Bancroft seems to extol the idea of interstate
, comity as it appeared in the Articles of Confederation when he
I praised the federation they brought into being, by saying that
it excelled every one that had preceded it in the history of the
, world. To him, "inter-citizenship and mutual equality of rights
■^Several studies of this problem have appeared in legal
\ Journals in recent years. These are not as complete as the im-
i portance of the subject warrants, nor do they focus upon the
' functioning of the clause in the federal system. They will be
j discussed below.
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