Private International Law

The historical background of the Full Faith and Credit Clause is furnished by the branch of private law that is variously termed “private international law,” “conflict of laws,” and “comity.” This branch 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 that is good in the country where performed (lex loci) is good elsewhere; 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; the rule that immovables may be disposed of only in accordance with the law of the country where situated (lex rei sitae);1 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); the rule that, regardless of where the cause arose, the courts of any country where personal service of the defendant can be effected 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 that the judgments of the courts of one country shall receive from those of another country.

So, even had the states of the Union remained in a mutual relationship of entire independence, private claims originating in one often would have been assured recognition and enforcement in the others. The Framers felt, however, that the rules of private international law should not be left 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 constitutional obligation. In fulfillment of this intent, the Full Faith and Credit Clause was inserted, and Congress was empowered to enact supplementary and enforcing legislation.2

Footnotes

1
Clark v. Graham, 19 U.S. (6 Wheat.) 577 (1821), is an early case in which the Supreme Court enforced this rule. [Back to text]
2
Congressional legislation under the Full Faith and Credit Clause, insofar as it is pertinent to adjudication under the clause, is today embraced in 28 U.S.C. §§ 17381739. See also 28 U.S.C. §§ 17401742. [Back to text]