When, however, the next important case arose, the Court has come under

new influences. This was McElmoyle _v._ Cohen,[7] decided in 1839, in

which the issue was whether a statute of limitations of the State of

Georgia, which applied only to judgments obtained in courts other than

those of Georgia, could constitutionally bar an action in Georgia on a

judgment rendered by a court of record of South Carolina. Declining to

follow Marshall's lead in Hampton _v._ McConnell, the Court held that

the Constitution was not intended "materially to interfere with the

essential attributes of the _lex fori_"; that the act of Congress only

established a rule of evidence, of conclusive evidence to be sure, but

still of evidence only; and that it was necessary, in order to carry

into effect in a State the judgment of a court of a sister State, to

institute a fresh action in the court of the former, in strict

compliance with its laws; and that consequently, when remedies were

sought in support of the rights accruing in another jurisdiction, they

were governed by the _lex fori_. In accord with this holding it has been

further held that foreign judgments enjoy, not the right of priority or

privilege or lien which they have in the State where they are

pronounced, but only that which the _lex fori_ gives them by its own

laws, in their character of foreign judgments.[8] A judgment of a State

court, in a cause within its jurisdiction, and against a defendant

lawfully summoned, or against lawfully attached property of an absent

defendant, is entitled to as much force and effect against the person

summoned or the property attached, when the question is presented for

decision in a court in another State, as it has in the State in which it

was rendered.[9]

A judgment enforceable in the State where rendered must be given effect

in the other State, although the modes of procedure to enforce its

collection may not be the same in both States.[10] If the court has

acquired jurisdiction, the judgment is entitled to full faith and credit

though the court may not be able to enforce it by execution in the State

in which it was rendered, as where the defendant left the State after

service upon him and took all his property with him. While the want of

power to enforce a judgment or decree may afford a reason against

entertaining jurisdiction, it has nothing to do with the validity of a

judgment or decree when made.[11] In the words of the Court in a recent

case: "A cause of action on a judgment is different from that upon which

the judgment was entered. In a suit upon a money judgment for a civil

cause of action, the validity of the claim upon which it was founded is

not open to inquiry, whatever its genesis. Regardless of the nature of

the right which gave rise to it, the judgment is an obligation to pay

money in the nature of a debt upon a specialty. Recovery upon it can be

resisted only on the grounds that the court which rendered it was

without jurisdiction, * * * or that it has ceased to be obligatory

because of payment or other discharge * * * or that it is a cause of

action for which the State of the forum has not provided a court

* * *"[12]

On the other hand, the clause is not violated when a judgment is

disregarded because it is not conclusive of the issues before a court of

the forum. Conversely, no greater effect can be given than is given in

the State where rendered. Thus an interlocutory judgment may not be

given the effect of a final judgment.[13] Likewise when a federal court

does not attempt to foreclose the State court from hearing all matters

of personal defense which landowners might plead, a State court may

refuse to accept the former's judgment as determinative of the

landowners' liabilities.[14] Similarly, though a confession of judgment

upon a note, with a warrant of attorney annexed, in favor of the holder,

is in conformity with a State law and usage as declared by the highest

court of the State in which the judgment is rendered, the judgment may

be collaterally impeached upon the ground that the party in whose behalf

it was rendered was not in fact the holder.[15] But a consent decree,

which under the law of the State has the same force and effect as a

decree _in invitum_, must be given the same effect in the courts of

another State.[16]

One result produced by not following Hampton _v._ McConnell is that even

nowadays the Court is sometimes confronted with the contention that a

State need not provide a forum for some particular type of judgment from

a sister State, a claim which it has by no means met with clear-cut

principles. Thus in one case it held that a New York statute forbidding

foreign corporations doing a domestic business to sue on causes

originating outside the State was constitutionally applicable to prevent

such a corporation from suing on a judgment obtained in a sister

State.[17] But in a later case it ruled that a Mississippi statute

forbidding contracts in cotton futures could not validly close the

courts of the State to an action on a judgment obtained in a sister

State on such a contract, although the contract in question had been

entered into in the forum State and between its citizens.[18] Following

the later rather than the earlier precedent, subsequent cases[19] have

held: (1) that a State may adopt such system of courts and form of

remedy as it sees fit, but cannot, under the guise of merely affecting

the remedy, deny enforcement of claims otherwise within the protection

of the full faith and credit clause when its courts have general

jurisdiction of the subject matter and the parties;[20] (2) that,

accordingly, a forum State, which has a shorter period of limitations

than the State in which a judgment was granted and later reviewed, erred

in concluding that, whatever the effect of the revivor under the law of

the State of origin, it could refuse enforcement of the revived

judgment;[21] (3) that the courts of one State have no jurisdiction to

enjoin the enforcement of judgments at law obtained in another State,

when the same reasons assigned for granting the restraining order were

passed upon on a motion for new trial in the action at law and the

motion denied;[22] (4) that the constitutional mandate requires credit

to be given to a money judgment rendered in a civil cause of action in

another State, even though the forum State would have been under no duty

to entertain the suit on which the judgment was founded, inasmuch as a

State cannot, by the adoption of a particular rule of liability or of

procedure, exclude from its courts a suit on a judgment;[23] and (5)

that similarly, tort claimants in State A, who obtain a judgment against

a foreign insurance company, notwithstanding that, prior to judgment,

domiciliary State B appointed a liquidator for the company, vested

company assets in him, and ordered suits against the company stayed, are

entitled to have such judgment recognized in State B for purposes of

determining the amount of their claim, although not for determination of

what priority, if any, their claim should have.[24] Moreover, there is

no apparent reason why Congress, acting on the implications of

Marshall's words in Hampton _v._ McConnell, should not clothe extrastate

judgments of any particular type with the full status of domestic

judgments of the same type in the several States.[25]

The Jurisdictional Prerequisite

The second great class of cases to arise under the full faith and credit

clause comprises those raising the question whether a judgment for which

extrastate operation was being sought, either as a basis of an action or

as a defense in one, has been rendered with jurisdiction. Records and

proceedings of courts wanting jurisdiction are not entitled to

credit.[26] The jurisdictional question arises both in connection with

judgments _in personam_ against nonresident defendants upon whom it is

alleged personal service was not obtained in the State of origin of the

judgment, and in relation to judgments _in rem_ against property or a

status alleged not to have been within the jurisdiction of the Court

which handed down the original decree.[27]

JUDGMENTS _IN PERSONAM_

The pioneer case is that of D'Arcy _v._ Ketchum,[28] decided in 1850.

The question presented was whether a judgment rendered by a New York

court under a statute which provided that, when joint debtors were sued

and one of them was brought into court on a process, a judgment in favor

of the plaintiff would entitle him to execute against all, and so must

be accorded full faith and credit in Louisiana when offered as the basis

of an action in debt against a resident of that State who had not been

served by process in the New York action. Pressed with the argument that

by "the immutable principles of justice" no man's rights should be

impaired without his being given an opportunity to defend them, the

Court ruled that, interpreted in the light of the principles of

"international law and comity" as they existed in 1790, the act of

Congress of that year did not reach the case.[29] The truth is that the

decision virtually amended the act, for had the Louisiana defendant

ventured to New York, he could, as the Constitution of the United States

then stood, have been subjected to the judgment of the same extent as

the New York defendant who had been personally served. Subsequently,

this disparity between the operation of a personal judgment in the home

State and a sister State has been eliminated, thanks to the adoption of

the Fourteenth Amendment. In divorce cases, however, it still persists

in some measure. (_See_ pp. 662-670.)

In Pennoyer _v._ Neff,[30] decided in 1878, and so under the amendment,

the Court held that a judgment given in a case in which the State court

had endeavored to acquire jurisdiction of a nonresident defendant by an

attachment upon property of his within the State and constructive notice

to him, had not been rendered with jurisdiction and hence could not

afford the basis of an action in the court of another State against such

defendant, although it bound him so far as the property attached was

concerned, on account of the inherent right of a State to assist its own

citizens in obtaining satisfaction of their just claims. Nor would such

a judgment, the Court further indicated, be due process of law to any

greater extent in the State where rendered. In the words of a later

case, "an ordinary personal judgment for money, invalid for want of

service amounting to due process of law, is as ineffective in the State

as outside of it."[31]

THE JURISDICTIONAL QUESTION

In short, when the subject matter of a suit is merely the determination

of the defendant's liability, it is necessary that it should appear from

the record that the defendant had been brought within the jurisdiction

of the court by personal service of process, or his voluntary

appearance, or that he had in some manner authorized the proceeding.[32]

The claim that a judgment was "not responsive to the pleadings" raises

the jurisdictional question;[33] but the fact that a nonresident

defendant was only temporarily in the State when he was served in the

original action does not vitiate the judgment rendered as the basis of

an action in his home State.[34] Also, a judgment rendered in the State

of his domicile against a defendant who, pursuant to the statute thereof

providing for the service of process on absent defendants, was

personally served in another State is entitled to full faith and

credit.[35] Also, when the matter of fact or law on which jurisdiction

depends was not litigated in the original suit, it is a matter to be

adjudicated in the suit founded upon the judgment.[36]

Inasmuch as the principle of _res judicata_ applies only to proceedings

between the same parties and privies, the plea by defendant in an action

based on a judgment that he was no party or privy to the original

action raises the question of jurisdiction; and while a judgment against

a corporation in one State may validly bind a stockholder in another

State to the extent of the par value of his holdings,[37] an

administrator acting under a grant of administration in one State stands

in no sort of relation of priority to an administrator of the same

estate in another State.[38] But where a judgment of dismissal was

entered in a federal court in an action against one of two joint

tortfeasors, in a State in which such a judgment would constitute an

estoppel in another action in the same State against the other

tort-feasor, such judgment is not entitled to full faith and credit in

an action brought against the other tortfeasor in another State.[39]

SERVICE ON FOREIGN CORPORATIONS

In 1856 the Court decided Lafayette Insurance Co. _v._ French et

al.,[40] a pioneer case in its general class. Here it was held that

"where a corporation chartered by the State of Indiana was allowed by a

law of Ohio to transact business in the latter State upon the condition

that service of process upon the agent of the corporation should be

considered as service upon the corporation itself, a judgment obtained

against the corporation by means of such process" ought to receive in

Indiana the same faith and credit as it was entitled to in Ohio.[41]

Later cases establish under both the Fourteenth Amendment and article

IV, section 1, that the cause of action must have arisen within the

State obtaining service in this way,[42] that service on an officer of a

corporation, not its resident agent and not present in the State in an

official capacity, will not confer jurisdiction over the

corporation;[43] that the question whether the corporation was actually

"doing business" in the State may be raised.[44] On the other hand, the

fact that the business was interstate is no objection.[45]

SERVICE ON OUT-OF-STATE OWNERS OF MOTOR VEHICLES

By analogy to the above cases, it has been held that a State may require

nonresident owners of motor vehicles to designate an official within the

State as an agent upon whom process may be served in any legal

proceedings growing out of their operation of a motor vehicle within the

State;[46] and while these cases arose under the Fourteenth Amendment

alone, unquestionably a judgment validly obtained upon this species of

service could be enforced upon the owner of a car through the courts of

his home State.

JUDGMENTS _IN REM_

In sustaining the challenge to jurisdiction in cases involving judgments

_in personam_, the Court was in the main making only a somewhat more

extended application of recognized principles. In order to sustain the

same kind of challenge in cases involving judgments _in rem_ it has had

to make law outright. The leading case is Thompson _v._ Whitman,[47]

decided in 1874. Thompson, sheriff of Monmouth County, New Jersey,

acting under a New Jersey statute, had seized a sloop belonging to

Whitman, and by a proceeding _in rem_ had obtained its condemnation and

forfeiture in a local court. Later, Whitman, a citizen of New York,

brought an action for trespass against Thompson in the United States

Circuit Court for the Southern District of New York, and Thompson

answered by producing a record of the proceedings before the New Jersey

tribunal. Whitman thereupon set up the contention that the New Jersey

court had acted without jurisdiction inasmuch as the sloop which was the

subject matter of the proceedings had been seized outside the county to

which, by the statute under which it had acted, its jurisdiction was

confined.

Thompson _v._ Whitman

As previously explained, the plea of lack of privity cannot be set up in

defense in a sister State against a judgment _in rem_. It is, on the

other hand, required of a proceeding _in rem_ that the _res_ be within

the court's jurisdiction, and this, it was urged, had not been the case

in Thompson _v._ Whitman. Could, then, the Court consider this challenge

with respect to a judgment which was offered not as the basis for an

action for enforcement through the courts of a sister State, but merely

as a defense in a collateral action? As the law stood in 1873, it

apparently could not.[48] All difficulties, nevertheless, to its

consideration of the challenge to jurisdiction in the case were brushed

aside by the Court. Whenever, it said, the record of a judgment rendered

in a State court is offered "in evidence" by either of the parties to an

action in another State, it may be contradicted as to the facts

necessary to sustain the former court's jurisdiction; "and if it be

shown that such facts did not exist, the record will be a nullity,

notwithstanding the claim that they did exist."[49]

Divorce Decrees

THE JURISDICTIONAL PREREQUISITE: DOMICILE

This however, was only the beginning of the court's lawmaking in cases

_in rem_. The most important class of such cases is that in which the

respondent to a suit for divorce offers in defense an earlier decree

from the courts of a sister State. By the almost universally accepted

view prior to 1906 a proceeding in divorce was one against the marriage

status, i.e., _in rem_, and hence might be validly brought by either

party in any State where he or she was _bona fide_ domiciled;[50] and,

conversely, when the plaintiff did not have a _bona fide_ domicile in

the State, a court could not render a decree binding in other States

even if the nonresident defendant entered a personal appearance.[51] But

in 1906 the Court discovered, by a vote of five-to-four, a situation in

which a divorce proceeding is one _in personam_.

Haddock _v._ Haddock

The case referred to is Haddock _v._ Haddock,[52] while the earlier rule

is illustrated by Atherton _v._ Atherton,[53] decided five years

previously. In the latter it was held, in the former denied, that a

divorce granted a husband without personal service upon the wife, who at

the time was residing in another State, was entitled to recognition

under the full faith and credit clause and the acts of Congress; the

difference between the cases consisting solely in the fact that in the

Atherton case the husband had driven the wife from their joint home by

his conduct, while in the Haddock case he had deserted her. The Court

which granted the divorce in Atherton _v._ Atherton was held to have had

jurisdiction of the marriage status, with the result that the proceeding

was one _in rem_ and hence required only service by publication upon the

respondent. Haddock's suit, on the contrary, was held to be as to the

wife _in personam_, and so to require personal service upon her, or her

voluntary appearance, neither of which had been had; although,

notwithstanding this, the decree in the latter case was held to be valid

as to the State where obtained on account of the State's inherent power

to determine the status of its own citizens. The upshot was a situation

in which a man and a woman, when both were in Connecticut, were

divorced; when both were in New York, were married; and when the one

was in Connecticut and the other in New York, the former was divorced

and the latter married. In Atherton _v._ Atherton the Court had earlier

acknowledged that "a husband without a wife, or a wife without a

husband, is unknown to the law."

EMERGENCE OF THE DOMICILE QUESTION

The practical difficulties and distresses likely to result from such

anomalies were pointed out by critics of the decision at the time. In

point of fact, they have been largely avoided, because most of the State

courts have continued to give judicial recognition and full faith and

credit to one another's divorce proceedings on the basis of the older

idea that a divorce proceeding is one _in rem_, and that if the

applicant is _bona fide_ domiciled in the State the court has

jurisdiction in this respect. Moreover, until the second of the Williams

_v._ North Carolina cases[54] was decided in 1945, there had not been

manifested the slightest disposition to challenge judicially the power

of the States to determine what shall constitute domicile for divorce

purposes. Shortly prior thereto, in 1938, the Court in Davis _v._

Davis[55] rejected contentions adverse to the validity of a Virginia

decree of which enforcement was sought in the District of Columbia. In

this case, a husband, after having obtained in the District a decree of

separation subject to payment of alimony, established years later a

residence in Virginia, and sued there for a divorce. Personally served

in the District, where she continued to reside, the wife filed a plea

denying that her husband was a resident of Virginia and averred that he

was guilty of a fraud on the court in seeking to establish a residence

for purposes of jurisdiction. In ruling that the Virginia decree,

granting to the husband an absolute divorce minus any alimony payment,

was enforceable in the District, the Court stated that in view of the

wife's failure, while in Virginia litigating her husband's status to

sue, to answer the husband's charges of wilful desertion, it would be

unreasonable to hold that the husband's domicile in Virginia was not

sufficient to entitle him to a divorce effective in the District. The

finding of the Virginia court on domicile and jurisdiction was declared

to bind the wife. Davis _v._ Davis is distinguishable from the Williams

_v._ North Carolina decisions in that in the former, determination of

the jurisdictional prerequisite of domicile was made in a contested

proceeding, while in the Williams cases it was not.

Williams I and II

In the Williams I and Williams II cases, the husband of one marriage and

the wife of another left North Carolina, obtained six-week divorce

decrees in Nevada, married there, and resumed their residence in North

Carolina where both previously had been married and domiciled.

Prosecuted for bigamy, the defendants relied upon their Nevada decrees;

and won the preliminary round of this litigation; that is, Williams

I,[56] when a majority of the justices, overruling Haddock _v._ Haddock,

declared that in this case, the Court must assume that the petitioners

for divorce had a _bona fide_ domicile in Nevada, and not that their

Nevada domicile was a sham. "* * * each State, by virtue of its command

over its domiciliaries and its large interest in the institution of

marriage, can alter within its own borders the marriage status of the

spouse domiciled there, even though the other spouse is absent. There is

no constitutional barrier if the form and nature of substituted service

meet the requirements of due process." Accordingly, a decree granted by

Nevada to one, who, it is assumed, is at the time _bona fide_ domiciled

therein, is binding upon the courts of other States, including North

Carolina in which the marriage was performed and where the other party

to the marriage is still domiciled when the divorce was decreed. In view

of its assumptions, which it justified on the basis of an inadequate

record, the Court did not here pass upon the question whether North

Carolina had the power to refuse full faith and credit to a Nevada

decree because it was based on residence rather than domicile; or

because, contrary to the findings of the Nevada court, North Carolina

found that no _bona fide_ domicile had been acquired in Nevada.[57]

Presaging what ruling the Court would make when it did get around to

passing upon the latter question, Justice Jackson, dissenting in

Williams I, protested that "this decision repeals the divorce laws of

all the States and substitutes the law of Nevada as to all marriages one

of the parties to which can afford a short trip there. * * * While a

State can no doubt set up its own standards of domicile as to its

internal concerns, I do not think it can require us to accept and in the

name of the Constitution impose them on other States. * * * The effect

of the Court's decision today--that we must give extraterritorial effect

to any judgment that a state honors for its own purposes--is to deprive

this Court of control over the operation of the full faith and credit

and the due process clauses of the Federal Constitution in cases of

contested jurisdiction and to vest it in the first State to pass on the

facts necessary to jurisdiction."[58]

Notwithstanding that one of the deserted spouses had died since the

initial trial and that another had remarried, North Carolina, without

calling into question the status of the latter marriage began a new

prosecution for bigamy; and when the defendants appealed the conviction

resulting therefrom, the Supreme Court, in Williams II,[59] sustained

the adjudication of guilt as not denying full faith and credit to the

Nevada divorce decree. Reiterating the doctrine that jurisdiction to

grant divorce is founded on domicile,[60] a majority of the Court held

that a decree of divorce rendered in one State may be collaterally

impeached in another by proof that the court which rendered the decree

lacked jurisdiction (the parties not having been domiciled therein),

even though the record of proceedings in that court purports to show

jurisdiction.[61]

CASES INVOLVING CLAIMS FOR ALIMONY OR PROPERTY ARISING IN FORUM STATE

In Esenwein _v._ Commonwealth,[62] decided on the same day as the second

Williams Case, the Supreme Court also sustained a Pennsylvania court in

its refusal to recognize an _ex parte_ Nevada decree on the ground that

the husband who obtained it never acquired a _bona fide_ domicile in the

latter State. In this instance, the husband and wife had separated in

Pennsylvania, where the wife was granted a support order; and after two

unsuccessful attempts to win a divorce in that State, the husband

departed for Nevada. Upon the receipt of a Nevada decree, the husband

thereafter established a residence in Ohio, and filed an action in

Pennsylvania for total relief from the support order. In a concurring

opinion, in which he was joined by Justices Black and Rutledge, Justice

Douglas stressed the "basic difference between the problem of marital

capacity and the problem of support," and stated that it was "not

apparent that the spouse who obtained the decree can defeat an action

for maintenance or support in another State by showing that he was

domiciled in the State which awarded him the divorce decree," unless the

other spouse appeared or was personally served. "The State where the

deserted wife is domiciled has a deep concern in the welfare of the

family deserted by the head of the household. If he is required to

support his former wife, he is not made a bigamist and the offspring of

his second marriage are not bastardized." Or as succinctly stated by

Justice Rutledge, "the jurisdictional foundation for a decree in one

State capable of foreclosing an action for maintenance or support in

another may be different from that required to alter the marital status

with extraterritorial effect."[63]

Three years later, but on this occasion as spokesman for a majority of

the Court, Justice Douglas reiterated these views in the case of Estin

_v._ Estin.[64] Even though it acknowledged the validity of an _ex

parte_ Nevada decree obtained by a husband, New York was held not to

have denied full faith and credit to said decree when, subsequently

thereto, it granted the wife a judgment for arrears in alimony founded

upon a decree of separation previously awarded to her when both she and

her husband were domiciled in New York. The Nevada decree, issued to the

husband after he had resided there a year and upon constructive notice

to the wife in New York who entered no appearance, was held to be

effective only to change the marital status of both parties in all

States of the Union but ineffective on the issue of alimony. Divorce, in

other words, was viewed as being divisible; and Nevada, in the absence

of acquiring jurisdiction over the wife, was held incapable of

adjudicating the rights of the wife in the prior New York judgment

awarding her alimony. Accordingly, the Nevada decree could not prevent

New York from applying its own rule of law which, unlike that of

Pennsylvania,[65] does permit a support order to survive a divorce

decree.[66] Such a result was justified as accommodating the interests

of both New York and Nevada in the broken marriage by restricting each

State to matters of her dominant concern, the concern of New York being

that of protecting the abandoned wife against impoverishment.

RECENT CASES

Fears registered by the dissenters in the second Williams Case that the

stability of all divorces might be undermined thereby and that

thereafter the court of each forum State, by its own independent

determination of domicile, might refuse recognition of foreign decrees

were temporarily set at rest by the holding in Sherrer _v._ Sherrer,[67]

wherein Massachusetts, a state of domiciliary origin, was required to

accord full faith and credit to a 90-day Florida decree which had been

contested by the husband. The latter, upon receiving notice by mail,

retained Florida counsel who entered a general appearance and denied all

allegations in the complaint, including the wife's residence. At the

hearing the husband, though present in person and by counsel, did not

offer evidence in rebuttal of the wife's proof of her Florida residence;

and when the Florida court ruled that she was a _bona fide_ resident,

the husband did not appeal. Inasmuch as the findings of the requisite

jurisdictional facts, unlike those in the Second Williams Case, were

made in proceedings in which the defendant appeared and participated,

the requirements of full faith and credit were held to bar him from

collaterally attacking such findings in a suit instituted by him in his

home State of Massachusetts, particularly in the absence of proof that

the divorce decree was subject to such collateral attack in a Florida

court. Having failed to take advantage of the opportunities afforded him

by his appearance in the Florida proceeding, the husband was thereafter

precluded from re-litigating in another State the issue of his wife's

domicile already passed upon by the Florida court.

In Coe _v._ Coe,[68] embracing a similar set of facts, the Court applied

like reasoning to reach a similar result. Massachusetts again was

compelled to recognize the validity of a six-week Nevada decree obtained

by a husband who had left Massachusetts after a court of that State had

refused him a divorce and had granted his wife separate support. In the

Nevada proceeding, the wife appeared personally and by counsel filed a

cross-complaint for divorce, admitted the husband's residence, and

participated personally in the proceedings. After finding that it had

jurisdiction of the plaintiff, defendant, and the subject matter

involved, the Nevada court granted the wife a divorce, which was valid,

final, and not subject to collateral attack under Nevada law. The

husband married again, and on his return to Massachusetts, his ex-wife

petitioned the Massachusetts court to adjudge him in contempt for

failing to make payments for her separate support under the earlier

Massachusetts decree. Inasmuch as there was no intimation that under

Massachusetts law a decree of separate support would survive a divorce,

recognition of the Nevada decree as valid accordingly necessitated a

rejection of the ex-wife's contention.

Appearing to revive Williams II, and significant for the social

consequences produced by the result decreed therein, is the recent case

of Rice _v._ Rice.[69] To determine the widowhood status of the party

litigants in relation to inheritance of property of a husband who had

deserted his first wife in Connecticut, had obtained an _ex parte_

divorce in Nevada, and after remarriage, had died without ever returning

to Connecticut, the first wife, joining the second wife and the

administrator of his estate as defendants, petitioned a Connecticut

court for a declaratory judgment. After having placed upon the first

wife the burden of proving that the decedent had not acquired a _bona

fide_ domicile in Nevada, and after giving proper weight to the claims

of power by the Nevada court, the Connecticut court concluded that the

evidence sustained the contentions of the first wife; and in so doing,

it was upheld by the Supreme Court. The cases of Sherrer _v._ Sherrer,

334 U.S. 343 (1948) and Coe _v._ Coe, 334 U.S. 378 (1948), previously

discussed, were declared not to be in point; inasmuch as no personal

service was made upon the first wife, nor did she in any way participate

in the Nevada proceedings. She was not, therefore, precluded from

challenging the finding of the Nevada court that the decedent was, at

the time of the divorce, domiciled in that State.[70]

STATE OF THE LAW TODAY: QUAERE

Upon summation one may speculate as to whether the doctrine of divisible

divorce, as developed by Justice Douglas in Estin _v._ Estin, 334 U.S.

541 (1948), has not become the prevailing standard for determining the

enforceability of foreign divorce decrees. If such be the case, it may

be tenable to assert that an _ex parte_ divorce, founded upon

acquisition of domicile by one spouse in the State which granted it, is

effective to destroy the marital status of both parties in the State of

domiciliary origin and probably in all other States and therefore to

preclude subsequent prosecutions for bigamy, but not to alter rights as

to property, alimony, or custody of children in the State of domiciliary

origin of a spouse who was neither served nor personally appeared.

DECREES AWARDING ALIMONY, CUSTODY OF CHILDREN

Resulting as a by-product of divorce litigation are decrees for the

payment of alimony, judgments for accrued and unpaid instalments of

alimony, and judicial awards of the custody of children, all of which

necessitate application of the full faith and credit clause when

extrastate enforcement is sought for them. Thus a judgment in State A

for alimony in arrears and payable under a prior judgment of separation

which is not by its terms conditional, nor subject by the law of State A

to modification or recall, and on which execution was directed to issue,

is entitled to recognition in the forum State. Although an obligation

for accrued alimony could have been modified or set aside in State A

prior to its merger in the judgment, such a judgment, by the law of

State A, is not lacking in finality.[71] As to the finality of alimony

decrees in general, the Court had previously ruled that where such a

decree is rendered, payable in future instalments, the right to such

instalments becomes absolute and vested on becoming due, provided no

modification of the decree has been made prior to the maturity of the

instalments.[72] However, a judicial order requiring the payment of

arrearages in alimony, which exceeded the alimony previously decreed, is

invalid for want of due process, the respondent having been given no

opportunity to contest it.[73] "A judgment obtained in violation of

procedural due process," said Chief Justice Stone, "is not entitled to

full faith and credit when sued upon in another jurisdiction."[74]

A recent example of a custody case was one involving a Florida divorce

decree which was granted _ex parte_ to a wife who had left her husband

in New York, where he was served by publication. The decree carried with

it an award of the exclusive custody of the child, whom the day before

the husband had secretly seized and brought back to New York. The Court

ruled that the decree was adequately honored by a New York court when,

in _habeas corpus_ proceedings, it gave the father rights of visitation

and custody of the child during stated periods, and exacted a surety

bond of the wife conditioned on her delivery of the child to the father

at the proper times,[75] it having not been "shown that the New York

court in modifying the Florida decree exceeded the limits permitted

under Florida law. There is therefore a failure of proof that the

Florida decree received less credit in New York than it had in Florida."

COLLATERAL ATTACK BY CHILD

A Florida divorce decree was also at the bottom of another recent case

in which the daughter of a divorced man by his first wife, and his

legatee under his will, sought to attack his divorce in the New York

courts, and thereby indirectly his third marriage. The Court held that

inasmuch as the attack would not have been permitted in Florida under

the doctrine of _res judicata_, it was not permissible under the full

faith and credit clause in New York.[76] On the whole, it appears that

the principle of _res judicata_ is slowly winning out against the

principle of domicile.

Decrees of Other Types

PROBATE DECREES

Many judgments, enforcement of which has given rise to litigation,

embrace decrees of courts of probate respecting the distribution of

estates. In order that a court have jurisdiction of such a proceeding,

the decedent must have been domiciled in the State, and the question

whether he was so domiciled at the time of his death may be raised in

the court of a sister State.[77] Thus, when a court of State A, in

probating a will and issuing letters, in a proceeding to which all

distributees were parties, expressly found that the testator's domicile

at the time of death was in State A, such adjudication of domicile was

held not to bind one subsequently appointed as domiciliary administrator

c.t.a. in State B, in which he was liable to be called upon to deal with

claims of local creditors and that of the State itself for taxes, he

having not been a party to the proceeding in State A. In this situation,

it was held, a court of State C, when disposing of local assets claimed

by both personal representatives, was free to determine domicile in

accordance with the law of State C.[78] Similarly, there is no such

relation of privity between an executor appointed in one State and an

administrator c.t.a. appointed in another State as will make a decree

against the latter binding upon the former.[79] On the other hand,

judicial proceedings in one State, under which inheritance taxes have

been paid and the administration upon the estate has been closed, are

denied full faith and credit by the action of a probate court in another

State in assuming jurisdiction and assessing inheritance taxes against

the beneficiaries of the estate, when under the law of the former State

the order of the probate court barring all creditors who had failed to

bring in their demand from any further claim against the executors was

binding upon all.[80]

What is more important, however, is that the _res_ in such a proceeding,

that is, the estate, in order to entitle the judgment to recognition

under article IV, section 1, must have been located in the State or

legally attached to the person of the decedent. Such a judgment is

accordingly valid, generally speaking, to distribute the intangible

property of the decedent, though the evidences thereof were actually

located elsewhere.[81] This is not so, on the other hand, as to

tangibles and realty. In order that the judgment of a probate court

distributing these be entitled to recognition under the Constitution,

they must have been located in the State; as to tangibles and realty

outside the State, the decree of the probate court is entirely at the

mercy of the _lex rei sitae_.[82] So, the probate of a will in one

State, while conclusive therein, does not displace legal provisions

necessary to its validity as a will of real property in other

States.[83]

ADOPTION DECREES

That a statute legitimizing children born out of wedlock does not

entitle them by the aid of the full faith and credit clause to share in

the property located in another State is not surprising, in view of the

general principle--to which, however, there are exceptions (_see_ pp.

675-682)--that statutes do not have extraterritorial operation.[84] For

the same reason adoption proceedings in one State are not denied full

faith and credit by the law of the sister State which excludes children

adopted by proceedings in other States from the right to inherit land

therein.[85]

GARNISHMENT DECREES

A proceeding which combines some of the elements of both an _in rem_ and

an _in personam_ action is the proceeding in garnishment cases. Suppose

that A owes B and B owes C, and that the two former live in a different

State than C. A, while on a brief visit to C's State, is presented with

a writ attaching his debt to B and also a summons to appear in court on

a named day. The result of the proceedings thus instituted is that a

judgment is entered in C's favor against A to the amount of his

indebtedness to B. Subsequently A is sued by B in their home State, and

offers the judgment, which he has in the meantime paid, in defense. It

was argued in behalf of B that A's debt to him had a _situs_ in their

home State, and furthermore that C could not have sued B in this same

State without formally acquiring a domicile there. Both propositions

were, however, rejected by the Court, which held that the judgment in

the garnishment proceedings was entitled to full faith and credit as

against C's action.[86]

FRAUD AS A DEFENSE TO SUITS ON FOREIGN JUDGMENTS

As to whether recognition of a State judgment can be refused by the

forum State on other than jurisdictional grounds, there are _dicta_ to

the effect that judgments, for which extraterritorial operation is

demanded under article IV, section I and acts of Congress, are

"impeachable for manifest fraud." But unless the fraud affected the

jurisdiction of the court, the vast weight of authority is against the

proposition. Also it is universally agreed that a judgment may not be

impeached for alleged error or irregularity,[87] or as contrary to the

public policy of the State where recognition is sought for it under the

full faith and credit clause.[88] Previously listed cases indicate,

however, that the Court has in fact permitted local policy to determine

the merits of a judgment under the pretext of regulating

jurisdiction.[89] Thus in one case, Cole _v._ Cunningham,[90] the Court

sustained a Massachusetts court in enjoining, in connection with

insolvency proceedings instituted in that State, a Massachusetts

creditor from continuing in New York courts an action which had been

commenced there before the insolvency suit was brought. This was done on

the theory that a party within the jurisdiction of a court may be

restrained from doing something in another jurisdiction opposed to

principles of equity, it having been shown that the creditor was aware

of the debtor's embarrassed condition when the New York action was

instituted. The injunction unquestionably denied full faith and credit

and commanded the assent of only five Justices.

PENAL JUDGMENTS: TYPES ENTITLED TO RECOGNITION

Finally, the clause has been interpreted in the light of the

"incontrovertible maxim" that "the courts of no country execute the

penal laws of another."[91] In the leading case of Huntington _v._

Attrill,[92] however, the Court so narrowly defined "penal" in this

connection as to make it substantially synonymous with "criminal," and

on this basis held a judgment which had been recovered under a State

statute making the officers of a corporation who signed and recorded a

false certificate of the amount of its capital stock liable for all of

its debts, to be entitled under article IV, section 1, to recognition

and enforcement in the courts of sister States. Nor, in general, is a

judgment for taxes to be denied full faith and credit in State and

federal courts merely because it is for taxes.[93]

Recognition of Rights Based Upon Constitutions, Statutes, Common Law

THE EARLY RULE

As to the extrastate protection of rights which have not matured into

final judgments, the full faith and credit clause has never abolished

the general principle of the dominance of local policy over the rules of

comity.[94] This was stated by Justice Nelson in the Dred Scott case, as

follows: "No State, * * *, can enact laws to operate beyond its own

dominions, * * * Nations, from convenience and comity, * * *, recognizes

[sic] and administer the laws of other countries. But, of the nature,

extent, and utility, of them, respecting property, or the state and

condition of persons within her territories, each nation judges for

itself; * * *" He added that it was the same with the States of the

Union in relation to another. It followed that even though Dred had

become a free man in consequence of his having resided in the "free"

State of Illinois, he had nevertheless upon his return to Missouri,

which had the same power as Illinois to determine its local policy

respecting rights acquired extraterritorially, reverted to servitude

under the laws and judicial decisions of that State.[95]

DEVELOPMENT OF THE MODERN RULE

In a case decided in 1887, however, the Court remarked: "Without doubt

the constitutional requirement, Art. IV, Sec. I, that 'full faith and

credit shall be given in each State to the public acts, records, and

judicial proceedings of every other State,' implies that the public acts

of every State shall be given the same effect by the courts of another

State that they have by law and usage at home."[96] And this

proposition was later held to extend to State constitutional

provisions.[97] More recently this doctrine has been stated in a very

mitigated form, the Court saying that where statute or policy of the

forum State is set up as a defense to a suit brought under the statute

of another State or territory, or where a foreign statute is set up as a

defense to a suit or proceedings under a local statute, the conflict is

to be resolved, not by giving automatic effect to the full faith and

credit clause and thus compelling courts of each State to subordinate

its own statutes to those of others, but by appraising the governmental

interest of each jurisdiction and deciding accordingly.[98] Obviously

this doctrine endows the Court with something akin to an arbitral

function in the decision of cases to which it is applied.

TRANSITORY ACTIONS: DEATH STATUTES

The initial effort in this direction was made in connection with

transitory actions based on statute. Earlier, such actions had rested

upon the common law, which was fairly uniform throughout the States, so

that there was usually little discrepancy between the law under which

the plaintiff from another jurisdiction brought his action (_lex loci_)

and the law under which the defendant responded (_lex fori_). In the

late seventies, however, the States, abandoning the common law rule on

the subject, began passing laws which authorized the representatives of

a decedent whose death had resulted from injury to bring an action for

damages.[99] The question at once presented itself whether, if such an

action was brought in a State other than that in which the injury

occurred, it was governed by the statute under which it arose or by the

law of the forum State, which might be less favorable to the defendant.

Nor was it long before the same question presented itself with respect

to transitory action _ex contractu_, where the contract involved had

been made under laws peculiar to the State where made, and with those

laws in view.

ACTIONS UPON CONTRACT: WHEN GOVERNED BY LAW OF PLACE OF MAKING

In Chicago and Alton R.R. _v._ Wiggins,[100] referred to above, the

Court, confronted with the latter form of the question, indicated its

clear opinion that in such situations it was the law under which the

contract was made, not the law of the forum State, which should govern.

Its utterance on the point was, however, not merely _obiter_; it was

based on an error, namely, the false supposition that the Constitution

gives "acts" the same extraterritorial operation as the act of 1790 does

"judicial records and proceedings." Notwithstanding which, this dictum

is today the basis of "the settled rule" that the defendant in a

transitory action is entitled to all the benefits resulting from

whatever material restrictions the statute under which plaintiff's right

of action originated sets thereto, except that courts of sister States

cannot be thus prevented from taking jurisdiction in such cases.[101]

However, a State court does not violate the full faith and credit clause

by mere error in construing the law upon which a transitory action from

another state depends;[102] nor is a court of the forum State guilty of

a disregard thereof when it entertains a suit based on a statute of

another State, albeit the statute in terms limits actions thereunder to

courts of the enacting State.[103] Moreover, in actions on contracts

made in other States, a State constitutionally may decline to enforce in

its courts, as contrary to its own policy, the laws of such States

relating to the right to add interest to the recovery as an incidental

item of damages.[104]

STOCKHOLDER--CORPORATION RELATIONSHIP

Nor is it alone to defendants in transitory actions that the full faith

and credit clause is today a shield and a buckler. Some legal

relationships are so complex, the Court holds, that the law under which

they were formed ought always to govern them as long as they

persist.[105] One such relationship is that of a stockholder and his

corporation. Hence, if a question arises as to the liability of the

stockholders of a corporation, the courts of the forum State are

required by the full faith and credit clause to determine the question

in accordance with the Constitution, laws and judicial decisions of the

corporation's home State.[106] Illustrative applications of the latter

rule are to be found in the following cases. A New Jersey statute

forbidding an action at law to enforce a stockholder's liability arising

under the laws of another State, and providing that such liability may

be enforced only in equity, and that in such a case the corporation, its

legal representatives, all its creditors, and stockholders, should be

necessary parties, was held not to preclude an action at law in New

Jersey by the New York State superintendent of banks against 557 New

Jersey stockholders in an insolvent New York bank to recover assessments

made under the laws of New York.[107] Also, in a suit to enforce double

liability, brought in Rhode Island against a stockholder in a Kansas

trust company, the courts of Rhode Island were held to be obligated to

extend recognition to the statutes and court decisions of Kansas

whereunder it is established that a Kansas judgment recovered by a

creditor against the trust company is not only conclusive as to the

liability of the corporation but also an adjudication binding each

stockholder therein. The only defenses available to the stockholder are

those which he could make in a suit in Kansas.[108]

FRATERNAL BENEFIT SOCIETY--MEMBER RELATIONSHIP

And the same principle applies to the relationship which is formed when

one takes out a policy in a "fraternal benefit society." Thus in Royal

Arcanum v. Green,[109] in which a fraternal insurance association

chartered under the laws of Massachusetts was being sued in the courts

of New York by a citizen of the latter State on a contract of insurance

made in that State, the Court held that the defendant company was

entitled under the full faith and credit clause to have the case

determined in accordance with the laws of Massachusetts and its own

constitution and by-laws as these had been construed by the

Massachusetts courts.

Nor has the Court manifested lately any disposition to depart from this

rule. In Sovereign Camp _v._ Bolin[110] it declared that a State in

which a certificate of life membership of a foreign fraternal benefit

association is issued, which construes and enforces said certificate

according to its own law rather than according to the law of the State

in which the association is domiciled denies full faith and credit to

the association's charter embodied in the statutes of the domiciliary

State as interpreted by the latter's court. "The beneficiary certificate

was not a mere contract to be construed and enforced according to the

laws of the State where it was delivered. Entry into membership of an

incorporated beneficiary society is more than a contract; it is entering

into a complex and abiding relation and the rights of membership are

governed by the law of the State of incorporation. [Hence] another

State, wherein the certificate of membership was issued, cannot attach

to membership rights against the society which are refused by the law of

domicile." Consistently therewith, the Court also held, in Order of

Travelers _v._ Wolfe,[111] that South Dakota, in a suit brought therein

by an Ohio citizen against an Ohio benefit society, must give effect to

a provision of the constitution of the society prohibiting the bringing

of an action on a claim more than six months after disallowance by the

society, notwithstanding that South Dakota's period of limitation was

six years and that its own statutes voided contract stipulations

limiting the time within which rights may be enforced. Objecting to

these results, Justice Black dissented on the ground that fraternal

insurance companies are not entitled, either by the language of the

Constitution, or by the nature of their enterprise, to such unique

constitutional protection.

INSURANCE COMPANY, BUILDING AND LOAN ASSOCIATION--CONTRACTUAL

RELATIONSHIPS

Whether or not distinguishable by nature of their enterprise, stock and

mutual insurance companies and mutual building and loan associations,

unlike fraternal benefit societies, have not been accorded the same

unique constitutional protection; and, with few exceptions,[112] have

had controversies arising out of their business relationships settled by

application of the law of the forum State. In National Mutual B. & L.

Asso. _v._ Brahan,[113] the principle applicable to these three forms of

business organization was stated as follows: Where a corporation has

become localized in a State and has accepted the laws of the State as a

condition of doing business there, it cannot abrogate those laws by

attempting to make contract stipulations, and there is no violation of

the full faith and credit clause in instructing a jury to find according

to local law notwithstanding a clause in a contract that it should be

construed according to the laws of another State.

Thus, when a Mississippi borrower, having repaid a mortgage loan to a

New York building and loan association, sued in a Mississippi court to

recover, as usurious, certain charges collected by the association, the

usury law of Mississippi rather than that of New York was held to

control. In this case, the loan contract, which was negotiated in

Mississippi subject to approval by the New York office, did not

expressly state that it was governed by New York law.[114] Similarly,

when the New York Life Insurance Company, which had expressly stated in

its application and policy forms that they would be controlled by New

York law, was sued in Missouri on a policy sold to a resident thereof,

the court of that State was sustained in its application of Missouri

rather than New York law.[115] Also, in an action in a federal court in

Texas to collect the amount of a life insurance policy which had been

made in New York and later changed by instruments assigning beneficial

interest, it was held that questions: (1) whether the contract remained

one governed by the law of New York with respect to rights of assignees,

rather than by the law of Texas, (2) whether the public policy of Texas

permits recovery by one named beneficiary who has no beneficial interest

in the life of the insured, and (3) whether lack of insurable interest

becomes material when the insurer acknowledges liability and pays the

money into court, were questions of Texas law, to be decided according

to Texas decisions.[116]

Consistent with the latter holdings are the following two involving

mutual insurance companies. In Pink _v._ A.A.A. Highway Express,[117]

the New York insurance commissioner, as a statutory liquidator of an

insolvent auto mutual company organized in New York sued resident

Georgia policyholders in a Georgia court to recover assessments alleged

to be due by virtue of their membership in it. The Supreme Court held

that, although by the law of the State of incorporation, policyholders

of a mutual insurance company become members thereof and as such liable

to pay assessments adjudged to be required in liquidation proceedings in

that State, the courts of another State are not required to enforce such

liability against local resident policyholders who did not appear and

were not personally served in the foreign liquidation proceedings; but

are free to decide according to local law the question whether, by

entering into the policies, residents became members of the company.

Again, in State Farm Ins. _v._ Duel,[118] the Court ruled that an

insurance company chartered in State A, which does not treat membership

fees as part of premiums, cannot plead denial of full faith and credit

when State B, as a condition of entry, requires the company to maintain

a reserve computed by including membership fees as well as premiums

received in all States. Were the company's contention accepted, "no

State," the Court observed, "could impose stricter financial standards

for foreign corporations doing business within its borders than were

imposed by the State of incorporation." It is not apparent, the Court

added, that State A has an interest superior to that of State B in the

financial soundness and stability of insurance companies doing business

in State B,--which is obviously more the language of arbitration than of

adjudication, as conventionally regarded.

WORKMEN'S COMPENSATION STATUTES

Finally, the relationship of employer and employee, so far as the

obligations of the one and the rights of the other under workmen's

compensation acts are concerned, has been the subject of similar

treatment. In an earlier case,[119] the cause of action was an injury in

New Hampshire, resulting in death to a workman who had entered the

defendant company's employment in Vermont, the home State of both

parties. The Court held that the case was governed under the full faith

and credit clause by the Vermont workmen's compensation act, not that of

New Hampshire. The relationship, it said, "was created by the law of

Vermont, and so long as that relationship persisted its incidents were

properly subject to regulation there."[120]

However, in an unacknowledged departure from this ruling the Court has

subsequently held that the full faith and credit clause did not preclude

California from disregarding a Massachusetts workmen's compensation

statute and applying its own conflicting act in the case of an injury

suffered by a Massachusetts employee of a Massachusetts employer while

in California in the course of his employment.[121] The earlier case was

distinguished as not having decided more than that a State statute,

applicable to employer and employee within the State, which provides

compensation if the employee is injured while temporarily in another

State, will be given full faith and credit in the latter when not

obnoxious to its policy. Inasmuch as the Court in the older decision is

reputed to have observed that reliance on the Vermont statute, as a

defense to the New Hampshire suit, was not obnoxious to the policy of

New Hampshire, it may be possible to reconcile these two cases by

stating that a foreign workmen's compensation statute will be recognized

when it is invoked as a defense but need not be applied when the

plaintiff endeavors to found his suit thereon.

Later decisions involving the recognition of a foreign workmen's

compensation act include the following. In Magnolia Petroleum Co. _v._

Hunt[122] the Court ruled that a Louisiana employee of a Louisiana

employer, who is injured on the job in Texas and who receives an award

under the Texas Act, which does not grant further recovery to an

employee who receives compensation under the laws of another State,

cannot obtain additional compensation under the Louisiana Act. However,

a compensation award by State A to a resident employee of a resident

employer injured on the job in State B will not preclude State B from

awarding added compensation under its own laws, when the compensation

statute of State A does not expressly exclude recovery under a law of

the State in which the injury occurred and when the State A award

incorporated a private settlement contract wherein the employee reserved

his rights in State B.[123] Also, the District of Columbia workmen's

compensation act, which expressly covers an employee of the District

employer, "irrespective of the place where the injury occurs,"

constitutionally may be applied, in the case of injury resulting in

death, to a District resident, employed by a District employer, who was

assigned to a job at Quantico, Virginia, and who, for three years prior

to his death in Virginia, has commuted to the job site from his house in

the District.[124]

Development of Section to Date and Possibilities

EVALUATION OF RESULTS

Thus the Court, from according an extrastate operation to statutes and

judicial decisions in favor of defendants in transitory actions,

proceeded next to confer the same protection upon certain classes of

defendants in local actions in which the plaintiff's claim was the

outgrowth of a relationship formed extraterritorially. But can the Court

stop at this point? If it is true, as Chief Justice Marshall once

remarked, that "the Constitution was not made for the benefit of

plaintiffs alone," so also it is true that it was not made for the

benefit of defendants alone. The day may come when the Court will

approach the question of the relation of the full faith and credit

clause to the extrastate operation of laws from the same angle as it

today views the broader question of the scope of State legislative

power. When and if this day arrives, State statutes and judicial

decisions will be given such extraterritorial operation as seems

reasonable to the Court to give them. In short, the rule of the

dominance of local policy of the forum State will be superseded by that

of judicial review.[125]

The question arises whether the application to date, not by the Court

alone but by Congress and the Court, of article IV, section 1, can be

said to have met the expectations of its framers. In the light of some

things said at the time of the framing of the clause this may be

doubted. The protest was raised against the clause that in vesting

Congress with power to declare the effect State laws should have outside

the enacting State, it enabled the new government to usurp the powers of

the States; but the objection went unheeded. The main concern of the

Convention, undoubtedly, was to render the judgments of the State courts

in civil cases effective throughout the Union. Yet even this object has

been by no means completely realized, owing to the doctrine of the Court

that before a judgment of a State court can be enforced in a sister

State, a new suit must be brought on it in the courts of the latter; and

the further doctrine that with respect to such a suit, the judgment sued

on is only evidence; the logical deduction from which proposition is

that the sister State is under no constitutional compulsion to give it a

forum. These doctrines were first clearly stated in the McElmoyle Case

and flowed directly from the new States' rights premises of the Court;

but they are no longer in harmony with the prevailing spirit of

constitutional construction nor with the needs of the times. Also, the

clause seems always to have been interpreted on the basis of the

assumption that the term "judicial proceedings" refers only to final

judgments and does not include intermediate processes and writs; but the

assumption would seem to be groundless, and if it is, then Congress has

the power under the clause to provide for the service and execution

throughout the United States of the judicial processes of the several

States.

SCOPE OF POWERS OF CONGRESS UNDER SECTION

Under the present system, suit has ordinarily to be brought where the

defendant, the alleged wrongdoer, resides, which means generally where

no part of the transaction giving rise to the action took place. What

could be more irrational? "Granted that no state can of its own volition

make its process run beyond its borders * * * is it unreasonable that

the United States should by federal action be made a unit in the manner

suggested?"[126]

Indeed, there are few clauses of the Constitution, the merely literal

possibilities of which have been so little developed as the full faith

and credit clause. Congress has the power under the clause to decree the

effect that the statutes of one State shall have in other States. This

being so, it does not seem extravagant to argue that Congress may under

the clause describe a certain type of divorce and say that it shall be

granted recognition throughout the Union, and that no other kind shall.

Or to speak in more general terms, Congress has under the clause power

to enact standards whereby uniformity of State legislation may be

secured as to almost any matter in connection with which interstate

recognition of private rights would be useful and valuable.

FULL FAITH AND CREDIT IN THE FEDERAL COURTS

As we saw earlier, the legislation of Congress comprised in section 905

of the Revised Statutes lays down a rule not merely for the recognition

of the records and judicial proceedings of State courts in the courts of

sister States, but for their recognition in "every court of the United

States," and it further lays down a like rule for the records and

proceedings of the courts "of any territory or any country subject to

the jurisdiction of the United States." Thus the courts of the United

States are bound to give to the judgments of the State courts the same

faith and credit that the courts of one State are bound to give to the

judgments of the courts of her sister States.[127] So, where suits to

enforce the laws of one State are entertained in courts of another on

principles of comity, federal district courts sitting in that State may

entertain them, and should, if they do not infringe federal law or

policy.[128] However, the refusal of a territorial court in Hawaii,

having jurisdiction of the action, which was on a policy issued by a New

York insurance company, to admit evidence that an administrator had been

appointed and a suit brought by him on a bond in the federal court in

New York wherein no judgment had been entered, did not violate this

clause.[129]

The power to prescribe what effect shall be given to the judicial

proceedings of the courts of the United States is conferred by other

provisions of the Constitution, such as those which declare the extent

of the judicial power of the United States, which authorize all

legislation necessary and proper for executing the powers vested by the

Constitution in the Government of the United States, and which declare

the supremacy of the authority of the National Government within the

limits of the Constitution. As part of its general authority, the power

to give effect to the judgment of its courts is coextensive with its

territorial jurisdiction.[130]

JUDGMENTS OF FOREIGN STATES

Doubtless Congress might also by virtue of its powers in the field of

foreign relations lay down a mandatory rule regarding recognition of

foreign judgments in every court of the United States. At present the

duty to recognize judgments even in national courts rests only on comity

and is qualified, in the judgment of the Supreme Court, by a strict rule

of parity.[131]

Section 2. The Citizens of each State shall be entitled to all

Privileges and Immunities of Citizens in the several States.

The Comity Clause

SOURCES

The community of rights among the citizens of the several States

guaranteed by this article is traceable to colonial days. It had its

origin in the fact that the colonists were all subjects of the same

monarch.[132] After the Declaration of Independence was signed, the

question arose as to how to reconcile the advantages of a common

citizenship with a dispersed sovereignty. One element of the solution is

to be seen in the Fourth of the Articles of Confederation, which read as

follows: "The better to secure and perpetuate mutual friendship and

intercourse among the people of the different States in this Union, the

free inhabitants of each of these States, paupers, vagabonds and

fugitives from justice excepted, shall be entitled to all privileges and

immunities of free citizens in the several States; and the people of

each State shall have free ingress and regress to and from any other

State, and shall enjoy therein all the privileges of trade and commerce,

subject to the same duties, impositions and restrictions as the

inhabitants thereof respectively * * *" Madison, writing in _The

Federalist_,[133] adverted to the confusion engendered by use of the

different terms "free inhabitants, free citizens," and "people" and by

"superadding to 'all privileges and immunities of free citizens--all the

privileges of trade and commerce,' * * *" The more concise phraseology

of article IV, however, did little to dispel the uncertainty. In the

Slaughter-House Cases,[134] Justice Miller suggested that it was to be

regarded as the compendious equivalent of the earlier version: "There

can be but little question that the purpose of both these provisions is

the same, and that the privileges and immunities intended are the same

in each. In the Articles of the Confederation we have some of these

specifically mentioned, and enough perhaps to give some general ideal of

the class of civil rights meant by the phrase."[135]

THEORIES AS TO ITS PURPOSE

First and last, at least four theories have been proffered regarding the

purpose of this clause. The first is that the clause is a guaranty to

the citizens of the different States of equal treatment by Congress--is,

in other words, a species of equal protection clause binding on the

National Government. The second is that the clause is a guaranty to the

citizens of each State of all the privileges and immunities of

citizenship that are enjoyed in any State by the citizens thereof,--a

view which, if it had been accepted at the outset, might well have

endowed the Supreme Court with a reviewing power over restrictive State

legislation as broad as that which it later came to exercise under the

Fourteenth Amendment. The third theory of the clause is that it

guarantees to the citizen of any State the rights which he enjoys as

such even when sojourning in another State, that is to say, enables him

to carry with him his rights of State citizenship throughout the Union,

without embarrassment by State lines. Finally, the clause is interpreted

as merely forbidding any State to discriminate against citizens of other

States in favor of its own. Though the first theory received some

recognition in the Dred Scott Case,[136] particularly in the opinion of

Justice Catron,[137] it is today obsolete. The second was specifically

rejected in McKane _v._ Durston;[138] the third, in Detroit _v._

Osborne.[139] The fourth has become a settled doctrine of Constitutional

Law.[140] In the words of Justice Miller in the Slaughter-House

Cases,[141] the sole purpose of the comity clause was "to declare to the

several States, that whatever these rights, as you grant or establish

them to your own citizens, or as you limit or qualify, or impose

restrictions on their exercise, the same, neither more nor less, shall

be the measure of the rights of citizens of other States within your

jurisdiction."[142] It follows that this section has no application in

controversies between a State and its own citizens.[143] It is deemed to

be infringed by a hostile discrimination against all nonresidents[144]

but not by such differences of treatment between residents and

nonresidents as the nature of the subject matter makes reasonable.[145]

HOW IMPLEMENTED

This clause is self-executory, that is to say, its enforcement is

dependent upon the judicial process. It does not authorize penal

legislation by Congress. Federal statutes prohibiting conspiracies to

deprive any person of rights or privileges secured by State laws,[146]

or punishing infractions by individuals of the right of citizens to

reside peacefully in the several States, and to have free ingress into

and egress from such States,[147] have been held void.

CITIZENS OF EACH STATE

A question much mooted before the Civil War was whether the term could

be held to include free Negroes. In the Dred Scott Case,[148] the Court

answered it in the negative. "Citizens of each State," Chief Justice

Taney argued, meant citizens of the United States as understood at the

time the Constitution was adopted, and Negroes were not then regarded as

capable of citizenship. The only category of national citizenship added

under the Constitution comprised aliens, naturalized in accordance with

acts of Congress.[149] In dissent, Justice Curtis not only denied the

Chief Justice's assertion that there were no Negro citizens of States in

1789, but further argued that while Congress alone could determine what

classes of aliens should be naturalized, the several States retained the

right to extend citizenship to classes of persons born within their

borders who had not previously enjoyed citizenship, and that one upon

whom State citizenship was thus conferred became a citizen of the State

in the full sense of the Constitution.[150] So far as persons born in

the United States, and subject to the jurisdiction thereof are

concerned, the question was put at rest by the Fourteenth Amendment.

CORPORATIONS

At a comparatively early date the claim was made that a corporation

chartered by a State and consisting of its citizens was entitled to the

benefits of the comity clause in the transaction of business in other

States. It was argued that the Court was bound to look beyond the act of

incorporation and see who were the incorporators. If it found these to

consist solely of citizens of the incorporating State, it was bound to

permit them through the agency of the corporation, to exercise in other

States such privileges and immunities as the citizens thereof enjoyed.

In Bank of Augusta _v._ Earle[151] this view was rejected. The Supreme

Court held that the comity clause was never intended "to give to the

citizens of each State the privileges of citizens in the several

States, and at the same time to exempt them from the liabilities which

the exercise of such privileges would bring upon individuals who were

citizens of the State. This would be to give the citizens of other

States far higher and greater privileges than are enjoyed by the

citizens of the State itself."[152] A similar result was reached in Paul

_v._ Virginia,[153] but by a different course of reasoning. The Court

there held that a corporation--in this instance, an insurance

company--was "the mere creation of local law" and could "have no legal

existence beyond the limits of the sovereignty"[154] which created it;

even recognition of its existence by other States rested exclusively in

their discretion. More recent cases have held that this discretion is

qualified by other provisions of the Constitution, notably the commerce

clause and the Fourteenth Amendment.[155] By reason of its similarity to

the corporate form of organization, a Massachusetts trust has been

denied the protection of this clause.[156]

ALL PRIVILEGES AND IMMUNITIES OF CITIZENS IN THE SEVERAL STATES

The classical judicial exposition of the meaning of this phrase is that

of Justice Washington in Corfield _v._ Coryell,[157] which was decided

by him on circuit in 1823. The question at issue was the validity of a

New Jersey statute which prohibited "any person who is not, at the time,

an actual inhabitant and resident in this State" from raking or

gathering "clams, oysters or shells" in any of the waters of the State,

on board any vessel "not wholly owned by some person, inhabitant of and

actually residing in this State. * * * The inquiry is," wrote Justice

Washington, "what are the privileges and immunities of citizens in the

several States? We feel no hesitation in confining these expressions to

those privileges and immunities which are, in their nature, fundamental;

which belong, of right, to the citizens of all free governments; and

which have, at all times, been enjoyed by the citizens of the several

States which compose this Union, * * *"[158] He specified the following

rights as answering this description: "Protection by the Government; the

enjoyment of life and liberty, with the right to acquire and possess

property of every kind, and to pursue and obtain happiness and safety;

subject nevertheless to such restraints as the Government may justly

prescribe for the general good of the whole. The right of a citizen of

one State to pass through, or to reside in any other State, for purposes

of trade, agriculture, professional pursuits, or otherwise; to claim the

benefit of the writ of _habeas corpus_; to institute and maintain

actions of any kind in the courts of the State; to take, hold and

dispose of property, either real or personal; and an exemption from

higher taxes or impositions than are paid by the other citizens of the

State; * * *"[159]

After thus defining broadly the private and personal rights which were

protected, Justice Washington went on to distinguish them from the right

to a share in the public patrimony of the State. "* * * we cannot

accede" the opinion proceeds, "to the proposition * * * that, under this

provision of the Constitution, the citizens of the several States are

permitted to participate in all the rights which belong exclusively to

the citizens of any particular State, merely upon the ground that they

are enjoyed by those citizens; much less, that in regulating the use of

the common property of the citizens of such State, the legislature is

bound to extend to the citizens of all other States the same advantages

as are secured to their own citizens."[160] The right of a State to the

fisheries within its borders he then held to be in the nature of a

property right, held by the State "for the use of the citizens thereof;"

the State was under no obligation to grant "co-tenancy in the common

property of the State, to the citizens of all the other States."[161]

The precise holding of this case was confirmed in McCready _v._

Virginia;[162] the logic of Geer _v._ Connecticut[163] extended the same

rule to wild game, and Hudson County Water Co. _v._ McCarter[164]

applied it to the running water of a State. In Toomer _v._ Witsell,[165]

however, the Court refused to apply this rule to free-swimming fish

caught in the three-mile belt off the coast of South Carolina. It held

instead that "commercial shrimping in the marginal sea, like other

common callings, is within the purview of the privileges and immunities

clause" and that a heavily discriminatory license fee exacted from

nonresidents was unconstitutional.[166] Universal practice has also

established another exception to which the Court gave approval by a

dictum in Blake _v._ McClung:[167] "A State may, by rule uniform in its

operation as to citizens of the several States, require residence within

its limits for a given time before a citizen of another State who

becomes a resident thereof shall exercise the right of suffrage or

become eligible to office."[168]

DISCRIMINATION IN PRIVATE RIGHTS

Not only has judicial construction of the comity clause excluded some

privileges of a public nature from its protection; the courts have also

established the proposition that the purely private and personal rights

to which the clause admittedly extends are not in all cases beyond the

reach of State legislation which differentiates citizens and

noncitizens. Broadly speaking, these rights are held subject to the

reasonable exercise by a State of its police power, and the Court has

recognized that there are cases in which discrimination against

nonresidents may be reasonably resorted to by a State in aid of its own

public health, safety and welfare. To that end a State may restrict the

right to sell insurance to persons who have resided within the State for

a prescribed period of time.[169] It may require a nonresident who does

business within the State[170] or who uses the highways of the

State[171] to consent, expressly or by implication, to service of

process on an agent within the State. Without violating this section, a

State may limit the dower rights of a nonresident to lands of which the

husband died seized while giving a resident dower in all lands held

during the marriage,[172] or may leave the rights of nonresident married

persons in respect of property within the State to be governed by the

laws of their domicile, rather than by the laws it promulgates for its

own residents.[173] But a State may not give a preference to resident

creditors in the administration of the property of an insolvent foreign

corporation.[174] An act of the Confederate Government, enforced by a

State, to sequester a debt owed by one of its residents to a citizen of

another State was held to be a flagrant violation of this clause.[175]

ACCESS TO COURTS

The right to sue and defend in the courts is one of the highest and most

essential privileges of citizenship, and must be allowed by each State

to the citizens of all other States to the same extent that it is

allowed to its own citizens.[176] The constitutional requirement is

satisfied if the nonresident is given access to the courts of the State

upon terms which, in themselves, are reasonable and adequate for the

enforcing of any rights he may have, even though they may not be

technically the same as those accorded to resident citizens.[177] The

Supreme Court upheld a State statute of limitations which prevented a

nonresident from suing in the State's courts after expiration of the

time for suit in the place where the cause of action arose,[178] and

another such statute which suspended its operation as to resident

plaintiff, but not as to nonresidents, during the period of the

defendant's absence from the State.[179] A State law making it

discretionary with the courts to entertain an action by a nonresident of

the State against a foreign corporation doing business in the State, was

sustained since it was applicable alike to citizens and noncitizens

residing out of the State.[180] A statute permitting a suit in the

courts of the State for wrongful death occurring outside the State, only

if the decedent was a resident of the State, was sustained, because it

operated equally upon representatives of the deceased whether citizens

or noncitizens.[181]

TAXATION

A State may not, in the exercise of its taxing power, substantially

discriminate between residents and nonresidents. A leading case is Ward

_v._ Maryland,[182] in which the Court set aside a State law which

imposed special taxes upon nonresidents for the privilege of selling

within the State goods which were produced outside it. Likewise, a

Tennessee statute which made the amount of the annual license tax

exacted for the privilege of doing railway construction work dependent

upon whether the person taxed had his chief office within or without the

State, was found to be incompatible with the comity clause.[183] In

Travis _v._ Yale and Towne Mfg. Co.,[184] the Court, while sustaining

the right of a State to tax income accruing within its borders to

nonresidents,[185] held the particular tax void because it denied to

nonresidents exemptions which were allowed to residents. The "terms

'resident' and 'citizen' are not synonymous," wrote Justice Pitney,

"* * * but a general taxing scheme * * * if it discriminates against all

nonresidents, has the necessary effect of including in the

discrimination those who are citizens of other States; * * *"[186]

Where there was no discrimination between citizens and noncitizens, a

State statute taxing the business of hiring persons within the State for

labor outside the State, was sustained.[187] This section of the

Constitution does not prevent a territorial government, exercising

powers delegated by Congress, from imposing a discriminatory license tax

on nonresident fishermen operating within its waters.[188]

However, what at first glance may appear to be a discrimination may turn

out not to be when the entire system of taxation prevailing in the

enacting State is considered. On the basis of over-all fairness, the

Court sustained a Connecticut statute which required nonresident

stockholders to pay a State tax measured by the full market value of

their stock, while resident stockholders were subject to local taxation

on the market value of that stock reduced by the value of the real

estate owned by the corporation.[189] Occasional or accidental

inequality to a nonresident taxpayer are not sufficient to defeat a

scheme of taxation whose operation is generally equitable.[190] In an

early case the Court brushed aside as frivolous the contention that a

State violated this clause by subjecting one of its own citizens to a

property tax on a debt due from a nonresident secured by real estate

situated where the debtor resided.[191]

Clause 2. A person charged in any State With Treason, Felony, or other

Crime, who shall flee from Justice, and be found in another State, shall

on Demand of the executive Authority of the State from which he fled, be

delivered up, to be removed to the State having Jurisdiction of the

Crime.

Fugitives From Justice

DUTY TO SURRENDER

Although this provision is not in its nature self-executing, and there

is no express grant to Congress of power to carry it into effect, that

body passed a law shortly after the Constitution was adopted, imposing

upon the Governor of each State the duty to deliver up fugitives from

justice found in such State.[192] The Supreme Court has accepted this

contemporaneous construction as establishing the validity of this

legislation.[193] The duty to surrender is not absolute and unqualified;

if the laws of the State to which the fugitive has fled have been put in

force against him, and he is imprisoned there, the demands of those laws

may be satisfied before the duty of obedience to the requisition

arises.[194] In Kentucky _v._ Dennison[195] the Court held, moreover,

that this statute was merely declaratory of a moral duty; that the

Federal Government "has no power to impose on a State officer, as such,

any duty whatever, and compel him to perform it; * * *"[196] and

consequently that a federal court could not issue a mandamus to compel

the governor of one State to surrender a fugitive to another. In 1934

Congress plugged the loophole exposed by this decision by making it

unlawful for any person to flee from one State to another for the

purpose of avoiding prosecution in certain cases.[197]

FUGITIVE FROM JUSTICE

To be a fugitive from justice within the meaning of this clause, it is

not necessary that the party charged should have left the State after an

indictment found, or for the purpose of avoiding a prosecution

anticipated or begun. It is sufficient that the accused, having

committed a crime within one State and having left the jurisdiction

before being subjected to criminal process, is found within another

State.[198] The motive which induced the departure is immaterial.[199]

Even if he were brought involuntarily into the State where found by

requisition from another State, he may be surrendered to a third State

upon an extradition warrant.[200] A person indicted a second time for

the same offense is nonetheless a fugitive from justice by reason of the

fact that after dismissal of the first indictment, on which he was

originally indicted, he left the State with the knowledge of, or without

objection by, State authorities.[201] But a defendant cannot be

extradited if he was only constructively present in the demanding State

at the time of the commission of the crime charged.[202] For the purpose

of determining who is a fugitive from justice, the words "treason,

felony or other crime" embrace every act forbidden and made punishable

by a law of a State,[203] including misdemeanors.[204]

PROCEDURE FOR REMOVAL

Only after a person has been charged with crime in the regular course of

judicial proceedings is the governor of a State entitled to make demand

for his return from another State.[205] The person demanded has no

constitutional right to be heard before the governor of the State in

which he is found on the question whether he has been substantially

charged with crime and is a fugitive from justice.[206] The

constitutionally required surrender is not to be interfered with by

_habeas corpus_ upon speculations as to what ought to be the result of a

trial.[207] Nor is it proper thereby to inquire into the motives

controlling the actions of the governors of the demanding and

surrendering States.[208] Matters of defense, such as the running of the

statute of limitations, cannot be heard on _habeas corpus_, but must be

determined at the trial.[209] A defendant will, however, be discharged

on _habeas corpus_ if he shows by clear and satisfactory evidence that

he was outside the demanding State at the time of the crime.[210] If,

however, the evidence is conflicting, _habeas corpus_ is not a proper

proceeding to try the question of alibi.[211]

TRIAL OF FUGITIVE AFTER REMOVAL

There is nothing in the Constitution or laws of the United States which

exempts an offender, brought before the courts of a State for an offense

against its laws, from trial and punishment, even though he was brought

from another State by unlawful violence,[212] or by abuse of legal

process,[213] and a fugitive lawfully extradited from another State may

be tried for an offense other than that for which he was

surrendered.[214] The rule is different, however, with respect to

fugitives surrendered by a foreign government pursuant to treaty. In

that case the offender may be tried only "for the offence with which he

is charged in the proceedings for his extradition, until a reasonable

time and opportunity have been given him, after his release or trial

upon such charge, to return to the country from whose asylum he had been

forcibly taken under those proceedings."[215]

Clause 3. No Person held to Service or Labour in one State, under the

Laws thereof, escaping into another, shall, in Consequence of any Law or

Regulation therein, be discharged from such Service or Labour, but shall

be delivered up on Claim of the Party to whom such Service or Labour may

be due.

This clause contemplated the existence of a positive unqualified right

on the part of the owner of a slave which no State law could in any way

regulate, control or restrain. Consequently the owner of a slave had the

same right to seize and repossess him in another State, as the local

laws of his own State conferred upon him, and a State law which

penalized such seizure was held unconstitutional.[216] Congress had the

power and the duty, which it exercised by the act of February 12,

1793,[217] to carry into effect the rights given by this Section,[218]

and the States had no concurrent power to legislate on the subject.[219]

However, a State statute providing a penalty for harboring a fugitive

slave was held not to conflict with this clause since it did not affect

the right or remedy either of the master or the slave; by it the State

simply prescribed a rule of conduct for its own citizens in the exercise

of its police power.[220]

Section 3. New States may be admitted by the Congress into this

Union; but no new State shall be formed or erected within the

Jurisdiction of any other State; nor any State be formed by the Junction

of two or more States, or Parts of States, without the Consent of the

Legislatures of the States concerned as well as of the Congress.

Doctrine of the Equality of the States

"Equality of constitutional right and power is the condition of all the

States of the Union, old and new."[221] This doctrine, now a truism of

Constitutional Law, did not find favor in the Constitutional Convention.

That body struck out from this section, as reported by the Committee on

Detail, two sections to the effect that "... new States shall be

admitted on the same terms with the original States. But the Legislature

may make conditions with the new States concerning the public debt which

shall be subsisting."[222] Opposing this action, Madison insisted that

"the Western States neither would nor ought to submit to a union which

degraded them from an equal rank with the other States."[223]

Nonetheless, after further expressions of opinion _pro_ and _con_, the

Convention voted nine States to two to delete the requirement of

equality.[224] Prior to this time, however, Georgia and Virginia had

ceded to the United States large territories held by them, upon

condition that new States should be formed therefrom, and admitted to

the Union on an equal footing with the original States.[225] With the

admission of Louisiana in 1812, the principle of equality was extended

to States created out of territory purchased from a foreign power.[226]

By the Joint Resolution of December 29, 1845, Texas "was admitted into

the Union on an equal footing with the original States in all respects

whatever."[227] Again and again, in adjudicating the rights and duties

of States admitted after 1789, the Supreme Court has referred to the

condition of equality as if it were an inherent attribute of the Federal

Union.[228] Finally, in 1911, it invalidated a restriction on the change

of location of the State capital, which Congress had imposed as a

condition for the admission of Oklahoma, on the ground that Congress may

not embrace in an enabling act conditions relating wholly to matters

under State control.[229] In an opinion, from which Justices Holmes and

McKenna dissented, Justice Lurton argued: "The power is to admit 'new

States into _this_ Union.' 'This Union' was and is a union of States,

equal in power, dignity and authority, each competent to exert that

residuum of sovereignty not delegated to the United States by the

Constitution itself. To maintain otherwise would be to say that the

Union, through the power of Congress to admit new States, might come to

be a union of States unequal in power, as including States whose powers

were restricted only by the Constitution, with others whose powers had

been further restricted by an act of Congress accepted as a condition of

admission."[230]

EARLIER SCOPE OF THE DOCTRINE

Until recently, however, the requirement of equality has applied

primarily to political standing and sovereignty rather than to economic

or property rights.[231] Broadly speaking, every new State is entitled

to exercise all the powers of government which belong to the original

States of the Union.[232] It acquires general jurisdiction, civil and

criminal, for the preservation of public order, and the protection of

persons and property throughout its limits except where it has ceded

exclusive jurisdiction to the United States.[233] The legislative

authority of a newly admitted State extends over federally owned land

within the State, to the same extent as over similar property held by

private owners, save that the State can enact no law which would

conflict with the constitutional powers of the United States.

Consequently it has jurisdiction to tax private activities carried on

within the public domain, if the tax does not constitute an

unconstitutional burden on the Federal Government.[234] Statutes

applicable to territories, e.g., the Northwest Territory Ordinance of

1787, cease to have any operative force when the territory, or any part

thereof, is admitted to the Union, except as adopted by State law.[235]

When the enabling act contains no exclusion of jurisdiction as to crimes

committed on Indian reservations by persons other than Indians, State

courts are vested with jurisdiction.[236] But the constitutional

authority of Congress to regulate commerce with Indian tribes is not

inconsistent with the equality of new States,[237] and conditions

inserted in the New Mexico Enabling Act forbidding the introduction of

liquor into Indian territory were therefore valid.[238]

CITIZENSHIP OF INHABITANTS

Admission of a State on an equal footing with the original States

involves the adoption as citizens of the United States of those whom

Congress makes members of the political community, and who are

recognized as such in the formation of the new State.[239]

JUDICIAL PROCEEDINGS

Whenever a territory is admitted into the Union, the cases pending in

the territorial court which are of exclusive federal cognizance are

transferred to the federal court having jurisdiction over the area;

cases not cognizable in the federal courts are transferred to the

tribunals of the new State, and those over which federal and State

courts have concurrent jurisdiction may be transferred either to the

State or federal courts by the party possessing that option under

existing law.[240] Where Congress neglected to make provision for

disposition of certain pending cases in an Enabling Act for the

admission of a State to the Union, a subsequent act supplying the

omission was held valid.[241] After a case, begun in a United States

court of a territory, is transferred to a State court under the

operation of the enabling act and the State constitution, the appellate

procedure is governed by the State statutes and procedure.[242] The new

State cannot, without the express or implied assent of Congress, enact

that the records of the former territorial court of appeals should

become records of its own courts, or provide by law for proceedings

based thereon.[243]

PROPERTY RIGHTS: UNITED STATES _v._ TEXAS

Holding that a "mere agreement in reference to property" involved "no

question of equality of status," the Supreme Court upheld, in Stearns

_v._ Minnesota,[244] a promise exacted from Minnesota upon its admission

to the Union which was interpreted to limit its right to tax lands held

by the United States at the time of admission and subsequently granted

to a railroad. The "equal footing" doctrine has had an important effect,

however, on the property rights of new States to soil under navigable

waters. In Pollard _v._ Hagan,[245] the Court held that the original

States had reserved to themselves the ownership of the shores of

navigable waters and the soils under them, and that under the principle

of equality the title to the soils of navigable waters passes to a new

State upon admission. After refusing to extend the inland-water rule of

this case to the three mile marginal belt under the ocean along the

coast,[246] the Court applied the principle of the Pollard Case in

reverse in United States _v._ Texas.[247] Since the original States had

been found not to own the soil under the three mile belt, Texas, which

concededly did own this soil before its annexation to the United States,

was held to have surrendered its dominion and sovereignty over it, upon

entering the Union on terms of equality with the existing States. To

this extent, the earlier rule that unless otherwise declared by Congress

the title to every species of property owned by a territory passes to

the State upon admission[248] has been qualified.

RIGHTS CONVEYED TO PRIVATE PERSONS BEFORE ADMISSION OF A STATE

While the territorial status continues, the United States has power to

convey property rights, such as rights in soil below high-water mark

along navigable waters,[249] or the right to fish in designated

waters,[250] which will be binding on the State. But a treaty with an

Indian tribe which gave hunting rights on unoccupied lands of the United

States, which rights should cease when the United States parted with its

title to any of the land, was held to be repealed by the admission to

the Union of the territory in which the hunting lands were

situated.[251]

Clause 2. The Congress shall have Power to dispose of and make all

needful Rules and Regulations respecting the Territory or other Property

belonging to the United States; and nothing in this Constitution shall

be so construed as to Prejudice any Claims of the United States, or of

any particular State.

Property of the United States

METHODS OF DISPOSING THEREOF

The Constitution is silent as to the methods of disposing of property of

the United States. In United States _v._ Gratiot,[252] in which the

validity of a lease of lead mines on government lands was put in issue,

the contention was advanced that "disposal is not letting or leasing,"

and that Congress has no power "to give or authorize leases." The Court

sustained the leases, saying "the disposal must be left to the

discretion of Congress."[253] Nearly a century later this power to

dispose of public property was relied upon to uphold the generation and

sale of electricity by the Tennessee Valley Authority. The reasoning of

the Court ran thus: the potential electrical energy made available by

the construction of a dam in the exercise of its constitutional powers

is property which the United States is entitled to reduce to possession;

to that end it may install the equipment necessary to generate such

energy. In order to widen the market and make a more advantageous

disposition of the product, it may construct transmission lines, and may

enter into a contract with a private company for the interchange of

electric energy.[254]

PUBLIC LANDS

No appropriation of public lands may be made for any purpose except by

authority of Congress.[255] However, the long-continued practice of

withdrawing land from the public domain by Executive Orders for the

purpose of creating Indian reservations has raised an implied delegation

of authority from Congress to take such action.[256] The comprehensive

authority of Congress over public lands includes the power to prescribe

the times, conditions and mode of transfer thereof, and to designate the

persons to whom the transfer shall be made;[257] to declare the dignity

and effect of titles emanating from the United States;[258] to determine

the validity of grants which antedate the government's acquisition of

the property;[259] to exempt lands acquired under the homestead laws

from previously contracted debts;[260] to withdraw land from settlement

and to prohibit grazing thereon;[261] to prevent unlawful occupation of

public property and to declare what are nuisances, as affecting such

property, and provide for their abatement;[262] and to prohibit the

introduction of liquor on lands purchased and used for an Indian

colony.[263] Congress may limit the disposition of the public domain to

a manner consistent with its views of public policy. A restriction

inserted in a grant of public lands to a municipality which prohibited

the grantee from selling or leasing to a private corporation the right

to sell or sublet water or electric energy supplied by the facilities

constructed on such land was held valid.[264]

THE POWER OF THE STATE

No State can tax public lands of the United States within its

borders;[265] nor can State legislation interfere with the power of

Congress under this clause or embarrass its exercise.[266] The question

whether title to land which has once been the property of the United

States has passed from it must be resolved by the laws of the United

States; after title has passed, "that property, like all other property

in the State, is subject to State legislation; so far as that

legislation is consistent with the admission that the title passed and

vested according to the laws of the United States."[267] In construing a

conveyance by the United States of land within a State, the settled and

reasonable rule of construction of the State affords a guide in

determining what impliedly passes to the grantee as an incident to land

expressly granted.[268] But a State statute enacted subsequently to a

federal grant cannot be given effect to vest in the State rights which

either remained in the United States or passed to its grantee.[269]

POWER OF CONGRESS OVER THE TERRITORIES

In the territories, Congress has the entire dominion and sovereignty,

national and local, and has full legislative power over all subjects

upon which a State legislature might act.[270] It may legislate directly

with respect to the local affairs of a territory or it may transfer that

function to a legislature elected by the citizens thereof,[271] which

will then be invested with all legislative power except as limited by

the Constitution of the United States and acts of Congress.[272] In

1886, Congress prohibited the enactment by territorial legislatures of

local or special laws on enumerated subjects.[273] The constitutional

guarantees of private rights are applicable in territories which have

been made a part of the United States by Congressional action,[274] but

not to unincorporated territories.[275] Alaska is of the former

description,[276] while the status of Hawaii appears to be

doubtful.[277] Congress may establish, or may authorize the territorial

legislature to create, legislative courts whose jurisdiction is derived

from statutes enacted pursuant to this section rather than from article

IV.[278] Such courts may exercise admiralty jurisdiction despite the

fact that such jurisdiction may be exercised in the States only by

constitutional courts.[279]

Section 4. The United States shall guarantee to every State in

this Union a Republican Form of Government, and shall protect each of

them against Invasion; and on Application of the Legislature, or of the

Executive (when the Legislature cannot be convened) against domestic

Violence.

A Republican Form of Government

It was established in the pioneer case of Luther _v._ Borden,[280] that

questions arising under this section are political, not judicial, in

character, and that "it rests with Congress to decide what government is

the established one in a State * * * as well as its republican

character."[281] Upon Congress also rested the duty to restore

republican governments to the States which seceded from the Union at the

time of the Civil War. In Texas _v._ White[282] the Supreme Court

declared that the action of the President in setting up provisional

governments at the end of the war was justified, if at all, only as an

exercise of his powers as Commander in Chief and that such governments

were to be regarded merely as provisional regimes to perform the

functions of government pending action by Congress. On the ground that

the questions were not justiciable in character, the Supreme Court has

refused to consider whether the adoption of the initiative and

referendum,[283] or the delegation of legislative power to other

departments of government[284] is compatible with a republican form of

government. This guarantee does not give the Supreme Court jurisdiction

to review a decision of a State court sustaining a determination of an

election contest for the office of governor made by a State legislature

under the authority of a State constitution.[285] Inasmuch as women were

denied the right to vote in most, if not all, of the original thirteen

States, it was held, prior to the adoption of Amendment XIX, that a

State government could be challenged under this clause by reason of the

fact that it did not permit women to vote.[286]

Protection Against Domestic Violence

The Supreme Court also held in Luther _v._ Borden[287] that it rested

with Congress to determine upon the means proper to fulfill the

constitutional guarantee of protection to the States against domestic

violence. Chief Justice Taney declared that Congress might have placed

it in the power of a court to decide when the contingency had happened

which required the Federal Government to interfere. Instead, Congress

had, by the act of February 28, 1795,[288] authorized the President to

call out the militia in case of insurrection against the government of

any State. It followed, said Taney, that the President "must, of

necessity, decide which is the government, and which party is unlawfully

arrayed against it, before he can perform the duty imposed upon him by

the act of Congress"[289] and that his determination was not subject to

review by the courts.

DECLINE IN IMPORTANCE OF THIS GUARANTY

With the recognition in the Debs Case[290] of the power and duty of the

Federal Government to use "the entire strength of the Nation * * * to

enforce in any part of the land the full and free exercise of all

national powers and the security of all rights entrusted by the

Constitution to its care,"[291] this clause has declined in importance.

When that Government finds it necessary or desirable to use force to

quell domestic violence, its power to protect the property of the United

States, to remove obstructions to the United States mails, or to protect

interstate commerce from interruption by labor disputes or otherwise,

usually will furnish legal warrant for its action, without reference to

this provision.[292]

Notes

[1] Clark _v._ Graham, 6 Wheat. 577 (1821), is an early case in which

the Supreme Court enforced this rule.

[2] Stat. 122 (1790); 2 Stat. 299 (1804), R.S. Sec. 905 28 U.S.C. Sec.

687.

[3] Mankin _v._ Chandler & Co., 2 Brock. 125, 127 (1823).

[4] 7 Cr. 481 (1813). _See_ also Everett _v._ Everett, 215 U.S. 203

(1909); Mutual L. Ins. Co. _v._ Harris, 97 U.S. 331 (1878).

[5] On the same basis, a judgment cannot be impeached either in or out

of the State by showing that it was based on a mistake of law. American

Exp. Co. _v._ Mullins, 212 U.S. 311, 312 (1909); Fauntleroy _v._ Lum,

210 U.S. 230 (1908); Hartford L. Ins. Co. _v._ Barber, 245 U.S. 146

(1917); Hartford L. Ins. Co. _v._ Ibs, 237 U.S. 662 (1915).

[6] 3 Wheat. 234 (1818).

[7] 13 Pet. 312 (1839). _See also_ Bacon _v._ Howard, 20 How. 22, 25

(1858); Bank of Ala. _v._ Dalton, 9 How. 522, 528 (1850); Great Western

Telegraph Co. _v._ Purdy, 162 U.S. 329 (1896); Christmas _v._ Russell, 5

Wall. 290, 301 (1866); Wisconsin _v._ Pelican Insurance Co., 127 U.S.

265, 292 (1888).

[8] Cole _v._ Cunningham, 133 U.S. 107, 112 (1890). _See also_ Stacy

_v._ Thrasher, use of Sellers, 6 How. 44, 61 (1848); Milwaukee County

_v._ White (M.E.) Co., 296 U.S. 268 (1935).

[9] Chicago & A.R. Co. _v._ Wiggins Ferry Co., 119 U.S. 615, 622 (1887);

Hanley _v._ Donoghue, 116 U.S. 1, 3 (1885). _See also_ Bigelow _v._ Old

Dominion Copper Min. & S. Co., 225 U.S. 111 (1912); Green _v._ Van

Buskirk, 7 Wall. 139, 140 (1869); Roche _v._ McDonald, 275 U.S. 449

(1928); Ohio _v._ Chattanooga Boiler & Tank Co., 289 U.S. 439 (1933).

[10] Sistare _v._ Sistare, 218 U.S. 1 (1910).

[11] Michigan Trust Co. _v._ Ferry, 228 U.S. 346 (1913). _See also_ Fall

_v._ Eastin, 215 U.S. 1 (1909).

[12] Milwaukee County _v._ White (M.E.) Co., 296 U.S. 268, 275-276

(1935).

[13] Board of Public Works _v._ Columbia College, 17 Wall. 521 (1873);

Robertson _v._ Pickrell, 109 U.S. 608, 610 (1883).

[14] Kersh Lake Drainage Dist. _v._ Johnson, 309 U.S. 485 (1940). _See

also_ Texas & P.R. Co. _v._ Southern P. Co., 137 U.S. 48 (1890).

[15] National Exchange Bank _v._ Wiley, 195 U.S. 257, 265 (1904). _See

also_ Grover & B. Sewing-Mach. Co. _v._ Radcliffe, 137 U.S. 287 (1890).

[16] Harding _v._ Harding, 198 U.S. 317 (1905). The following cases

further illustrate the application of the clause when its protection is

sought by a defendant. Such claim must be specific, Wabash R. Co. _v._

Flannigan, 192 U.S. 29, 37 (1904). _See also_ American Exp. Co. _v._

Mullins, 212 U.S. 311 (1909). The burden is upon the party making it to

establish the failure of a court to give to decrees of a federal court

and the court of another State the due effect to which they are

entitled. Commercial Pub. Co. _v._ Beckwith, 188 U.S. 567, 573 (1903).

However, by defending on the merits, after pleading and relying upon a

foreign judgment, a party does not waive the benefits of an alleged

estoppel arising from the foreign judgment. Harding _v._ Harding, 198

U.S. 317, 330 (1905). Nor is a decree of dismissal, not on the merits, a

bar to suit in another jurisdiction. Swift _v._ McPherson, 232 U.S. 51

(1914). Nor is an entry of discontinuance. In allowing the plaintiff to

show that such entry of discontinuance was not intended by the parties

as a release and satisfaction of the cause of action, but was the result

of a promissory agreement by the defendant which was never complied

with, the Court in the forum State was not refusing full faith and

credit to the judgment. Such evidence was properly allowed, not to

contradict the legal import of said judgment, but to show the true

meaning of the parties to the suit in agreeing upon its discontinuance.

Jacobs _v._ Marks, 182 U.S. 583, 593 (1901).

[17] Anglo-American Provision Co. _v._ Davis Provision Co., 191 U.S. 373

(1903).

[18] Fauntleroy _v._ Lum, 210 U.S. 230 (1908). Justice Holmes, who spoke

for the Court in both cases, asserted in his opinion in the latter that

the New York statute was "directed to jurisdiction," the Mississippi

statute to "merits," but four Justices could not grasp the distinction.

[19] Kenney _v._ Supreme Lodge, 252 U.S. 411 (1920), and cases there

cited. Holmes again spoke for the Court. _See also_ Cook, The Powers of

Congress Under the Full Faith and Credit Clause, 28 Yale L.J. 421, 434

(1919).

[20] Broderick _v._ Rosner, 294 U.S. 629 (1935), affirmed in Hughes _v._

Fetter, 341 U.S. 609 (1951).

[21] Union National Bank _v._ Lamb, 337 U.S. 38 (1949); _see also_ Roche

_v._ McDonald, 275 U.S. 449 (1928).

[22] Embry _v._ Palmer, 107 U.S. 3, 13 (1883).

[23] Titus _v._ Wallick, 306 U.S. 282, 291-292 (1939).

[24] Morris _v._ Jones, 329 U.S. 545 (1947).

[25] Thus why should not a judgment for alimony be made directly

enforceable in sister States instead of merely furnishing the basis of

an action in debt? _See_ Thompson _v._ Thompson, 226 U.S. 551 (1913).

[26] Board of Public Works _v._ Columbia College, 17 Wall. 521, 528

(1873). _See also_ Spokane & I.E.R. Co. _v._ Whitley, 237 U.S. 487

(1915); Bigelow _v._ Old Dominion Copper Min. & S. Co., 225 U.S. 111

(1912); Brown _v._ Fletcher, 210 U.S. 82 (1908); Wisconsin _v._ Pelican

Ins. Co., 127 U.S. 265, 291 (1888); Huntington _v._ Attrill, 146 U.S.

657, 685 (1892). However a denial of credit, founded upon a mere

suggestion of want of jurisdiction and unsupported by evidence, violates

the clause. _See also_ Rogers _v._ Alabama, 192 U.S. 226, 231 (1904);

Wells Fargo & Co. _v._ Ford, 238 U.S. 503 (1915).

[27] _See_ Cooper _v._ Reynolds, 10 Wall. 308 (1870).

[28] 11 How. 165 (1850).

[29] Justice Johnson, dissenting in Mills _v._ Duryee, 7 Cr. 481 (1813),

had said: "There are certain eternal principles of justice which never

ought to be dispensed with, and which Courts of justice never can

dispense with but when compelled by positive statute. One of those is,

that jurisdiction cannot be justly exercised by a State over property

not within the reach of its process, or over persons not owing them

allegiance or not subjected to their jurisdiction, by being found within

their limits." Ibid. 486.

[30] 95 U.S. 714 (1878).

[31] McDonald _v._ Mabee, 243 U.S. 90, 92 (1917). _See also_ Wetmore

_v._ Karrick, 205 U.S. 141 (1907).

[32] Grover & B. Sewing-Mach. Co. _v._ Radcliffe, 137 U.S. 287 (1890).

_See also_ Brown _v._ Fletcher, 210 U.S. 82 (1908); Galpin _v._ Page, 18

Wall. 350 (1874); Old Wayne Mutual Life Asso. Co. _v._ McDonough, 204

U.S. 8 (1907).

[33] Reynolds _v._ Stockton, 140 U.S. 254 (1891).

[34] Renaud _v._ Abbott, 116 U.S. 277 (1886); Jaster _v._ Currie, 198

U.S. 144 (1905).

[35] Milliken _v._ Meyer, 311 U.S. 457, 463 (1940).

[36] Adam _v._ Saenger, 303 U.S. 59, 62 (1938).

[37] Hancock National Bank _v._ Farnum, 176 U.S. 640 (1900).

[38] Stacy _v._ Thrasher, use of Sellers, 6 How. 44, 58 (1848).

[39] Bigelow _v._ Old Dominion Copper Min. & S. Co., 225 U.S. 111

(1912).

[40] 18 How. 404 (1856).

[41] To the same effect is Connecticut Mut. Ins. Co. _v._ Spratley, 172

U.S. 602 (1899).

[42] Simon _v._ Southern Ky., 236 U.S. 115 (1915).

[43] Goldey _v._ Morning News, 156 U.S. 518 (1895); Riverside Mills _v._

Menefee, 237 U.S. 189 (1915).

[44] International Harvester Co. _v._ Kentucky, 234 U.S. 579 (1914);

Riverside Mills _v._ Menefee, 237 U.S. 189 (1915).

[45] International Harvester Co. _v._ Kentucky, 234 U.S. 579 (1914).

[46] Kane _v._ New Jersey, 242 U.S. 160 (1916); Hess _v._ Pawloski, 274

U.S. 352 (1927). Limited in Wuchter _v._ Pizzutti, 276 U.S. 13 (1928).

[47] 18 Wall. 457 (1874).

[48] _See_ 1 Black, Judgments Sec. 246 (1891).

[49] _See also_ Simmons _v._ Saul, 138 U.S. 439, 448 (1891). In other

words, the challenge to jurisdiction is treated as equivalent to the

plea _nul tiel record_, a plea which was recognized even in Mills _v._

Duryee as always available against an attempted invocation of the full

faith and credit clause. What is not pointed out by the Court, is that

it was also assumed in the earlier case that such a plea could always be

rebutted by producing a transcript, properly authenticated in accordance

with the act of Congress, of the judgment in the original case. _See

also_ Brown _v._ Fletcher, 210 U.S. 82 (1908); German Savings Society

_v._ Dormitzer, 192 U.S. 125, 128 (1904); Grover & Sewing-Mach. Co. _v._

Radcliffe, 137 U.S. 287, 294 (1890).

[50] Cheever _v._ Wilson, 9 Wall. 108 (1870).

[51] Andrews _v._ Andrews, 188 U.S. 14 (1903). _See also_ German Savings

Society _v._ Dormitzer, 192 U.S. 125 (1904).

[52] 201 U.S. 562 (1906). _See also_ Thompson _v._ Thompson, 226 U.S.

551 (1913).

[53] 181 U.S. 155, 162 (1901).

[54] 317 U.S. 287 (1942); 325 U.S. 226 (1945).

[55] 305 U.S. 32 (1938).

[56] 317 U.S. 287, 298-299 (1942).

[57] Ibid. at p. 302.

[58] 317 U.S. 287, 312, 315, 321 (1942).

[59] 325 U.S. 226, 229 (1945).

[60] Bell _v._ Bell, 181 U.S. 175 (1901); Andrews _v._ Andrews, 188 U.S.

14 (1903).

[61] Strong dissents were filed which have influenced subsequent

holdings. Among these was that of Justice Rutledge which attacked both

the consequences of the decision as well as the concept of

jurisdictional domicile on which it was founded.

"Unless 'matrimonial domicil,' banished in _Williams_ I [by the

overruling of Haddock _v._ Haddock], has returned renamed ['domicil of

origin'] in _Williams_ II, every decree becomes vulnerable in every

State. Every divorce, wherever granted, * * *, may now be reexamined by

every other State, upon the same or different evidence, to redetermine

the 'jurisdictional fact,' always the ultimate conclusion of 'domicil.'

* * *

"The Constitution does not mention domicil. Nowhere does it posit the

powers of the states or the nation upon that amorphous, highly variable

common-law conception. * * * No legal conception, save possibly

'jurisdiction,' * * *, affords such possibilities for uncertain

application. * * * Apart from the necessity for travel, [to effect a

change of domicile, the latter], criterion comes down to a purely

subjective mental state, related to remaining for a length of time never

yet defined with clarity. * * * When what must be proved is a variable,

the proof and the conclusion which follows upon it inevitably take on

that character. * * * [The majority have not held] that denial of credit

will be allowed, only if the evidence [as to the place of domicile] is

different or depending in any way upon the character or the weight of

the difference. The test is not different evidence. It is evidence,

whether the same or different and, if different, without regard to the

quality of the difference, from which an opposing set of inferences can

be drawn by the trier of fact 'not unreasonably.' * * * But * * * [the

Court] does not define 'not unreasonably.' It vaguely suggests a

supervisory function, to be exercised when the denial [of credit]

strikes its sensibilities as wrong, by some not stated standard. * * *

There will be no 'weighing' [of evidence], * * * only examination for

sufficiency."--(325 U.S. 226, 248, 251, 255, 258-259 (1945)).

No less disposed to prophesy undesirable results from this decision was

Justice Black in whose dissenting opinion Justice Douglas concurred.

"The full faith and credit clause, as now interpreted, has become a

disrupting influence. The Court in effect states that the clause does

not apply to divorce actions, and that States alone have the right to

determine what effect shall be given to the decrees of other States. If

the Court is abandoning the principle that a marriage [valid where made

is valid everywhere], a consequence is to subject people to bigamy or

adultery prosecutions because they exercise their constitutional right

to pass from a State in which they were validly married on to another

which refuses to recognize their marriage. Such a consequence violates

basic guarantees."

North Carolina's interest was to preserve a bare marital status as to

two persons who sought a divorce and two others who had not objected to

it. "It is an extraordinary thing for a State to procure a retroactive

invalidation of a divorce decree, and then punish one of its citizens

for conduct authorized by that decree, when it had never been challenged

by either of the people most immediately interested in it." The State

here did not sue to protect any North Carolina property rights nor to

obtain support for deserted families. "I would not permit such an

attenuated state interest to override the Full Faith and Credit Clause *

* *" (325 U.S. 226, 262-267 (1945)).

The unsettling effect of this decision was expressed statistically by

Justice Black as follows: "Statistics indicate that approximately five

million divorced persons are scattered throughout the forty-eight

States. More than 85% of these divorces were granted in uncontested

proceedings. Not one of this latter group can now retain any feeling of

security in his divorce decree. Ever present will be the danger of

criminal prosecution and harassment." Ibid. 262-263.

As to the conclusion that the Supreme Court as well as the State courts

should reach in like situations, Justice Black asserted that "until

Congress has commanded a different 'effect' for divorces granted on a

short sojourn within a State, we should stay our hands. * * * If we

follow that course, North Carolina cannot be permitted to disregard the

Nevada decrees without passing upon the 'faith and credit' which Nevada

itself would give to them under its own 'law or usage.' * * * For in

Nevada, even its Attorney General could not have obtained a cancellation

of the decree * * *." Ibid. 267, 268.

The reader should take note of the effect in some of the above opinions

to weigh competing interests against one another and the implication

that the court's relation to the full faith and credit clause is that of

an arbitral tribunal rather than of a court in the conventional sense of

a body whose duty is to maintain an established rule of law.

[62] 325 U.S. 279 (1945).

[63] Ibid. 281-283.

[64] 334 U.S. 541 (1948). _See also_ the companion case of Kreiger _v._

Kreiger, 334 U.S. 555 (1948).

[65] Esenwein _v._ Commonwealth, 325 U.S. 279, 280 (1945).

[66] Because the record, in his opinion, did not make it clear whether

New York "law" held that no "_ex parte_" divorce decree could terminate

a prior New York separate maintenance decree, or merely that no "_ex

parte_" decree of divorce of _another State_ could, Justice Frankfurter

dissented and recommended that the case be remanded for clarification.

Justice Jackson dissented on the ground that under New York law, a New

York divorce would terminate the wife's right to alimony; and if the

Nevada decree is good, it is entitled to no less effect in New York than

a local decree. However, for reasons stated in his dissent in the First

Williams Case, 317 U.S. 287, he would prefer not to give standing to

constructive service divorces obtained on short residence. 334 U.S. 541,

549-554 (1948). These two Justices filed similar dissents in the

companion case of Kreiger _v._ Kreiger, 334 U.S. 555, 557 (1948).

[67] 334 U.S. 343 (1948).

[68] 334 U.S. 378 (1948).--In a dissenting opinion filed in the case of

Sherrer _v._ Sherrer, but applicable also to the case of Coe _v._ Coe,

Justice Frankfurter, with Justice Murphy concurring, asserted his

inability to accept the proposition advanced by the majority that

"regardless of how overwhelming the evidence may have been that the

asserted domicile in the State offering bargain-counter divorces was a

sham, the home State of the parties is not permitted to question the

matter if the form of a controversy had been gone through."--334 U.S.

343, 377 (1948).

[69] 336 U.S. 674 (1949).--Of four Justices dissenting (Black, Douglas,

Rutledge, Jackson), Justice Jackson alone filed a written opinion. To

him the decision is "an example of the manner in which, in the law of

domestic relations, 'confusion now hath made his masterpiece,'" but for

the first Williams case and its progeny, the judgment of the Connecticut

court might properly have held that the Rice divorce decree was void for

every purpose because it was rendered by a State court which never

obtained jurisdiction of the nonresident defendant. "But if we adhere to

the holdings that the Nevada court had power over her for the purpose of

blasting her marriage and opening the way to a successor, I do not see

the justice of inventing a compensating confusion in the device of

divisible divorce by which the parties are half-bound and half-free and

which permits Rice to have a wife who cannot become his widow and to

leave a widow who was no longer his wife." Ibid. 676, 679, 680.

[70] Vermont violated the clause in sustaining a collateral attack on a

Florida divorce decree, the presumption of Florida's jurisdiction over

the cause and the parties not having been overcome by extrinsic evidence

or the record of the case. Cook _v._ Cook, 342 U.S. 126 (1951). The

Sherrer and Coe cases were relied upon. There seems, therefore, to be no

doubt of their continued vitality.

[71] Barber _v._ Barber, 323 U.S. 77, 84 (1944).

[72] Sistare _v._ Sistare, 218 U.S. 1, 11 (1910). _See also_ Barber _v._

Barber, 21 How. 582 (1859); Lynde _v._ Lynde, 181 U.S. 183, 186-187

(1901); Bates _v._ Bodie, 245 U.S. 520 (1918); Audubon _v._ Shufeldt,

181 U.S. 575, 577 (1901); Yarbrough _v._ Yarbrough, 290 U.S. 202 (1933);

Loughran _v._ Loughran, 292 U.S. 216 (1934).

[73] Griffin _v._ Griffin, 327 U.S. 220 (1946).

[74] Ibid. 228. An alimony case of a quite extraordinary pattern was

that of Sutton _v._ Leib. On account of the diverse citizenship of the

parties, who had once been husband and wife, the case was brought by the

latter in a federal court in Illinois. Her suit was to recover unpaid

alimony which was to continue until her remarriage. To be sure, she had,

as she confessed, remarried in Nevada, but the marriage had been

annulled in New York on the ground that the man was already married,

inasmuch as his divorce from his previous wife was null and void, she

having neither entered a personal appearance nor been personally served.

The Court, speaking by Justice Reed, held that the New York annulment of

the Nevada marriage must be given full faith and credit in Illinois, but

left Illinois to decide for itself the effect of the annulment upon the

obligations of petitioner's first husband. Sutton _v._ Leib, 342 U.S.

402 (1952).

[75] Halvey _v._ Halvey, 330 U.S. 610, 615 (1947).

[76] Johnson _v._ Muelberger, 341 U.S. 581 (1951).

[77] Tilt _v._ Kelsey, 207 U.S. 43 (1907); Burbank _v._ Ernst, 232 U.S.

162 (1914).

[78] Riley _v._ New York Trust Company, 315 U.S. 343 (1942).

[79] Brown _v._ Fletcher, 210 U.S. 82, 90 (1908). _See also_ Stacy _v._

Thrasher, Use of Sellers, 6 How. 44, 58 (1848); McLean _v._ Meek, 18

How. 16, 18, (1856).

[80] Tilt _v._ Kelsey, 207 U.S. 43 (1907). In the case of Borer _v._

Chapman, 119 U.S. 587, 599 (1887) involving a complicated set of facts,

it was held, in 1887, that a judgment in a probate proceeding, which was

merely ancillary to proceedings in another State and which ordered the

residue of the estate to be assigned to the legatee and discharged the

executor from further liability, did not prevent a creditor, who was not

a resident of the State in which the ancillary judgment was rendered,

from setting up his claim in the State probate court which had the

primary administration of the estate.

[81] Blodgett _v._ Silberman, 277 U.S. 1 (1928).

[82] Kerr _v._ Devisees of Moon, 9 Wheat. 565 (1824); McCormick _v._

Sullivant, 10 Wheat. 192 (1825); Clarke _v._ Clarke, 178 U.S. 186

(1900). The controlling principle of these cases is not confined to

proceedings in probate. A court of equity "not having jurisdiction of

the _res_ cannot affect it by its decree nor by a deed made by a master

in accordance with the decree." _See_ Fall _v._ Eastin, 215 U.S. 1, 11

(1909).

[83] Robertson _v._ Pickrell, 109 U.S. 608, 611 (1883). _See also_ Darby

_v._ Mayer, 10 Wheat. 465 (1825); Gasquet _v._ Fenner, 247 U.S. 16

(1918).

[84] Olmsted _v._ Olmsted, 216 U.S. 386 (1910).

[85] Hood _v._ McGehee, 237 U.S. 611 (1915).

[86] Harris _v._ Balk, 198 U.S. 215 (1905). _See also_ Chicago, R.I. &

Pac. Ry _v._ Sturm, 174 U.S. 710 (1899); King _v._ Cross, 175 U.S. 396,

399 (1899); Louisville & N.R. Co. _v._ Deer, 200 U.S. 176 (1906);

Baltimore & O.R. Co. _v._ Hostetter, 240 U.S. 620 (1916).

[87] Christmas _v._ Russell, 5 Wall. 290 (1866); Maxwell _v._ Stewart,

21 Wall. 71 (1875); Hanley _v._ Donoghue, 116 U.S. 1 (1885); Wisconsin

_v._ Pelican Ins. Co., 127 U.S. 265 (1888); Simmons _v._ Saul, 138 U.S.

439 (1891); American Express Co. _v._ Mullins, 212 U.S. 311 (1909).

[88] Fauntleroy _v._ Lum, 210 U.S. 230 (1908).

[89] Anglo-American Provision Co. _v._ Davis Provision Co., 191 U.S. 373

(1903).

[90] 133 U.S. 107 (1890).

[91] The Antelope, 10 Wheat. 66, 123 (1825). _See also_ Wisconsin _v._

Pelican Ins. Co., 127 U.S. 265 (1888).

[92] 146 U.S. 657 (1892). _See also_ Dennick _v._ R.R. 103 U.S. 11

(1881).

[93] Milwaukee County _v._ White (N.E.) Co., 296 U.S. 268 (1935). _See

also_ Moore _v._ Mitchell, 281 U.S. 18 (1930).

[94] Bank of Augusta _v._ Earle, 13 Pet. 519, 589-596 (1839). _See_

Kryger _v._ Wilson, 242 U.S. 171 (1916); Bond _v._ Hume, 243 U.S. 15

(1917).

[95] 19 How. 393, 460 (1857); Bonaparte _v._ Tax Court, 104 U.S. 592

(1882), where it was held that a law exempting from taxation certain

bonds of the enacting State did not operate extraterritorially by virtue

of the full faith and credit clause.

[96] Chicago & Alton R. Co. _v._ Wiggins Ferry, 119 U.S. 615, 622

(1887).

[97] Smithsonian Institution _v._ St. John, 214 U.S. 19 (1909). When, in

a State court, the validity of an act of the legislature of another

State is not in question, and the controversy turns merely upon its

interpretation or construction, no question arises under the full faith

and credit clause. _See also_ Western Life Indemnity Co. _v._ Rupp, 235

U.S. 261 (1914), citing Glenn _v._ Garth, 147 U.S. 360 (1893); Lloyd

_v._ Matthews, 155 U.S. 222, 227 (1894); Banholzer _v._ New York L. Ins.

Co., 178 U.S. 402 (1900); Allen _v._ Alleghany Co., 196 U.S. 458, 465

(1905); Texas & N.O.R. Co. _v._ Miller, 221 U.S. 408 (1911). _See also_

National Mut. Bldg. & Loan Asso. _v._ Brahan, 193 U.S. 635 (1904);

Johnson _v._ New York Life Ins. Co., 187 U.S. 491, 495 (1903);

Pennsylvania F. Ins. Co. _v._ Gold Issue Min. & Mill. Co., 243 U.S. 93

(1917).

[98] Alaska Packers Asso. _v._ Industrial Acci. Commission, 294 U.S. 532

(1935); Bradford Electric Light Co. _v._ Clapper, 286 U.S. 145 (1932).

[99] Dennick _v._ R.R., 103 U.S. 11 (1881) was the first of the

so-called "Death Act" cases to reach the Supreme Court. _See also_

Stewart _v._ B.& O.R. Co., 168 U.S. 445 (1897). Even today the

obligation of a State to furnish a forum for the determination of death

claims arising in another State under the laws thereof appears to rest

on a rather precarious basis. In Hughes _v._ Fetter, 341 U.S. 609

(1951), the Court, by a narrow majority, held invalid under the full

faith and credit clause a statute of Wisconsin which, as locally

interpreted, forbade its courts to entertain suits of this nature; and

in First National Bank _v._ United Air Lines, 342 U.S. 396 (1952), a

like result was reached as to an Illinois statute. In both cases the

same four Justices dissented.

[100] 119 U.S. 615 (1887).

[101] Northern Pac. R.R. _v._ Babcock, 154 U.S. 190 (1894); Atchison, T.

& S.F.R. Co. _v._ Sowers, 213 U.S. 55, 67 (1909).

[102] Glenn _v._ Garth, 147 U.S. 360 (1893).

[103] Tennessee Coal Co. _v._ George, 233 U.S. 354 (1914).

[104] Klaxon Co. _v._ Stentor, 313 U.S. 487 (1941); John Hancock Mut.

Life Ins. Co. _v._ Yates, 299 U.S. 178 (1936) distinguished.

[105] Modern Woodmen of Am. _v._ Mixer, 267 U.S. 544 (1925).

[106] Converse _v._ Hamilton, 224 U.S. 243 (1912); Selig _v._ Hamilton,

234 U.S. 652 (1914); Marin _v._ Augedahl, 247 U.S. 142 (1918).

[107] Broderick _v._ Rosner, 294 U.S. 629 (1935). _See also_ Thormann

_v._ Frame, 176 U.S. 350, 356 (1900); Reynolds _v._ Stockton, 140 U.S.

254, 264 (1891).

[108] Hancock Nat. Bank. _v._ Farnum, 176 U.S. 640 (1900).

[109] 237 U.S. 531 (1916); followed in Modern Woodmen of Am. _v._ Mixer,

267 U.S. 544 (1925).

[110] 305 U.S. 66, 75, 79 (1938).

[111] 331 U.S. 586, 588-589, 637 (1947).

[112] New York Life Ins. Co. _v._ Head, 234 U.S. 149 (1914); Aetna Life

Ins. Co. _v._ Dunken, 266 U.S. 389 (1924).

[113] 193 U.S. 635 (1904).

[114] National Mutual B. & L. Asso. _v._ Brahan, 193 U.S. 635 (1904).

[115] New York Life Ins. Co. _v._ Cravens, 178 U.S. 389 (1900). _See

also_ American Fire Ins. Co. _v._ King Lumber Co., 250 U.S. 2 (1919).

[116] Griffin _v._ McCoach, 313 U.S. 498 (1941).

[117] 314 U.S. 201, 206-208 (1941). However, a decree of a Montana

Supreme Court, insofar as it permitted judgment creditors of a dissolved

Iowa surety company to levy execution against local assets to satisfy

judgment, as against title to such assets of the Iowa insurance

commissioner as statutory liquidator and successor to the dissolved

company, was held to deny full faith and credit to the statutes of

Iowa.--Clark _v._ Willard, 292 U.S. 112 (1934).

[118] 324 U.S. 154, 159-160 (1945).

[119] Bradford Electric Co. _v._ Clapper, 286 U.S. 145, 158 (1932).

[120] The Court had earlier remarked that "workmen's compensation

legislation rests upon the idea of status, not upon that of implied

contract." Cudahy Packing Co. _v._ Parramore, 263 U.S. 418, 423 (1923).

In contrast to the above cases, _see_ Kryger _v._ Wilson, 242 U.S. 171

(1916), where it was held that the question whether the cancellation of

a land contract was governed by the _lex rei sitae_ or the _lex loci

contractus_ was purely a question of local common law; _also_ Bond _v._

Hume, 243 U.S. 15 (1917).

[121] Pacific Ins. Co. _v._ Comm'n., 306 U.S. 493, 497, 503-504 (1939).

[122] 320 U.S. 430 (1943).

[123] Industrial Comm'n. _v._ McCartin, 330 U.S. 622 (1947).

[124] Cardillo _v._ Liberty Mutual Co., 330 U.S. 469 (1947).

[125] Reviewing some of the cases treated in this section, a writer in

1925 said: "It appears, then, that the Supreme Court has quite

definitely committed itself to a program of making itself, to some

extent, a tribunal for bringing about uniformity in the field of

conflicts * * * although the precise circumstances under which it will

regard itself as having jurisdiction for this purpose are far from

clear." E.M. Dodd, The Power of the Supreme Court to Review State

Decisions in the Field of Conflict of Laws (1926), 39 Harv. L. Rev.

533-562. It can hardly be said that the law has been subsequently

clarified on this point.

[126] Walter W. Cook, The Power of Congress Under the Full Faith and

Credit Clause (1919), 28 Yale L.J. 430.

[127] Cooper _v._ Newell, 173 U.S. 555, 567 (1899). _See also_ Wisconsin

_v._ Pelican Ins. Co., 127 U.S. 265, 291 (1888); Swift _v._ McPherson,

232 U.S. 51 (1914); Pennington _v._ Gibson, 16 How. 65, 81 (1854);

Cheever _v._ Wilson, 9 Wall. 108, 123 (1870); Baldwin _v._ Iowa State

Traveling Men's Asso., 283 U.S. 522 (1931); American Surety Co. _v._

Baldwin, 287 U.S. 156 (1932); Sanders _v._ Armour Fertilizer Works, 292

U.S. 190 (1934).

[128] Milwaukee County _v._ White (M.E.) Co., 296 U.S. 268 (1935).

[129] Equitable L. Assur. Soc. _v._ Brown, 187 U.S. 308 (1902). _See

also_ Gibson _v._ Lyon, 115 U.S. 439 (1885).

[130] Embry _v._ Palmer, 107 U.S. 3, 9 (1883). _See also_ Northern

Assur. Co. _v._ Grand View Bldg. Asso., 203 U.S. 106 (1906); Atchison,

T. & S.F.R. Co. _v._ Sowers, 213 U.S. 55 (1909); Knights of Pythias _v._

Meyer, 265 U.S. 30, 33 (1924); Louisville & N.R. Co. _v._ Central

Stockyards Co., 212 U.S. 132 (1909); West Side Belt R. Co. _v._

Pittsburgh Constr. Co., 219 U.S. 92 (1911).

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