Where the plaintiff has not a bona fide domicile in the State, a court cannot render a decree binding in other States even if the non-resident defendant voluntarily enters a personal appearance. Of course, however, there is nothing to prevent courts of one State from recognizing, if they see fit, a decree thus granted in another State. The provision of the Federal Constitution is brought into force only when State courts refuse to grant full faith and credit. 10

Finally it should be said that in all cases where the defendant has not been summoned within the State, or has not voluntarily appeared, the decree that is rendered has no extraterritorial force except as dissolving the matrimonial status. It cannot settle in an extraterritorial manner questions of property rights, custody of children and the payment of alimony.

Until the decision in 1906 of Haddock v. Haddock,11 it had been supposed that a decree of divorce granted the husband or wife by a court of the State in which he or she was domiciled, if the notice of the beginning of the suit required by the local law had been served actually or constructively upon the other party, was in all cases valid in other States. This, it has been thought, had been determined in Atherton v. Atherton. In the Haddock case, however, the Supreme Court held that a State court was not obligated to recognize a divorce obtained in another State which was the then domicile of the husband, who was the complainant, when the wife had continued to reside in another State which was the original matrimonial domicile, and had received only constructive notice..

Andrews v. Andrews, 188 U. S. 14; 23 Sup. Ct. Rep. 237; 47 L. ed. 366.

10 Lynde v. Lynde, 181 U. S. 183; 21 Sup. Ct. Rep. 555; 45 L. ed. 810.

11 201 U. S. 562; 26 Sup. Ct. Rep. 525; 50 L. ed. 867.

In effect, the court held that a suit for divorce is essentially an action in personam; that, where, as in the case at bar, the husband had wrongfully deserted his wife she could retain her domicile separate from that of her husband, and that, therefore, the decree rendered without personal service upon her need not be recognized outside of the State where pronounced. In result, the law would then seem to be that, in order to render a decree of divorce which must be recognized by the courts of the other States, a court must have jurisdiction of both parties-of the complainant by a bona fide residence creating a domicile, and of the defendant either by domicile in the State, by personal service, or actual appearance, or by constructive service. But that this constructive service cannot be relied upon in cases wherein the defendant having had good reason for separating from the complainant, has obtained or retained a domicile in another State. It is to be confessed, however, that the law upon this subject has been unsettled by the Haddock case, so that a certain statement of its status is difficult if not impossible.12

12 See Harvard Law Review, XIX, 586; and the Greenbag, XVIII, 348.

CHAPTER VIII

INTERSTATE RELATIONS; THE COMITY CLAUSE

Privileges and immunities

Article IV, § 2 of the Constitution declares that "the citizens of each State shall be entitled to all privileges and immunities of citizens in the several States." This provision has for its general aim the prevention of arbitrary and vexatious discriminations by the several States in favor of their own citizens and against the citizens of other States. "It was undoubtedly the object of the clause in question," say the Supreme Court in Paul v. Virginia,1 "to place the citizens of each State upon the same footing with citizens of other States, as far as the advantages resulting from citizenship in those States are concerned. It relieves them from the disabilities of alienage in other States; it inhibits discriminating legislation against them by other States; it gives them the right of free ingress in other States, and egress from them; it insures to them in other States the same freedom possessed by the citizens of those States in the acquisition and enjoyment of property and in the pursuit of happiness; and it secures to them in other States the equal protection of their laws. It has been justly said that no provision in the Constitution has tended so strongly to constitute the citizens of the United States one people as this. Indeed, without some provision of the kind, removing from the citizens of each State the disabilities 18 Wall. 168; 19 L. ed. 357.

of alienage in the other, and giving them equality of privileges with citizens of those States, the Republic would have constituted little more than a league of States; it would not have constituted the Union which now exists."

2

Political privileges

The interstate comity clause of the Federal Constitution does not compel the several States to grant to resident citizens of the other States immediately upon their entrance into the State the political privileges extended to their own citizens. This the Supreme Court has held from the very beginning and has recently reaffirmed in the case of Blake v. McClung.3

Finally, it is to be said, the several States may impose upon non-residents such special limitations and obligations as are, in aim and effect, not discriminative but reasonably necessary for the protection of their own citizens from fraud, disease or injury of any sort. Thus, as an example, though the citizens of other States may not be forbidden to sue in the courts of the State, they may be required to give bonds for costs not exacted of residents.*

In McCready v. Virginia 5 the important limitation of the clause was established that a citizen of one State is not, of constitutional right, entitled to share upon equal terms with the citizens of another State those proprietary interests which may be said to belong generally to that

2 The courts have never attempted a complete list of the privileges and immunities guaranteed by this clause, but for partial enumerations see Corfield v. Coryell, 4 Wash. C. C. 371; and Ward v. Maryland, 12 Wall. 418, 20 L. ed. 449. See also two articles by W. J. Meyers in Michigan Law Review, I, 286, 364, entitled "The Privileges and Immunities of Citizens in the Several States."

* 172 U. S. 239; 19 Sup. Ct. Rep. 165; 43 L. ed. 432.

4 Chemung Canal Bank v. Lowery, 93 U. S. 72; 23 L. ed. 806. 594 U. S. 391; 24 L. ed. 248.

State as such. This case involved the right of cultivating oysters on beds of the tide waters of the State. The court in its opinion says "We think we may safely hold that the citizens of one State are not invested by this clause of the Constitution with any interest in the common property of the citizens of another State."

Privileges of one State not carried into other States

The comity clause does not entitle a citizen within his own State to privileges and immunities which may be granted by other States to their citizens. In other words, it does not require that when a right is granted by any one of the States of the Union to its citizens, it thereby becomes a right which all the other States must grant to their citizens.

It also scarcely needs argument that under this special privileges clause a citizen of one State residing, or having legal interests in another State, may not lay claim to privileges and immunities which his own State grants him, but which the other State does not grant to its citizens.6

Corporations not citizens within the meaning of the comity clause

In Paul v. Virginia the doctrine, never since questioned, was laid down that a corporation is not a citizen within the meaning of the term as used in the comity clause. Inasmuch as a corporation is the mere creation of local law, the court declare that it can have no legal existence, or right to do business, beyond the limits of the sovereignty, by which it was created. In other words, the interstate comity clause of the Federal Constitution does not necessitate the recognition by the several States of corporations

Paul v. Virginia, 8 Wall. 168; 19 L. ed. 357.