ment of such a judgment. (Pennoyer v. Neff, 95 U. S. 714; 24 L. ed. 565.)"

Applying these principles to the case at bar the court held, in the first place, that a suit for divorce is essentially an action in personam and not in rem; and, in the second place, that, by wrongfully deserting his wife, the domicile of the wife, contrary to the general rule, did not continue that of the husband when he removed to Connecticut, but continued to be in New York, the State of the original matrimonial domicile. Therefore, it was held that the Connecticut courts, never having obtained personal service upon the wife, and the action not being in rem, no decree could be rendered against her that would affect her status anywhere except in the State where the judgment was rendered. In effect, it was held that in order to render a decree of divorce. that would have to be recognized by the courts of other States, a court must have jurisdiction of both of the parties, that is, of the complainant by 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 where the defendant, having had good reason for separating from the complainant, has obtained or retained a domicile in another State.

In the Atherton case, it was argued that the constructive service upon the wife had been sufficient to give the court jurisdietion because the wife had not been able to obtain a domicile apart from her husband by wrongfully separating herself from her husband. In the case at bar, however, the complainant had deserted the defendant and matrimonial domicile, and, therefore, she had been entitled to retain her domicile in New York, after the removal of her husband to Connecticut.

Four justices dissented. In the opinion concurred in by them it was argued that the case was governed by the doctrines laid down in Atherton v. Atherton. In that case it was held that jurisdiction over a domiciled complainant and constructive service over the defendant were sufficient to support a decree which was entitled to full force and credit in other States. In the case at bar

the domicile of the complainant was a bona fide one, and, it was argued, the facts that it was or had been a matrimonial domicile or that the complainant had wrongfully left his wife were irrelevant. The fact that the Connecticut court had granted the divorce was, or should have been, it was argued, conclusive upon the New York courts that the defendant had deserted the complainant and not vice versa. It was denied that a proceeding for divorce is a personal one (though a suit in personam is often incorporated with it). In short, then, the bona fide domicile of the complainant being granted, and constructive service such as the lex fori demanded being had, and decree for divorce actually rendered, the merits of the case, that is, as to which of the parties was responsible for the separation, the dissenting justices argued, were no longer open for examination, and hence the question as to where was or had been the matrimonial domicile became irrelevant.

The decision of the Supreme Court in Haddock v. Haddock undoubtedly came as a great surprise to lawyers generally, and its correctness has been questioned by many.27

It is possible that the assertion made in the dissenting opinion that the decision of the Connecticut court that the wife had deserted the husband, and not he her, should have been held conclusive of that fact in the New York courts, may be met by the argument of Justice Peckham's dissenting opinion in Atherton v. Atherton. This was that the court in which the full force and credit of a decree of divorce of a court of another State is demanded, may exercise its own judgment as to the rightfulness or wrongfulness of the separation of the defendant from the complainant in order to determine whether or not such defendant had been able to obtain a domicile apart from the complainant, and, therefore, whether or not such defendant was properly beyond the jurisdiction of the court rendering the decree; that, in other words, the decree of such court is not conclusive upon this point as it goes to a question of jurisdiction.

27 For acute, and, to the author's mind, destructive criticisms of the position assumed by the majority of the court in Haddock v. Haddock, see articles by J. H. Beale, Jr., in the Harvard Law Review, XIX, 586, and by H. A. Bigelow in The Greenbag, XVIII, 348.

But in other respects it does appear that the principles laid down by the majority of the court in the Haddock case are open to objection. Especially open to objection are the following statements: that a suit for divorce is to be treated as a proceeding in personam; that the fact that the domicile of the complainant was not the original matrimonial domicile is important; and, finally, that a decree of divorce which though not necessarily valid in other jurisdictions is valid in the State where rendered, and that thus, the husband, though legally divorced in one State, is still married in another State. The author is, therefore, inclined to believe that either these doctrines will ultimately be overruled, or, if not, that they will be strictly limited in their application to the precise facts of the Haddock case.

CHAPTER XIII.

INTERSTATE RELATIONS: THE COMITY CLAUSE.

§ 99. Privileges and Immunities.

Article IV, Section 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, so 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 into 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.2 Indeed, without some provision of the kind, removing from the citizens of each State the disabilities of alienage in the other, and giving them equality of privilege 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."

In the early case in the federal Circuit Court of Corfield v. Coryell, as has been earlier noted, Justice Washington attempted

18 Wall. 168; 19 L. ed. 357.

2 Citing Lemmon v. The People of N. Y., 20 N. Y. 607.

34 Wash. C. C. 371.

a still more particular, though not an exhaustive, enumeration of the privileges and immunities that are protected from state discrimination.*

Much of Justice Washington's language was obiter, the determination of the enumerated privileges and immunities not being necessarily involved in the case. Many of these rights have, however, in subsequent cases, been specifically passed upon and sustained, and it is believed that there is not one of them that would not be declared by the Supreme Court, in a proper case, to be beyond the discriminating power of the States. Thus in Ward v. Maryland it was held that a State might not levy a license tax upon temporary residents, as a condition precedent to allowing them to sell certain goods. So also the granting of licenses to trade cannot be limited to residents. Nor can a State, except by proper quarantine and other police regulations, deny to citizens of other States free ingress and egress, or the right to export or import property.8

In Ward v. Maryland the court say: "Attempt will not be made to define the words 'privileges and immunities,' or to specify the rights which they are intended to secure and protect, beyond what may be necessary to the decision of the case before the court. Beyond doubt, those words are words of very comprehensive meaning, but it will be sufficient to say that the clause plainly and unmistakably secures and protects the right of a citizen of one State to pass into any other State of the Union, for the purpose of engaging in lawful commerce, trade, or business, without molestation, to acquire personal property, to take and hold real estate, to maintain actions in the courts of the States, and to be exempt from any higher taxes or excises than are im

4 See ante, p. 179.

5 See especially two articles by W. S. Meyers in Michigan Law Review, I, pp. 286, 364, entitled "The Privileges and Immunities of Citizens in the Several States."

612 Wall. 418; 20 L. ed. 449.

In re Wilson, 15 Fed. 511.

8 This last is unconstitutional as well by the commerce clause of the Constitution.