was based, and refuse to give full faith and credit to the judgment if it be found that these facts were such as would not have created a legal claim under the law of the State in which enforcement of the judgment thereupon is being sought. In this case the plaintiff, a citizen of Mississippi, obtained in Missouri a judg ment against another citizen of Mississippi upon whom personal service had been obtained while he was temporarily in Missouri, in a suit brought upon a contract in cotton futures entered into in Mississippi in which State such futures were prohibited by law. The case finally reaching the federal Supreme Court, that tribunal held that, the Missouri court having had jurisdiction to render a personal judgment against the defendant, the full faith and credit clause obligated the courts of Mississippi to give to the judgment full force and credit. The court admitted that in the opinion in Wisconsin v. Pelican Insurance Co." language was used which might imply a right in a court to examine as to the original basis of the foreign judgment sued upon, but these words were declared obiter, and the doctrine of that case limited to the precise point decided.

In a dissenting opinion in Fauntleroy v. Lum, concurred in by four justices, it was argued that in Wisconsin v. Pelican Insurance Co. the court had held that the full faith and credit clause did not preclude an examination into the basis of the foreign judgment, and rightfully so, inasmuch as at the time of the adoption of the Constitution the rules of comity universally prevailing did not require a sovereignty to give effect to a judgment of another sovereignty when to do so would be to enforce a contract illegal and prohibited by the local law, when both the contract and all the acts done in pursuance thereof had taken place in the State where enforcement of the judgment was sought.

In this dissent reliance is also placed on Anglo-American Provision Co. v. Davis Provision Co.18 in which it was held that a judgment rendered in Illinois against one corporation in favor of another, both corporations being foreign to New York, was not

17 127 U. S. 265; 8 Sup. Ct. Rep. 1370; 32 L. ed. 239. 18 191 U. S. 373; 24 Sup. Ct. Rep. 92; 48 L. ed. 225.

enforceable in the courts of New York, because the statutes of that State did not give the court jurisdiction over such an action as that in which the enforcement was sought. The Supreme Court say: "The Constitution does not require the State of New York to give jurisdiction to the [state] Supreme Court against its will. If the plaintiff can find a court into which it has a right to come, then the effect of the judgment is fixed by the Constitution and the act in pursuance of it which Congress has passed. But the Constitution does not require the State to provide such a court. If the State does provide a court to which its citizens may resort in a certain class of cases, it may be that citizens of other States of the Union also would have a right to resort to it in cases of the same class. But that right even when the suit was upon a judg ment of another State would not rest on the first section of article IV, . . . but would depend on the second section entitling the citizens of each State to all privileges and immunities of citizens in the several States."

We are unable to give such State can legislate except with One State cannot exempt propEach State is independent of all The debt was registered,

It has been held that the "full faith and credit clause does not operate to give effect in another State to a state statute exempting from taxation the evidence of the state debt so as to defeat the collection of a tax levied by that other State upon portions of the debt held by persons there residing. This was decided by Bonaparte v. Tax Court,19 the court saying: "It is insisted that the immunity asked for arises from Article IV, Section 1, of the Constitution. an effect to this provision. No reference to its own jurisdiction. erty from taxation in another. the others in this particular. but that did not prevent it from following the person of its owner. The debt still remained a chose in action, with all the incidents which pertain to that species of property. It was 'movable' like other debts, and had none of the attributes of 'immovability.' The owner may be compelled to go to the debtor State to get what is owing to him, but that does not affect his citizenship or his 19 104 U. S. 592; 26 L. ed. 845.

domicile. The debtor State is in no respect his sovereign, neither has it any of the attributes of sovereignty as to the debt it owes, except such as belong to it as a debtor. All the obligations which rest on the holder of the debt as a resident of the State in which he dwells, still remain, and as a member of society he must contribute his just share toward supporting the government whose protection he claims and to whose control he has submitted himself."

§ 98. Marriage and Divorce.

The force and meaning of the "full faith and credit" clause of the Constitution has been especially worked out in connection with the subject of marriage and divorce and it will, therefore, be proper to state briefly the positions that the Supreme Court has taken upon this point.

Generally speaking, it has been held in the United States that jurisdiction to grant a divorce depends upon the domicile of the complainant. With hardly an exception, all of the States of the Union recognize the possibility of the wife obtaining a domicile separate from that of her husband. Until recently, however, a few States (among them New York) held that where the husband and wife were domiciled in different States, decrees of divorce granted in either State would not have to be given full faith and credit in the other States. The unconstitutionality of this doctrine was, however, declared by the United States Supreme Court in Atherton v. Atherton.20

20 181 U. S. 155; 21 Sup. Ct. Rep. 544; 45 L. ed. 794.

In all European countries, and in Spanish America, the possibility of the wife (who has not obtained a judicial separation) having a nationality, domicile, or residence apart from her husband is not recognized. A few of the Protestant States of Germany, and possibly other States, permit a wife living apart from her husband to secure naturalization and then to get a divorce, but most States refuse to recognize such a divorce as valid. De Bauffremont v. De Bauffremont, Dalloz, 1878, II, I, 1878, 1, 201; 2 Beale's Cases on Conflict of Laws, 99 (France); In re W's Marriage, 25 Clunet, 385; 1 Beale's Cas. 428 (Austria). In England the courts now recognize the possibility of a wife deserted by her husband obtaining a divorce in the State where they last lived together, irrespective of his present domicile. Armytage v. Armytage,

One State of the Union is, of course, not obliged to recognize the validity of a divorce granted by a court of another State unless that State had jurisdiction to grant it, a jurisdiction which, as just said, is held to depend upon the domicile of one or both of the parties. No valid decree of divorce can, therefore, be granted, on constructive service, by the courts of a State in which neither party is domiciled.21

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.22 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.23

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 control in an extraterritorial manner questions of property rights, custody of children and the payment of alimony.

1898, Pr. 179. In most European States a divorce will be recognized only if obtained in the country to which the parties owe allegiance. In England the divorce will be recognized only when obtained at the domicile of the husband. The English court has recently recognized an American divorce obtained at the wife's domicile, where the husband was domiciled in another American State which recognized the divorce. Armtage v. Attorney-General, 22 T. L. R. 306. The court, however, took occasion to reiterate the general principle that "it is the husband's domicile which decides the tribunal to try the cause. In Scotland and the other countries governed by the Roman-Dutch law there is no requirement whatever of nationality or domicile, but residence of the parties for a certain time within the State is sufficient. Weatherley v. Weatherley, Transvaal, Prov. Rep. 66; 1 Beale's Cas. 420." This note is substantially quoted from the article "Constitutional Protection for Decrees of Divorce," by Joseph H. Beale, Jr., in the Haward Law Review, June, 1906 (XIX, 589).

21 Bell v. Bell, 181 U. S. 175; 21 Sup. Ct. Rep. 551; 45 L. ed. 804. 22 Andrews v. Andrews, 188 U. S. 14; 23 Sup. Ct. Rep. 237; 47 L. ed. 366. 23 Lynde v. Lynde, 181 U. S. 183; 21 Sup. Ct. Rep. 555; 45 L. ed. 810.

Until the decision in 1906 of the case of Haddock v. Haddock,24 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 had been thought, had been determined in Atherton v. Atherton.25

In Atherton v. Atherton a divorce had been granted, on the ground of desertion, to a husband in Kentucky whose wife had left him and taken up residence in New York. She had not appeared in the suit, but notice had been served upon her by mail. The highest court of New York refused to give effect to this decree upon the ground that the wife had been forced to leave her husband because of cruel treatment, had thereby been entitled to obtain a domicile apart from him, and had not appeared or been personally served with process. The Supreme Court of the United States, however, reversed this holding of the New York court, saying that, inasmuch as the Kentucky court had jurisdiction of the complainant, and constructive service had been had upon the defendant, its decree had to be recognized as conclusively establishing not only the fact of the divorce, but that the wife had abandoned her husband. The opinion declared: "We are of opinion that the undisputed facts show that such efforts were required by the statutes of Kentucky, and were actually made to give the wife actual notice of the suit in Kentucky as to make the decree of the court there, granting a divorce upon the grounds that she had abandoned her husband, as binding on her as if she had been served with notice in Kentucky, or had voluntarily appeared in the suit. Binding her to the full extent, it established beyond contradiction, that she had abandoned her husband, and precludes her from asserting that she left him on account of his cruel treatment. To hold otherwise would make it difficult, if not impossible, for the husband to obtain a divorce for the cause alleged, if it actually existed. The wife not being within the

24 201 U. S. 562; 26 Sup. Ct. Rep. 525; 50 L. ed. 867. 25 181 U. S. 155; 21 Sup. Ct. Rep. 544; 45 L. ed. 794.