871

ARTICLE IV 

STATES’ RELATIONS 

CONTENTS

Page

Section 1. Full Faith and Credit ............................................................................................... 873 

Sources and Effect of This Provision ........................................................................................ 873

Private International Law ................................................................................................. 873 

Judgments: Effect to Be Given in Forum State ...................................................................... 874 

In General ........................................................................................................................... 874 

Jurisdiction: A Prerequisite to Enforcement of Judgments ............................................ 879 

Judgments in Personam ............................................................................................. 879 

Service on Foreign Corporations ................................................................................ 880 

Service on Nonresident Motor Vehicle Owners ........................................................ 881 

Judgments in Rem ...................................................................................................... 881 

Divorce Decrees: Domicile as the Jurisdictional Prerequisite ........................................ 882 

Divorce Suit: In Rem or in Personam; Judicial Indecision ...................................... 883 

Williams I and Williams II ......................................................................................... 884 

Cases Following Williams II ....................................................................................... 886 

Claims for Alimony or Property in Forum State ...................................................... 888 

Decrees Awarding Alimony, Custody of Children .................................................... 890 

Status of the Law ........................................................................................................ 892 

Other Types of Decrees ...................................................................................................... 893

Probate Decrees ........................................................................................................... 893 

Adoption Decrees ......................................................................................................... 894 

Garnishment Decrees .................................................................................................. 894 

Penal Judgments: Types Entitled to Recognition ............................................................ 895 

Fraud as a Defense to Suits on Foreign Judgments ....................................................... 895 

Recognition of Rights Based Upon Constitutions, Statutes, Common Law .......................... 896 

Development of the Modern Rule ...................................................................................... 896 

Transitory Actions: Death Statutes ........................................................................... 898 

Actions Upon Contract ................................................................................................ 899 

Stockholder Corporation Relationship ....................................................................... 900 

Fraternal Benefit Society: Member Relationship ..................................................... 900 

Insurance Company, Building and Loan Association: Contractual Relationship .. 901 

Workers’ Compensation Statutes ............................................................................... 903 

Full Faith and Credit and Statutes of Limitation .................................................... 905 

Full Faith and Credit: Miscellany ............................................................................................ 905

Full Faith and Credit in Federal Courts .......................................................................... 905 

Evaluation of Results Under Provision ............................................................................ 906 

Scope of Powers of Congress Under Provision ........................................................................ 908 

Judgments of Foreign States .................................................................................................... 908 

Section 2. Interstate Comity ..................................................................................................... 909 

Clause 1. State Citizenship: Privileges and Immunities ................................................. 909 

Origin and Purpose ..................................................................................................... 909 

How Implemented ....................................................................................................... 912 

Citizens of Each State ................................................................................................. 912 

Corporations ......................................................................................................... 913 

872 ART. IV—STATES’ RELATIONS 

Section 2. Interstate Comity—Continued 

Clause 1. State Citizenship: Privileges and Immunities—Continued 

All Privileges and Immunities of Citizens in the Several States ............................ 914 

Discrimination in Private Rights ............................................................................... 917 

Access to Courts .......................................................................................................... 917 

Taxation ....................................................................................................................... 918 

Clause 2. Interstate Rendition .......................................................................................... 920 

Duty to Surrender Fugitives from Justice ................................................................ 920 

Fugitive from Justice Defined ............................................................................. 921 

Procedure for Removal ......................................................................................... 922 

Trial of Fugitives After Removal ........................................................................ 923 

Clause 3. Fugitives from Labor ......................................................................................... 923 

Section 3. Admission of New States to Union; Property of United States ............................ 924 

Clause 1. Admission of New States to Union ................................................................... 924 

Doctrine of the Equality of States .............................................................................. 924 

Judicial Proceedings Pending on Admission of New States ............................. 928 

Property Rights of States to Soil Under Navigable Waters ............................. 929 

Clause 2. Property of the United States ........................................................................... 930 

Property and Territory: Powers of Congress ............................................................. 930 

Methods of Disposing of Property ....................................................................... 930 

Public Lands: Federal and State Powers Over .................................................. 931 

Territories: Powers of Congress Over ................................................................. 933 

Section 4. Obligations of United States to States ................................................................... 934 

Guarantee of Republican Form of Government ............................................................... 934 

873

1 Clark v. Graham, 19 U.S. (6 Wheat.) 577 (1821), is an early case in which the 

Supreme Court enforced this rule. 

STATES’ RELATIONS 

ARTICLE IV 

SECTION 1. Full Faith and Credit shall be given in each 

State to the public Acts, Records, and judicial Proceedings of 

every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records, and Proceedings shall be proved, and the Effect thereof. 

SOURCES AND EFFECT OF THIS PROVISION 

Private International Law 

The historical background of this section is furnished by that 

branch of private law which is variously termed ‘‘private international law,’’ ‘‘conflict of laws,’’ and ‘‘comity.’’ This comprises a 

body of rules, based largely on the writings of jurists and judicial 

decisions, in accordance with which the courts of one country, or 

‘‘jurisdiction,’’ will ordinarily, in the absence of a local policy to the 

contrary, extend recognition and enforcement to rights claimed by 

individuals by virtue of the laws or judicial decisions of another 

country or ‘‘jurisdiction.’’ Most frequently applied examples of these 

rules include the following: the rule that a marriage which is good 

in the country where performed (lex loci) is good elsewhere; the 

rule that contracts are to be interpreted in accordance with the 

laws of the country where entered into (lex loci contractus) unless 

the parties clearly intended otherwise; the rule that immovables 

may be disposed of only in accordance with the law of the country 

where situated (lex rei sitae); 1 the converse rule that chattels adhere to the person of their owner and hence are disposable by him, 

even when located elsewhere, in accordance with the law of his 

domicile(lex domicilii); the rule that regardless of where the cause 

arose, the courts of any country where personal service of the defendant can be effected will take jurisdiction of certain types of personal actions, hence termed ‘‘transitory,’’ and accord such remedy 

as the lex fori affords. Still other rules, of first importance in the 

present connection, determine the recognition which the judgments 

874 ART. IV—STATES’ RELATIONS 

Sec. 1—Full Faith and Credit 

2 Congressional legislation under the Full Faith and Credit Clause, so far as it 

is pertinent to adjudication hereunder, is today embraced in 28 U.S.C. §§ 1738-1739. 

See also 28 U.S.C. §§ 1740-1742. 

of the courts of one country shall receive from those of another 

country.

So even had the States of the Union remained in a mutual relationship of entire independence, private claims originating in one 

often would have been assured recognition and enforcement in the 

others. The Framers felt, however, that the rules of private international law should not be left among the States altogether on a 

basis of comity and hence subject always to the overruling local 

policy of the lex fori but ought to be in some measure at least 

placed on the higher plane of constitutional obligation. In fulfillment of this intent the section now under consideration was inserted, and Congress was empowered to enact supplementary and 

enforcing legislation. 2

JUDGMENTS: EFFECT TO BE GIVEN IN FORUM STATE 

In General 

Article IV, § 1, has had its principal operation in relation to 

judgments. Embraced within the relevant discussions are two principal classes of judgments. First, those in which the judgment involved was offered as a basis of proceedings for its own enforcement outside the State where rendered, as for example, when an 

action for debt is brought in the courts of State B on a judgment 

for money damages rendered in State A; second, those in which the 

judgment involved was offered, in conformance with the principle 

of res judicata, in defense in a new or collateral proceeding growing 

out of the same facts as the original suit, as for example, when a 

decree of divorce granted in State A is offered as barring a suit for 

divorce by the other party to the marriage in the courts of State 

B.

The English courts and the different state courts in the United 

States, while recognizing ‘‘foreign judgments in personam’’ which 

were reducible to money terms as affording a basis for actions in 

debt, originally accorded them generally only the status of prima

facie evidence in support thereof, so that the merits of the original 

controversy could always be opened. When offered in defense, on 

the other hand, ‘‘foreign judgments in personam’’ were regarded as 

conclusive upon everybody on the theory that, as stated by Chief 

Justice Marshall, ‘‘it is a proceeding in rem, to which all the world 

ART. IV—STATES’ RELATIONS 875

Sec. 1—Full Faith and Credit 

3Mankin v. Chandler, 16 F. Cas. 625, 626 (No. 9030) (C.C.D. Va. 1823). 

4 11 U.S. (7 Cr.) 481 (1813). See also Everett v. Everett, 215 U.S. 203 (1909); 

Insurance Company v. Harris, 97 U.S. 331 (1878). 5 1 Stat. 122. 

6On 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 Express Co. v. 

Mullins, 212 U.S. 311, 312 (1909). Fauntleroy v. Lum, 210 U.S. 230 (1908); Hartford 

Life Ins. Co. v. Ibs, 237 U.S. 662 (1915); Hartford Life Ins. Co. v. Barber, 245 U.S. 

146 (1917). 7 16 U.S. (3 Wheat.) 234 (1818). 

8 38 U.S. (13 Pet.) 312 (1839). See also Townsend v. Jemison, 50 U.S. (9 How.) 

407, 413-420 (1850); Bank of Alabama v. Dalton, 50 U.S. (9 How.) 522, 528 (1850); 

Bacon v. Howard, 61 U.S. (20 How.) 22, 25 (1858); Christmas v. Russell, 72 U.S. 

(5 Wall.) 290, 301 (1866); Wisconsin v. Pelican Ins. Co., 127 U.S. 265, 292 (1888); 

Great Western Tel. Co. v. Purdy, 162 U.S. 329 (1896); Wells v. Simonds Abrasive 

Co., 345 U.S. 514, 516-518 (1953). Recently, the Court reconsidered and adhered to 

the rule of these cases, although the Justices divided with respect to rationales. Sun 

Oil Co. v. Wortman, 486 U.S. 717 (1988). Acknowledging that in some areas it had 

treated statutes of limitations as substantive rules, such as in diversity cases to insure uniformity with state law in federal courts, the Court ruled that such rules are 

procedural for full-faith-and-credit purposes, since ‘‘[t]he purpose . . . of the Full 

Faith and Credit Clause . . . is . . . to delimit spheres of state legislative competence.’’ 

id. at 727. 

are parties.’’ 3 The pioneer case was Mills v. Duryee, 4 decided in 

1813. In an action brought in the circuit court of the District of Columbia, the equivalent of a state court for this purpose, on a judgment from a New York court, the defendant endeavored to reopen 

the whole question of the merits of the original case by a plea of 

‘‘nil debet.’’ It was answered in the words of the first implementing 

statute of 1790 5 that such records and proceedings were entitled 

in each State to the same faith and credit as in the State of origin, 

and that inasmuch as they were records of a court in the State of 

origin, and so conclusive of the merits of the case there, they were 

equally so in the forum State. The Court adopted the latter view, 

saying that it had not been the intention of the Constitution merely 

to reenact the common law—that is, the principles of private international law—with regard to the reception of foreign judgments, 

but to amplify and fortify these. 6 And in Hampton v. McConnell, 7

some years later, Chief Justice Marshall went even further, using 

language which seems to show that he regarded the judgment of 

a state court as constitutionally entitled to be accorded in the 

courts of sister States not simply the faith and credit on conclusive 

evidence but the validity of final judgment. 

When, however, the next important case arose, the Court had 

come under new influences. This was McElmoyle v. Cohen, 8 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 CaroVerDate Apr<14>2004 15:53 Apr 14, 2004 Jkt 077500 PO 00000 Frm 00003 Fmt 8222 Sfmt 8222 C:\CONAN\CON015.SGM PRFM99 PsN: CON015
876 ART. IV—STATES’ RELATIONS 

Sec. 1—Full Faith and Credit 

9 Cole v. Cunningham, 133 U.S. 107, 112 (1890). See also Stacy v. Thrasher, 47 

U.S. (6 How.) 44, 61 (1848); Milwaukee County v. White Co., 296 U.S. 268 (1935). 10 Chicago & Alton R.R. v. Wiggins Ferry Co., 119 U.S. 615, 622 (1887); Hanley 

v. Donoghue, 116 U.S. 1, 3 (1885). See also Green v. Van Buskirk, 74 U.S. (7 Wall.) 

139, 140 (1869); Bigelow v. Old Dominion Copper Co., 225 U.S. 111 (1912); Roche 

v. McDonald, 275 U.S. 449 (1928); Ohio v. Chattanooga Boiler Co., 289 U.S. 439 

(1933). 11Sistare v. Sistare, 218 U.S. 1 (1910). 12Michigan Trust Co. v. Ferry, 228 U.S. 346 (1913). See also Fall v. Eastin, 215 

U.S. 1 (1909). 

lina. 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. 9 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. 10

A judgment enforceable in the State where rendered must be 

given effect in another State, notwithstanding that the modes of 

procedure to enforce its collection may not be the same in both 

States. 11 If the initial court acquired jurisdiction, its judgment is 

entitled to full faith and credit elsewhere even though the former, 

by reason of the departure of the defendant with all his property, 

after having been served, has lost its capacity to enforce it by execution in the State of origin. 12 ‘‘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 

ART. IV—STATES’ RELATIONS 877

Sec. 1—Full Faith and Credit 

13Milwaukee County v. White Co., 296 U.S. 268, 275-276 (1935). 14 Board of Public Works v. Columbia College, 84 U.S. (17 Wall.) 521 (1873); 

Robertson v. Pickrell, 109 U.S. 608, 610 (1883). 15Kersh Lake Dist. v. Johnson, 309 U.S. 485 (1940). See also Texas & Pac. Ry. 

v. Southern Pacific Co., 137 U.S. 48 (1890). 16 National Exchange Bank v. Wiley, 195 U.S. 257, 265 (1904). See also Grover

& Baker Machine Co. v. Radcliffe, 137 U.S. 287 (1890). 17 Harding v. Harding, 198 U.S. 317 (1905). 18 16 U.S. (3 Wheat.) 234 (1818). 19 Anglo-American Provision Co. v. Davis Provision Co., 191 U.S. 373 (1903). 

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.’’ 13

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. 14 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. 15 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 judgement may be collaterally 

impeached upon the ground that the party in whose behalf it was 

rendered was not in fact the holder. 16 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. 17

Subsequent to its departure from Hampton v. McConnell, 18 the

Court does not appear to have formulated, by way of substitution, 

any clear-cut principles for disposing of the contention that a State 

need not provide a forum for a particular type of judgment of a sister State. 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. 19 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 citiVerDate Apr<14>2004 15:53 Apr 14, 2004 Jkt 077500 PO 00000 Frm 00005 Fmt 8222 Sfmt 8222 C:\CONAN\CON015.SGM PRFM99 PsN: CON015
878 ART. IV—STATES’ RELATIONS 

Sec. 1—Full Faith and Credit 

20Fauntleroy 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. 21Kenney 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). 22 Broderick v. Rosner, 294 U.S. 629 (1935), approved in Hughes v. Fetter, 341 

U.S. 609 (1951). 23 Union Nat’l Bank v. Lamb, 337 U.S. 38 (1949); see also Roche v. McDonald, 

275 U.S. 449 (1928). 24 Embry v. Palmer, 107 U.S. 3, 13 (1883). 25Titus v. Wallick, 306 U.S. 282, 291-292 (1939). 26Morris v. Jones, 329 U.S. 545 (1947). Moreover, there is no apparent reason 

why Congress, acting on the implications of Marshall’s words in Hampton v. McConnell, 16 U.S. (3 Wheat.) 234 (1818), should not clothe extrastate judgments of any 

particular type with the full status of domestic judgments of the same type in the 

several States. 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? 

zens. 20 Following the later rather than the earlier precedent, subsequent cases 21 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; 22 (2) that, accordingly, a forum State, which has a 

shorter period of limitations than the State in which a judgment 

was granted and later revived, 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; 23 (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; 24 (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; 25 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 the claim, although not for determination of what priority, if any, their claim should have. 26

ART. IV—STATES’ RELATIONS 879

Sec. 1—Full Faith and Credit 

27 Cooper v. Reynolds, 77 U.S. (10 Wall.) 308 (1870); Western Union Tel. Co. v. 

Pennsylvania, 368 U.S. 71 (1961). Full faith and credit extends to the issue of the 

original court’s jurisdiction, when the second court’s inquiry discloses that the question of jurisdiction had been fully and fairly litigated and finally decided in the court 

which rendered the original judgment. Durfee v. Duke, 375 U.S. 106 (1963); Underwriters Assur. Co. v. North Carolina Life Ins. Ass’n, 455 U.S. 691 (1982). 28 Board of Public Works v. Columbia College, 84 U.S. (17 Wall.) 521, 528 

(1873). See also Wisconsin v. Pelican Ins. Co., 127 U.S. 265, 291 (1888); Huntington 

v. Attrill, 146 U.S. 657, 685 (1892); Brown v. Fletcher’s Estate, 210 U.S. 82 (1908); 

Bigelow v. Old Dominion Copper Co., 225 U.S. 111 (1912); Spokane Inland R.R. v. 

Whitley, 237 U.S. 487 (1915). However, a denial of credit, founded upon a mere suggestion of want of jurisdiction and unsupported by evidence, violates the clause. 

Rogers v. Alabama, 192 U.S. 226, 231 (1904); Wells Fargo & Co. v. Ford, 238 U.S. 

503 (1915). 29Grover & Baker Machine Co. v. Radcliffe, 137 U.S. 287 (1890). See also 

Galpin v. Page, 85 U.S. (18 Wall.) 350 (1874); Old Wayne Life Ass’n v. McDonough, 

204 U.S. 8 (1907); Brown v. Fletcher’s Estate, 210 U.S. 82 (1908). 30Pennoyer v. Neff, 95 U.S. 714 (1878). See, for a reformulation of this case’s 

due process foundation, Shaffer v. Heitner, 433 U.S. 186 (1977). 31 Renaud v. Abbot, 116 U.S. 277 (1886); Jaster v. Currie, 198 U.S. 144 (1905); 

Reynolds v. Stockton, 140 U.S. 254 (1891). 

Jurisdiction: A Prerequisite to Enforcement of Judgments 

The jurisdictional question arises both in connection with judgments in personam against nonresident defendants to whom it is 

alleged personal service was not obtained in the State originating 

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 Records and proceedings of courts wanting jurisdiction are not entitled to credit. 28

Judgments in Personam.—When the subject matter of a suit 

is merely the defendant’s liability, it is necessary that it should appear from the record that the defendant has been brought within 

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

voluntary appearance, or that he had in some manner authorized 

the proceeding. 29 Thus, when a state court endeavored to acquire 

jurisdiction of a nonresident defendant by an attachment of his 

property within the State and constructive notice to him, its judgment was defective for want of jurisdiction and hence could not afford the basis of an action against the defendant in the court of another State, although it bound him so far as the property attached 

by virtue of the inherent right of a State to assist its own citizens 

in obtaining satisfaction of their just claims. 30

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 thus obtained and later relied upon as the basis of 

an action in his home State. 31 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 defendVerDate Apr<14>2004 15:53 Apr 14, 2004 Jkt 077500 PO 00000 Frm 00007 Fmt 8222 Sfmt 8222 C:\CONAN\CON015.SGM PRFM99 PsN: CON015
880 ART. IV—STATES’ RELATIONS 

Sec. 1—Full Faith and Credit 

32Milliken v. Meyer, 311 U.S. 457, 463 (1940). In the pioneer case of D’Arcy v. 

Ketchum, 52 U.S. (1 How.) 165 (1851), 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, must be accorded full faith and credit in Louisiana when offered as a basis of an action in debt 

against a resident of that State who had not been served by process in the New 

York action. The Court ruled that the original implementing statute, 1 Stat. 122 

(1790), did not reach this type of case, and hence the New York judgment was not 

enforceable in Louisiana against defendant. Had the Louisiana defendant thereafter 

ventured to New York, however, he could, as the Constitution then stood, have been 

subjected to the judgment to the same extent as the New York defendant who had 

been personally served. Subsequently, the disparity between operation of personal 

judgment in the home State has been eliminated, because of the adoption of the 

Fourteenth Amendment. In divorce cases, however, it still persists in some measure. 

See infra.

33 Adam v. Saenger, 303 U.S. 59, 62 (1938). 34 Hancock Nat’l Bank v. Farnum, 176 U.S. 640 (1900). 35Stacy v. Thrasher, 47 U.S. (6 How.) 44, 58 (1848). 36 Bigelow v. Old Dominion Copper Co., 225 U.S. 111 (1912). 37 59 U.S. (18 How.) 404 (1856). 

ants, was personally served in another State is entitled to full faith 

and credit. 32 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. 33

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 not party or 

privy to the original action raises the question of jurisdiction; 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, 34 an administrator acting under a grant of administration in one State stands in no sort of relation of privity to an administrator of the same estate in another State. 35 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 tortfeasor, such judgment is not entitled to full faith and credit in an action brought against the 

tortfeasor in another State. 36

Service on Foreign Corporations.—In 1856, the Court decided Lafayette Ins. Co. v. French, 37 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 

ART. IV—STATES’ RELATIONS 881

Sec. 1—Full Faith and Credit 

38To the same effect is Connecticut Mut. Life Ins. Co. v. Spratley, 172 U.S. 602 

(1899). 39Simon v. Southern Ry., 236 U.S. 115 (1915). 40Goldey v. Morning News, 156 U.S. 518 (1895); Riverside Mills v. Menfee, 237 

U.S. 189 (1915). 41 International Harvester v. Kentucky, 234 U.S. 579 (1914). Riverside Mills v. 

Menefee, 237 U.S. 189 (1915). 42 International Harvester v. Kentucky, 234 U.S. 579 (1914). 43Kane 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). 44 85 U.S. (18 Wall.) 457 (1874). 

faith and credit as it was entitled to in Ohio. 38 Later cases establish under both the Fourteenth Amendment and article IV, § 1, 

that the cause of action must have arisen within the State obtaining service in this way, 39 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, 40 that the 

question whether the corporation was actually ‘‘doing business’’ in 

the State may be raised. 41 On the other hand, the fact that the 

business was interstate is no objection. 42

Service on Nonresident Motor Vehicle Owners.—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. 43 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 in the 

main was 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. 44 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 

882 ART. IV—STATES’ RELATIONS 

Sec. 1—Full Faith and Credit 

45 1 H. BLACK, A TREATISE ON THE LAW OF JUDGMENTS § 246 (1891). 46See 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 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’s Estate, 210 

U.S. 82 (1908); German Savings Soc’y v. Dormitzer, 192 U.S. 125, 128 (1904); Grover & Baker Machine Co. v. Radcliffe, 137 U.S. 287, 294 (1890). 47 Cheever v. Wilson, 76 U.S. (9 Wall.) 108 (1870). 48 Andrews v. Andrews, 188 U.S. 14 (1903). See also German Savings Soc’y v. 

Dormitzer, 192 U.S. 125 (1904). 

seized outside the county to which, by the statute under which it 

had acted, its jurisdiction was confined. 

As previously explained, the plea of lack of privity cannot be 

set up in defense in a sister State against a judgment in rem. In 

a proceeding in rem, however, the presence of the res within the 

court’s jurisdiction is a prerequisite, 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. 45 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.’’ 46

Divorce Decrees: Domicile as the Jurisdictional Prerequisite 

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; 47 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. 48

ART. IV—STATES’ RELATIONS 883

Sec. 1—Full Faith and Credit 

49 181 U.S. 155, 162 (1901). 50 201 U.S. 562 (1906). 51 317 U.S. 287 (1942); 325 U.S. 226 (1945). 

Divorce Suit: In Rem or in Personam; Judicial Indecision.—In 1906, however, by a vote of five to four, the Court departed from its earlier ruling, rendered five years previously in 

Atherton v. Atherton, 49 and in Haddock v. Haddock, 50 it announced 

that a divorce proceeding might be viewed as one in personam. In 

the former it was held, in the latter 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 consisted 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 in the State where obtained because 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.’’ 

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 51 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, the Court in Davis v. 

884 ART. IV—STATES’ RELATIONS 

Sec. 1—Full Faith and Credit 

52 305 U.S. 32 (1938). 53 317 U.S. 287, 298-299 (1942). 

Davis 52 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 willful 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 Williams 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, in Williams I, 53 when a majority of the Justices, overruling Haddock v. 

Haddock, declaring 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. ‘‘[E]ach State, by virtue of its command over the 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 

ART. IV—STATES’ RELATIONS 885

Sec. 1—Full Faith and Credit 

54 Id. at 302. 55 Id. at 311. 56 325 U.S. 226, 229 (1945). 57 Bell v. Bell, 181 U.S. 175 (1901); Andrews v. Andrews, 188 U.S. 14 (1903). 58Strong 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 

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. 54

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 extra-territorial 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.’’ 55

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; when the defendants appealed 

the conviction resulting therefrom, the Supreme Court, in Williams II, 56 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, 57 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. 58

886 ART. IV—STATES’ RELATIONS 

Sec. 1—Full Faith and Credit 

now be reexamined by every other State, upon the same or different evidence, to 

redetermine the ‘jurisdiction 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’ . . . afford 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. at 248, 251, 255, 258-259. 

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.’’ Id. at 

262.59 334 U.S. 343 (1948). 

Cases Following Williams II.—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, 59 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, parVerDate Apr<14>2004 15:53 Apr 14, 2004 Jkt 077500 PO 00000 Frm 00014 Fmt 8222 Sfmt 8222 C:\CONAN\CON015.SGM PRFM99 PsN: CON015
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Sec. 1—Full Faith and Credit 

60 334 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. at 343, 377. 61 336 U.S. 674 (1949). Of four justices dissenting, Black, Douglas, Rutledge, and 

Jackson, Justice Jackson alone filed a written opinion. To him the decision was ‘‘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.’’ Id. at 676, 679, 680. 

ticularly 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 

relitigating in another State the issue of his wife’s domicile already 

passed upon by the Florida court. 

In Coe v. Coe, 60 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 review Williams II, and significant for the social 

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

Rice v. Rice. 61 To determine the widowhood status of the party litigants in relation to inheritance of property of a husband who had 

888 ART. IV—STATES’ RELATIONS 

Sec. 1—Full Faith and Credit 

62 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. 

A Florida divorce decree was also at the bottom of another 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. On the whole, it appears that the principle 

of res judicata is slowly winning out against the principle of domicile. Johnson v. 

Muelberger, 340 U.S. 581 (1951). 63 325 U.S. 279 (1945). 

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, and Coe v. Coe, 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 findings of the Nevada court that the 

decedent was, at the time of the divorce, domiciled in that State. 62

Claims for Alimony or Property in Forum State.—In

Esenwein v. Commonwealth, 63 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; 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 domiVerDate Apr<14>2004 15:53 Apr 14, 2004 Jkt 077500 PO 00000 Frm 00016 Fmt 8222 Sfmt 8222 C:\CONAN\CON015.SGM PRFM99 PsN: CON015
ART. IV—STATES’ RELATIONS 889

Sec. 1—Full Faith and Credit 

64 Id. at 281-283. 65 334 U.S. 541 (1948). See also the companion case of Kreiger v. Kreiger, 334 

U.S. 555 (1948). 66 Esenwein v. Commonwealth, 325 U.S. 279, 280 (1945). 67 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 was 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 have preferred 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).

ciled 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 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.’’ 64

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. 65 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 the 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 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; 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, 66

does permit a support order to survive a divorce decree. 67

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 

890 ART. IV—STATES’ RELATIONS 

Sec. 1—Full Faith and Credit 

68 381 U.S. 81 (1965). 69 Id. at 84-85. 70 334 U.S. 541 (1948). 71 381 U.S. at 84-85. 72 Id. at 85. 73 Barber v. Barber, 323 U.S. 77, 84 (1944). 74Sistare v. Sistare, 218 U.S. 1, 11 (1910). See also Barber v. Barber, 62 U.S. 

(21 How.) 582 (1859); Lynde v. Lynde, 181 U.S. 183, 186-187 (1901); Audubon v. 

Shufeldt, 181 U.S. 575, 577 (1901); Bates v. Bodie, 245 U.S. 520 (1918); Yarborough 

v. Yarborough, 290 U.S. 202 (1933); Loughran v. Loughran, 292 U.S. 216 (1934). 

York being that of protecting the abandoned wife against impoverishment. In Simons v. Miami National Bank, 68 the Court held that 

a dower right in the deceased husband’s estate is extinguished 

even though a divorce decree was obtained in a proceeding in 

which the nonresident wife was served by publication only and did 

not make a personal appearance. 69 The Court found the principle 

of Estin v. Estin 70 was not applicable. In Simons, the Court rejected the contention that the forum court, in giving recognition to 

the foreign court’s separation decree providing for maintenance and 

support, has to allow for dower rights in the deceased husband’s estate in the forum State. 71 Full faith and credit is not denied to a 

sister State’s separation decree, including an award of monthly alimony, where nothing in the foreign State’s separation decree could 

be construed as creating or preserving any interest in the nature 

of or in lieu of dower in any property of the decedent, wherever located and where the law of the forum State did not treat such a 

decree as having such effect nor indicate such an effect irrespective 

of the existence of the foreign State’s decree. 72

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 installments 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. 73

As to the finality of alimony decrees in general, the Court had previously ruled that where such a decree is rendered, payable in future installments, the right to such installments becomes absolute 

and vested on becoming due, provided no modification of the decree 

has been made prior to the maturity of the installments. 74 HowVerDate Apr<14>2004 15:53 Apr 14, 2004 Jkt 077500 PO 00000 Frm 00018 Fmt 8222 Sfmt 8222 C:\CONAN\CON015.SGM PRFM99 PsN: CON015
ART. IV—STATES’ RELATIONS 891

Sec. 1—Full Faith and Credit 

75Griffin v. Griffin, 327 U.S. 220 (1946). 76 Id. at 228. An alimony case of a quite extraordinary pattern was that of Sutton v. Leib, 342 U.S. 402 (1952). Because 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. 77 Halvey v. Halvey, 330 U.S. 610, 615 (1947). 78May v. Anderson, 345 U.S. 528 (1953). Justices Jackson, Reed, and Minton 

dissented. 79 356 U.S. 604 (1958). Rejecting the implication that recognition must be accorded unless the circumstances have changed, Justice Frankfurter dissented on the 

ground that in determining what is best for the welfare of the child, the forum court 

cannot be bound by an absentee, foreign custody decree, ‘‘irrespective of whether 

changes in circumstances are objectively provable.’’ 

ever, 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. 75 ‘‘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.’’ 76

An 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, 77 it having not been ‘‘shown that the New York court in 

modifying the Florida decree exceeded the limits permitted under 

Florida laws. There is therefore a failure of proof that the Florida 

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

Answering a question left open in the preceding holding as to 

the binding effect of the ex parte award, the Court more recently 

acknowledged that in a proceeding challenging a mother’s right to 

retain custody of her children, a State is not required to give effect 

to the decree of another State’s court, which never acquired personal jurisdiction over the mother of her children, and which 

awarded custody to the father as the result of an ex parte divorce

action instituted by him. 78 In Kovacs v. Brewer, 79 however, the 

892 ART. IV—STATES’ RELATIONS 

Sec. 1—Full Faith and Credit 

80Ford v. Ford, 371 U.S. 187, 192-194 (1962). As part of a law dealing with parental kidnapping, Congress, in Pub. L. 96-611, 8(a), 94 Stat. 3569, 28 U.S.C. § 

1738A, required States to give full faith and credit to state court custody decrees 

provided the original court had jurisdiction and is the home State of the child. 81 334 U.S. 541 (1948). 82 350 U.S. 568 (1956). 83Four Justices, Black, Douglas, Clark, and Chief Justice Warren, disputed the 

Court’s contention that the Florida decree contained no ruling on the wife’s entitlement to alimony and mentioned that for want of personal jurisdiction over the wife, 

the Florida court was not competent to dispose of that issue. Id. at 575 

Court indicated that a finding of changed circumstances rendering 

observance of an absentee foreign custody decree inimical to the 

best interests of the child is essential to sustain the validity of the 

forum court’s refusal to enforce a foreign decree, rendered with jurisdiction over all the parties but the child, and revising an initial 

decree by transferring custody from the paternal grandfather to the 

mother. However, when, as is true in Virginia, agreements by parents as to shared custody of a child do not bind the State’s courts, 

the dismissal by a Virginia court of a habeas corpus petition instituted by a father to obtain custody was not res judicata in that 

State; therefore, even if the Full Faith and Credit Clause were applicable to child custody decrees, it would not require a South Carolina court, in a custody suit instituted by the wife, to recognize a 

court order not binding in Virginia. 80

Status of the Law.—The doctrine of divisible divorce, as developed by Justice Douglas in Estin v. Estin, 81 may have 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. The effect is 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 neither was served nor appeared personally. 

In any event the accuracy of these conclusions has not been 

impaired by any decision rendered by the Court since 1948. Thus, 

in Armstrong v. Armstrong, 82 an ex parte divorce decree obtained 

by the husband in Florida was deemed to have been adequately 

recognized by an Ohio court when, with both of the parties before 

it, it disposed of the wife’s suit for divorce and alimony with a decree limited solely to an award of alimony. 83 Similarly, a New York 

court was held not bound by an ex parte Nevada divorce decree, 

rendered without personal jurisdiction over the wife, to the extent 

that it relieved the husband of all marital obligations, and in an 

ex parte action for separation and alimony instituted by the wife, 

ART. IV—STATES’ RELATIONS 893

Sec. 1—Full Faith and Credit 

84 Vanderbilt v. Vanderbilt, 354 U.S. 416 (1957). Two Justices dissented. Justice 

Frankfurter was unable to perceive ‘‘why dissolution of the marital relation is not 

so personal as to require personal jurisdiction over the absent spouse, while the denial of alimony . . . is.’’ Justice Harlan maintained that inasmuch as the wife did not 

become a domiciliary of New York until after the Nevada decree, she had no predivorce rights in New York which the latter was obligated to protect. 85Tilt v. Kelsey, 207 U.S. 43 (1907); Burbank v. Ernst, 232 U.S. 162 (1914). 86 Riley v. New York Trust Co., 315 U.S. 343 (1942). 87 Brown v. Fletcher’s Estate, 210 U.S. 82, 90 (1908). See also Stacy v. Thrasher, 

47 U.S. (6 How.) 44, 58 (1848); McLean v. Meek, 59 U.S. (18 How.) 16, 18 (1856). 88Tilt 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 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 disit was competent to sequester the husband’s property in New York 

to satisfy his obligations to the wife. 84

Other Types of Decrees 

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. 85 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. 86

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. 87 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. 88 What is more important, however, is 

894 ART. IV—STATES’ RELATIONS 

Sec. 1—Full Faith and Credit 

charged 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. 89 Blodgett v. Silberman, 277 U.S. 1 (1928). 90Kerr v. Moon, 22 U.S. (9 Wheat.) 565 (1824); McCormick v. Sullivant, 23 U.S. 

(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.’’ Fall v. Eastin, 215 U.S. 1, 11 (1909). 91 Robertson v. Pickrell, 109 U.S. 608, 611 (1883). See also Darby v. Mayer, 23 

U.S. (10 Wheat.) 465 (1825); Gasquet v. Fenner, 247 U.S. 16 (1918). 92Olmstead v. Olmstead, 216 U.S. 386 (1910). 93 Hood v. McGehee, 237 U.S. 611 (1915). 

that the res in such a proceeding, that is, the estate, in order to 

entitle the judgment to recognition under article IV, 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. 89 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. 90

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. 91

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, that statutes do not have extraterritorial 

operation. 92 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. 93

Garnishment Decrees.—Garnishment proceedings combine 

some of the elements of both an in rem and an in personam action.

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 

ART. IV—STATES’ RELATIONS 895

Sec. 1—Full Faith and Credit 

94 Harris v. Balk, 198 U.S. 215 (1905). See also Chicago, R.I. & P. Ry. v. Sturm, 

174 U.S. 710 (1899); King v. Cross, 175 U.S. 396, 399 (1899); Louisville & Nashville 

Railroad v. Deer, 200 U.S. 176 (1906); Baltimore & Ohio R.R. v. Hostetter, 240 U.S. 

620 (1916). Harris itself has not survived the due process reformulation of Shaffer 

v. Heitner, 433 U.S. 186 (1977). See Rush v. Savchuk, 444 U.S. 320 (1980). 95The Antelope, 23 U.S. (10 Wheat.) 66, 123 (1825). See also Wisconsin v. Pelican Ins. Co., 127 U.S. 265 (1888). 96 146 U.S. 657 (1892). See also Dennick v. Railroad Co., 103 U.S. 11 (1881); 

Moore v. Mitchell, 281 U.S. 18 (1930); Milwaukee County v. White Co., 296 U.S. 268 

(1935). 97 399 U.S. 224 (1970). 98 Id. at 229. 

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 B’s action. 94

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.’’ 95 In the leading case of Huntington v. 

Attrill, 96 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, § 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. In Nelson v. 

George, 97 in which a prisoner was tried in California and North 

Carolina and convicted and sentenced in both states for various 

felonies, the Court determined that the Full Faith and Credit 

Clause did not require California to enforce a penal judgment 

handed down by North Carolina; California was free to consider 

what effect if any it would give to the North Carolina detainer. 98

Until the obligation to extradite matured, the Full Faith and Credit 

Clause did not require California to enforce the North Carolina 

penal judgment in any way. 

Fraud as a Defense to Suits on Foreign Judgments 

With regard 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, § 1 and 

896 ART. IV—STATES’ RELATIONS 

Sec. 1—Full Faith and Credit 

99 Christmas v. Russell, 72 U.S. (5 Wall.) 290 (1866); Maxwell v. Stewart, 88 

U.S. (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). 100Fauntleroy v. Lum, 210 U.S. 230 (1908). 101 Anglo-American Prov. Co. v. Davis Prov. Co., 191 U.S. 373 (1903). 102 133 U.S. 107 (1890). 103 Bank of Augusta v. Earle, 38 U.S. (13 Pet.) 519, 589-596 (1839). See Kryger

v. Wilson, 242 U.S. 171 (1916); Bond v. Hume, 243 U.S. 15 (1917). 

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, 99 or as contrary to the public policy of the State where recognition is sought for it under the Full Faith and Credit Clause. 100

Previously listed cases indicate, however, that the Court in fact has 

permitted local policy to determine the merits of a judgment under 

the pretext of regulating jurisdiction. 101 Thus in one case, Cole v. 

Cunningham, 102 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. 

RECOGNITION OF RIGHTS BASED UPON 

CONSTITUTIONS, STATUTES, COMMON LAW 

Development of the Modern Rule 

With regard 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. 103 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 one another. It followed 

that even though Dred Scott had become a free man in conVerDate Apr<14>2004 15:53 Apr 14, 2004 Jkt 077500 PO 00000 Frm 00024 Fmt 8222 Sfmt 8222 C:\CONAN\CON015.SGM PRFM99 PsN: CON015
ART. IV—STATES’ RELATIONS 897

Sec. 1—Full Faith and Credit 

104Scott v. Sandford, 60 U.S. (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. 105 Chicago & Alton R.R. v. Wiggins Ferry Co., 119 U.S. 615, 622 (1887). 106Smithsonian 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 Life Ins. Co., 178 

U.S. 402 (1900); Allen v. Alleghany Co., 196 U.S. 458, 465 (1905); Texas & N.O.R.R. 

v. Miller, 221 U.S. 408 (1911). See also National Mut. B. & L. Ass’n v. Brahan, 193 

U.S. 635 (1904); Johnson v. New York Life Ins. Co., 187 U.S. 491, 495 (1903); Pennsylvania Fire Ins. Co. v. Gold Issue Mining Co. 243 U.S. 93 (1917). 107 Alaska Packers Ass’n. v. Industrial Accident Comm’n, 294 U.S. 532 (1935); 

Bradford Elec. Co. v. Clapper, 286 U.S. 145 (1932). 

sequence 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. 104

In a case decided in 1887, however, the Court remarked: 

‘‘Without doubt the constitutional requirement, Art. IV, § 1, 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.’’ 105 And this proposition was later held to extend to state 

constitutional provisions. 106 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. 107 That is, the Full Faith and 

Credit Clause, in its design to transform the States from independent sovereigns into a single unified Nation, directs that a 

State, when acting as the forum for litigation having multistate aspects or implications, respect the legitimate interests of other 

States and avoid infringement upon their sovereignty, but because 

the forum State is also a sovereign in its own right, in appropriate 

cases it may attach paramount importance to its own legitimate inVerDate Apr<14>2004 15:53 Apr 14, 2004 Jkt 077500 PO 00000 Frm 00025 Fmt 8222 Sfmt 8222 C:\CONAN\CON015.SGM PRFM99 PsN: CON015
898 ART. IV—STATES’ RELATIONS 

Sec. 1—Full Faith and Credit 

108 E.g., Allstate Ins. Co. v. Hague, 449 U.S. 302 (1981); Nevada v. Hall, 440 

U.S. 410 (1979); Carroll v. Lanza, 349 U.S. 408 (1955); Pacific Employers Ins. Co. 

v. Industrial Accident Comm’n, 306 U.S. 493 (1939); Alaska Packers Ass’n v. Industrial Accident Comm’n, 294 U.S. 532 (1935). 109Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 818 (1985) (quoting Allstate 

Ins. Co. v. Hague, 449 U.S. 302, 312-313 (1981) (plurality opinion)). 110Dennick v. Railroad Co., 103 U.S. 11 (1881), was the first so-called ‘‘Death 

Act’’ case to reach the Supreme Court. See also Stewart v. Baltimore & O.R.R., 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; in First Nat’l Bank v. United Airlines, 342 U.S. 396 (1952), a 

like result was reached under an Illinois statute. More recently, the Court has acknowledged that the Full Faith and Credit Clause does not compel the forum state, 

in an action for wrongful death occurring in another jurisdiction, to apply a longer 

period of limitations set out in the Wrongful Death Statute of the State in which 

the fatal injury was sustained. Wells v. Simonds Abrasive Co., 345 U.S. 514 (1953). 

Justices Jackson, Black, and Minton, in dissenting, advanced the contrary principle 

that the clause requires that the law where the tort action arose should follow said 

action in whatever forum it is pursued. 

terests. 108 The clause (and the comparable due process clause 

standards) obligate the forum State to take jurisdiction and to 

apply foreign law, subject to the forum’s own interest in furthering 

its public policy. In order ‘‘for a State’s substantive law to be selected in a constitutionally permissible manner, that State must 

have a significant contact or significant aggregation of contacts, 

creating state interests, such that choice of its law is neither arbitrary nor fundamentally unfair.’’ 109 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. 110 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, 

ART. IV—STATES’ RELATIONS 899

Sec. 1—Full Faith and Credit 

111 119 U.S. 615 (1887). 112 Northern Pacific R.R. v. Babcock, 154 U.S. 190 (1894); Atchison, T. & S.F. 

Ry. v. Sowers, 213 U.S. 55, 67 (1909). 113 449 U.S. 302 (1981). See also Clay v. Sun Ins. Office, 377 U.S. 179 (1964). 

where the contract involved had been made under laws peculiar to 

the State where made, and with those laws in view. 

Actions Upon Contract.—In Chicago & Alton R.R. v. Wiggins 

Ferry Co., 111 the Court indicated that 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 rights of action originated sets thereto, except that 

courts of sister States cannot be thus prevented from taking jurisdiction in such cases. 112

However, the modern doctrine permits a forum State with sufficient contacts with the parties or the matter in dispute to follow 

its own law. In Allstate Ins. Co. v. Hague, 113 the decedent was a 

Wisconsin resident who had died in an automobile accident within 

Wisconsin near the Minnesota border in the course of his daily employment commute to Wisconsin. He had three automobile insurance policies on three automobiles, each limited to $15,000. Following his death, his widow and personal representative moved to 

Minnesota, and she sued in that State. She sought to apply Minnesota law, under which she could ‘‘stack’’ or aggregate all three 

policies, permissible under Minnesota law but not allowed under 

Wisconsin law, where the insurance contracts had been made. The 

Court, in a divided opinion, permitted resort to Minnesota law, because of the number of contacts the State had with the matter. On 

the other hand, an earlier decision is in considerable conflict with 

Hague. There, a life insurance policy was executed in New York, 

on a New York insured, with a New York beneficiary. The insured 

died in New York, and his beneficiary moved to Georgia and sued 

to recover on the policy. The insurance company defended on the 

ground that the insured, in the application for the policy, had made 

materially false statements that rendered it void under New York 

law. The defense was good under New York law, impermissible 

under Georgia law, and Georgia’s decision to apply its own law was 

overturned, the Court stressing the surprise to the parties of the 

900 ART. IV—STATES’ RELATIONS 

Sec. 1—Full Faith and Credit 

114 John Hancock Mut. Life Ins. Co. v. Yates, 299 U.S. 178 (1936). 115Modern Woodmen v. Mixer, 267 U.S. 544 (1925). 116 Converse v. Hamilton, 224 U.S. 243 (1912); Selig v. Hamilton, 234 U.S. 652 

(1914); Marin v. Augedahl, 247 U.S. 142 (1918). 117 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). 118 Hancock Nat’l Bank v. Farnum, 176 U.S. 640 (1900). 119 237 U.S.. 531 (1915), followed in Modern Woodmen v. Mixer, 267 U.S. 544 

(1925).

resort to the law of another State and the absence of any occurrence in Georgia to which its law could apply. 114

Stockholder Corporation Relationship.—The protections of 

the Full Faith and Credit Clause extend beyond transitory actions. 

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. 115 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 States. 116 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 

superintendent of banks against 557 New Jersey stockholders in an 

insolvent New York bank to recover assessments made under the 

laws of New York. 117 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. 118

Fraternal Benefit Society: Member Relationship.—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, 119 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 

ART. IV—STATES’ RELATIONS 901

Sec. 1—Full Faith and Credit 

120 305 U.S. 66, 75, 79 (1938). 121 331 U.S. 586, 588-589, 637 (1947). 122 New York Life Ins. Co. v. Head, 234 U.S. 149 (1914); Aetna Life Ins. Co. v. 

Dunken, 266 U.S. 389 (1924). 

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 any disposition to depart from 

this rule. In Sovereign Camp v. Bolin, 120 it declared that a State 

in which a certificate of life membership of a foreign fraternal benefit association is issued, which construes and enforces the 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 status 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.’’ 

Consistent therewith, the Court also held, in Order of Travelers v. 

Wolfe, 121 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; with few exceptions, 122 they have had controversies 

arising out of their business relationships settled by application of 

902 ART. IV—STATES’ RELATIONS 

Sec. 1—Full Faith and Credit 

123 193 U.S. 635 (1904). 124 Id. 125 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). 126Griffin v. McCoach, 313 U.S. 498 (1941). 

the law of the forum State. In National Mutual B. & L. Ass’n v. 

Brahan, 123 the principle applicable to these three forms of business 

organizations 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. 124 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. 125 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. 126 Similarly, a State, by reason of its potential obligation to care for dependents of persons injured or killed within its limits, is conceded 

to have a substantial interest in insurance policies, wherever 

issued, which may afford compensation for such losses; accordingly, 

it is competent, by its own direct action statute, to grant the injured party a direct cause of action against the insurer of the 

tortfeasor, and to refuse to enforce the law of the State, in which 

ART. IV—STATES’ RELATIONS 903

Sec. 1—Full Faith and Credit 

127Watson v. Employers Liability Corp., 348 U.S. 66 (1954). In Clay v. Sun Ins. 

Office, 363 U.S. 207 (1960), three dissenters, Justices Black, and Douglas, and Chief 

Justice Warren, would have resolved the constitutional issue which the Court avoided, and would have sustained application of the forum State’s statute of limitations 

fixing a period in excess of that set forth in the policy. 128 314 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. Williard, 292 U.S. 112 (1934). 129 324 U.S. 154, 159-160 (1945). 

the policy is issued or delivered, which recognizes as binding a policy stipulation which forbids direct actions until after the determination of the liability of the insured tortfeasor. 127

Consistent with the latter holding are the following two involving mutual insurance companies. In Pink v. A.A.A. Highway Express, 128 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 questions 

whether, by entering into the policies, residents became members 

of the company. Again, in State Farm Ins. Co. v. Duel, 129 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.

Workers’ Compensation Statutes.—Finally, the relationship 

of employer and employee, insofar as the obligations of the one and 

the rights of the other under workmen’s compensation acts are conVerDate Apr<14>2004 15:53 Apr 14, 2004 Jkt 077500 PO 00000 Frm 00031 Fmt 8222 Sfmt 8222 C:\CONAN\CON015.SGM PRFM99 PsN: CON015
904 ART. IV—STATES’ RELATIONS 

Sec. 1—Full Faith and Credit 

130 Bradford Elec. Co. v. Clapper, 286 U.S. 145 (1932). 131 Alaska Packers Ass’n v. Industrial Accident Comm’n, 294 U.S. 532 (1935). 

The State where the employment contract was made was permitted to apply its 

workmen’s compensation law despite the provision in the law of the State of injury 

making its law the exclusive remedy for injuries occurring there. See id. at 547 

(stating the balancing test). 132Pacific Employers Ins. Co. v. Industrial Accident Comm’n, 306 U.S. 493 

(1939). 133 In addition to Alaska Packers and Pacific Ins., see Carroll v. Lanza, 349 U.S. 

408 (1955); Cardillo v. Liberty Mutual Co., 330 U.S. 469 (1947); Crider v. Zurich 

Ins. Co., 380 U.S. 39 (1965); Nevada v. Hall, 440 U.S. 410, 421-424 (1979). 134Magnolia Petroleum Co. v. Hunt, 320 U.S. 430 (1943). 

cerned, has been the subject of differing and confusing treatment. 

In an early case, the injury occurred in New Hampshire, resulting 

in death to a worker who had entered the defendant company’s employ in Vermont, the home State of both parties. The Court required the New Hampshire courts to respect a Vermont statute 

which precluded a worker from bringing a common-law action 

against his employer for job related injuries where the employment 

relation was formed in Vermont, prescribing a constitutional rule 

giving priority to the place of the establishment of the employment 

relationship over the place of injury. 130 The same result was 

achieved in a subsequent case, but the Court promulgated a new 

rule, applied thereafter, which emphasized a balancing of the governmental interests of each jurisdiction, rather than the mere application of the statutory rule of one or another State under full 

faith and credit. 131 Thus, the Court held that the clause did not 

preclude California from disregarding a Massachusett’s workmen’s 

compensation statute, making its law exclusive of any common law 

action or any law of any other jurisdiction, and applying its own 

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. 132 It is therefore settled that an injured worker 

may seek a compensation award either in the State in which the 

injury occurred or in the State in which the employee resided, his 

employer was principally located, and the employment relation was 

formed, even if one statute or the other purported to confer an exclusive remedy on the worker. 133

Less settled is the question whether a second State, with interests in the matter, may supplement a workers’ compensation 

award provided in the first State. At first, the Court ruled that a 

Louisiana employee of a Louisiana employer, who was injured on 

the job in Texas and who received an award under the Texas act, 

which did not grant further recovery to an employee who received 

compensation under the laws of another State, could not obtain additional compensation under the Louisiana statute. 134 Shortly,

ART. IV—STATES’ RELATIONS 905

Sec. 1—Full Faith and Credit 

135 Industrial Comm’n v. McCartin, 330 U.S. 622 (1947). 136 Employer and employee had entered into a contract of settlement under the 

Illinois act, the contract expressly providing that it did not affect any rights the employee had under Wisconsin law. Id. at 624. 137 Id. at 627-628, 630. 138Thomas v. Washington Gas Light Co., 448 U.S. 261 (1980). For the disapproval of McCartin, see id. at 269-272 (plurality opinion of four), 289 (concurring 

opinion of three), 291 (dissenting opinion of two). But the four Justice plurality 

would have instead overruled Magnolia, id. at 277-286, and adopted the rule of interest balancing used in deciding which State may apply its laws in the first place. 

The dissenting two Justices would have overruled McCartin and followed Magnolia. Id. at 290. The other Justices considered Magnolia the sounder rule but decided to follow McCartin because it could be limited to workmen’s compensation 

cases, thus requiring no evaluation of changes throughout the reach of the Full 

Faith and Credit Clause. Id. at 286. 139Watkins v. Conway, 385 U.S. 188, 190-191 (1965). 

however, the Court departed from this holding, permitting Wisconsin, the State of the injury, to supplement an award pursuant 

to the laws of Illinois, where the worker resided and where the employment contract had been entered into. 135 Although the second 

case could have been factually distinguished from the first, 136 the

Court instead chose to depart from the principle of the first, saying 

that only if the laws of the first State making an award contained 

‘‘unmistakable language’’ to the effect that those laws were exclusive of any remedy under the laws of any other State would supplementary awards be precluded. 137 While the overwhelming number 

of state court decisions since follow McCartin, and Magnolia has

been little noticed, all the Justices have recently expressed dissatisfaction with the former case as a rule of the Full Faith and 

Credit Clause, although a majority of the Court followed it and permitted a supplementary award. 138

Full Faith and Credit and Statutes of Limitation.—The

Full Faith and Credit Clause is not violated by a state statute providing that all suits upon foreign judgments shall be brought within five years after such judgment shall have been obtained, where 

the statute has been construed by the state courts as barring suits 

on foreign judgments, only if the plaintiff could not revive his judgment in the state where it was originally obtained. 139

FULL FAITH AND CREDIT: MISCELLANY 

Full Faith and Credit in Federal Courts 

The rule of 28 U.S.C. §§ 1738-1739 pertains not merely to recognition by state courts of the records and judicial proceedings of 

courts of sister States but to recognition by ‘‘every court within the 

United States,’’ including recognition of the records and proceedings of the courts of any territory or any country subject to the 

jurisdiction of the United States. The federal courts are bound to 

906 ART. IV—STATES’ RELATIONS 

Sec. 1—Full Faith and Credit 

140 Cooper v. Newell, 173 U.S. 555, 567 (1899), See also Pennington v. Gibson, 

57 U.S. (16 How.) 65, 81 (1854); Cheever v. Wilson, 76 U.S. (9 Wall.) 108, 123 

(1870); Wisconsin v. Pelican Ins. Co., 127 U.S. 265, 291 (1888); Swift v. McPherson, 

232 U.S. 51 (1914); Baldwin v. Traveling Men’s Ass’n, 283 U.S. 522 (1931); American Surety Co. v. Baldwin, 287 U.S. 156 (1932); Sanders v. Fertilizer Works, 292 

U.S. 190 (1934); Durfee v. Duke, 375 U.S. 106 (1963); Allen v. McCurry, 449 U.S. 

90 (1980); Kremer v. Chemical Const. Corp., 456 U.S. 461 (1982). 141Milwaukee County v. White Co., 296 U.S. 268 (1935). 142 Equitable Life Assurance Society v. Brown, 187 U.S. 308 (1902). See also 

Gibson v. Lyon, 115 U.S. 439 (1885). 143 Embry v. Palmer, 107 U.S. 3, 9 (1883). See also Northern Assurance Co. v. 

Grand View Ass’n, 203 U.S. 106 (1906); Louisville & Nashville R.R. v. Stock Yards 

Co., 212 U.S. 132 (1909); Atchison, T. & S.F. Ry. v. Sowers, 213 U.S. 55 (1909); West 

Side R.R. v. Pittsburgh Const. Co., 219 U.S. 92 (1911); Knights of Pythias v. Meyer, 

265 U.S. 30, 33 (1924). 

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. 140 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. 141

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. 142

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. 143

Evaluation Of Results Under Provision 

The Court, after 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 

ART. IV—STATES’ RELATIONS 907

Sec. 1—Full Faith and Credit 

144 Reviewing some of the cases treated in this section, a writer in 1926 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.’’ Dodd, The

Power of the Supreme Court to Review State Decisions in the Field of Conflict of 

Laws, 39 HARV. L. REV. 533, 562 (1926). It can hardly be said that the law has been 

subsequently clarified on this point. 

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 legal policy of the forum State will be superseded by that 

of judicial review. 144

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

Court alone but by Congress and the Court, of article IV, § 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 this 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. 

908 ART. IV—STATES’ RELATIONS 

Sec. 1—Full Faith and Credit 

145 Cook, The Power of Congress Under the Full Faith and Credit Clause, 28 

YALE L.J. 421, 430 (1919). 

146 No right, privilege, or immunity is conferred by the Constitution in respect 

to judgments of foreign states and nations. Aetna Life Ins. Co. v. Tremblay, 223 U.S. 

185 (1912). See also Hilton v. Guyot, 159 U.S. 113, 234 (1895), where a French judgment offered in defense was held not a bar to the suit. Four Justices dissented on 

the ground that ‘‘the application of the doctrine of res judicata does not rest in discretion; and it is for the Government, and not for its courts, to adopt the principle 

of retorsion, if deemed under any circumstances desirable or necessary.’’ At the 

same sitting of the Court, an action in a United States circuit court on a Canadian 

judgment was sustained on the same ground of reciprocity, Ritchie v. McMullen, 159 

U.S. 235 (1895). See also Ingenohl v. Olsen & Co., 273 U.S. 541 (1927), where a decision of the Supreme Court of the Philippine Islands was reversed for refusal to enforce a judgment of the Supreme Court of the British colony of Hong Kong, which 

was rendered ‘‘after a fair trial by a court having jurisdiction of the parties.’’ Another instance of international cooperation in the judicial field is furnished by letters rogatory. See 28 U.S.C. § 1781. Several States have similar provisions, 2 J. 

MOORE, DIGEST OF INTERNATIONAL LAW 108-109 (1906). 

SCOPE OF POWERS OF CONGRESS UNDER PROVISION 

Under the present system, suit ordinarily has 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?’’ 145

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. 

JUDGMENTS OF FOREIGN STATES 

Doubtless Congress, by virtue of its powers in the field of foreign relations, might also 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. 146

ART. IV—STATES’ RELATIONS 909

Sec. 2—Interstate Comity Cl. 1—State Citizenship: Privileges and Immunities 

147Toomer v. Witsell, 334 U.S. 385, 395 (1948). 148THE FEDERALIST, No. 42 (J. Cooke ed. 1961), 285-286 (Madison). 149 1 F. Thorpe ed., The Federal and State Constitutions, H. DOC. NO. 357, 59th 

Cong., 2d Sess. (1909), 10. 150 2 M. FARRAND, THE RECORDS OF THE FEDERAL CONVENTION OF 1787 173, 

187, 443 (rev. ed. 1937). 151 ‘‘It may be esteemed the basis of the Union, that ‘the citizens of each State 

shall be entitled to all the privileges and immunities of citizens of the several 

States.’ And if it be a just principle that every government ought to possess the 

means of executing its own provisions by its own authority, it will follow, that in 

order to the inviolable maintenance of that equality of privileges and immunities to 

which the citizens of the Union will be entitled, the national judiciary ought to preside in all cases in which one State or its citizens are opposed to another State or 

its citizens. To secure the full effect of so fundamental a provision against all evasion and subterfuge, it is necessary that its construction should be committed to 

that tribunal which, having no local attachments, will be likely to be impartial between the different States and their citizens, and which, owing its official existence 

to the Union, will never be likely to feel any bias inauspicious to the principles on 

which its is founded.’’ THE FEDERALIST, No. 80 (J. Cooke ed. 1961), 537-538 (Hamilton).

SECTION 2. Clause 1. The Citizens of each State shall be 

entitled to all Privileges and Immunities of Citizens in the several States. 

STATE CITIZENSHIP: PRIVILEGES AND IMMUNITIES 

Origin and Purpose 

‘‘The primary purpose of this clause, like the clauses between 

which it is located. . .was to help fuse into one Nation a collection 

of independent sovereign States.’’ 147 Precedent for this clause was 

a much wordier and a somewhat unclear 148 clause of the articles 

of Confederation. ‘‘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,. . .’’ 149 In the 

Convention, the present clause was presented, reported by the 

Committee on Detail, and adopted all in the language ultimately 

approved. 150 Little commentary was addressed to it, 151 and we 

may assume with Justice Miller that ‘‘[t]here 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 Confederation we have some of these specifically 

mentioned, and enough perhaps to give some general idea of the 

910 ART. IV—STATES’ RELATIONS 

Sec. 2—Interstate Comity Cl. 1—State Citizenship: Privileges and Immunities 

152Slaughter House Cases, 83 U.S. (16 Wall.) 36, 75 (1873). 153Scott v. Sandford, 60 U.S. (19 How.) 393 (1857). 154 Id. at 518, 527-529. 155Today, the due process clause of the Fifth Amendment imposes equal protection standards on the Federal Government. Bolling v. Sharpe, 347 U.S. 497 (1954); 

Schneider v. Rusk, 377 U.S. 163, 168 (1964); Shapiro v. Thompson, 394 U.S. 618, 

641-642 (1969). 156 Campbell v. Morris, 3 H. & McH. 288 (Md. 1797); Murray v. McCarty, 2 

Munf. 373 (Va. 1811); Livingston v. Van Ingen, 9 Johns. Case. 507 (N.Y. 1812); 

Douglas v. Stephens, 1 Del. Ch. 465 (1821); Smith v. Moody, 26 Ind. 299 (1866). 157 6 Fed. Cas. 546, 550 (No. 3230) (C.C.E.D. Pa. 1823). (Justice Washington on 

circuit), quoted infra, ‘‘All Privileges and Immunities of Citizens in the Several 

States’’. ‘‘At one time it was thought that this section recognized a group of rights 

which, according to the jurisprudence of the day, were classed as ‘natural rights’; 

and that the purpose of the section was to create rights of citizens of the United 

States by guaranteeing the citizens of every State the recognition of this group of 

rights by every other State. Such was the view of Justice Washington.’’ Hague v. 

CIO, 307 U.S. 496, 511 (1939) (Justice Roberts for the Court). This view of the 

clause was asserted by Justices Field and Bradley, Slaughter House Cases, 83 U.S. 

(16 Wall.) 97, 117-118 (1873) (dissenting opinions); Butchers’ Union Co. v. Crescent 

City Co., 111 U.S. 746, 760 (1884) (Justice Field concurring), but see infra, and was 

possibly understood so by Chief Justice Taney. Scott v. Sandford, 60 U.S. (19 How.) 

393, 423 (1857). And see id. at 580 (Justice Curtis dissenting). The natural rights 

concept of privileges and immunities was strongly held by abolitionists and their 

congressional allies who drafted the similar clause into 1 of the Fourteenth Amendment. Graham, Our ‘Declaratory’ Fourteenth Amendment, reprinted in H. 

GRAHAM, EVERYMAN’S CONSTITUTION—HISTORICAL ESSAYS ON THE FOURTEENTH

AMENDMENT, THE CONSPIRACY THEORY, AND AMERICAN CONSTITUTIONALISM 295

(1968). 158McKane v. Durston, 153 U.S. 684, 687 (1894); and see cases cited infra. 

class of civil rights meant by the phrase.’’ 152 At least four theories 

have been proffered regarding the purpose of this clause. First, the 

clause is a guaranty to the citizens of the different States of equal 

treatment by Congress; in other words, it is a species of equal protection clause binding on the National Government. Though it received some recognition in the Dred Scott case, 153 particularly in 

the opinion of Justice Catron, 154 this theory is today obsolete. 155

Second, the clause is a guaranty to the citizens of each State of the 

natural and fundamental rights inherent in the citizenship of persons in a free society, the privileges and immunities of free citizens, 

which no State could deny to citizens of other States, without regard to the manner in which it treated its own citizens. This theory 

found some expression in a few state cases 156 and best accords 

with the natural law-natural rights language of Justice Washington in Corfield v. Coryell. 157

If it had been accepted by the Court, this theory 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 due process and equal protection clauses of the 

Fourteenth Amendment, but it was firmly rejected by the Court. 158

Third, the clause guarantees to the citizen of any State the rights 

ART. IV—STATES’ RELATIONS 911

Sec. 2—Interstate Comity Cl. 1—State Citizenship: Privileges and Immunities 

159 City of Detroit v. Osborne, 135 U.S. 492 (1890). 

160Paul v. Virginia, 75 U.S. (8 Wall.) 168, 180 (1869) (Justice Field for the 

Court; but see supra); and see Slaughter House Cases, 83 U.S. (16 Wall.) 36, 77 

(1873); Chambers v. Baltimore & O.R.R., 207 U.S. 142 (1907); Whitfield v. Ohio, 297 

U.S. 431 (1936). 

161 Baldwin v. Montana Fish & Game Comm’n, 436 U.S. 371, 383 (1978). See

also Austin v. New Hampshire, 420 U.S. 656, 660-665 (1975) (clause ‘‘implicates not 

only the individual’s right to nondiscriminatory treatment but also, perhaps more 

so, the structural balance essential to the concept of federalism.’’ Id. at 662); Hicklin 

v. Orbeck, 437 U.S. 518, 523-524 (1978). 

162Supreme Court of New Hampshire v. Piper, 470 U.S. 274, 281-282 (1985). 

See also Doe v. Bolton, 410 U.S. 179, 200 (1973) (discrimination against out-of-state 

residents seeking medical care violates clause). 

163 Blake v. McClung, 172 U.S. 239, 246 (1898); Travis v. Yale & Towne Mfg. 

Co., 252 U.S. 60 (1920). 

which he enjoys as such even when he is sojourning in another 

State; that is, it enables him to carry with him his rights of State 

citizenship throughout the Union, unembarrassed by state lines. 

This theory, too, the Court rejected. 159 Fourth, the clause merely 

forbids any State to discriminate against citizens of other States in 

favor of its own. It is this narrow interpretation that has become 

the settled one. ‘‘It was undoubtedly the object of the clause in 

question 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.’’ 160

The recent cases emphasize that interpretation of the clause is 

tied to maintenance of the Union. ‘‘Some distinctions between residents and nonresidents merely reflect the fact that this is a Nation 

composed of individual States, and are permitted; other distinctions 

are prohibited because they hinder the formation, the purpose, or 

the development of a single Union of those States. Only with respect to those ‘privileges’ and ‘immunities’ bearing upon the vitality 

of the Nation as a single entity must the State treat all citizens, 

resident and nonresident, equally.’’ 161 While the clause ‘‘was intended to create a national economic union,’’ it also protects noneconomic interests relating to the Union. 162

Hostile discrimination against all nonresidents infringes the 

clause, 163 but controversies between a State and its own citizens 

912 ART. IV—STATES’ RELATIONS 

Sec. 2—Interstate Comity Cl. 1—State Citizenship: Privileges and Immunities 

164 Bradwell v. Illinois, 83 U.S. (16 Wall.) 130, 138 (1873); Cove v. Cunningham, 

133 U.S. 107 (1890). But see Zobel v. Williams, 457 U.S. 55, 71 (1982) (Justice 

O’Connor concurring). 165 United Building & Constr. Trades Council v. Mayor of Camden, 465 U.S. 208 

(1984). 166 Id. at 217. The holding illustrates what the Court has referred to as the ‘‘mutually reinforcing relationship’’ between the Commerce Clause and the Privileges 

and Immunities Clause. Supreme Court of New Hampshire v. Piper, 470 U.S. 274, 

280 n. 8 (1985) (quoting Hicklin v. Orbeck, 437 U.S. 518, 531 (1978)). See, e.g., Dean 

Milk Co. v. City of Madison, 424 U.S. 366 (1976) (city protectionist ordinance that 

disadvantages both out-of-state producers and some in-state producers violates Commerce Clause). 167 United States v. Harris, 106 U.S. 629, 643 (1883). See also Baldwin v. 

Franks, 120 U.S. 678 (1887). 168 United States v. Wheeler, 254 U.S. 281 (1920). 169Scott v. Sandford, 60 U.S. (19 How.) 393 (1857). 170 Id. at 403-411. 

are not covered by the provision. 164 However, a state discrimination in favor of residents of one of its municipalities implicates the 

clause, even though the disfavored class consists of in-state as well 

as out-of-state inhabitants. 165 The clause should not be read so literally, the Court held, as to permit States to exclude out-of-state 

residents from benefits through the simple expediency of delegating 

authority to political subdivisions. 166

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, 167

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, 168 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, 169 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. 170

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 

ART. IV—STATES’ RELATIONS 913

Sec. 2—Interstate Comity Cl. 1—State Citizenship: Privileges and Immunities 

171 Id. at 572-590. 

172 38 U.S. (13 Pet.) 519 (1839). 

173 Id. at 586. 

174 75 U.S. (8 Wall.) 168 (1869). 

175 Id. at 181. 

176 Crutcher v. Kentucky, 141 U.S. 47 (1891). 

177 Hemphill v. Orloff, 277 U.S. 537 (1928). 

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. 171 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, 172 this view was rejected. The 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.’’ 173 A similar result was reached in Paul

v. Virginia, 174 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’’ 175 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. 176 By reason of 

its similarity to the corporate form of organization, a Massachusetts trust has been denied the protection of this clause. 177

914 ART. IV—STATES’ RELATIONS 

Sec. 2—Interstate Comity Cl. 1—State Citizenship: Privileges and Immunities 

178 6 Fed. Cas. 546 (No. 3,230) (C.C.E.D. Pa., 1823). 179 Id. at 551-552. 180 Id. at 552. 

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, 178 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, . . .’’ 179 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 must 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 benefits 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; . . . .’’ 180

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. 

‘‘[W]e 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 

ART. IV—STATES’ RELATIONS 915

Sec. 2—Interstate Comity Cl. 1—State Citizenship: Privileges and Immunities 

181 Id. 182 Id. 183 94 U.S. 391 (1877). 184 161 U.S. 519 (1896). 185 209 U.S. 349 (1908). 186 334 U.S. 385 (1948). 187 Id. at 403. In Mullaney v. Anderson, 342 U.S. 415 (1952), an Alaska statute 

providing for the licensing of commercial fishermen in territorial waters and levying 

a license fee of $50.00 on nonresident and only $5.00 on resident fishermen was held 

void under Art. IV, § 2 on the authority of Toomer v. Witsell. 188The cases arose in the commerce clause context. See Douglas v. Seacoast 

Products, 431 U.S. 265, 284 (1977) (dictum). Geer v. Connecticut, 161 U.S. 519 

(1896), was overruled in Hughes v. Oklahoma, 441 U.S. 322 (1979); Hudson County 

Water Co. v. McCarter, 209 U.S. 349 (1908), was overruled in Sporhase v. Nebraska, 

ex rel. Douglas, 458 U.S. 941 (1982). 189 Although the clause specifically refers to ‘‘citizens,’’ the Court treats the 

terms ‘‘citizens’’ and ‘‘residents’’ as ‘‘essentially interchangeable.’’ Austin v. New 

Hampshire, 420 U.S. 656, 662 n.8 (1975); Hicklin v. Orbeck, 437 U.S. 518, 524 n.8 

(1978).

citizens.’’ 181 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.’’ 182 The precise holding 

of this case was confirmed in McCready v. Virginia; 183 the logic of 

Geer v. Connecticut 184 extended the same rule to wild game, and 

Hudson Water Co. v. McCarter 185 applied it to the running water 

of a State. In Toomer v. Witsell, 186 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 severely discriminatory license fee exacted from nonresidents was 

unconstitutional. 187

The virtual demise, however, of the state ownership theory of 

animals and natural resources 188 compelled the Court to review 

and revise its mode of analysis of state restrictions that distinguished between residents and nonresidents 189 in respect to hunting and fishing and working with natural resources. A two-pronged 

test emerged. First, the Court held, it must be determined whether 

an activity in which a nonresident wishes to engage is within the 

protection of the clause. Such an activity must be ‘‘fundamental,’’ 

must, that is, be essential or basic, ‘‘interference with which would 

frustrate the purposes of the formation of the Union, . . .’’ Justice 

Washington’s opinion on Circuit in Coryell afforded the Court the 

standard; while recognizing that the opinion relied on notions of 

natural rights, the Court thought he used the term ‘‘fundamental’’ 

in the modern sense as well. Such activities as the pursuit of comVerDate Apr<14>2004 15:53 Apr 14, 2004 Jkt 077500 PO 00000 Frm 00043 Fmt 8222 Sfmt 8222 C:\CONAN\CON015.SGM PRFM99 PsN: CON015
916 ART. IV—STATES’ RELATIONS 

Sec. 2—Interstate Comity Cl. 1—State Citizenship: Privileges and Immunities 

190 Baldwin v. Montana Fish & Game Comm’n, 436 U.S. 371 (1978). The 

quotation is id. at 387. 191Supreme Court of New Hampshire v. Piper, 470 U.S. 274 (1985). 192 United Building & Constr. Trades Council v. Mayor of Camden, 465 U.S. 208 

(1984). 193 Hicklin v. Orbeck, 437 U.S. 518 (1978). Activity relating to pursuit of an occupation or common calling the Court recognized had long been held to be protected 

by the clause. The burden of showing constitutional justification was clearly placed 

on the State, id. at 526-528, rather than giving the statute the ordinary presumption of constitutionality. See Mullaney v. Anderson, 342 U.S. 415, 418 (1952). 194 Barnard v. Thorstenn, 489 U.S. 546 (1989); Supreme Court of Virginia v. 

Friedman, 487 U.S. 59 (1988); Supreme Court of New Hampshire v. Piper, 470 U.S. 

274 (1985). For the application of this test, see Lunding v. New York Tax Appeals 

Tribunal, 522 U.S. 287, 296-99 (1998). 195 Blake v. McClung, 172 U.S. 239, 256 (1898). Of course as to suffrage, see

Dunn v. Blumstein, 405 U.S. 330 (1972), but not as to candidacy, the principle is 

now qualified under the equal protection clause of the Fourteenth Amendment. 

Baldwin v. Montana Fish & Game Comm’n, 436 U.S. 371, 383 (1978) (citing 

mon callings within the State, the ownership and disposition of privately held property within the State, and the access to the courts 

of the State, had been recognized in previous cases as fundamental 

and protected against unreasonable burdening; but sport and recreational hunting, the issue in the particular case, was not a fundamental activity. It had nothing to do with one’s livelihood and 

implicated no other interest recognized as fundamental. 190 Subsequent cases have recognized that the right to practice law 191 and

the right to seek employment on public contracts 192 are to be considered fundamental activity. 

Second, finding a fundamental interest protected under the 

clause, in the particular case the right to pursue an occupation or 

common calling, the Court employed a two-pronged analysis to determine whether the State’s distinction between residents and nonresidents was justified. Thus, the State was compelled to show that 

nonresidents constituted a peculiar source of the evil at which the 

statute was aimed and that the discrimination bore a substantial 

relationship to the particular ‘‘evil’’ they are said to represent, e.g., 

that it is ‘‘closely tailored’’ to meet the actual problem. An Alaska 

statute giving residents preference over nonresidents in hiring for 

work on the oil and gas pipelines within the State failed both elements of the test. 193 No state justification for exclusion of new residents from the practice of law on grounds not applied to long-term 

residents has been approved by the Court. 194

Universal practice has also established a political exception to 

the clause to which the Court has given its approval. ‘‘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.’’ 195

ART. IV—STATES’ RELATIONS 917

Sec. 2—Interstate Comity Cl. 1—State Citizenship: Privileges and Immunities 

Kanapaux v. Ellisor, 419 U.S. 891 (1974); Chimento v. Stark, 353 F. Supp. 1211 

(D.N.H.), aff’d. 414 U.S. 802 (1973)). 196LaTourette v. McMaster, 248 U.S. 465 (1919). 197Doherty & Co. v. Goodman, 294 U.S. 623 (1935). 198 Hess v. Pawloski, 274 U.S. 352, 356 (1927). 199Ferry v. Spokane P. & S. Ry., 258 U.S. 314 (1922), followed in Ferry v. 

Corbett, 258 U.S. 609 (1922). 200 Conner v. Elliott, 59 U.S. (18 How.) 591, 593 (1856). 201 Blake v. McClung, 172 U.S. 239, 248 (1898). 202Williams v. Bruffy, 96 U.S. 176, 184 (1878). 203 Chambers v. Baltimore & O.R.R., 207 U.S. 142, 148 (1907); McKnett v. St. 

Louis & S.F. Ry., 292 U.S. 230, 233 (1934). 

Discrimination in Private Rights 

Not only has judicial construction of the comity clause excluded 

certain privileges of a public nature from its protection, but the 

courts also have 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 reserve the right to sell insurance to persons 

who have resided within the State for a prescribed period of 

time. 196 It may require a nonresident who does business within the 

State 197 or who uses the highways of the State 198 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, 199 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. 200 But a State may not give a preference to resident creditors in the administration of the property of an insolvent 

foreign corporation. 201 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. 202

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. 203 The constitutional requireVerDate Apr<14>2004 15:53 Apr 14, 2004 Jkt 077500 PO 00000 Frm 00045 Fmt 8222 Sfmt 8222 C:\CONAN\CON015.SGM PRFM99 PsN: CON015
918 ART. IV—STATES’ RELATIONS 

Sec. 2—Interstate Comity Cl. 1—State Citizenship: Privileges and Immunities 

204 Canadian Northern Ry. v. Eggen, 252 U.S. 553 (1920). 205 Id. at 563. 206 Chemung Canal Bank v. Lowery, 93 U.S. 72, 76 (1876). 207Douglas v. New York, N.H. & H. R.R., 279 U.S. 377 (1929). 208 Chambers v. Baltimore & O.R.R., 207 U.S. 142 (1907). 209 New York v. O’Neill, 359 U.S. 1 (1959). Justices Douglas and Black dissented. 210 79 U.S. (12 Wall.) 418, 424 (1871). See also Downham v. Alexandria Council, 

77 U.S. (10 Wall.) 173, 175 (1870). 211 Chalker v. Birmingham & Nw. Ry., 249 U.S. 522 (1919). 

ment 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. 204 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 205 and another such statute which suspended 

its operation as to resident plaintiffs, but not as to nonresidents, 

during the period of the defendant’s absence from the State. 206 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. 207 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. 208

Being patently nondiscriminatory, a Uniform Reciprocal State Law 

to secure the attendance of witnesses from within or without a 

State in criminal proceedings, whereunder an Illinois resident, 

while temporarily in Florida, was summoned to appear at a hearing for determination as to whether he should be surrendered to 

a New York officer for testimony in the latter State, is not violative 

of this clause. 209

Taxation

In the exercise of its taxing power, a State may not discriminate substantially between residents and nonresidents. In Ward v. 

Maryland, 210 the Court set aside a state law which imposed specific taxes upon nonresidents for the privilege of selling within the 

State goods which were produced in other States. Also found to be 

incompatible with the comity clause was a Tennessee license tax, 

the amount of which was dependent upon whether the person 

taxed had his chief office within or without the State. 211 In Travis

ART. IV—STATES’ RELATIONS 919

Sec. 2—Interstate Comity Cl. 1—State Citizenship: Privileges and Immunities 

212 252 U.S. 60 (1920). 213 Id. at 62-64. See also Shaffer v. Carter, 252 U.S. 37 (1920). In Austin v. New 

Hampshire, 420 U.S. 656 (1975), the Court held void a state commuter income tax, 

inasmuch as the State imposed no income tax on its own residents and thus the 

tax fell exclusively on nonresidents’ income and was not offset even approximately 

by other taxes imposed upon residents alone. 214 252 U.S. 60, 78-79 (1920). 215Williams v. Fears, 179 U.S. 270, 274 (1900). 216 522 U.S. 287 (1998). 217 522 U.S. at 298. 218 Haavik v. Alaska Packers Ass’n, 263 U.S. 510 (1924). 

v. Yale & Towne Mfg. Co., 212 the Court, while sustaining the right 

of a State to tax income accruing within its borders to nonresidents, 213 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; . . .’’ 214 Where there 

were no discriminations between citizens and noncitizens, a state 

statute taxing the business of hiring persons within the State for 

labor outside the State was sustained. 215

The Court returned to the privileges-and-immunities restrictions upon disparate state taxation of residents and nonresidents 

in Lunding v. New York Tax Appeals Tribunal. 216 In this case, the 

State denied nonresidents any deduction from taxable income for 

alimony payments, although it permitted residents to deduct such 

payments. While observing that approximate equality between residents and nonresidents was required by the clause, the Court acknowledged that precise equality was neither necessary nor in 

most instances possible. But it was required of the challenged State 

that it demonstrate a ‘‘substantial reason’’ for the disparity, and 

the discrimination must bear a ‘‘substantial relationship’’ to that 

reason. 217 A State, under this analysis, may not deny nonresidents 

a general tax exemption provided to residents that would reduce 

their tax burdens, but it could limit specific expense deductions 

based on some relationship between the expenses and their in-state 

property or income. Here, the State flatly denied the exemption. 

Moreover, the Court rejected various arguments that had been presented, finding that most of those arguments, while they might 

support targeted denials or partial denials, simply reiterated the 

State’s contention that it need not afford any exemptions at all. 

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. 218

920 ART. IV—STATES’ RELATIONS 

Sec. 2—Interstate Comity Cl. 2—Interstate Rendition 

219Travellers’ Ins. Co. v. Connecticut, 185 U.S. 364, 371 (1902). 220Maxwell v. Bugbee, 250 U.S. 525 (1919). 221Kirtland v. Hotchkiss, 100 U.S. 491, 499 (1879). Cf. Colgate v. Harvey, 296 

U.S. 404 (1935), in which discriminatory taxation of bank deposits outside the State 

owned by a citizen of the State was held to infringe a privilege of national citizenship, in contravention of the Fourteenth Amendment. The decision in Colgate v. 

Harvey was overruled in Madden v. Kentucky, 309 U.S. 83, 93 (1940). 222 1 Stat. 302 (1793), 18 U.S.C. § 3182. The Act requires rendition of fugitives 

at the request of a demanding ‘‘Territory,’’ as well as of a State, thus extending beyond the terms of the clause. In New York ex rel. Kopel v. Bingham, 211 U.S. 468 

(1909), the Court held that the legislative extension was permissible under the territorial clause. See Puerto Rico v. Branstad, 483 U.S. 219, 229-230 (1987). 

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 overall 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. 219 Occasional or accidental inequality to a nonresident taxpayer is not sufficient to defeat a scheme of taxation whose operation is generally 

equitable. 220 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. 221

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. 

INTERSTATE RENDITION 

Duty to Surrender Fugitives From Justice 

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. 222 The Supreme 

Court has accepted this contemporaneous construction as estabVerDate Apr<14>2004 15:53 Apr 14, 2004 Jkt 077500 PO 00000 Frm 00048 Fmt 8222 Sfmt 8222 C:\CONAN\CON015.SGM PRFM99 PsN: CON015
ART. IV—STATES’ RELATIONS 921

Sec. 2—Interstate Comity Cl. 2—Interstate Rendition 

223 Roberts v. Reilly, 116 U.S. 80, 94 (1885). See also Innes v. Tobin, 240 U.S. 

127 (1916). Said Justice Story: ‘‘[T]he natural, if not the necessary conclusion is, 

that the national government, in the absence of all positive provisions to the contrary, is bound, through its own proper departments, legislative, judicial, or executive, as the case may require, to carry into effect all the rights and duties imposed 

upon it by the Constitution;’’ and again ‘‘it has, on various occasions, exercised powers which were necessary and proper as means to carry into effect rights expressly 

given, and duties expressly enjoined thereby.’’ Prigg v. Pennsylvania, 41 U.S. (16 

Pet.) 539, 616, 618-619 (1842). 224Taylor v. Taintor, 83 U.S. (16 Wall.) 366, 371 (1873). 225 65 U.S. (24 How.) 66 (1861); cf. Prigg v. Pennsylvania 41 U.S. (16 Pet.) 539, 

612 (1842). 226 65 U.S. (24 How.) 66, 107 (1861). Congress in 1934 plugged the loophole created 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. 48 Stat. 782, 18 

U.S.C. § 1073. 227Puerto Rico v. Branstad, 483 U.S. 219 (1987). ‘‘Kentucky v. Dennison is the 

product of another time. The conception of the relation between the States and the 

Federal Government there announced is fundamentally incompatible with more 

than a century of constitutional development.’’ Id. at 230. 228 Id. at 230. 229 Roberts v. Reilly, 116 U.S. 80 (1885). See also Strassheim v. Daily, 221 U.S. 

280 (1911); Appleyard v. Massachusetts, 203 U.S. 222 (1906); Ex parte Reggel, 114 

U.S. 642, 650 (1885). 230Drew v. Thaw, 235 U.S. 432, 439 (1914). 

lishing the validity of this legislation. 223 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. 224 But, in Kentucky

v. Dennison, 225 the Court held 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; . . .’’, 226 and consequently that a federal court 

could not issue a mandamus to compel the governor of one State 

to surrender a fugitive to another. Long considered a constitutional 

derelict, Dennison was finally formally overruled in 1987. 227 Now,

States and Territories may invoke the power of federal courts to 

enforce against state officers this and other rights created by federal statute, including equitable relief to compel performance of 

federally-imposed duties. 228

Fugitive From Justice Defined.—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. 229 The motive 

which induced the departure is immaterial. 230 Even if he were 

brought involuntarily into the State where found by requisition 

922 ART. IV—STATES’ RELATIONS 

Sec. 2—Interstate Comity Cl. 2—Interstate Rendition 

231 Innes v. Tobin, 240 U.S. 127 (1916). 232 Bassing v. Cady, 208 U.S. 386 (1908). 233 Hyatt v. People ex rel. Corkran, 188 U.S. 691 (1903). 234Kentucky v. Dennison, 65 U.S. (24 How.) 66, 103 (1861). 235Taylor v. Taintor, 83 U.S. (16 Wall.) 366, 375 (1873). 236Kentucky v. Dennison, 65 U.S. (24 How.) 66, 104 (1861); Pierce v. Creecy, 

210 U.S. 387 (1908). See also Matter of Strauss, 197 U.S. 324, 325 (1905); Marbles 

v. Creecy, 215 U.S. 63 (1909); Strassheim v. Daily, 221 U.S. 280 (1911). 237Munsey v. Clough, 196 U.S. 364 (1905); Pettibone v. Nichols, 203 U.S. 192 

(1906). 238Drew v. Thaw, 235 U.S. 432 (1914). 239Pettibone v. Nichols, 203 U.S. 192 (1906). 240 Biddinger v. Commissioner of Police, 245 U.S. 128 (1917). See also Rodman

v. Pothier, 264 U.S. 399 (1924). 241Sweeney v. Woodall, 344 U.S. 86 (1952). 

from another State, he may be surrendered to a third State upon 

an extradition warrant. 231 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. 232 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. 233 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, 234 including misdemeanors. 235

Procedure for Removal.—Only after a person has been 

charged with a crime in the regular course of judicial proceedings 

is the governor of a State entitled to make demand for his return 

from another State. 236 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. 237 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. 238 Nor is 

it proper thereby to inquire into the motives controlling the actions 

of the governors of the demanding and surrendering States. 239

Matters of defense, such as the running of the statute of limitations, 240 or the contention that continued confinement in the prison 

of the demanding State would amount to cruel and unjust punishment, 241 cannot be heard on habeas corpus but should be tested in 

the courts of the demanding State, where all parties may be heard, 

where all pertinent testimony will be readily available, and where 

suitable relief, if any, may be fashioned. 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 

ART. IV—STATES’ RELATIONS 923

Sec. 2—Interstate Comity Cl. 3—Fugitives From Labor 

242 Hyatt v. People ex rel. Corkran, 188 U.S. 691 (1903). See also South Carolina 

v. Bailey, 289 U.S. 412 (1933). 243Munsey v. Clough, 196 U.S. 364, 375 (1905). 244Michigan v. Doran, 439 U.S. 282, 289 (1978). In California v. Superior Court, 

482 U.S. 400 (1987), the Court reiterated that extradition is a ‘‘summary procedure.’’ 245Ker v. Illinois, 119 U.S. 436, 444 (1886); Mahon v. Justice, 127 U.S. 700, 707, 

712, 714 (1888). 246 Cook v. Hart, 146 U.S. 183, 193 (1892); Pettibone v. Nichols, 203 U.S. 192, 

215 (1906). 247Lascelles v. Georgia, 148 U.S. 537, 543 (1893). 248 United States v. Rauscher, 119 U.S. 407, 430 (1886). 249Prigg v. Pennsylvania, 41 U.S. (16 Pet.) 539, 612 (1842). 

of the crime. 242 If, however, the evidence is conflicting, habeas corpus is not a proper proceeding to try the question of alibi. 243 The

habeas court’s role is, therefore, very limited. 244

Trial of Fugitives 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, 245 or by abuse of legal 

process, 246 and a fugitive lawfully extradited from another State 

may be tried for an offense other than that for which he was surrendered. 247 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 offense 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.’’ 248

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. 

FUGITIVES FROM LABOR 

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. 249 Congress had the power and the duty, which it exerVerDate Apr<14>2004 15:53 Apr 14, 2004 Jkt 077500 PO 00000 Frm 00051 Fmt 8222 Sfmt 8222 C:\CONAN\CON015.SGM PRFM99 PsN: CON015
924 ART. IV—STATES’ RELATIONS 

Sec. 3—New States Cl. 1—Admission of New States to Union 

250 1 Stat. 302 (1793). 251 Jones v. Van Zandt, 46 U.S. (5 How.) 215, 229 (1847); Ableman v. Booth, 62 

U.S. (21 How.) 506 (1859). 252Prigg v. Pennsylvania, 41 U.S. (16 Pet.) 539, 625 (1842). 253Moore v. Illinois, 55 U.S. (14 How.) 13, 17 (1853). 254 Escanaba Co. v. City of Chicago, 107 U.S. 678, 689 (1883). 255 2 M. FARRAND, THE RECORDS OF THE FEDERAL CONVENTION OF 1787 454 

(rev. ed. 1937). 256 Id. 257 Id. The present provision was then adopted as a substitute. Id. at 455. 

cised by the Act of February 12, 1793, 250 to carry into effect the 

rights given by this section, 251 and the States had no concurrent 

power to legislate on the subject. 252 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. 253

SECTION 3. Clause 1. 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 was well as of the Congress. 

DOCTRINE OF THE EQUALITY OF STATES 

‘‘Equality of constitutional right and power is the condition of 

all the States of the Union, old and new.’’ 254 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.’’ 255 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.’’ 256 Nonetheless, after 

further expressions of opinion pro and con, the Convention voted 

nine States to two to delete the requirement of equality. 257

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 

ART. IV—STATES’ RELATIONS 925

Sec. 3—New States Cl. 1—Admission of New States to Union 

258Pollard’s Lessee v. Hagan, 44 U.S. (3 How.) 212, 221 (1845). The Continental 

Congress in responding in the Northwest Ordinance, on July 13, 1787, provided that 

when each of the designated States in the territorial area achieved a population of 

60,000 free inhabitants it was to be admitted ‘‘on an equal footing with the original 

States, in all respects whatever[.]’’ An Ordinance for the Government of the Territory 

of the United States Northwest of the River Ohio, Art. V, 5 JOURNALS OF CONGRESS 752-754 (1823 ed.), reprinted in C. Tansill ed., Documents Illustrative of the 

Formation of the Union of the American States, H. DOC. NO. 398, 69th Cong., 1st 

Sess. (1927), 47, 54. 259 1 Stat. 491 (1796). Prior to Tennessee’s admission, Vermont and Kentucky 

were admitted with different but conceptually similar terminology. 1 Stat. 191 

(1791); 1 Stat. 189 (1791). 260 2 Stat. 701, 703 (1812). 261 Justice Harlan, speaking for the Court, in United States v. Texas, 143 U.S. 

621, 634 (1892) (citing 9 Stat. 108). 262Permoli v. Municipality No. 1, 44 U.S. (3 How.) 589, 609 (1845); McCabe v. 

Atchison, T. & S.F. Ry., 235 U.S. 151 (1914); Illinois Central R.R. v. Illinois, 146 

U.S. 387, 434 (1892); Knight v. U.S. Land Association, 142 U.S. 161, 183 (1891); 

Weber v. Harbor Commissioners, 85 U.S. (18 Wall.) 57, 65 (1873). 263Pollard’s Lessee v. Hagan, 44 U.S. (3 How.) 212 (1845). See Mayor of New 

Orleans v. United States, 35 U.S. (10 Pet.) 662 (1836); Permoli v. Municipality No. 

1 of New Orleans, 44 U.S. (3 How.) 588 (1845). 264 3 Stat. 489, 492 (1819). 

Union on an equal footing with the original States. 258 Since the admission of Tennessee in 1796, Congress has included in each 

State’s act of admission a clause providing that the State enters 

the Union ‘‘on an equal footing with the original States in all respects whatever.’’ 259 With the admission of Louisiana in 1812, the 

principle of equality was extended to States created out of territory 

purchased from a foreign power. 260 By the Joint Resolution of December 29, 1845, Texas, then an independent Nation, ‘‘was admitted into the Union on an equal footing with the original States in 

all respects whatever.’’ 261

However, if the doctrine rested merely on construction of the 

declarations in the admission acts, then the conditions and limitations imposed by Congress and agreed to by the States in order to 

be admitted would nonetheless govern, since they must be construed along with the declarations. Again and again, however, 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. 262 That the doctrine is of constitutional stature was made evident at least by the 

time of the decision in Pollard’s Lessee, if not before. 263 Pollard’s

Lessee involved conflicting claims by the United States and Alabama of ownership of certain partially inundated lands on the 

shore of the Gulf of Mexico in Alabama. The enabling act for Alabama had contained both a declaration of equal footing and a reservation to the United States of these lands. 264 Rather than an 

issue of mere land ownership, the Court saw the question as one 

926 ART. IV—STATES’ RELATIONS 

Sec. 3—New States Cl. 1—Admission of New States to Union 

265Pollard’s Lessee v. Hagan, 44 U.S. (3 How.) 212, 228-229 (1845) (emphasis 

supplied). And see id. at 222-223. 266 Coyle v. Smith, 221 U.S. 559 (1911). 267 Id. at 567. 268South Carolina v. Katzenbach, 383 U.S. 301, 328-329 (1966). There is a 

broader implication, however, in Baker v. Carr, 369 U.S. 186, 226 n. 53 (1962). 

concerning sovereignty and jurisdiction of the States. Inasmuch as 

the original States retained sovereignty and jurisdiction over the 

navigable waters and the soil beneath them within their boundaries, retention by the United States of either title to or jurisdiction 

over common lands in the new States would bring those States into 

the Union on less than an equal footing with the original States. 

This, the Court would not permit. ‘‘Alabama is, therefore, entitled 

to the sovereignty and jurisdiction over all the territory within her 

limits, subject to the common law, to the same extent that Georgia 

possessed it, before she ceded it to the United States. To maintain 

any other doctrine, is to deny that Alabama has been admitted into 

the union on an equal footing with the original states, the constitution, laws, and compact, to the contrary notwithstanding. . . . [T]o

Alabama belong the navigable waters and soils under them, in controversy in this case, subject to the rights surrendered by the Constitution to the United States; and no compact that might be made 

between her and the United States could diminish or enlarge these 

rights.’’ 265

Finally, in 1911, the Court 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. 266 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.’’ 267

The equal footing doctrine is a limitation only upon the terms 

by which Congress admits a State. 268 That is, States must be admitted on an equal footing in the sense that Congress may not 

exact conditions solely as a tribute for admission, but it may, in the 

enabling or admitting acts or subsequently impose requirements 

ART. IV—STATES’ RELATIONS 927

Sec. 3—New States Cl. 1—Admission of New States to Union 

269Pollard’s Lessee v. Hagan, 44 U.S. (3 How.) 212, 224-225, 229-230 (1845); 

Coyle v. Smith, 221 U.S. 559, 573-574 (1911). See also Bolln v. Nebraska, 176 U.S. 

83, 89 (1900); Ward v. Race Horse, 163 U.S. 504, 514 (1895); Escanaba Co. v. City 

of Chicago, 107 U.S. 678, 688 (1882); Withers v. Buckley, 61 U.S. (20 How.) 84, 92 

(1857). 270 Coyle v. Smith, 221 U.S. 559, 574 (1911). Examples include Stearns v. Minnesota, 179 U.S. 223 (1900) (congressional authority to dispose of and to make rules 

and regulations respecting the property of the United States); United States v. 

Sandoval, 231 U.S. 28 (1913) (regulating Indian tribes and intercourse with them); 

United States v. Chavez, 290 U.S. 357 (1933) (same); Willamette Iron Bridge Co. 

v. Hatch, 125 U.S. 1, 9-10 (1888) (prevention of interference with navigability of waterways under commerce clause). 271 United States v. Texas, 339 U.S. 707, 716 (1950); Stearns v. Minnesota, 179 

U.S. 223, 245 (1900). 272Pollard’s Lessee v. Hagan, 44 U.S. (3 How.) 212, 223 (1845); McCabe v. Atchison T. & S.F. Ry., 235 U.S. 151 (1914). 273 Van Brocklin v. Tennessee, 117 U.S. 151, 167 (1886). 274Wilson v. Cook, 327 U.S. 474 (1946). 

that would be or are valid and effectual if the subject of congressional legislation after admission. 269 Thus, Congress may embrace 

in an admitting act a regulation of commerce among the States or 

with Indian tribes or rules for the care and disposition of the public 

lands or reservations within a State. ‘‘[I]n every such case such legislation would derive its force not from any agreement or compact 

with the proposed new State, nor by reason of its acceptance of 

such enactment as a term of admission, but solely because the 

power of Congress extended to the subject, and, therefore, would 

not operate to restrict the State’s legislative power in respect of 

any matter which was not plainly within the regulating power of 

Congress.’’ 270

Until recently the requirement of equality has applied primarily to political standing and sovereignty rather than to economic or property rights. 271 Broadly speaking, every new State is 

entitled to exercise all the powers of government which belong to 

the original States of the Union. 272 It acquires general jurisdiction, 

civil and criminal, for the preservation of public order, and the protection of persons and property throughout its limits even as to federal lands, except where the Federal Government has reserved 273

or the State has ceded some degree of jurisdiction to the United 

States, and, of course, no State can enact a 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 (although not to tax the Federal lands), 

if the tax does not constitute an unconstitutional burden on the 

Federal Government. 274 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 

928 ART. IV—STATES’ RELATIONS 

Sec. 3—New States Cl. 1—Admission of New States to Union 

275Permoli v. First Municipality, 44 U.S. (3 How.) 589, 609 (1845); Sands v. 

Manistee River Imp. Co., 123 U.S. 288, 296 (1887); see also Withers v. Buckley, 61 

U.S. (20 How.) 84, 92 (1858); Huse v. Glover, 119 U.S. 543 (1886); Willamette Iron 

Bridge Co. v. Hatch, 125 U.S. 1, 9 (1888); Cincinnati v. Louisville & Nashville R.R., 

223 U.S. 390 (1912). 276Draper v. United States, 164 U.S. 240 (1896), following United States v. 

McBratney, 104 U.S. 621 (1882). 277Dick v. United States, 208 U.S. 340 (1908); Ex parte Webb, 225 U.S. 663 

(1912). 278 United States v. Sandoval, 231 U.S. 28 (1913). 279Minnesota v. Mille Lacs Band of Chippewa Indians, 119 S. Ct. 1187, 1204- 

05 (1999) (overruling Ward v. Race Horse, 163 U.S. 504 (1896)). 280 Boyd v. Nebraska ex rel. Thayer, 143 U.S. 135, 170 (1892). 281 Baker v. Morton, 79 U.S. (12 Wall.) 150, 153 (1871). 282Freeborn v. Smith, 69 U.S. (2 Wall.) 160 (1865). 

Union, except as adopted by state law. 275 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. 276 But the constitutional authority of Congress to regulate commerce with Indian tribes is not inconsistent 

with the equality of new States, 277 and conditions inserted in the 

New Mexico Enabling Act forbidding the introduction of liquor into 

Indian territory were therefore valid. 278 Similarly, Indian treaty 

rights to hunt, fish, and gather on lands ceded to the Federal Government were not extinguished by statehood. These ‘‘usufructuary’’ 

rights were subject to reasonable state regulation, and hence were 

not irreconcilable with state sovereignty over natural resources. 279

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. 280

Judicial Proceedings Pending on Admission of New States 

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 the option 

under existing law. 281 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. 282 After a case, begun in a United States 

court of a territory, is transferred to a state court under the operVerDate Apr<14>2004 15:53 Apr 14, 2004 Jkt 077500 PO 00000 Frm 00056 Fmt 8222 Sfmt 8222 C:\CONAN\CON015.SGM PRFM99 PsN: CON015
ART. IV—STATES’ RELATIONS 929

Sec. 3—New States Cl. 1—Admission of New States to Union 

283 John v. Paullin, 231 U.S. 583 (1913). 284 Hunt v. Palao, 45 U.S. (4 How.) 589 (1846). Cf. Benner v. Porter, 50 U.S. 

(9 How.) 235, 246 (1850). 285 44 U.S. (3 How.) 212, 223 (1845). See also Martin v. Waddell, 41 U.S. (16 

Pet.) 367, 410 (1842). 286See Phillips Petroleum Co. v. Mississippi, 484 U.S. 469 (1988) (confirming 

language in earlier cases recognizing state sovereignty over tidal but nonnavigable 

lands); Utah Division of State Lands v. United States, 482 U.S. 193 (1987) (applying 

presumption against congressional intent to defeat state title to find inadequate federal reservation of lake bed); Idaho v. United States, 533 U.S. 262 (2001) (presumption rebutted by indications – some occurring after statehood – that Congress intended to reserve certain submerged lands for benefit of an Indian tribe); Oregon 

ex rel. State Land Bd. v. Corvallis Sand & Gravel Co., 429 U.S. 363 (1977) (doctrine 

requires utilization of state common law rather than federal to determine ownership 

of land underlying river that is navigable but not an interstate boundary); Shively 

v. Bowlby, 152 U.S. 1 (1894) (whether Oregon or a pre-statehood grantee from the 

United States of riparian lands near mouth of Columbia River owned soil below 

high-water mark). 287 United States v. California, 332 U.S. 19, 38 (1947); United States v. Louisiana, 339 U.S. 699 (1950). 288 339 U.S. 707, 716 (1950). See United States v. Maine, 420 U.S. 515 (1975) 

(unanimously reaffirming the California, Louisiana, and Texas cases). 

ation of the enabling act and the state constitution, the appellate 

procedure is governed by the state statutes and procedures. 283

The new State, without the express or implied assent of Congress, cannot 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. 284

Property Rights of States to Soil Under Navigable Waters 

The ‘‘equal footing’’ doctrine has had an important effect on the 

property rights of new States to soil under navigable waters. In 

Pollard’s Lessee v. Hagan, 285 as was observed above, 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 beneath navigable water passes to a new State upon admission. The 

principle of this case supplies the rule of decision in many property-claims cases. 286

After refusing to extend the inland-water rule of Pollard’s Lessee to the three mile marginal belt under the ocean along the 

coast, 287 the Court applied the principle in reverse in United States 

v. Texas. 288 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 

930 ART. IV—STATES’ RELATIONS 

Sec. 3—New States Cl. 2—Property and Territory 

289 Brown v. Grant, 116 U.S. 207, 212 (1886). 290 67 Stat. 29, 43 U.S.C. §§ 1301-1315. 291 Alabama v. Texas, 347 U.S. 272, 274-277, 281 (1954). Justice Black and 

Douglas dissented. 292Shively v. Bowlby, 152 U.S. 1, 47 (1894). See also Joy v. St. Louis, 201 U.S. 

332 (1906). 293 United States v. Winans, 198 U.S. 371, 378 (1905); Seufert Bros. v. United 

States, 249 U.S. 194 (1919). A fishing right granted by treaty to Indians does not 

necessarily preclude the application to Indians of state game laws regulating the 

time and manner of taking fish. New York ex rel. Kennedy v. Becker, 241 U.S. 556 

(1916). See also Metlakatla Indians v. Egan, 369 U.S. 45, 54, 57-59 (1962): Kake 

Village v. Egan, 369 U.S. 60, 64-65, 67-69, 75-76 (1962). But it has been held to 

be violated by the exaction of a license fee which is both regulatory and revenue 

producing. Tulee v. Washington, 315 U.S. 681 (1942). 294 39 U.S. (14 Pet.) 526 (1840). 295 Id. at 533, 538. 

to the State upon admission 289 has been qualified. However, when 

Congress, through passage of the Submerged Lands Act of 1953, 290

surrendered its paramount rights to natural resources in the marginal seas to certain States, without any corresponding cession to 

all States, the transfer was held to entail no abdication of national 

sovereignty over control and use of the oceans in a manner destructive of the equality of the States. 291

While the territorial status continues, the United States has 

power to convey property rights, such as rights in soil below the 

high-water mark along navigable waters, 292 or the right to fish in 

designated waters, 293 which will be binding on the State. 

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 AND TERRITORY: POWERS OF CONGRESS 

Methods of Disposing of Property 

The Constitution is silent as to the methods of disposing of 

property of the United States. In United States v. Gratiot, 294 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.’’ 295 Nearly a cenVerDate Apr<14>2004 15:53 Apr 14, 2004 Jkt 077500 PO 00000 Frm 00058 Fmt 8222 Sfmt 8222 C:\CONAN\CON015.SGM PRFM99 PsN: CON015
ART. IV—STATES’ RELATIONS 931

Sec. 3—New States Cl. 2—Property and Territory 

296 Ashwander v. TVA, 297 U.S. 288, 335-340 (1936). See also Alabama Power 

Co. v. Ickes, 302 U.S. 464 (1938). 297 United States v. Fitzgerald, 40 U.S. (15 Pet.) 407, 421 (1841). See also California v. Deseret Water, Oil & Irrigation Co., 243 U.S. 415 (1917); Utah Power & 

Light Co. v. United States, 243 U.S. 389 (1917). 298Sioux Tribe v. United States, 316 U.S. 317 (1942); United States v. Midwest 

Oil Co., 236 U.S. 459, 469 (1915). 299Federal Land Policy and Management Act, Pub. L. 94-579, § 704(a); 90 Stat. 

2792 (1976). 300Gibson v. Chouteau, 80 U.S. (13 Wall.) 92, 99 (1872); see also Irvine v. Marshall, 61 U.S. (20 How.) 558 (1858); Emblem v. Lincoln Land Co., 184 U.S. 660, 664 

(1902). 301 Bagnell v. Broderick, 38 U.S. (13 Pet.) 436, 450 (1839). See also Field v. 

Seabury, 60 U.S. (19 How.) 323, 332 (1857). 302Tameling v. United States Freehold & Immigration Co., 93 U.S. 644, 663 

(1877). See also Maxwell Land-Grant Case, 121 U.S. 325, 366 (1887). 303 Ruddy v. Rossi, 248 U.S. 104 (1918). 304Light v. United States, 220 U.S. 523 (1911). See also The Yosemite Valley 

Case, 82 U.S. (15 Wall.) 77 (1873). 

tury 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. 296

Public Lands: Federal and State Powers Over 

No appropriation of public lands may be made for any purpose 

except by authority of Congress. 297 However, Congress was held to 

have acquiesced in the long-continued practice of withdrawing land 

from the public domain by Executive Orders. 298 In 1976 Congress 

enacted legislation that established procedures for withdrawals and 

that explicitly disclaimed continued acquiescence in any implicit 

executive withdrawal authority. 299 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, 300 to declare the dignity and effect of titles emanating from the United States, 301 to determine the validity of grants which antedate the government’s acquisition of the property, 302 to exempt lands acquired under the 

homestead laws from previously contracted debts, 303 to withdraw 

land from settlement and to prohibit grazing thereon, 304 to prevent 

unlawful occupation of public property and to declare what are 

932 ART. IV—STATES’ RELATIONS 

Sec. 3—New States Cl. 2—Property and Territory 

305 Camfield v. United States, 167 U.S. 518, 525 (1897). See also Jourdan v. Barrett, 45 U.S. (4 How.) 169 (1846): United States v. Waddell, 112 U.S. 76 (1884). 306 United States v. McGowan, 302 U.S. 535 (1938). 307 United States v. City of San Francisco, 310 U.S. 16 (1940). 308Kleppe v. New Mexico, 426 U.S. 529 (1976). 309 California Coastal Comm’n v. Granite Rock Co., 480 U.S. 572 (1987). 310 Van Brocklin v. Tennessee, 117 U.S. 151 (1886); cf. Wilson v. Cook, 327 U.S. 

474 (1946). 311Gibson v. Chouteau, 80 U.S. (13 Wall.) 92, 99 (1872). See also Irvine v. Marshall, 61 U.S. (20 How.) 558 (1858); Emblem v. Lincoln Land Co., 184 U.S. 660, 664 

(1902). 312Williams v. Lee, 358 U.S. 217 (1959). 313Wilcox v. McConnel, 38 U.S. (13 Pet.) 498, 517 (1839). 

nuisances, as affecting such property, and provide for their abatement, 305 and to prohibit the introduction of liquor on lands purchased and used for an Indian colony. 306 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. 307

Unanimously upholding a federal law to protect wild-roaming 

horses and burros on federal lands, the Court restated the applicable principles governing Congress’ power under this clause. It empowers Congress to act as both proprietor and legislature over the 

public domain; Congress has complete power to make those ‘‘needful rules’’ which in its discretion it determines are necessary. When 

Congress acts with respect to those lands covered by the clause, its 

legislation overrides conflicting state laws. 308 Absent action by 

Congress, however, States may in some instances exercise some jurisdiction over activities on federal lands. 309

No State can tax public lands of the United States within its 

borders, 310 nor can state legislation interfere with the power of 

Congress under this clause or embarrass its exercise. 311 Thus, by 

virtue of a Treaty of 1868, according self-government to Navajos 

living on an Indian Reservation in Arizona, the tribal court, rather 

than the courts of that State, had jurisdiction over a suit for a debt 

owed by an Indian resident thereof to a non-Indian conducting a 

store on the Reservation under federal license. 312 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.’’ 313

In construing a conveyance by the United States of land within a 

ART. IV—STATES’ RELATIONS 933

Sec. 3—New States Cl. 2—Property and Territory 

314Oklahoma v. Texas, 258 U.S. 574, 595 (1922). 315 United States v. Oregon, 295 U.S. 1, 28 (1935). 316Simms v. Simms, 175 U.S. 162, 168 (1899). See also United States v. McMillan, 165 U.S. 504, 510 (1897); El Paso & N.E. Ry. v. Gutierrez, 215 U.S. 87 (1909); 

First Nat’l Bank v. County of Yankton, 101 U.S. 129, 133 (1880). 317 Binns v. United States, 194 U.S. 486, 491 (1904). See also Sere v. Pitot, 10 

U.S. (6 Cr.) 332, 336 (1810); Murphy v. Ramsey, 114 U.S. 15, 44 (1885). 318Walker v. New Mexico & S.P.R.R., 165 U.S. 593, 604 (1897); Simms v. 

Simms, 175 U.S. 162, 163 (1899); Wagoner v. Evans, 170 U.S. 588, 591 (1898). 319 24 Stat. 170 (1886). 320Downes v. Bidwell, 182 U.S. 244, 271 (1901). See also Mormon Church v. 

United States, 136 U.S. 1, 14 (1890); ICC v. United States ex rel. Humboldt Steamship Co., 224 U.S. 474 (1912). 321Downes v. Bidwell, 182 U.S. 244 (1901); Dorr v. United States, 195 U.S. 138 

(1904); Balzac v. Porto Rico, 258 U.S. 298 (1922) (collectively, the Insular Cases).

The guarantees of fundamental rights apply to persons in Puerto Rico, id. at 312- 

313, but what these are and how they are to be determined, in light of Balzac’s

holding that the right to a civil jury trial was not protected. The vitality of the Insular Cases has been questioned by some Justices, Reid v. Covert, 354 U.S. 1, 14 

(1957) (plurality opinion); Torres v. Puerto Rico, 442 U.S. 465, 474, 475 (1979) (concurring opinion of four Justices), but there is no doubt the Court adheres to it, 

United States v. Verdugo-Urquidez, 494 U.S. 259, 268 (1990); Harris v. Rosario, 446 

U.S. 651 (1980), and the developing caselaw using the cases as the proper analysis. 

Applying stateside rights in Puerto Rico are Calero-Toledo v. Pearson Yacht Leasing 

Co., 416 U.S. 663 (1974) (procedural due process); Examining Board v. Flores de 

Otero, 426 U.S. 572 (1976) (equal protection principles); Torres v. Puerto Rico, 442 

U.S. 465 (1979) (search and seizure); Harris v. Rosario, supra (same); Rodriguez v. 

Popular Democratic Party, 457 U.S. 1, 7-8 (1982) (equality of voting rights); Posadas 

de Puerto Rico Assocs. v. Tourism Co., 478 U.S. 328, 331 n. 1 (1986) (First Amendment speech). See also Califano v. Torres, 435 U.S. 1, 4 n. 6 (1978) (right to travel 

assumed). Puerto Rico is, of course, not the only territory that is the subject of the 

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. 314 But a state statute 

enacted subsequently to a federal grant cannot operate to vest in 

the State rights which either remained in the United States or 

passed to its grantee. 315

Territories: Powers of Congress Over 

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. 316 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, 317 which will then be invested with all legislative power except 

as limited by the Constitution of the United States and acts of Congress. 318 In 1886, Congress prohibited the enactment by territorial 

legislatures of local or special laws on enumerated subjects. 319 The

constitutional guarantees of private rights are applicable in territories which have been made a part of the United States by congressional action 320 but not in unincorporated territories. 321 ConVerDate Apr<14>2004 15:53 Apr 14, 2004 Jkt 077500 PO 00000 Frm 00061 Fmt 8222 Sfmt 8222 C:\CONAN\CON015.SGM PRFM99 PsN: CON015
934 ART. IV—STATES’ RELATIONS 

Sec. 4—Obligations of United States to States 

doctrine of the Insular Cases. E.g., Ocampo v. United States, 234 U.S. 91 (1914) 

(Philippines and Sixth Amendment jury trial); Hawaii v. Mankichi, 190 U.S. 197 

(1903) (grand jury indictment and trial by jury). 322 American Ins. Co. v. Canter, 26 U.S. (1 Pet.) 511, 546 (1828). See also Clinton v. Englebrecht, 80 U.S. (13 Wall.) 434, 447 (1872); Hornbuckle v. Toombs, 85 

U.S. (18 Wall.) 648, 655 (1874); Reynolds v. United States, 98 U.S. 145, 154 (1879); 

The ′′City of Panama′′, 101 U.S. 453, 460 (1880); McAllister v. United States, 141 

U.S. 174, 180 (1891); United States v. McMillan, 165 U.S. 504, 510 (1897); Romeu 

v. Todd, 206 U.S. 358, 368 (1907). 323 American Ins. Co. v. Canter, 26 U.S. (1 Pet.) 511, 545 (1828). 324 ‘‘Resd. that a Republican government . . . ought to be guaranteed by the 

United States to each state.’’ 1 M. FARRAND, THE RECORDS OF THE FEDERAL CONVENTION OF 1787 22 (rev. ed. 1937). In a letter in April, 1787, to Randolph, who 

formally presented the Virginia Plan to the Convention, Madison had suggested that 

‘‘an article ought to be inserted expressly guaranteeing the tranquility of the states 

against internal as well as external danger. . . . Unless the Union be organized efficiently on republican principles innovations of a much more objectionable form may 

be obtruded.’’ 2 WRITINGS OF JAMES MADISON 336 (G. Hunt ed., 1900). On the background of the clause, see W. WIECEK, THE GUARANTEE CLAUSE OF THE U.S. CONSTITUTION ch. 1 (1972). 325Thus, on June 11, the language of the provision was on Madison’s motion 

changed to: ‘‘Resolved that a republican constitution and its existing laws ought to 

be guaranteed to each state by the United States.’’ 1 M. FARRAND, THE RECORDS

OF THE FEDERAL CONVENTION OF 1787 193-194, 206 (rev. ed. 1937). Then, on July 

18, Gouverneur Morris objected to this language on the ground that ‘‘[h]e should be 

very unwilling that such laws as exist in R. Island ought to be guaranteed to each 

State of the Union.’’ 2 id. at 47. Madison then suggested language ‘‘that the Constitutional authority of the States shall be guaranteed to them respectively against 

domestic as well as foreign violence,’’ whereas Randolph wanted to add to this the 

language ‘‘and that no State be at liberty to form any other than a Republican 

Govt.’’ Wilson then moved, ‘‘as a better expression of the idea,’’ almost the present 

language of the section, which was adopted. Id. at 47-49. 

gress may establish, or may authorize the territorial legislature to 

create, legislative courts whose jurisdiction is derived from statutes 

enacted pursuant to this section other than from article III. 322

Such courts may exercise admiralty jurisdiction despite the fact 

that such jurisdiction may be exercised in the States only by constitutional courts. 323

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. 

GUARANTEE OF REPUBLICAN FORM OF GOVERNMENT 

The first clause of this section, in somewhat different language, 

was contained in the Virginia Plan introduced in the Convention 

and was obviously attributable to Madison. 324 Through the various 

permutations into its final form, 325 the object of the clause seems 

ART. IV—STATES’ RELATIONS 935

Sec. 4—Obligations of United States to States 

326Thus, Randolph on June 11, supporting Madison’s version pending then, said 

that ‘‘a republican government must be the basis of our national union; and no state 

in it ought to have it in their power to change its government into a monarchy.’’ 

1 id. at 206. Again, on July 18, when Wilson and Mason indicated their understanding that the object of the proposal was ‘‘merely’’ to protect States against violence, Randolph asserted: ‘‘The Resoln. has 2 Objects. 1. to secure Republican government. 2. to suppress domestic commotions. He urged the necessity of both these 

provisions.’’ 2 id. at 47. Following speakers alluded to the dangers of monarchy 

being created peacefully as necessitating the provision. Id. at 48. See W.

WIECEK, THE GUARANTEE CLAUSE OF THE U.S. CONSTITUTION ch. 2 (1972). 

327See article I, § 8, cl. 15. 

328See generally W. WIECEK, THE GUARANTEE CLAUSE OF THE U.S. CONSTITUTION (1972).

329 48 U.S. (7 How.) 1 (1849). 

330 Id. at 42. 

331 74 U.S. (7 Wall.) 700, 729 (1869). In Georgia v. Stanton, 73 U.S. (6 Wall.) 

50 (1868), the State attempted to attack Reconstruction legislation on the premise 

that it already had a republican form of government and that Congress was thus 

not authorized to act. The Court viewed the congressional decision as determinative. 

332Pacific States Tel. & Tel. Co. v. Oregon, 223 U.S. 118 (1912); Kiernan v. City 

of Portland, 223 U.S. 151 (1912); Davis v. Ohio, 241 U.S. 565 (1916); Ohio v. Akron 

Park Dist., 281 U.S. 74 (1930); O’Neill v. Leamer, 239 U.S. 244 (1915); Highland 

Farms Dairy v. Agnew, 300 U.S. 608 (1937). But in certain earlier cases the Court 

had disposed of guarantee clause questions on the merits. Forsyth v. Hammond, 166 

U.S. 506 (1897); Minor v. Happersett, 88 U.S. (21 Wall.) 162 (1875). 

clearly to have been more than an authorization for the Federal 

Government to protect States against foreign invasion or internal 

insurrection, 326 a power seemingly already conferred in any 

case. 327 No one can now resurrect the full meaning of the clause 

and intent which moved the Framers to adopt it, but with the exception of the reliance for a brief period during Reconstruction the 

authority contained within the confines of the clause has been 

largely unexplored. 328

In Luther v. Borden, 329 the Supreme Court established the doctrine 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.’’ 330 Texas v. White 331 held that the action of the 

President in setting up provisional governments at the conclusion 

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 

issues were not justiciable, the Court in the early part of this century refused to pass on a number of challenges to state governmental reforms and thus made the clause in effect noncognizable 

by the courts in any matter, 332 a status from which the Court’s 

936 ART. IV—STATES’ RELATIONS 

Sec. 4—Obligations of United States to States 

333 369 U.S. 186, 218-232 (1962). In the Court’s view, guarantee clause questions 

were nonjusticiable because resolution of them had been committed to Congress and 

not because they involved matters of state governmental structure. 334More recently, the Court speaking through Justice O’Connor has raised without deciding the possibility that the guarantee clause is justiciable and is a constraint upon Congress’ power to regulate the activities of the States. New York v. 

United States, 505 U.S. 144, 183–85 (1992); Gregory v. Ashcroft, 501 U.S. 452, 463 

(1991). The opinions draw support from a powerful argument for utilizing the guarantee clause as a judicially enforceable limit on federal power. Merritt, The Guarantee Clause and State Autonomy: Federalism for a Third Century, 88 COLUM. L. 

REV. 1 (1988). 

335 48 U.S. (7 How.) 1 (1849). 336 1 Stat. 424. 337Luther v. Borden, 48 U.S. (7 How.) 1, 43 (1849). 

opinion in Baker v. Carr, 333 despite its substantial curbing of the 

political question doctrine, did not release it. 334

Similarly, in Luther v. Borden, 335 the Court indicated that it 

rested with Congress to determine the means proper to fulfill the 

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, but that instead Congress had by the act of February 28, 1795, 336 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’’, 337 which determination was not subject to review by the courts. 

In recent years, the authority of the United States to use 

troops and other forces in the States has not generally been derived 

from this clause and it has been of little importance.