The sun. [volume] (New York [N.Y.]) 1833-1916, 1906-11-04

superyiae the performance Of this duty and
transferred from the State to the Federal
Supreme Court the ultimate decision Of
the QUESTION Of due process In all proceed
ings affecting life, liberty and PROPERTY.
Under the amendment, however, the AL
thorfty of the Federal court goes merely
TO determine whether the State. by some
Official action. has provided due process.
or has failed In that duty; and II a denia!
of due process appears it can only plo-
nounce the proceedings void. The power Of
the Federal Government ordinarily end
with that act. Thus the PRIMARY duty Of
providing for the protection OF life. liberty
and property by due process OF law rests
still with the States, n the Fourteenth
Amendment operates merely as a guarantee.
additional tothe State Constitutions, against
entertainments on the part OF the States
upon fundamental rights which their Gov.
ernments were created to secure. IL did not
radically change the whole theory of tho
relations Of the State and Federal Govern
ments to each other, and Of both Govern
ments to the people. 1t has not had tho
effect of converting the national Supreme
Court into a general court OF appeal, where
decisions of the State courts, involving
merely questions of general justice and
equitable consideration in the taking Of lite
or property may be reviewed.
such is the view OF the Fourteenth Amend
ment ~propounded in the text of the book
before us. Il seems, however, that the
printing of the volume was considerably
delayed and that in the meantime q de-
cision of far reaching Importance has been
rendered by the Federal Supreme Court in
HAllAnIx 80 Hn1IDnl M
u. s. Reports. Our author points out in a
preface hat in the Haddock case 10y a
decision of a bare majority Of the cour7,
against the dissent OF Justices Harlan,
Brewer, Brown and Holmes, it was decided
that a decree for divorce rendered in a State
other than that OF the matrimonial domicile
of the parties, at the suit OF a husband
bona fide domiciled in the State Of the forum
against the wife who remained a resident
of the State of the matrimonial domicile.
is not a decree in rem. IL il, therefore, not
a proceeding in which constructive service
by publication, in accordance with the law
Of the forum, against the nonresident
defendant imparts any validity to the decree
az against her: and such a decree Ii not,
when brought in question outside the State
where il Is rendered, within the protection
of the full faith and credit clause Of the
United States Constitution. Our author
thinks that the opinions of the dissenting
Justices embody the correct view OF the
matter decided and that the decision is
earnestly to be regretted. Attention Is
directed TO the fact that the interesting
oorrelative question Of the effect Of such a
decree within the State Of the forum is not
examined. IL it valid there as against both
parties? To answer yes would contradict
the reasoning in Psnnoyer VS.. Nef. ai
U. s. Reports. Is it valid as to the plaintiff
and not against the defendant? To answer
yes would contradict a principle stated by
the highest Federal tribunal in Atherton VS..
Atherton, 1871 U. s. Reports. that a wife
without a husband OF a husband without
a wife is unknown to the law" II has been
said, indeed, hat the States are still al
liberty, upon principles Of international
comfy, to recognize the divorce DEGREES Of
sister States, rendered under the circum-
stances Of the Haddock case. IL they choose
to do 80. But our author submits hat such
a recognition, while not affected by the full
faith and credit clause OF the Constitution,
must involve a discrimination by the State
of the Federal question Of what amounts
due process Of Law under the Fourteenth
Amendment,