It is easy to see, however, that a State may abuse this power to the detriment of the whole people of the United States. For example, a State might permit aliens to hold real estate in such quantities and under such tenures as to introduce a very disturbing element into our general system of ownership of land. I will say nothing at this point concerning the possible, nay, actual, abuse of this power by the States in permitting aliens to exercise the suffrage, since the suffrage cannot be classed among the civil or private rights." (Burgess, Political Sc. I. p. 219.)

In framing the Constitution of a Federal Commonwealth under the Crown, and in determining the status, conditions, and incidents of membership thereof, several technical difficulties were encountered, such as, what designation should be assigned and what privileges and immunities could be annexed to that membership?

In view of the historical associations and the peculiar significance of the terms "citizens" and "subjects," one being used to express the membership of a republican community, and the other that of a community acknowledging an allegiance to a personal sovereign, it was obvious that there might have been an impropriety in discarding the time-honoured word "subject" and in adopting a nomenclature unobjectionable in itself but associated with a different system of political government.

Whatever be the reason, rightly or wrongly, the term " 'citizen" has been rejected and does not appear in the Constitution. In several notable passages in the instrument, the phrase," the people of the Commonwealth," is used to denote the personal units composing the national elements of the Commonwealth. The members of the House of Representatives are chosen by "the people of the Commonwealth" (sec. 24). In reckoning the number of "the people of the Commonwealth," persons belonging to disqualified races are not to be counted (sec. 25). In reckoning the numbers of "the people of the Commonwealth or of a State," aboriginal natives are not to be counted (sec. 127) This is the nearest approach in the Constitution to a designation equivalent to citizenship, and intended to indicate membership of the Federal community. When it is sought to express a narrower political relationship than that of the Commonwealth, the phrase "the people of the States" is used. The senators for each State are chosen by "the people of the State" (sec. 7). The number of members of the House of Representatives in each State is determined by dividing "the people of each State" by the quota (sec. 24-ii.). Where it is sought to express a political relationship more comprehensive than either that of the State or that of the Commonwealth, the term used is one denoting British nationality a subject of the Queen." Thus the different

gradations of political status recognized by the Constitution are :—

Subjects of the Queen:

People of the Commonwealth:

People of a State.

In their political relations, as subjects of the Queen, the people are considered as inhabitants and individual units of the Empire over which Her Majesty presides. That is the widest political relationship known to British law. "I am a British subject," is equal in practical and Imperial significance to the proud boast of the Roman "civis Romanus sum." Subjects of the Queen, or British subjects, have rights, privileges, and immunities secured to them by Imperial law, which they may assert and enjoy without hindrance in any part of the Queen's dominions, and in British ships on the high seas. In a modified degree some of those rights, privileges, and immunities, founded on treaty, may be enforced in foreign countries. The whole naval and military strength of the Empire, and the assistance of its highest courts of justice, may be invoked for the vindication of those rights, privileges, and immunities.

The people of the Commonwealth constitute only one group of the subjects of the Queen. The people of the Commonwealth are those people who are permanently domiciled within the territorial limits of the Commonwealth. Territorially such people may be called Australians, but constitutionally they are described as British subjects or subjects of the Queen. They do not lose their character as people of the Commonwealth by migrating from one State to another, any more than they lose their national character

by migrating from one part of the Empire to another, or sojourning in foreign countries. Their privileges and immunities as people of the Commonwealth are secured and guaranteed to them, without regard to their rest ience in a partımlar State.

The people of a State compose a group of the people of the Commonwealth. Their privileges and immunities, as members of a State community, depend on their residence within the limits of the State, and their compliance with the requirements of State laws. Within each State there are minor municipal groups dengnated citizens.

In this connection it is interesting to notice how the need of some word to express colonial citizenship has evolved the phrase ** subject of a colony," first made use of by Sir G. J. Turner, L.-J., in Low Routledge, L.R. 1 Ch. 42, 1865. Referring to this expression, a writer in 31 Canad. L.J. 37, says: "There is no such thing as a Canadian, Australian, or Indian subject." Mr. Lefroy, commenting on this observation, admits that in an international sense no doubt this is so; but argues that the authorities on the extra-territorial application of colonial laws show that "there is a sense in which it is proper to speak of a man as a subject of a particular colony, and that legal distinctions hinge upon his position as such "Lefroy, Legisl Power in Canada, p. 329, n.)

Assuming that the establishment of a distinct membership of the Federal community may be inferred from those passages in the Constitution which allude to "the people of the Commonwealth," we now proceed to consider what incidents are annexed to such a status, and how they can be enforced and how differentiated from incidents annexed to the other condition, State membership, which may be inferred from the use of the expression, "the people of the State."

FEDERAL PRIVILEGES AND IMMUNITIES.-In the Constitution of the Commonwealth there is no special section corresponding to the Fourteenth Amendment of the American Constitution, declaring who are the people of the Commonwealth," affirming their privileges and immunities, and placing them beyond the power of the States to abridge. Since the decision of the Supreme Court of the United States in the celebrated Slaughterhouse Cases 16 Wall. 36), it has been doubted, by competent American jurists, whether the Fourteenth Amendment was really necessary in order to place Federal privileges and immunities beyond State control. The mere fact that the Constitution has created privileges and immunities is, it is argued, of itself sufficient to place them beyond the reach of unfriendly State legislation. The State laws can only operate within the sphere of power assigned to the States. The same reasoning applies to the Constitution of the Commonwealth, and accounts for the absence of any affirmation similar to that of the Fourteenth Amendment. The privileges and immunities of the people of the Commonwealth exist within the sphere of Federal power, and by the Constitution itself the Federal laws are paramount and supreme; they cannot be impaired or abridged by State legislation. (Cooley's Principles of Const. Law, 274.)

Although there is no special section affirming the existence of Federal privileges and immunities, such privileges and immunities may be gathered from the express provisions or necessary implications of the Constitution. Among the most prominent Federal privileges may be mentioned those relating to the suffrage-the right to vote at elections for both houses of the Federal Parliament (sec. 41); the right to participate, on terms of equality, in trade and commerce between the States and with other countries (secs. 31—i. and 99); the right to have the benefit of the postal, telegraphic, and telephonic services (sec. 51—v.); the right to share the protection of the naval and military forces of the Commonwealth (sec. 51-vi.); the right to use the navigable waters of the Commonwealth for the purposes of trade and commerce (sec. 98); the right to pass from one State into another and to hold intercourse with foreign countries (secs. 51—i. and 92). To be allowed to visit the seat of Government, to gain access to Federal territories, to petition the Federal authorities, to examine the public records of the Federal courts and institutions, are rights which, if not expressly granted, may be inferred from the Constitution, and which could not be taken away or abridged by the States any more than those directly and clearly conveyed. (Story, Comm. § 1937; Crandall v. Nevada, 6 Wall. 35.)

Immunities are generally the corollaries of privileges. Where a privilege is granted there must be an exemption from interference or obstruction in the enjoyment of the privilege. Consequently, a State could not pass laws which would operate as burdens and impositions and prevent the free exercise of Federal privileges. Thus a State could not require an importer of foreign merchandise to pay a tax for a license to sell such goods. (Brown v. Maryland, 12 Wheat. 419.) Free intercourse between the States being established by the Constitution, a State could not impose a tax on travellers entering or leaving the State. (Crandall v. Nevada, 6 Wall. 35.) The people of the Commonwealth having a right to sue in the Federal courts in the prosecution of causes specified by the Constitution, a State could not obstruct the citizens of other States in suing its own citizens in the Federal courts. (Insurance Co. v. Morse, 20 Wall. 445.) A State could not interfere with the freedom of inter-state trade by demanding license fees from the vendors of goods imported from other States (sec. 92).

ENFORCEMENT OF FEDERAL PRIVILEGES AND IMMUNITIES. - As there is no necessity for specially declaring that the privileges and immunities of the people of the Commonwealth may not be abridged by the States, so there is no necessity for specifying any procedure by which they may be enforced. They may be described as self-executing. Every privilege or immunity conferred by the Constitution implies a prohibition against anything inconsistent with the free exercise or enjoyment thereof. Any law passed by a State, in violation of any constitutional privilege or immunity, would be null and void; the courts would not enforce it.

§ 463a. "Resident in Any State."

We have explained generally the privileges and immunities of the people belonging to the Commonwealth, and accounted for the absence from the Constitution of any express declaration or reference to such privileges or immunities; we now come to the consideration of those privileges and immunities created by and dependent upon State laws which are the only ones coming within the purview of sec. 117. This section as drawn prohibits the imposition of disabilities and discriminations by a State against the people of another State. It would be impossible, however, to grasp the significance of this prohibition without some consideration of the privileges and immunities with respect to which such disabilities and discriminations may be enacted.

STATE PRIVILEGES AND IMMUNITIES.-In the exercise of its reserved powers each State will have exclusive authority to legislate concerning the rights, privileges, immunities, and obligations of the people. In fact the whole domain of civil liberty, except that assigned to the Federal authority, is subject to the jurisdiction of the State. A complete enumeration of the matters belonging to that domain, and dependent upon State law, would be too complicated and too lengthy to present, but a fair summary has been given by an eminent American Judge :

"The privileges and immunities of State citizenship are all comprehended under the following general heads: 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 may 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 benefit of the writ of habeas corpus, to institute and maintain actions of every 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 citizens of other States, may be mentioned as some of the principal privileges and immunities of citizens which are clearly embraced by the general description of privileges deemed to be fundamental. (Per Washington, J., in Corfield v. Coryell, Wash. C.C. 380.)

"Other Judges, while approving of this general enumeration, have been careful to say that they deem it safer and more in accordance with the duty of a judicial tribunal to leave the meaning to be determined in each case upon a view of the particular rights asserted therein. And especially is this true when we are dealing with so broad a provision, involving matters not only of great delicacy and importance, but which are

of such a character that any merely abstract definition could scarcely be correct; and a failure to make it so would certainly produce mischief." (Cooley's Const. Law, p. 207.)

Such being some of the fundamental privileges and immunities within the power of a State to confer, we are now in a position to consider the nature of the limitations imposed by sec. 117. This section provides that a subject of the Queen resident in one State shall not be subject in any other State to any disability or discrimination which would not be equally applicable to him if he were a subject of the Queen resident in such other State. Its object is to establish a sort of inter-state reciprocity in the enjoyment of privileges and immunities created by and dependent upon State laws. This reciprocity is secured by the inhibition that a qualified resident in one State shall not, in his dealing or connection with another State, be liable to any disability or discrimination which would not be applicable to him if he were a qualified resident in that other State.

Residence is an elastic word which may be modified by the context.

(Exp. Breull, re Bowie [1888], 16 Ch. D. 484; Lewis v. Graham [1888], 20 Q.B. D. 780.) Its ordinary meaning is the place where a person lives; that is, where he usually eats, drinks, and sleeps, or where his family or servants eat, drink, and sleep. (Per Bayley, J., in Rex. v. North Curry [1825], 4 Barn. and Cress. 959; and see Notes, pp. 477,776, supra.) In this section, "a resident in any State" means a person who permanently lives in a State; one who is not a mere visitor or sojourner; one who by his continued residence in a State has become identified with it and is regarded as one of its people.

The privileges and immunities contemplated by this section are those which belong to resident subjects of the Queen in a State. The States are not forbidden to impose disabilities and make discriminations in laws relating to aliens. It is assumed that the resident subjects of the Queen will be the most favoured people and the special object of State consideration and solicitude. Hence the Constitution interposes and as a matter of national policy seeks to secure equality of treatment, in all the States, for subjects of the Queen resident in any State of the Commonwealth.

§ 464. “Disability or Discrimination.”

No privileges or immunities are secured against disability and discrimination except those annexed by the laws of a State to the combined conditions of State residence and British subjectship. A State is not forbidden to enact that certain privileges and immunities may flow from a contractual relation. Thus a State law prohibiting, in certain districts, the sale of goods other than the agricultural products and articles manufactured in the State, by persons not residents of the State, until license therefor has been obtained, is unconstitutional. (Ward . Maryland, 12 Wall. 418.) On the other hand, in contrast to this case, privileges and immunities attached by law to contracts by reason of the place where such contracts are made or executed are not within the mischief intended to be rectified by this section. It would not be a disability or discrimination prohibited by this section, for a State to deny to a widow, whose marriage was not contracted within the State or executed there by a matrimonial domicile, the same rights of property in the estate of a deceased husband as is given to a widow whose marriage was there contracted, or where the spouses live in the State. (Conner v. Elliott, 18 How. 591.) Other American cases may be cited in illustration of the operation of this section.

A State statute which, in effect, provides that where a defendant is out of the State the statute of limitations shall not run against the plaintiff if the latter resides in the State, but shall if he resides out of the state, is not repugnant to the " privilege and immunity" clause (supra). (Ryan v. Carter, 93 U.S. 78; Baker, Annot. Const. p. 158.)

A law of Iowa, which provides that a person having in his possession "Texas cattle" which have not been wintered north of a certain line shall be liable for all damages caused by allowing such cattle to run at large and thereby spread the Texas cattle fever, is not a denial to the citizens of other States of the rights, privileges and immunities accorded to citizens of Iowa. (Kimmish v. Ball, 129 U.S. 217. Id.)

The " 'privilege and immunity" clause does not control the power of the State Governments over the rights of their own citizens. Its sole purpose is to declare to the several States that whatever those rights are, as you grant or establish them to your own citizens, or as you limit or qualify, or impose restrictions on their exercise, the same, neither more nor less, shall be the measure of the rights of citizens of other States within your jurisdiction. (Slaughter-House Cases, 16 Wall. 36. Id.)

This section, like the Fourteenth Amendment, is directed against State action. Its object is to place the citizens of each State on the same footing with citizens of other States, and inhibit discriminating legislation against them by other States. (United States v. Harris, 106 U.S. 629. Id.)

Each State owns the tide-waters and beds of all tide waters within its jurisdiction; a right of fishery is a property right, and not a mere privilege or immunity of citizenship. Therefore a State may grant to its own citizens the exclusive privilege of using the lands covered by water on its borders for the purpose of maintaining oyster-beds, and may with penalties prohibit such use by citizens of other States. (McCready v. Virginia, 94 U.S. 391. Id. 157.)

It seems doubtful whether the rule affirmed in McCready v. Virginia (supra) would be followed in a legal construction of sec. 117. To grant subjects of the Queen, in a State, the exclusive right to plant oysters in soil covered by tidal waters within a State and to forbid the subjects of the Queen resident in another State to do so, would look uncommonly like a discrimination in favour of the people of one State, and a disability on the people, subjects of the Queen, of another State; as such it would be within the mischief intended to be suppressed by the Constitution.

CORPORATIONS.-It has been held in the United States that a corporation created by a State is not a "citizen" of the State, so as to be entitled to the privileges and immunities of citizens in the several States. (Paul v. Virginia, 8 Wall. 168; Blake v. M'Clung, 172 U.S. 239.) It would seem equally clear that a corporation cannot be a subject of the Queen" within the meaning of this section. Accordingly a State may discriminate between its own corporations and those of another State-subject of course to the limitations imposed by other sections of the Constitution. (Ducat v. Chicago, 10 Wall. 410.)

Recognition of laws, &c., of States.

465

118. Full faith and credit shall be given, throughout the Commonwealth, to the laws, the public Acts and records, and the judicial proceedings of every State.

UNITED STATES.-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.-Const., Art. iv., sec. 1.

HISTORICAL NOTE.-In the Commonwealth Bill of 1891 were provisions identical with this section and with sub-sec. xxv. of sec. 51-provisions which together make up the American section quoted above. (Conv. Deb., Syd, 1891, p. 883) At the Adelaide session in 1897, these provisions were adopted verbatim. At the Melbourne session a suggestion by the Legislative Council of New South Wales to omit (in sec. 51) 'throughout the Commonwealth was negatived.

§ 465. "Full Faith and Credit."

Section 118 contains a constitutional declaration in favour of inter-state official and judicial reciprocity, which the Federal Parliament and the States may assist to effectuate, but which they cannot prejudice or render nugatory; the Federal Parliament being enabled to carry it into execution by sec. 51-xxiv. and xxv., and the States in the exercise of their reserved powers. Subjects of the Queen, residents in one State, may have rights of property and personal privileges which they wish to assert in