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

other States where they do not reside. They may desire to take proceedings in the courts of another State, in order to assert their rights and privileges and to protect their interests. In such proceedings it may be necessary to prove the statutes, records, and judicial proceedings of their own State, or to give evidence of muniments of title existing in their own State. By the rules of international and inter-state comity, as well as at common law, there are certain recognized methods of proof and modes of enforcing such rights and privileges. These rules, however, may be altered or abolished by State legislation. It is conceivable that in times of antagonism and contention between States, laws might be passed in one State intended to defeat or delay the residents of another State in the prosecution of legal rights and remedies against residents in that State. This policy, once resorted to, would lead to reprisals and retaliations, resulting in infinite mischief and unwarrantable denial of right. The Constitution has interposed and converted the rule of comity into a rule of law, in order to promote uniformity of regulation in such inter-state proceedings as well as to prevent the possibility of resort to a narrow-minded unfraternal policy.

AMERICAN LEGISLATION.-In pursuance of power conferred on it by a similar section in the Constitution, the Congress of the United States, in 1790, passed a law which declared that the Acts of the legislatures of the several States should be authenticated by the seals of their respective States, and that the records and judicial proceedings of the courts of any State should be proved or admitted in any other court within the United States by the attestation of the clerk and the seal of the court annexed, together with a certificate of the judge that the said attestation was in due form; and that records so authenticated should have the same faith and credit given to them in every court within the United States as they had in the courts of that State. (U.S. Stat. at Large i. 122; Rev. Stat. 2nd ed. §§ 905-6; Hanley v. Donoghue, 116 U.S. 1; Cole t Cunningham, 133 U.S. 107; cited Rorer, Inter-State Law, p. 154.)

By a subsequent Act of Congress, passed in 1804, similar provisions as to faith and credit were applied to all records and exemplications of office books kept in any public office of any State, not belonging to a court. (U.S. Stat. at Large ii. 298; Rev. Stat.

2nd ed. § 906; Rorer, Inter-State Law, p. 155.)

APPLICATION TO STATE COURTS.-"The foregoing constitutional and statutory provisions of the United States apply only to the courts of the States and Territories of the United States. They have no reference whatever to the courts, records, documents, or acts of the United States as evidence in the State courts, or to those of the State courts as evidence in the National courts; in these cases the ordinary certificate of the clerk and seal of the court, in such manner or form as renders them admissible in the courts of the same State, or in the Federal courts, as the case may be, renders these documents, records, and acts mutually admissible as between the State and Federal courts, when otherwise proper evidence. But notwithstanding those National provisions are not intended to apply to the United States courts, yet the records of those courts are admissible in other courts, though certified in accordance with said act of Congress. The fact that such authentication more than fulfils the requirement of the law as to admissibility will not be ground of exclusion." (Rorer on Inter-State Law, p. 156.)

FEDERAL COURTS AND STATE COURTS.-"The State and National courts, though emanations of different sovereignties, are in no wise foreign tribunals to each other, nor are the National courts of one circuit or district such in reference to those of other circuits or districts, but are domestic tribunals, whose seals are recognized as matter of course. But such courts, both National and State, are courts of different sovereignties, and the National Courts are only required to give judgments of State courts such authority as they are entitled to in the courts of the State wherein they are rendered." (Rorer on Inter-State Law, p. 156.)

PROOF OF STATUTES.--The certificate and seal of State of the genuineness of statute laws need no other proof of their authenticity, or of the official character of the person certifying as Secretary of State, and if there be any interlineations they are presumed to have been made rightfully; and so it is settled that State laws need not be proved in the courts of the United States." (Rorer on Inter-State Law, p. 159.)

GENERAL PRINCIPLES.

The full faith and credit to which the public acts, records, and proceedings are entitled in other States is the same faith and credit to which they

are entitled in the State whose acts, records, and judicial proceedings they are. (Armstrong v. Carson, 2 Dall. 302.) When, therefore, suit is brought in one State upon a judgment rendered by a court of another State, and it appears that by the law of the last-mentioned State it is conclusive upon the defendant, it must be held equally conclusive in the court in which suit upon it is brought. (Mills v. Duryee, 7 Cranch 481.) Whatever pleas would be good to it in the State where it was pronounced, and none others, might be pleaded to it in any other court within the United States. (Hampton v. McConnell, 3 Wheat. 234; Green v. Van Buskirk, 7 Wall. 139.) Judgments in one State when proved in another differ from judgments of another country in this alone, that they are not impeachable for fraud nor open to question upon the merits. (Hanley v. Donoghue, 116 U.S. 1.) But the judgment can have no greater or other force abroad than at home, and therefore it is always competent to show that it is invalid for want of jurisdiction in the court rendering it. (Harris v. Hardeman, 14 How. 334.) To preclude inquiry into it in another State, the judgment must not only be rendered by a court having jurisdiction of the subject-matter and the parties, but, if the defendant does not appear at the trial, it must be responsive to the pleadings. (Reynolds v. Stockton, 140 U.S. 254.) So anything that goes in release or discharge of the judgment may be shown. (McElmoyle v. Cohen, 13 Pet. 312; D'Arcy v. Ketchum, 11 How. 165.) And the Statute of Limitations of the State where the suit is brought will be available, if the case comes within it. But it is not competent for any State to pass an act of limitations which would, in effect, nullify judgments rendered in other States, and allow no remedy upon them whatever. Reasonable opportunity to enforce a demand must always be afforded." (Cooley's Principles of Const. Law, p. 203.)

"Constructive service of process by publication or attachment of property is sufficient to enable the courts of a State to subject property within it to their jurisdiction in such cases as the statutes of the States may provide therefor; but such a service cannot be the foundation of a personal judgment. Process from the tribunals of one State cannot run into another State and summon parties there domiciled to leave its territory and respond to proceedings against them. Publication of process or notice within the State where the tribunal sits cannot create any greater obligation upon the non-resident to appear. Process sent to him out of the State, and process published within it, are equally unavailable in proceedings to establish his personal liability. But in respect to the res, a judgment in rem, rendered with competent jurisdiction, is conclusive everywhere.' (Id. pp. 204-5.)

"The Act of Congress declaring the effect to be given in any court within the United States to the records and judicial proceedings of the several States does not require that they shall have any greater force and efficacy in other courts than in the courts of the States from which they are taken, but only such faith and credit as by law or usage they have there. (Robertson v. Pickrell, 109 U.S. 608.)" (Rorer on Inter-State Law, p. 155.)

"This section of the Constitution does not prevent an inquiry into the jurisdiction of the court in which a judgment is rendered, to pronounce the judgment, nor into the right of the State to exercise authority over the parties or the subject-matter, nor whether the judgment is founded in and impeachable for a manifest fraud. The Constitution did not mean to confer any new power on the States, but simply to regulate the effect of their acknowledged jurisdiction over persons and things within their territory. It did not make the judgments of the States domestic judgments to all intents and purposes, but only gave a general validity, faith and credit to them as evidence. No execution can be issued upon such judgments without a new suit in the tribunals of other States, and they enjoy not the right of priority or privilege or lien which they have in the State where they are pronounced, but that only which the lex fori' gives to them by its own laws, in their character of foreign judgments. (McElmoyle v. Cohen, 13 Pet. 312; D'Arcy v. Ketchum, 11 How. 165; Thompson v. Whitman, 18 Wall. 457; Pennoyer v. Neff, 95 U.S. 714; Wisconsin v. Pelican Ins. Co., 127 U.S. 265; Christmas v. Russell, 5 Wall. 290; Story, Constitution, § 1303 et seq., and Story, Conflict of Law, $ 609.) And other judicial proceedings can rest on no higher ground. (Cole v. Cunningham, 133 U.S. 107, 112.)" (Id. p. 152.)

The constitutional provision does not prevent enquiry into the jurisdiction of the court in which the judgment was rendered over subject matter and parties, or into the facts necessary to give such jurisdiction. (Thormann v. Frame, 176 U.S. 350.)

FEDERAL POWER. The cases cited merely illustrate the law of the United States, as determined by the Constitution and by Federal legislation thereunder. It must be remembered that the Parliament of the Commonwealth has large powers of legislation under sec. 51-xxiv. and xxv. It can pass laws providing for the service and execution throughout the Commonwealth of the civil and criminal process and the judgments of

the courts of the States. By the exercise of that power the Federal Parliament may revolutionize the principles of service of process, referred to in the extract from Cooley (supra). The Federal Parliament can likewise pass laws providing for the recognition, throughout the Commonwealth, of the laws, the public acts and records, and the judicial proceedings of the States. (As to legislation which may be passed in the exercise of these powers, see Notes on sec. 51-xxiv. and xxv.)

Protection of States from invasion and violence.

119. The Commonwealth shall protect every State against invasion166 and, on the application of the Executive Government of the State, against domestic violence 67.

UNITED STATES.-The United States

shall protect [every State] against invasion; and, on application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic violence.-Art. IV., sec. 4.

HISTORICAL NOTE. In the Commonwealth Bill of 1891, and in the Adelaide draft of 1897, this clause appeared verbatim. At the Melbourne session, Mr. Gordon moved to substitute "attack for "invasion," to make it clear that a naval attack was included. This was negatived. (Conv. Deb., Melb.,

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pp. 691-2.)

"Protect every State against Invasion."

The Commonwealth is required to protect every State against invasion. The courts have interpreted the phrase, "United States" in a similar section in the American Constitution, to mean the Federal Government. (Luther v. Borden, 7 How. 1. See Pomeroy, Const. Law, § 101.) Hence the injunction that "the Commonwealth" shall protect a State refers to the Federal Government and not the political community of which that Government is an organ. The power and duty to protect against invasion may be exercised by the Federal authority on its own motion and according to its own judgment and discretion, without the necessity of an application from any State organization within the State.

The Federal Authority is not required or empowered to interfere to protect a State against domestic violence, except on the application of the Executive Government of the State. The maintenance of order in a State is primarily the concern of the State, for which the police powers of the State are ordinarily adequate. But even if the State is unable to cope with domestic violence, the Federal Government has no right to intervene, for the protection of the State or its citizens, unless called upon by the State Executive. If, however, domestic violence within a State is of such a character as to interfere with the operations of the Federal Government, or with the rights and privileges of federal citizenship, the Federal Government may clearly, without a summons from the State, interfere to restore order. Thus if a riot in a State interfered with the carriage of the federal mails, or with inter-state commerce, or with the right of an elector to record his vote at federal elections, the Federal Government could use all the force at its disposal, not to protect the State, but to protect itself. Were it otherwise, the Federal Government would be dependent on the Governments of the States for the effective exercise of its powers. And not only may the Executive Government interfere to suppress by force a rebellion which cripples its powers, but the federal courts may interfere in a peaceful way by issuing an injunction against the offenders, and executing the judgment of the

Court in the ordinary way. These principles were conclusively settled in the United States, in 1895, by the case of Re Debs (158 U.S. 564). Debs and others were officers of a trade union in Illinois, who combined to boycott the cars of the Pullman Palace Car Company, and proceeded by threats, intimidation, force and violence, to obstruct and wreck trains engaged in inter-state commerce, and in carrying the United States Mails. A Federal Circuit Court in Illinois, on a bill filed by the Pullman Company, granted an injunction against Debs and his associates. Debs, having been attached for disobedience to the injunction, applied to the Supreme Court of the United States for a writ of habeas corpus, which was refused on the ground that the Circuit Court had authority to issue and enforce the injunction.

"There is no such impotency in the National Government. The entire strength of the nation may be used to enforce in any part of the land the full and free exercise of all national powers, and the security of all rights entrusted by the Constitution to its care. The strong arm of the National Government may be put forth to brush away all obstructions to the freedom of inter-state commerce, or the transportation of the mails. If the emergency arises, the army of the nation. and all its militia, are at the service of the Nation to compel obedience to its laws. But passing to the second question, is there no other alternative than the use of force on the part of the executive authorities whenever obstructions arise to the freedom of inter-state commerce or the transportation of the mails? Is the army the only instrument by which rights of the public can be enforced and the peace of the nation preserved? Grant that any public nuisance may be forcibly abated either at the instance of the authorities, or by any individual suffering private damage therefrom, the existence of this right of forcible abatement is not inconsistent with nor does it destroy the right of appeal in an orderly way to the courts for a judicial determination, and an exercise of their powers by writ of injunction and otherwise to accomplish the same result.' (Per Brewer, J., Re Debs, 158 U.S. 582.)

"We hold it to be an incontrovertible principle, that the government of the United States may, by means of physical force, exercised through its official agents, execute on every foot of American soil the powers and functions that belong to it. This necessarily involves the power to command obedience to its laws, and hence the power to keep the peace to that extent." (Per Bradley, J., Exp. Siebold, 100 U.S. 395.)

Custody of offenders against laws of the Commonwealth.

120. Every State shall make provision for the detention in its prisons of persons accused or convicted of offences against the laws of the Commonwealth, and for the punishment of persons convicted of such offences, and the Parliament of the Commonwealth may make laws to give effect to this provision.

HISTORICAL NOTE. -A clause in substantially the same words was in the Commonwealth Bill of 1891, and was adopted at the Adelaide session, 1897. At the Melbourne session the clause was verbally amended. (Conv. Deb., Melb., pp. 692-3.) A verbal alteration was also made after the fourth report.

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"Offences Against the Laws of the Commonwealth."

In the exercise of its constitutional powers the Federal Parliament may create privileges and immunities and impose obligations, and it may declare that any breach thereof is an offence, punishable by fine or imprisonment. Every violation of public law may be made an offence. For a definition of offences against laws of the Commonwealth, and a discussion of the question whether there is a common law of the Commonwealth, see Notes, §§ 326, 341, supra.