not to sovereignty, but to the negation thereof imposed by the Constitution upon the States. A nation is judge of its own conscience,' but our States are not, and comity between them is impossible. The result of Bank of Augusta v. Earle' would be the same since the Fourteenth Amendment, but it would be reached by different language and reasoning.3

Comity implies voluntary recognition of the decisions of the courts and of the laws of other nations, but among the States of the United States such recognition rests upon the command of the Constitution. The only relation of States with foreign nations is through the nation. Mr. Justice Brown, in his dissenting opinion in Haddock v. Haddock,' said that it was the purpose of the full faith and credit clause to supersede the old doctrines of comity.

"This Constitution and the laws of the United States which shall be made in pursuance thereof and all treaties made or which shall be made, under the authority of the United States, shall be the supreme law of the land, and judges in every State shall be bound thereby, anything in the constitution or laws of any State to the contrary notwithstanding." 5

"The President.

Clause 2. He shall have power, by

and with advice and consent of the senate, to make treaties, provided two-thirds of the senators present concur.' "No State shall enter into any treaty, alliance or confederation." 7

2

1 Vattel, 61, 62, secs. 14, 16.

578.

13 Peters, 519.

Holden v. Hardy, 169 U. S. 306; Allgeyer v. Louisiana, 165 U. S.

April 12, 1906.

Art. VI, sec. 2.

Art. II, sec. 2.

7 Art. I, sec 10, cl. 1.

By these provisions reciprocal legislation with other nations or any attempt thereat is expressly forbidden to the States.

And by the section last quoted is made vain to the States the passing of laws which are necessary to support comity. And the section prohibiting to the States the passing of laws impairing the obligation of contracts has the same effect. And each State is not only thus limited in the laws it may pass, but these laws must be such that they may be regarded in other States without violation of the clause against reciprocal legislation.

"Full faith and credit shall be given to the public acts, records, and judicial proceedings of every other State."1 "Citizens of each State shall be entitled to all privileges and immunities of citizens in the several States." 2

"All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges and immunities of citizens of the United States; nor shall any State deprive any person of life, liberty or property, without due process of law, nor deny any person within its jurisdiction the equal protection of the laws." 3

If a State may exercise comity it may practice retorsion.

"Of the measures falling short of war which it is permissible to take, retorsion and reprisal are the subjects of longest custom.

1 Art. IV, sec. 1.

2 Art. IV, sec. 2, cl. 1.

3 Fourteenth Amendment, sec. 1. The privilege of voting, even for President, is extended, in some States, to domiciled aliens who have not received full citizenship. See McClain, Constitutional Law.

"Retorsion is the appropriate answer to acts which it is within the strict right of a state to do, as being general acts of state organization, but which are evidence of unfriendliness, or which place the subjects of a foreign state under special disabilities as compared with other strangers, and result in injury to them. It consists in treating the subjects of the state giving provocation in an identical or closely analogous manner with that in which the subjects of the state using retorsion are treated. Thus if the productions of a particular state are discouraged or kept out of a country by differential import duties, or if its subjects are put at a disadvantage as compared with other foreigners, the state affected may retaliate upon its neighbors by like laws and tariffs." "1

Retorsion is a remedy for want of comity. No State in the United States can practice retorsion, yet every State divorce statute and every State corporation law is of that nature. The Constitution was adopted to prevent retorsion. Prosperous States were tapped at both ends in their commerce by poor States. The mere mandate of the Constitution is of no effect if it does not prevent retorsion. The mandate properly understood is a prohibition of State statutes limiting those rights which are under the protection of the common law of the Constitution. The invalidating of divorces under the divorce law of a State which recognizes constructive service of the defendant was based in Haddock v. Haddock 2 upon the right of States to supervise the status of their citizens. Yet that case impliedly decided that another State, whether the cause of divorce were nominal there as

Hall, International Law, 5th ed. p. 367; De Martens, Précis, sec. 254; Phillimore, iii, sec. 7; Bluntschli, sec. 505; Vattel.

'Decided April 12, 1906, by the United States Supreme Court.

against the single cause of adultery in the State of marriage, might dissolve the so-called status for the nominal cause against the protest of the defendant of innocence of the acts contemplated as the sole cause for divorce at the time and in the State of the marriage. It is admitted that marriage is a contract, but it is said that it produces status. Yet the executed contract has its content, and it makes very little difference to the injured party, saddled with alimony, separated from children, and cut off from property rights without cause, whether the theory is that the State is injured in its prerogatives or the contract has been dissolved. Status has given way to contract in our civilization, and it would seem, on principle, that a law in the same State providing for the dissolution of a marriage contract for a cause not contemplated at the time of the marriage would be an unconstitutional impairment of the obligation of contract, and it would be as harmful to State control of status or contract to have a dissolution decreed, in another State where both parties appear, for a cause not recognized in the former State. Courts must look not at the rights of States but at the rights of citizens and the sacredness of contract. No valid divorce can be obtained in another State than that of marriage or residence, where the defendant can avoid process. Yet this result is reached by technical discussion of status, actions in rem and in personam, without regard to contract.1

$200. THE POWER OF SUBORDINATE LEGISLATION IS NOT A BASIS FOR THE "RULE OF LAW." - It is apparent that the existence of more than one body of

See Wilbur Larremore, North American Review, July, 1906.

law in the United States is an impossibility. These principles have been long recognized.

"All laws made by virtue of a power of subordinate legislation, whether made directly or indirectly, emanate ultimately from the sovereign government; inasmuch as a sovereign government confers the power of making them and applies the sanctions by which they are enforced.1

"The main characteristics of a subordinate or delegated legislative power are:

"(1) That it may be resumed at the pleasure of the supreme legislature that granted it.

"(2) That the laws made in virtue of it must not be inconsistent with any law or rule of law made or sanctioned by the supreme legislature in relation to the same subject

matter.

"(3) That its legislative acts are liable to be annulled in consequence of the decision of a competent tribunal."

This applies to inferior associations, and the underlying idea is that, whatever the constituencies, there can be only one sovereignty in a political community. The converse is true that where there are two or more sovereigns there are two or more political communities. There is one and only one independent political community in the United States. The States are not dependents nor are they opposed parts of a limited sovereignty; they are constituent parts of an integral, independent, and unlimited sovereign. Legislation by any less than the whole community is delegated legislation and has all the attributes mentioned above. Its only purpose can be that of self-government. As there can

1 The Government of Dependencies, Sir George Cornwall Lewis, 34, 35.