When President Lincoln took office there were three vacancies on the Supreme Court, owing to the resignation (1861) of Justice Campbell of Louisiana and the deaths of Justice Daniel of Virginia and Justice McLean of Ohio. He filled those places.

In 1862 prize cases were brought before the Court by persons whose goods or ships had been seized during the blockade of southern ports which the President had proclaimed on April 19, 1861. Those cases showed at once the vast jurisdiction (Note 101) of the court and the right of the smallest to seek redress and be heard. It was decided that while Congress alone can declare war (Note 55), civil war becomes a fact which the President may recognize and take steps to suppress under his duty to execute the law (Note 96), although Congress be not in session. That decision for the preservation of the Union was made possible by the concurrence of Justice Wayne of Georgia, whose

State had seceded; for four justices (Taney, Nelson, Clifford, and Catron) dissented in the belief that the President was powerless to do anything until Congress should convene and make a declaration of war. The great struggle was prolific of questions of National power. But the Supreme Court held steadily for the Union. From time to time it decided: (1) that the authority to suppress the Confederacy is found in the clauses for carrying on war and suppressing insurrection; (2) that, apart from those clauses, the sovereign may defend itself; (3) that persons in arms may be treated as public enemies and that their property may be confiscated; (4) that the power of the Legislative Department to reconstruct the southern States was found in the guarantee (Note 127) of a republican form of government to every State; (5) that the ordinances of secession from the Union were void; (6) that the judgments of Confederate courts were void except so far as public policy and justice required otherwise; and (7) that the civil power and the courts were supreme over military authority and military courts in all places not within the immediate theatre of

war.

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.117

117 This is a command to the States which they must obey. It is another of the nationalizing clauses of the Constitution. "The public acts [that is, the laws], records and judicial proceedings" (judgments and decrees of courts) of one State must be given in every other State "the force and effect to which" they are "entitled in the State where rendered." Thus a copy (properly authenticated or proved) of a judgment against a man for money, obtained in a court of the State of New York, may be presented to a court in California (the defendant having moved to the latter State, perhaps to escape the obligation) and a judgment will be there entered against him and enforced as it would have been in New York had he remained there. It is not necessary again to bear the trouble and expense of bringing witnesses and proving a case.

Substantially the same language was in a resolution passed in 1777 by the Continental Congress, and it reappeared in the Articles of Confederation.

The first Congress under the Constitution passed an act (May 26, 1790) to effectuate this clause by prescribing how records should be authenticated and declaring that they should have such faith and credit in every State as they had in the State from which they were taken.

Full faith and credit was held by the Supreme Court of the United States (1903) not to have been denied by the

courts of Massachusetts in permitting the first wife of a man, rather than the second, to administer his estate upon his death, as the law of Massachusetts made invalid in that State a divorce which he went to South Dakota to procure. Full faith and credit did not require that a decree of divorce granted in South Dakota should be respected and made operative against the public policy of Massachusetts.

And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.118

118 Thus an Act of Congress provides that an act of a legislative body is authenticated for use in another State "by having the seal of such Territory, State, or country affixed thereto." A copy of a judgment or decree of court rendered in any State "shall 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, if there be a seal, together with a certificate of the judge . . . that the said attestation is in due form."

Section 2. The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.119

119 Provisions of this kind were in the colonial charters. The colonists of Virginia, for example, who received (1606) the first charter from the English sovereign, were by that writing guaranteed "all liberties, franchises and immunities within any of our dominions to all intents and purposes as if they had been abiding and born within this our realm of England."

"The better to secure and perpetuate mutual friendship and intercourse among the people of the different States in this Union," ran the Articles of Confederation, "the free

inhabitants of each of these States (paupers, vagabonds and fugitives from justice excepted) shall be entitled to all the privileges and immunities of free citizens in the several States."

A citizen of one State going to or transacting business in another is entitled in the latter State to the privileges and immunities enjoyed by its citizens. The State cannot legislate against him or otherwise disfavor him. The intent was that the citizen of one State should not be an alien in another. In any State he has the protection of the government of that State, the enjoyment of life and liberty with the right to acquire and possess property, the right to pursue and obtain happiness, to institute actions in court, and generally to possess what the citizen of the State possesses. Numerous cases have arisen under this clause where States have attempted to favor their own citizens to the prejudice of the citizens of other States. Such laws are void for conflict with this clause.

After the Negro was emancipated there was adopted the Fourteenth Amendment (1868), one of the provisions of which (Note 172) is that "no State shall . . . abridge the privileges or immunities of citizens of the United States." Thus, putting the two clauses together, the State is forbidden to abridge the privileges and immunities of (1) the citizen of another State, and of (2) the citizen of the United States. For there are two citizenships and two loyalties.

A State cannot take away the right of citizens of other States to sue in the Federal courts of that State. This clause was held not to warrant an act of Congress prescribing punishment of persons for conspiring to deprive others (liberated Negroes) of equal privileges or immunities, as the guaranty of the Constitution is against wrongs done by States and not by persons. Wrongs done in a State by persons must be dealt with by the State in the exercise of its police power, and not by the Nation.