amounts to preventing New York, equally a state in which a party to the marriage is domiciled, from exercising the same jurisdiction, so that giving jurisdiction to a state of domicile results in taking away the same jurisdiction from a state of domicile? Such a criticism ignores the real meaning of the word jurisdiction. Jurisdiction does not involve the power of continuing rights in existence, but of creating rights; its operation is positive, not negative. Both New York and Connecticut, having jurisdiction over the status of marriage, can affect it by dissolving it; but once it has been dissolved nothing is left for either to affect. The same criticism might be brought against allowing the status of a woman in New York to be affected by a marriage in Connecticut.

The third proposition is equally inconsistent with the second: "The general rule [requiring jurisdiction over the defendant] is, moreover, limited by the inherent power which all governments must possess over the marriage relation, its formation and dissolution, as regards their own citizens. From this exception it results that where a court of one state, conformably to the laws of such state, or the state through its legislative department, has acted concerning the dissolution of the marriage tie, as to a citizen of that state, such action is binding in that state as to such citizen, and the validity of the judgment may not therein be questioned on the ground that the action of the state in dealing with its own citizen concerning the marriage relation was repugnant to the due process clause of the Constitution."

"1

To this proposition the learned judge was driven by the case of Maynard v. Hill,2 which he cites. In that case the court was called upon to pass upon the validity of a statute divorcing a husband who was within the territory from a wife whom he had deserted and left in another state. The court held that the statute was within the jurisdiction of the legislature; "its jurisdiction to legislate upon his status, he being a resident of the territory, is undoubted."

No distinction was made in this earlier case between the validity of the statute within the territory and its validity everywhere; indeed, it is assumed in the case that the statute was valid everywhere and for all purposes. And it is impossible to discover any legal principle which would justify such a distinction. If the decree was valid in Connecticut, it operated to make the husband there a single man, and if he had there remarried his

1 Opinion of the Court, Adv. Sheets, p. 4.

2 125 U. S. 190.

second marriage would be legal. Would Mr. Justice White say that he had two wives, one in Connecticut, the other in New York? If he went into New York, could he be compelled, as a result of a suit for restitution of conjugal rights, to live with his first wife? And if so, and he started into Connecticut with her, could he be convicted of adultery upon living with her in Connecticut? Well might Lord Penzance say, in support of the principle that domicile alone can determine jurisdiction for divorce," An honest adherence to this principle, moreover, will preclude the scandal which arises when a man and woman are held to be man and wife in one country, and strangers in another." The Supreme Court of Illinois criticised the doctrine expressed by Mr. Justice White (which is in fact the New York doctrine which was overthrown in Atherton v. Atherton) in language from the force of which it is impossible to escape. The parties to the proceeding were reversed: the husband having remained in New York, and the wife having obtained a domicile and a divorce elsewhere. Mr. Justice Carter said:

2

"The consequence was that the wife was, and on removing to New York would continue to be, a single woman, who might lawfully marry; while the husband was a married man, having for his wife one who might at the same time become or be the lawful wife of another man. We cannot regard as sound a doctrine leading to such results. We are unable to see the force of the reasoning which is used to support judicial conclusions that one of the married pair may, in one jurisdiction, by virtue of its laws, and in honest compliance with them, obtain a valid decree of divorce, which, as to the one obtaining it, is valid and binding in every state in the Union, leaving such a one single, and free to remarry in any state, while the matrimonial bonds are still unsevered as to the other party, making him a bigamist should he remarry, and his children, the fruit of such remarriage, illegitimate. It would seem to be as logical to say that one of the Siamese twins might have been severed from the other without that other being severed from the one. It should not be forgotten that it is the policy of a great majority of the states, and of our own state as well, as established by legislative enactments, to grant judicial decrees of divorce to bona fide residents who comply with the statutory requirements where substituted service merely is had upon the non-resident party. To hold such decrees valid only within the jurisdiction granting them, or valid only as to those in whose favor they are granted, leaving the non-resident party still bound, would not only be inconsistent

1 Wilson v. Wilson, L. R. 2 P. & D. 435, 442.

2 The force of the reasoning is not impaired because we must here, in accordance with Mr. Justice White's opinion, substitute "almost every state."

with the policy of our own laws, and in violation of interstate comity, but would, when it is considered how great is the number of such decrees entered every year, eventually lead to the most perplexing and distressing complication in the domestic relations of many citizens in the different

It has been heretofore believed that the full faith and credit clause required a state to give credit to every judgment which was valid in another state, where it was rendered. If because of lack of jurisdiction of the court the judgment was not binding in another state, it was equally void where it was rendered; for no court can create obligations by acting outside its jurisdiction. In reliance upon this accepted doctrine, the court in Ditson v. Ditson,2 the leading case on the subject, held that under the Constitution all difficulties were avoided in this delicate subject.

"It may be added, that the distressing consequences which otherwise might arise from the conflict of laws and decisions upon this interesting and important subject has been wisely provided against by a clause of the Constitution of the United States, and can find a remedy under it in the Supreme Court of the United States, as the court of last resort, in cases demanding its application. By art. 4, sect. 1, of the Constitution of the United States, 'Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state.' As this has been construed by the highest authority to give in every other state the same effect to a judgment or decree of a state court that it has in that in which it is rendered or passed, no serious injury can be done to the proper subjects of our judicial administration by the errors and mistakes of other courts with regard to our jurisdiction. From the nature of the topics constantly agitated before it, no court in the world is better qualified to deal with questions of general law, and especially with one involving, as that before us does, the rights of a state of the Union; and under the trained qualifications of the members of the court, as well as the constitutional power of the court itself, those properly subject to our judgments and decrees in this respect, as in all others, are quite safe, having honestly obtained them, in acting by virtue of them."

The confidence of this court, which lawyers have so long shared, has been betrayed.

If Mr. Justice White is right in requiring domicile of the libellant for jurisdiction, he is wrong in regarding jurisdiction over the libellee as essential. If he is right in saying the decree is valid in

1 Dunham v. Dunham, 162 Ill. 589, 44 N. E. Rep. 84:.

2 4 R. I. 87.

Connecticut, he is wrong in saying it is not binding in New York. His reasoning is certainly novel, and it is certainly wrong; can his conclusion nevertheless be supported? Is the decision right, that some jurisdiction over the person of the libellee is requisite ?

In the first place, the authorities are almost without exception against him. The English view has already been expressed. The cases repudiate jurisdiction in personam as justifying a divorce in the strongest terms. He enumerates numerous American cases in which jurisdiction was based on domicile alone, and examines a few of them; the character of the examination may be judged from the fact that he classes Massachusetts (in which the English rule is most firmly established) as a state requiring personal jurisdiction over the libellee; that he sees no distinction with regard to jurisdiction between a suit for divorce and one to annul a marriage; and that he cites as cases repudiating any obligation to recognize a foreign decree cases in which the court is enforcing a local statute giving alimony or dower to a divorced wife, although in such cases the distinction is expressly made between recognizing the decree and enforcing the statute.

Mr. Justice White's treatment of the earlier decisions of the Supreme Court is equally unsatisfactory. In several cases the Court had held that domicile of the libellant was required for jurisdiction, and had refused to enforce a divorce granted in a state where neither party was domiciled. In all these opinions (the last of them written by Mr. Justice White) the decision was put solely on the ground that neither party was domiciled within the state. Mr. Justice White in this case, however, requires personal jurisdiction over the party defendant. In Maynard v. Hill 2 the Supreme Court affirmed the decision of a territorial court, upholding the validity of a divorce granted in the territory to a man domiciled there from his wife, whom he had deserted in Ohio. Mr. Justice White distinguishes. this case on the ground that this was an affirmance of the validity of the divorce in the territory only, although no such point was made in the court below. But in Pennoyer v. Neff,3 which is cited in the opinion and made the basis of the decision that personal jurisdiction is necessary to give validity to a personal judgment, the question was not of enforcing the judgment in another state

1 Bell v. Bell, 181 U. S. 175; Strietwolf v. Streitwolf, 181 U. S. 179; Andrews v Andrews, 188 U. S. 14.

under the full faith and credit clause, but of upholding it in the state where it was rendered and by statute of which it was valid. The appeal in one case was from the territorial court, in the other from the federal courts of the state.

1

Though Maynard v. Hill could be thus distinguished, Atherton v. Atherton 1 could not, for in that case the court had held a Kentucky decree of divorce, in favor of a man domiciled there, entitled to full faith and credit under the Constitution, although the wife was domiciled in New York and never served with process. Here then was a case which could not be explained away; in order to distinguish it, the learned judge pointed out that in that case the woman had left the matrimonial domicile wrongly, as the court in Kentucky found, and was therefore still subject to the court. The difficulty with this distinction is that if her cause for leaving the domicile was a jurisdictional fact, it was open to inquiry in the New York court; and the New York court in that case, as in the case at bar, found that the wife was blameless and that the fault lay with the husband. In other words, the final distinction relied upon by Mr. Justice White in the case at bar turns out not to have existed in fact.

The difficulty on theory with Mr. Justice White's doctrine of the requirement of personal jurisdiction lies in the very nature of divorce. It is not a personal right of the parties. The express assent of both parties to a decree will not justify a court in granting the decree. The decree does not operate in personam, and the jurisdiction required is merely a jurisdiction in rem. In order to satisfy the requirement of due process of law the absent party must be given reasonable notice and an opportunity to be heard; but jurisdiction over him is not necessary.

The object of the majority was a praiseworthy one: to make objectionable divorces less easy to obtain. But in pursuit of that object they have made a decision which will have an opposite effect. For it gives an easy road to divorce where the parties are agreed in desiring it, since the libellee by appearing and suffering default can render the proceedings valid, and it thus assists collusive divorces. On the other hand, it makes it impossible to secure a divorce that will everywhere be recognized in the one case where all persons admit that a divorce should be granted, that is, where the wife elopes with an adulterer. For if she goes to another state,

1 181 U. S. 155.