considered by the court, was in New York. Hence it follows, not merely that Connecticut had no jurisdiction which could be exercised to affect things extra-territorial, but that it had no jurisdiction to act upon the subject at all.

This disposes at once of the anomalous situation which the majority concede and the minority rely upon in that case. It denies that one state may declare the husband divorced for his wife's desertion, while another state gives the wife a divorce for the husband's cruelty. One state, and one only, has jurisdiction of the subject. The race of diligence, commended by the minority, is displaced by an orderly inquiry into the jurisdictional facts. The two divorces, each valid locally and neither valid elsewhere, save by the courtesy of a sister state, which are allowed by the majority, are supplanted by one divorce, valid everywhere, or by a decree whose invalidity may be demonstrated in the state of its rendition as well as in foreign jurisdictions.

It is sometimes a hard task to hew to the line. Now and then it requires the sacrifice of much that is apparently valuable. And the line of the sound rule of law is not merely a fine-spun thread of logic. It must have substance, observable by him who is called to work by it. In other words, it must have a stout strand of reasonableness entwined with its logic. Assuming for the moment that this is such a line, does it call for the destruction of valuable material, or only for the removal of the irregularities frequently incident to growth? How much would following it to the conclusion indicated affect the declared law?

Five decisions of the Supreme Court are to some degree in point upon this question. Distinguishing what has been decided from what has been said, no others appear to be involved. The Maynard Case has already been discussed.

In Cheever v. Wilson 14 there had been a divorce granted upon the wife's libel, in which she alleged her domicil and the misconduct of her husband. The husband appeared in that suit. Objection was made to the validity of the decree in a proceeding involving the title to property. It was held, first, that the objection to the decree was not properly pleaded; second, that if the decree was valid in the state of its rendition, it was so everywhere; third, that if the question of the bona fides of her residence could be in

14 9 Wall. (U. S.) 108 (1869).

quired into, there must be evidence to overcome the recitals of the decree, which evidence was then lacking; and fourth, that she could acquire a separate domicil when "necessary or proper," at which domicil divorce proceedings could be instituted. The decision that the decree was either valid or invalid everywhere is evidently based upon the idea that the proceeding was of necessity judicial. In this the case is an authority for the propositions herein advanced and runs counter to some observations in the Haddock Case. If the necessary and proper occasion for the acquisition of a separate domicil by the wife means that the husband's misconduct entitles her to change her domicil, and with it the matrimonial domicil, it supports the same views on this point also. If the occasion included a separation by mutual consent, as much could not be claimed. The nature of the occasion is not discussed by the court. It appears, however, from other cases that the occasion referred to is only that which gives her power over the matrimonial domicil.15 The question when and how the jurisdictional issue can be raised is not considered.

The cases next in order of time are Atherton v. Atherton 16 and the Haddock Case. The Atherton Case was decided upon the ground that the court of the matrimonial domicil has jurisdiction over the subject of divorce. With that much no one has differed. But what facts settle where the matrimonial domicil was? In what tribunal can those facts be adjudicated? Here is the difficulty with the case. The question is hardly noticed in the opinion. It seems to be assumed that because Kentucky was once the situs of the marital status, therefore it continued to be so after the wife had left her husband for just cause and had acquired a domicil in New York. No doubt the court of the matrimonial domicil has jurisdiction, if the reasonable statutory provisions for such notice as can be given are complied with; but more light is needed upon the nature and qualities of the domicil of matrimony. Although the question is fairly involved in the Haddock Case, this aspect of it is not considered. Its attributes are sought by a process of delimitation. The earlier cases are treated as establishing certain boundary points, rather than as guides to the formulation

15 Barber v. Barber, 21 How. (U. S.) 582, 595 (1858); Cheely v. Clayton, 110 U. S. 701 (1884).

16 181 U. S. 155 (1901).

of an underlying principle. In that case the original matrimonial domicil was in New York, and it was decided that the deserting husband did not take it with him to Connecticut. But why this result was reached without overruling the holding in the Atherton Case, that the abusive husband kept the domicil with him in Kentucky, is not stated. It seems plain that consistency required the overruling of the former case in the later one, so far as the former held that the domicil remained with the guilty husband.

The objections to the decision in the Haddock Case, and its point of conflict with the Atherton Case, are strikingly presented by passages in the dissenting opinion of Mr. Justice Holmes. He says: "The only reason which I have heard suggested for holding the decree not binding as to the fact that he was deserted, is that if he is deserted his power over the matrimonial domicil remains so that the domicil of the wife accompanies him wherever he goes, whereas if he is the deserter he has no such power. Of course this is pure fiction, and fiction always is a poor ground for changing substantial rights. It seems to me also an inadequate fiction, since by the same principle, if he deserts her in the matrimonial domicil, he is equally powerless to keep her domicil there, if she moves into another state." 17 If the idea that the fact as to who was the deserter is of importance as to the state of the domicil be pure fiction, it is so only in the sense that many rules of law are.18 It does not require the citation of authorities to establish that this fact has many times been held to be of controlling importance, as in determining the power of the wife to acquire a separate domicil generally, or of her taking her husband's credit with her. It can well be argued that the rule rests upon a substantial basis of fact. The man is lord of the domus so long as he rules lawfully; but when he departs from the law, he is no longer king.

The apparent inadequacy of the rule results from the failure of the majority to declare, as they in substance hold, that there was error in the Atherton Case. A little later in his opinion Judge Holmes makes this still more evident. "I also repeat and emphasize that if the finding of a second court, contrary to the decree, that the husband was the deserter, destroys the jurisdiction in the later acquired domicil because the domicil of the wife does not

17 Haddock v. Haddock, 201 U. S. 562, 629 (1906).

18 "Domicile is an idea of the law." Bell v. Kennedy, L. R. 1 H. L. Sc. 307 (1868).

follow his, the same fact ought to destroy the jurisdiction in the matrimonial domicil if in consequence of her husband's conduct the wife has left the state. But Atherton v. Atherton decides that it does not." 19

"An articulate indication of how it is to be distinguished" 20 is still lacking. The statement of the majority that the Atherton Case deals with "an unjustifiable absence" of the wife from the matrimonial domicil would dispose of it as an authority against the Haddock Case. But the limitation is clearly unwarranted, and a broader ruling, according with the minority view of what the case decided, was actually made. In a later case,21 and in an opinion written by a justice who had not participated in the former decisions, the same course is pursued as in the earlier cases. The husband who deserts does not take the res with him, if he goes out of the state, but he keeps it if he remains within the state. The concurrent existence of these two propositions is quite possible as a fact, but they certainly cannot both result from sound logic or a rule of reasonableness.

The use of the term "matrimonial domicil" in this connection has had an unfortunate tendency. It has frequently been treated as though it of necessity meant a place where the parties had lived together as husband and wife, or as synonymous with common domicil. Its true meaning is rather this: it is that place where one spouse is rightfully domiciled and where the other ought to be to fulfill the marital obligations. This seems a plain, simple, and just test for the rights involved.

The suggestion has been made that under the rule in the Haddock Case the second decree obtained by an eloping wife at her new abode would be binding upon the husband, although "as her husband is not present, and she therefore has the entire control over the evidence, she will be able to convince the court of her own inno

19 Haddock v. Haddock, 201 U. S. 562, 631 (1906).

20 Ibid.

21 Thompson v. Thompson, 226 U. S. 551 (1913). In this case the guilty, homestaying husband succeeded in evading service of process issued by the court of the innocent wife's new domicil until he had instituted and carried to a successful issue his libel against her at his domicil. It seems that the race of diligence is still on; for her power under such circumstances to "get a different domicil from that of her husband for purposes of divorce is not disputed and is not open to dispute. Haddock v. Haddock, 201 U. S. 562, 571, 572." Holmes, J., in Williamson v. Osenton, 232 U. S. 619, 625 (1914).

cence and her husband's fault." The question of who deserted, being jurisdictional, is always open to inquiry in any proceeding wherein the decree based upon jurisdiction so obtained is offered in evidence. That issue cannot be foreclosed in an action when only one party is present, save where the other party is subject to the jurisdiction and has defaulted. The jurisdictional question always being open to investigation, when the decree is offered in evidence the inquiry begins: Was the defendant in the former proceeding within the state and duly served with process? If not, were the facts as to the conduct and relations of the parties such as to show that the marital status was at the place where the decree was entered? If it was, the court had jurisdiction over the res. If it was not, there was no jurisdiction. The fact that this issue was passed upon ex parte in the prior proceeding in no way forecloses the right of the libellee to inquire into it when the decree is subsequently offered against him.

But it is said this makes jurisdiction depend upon the merits of the case, a proposition which seems to be regarded as a plain absurdity by those who state it.23 In most cases it is true that the facts to be litigated will in the main be the same, although there may be exceptions. But assume that it is an unescapable result in every case. What of it? Are jurisdictional questions tabooed because the same facts bear on the merits also? Of what avail to try the merits without jurisdiction? It is putting the cart before the horse to claim that, because the merits have been tried, therefore the jurisdictional questions are foreclosed. Yet the proposition has seemed attractive to not a few.

In most of these cases it is a misnomer to speak of the first hearing as a trial. It is in fact, if not always in law, an ex parte attempt to ascertain the truth. At the second hearing, when both parties are present, it is sought to foreclose the matter upon the ground that the libellee theretofore had his day in court. Upon that issue he is, by all the authorities, entitled to be heard. In other proceedings the objection that the issues raised were the same has been

22 19 HARV. L. REV. 586, 589.

23 The inquiry in the second case is not to determine whether the merits "have been decided rightly," - Holmes, J., in Haddock v. Haddock, 201 U. S. 562, 628 (1906), but to ascertain whether there was jurisdiction to pass upon the merits. The proceeding being in rem, jurisdiction “depends . . . upon the state of the thing." Rose v. Himely, 4 Cranch (U. S.) 241, 269 (1808).