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other states from giving such effect to a judgment of that character as they may elect to do under mere principles of state comity. It causes the full faith and credit clause of the Constitution to operate upon decrees of divorce in the respective states just as that clause operates upon other rights; that is, it compels all the states to recognize and enforce a judgment of divorce rendered in other states where both parties were subject to the jurisdiction of the state in which the decree was rendered, and it enables the states rendering such decrees to take into view for the purpose of the exercise of their authority the existence of a matrimonial domicile from which the presence of a party not physically present within the borders of a state may be constructively found to exist.
"Having thus disposed of the reasoning advanced to sustain the assertion that the courts of the state of New York were bound by the full faith and credit clause to give full effect to the Connecticut decree, we are brought to consider the authorities relied upon to support that proposition.
"Whilst the continental and English authorities are not alluded to in the argument, it may be well, in the most summary way, to refer to them as means of illustrating the question for consideration. The extent of the power which independent sovereignties exercised over the dissolution of the marriage tie, as to their own citizens, gave rise, in the nature of things, to controversies concerning the extraterritorial effect to be given to a dissolution of such tie when made between citizens of one country by judicial tribunals of another country in which such citizens had become domiciled. We do not deem it essential, however, to consider the conflicting theories and divergent rules
of public policy which were thus engendered. We are relieved of the necessity of entering upon such an inquiry, since it cannot be doubted that neither the practice nor the theories controlling in the countries on the continent lend the slightest sanction to the contention that a government, simply because one of the parties to a marriage was domiciled within its borders, where no matrimonial domicile ever existed, had power to render a decree dissolving a marriage which on principles of international law was entitled to obligatory extraterritorial effect as to the other party to the marriage, a citizen of another country. 1 Wharton, Conf. Laws (3d Ed.), 441, Sec. 209, and notes.
"It cannot be doubted, also, that the courts of England decline to treat a foreign decree of divorce as having obligatory extraterritorial force when both parties to the marriage were not subject to the jurisdiction of the court which rendered the decree. Shaw vs. Gould, L. R. 3 H. L., 55; Harvey vs. Farnie, 8 App. Cas., 43. And, although it has been suggested in opinions of English judges treating of divorce questions that exceptional cases might arise which perhaps would justify a relaxation of the rigor of the presumption that the domicile of the husband was the domicile of the wife, per Lords Eldon and Redesdale, in Tovey vs. Lindsay, 1 Dow 133, 140; per Lord Westbury, in Pitt vs. Pitt, 4 Macq. H. L. 627, 640; per Brett, L. J., in Niboyet vs. Niboyet, 4 P. D. 1, 14; Briggs vs. Briggs, 5 P. D. 163, 165; and per James and Cotton, L.JJ., in Harvey vs. Farnie, 6 P. D. 47, 49, the courts of England, in cases where the jurisdiction was dependent upon domicile, have enforced the presumption and treated the wife as being within
the jurisdiction where the husband was legally domiciled. But this conception was not a departure from the principle uniformly maintained, that, internationally considered, jurisdiction over both parties to a marriage was essential to the exercise of power to decree a divorce, but was simply a means of determining by a legal presumption whether both parties were within the jurisdiction. Of course the rigor of the English rule as to the domicile of the husband being the domicile of the wife is not controlling in this court, in view of the decisions to which we have previously referred, recognizing the right of the wife, for the fault of the husband, to acquire a separate domicile. Barber vs. Barber, 21 How. (U. S.), 582; Cheever vs. Wilson, 9 Wall. (U. S.), 108; Atherton vs. Atherton, 181 U. S. 155, 21 U. S. Sup. Ct. Rep., 544.
"And even in Scotland, where residence, as distinguished from domicile, was deemed to authorize the exercise of jurisdiction to grant divorces, it was invariably recognized that the presence within the jurisdiction of both parties to the marriage was essential to authorize a decree in favor of the complainant. 1 Wharton, Conf. Laws, Sec. 215, page 447; per Lord Westbury, in Shaw vs. Gould, L. R. 3 H. L. 88.
"As respects the decisions of this court. We at once treat as inapposite, and therefore unnecessary to be here specially reviewed, those holding (a) that where the domicile of a plaintiff in a divorce cause is in the state where the suit was brought, and the defendant appears and defends, as both parties are before the court, there is power to render a decree of divorce which will be entitled in other states to recognition under the full faith and credit clause. Cheever vs. Wilson, supra; (b) that as distinguished from legal domicile, mere residence within a particular state of
the plaintiff in a divorce cause brought in a court of such state, is not sufficient to confer jurisdiction upon such court to dissolve the marriage relation existing between the plaintiff and a nonresident defendant. Andrews vs. Andrews, 188 U. S. 14, 23 U. S. Sup. Ct. Rep., 237; Streitwolf vs. Streitwolf, 181 U. S. 179, 21 U. S. Sup. Ct. Rep., 553; Bell vs. Bell, 181 U. S. 175, 21 U. S. Sup. Ct. Rep., 551. This brings us to again consider a case heretofore referred to, principally relied upon as sustaining the contention that the domicile of one party alone is sufficient to confer jurisdiction upon a judicial tribunal to render a decree of divorce having extraterritorial effect, viz., Atherton vs. Atherton, 181 U. S. 155, 21 U. S. Sup. Ct. Rep., 544. The decision in that case, however, as we have previously said, was expressly placed upon the ground of matrimonial domicile. This is apparent from the following passage, which we excerpt from the opinion, at page 171:
"This case does not involve the validity of a divorce granted, on constructive service, by the court of a state in which only one of the parties ever had a domicile; nor the question to what extent the good faith of the domicile may be afterwards inquired into. In this case the divorce in Kentucky was by the court of the state which had always been the undoubted domicile of the husband, and which was the only matrimonial domicile of the husband and wife. The single question to be decided is the validity of that divorce, granted after such notice had been given as was required by the statutes of Kentucky.'
"The contention, therefore, that the reasoning of the opinion demonstrates that the domicile of one of the parties alone was contemplated as being sufficient
to found jurisdiction, but insists that the case decided a proposition which was excluded in unmistakable language. But, moreover, it is clear, when the facts which were involved in the Atherton case are taken into view, that the case could not have been decided merely upon the ground of the domicile of one of the parties, because that consideration alone would have afforded no solution of the problem which the case presented. The salient facts were these: The husband lived in Kentucky, married a citizen of New York, and the married couple took up their domicile at the home of the husband in Kentucky, where they continued to reside and where children were born to them. The wife left the matrimonial domicile and went to New York. The husband sued her in Kentucky for a divorce. Before the Kentucky suit merged into a decree the wife, having a residence in New York sufficient under ordinary circumstances to constitute a domicile in that state, sued the husband in the courts of New York for a limited divorce. Thus the two suits, one by the husband against the wife and the other by the wife against the husband, were pending in the respective states at the same time. The husband obtained a decree in the Kentucky suit before the suit of the wife had been determined, and pleaded such decree in the suit brought by the wife in New York. The New York court, however, refused to recognize the Kentucky decree, and the case came here, and this court decided that the courts of New York were bound to give effect to the Kentucky decree by virtue of the full faith and credit clause. Under these conditions it is clear that the case could not have been disposed of on the mere ground of the individual domicile of the parties, since