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upon that hypothesis, even if the efficacy of the individual domicile had been admitted, no solution would have been thereby afforded of the problem which would have arisen for decision, that problem being which of the two courts wherein the conflicting proceedings were pending had the paramount right to enter a binding decree. Having disposed of the case upon the principle of matrimonial domicile, it cannot in reason be conceived that the court intended to express an opinion upon the soundness of the theory of individual and separate domicile, which, isolatedly considered, was inadequate to dispose of, and was therefore irrelevant to the question for decision.
"It is contended that an overwhelming preponderance of the decisions of state courts enforce the doctrine that it is the duty of the states, by virtue of the full faith and credit clause, to give within their borders the full effect required by that clause to decrees of divorce rendered in other states, where there was jurisdiction alone by virtue of the domicile of one of the parties. Whilst we may not avoid the duty of interpreting for ourselves the Constitution of the United States, in view of the persuasive force that would result if an overwhelming line of state decisions held the asserted doctrine, we come to consider that subject. To examine in detail the many decisions of state courts of last resort, most of which are referred to in the margin, would expand this opinion to undue length. To avoid so doing, if possible, we propose to more particularly direct our attention to the cases in state courts which are specially relied on. In doing so we shall add cases in several of the states not particularly counted on in the argument. We shall do this for the purpose of evolving, if possible, from
the state cases thus to be referred to, some classification typical of all the state decisions, hence enabling all the cases to which we do not specially refer to be brought within the appropriate class to which they pertain, without the necessity of reviewing them in detail. We shall not confine ourselves to the particular state decisions relied on, but shall consider such decisions in the light of the general rule obtaining in the particular state.
"The cases specially relied on are Thompson vs. State, 28 Ala. 12; Harding vs. Alden, 9 Me. 140; Ditson vs. Ditson, 4 R. I., 87; Burlen vs. Shannon, 115 Mass., 438, and Felt vs. Felt, 59 N. J. Eq., 606, 45 Atl. Rep., 105, 49 Atl. Rep., 1071, to which we shall add for the purposes above stated cases on the same subject decided in New York, Ohio, Wisconsin, Indiana, and Missouri.
"New York.-It is not questioned that the courts of New York are vested by statute with authority to render decrees of divorce where the plaintiff is domiciled within the state, which shall be operative in that state, even although the defendant is a nonresident and is proceeded against by constructive service.
"Borden vs. Fitch, 15 Johns. (N. Y.), 121, and Bradshaw vs. Heath, 13 Wend. (N. Y.), 407, were decided, respectively, in the years 1818 and 1835. These cases, as declared by the Court of Appeals of New York in People vs. Baker, 76 N. Y., 78, 82, upheld the principle that a court of another state could not dissolve the matrimonial relation of a citizen of New York, domiciled in New York, unless he was actually served with notice within the other state or voluntarily appeared in the cause. The doctrine that
an action of divorce in one inter partes was thus clearly reiterated by Andrews, J., in Jones vs. Jones, 108 N. Y., 415, 424, 15 N. E. Rep., 707:
'The contract of marriage cannot be annulled by judicial sanction any more than any other contract inter partes, without jurisdiction of the person of the defendant. The marriage relation is not a res within the state of the party invoking the jurisdiction of a court to dissolve it, so as to authorize the court to bind the absent party, a citizen of another jurisdiction, by substituted service or actual notice of the proceeding given without the jurisdiction of the court where the proceeding is pending.'
"That the principle referred to is still enforced by the New York court is shown by recent cases, viz., Lynde vs. Lynde, 162 N. Y., 405, 56 N. E. Rep., 979; Winston vs. Winston, 165 N. Y., 553, 59 N. E. Rep., 273, and the case at bar. And it is indubitable that under this doctrine the courts of New York have invariably refused, as they have done in the case at bar, to treat a divorce rendered in another state, under the circumstances stated, as entitled to be enforced in New York by virtue of the full faith and credit clause of the Constitution of the United States; and, indeed, have refused generally to give effect to such decrees even by state comity.
"Massachusetts.-Barber vs. Root, 10 Mass., 260; Hanover vs. Turner, 14 Mass., 227, and Harteau vs. Harteau, 14 Pick. (Mass.), 181, were decided, respectively, in 1813, 1817, and 1833. In 1835 the legislature of Massachusetts incorporated into the statutes of that state, following a section forbididng the recognition of divorces obtained in another jurisdiction in fraud of the laws of Massachusetts, a provision reading
as follows: 'In all other cases, a divorce decreed in another state or country, according to the law of the place, by a court having jurisdiction of the cause and of both of the parties, shall be valid and effectual in this state.' And it may be observed that this section, when submitted to the legislature by the commissioners for revising the Massachusetts statutes, was accompanied by the following comment (Rep. Com'rs, Pt. II., page 123): "This is founded on the rule established by the comity of all civilized nations, and is proposed merely that no doubt should arise on a question so interesting and important as this may sometimes be.'
"In Lyon vs. Lyon (1854), 2 Gray (Mass.), 367, the question was as to the validity in Massachusetts of a divorce decreed in Rhode Island in favor of one party to a marriage against the other who was domiciled in Massachusetts. The court refused to give extraterritorial effect to the Rhode Island decree. In the opinion by Chief Justice Shaw it was declared that the three cases which we have previously referred to sustained the doctrine, based upon general principles of law, that a decree of divorce rendered in another state without jurisdiction of both of the parties possessed no extraterritorial force.
"In Hood vs. Hood (1865), 11 Allen (Mass.), 196, the controversy was this: The parties were married in Massachusetts, and after a residence in that state moved together to Illinois. The wife left the domicile of the husband in Illinois and returned to Massachusetts. Thereafter, in Illinois, the husband sued the wife for a divorce on the ground of her desertion, obtained a decree, and married again. The case decided in Massachusetts was a suit brought in that
state by the former wife against the former husband for divorce on the ground of adultery alleged to have been committed by him with the person whom he had married after the decree of divorce in Illinois had been rendered. The Illinois decree was pleaded at bar. The question whether the Illinois decree should be given extraterritorial effect in Massachusetts depended, under the rule announced in the previous cases, upon whether both the husband and wife were parties to the Illinois decree. For the purpose of the determination of this jurisdictional question it was held that it was necessary to ascertain whether the wife was justified, by the fault of the husband, in leaving him in Illinois and going back to Massachusetts. It was decided that if she was justified in leaving the husband, her legal domicile was in Massachusetts, and she was not a party to the Illinois decree, and that if she was not justified in living separate from the husband, the ordinary rule being that the domicile of the husband was the domicile of the wife, she was domiciled in Illinois, and must be considered as subject to the jurisdiction of the Illinois court. Applying this legal principle to the facts in the case before it, the court held that as there was no evidence showing that the wife had justifiable cause for leaving her husband, the legal presumption that the domicile of the husband was the domicile of the wife prevailed, and that the Illinois decree was entitled to extraterritorial effect in Massachusetts, and bound the wife, because rendered by a court having jurisdiction over both parties.
"In Shaw vs. Shaw (1867), 98 Mass., 158, the facts were these: The parties were married in Massachusetts, lived there, and left together for the purpose of settling in Colorado. On the journey, at Philadel