government from which they emanate. (Cooley Princ. of Const. Law, p. 178).

The development has been slow, beginning with the days when each nation. divided the world into itself and the Barbarians, and took no heed of any laws but its own. When the encircling arms of Rome stretched out and gathered in the greater part of the then civilized world, it was found necessary to allow local laws in conquered countries to retain a local force, subject to the paramount authority of the Empire. Later, when the Northern tribes overwhelmed the Empire, and the great structure went to pieces, each tribe or nation kept its own laws, and there came into being the idea of personal laws, binding a man wherever he might be, because of his race allegiance. (Story, Confl. of Laws p. 3, quoting Savigny).

Then grew up a conflict between such personal laws or statutes, binding persons subject to them everywhere and universally, and real statutes, affecting things found within the territorial jurisdiction in which such laws prevailed. (Story, Confl. of Laws p. 12). The conflict was to determine not so much which should prevail, but which applied, and that decided, the question was at rest. There was room for a vast amount of metaphysical quibbling and verbal hair-splitting, (Saul v. His Creditors 17 Mart.) and most of the energy spent was wasted, but the importance of the distinction still exists, for actions in rem are still to be governed by very different rules from those which apply to actions in personam, and much of the confusion on this very subject of Divorce arises from a failure to make this distinction.

The subject of Divorce is indeed one in which questions of conflict may very

easily arise, and also one in which it is highly important that consistent, and so far as possible, universally adopted rules should be followed, in view of the far reaching consequences of each determination. There are many elements which may enter into a question of divorce and suggest the possibility of the application of different laws. The nationality of the parties, their domicile, the place of the celebration of the marriage, the place where the offence was committed, the forum in which the relief is sought; all these might from some point of view furnish a controlling rule; and the matter may be further complicated by the fact of different domicils at different times, and the added question as to the possibility of separate domicils of husband and wife. The only way to get any light on the subject is to eliminate some of these elements, and adopt a working hypothesis. To find one which will reconcile or explain all the adjudications and all the declared principles is impossible; the most that can be hoped for is one which will offer a scheme consistent in itself and supported by respectable authority.

Such an hypothesis may be laid down in the form of propositions, as follows: 1. Marriage is in its formation a contract; when formed, a status.

2. This status exists in the domicile of the married pair, and when the law recognizes the possibility of separate domiciles, in that of each spouse.

3. Divorce is the destruction of this status, by a proceeding substantially in rem. 4. From 2 and 3 it follows that the law to govern a divorce is the law of the domicil, either of the pair, or in some cases, of either one of the pair, and when a divorce is duly granted by a Court of

competent jurisdiction in such domicil, it dissolves the status to all intents and purposes; such dissolution being valid and to be recognized extra-territorially everywhere.

5. All incidents which depend upon the status alone, such as dower, curtesy and the like, fall with it; but for a decree of divorce to have any further extraterritorial effect, jurisdiction must have been acquired in personam, as well as

in rem.

The first point was for a long time lost in the definitions of marriage as a civil contract, the view sturdily upheld by the common law in distinction from the position taken by the Roman Church, that it is a sacrament. But though called simply a contract, it was early recognized as a contract "altogether of a peculiar kind" (Gordon v. Pye, Ferg. App. 276) and the idea of status once formulated was speedily adopted and is now held everywhere. (Niboyet v. Niboyet 4 P. D. 1. Ditson v. Ditson, 4 R. I. 87. Maynard v. Hill, 125 U. S. 190).

Now the question arises, what is the location of this status? A personal status in general accompanies the person of whom it is predicated wherever he may be, and the rules which regulate and determine it come under the designation of personal statutes, (Saul v. His Creditors 17 Martin), which bind the person affected throughout the world. Under English and American jurisprudence the sovereign power to prescribe such rules is in the State of the domicil of the person in question (Wharton Confl. of Laws, Sec. 88 et seq.) But this status is unique, in that it is not the status of one individual, but of two, and cannot be predicated in any sense except of two; for its essence is the

standing of each in this relation of wedlock to the other. So the status clearly exists in the domicil of the married pair, and by common law this is the domicil of the husband, by reason of the so-called merger of the wife's identity in his.

In the normal marriage, this fiction of law is also actual fact, for by the nature of the relation husband and wife live together and the domicil of one is the domicil of both. But questions of divorce arise not in a normal married state, but in one abnormal and unnatural, and often the legal fiction no longer truly represents the facts of the case. Then the Courts must decide whether they will look behind the fiction or still follow it blindly. The English Courts apparently still adhere to the old rule (Turner v. Thompson 13 P. D. 37) but have sometimes escaped its inconvenience by resorting to the doctrine of perpetual allegiance (Deck v. Deck 2 Sw. and T. 90), a doctrine not accepted in the United States (Wharton Confl. of Laws, Sec. 5). The American decisions are almost unanimous in holding that when it is necessary to prevent injustice, the wife may obtain a separate domicil, sometimes styled "a separate domicil for divorce purposes.' This is inaccurate, however, for if merely for divorce purposes, and not animo manendi, it is no true domicil at all. (Jacobs Dom. pp. 310-317, Harteau v. Harteau, 14 Pick. 181, Mellen v. Mellen 10 Abb. N. C. 329, Cheever v. Wilson, 9 Wall. 108, Ditson v. Ditson 4 R. I. 87). In general the law will not allow its own fictions to work injustice, and as Chief Justice Shaw of Massachusetts says in Harteau v. Harteau, applying that principle to this question, "Otherwise (without the possibility of a separate domicil) the parties, in this

respect, would stand on very unequal grounds, it being in the power of the husband to change his domicil at will, but not in that of the wife."

In this view the status must be considered as existing in the domicil of either spouse, when the wife has been compelled to acquire, or justified in acquiring, a separate domicil, and in such cases logically it should be subject to attack in either. In fact the idea of a separate domicil necessitates the allowance of a jurisdiction founded on such domicil, or justice must often be denied altogether.

This attack is by a proceeding for divorce, having for its object the destruction of the status, the dissolution of the marital relation. It is a proceeding not simply inter partes, for the State has an indefeasible interest in such relations as concerning those domiciled within its borders. This is shown by the intervention. of the Queen's Proctor in English practice, and by the fact that a divorce granted without any domiciliary foundation for jurisdiction is absolutely ineffective. The marital relation being one of the most important factors of social order, the State has good right to concern itself with its dissolution, and to allow no foreign sovereign without interest in the subject matter, nor any private collusion, to sever the domestic ties of its citizens. A divorce suit is accordingly sometimes regarded as triangular, between the two parties and the State. But the action is still one more in rem, or "quasi in rem, as some Courts more gingerly put it", to quote from the opinion in People v. Baker, than in personam, and wherever the status exists, the res may be considered within the jurisdiction. As said by Chief Justice Church (in Kinnier v. Kinnier 45 N. Y.

535 at 544) "It is now well settled that the lex loci which is to govern married persons, and by which the contract is to be annulled, is not the law of the place where the contract was made, but where it exists for the time, where the parties have their domicil, and where they are amenable for any violation of their duties in that relation." The word used is "contract", but the meaning is clearly "status". Moreover each state having the right to determine the status of its own citizens, such determination is conclusive everywhere by the constitutional provision as to the "full faith and credit" to be given to the judgments of sister states. (U. S. Const. Art. 4 Sec. 1, Cheever v. Wilson, 9 Wall. 108).

But this view is not followed out logically in all the States and here arises the principal instance of the conflict of laws. The State of New York is one in which a contrary view is most strongly upheld, for in the leading case on the subject (People v. Baker, 76 N. Y. 78) the Court expressly laid down that while the Ohio divorce rendered in the wife's domicil was valid and effectual to divorce her in Ohio, and consequently everywhere, by reason of the sovereign power of Ohio to determine the status of its own citizens, yet New York, in the exercise of its like sovereign power, would not consent to recognize that the status of its citizen, the husband, had been thereby ipso facto changed, and he, having married again, was held guilty of bigamy. In other words that when two are united, one may be separated without separating the other, a process absolutely inconceivable in the world of matter, and apparently no less so in the domain of law. The fallacy of this reasoning is so clearly shown by Mr. Bishop in his work

on "Marriage, Divorce and Separation" (Vol. II Secs. 150-154) that any further discussion can be little else than repetition. Kinnier v. Kinnier, already quoted, was distinguished in People v. Baker in that the decree there called in question was rendered upon an appearance by both parties, although manifestly collusive, and apparently vitiated by fraud. But how, on the theory of domiciliary status, an appearance can give jurisdiction over a res not actually within the jurisdiction, does not appear. For the case recognized this theory of status, but said that there were two separate res, one in each jurisdiction, and not one res extending between two jurisdictions. That is, apparently, that the marriage relation is not single, between husband and wife, but double, of husband to wife, and of wife to husband, each capable of an independent existence.

Hunt v. Hunt, another earlier case (72 N. Y. 217) was distinguished in that there the parties to the previous divorce had both been domiciled in Louisiana at the beginning of the suit, and hence "subject to its laws, including those for the substituted service of process." The result for New York may be stated in this form, that when there is a common matrimonial domicil, personal service or appearance is not necessary, but when the domicils are separate, jurisdiction in personam of the defendant must be acquired to give the decree extra-territorial validity.

People v. Baker has been repeatedly followed, (O'Dea v. O'Dea, 101 N. Y. 23, Williams v. Williams 130 N. Y. 193) and seems to have crystallyzed into a rule of New York law. Its most recent appearance is in Davis v. Davis (22 N. Y. Supp. 191) in the Common Pleas, before

Judge Pryor, 20th February 1893. This was an action to annul a marriage on the ground of the invalidity of a Massachusetts divorce of the defendant herein, granted

on

constructive service of process by publication, without personal service or appearance. The then plaintiff's nonresidence in Massachusetts at the time of the decree was alleged, but held to be conclusively determined in his favor by the divorce. Judge Pryor further said "The only ground therefore upon which the plaintiff may invalidate the divorce between the defendant and the other woman, is defect of jurisdiction in the Court pronouncing judgment to affect her status as a wife."

"As the marriage purporting to be dissolved was not celebrated in Massachusetts (This ought to make no difference internationally, Author,) as the defendant in the divorce suit was not domiciled in that commonwealth (as in Hunt v. Hunt, A.) nor was served with process, nor appeared in the action (as in Kinnier v. Kinnier, A.) it results that by the law of New York, the judgment against her is of no effect; that she is still the wife of the defendant; (Though he is not her husband, A.) and that by necessary consequence, his marriage with this plaintiff is a nullity, (citing previous cases). To this conclusion I am compelled, but I am not forbidden to say that my reason revolts against it." Then to condense 'By Massachusetts

law the decree was valid and conclusive, and by Cheever. Wilson, 9 Wall. 109 'a decree in divorce, valid and effectual by the laws of the State where obtained, is valid and effectual in all other States." Yet the Massachusetts decree is to be pronounced a nullity, because resting on constructive service of process merely,