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had no lawful jurisdiction of the case when they had none over the absent wife. They considered it to be a judgment obtained upon false and fraudulent suggestions. So, also, in Hanover v. Turner, (d) the Supreme Court in Massachusetts held a divorce in another state to be null and void, as having been fraudulently procured by one of their citizens without a change of dom*109 icil. There is no doubt of the rule, that the allegation

that a foreign judgment was obtained by fraud is admissible, and, if true, it will destroy its effect. All judgments rendered anywhere against a party who had no notice of the proceeding, are rendered in violation of the first principles of justice, and are null and void. (a) Sentences obtained by collusion are mere nullities, and all other courts may examine into facts upon which a judgment has been obtained by fraud. Every party is at liberty to show that another court was imposed on by collusion. (b) The question is, whether, if such a divorce be procured in another state, by parties submitting to the jurisdiction, and after a fair investigation of the merits of the allegations upon which the decree was founded, such a decree is entitled to be received as valid and binding upon the courts of the native state of the parties. A graver question cannot arise under this title in our law.1

The locus delicti may not be important in the jurisprudence of the states. It is not material in New York, provided the marriage was solemnized there. The effect that the constitution and laws of the United States have on the question has not been judicially decided; but it is settled that a judgment of the state court is to have the same faith and credit in every other court in the United States, which it has in the courts of the state in which

(d) 14 Mass. 227.

(a) Fisher v. Lane, 3 Wilson, 297. Kilburn v. Woodworth, 5 Johns. 37. Thurber v. Blackbourne, 1 N. Hamp. 242. Aldrich v. Kinney, 4 Conn. 380.

(b) Duchess of Kingston's case, Harg. St. Tri. vol. xi. p. 262. 1 Hagg. Cons. 290, note. How. St. Tri. vol. xx. p. 355.

1 In Vischer v. Vischer, 12 Barb. (N. Y.) 640, it is said, if the parties appear in a suit for a diyorce in another state, and it is litigated on the merits, and there is no collusion, the divorce will be conclusive, without reference to lex loci contractus in the domicil of the defendant, or the locus delicti. See Geils v. Dickenson, 20 E. L. & E. Rep. 1. In Ditson v. Ditson, 4 R. I. 87, it was held, that a divorce granted by the courts of a state having jurisdiction over the petitioning party, as a citizen of the state, is, by art. 4, sec. 1 of the constitution of the United States, valid in all the states. And see Thompson v. State, 28 Ala. 12.

it was pronounced. (e) According to the doctrine of the deci sions in the federal courts, it may be contended, that a divorce in one state, judicially conducted and declared, and procured under circumstances which gave the court full jurisdiction of the cause * and of the parties, and sufficient to render the *110 divorce valid and binding there, would be good and binding in every other state; and yet it is evident that the domestic policy of one state on this very interesting subject of divorce, may in this way be exposed to be greatly disturbed by a different policy in another state. It may be proper in this work to leave the question as I find it; but if such a decree will operate and conclude the question in every state, we are at least relieved from that alarming and distressing collision which exists between the judicatures of England and Scotland on this subject; and the appeal must be made to the mutual comity, moderation, and forbearance of the legislatures of the several states, in their respective regulations on the subject of divorce. The twelve judges of England decided, in 1812, in Lolley's case, that, as by the English law a marriage was indissoluble, a marriage contract in England could not be dissolved by the judicial tribunals of any other country, or in any way except by act of Parliament. (a) The party in that case was convicted of bigamy for marrying again after a Scotch divorce; and, consequently, all foreign divorces of English marriages were held to be null and void. I presume that such a de

(c) See vol. i. pp. 260, 261.

(a) 1 Dow, 124, 136. Russ. & Ryan's Cr. Cases, 236. See, also, Conway v. Beazley, 3 Hagg. Eccl. 642. But see infra, p. 117, n. a, where the case of Lolley is shaken. A similar decision to that in Lolley's case is stated to have been made by Lord Chancellor Brougham, in M'Carthy v. Decaix, where it was held that an English marriage could not be annulled by the Danish law. 3 Hagg. Eccl. 642, note. 2 Russ. & M. 614. But in Harding v. Alden, 9 Greenl. 140, it was held, by the Supreme Judicial Court in Maine, that a decree of divorce did not fall within the rule that a judgment rendered against one not within the state, nor bound by its laws, nor amenable to its jurisdiction, was not entitled to credit against the defendant in another state; and that divorces pronounced according to the law of one jurisdiction, and the new relations thereupon formed, ought to be recognized, in the absence of all fraud, as operative and binding everywhere, so far as related to the dissolution of the marriage, though not as to other parts of the decree, such as an order for the payment of money by the husband. This is an important and valuable decision, and settles the question, so far as the judicial authority of a single state can do it, against the English rule, and places it upon the same principles of justice, good morals, and policy, which render a marriage, valid by the law of the place where it was solemnized, valid everywhere.

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cision will not be considered as law here, as between the several states. But supposing a marriage here is dissolved abroad, as in Scotland or France, for instance, for causes not admissible with us, how would such a divorce affect a marriage solemnized here? A short examination of some of the cases discussed in England and Scotland, on this litigious question, may be useful and instructive. The conflictus legum is the most perplexing and difficult title of any in the jurisprudence of public law.

In Utterton v. Tewsh, (b) the marriage was in England, and the husband afterwards committed adultery and abandoned * 111 * his wife, and went to Scotland and resided there about

forty days, living in adultery. The wife sued for a divorce. a vinculo, in the consistorial court of Scotland, in 1811, and the court dismissed the bill on the ground that the husband had not formed a real and permanent domicil in Scotland, so as to give the court jurisdiction. Here was an English marriage by English parties, who had not changed their original English domicil; and, if they had, the judges doubted whether, according to the jus gentium, the lex loci contractus ought not to be preferred. There was great danger of collusion of English parties to obtain a divorce a vinculo in Scotland, in opposition to the English law, which does not allow such divorces; and if decrees might be obtained in Scotland, which would be invalid in England, a distressing collision would arise, and dangerous questions touching the legitimacy of children by a second marriage, and the rights of succession, and the crime of bigamy. But the decree of the consistorial court was reversed on appeal, and the cause was remanded to that court, and they accordingly proceeded upon the bill for a divorce, and pronounced a divorce a vinculo for the adultery charged. Lord Meadowbank, in pronouncing the decree of reversal, in the supreme court of review, delivered a learned and powerful opinion. He observed that the relation of husband and wife was acknowledged jure gentium, and the right to redress wrongs incident to that relation attached on all persons living within the territory, though the marriage was celebrated elsewhere. It was not necessary that the foreigners should have acquired a domicil animo remanendi; and if the law refused to

(b) Fergusson's Reports of Decisions in the consistorial courts of Scotland in actions of divorce, p. 23.

apply its rules to these domestic relations recognized by all civilized nations, Scotland could not be deemed a civilized country; as thereby it would permit a numerous description of persons to traverse it, and violate with impunity all the obligations of domestic life. If it assumed jurisdiction, and applied not its own rules, but the law of the foreign country where the relation had been created, the supremacy of the law of Scotland, * within its territory, would be compromised, and powers *112 of foreign courts, unknown to the law, usurped and exercised. A domicil was of no consequence, if the foreigner was to be personally cited, or his residence sufficiently ascertained. If the wife who prosecuted was innocent of any collusion, it was no bar to the remedy that the husband came to Scotland and committed adultery, with a calculation that it would be detected by the wife, or that he came to Scotland with the criminal intent of instigating his innocent wife to divorce him.

In the next case that came before the consistorial court, in 1816, (a) the parties married and lived in England, and the husband deserted his wife, committed adultery, and domiciled himself in Scotland. The judges did not concur in their views of the subject. Two of them held that the husband was sufficiently domiciled in Scotland to give jurisdiction, but that the law of England, which was the locus contractus, ought to govern upon principles of comity and international law, and not the lex domicilii. They were, therefore, of opinion, that the divorce for the adultery should be only a mensa et thoro. The other two judges thought that the domicil was not changed, and therefore a divorce a vinculo could not be pronounced. On appeal, the court of sessions remanded the cause for the purpose of inquiry into the fact of domicil. The consistorial court then held, that the real English domicil of the husband was not changed by being a weekly lodger in Scotland for eighteen months, and that a change of the real domicil, made bona fide et animo remanendi, at the date of the action, was necessary for the purpose, not indeed of jurisdiction, but to determine whether the rule of the lex loci, upon principles of international law, did or did not apply. The rule of judgment must be the lex loci, as there was no change of the real English domicil, and, therefore, a divorce a mensa et thoro, and none

(a) Duntze v. Levett, Fergusson, p. 68.

*113 other, was * pronounced. But on appeal, this decree was also reversed by the court of sessions, and the court below ordered to render a decree of divorce a vinculo.

A third case was decided in 1816. (a) The marriage was in England; but the parties lived and cohabited together in Scotland for eight years, and the adultery was committed there. The question was not one of domicil, for that was too clear to be questioned, but it was the general and broad question, whether the lex loci contractus, or the law of the domicil, was to govern in pronouncing the divorce. Two of the judges were for following the law of the domicil, and rendering a divorce a vinculo, and the other two were for the lex loci, and granting only a divorce a mensa. But the court of review reversed this decree also, and directed the cause to proceed upon the law of Scotland.

In Butler v. Forbes, decided in 1817, (b) the marriage was in Scotland; but the real domicil of the parties was in Ireland. The adultery was committed in Scotland, during a transient visit there. The consistory court held, that the law of the real domicil must prevail over the law of the contract. The locus delicti was immaterial, but the law of the real domicil was the governing principle, and they refused any other than a divorce a mensa. The court of review reversed this decree, also, and directed a divorce a vinculo.

In Kibblewhite v. Rowland, in 1816, (c) the parties were English, and married and domiciled in England; but the defendant had committed adultery on a visit to Scotland, and his wife sued him for a divorce. The consistorial court held, that both the law

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of the contract and the law of the domicil were against a *114 divorce a vinculo, and they refused it. This decree was also reversed, and the usual divorce a vinculo directed.

I will cite but one more of these Scotch decisions, in which the subject was discussed in a masterly manner. The case of Gordon v. Pye was decided in the consistorial court, in 1815. (a) The parties were English, and married in England, and resided there during the whole period of cohabitation. The husband deserted his wife, and transiently transferred his domicil to Scotland, and

(a) Edmondstone v. Lockhart, Fergusson, p. 168.

(b) Fergusson, p. 209.

(c) Fergusson, p. 226.
(a) Fergusson, p. 276.

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