The legitimacy of the issue has no necessary connection with the status of marriage, since in some States children may be legitimate without an intermarriage of the parents, nor is it a necessary incident of the relation of parent and child, since that relation may exist without it. The truth is, legitimacy forms a distinct instance of status, and as such will be treated separately in a subsequent chapter.

CHAPTER VII.

DISSOLUTION OF THE MARRIAGE STATUS BY DIVORCE.

§ 84. Causes for Divorce.

The supreme importance of the marriage status to the State as well as to the parties has been adverted to. The interest of the State in this relation leads it not only to demand that it should not be entered into unadvisedly or lightly, and to prescribe with great care who may or may not enter into the contract, as well as the ceremonies accompanying its solemnization, but also to prohibit its dissolution at the mere will or caprice of the parties. The consent of the State thereto must first be obtained through its legislature or its courts, and only for the particular causes assigned by the law-making power.

If the parties abandon their domicil in one State and acquire a residence in another, the interest of the first State in the marriage status ceases; that interest is now transferred to the second State, which will see to the preservation or regulation of the relation with the same zeal that inspired the former State so long as the parties remained domiciled there. The latter State will now permit the status to be dissolved only for causes which seem to it proper, and only with its consent (through its courts). For the marriage relation is essentially a status, a mode of life, and just as the incidents thereof are determined by the law of the place where the parties live (lex domicilii), so also the dissolution thereof is to be regulated by the same law.

Hence it is a well established general principle of private international law that a divorce obtained in a State other than the domicil is of no binding effect in other States, as will presently appear.

The same principle applies to the causes for which a divorce is asked for. If the parties have always resided in the same

State, and have never lived elsewhere, no difficulty arises. It is manifest that the State where they have always lived (their only domicil) should be the State where the divorce is prosecuted, and upon its municipal law must depend the question whether or not there is sufficient ground to dissolve the marriage relation.1

But if the parties since the marriage have lived in several States, a question may arise as to which law shall determine whether there is ground for divorce. So also, if the act on account of which the divorce is asked occurs in another State, by whose law it is no cause of divorce, though constituting a sufficient cause in the State of the divorce forum, or vice versa; especially if the parties at the time of the act were domiciled in the State where it was done, one or both of them removing afterwards to the State of the forum. What law should properly determine such points has been the subject of considerable debate.2

Upon principle, it would seem clear that the question whether or not a particular act or omission is a ground for divorce should be determined by the rules of the municipal law of the divorce forum. The fact that the alleged offense occurs in another State, or even that the parties were domiciled in the latter State when the offense occurs there, should not be sufficient, in the absence of explicit legislation of the forum to the

1 Hunt v. Hunt, 72 N. Y. 217, 228, 28 Am. Rep. 129.

2 Various theories will be found advocated in the following cases, some holding that the law of the place where the marriage contract is entered into should regulate the causes for dissolving the status; others holding that the law of the place where the offence is committed should prevail; others are in favor of the law of the domicil of the parties at the time the offence was committed; and others in favor of the law of the parties' domicil at the time the divorce is sought. See Lolley's Case, 2 Cl. & F. 567; Arrington v. Arrington, 102 N. C. 491, 9 S. E. 200, 207; Norris v. Norris, 64 N. H. 523, 15 Atl. 19; Prosser v. Warner, 47 Vt. 667, 19 Am. Rep. 132, 134; Harteau v. Harteau, 14 Pick. (Mass.) 181, 25 Am. Dec. 372; Watkins v. Watkins, 135 Mass. 83; Colburn v. Colburn, 70 Mich. 647, 38 N. W. 607; Lyon v. Lyon, 2 Gray (Mass.), 367; Cook v. Cook, 56 Wis. 195, 43 Am. Rep. 706, 14 N. W. 33; Harding v. Alden, 9 Greenl. (Me.) 140, 23 Am. Dec. 549; Shreck v. Shreck, 32 Tex. 578, 5 Am. Rep. 251; Jones v. Jones, 67 Miss. 195, 6 So. 712, 713.

contrary, to deprive its courts of the full and complete right to preserve, regulate, or dissolve the marriage status of the citizens of the forum in accordance with its laws.

But if the object of a suit is not to dissolve a marriage status valid in the beginning, but to pronounce the union invalid ab initio for a cause rendering the marriage contract voidable, the principles by which to determine the "proper law" are different. In such cases the lex celebrationis of the marriage contract is the proper law.*

In conclusion, it should be observed, that the mere fact that the cause of divorce arises in the State where the divorce is obtained (neither party being domiciled there at the time of the divorce), will not suffice to make the decree of divorce binding in other States, although by the municipal law of the divorce forum jurisdiction is thereby conferred upon its courts independently of the domicil of the parties. Domicil (of one of the parties at least) is an essential prerequisite to give a divorce exterritorial effect."

§ 85. Proceedings in Personam and in Rem distinguished. -As preliminary to a discussion of the principles governing the effect of foreign divorce, it is necessary to observe the important distinctions between judicial proceedings in personam and in rem.

The purpose of a proceeding in personam is to impose,

3 Hunt v. Hunt, 72 N. Y. 217, 228, 28 Am. Rep. 129; Kinnier v. Kinnier, 45 N. Y. 535, 539, 6 Am. Rep. 132; Pennoyer v. Neff, 95 U. S. 714, 734–735; People v. Dawell, 25 Mich. 247, 12 Am. Rep. 260, 272; Colburn v. Colburn, 70 Mich. 647, 38 N. W. 607, 608; Shreck v. Shreck, 32 Tex. 578, 5 Am. Rep. 251; Harding v. Alden, 9 Greenl. (Me.) 140, 23 Am. Dec. 549; Hood v. Hood, 11 Allen (Mass.), 196, 87 Am. Dec. 709; Arrington v. Arrington, 102 N. C. 491, 9 S. E. 200, 207. But see Norris v. Norris, 64 N. H. 523, 15 Atl. 19; Prosser v. Warner, 47 Vt. 667, 19 Am. Rep. 132, 134; Harteau v. Harteau, 14 Pick. (Mass.) 181, 25 Am. Dec. 372. In Massachusetts and Illinois there are statutes more or less affecting this general rule. See Lyon v. Lyon, 2 Gray (Mass.), 367; Smith v. Smith, 13 Gray, 209; Watkins v. Watkins, 135 Mass. 83; Chapman v. Chapınan, 129 Ill. 386, 21 N. E. 806. • Ante, § 78.

5 Van Fossen v. State, 37 Ohio St. 317, 41 Am. Rep. 507, 508. See post, §§ 89 et seq.

through the judgment or decree of the court whose aid is invoked, some responsibility or liability directly upon the person of the defendant. Of this character are criminal prosecutions, suits to compel a defendant to perform some specific act, or actions to fasten a general pecuniary liability upon him. A proceeding in rem, on the other hand, is aimed not at the person of the defendant, but at his property or some other thing within the power and jurisdiction of the court.

Most important consequences flow from the distinction between these modes of procedure. The fourteenth amendment to the federal constitution provides that no State shall deprive any person of life, liberty, or property without due process of law; that is, without notice and a reasonable opportunity to be heard in his own behalf. But the notice required under this constitutional provision is very different in the two modes of procedure.

In proceedings in personam, no judgment or decree against a defendant is valid unless he has been personally served with notice of the action or suit within the territorial limits of the court's jurisdiction, or has voluntarily appeared. This much is always required, and in some instances even more.1 But in proceedings in rem, if the res be within the court's jurisdiction, due process of law does not demand that actual notice of the suit should be served upon the defendant personally. Even though he be a non-resident of the forum, the law presumes that he keeps in touch with his property, wherever it may be situated, and that he will be straightway informed if any peril threatens it. Hence in such case the law contents itself with requiring a general proclamation or publication of the fact that a suit has been instituted with respect to the defendant's property, or with a personal notice served upon him outside the limits of the court's territorial jurisdiction.

In either form of procedure, if there has been no such due process of law as is demanded under the federal constitution, the court is without jurisdiction, and its decree is absolutely void within the limits of its own State as well as elsewhere.

1 As in the trial of felony cases, in which no material step can validly be taken unless the accused is personally present in court.