cause of divorce a mensa et thoro,a and the Archbishop of Canterbury said, in that case, it had been so settled before him, on appeal, by many divines and civilians.

In some of the United States, divorces are restrained, even by constitutional provisions, which require to every valid divorce, the assent of two thirds of each branch of the legislature, founded on a previous judicial investigation and decision. The policy of other states is exceedingly various on this subject. In several of them, no divorce is granted, but by a special act of the legislature, according to the English practice; and so strict and scrupulous has been the policy of South Carolina, that there is no instance in that state, since the revolution, of a divorce of any kind, either by the sentence of a court of justice, or by act of the legislature. In all the other states, divorces a vinculo may be granted judicially for adultery. In some of them, the jurisdiction of the courts as to absolute divorces, for causes subsequent to the marriage, is confined to the single case of adultery; but in the residue of the states, intolerable ill usage, or wilful desertion, or unheard of absence, or some of them, will authorize a decree for a divorce a vinculo, under different modifications and restrictions.ƒ

e

It is very questionable, whether the facility with which divorces can be procured in some of the states, be not productive of more evil than good. It is doubtful, whether even divorces for adultery do not lead to much fraud and corruption. Some of the jurists are of opinion, that the

a Moore, 683. pl. 942. 3 Salk. 138.

b Georgia and Mississippi.

c Delaware, Maryland, Virginia, South Carolina, Georgia, Mississippi, and Louisiana.

d South Carolina Equity Reports, vol. i. Int. p. 24. Vol. ii. 646.

e Maine, Massachusetts, New-York, North Carolina, and Illinois.

f Griffith's Law Register, h. t. 1 New-Hamp. Rep 198. Reeve's Domestic Relations, p. 205. Brackenridge's Law Miscellanies, 421.

g

I have had occasion to believe, in the exercise of a judicial cognizance over numerous cases of divorce. that the sin of adultery was sometimes committed on the part of the busband, for the very purpose of the divorce.

adultery of the husband, ought not to be noticed, or made. subject to the same animadversion as that of the wife; because it is not evidence of such entire depravity, nor equally injurious in its effects upon the morals, and good order, and happiness of domestic life. Montesquieu,a Pothier, and Dr. Taylor. all insist, that the cases of husband and wife ought to be distinguished, and that the violation of the marriage vow, on the part of the wife, is the most mischievous, and the prosecution ought to be confined to the offence on her part.

It may become a question of some difficulty with us, how far a divorce in one state is to be received as valid in another. The first inquiry is, how far has the legislature of a state the right, under the constitution of the United States, to interfere with the marriage contract, and allow of divorces between its own citizens, and within its own jurisdiction. The question has never been judicially raised and determined in the courts of the United States, and it has generally been considered that the state governments have complete control and discretion in the case. In the cause of Dartmouth College v. Woodward,d the point was incidentally alluded to; and the Chief Justice observed, that the constitution of the United States had never been understood to restrict the general right of the legislatures of the states, to legislate on the subject of divorces; and the object of state laws of divorce was to enable some tribunal, not to impair a marriage contract, but to liberate one of the parties, because it had been broken by the other. It would be in time to inquire into the constitutionality of their acts, when the state legislatures should undertake to annul all marriage contracts, or allow either party to annul it at the pleasure of the other. Another

of the judges of the Supreme Courta spoke to the same effect. He said, that a general law, regulating divorces, was not necessarily a law impairing the obligation of such a contract. A law, punishing a breach of a contract, by imposing a forfeiture of the rights acquired under it, or dissolving it, because the mutual obligations were no longer observed, was not a law impairing the obligation of contracts. But he was not prepared to admit a power in the state legislatures to dissolve a marriage contract without any cause or default, and against the wish of the parties, and without a judicial inquiry to ascertain the breach of the contract

Assuming, therefore, that in ordinary cases the constitutionality of the laws of divorce, in the respective states, is not to be questioned, the embarrassing point is, to determine how far a divorce in one state has a valid operation in another. There can be no doubt, that a divorce of the parties who were married, and regularly domiciled, at the time, in the state whose courts pronounced the divorce, would be valid every where. The difficulty is, when the husband and wife were married, and reside in a state where divorces are not permitted at all by the policy of its law, or not permitted to the extent and for the causes allowed to operate in other states; and they, or one of them, remove into another state for the sole and express purpose of procuring a divorce, and, having obtained it, return into their native state, and contract other matrimonial ties. How are the courts of the state where the parties had their home, to deal with such a divorce? When a divorce was sought in such a case, the courts in Massachusetts very properly refused to sustain a libel for a divorce, and sent the parties back to seek such relief as the laws of their own domicil afforded. The Supreme Court of this state has refused to assist a party who had thus gone into

a Mr. Justice Story.

b Hopkins v. Hopkins, 3 Mass. Rep. 158. Carter v. Carter, 6 Mass. Rep. 263.

another state, and obtained a divorce on grounds not admissible here, and procured in evasion of our laws. They would not sustain an action for alimony founded on such a divorce. Afterwards, in Borden v. Fitch,b the same court held a divorce in another state, obtained by the husband when the wife resided out of the state, and had no notice of the proceeding, to be null and void; because, the court pronouncing the divorce 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, 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 domicil. 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 any where 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.d 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. The question is, whether, if such a divorce be procured in another state, by parties submittng to the jurisdiction, and after a fair investigation of the merits of the allegations upon which the decree was founded, such a decree be entitled to be received as valid and binding upon the courts of the native

a Jackson v. Jackson, 1 Johns. Rep. 424.

b 15 Johns. Rep. 121.

c 14 Mass. Rep. 227.

d Fisher v. Lane, 3 Wilson, 297.

Kilburn v. Woodworth, 5 Johns.

Rep. 37. Thurber v. Blackbourne, 1 N. H. Rep. 242. Aldrick v.

Kinney, 4 Conn. Rep. 380.

e Dutchess of Kingston's case, Harg. St. Tri. vol. xi. 262. gard, 290.

1 Hag

state of the parties. A graver question cannot arise under this title in our law.

The locus delicti may not be important in the jurisprudence of the states. It is not material in this state, provided the marriage was solemnized here. 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 the judgment of a state court is to have the same faith and credit in every other court in these United States, which it has in the courts of the state in which it was pronounced. According to the doctrine of the decisions in the federal courts, it may be contended, that a divorce in one state, judicially conducted and declared, and procured under circumstances which gave to the court full jurisdiction of the cause, and of the parties, and sufficient to render the 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 my duty, in this place, to leave this 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 Lolly's case, that as by the English law a marriage was indissoluble, a marriage contracted in England could not be dissolved in any way except by act of Parliament. The party in that case was convicted of bigamy for marrying again after a Scotch divorce; and, consequently, all foreign divorces of English marriages

is

a See vol. i. 244.

b 1 Dow's P. C. 124. 136.