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Hood v. State.

legislature power to divorce, by statutory enactment, husbands and wives, citizens and residents of Utah, or of Illinois or Ohio. And, if so, what becomes of the doctrine of the sovereignty of States and nations within their own respective territories? And if the legislature of Utah cannot grant divorces to residents and citizens of foreign States, it cannot confer such power upon the judiciary of the State. Certainly, as a general proposition, States and nations cannot exercise such extraterritorial jurisdiction. But we need not enlarge upon these established elementary principles. The case before us is too plain to admit of argument. It is shortly this Hood desired to obtain a divorce from his wife. Neither of the parties was under the jurisdiction of Utah. The petition of Hood and the decree of divorce expressly state this fact. If he was not a citizen and resident of Utah, he was of some other State or nation. Still the court of Utah grants a divorce to a man who informs it, in his application, that he is under a jurisdiction other than that of the Territory of Utah, and that he is not subject to hers. The divorce manifestly was granted in violation of the sovereignty and jurisdiction of another State, and in violation of the plainest principles of international and constitutional law. The provision in the statute of Utah, authorizing her courts to grant divorces to citizens of foreign States and nations, who were not, but desired to become, residents of Utah, was ultra vires, and void. No plainer or more palpable case of the exercise of extraterritorial jurisdiction could exist. Hood was not only not a citizen or resident of the Territory, but he did not personally enter the Territory, so as to give it jurisdiction over him for temporary police purposes. We cite on the question of jurisdiction the following cases in our own State and the cases referred to in them Sturgis v. Fuy, 16 Ind. 429; The Eaton, etc., R. R. Co. v. Hunt, 20 id. 457; Beard v. Beard, 21 id. 321; Constitution of Indiana, art. 14.

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Nor is the decree of divorce, in this case, within the operation of that clause of the Constitution of the United States which declares, that" Full faith and credit shall be given in each State to the public acts, records, and judicial proceedings of every other State." Const. U. S., art. 4, § 1. That clause does not include judgments and decrees which severally show upon their face that the courts rendering them had no jurisdiction in the premises. Waltz v. Borroway, 25 Ind. 380; Cooley's Const. Lim. (2d ed.), p. 1%.

Hood v. State.

To avoid misconstruction, we wish it to be borne in mind, that the record of the suit in the Territory of Utah, in question in this case, was not one upon an ordinary, simple contract between parties, who could make and rescind such contract at pleasure, but it was a suit to sever the bonds of matrimony between the parties in that suit; to dissolve a relation into which the parties could enter only in accordance with the law of the State, and which could not be dissolved by act of the parties, but only by permission of the State having, at the time, jurisdiction over both or one of them. As is well said by STUART, J., in Noel v. Ewing, 9 Ind. 37: "Marriage is more than a contract. It is not a mere matter of pecuniary consideration. It is a great public institution, giving character to our whole civil polity." It is a status; a domestic relation resulting from a consummated contract to marry. Ditson v. Ditson, 4 R. I. 87; The People v. Dawell, 25 Mich. 247; s. c., 12 Am. Rep. 260. It is to a proceeding to dissolve such a relation that what is said in this case applies.

To give jurisdiction in a divorce suit, the plaintiff, the petitioning party, must be a resident of the State or Territory where the divorce is obtained. This fact gives jurisdiction of such person, and renders the divorce (notice by publication or otherwise having been given to the defendant) valid as to the plaintiff. And, being valid as to one, public policy demands that it should be held valid as to both parties. Tolen v. Tolen, 2 Blackf. 407; Jenness v. Jenness, 24 Ind. 355; Ewing v. Ewing, id. 468; Ditson v. Ditson, supra.

Having arrived at the conclusion that the Utah divorce was void, and that appellant is still the husband of the woman whose maiden name was Maggie Horton, and that he is not the husband of Jane Chaney, we proceed to inquire whether he is shown to be guilty of the offense for which he was indicted. He was indicted for fornication. Our statute does not define fornication or adultery; but crimes, as we have seen, need not be defined by the statute, and, consequently, the court must judicially declare the definition. Fornication is sexual intercourse between a man, married or single, and an unmarried woman. Adultery is sexual connection between a married woman and an unmarried man, or a married man other than her own husband. These definitions are not in accordance with some authorities, but they are with others, and, we think, the better; and they appear to us to be in harmony with the reason of

Hood v. State.

things. We will limit the discussion of this topic to the question of adultery; as when we show what that is, we necessarily show what fornication is, as unlawful sexual intercourse that is not adultery is fornication.

"By the civil law, adultery could only be committed by the unlawful sexual intercourse of a man with a married woman. Thus, as is stated in Wood's Institute, 272, adultery is a carnal knowledge of another man's wife, and the connection of a married man with a single woman does not make him guilty of the crime of adultery." DEWEY, J., in Commonwealth v. Call, 21 Pick. 509. Bicknell, in his Criminal Practice, p. 446, thus states what he understands to be the law in Indiana on this point: "Strictly, adultery consists in carnal connection with another man's wife: such an act is adultery and not fornication, 2 Blackf. 318; and the sexual intercourse of any man with a married woman is adultery in both, and the intercourse of a married man with an unmarried woman, is fornication in both." In The State v. Wallace, 9 N. H. 515, it is held, that "an unmarried nan, who has unlawful intercourse with a married woman, from which spurious issue may arise, is guilty of adultery."

But the case in which the question has been more fully and learnedly examined than in any other which has fallen under our notice is The State v. Lash, 1 Harrison, 380, from which we make copious extracts: "There never was an action for adultery known to be maintained at the common law by any but a husband; showing that the offense cannot possibly be committed with any other than a married woman. The heinousness of it consists in exposing an innocent husband to maintain another man's children, and having them succeed to his inheritance. This is the common-law doctrine of adultery, transmitted to us from the earliest times, by those venerable sages, who gathered it from existing precedents, records and decisions, at the times they respectively wrote. I shall cite only a few of them, because the records and decisions referred to by them have been so faithfully consulted, and the testimony of those sages examined and condensed with such admirable precision, in the imperishable commentaries of Blackstone, that it is almost vanity to look behind his work.

"More definite language cannot be selected for confining adul tery to illicit intercourse with a married woman, than his following definition of the offense. Adultery, or criminal conversation VOL. XXVI-4

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Hood v. State.

with a man's wife. The woman must not be single; she must be another man's wife; and whoever, married or single, has illicit intercourse with her, becomes guilty of adultery. The text is in 3 Bl. Com. 139, and is so clear of ambiguity as to challenge any attempts to evade it.

"Let us next see how Buller in Book 1, ch. 6 of his introduc tion, coincides with the commentaries; he says: The action of adultery lies for the injury done to the husband, in alienating his wife's affections, destroying the comfort he had from her company, and raising children for him to support and provide for.' Bul. N. P. 26. He represents adultery to be an injury to a husband, expos ing him to have children of another man, raised, for him to support, while he lives, and to provide for, at his death. This injury to a husband is made the very gist of adultery. No one will suppose him to mean that the alienation of the wife's affections, and loss of comfort in her company, constitute the offense; the alienation of her affections might accrue from the malignancy of his own temper, and the loss of comfort in her company, from lunacy; he does not mean that any malignancy of temper, or that lunacy or any other sickness amounts to adultery; they are only aggravations that may or may not attend the offense; therefore the essence of adultery at the common law, without which the action cannot be maintained, is that criminal intercourse with a married woman, which exposes her husband to support and provide for another man's issue. * * *

"Let us next take up Bacon's Abridgement, that famous repository of the common law, wherein he draws the distinction between fornication and adultery so clearly as to admit of no equivocation. He says: Fornication is unlawful, because children are begotten without any care for their education; but adultery goes further, it entails a spurious race on a party for whom he is under no obligation to provide.' Bac. Abr., Marriage and Divorce, 569.

"This is the circumstance on which adultery depends at the common law; its tendency to adulterate the issue of an innocent. husband, and to turn the inheritance away from his own blood, to that of a stranger. If the woman be single, her incontinence produces none of this evil; her issue takes away no man's inheritance; it can be heir to nobody, and the burthen of its support is cast by law upon herself and the partner of her guilt. *** I will barely add that adultery at the common law is limited to criminal

Hood v. State.

intercourse with a married woman, both by Swift and Reeve who are among our most eminent American commentators, and that I am acquainted with no treatise on the common law, English or American, to the contrary. Whether its regulation on this point was borrowed at some early age, from the Levitical law, which the early dispersion of the Jews carried into various parts of Europe, I am not able to say; but certain it is, that this wide distinction between criminal intercourse with a married woman, and a single woman, is emphatically settled in the Levitical law; the former being punished with death, while the latter was only a fine. See Levit., ch. 20, verse 10, and Deut., ch. 22, verse 22 to 28."

The opinion from which we have extracted was pronounced by Justice FORD. Chief Justice HORNBLOWER added: "I have prepared an opinion, which it is unnecessary to read, according with that of Justice FORD. This question has never before been determined in this State, I believe; although the law has ever since the year 1704 provided a punishment for the offense."

Having in the progress of this investigation arrived at the conclusion, as we have before stated, that the Utah divorce was a nullity, it follows that the appellant is still the husband of Maggie Horton Hood; that his pretended marriage with Jane Chaney was also a nullity, and that his living and cohabiting with her was the living and cohabiting of a married man with an unmarried woman, which, as we have seen, constitutes the offense of fornication, the offense for which appellant is indicted and prosecuted in the cause now before us.

[Omitting minor points.]

The judgment is affirmed, with costs.

Judgment affirmed.

NOTE BY THE REPORTER.-Judgments of other States.-The conclusion of this case on the effect of the record of judgment of other States is in harmony with the weight of authority. See Dunlap v. Cody, 7 Am. Rep. 129, and note, p. 136; and Hoffman v. Hoffman, id. 299, and note, p. 302; and Marx v. Fire, 11 id. 432, and note, p. 435. At the end of the opinion of the United States Supreme Court, in Thompson v. Whitman, given in full in the latter note, the court sum up the doctrine as follows: "It is clear that the jurisdiction of the court by which a judgment is rendered in any State may be questioned in a collateral proceeding in another State, notwithstanding the provision of the fourth article of the Constitution and the law of 1790, and notwithstanding the averments contained in the record of the judgment itself." We will gather here, however, the principal decisions on this question since our former notes, or not therein particularly referred to.

In Folger v. Columbian Insurance Company, 99 Mass. 267, it was held that "the article of the Constitution of the United States, which requires full faith and credit to be given in each State to the judicial proceedings of every other State, does not preclude the inquiry whether any judgment obtained in another State and relied on in this was rendered by a

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