Edward Douglass White

“ I am not your husband. Twenty-three years ago the superior court of Litchfield county, Connecticut, in which state I had an actual and bona fide domicil, and which had had sole jurisdiction over my marital status for twelve years, liberated me from the bonds of matrimony and pronounced me a free man. In the meantime I have married another woman, and if your position be a sound one, I am, at least in the state of New York, a bigamist, and my wife an adulteress.' It is difficult to conceive of a case calling more loudly for the application of the general doctrine. ”

“ Atherton is wrong. I have tried in vain to discover anything tending to show a distinction between that case and this. It is true that in Atherton v. Atherton, Mr. Justice Gray confined the decision to the case before the court. Evidently, I should say, from internal evidence, in defence to scruples which he did not share. But a court, by announcing that its decision is confined to the facts before it, does not decide in advance that logic will not drive it further when new facts arise. New facts have arisen. ”

“ The divorce was held to be valid, the court observing that 'the protection of innocent parties and the purity of public morals require that divorces lawfully pronounced in one jurisdiction, and the new relations thereupon formed, should be recognized as operative and binding everywhere,' in the absence of fraud or collusion. The ruling was that the wife was entitled to dower in lands of which the husband was seised during coverture, the statute expressly giving the right where divorce was decreed for the cause of adultery, as if the husband were dead. ”

“ I am the last man in the world to quarrel with a distinction simply because it is one of degree. Most distinctions, in my opinion, are of that sort, and are none the worse for it. But the line which is drawn must be justified by the fact that it is a tittle nearer than the nearest opposing case to one pole of an admitted antithesis. ”

“ But if a suit be instituted by either party, by the husband for a divorce or by the wife for a maintenance, and the question of marriage or no marriage be made an issue, and decided in the case first brought, that decree is forever binding upon both parties. Had the wife in this case brought suit to dissolve the marriage, or for a maintenance in affirmation of the marriage, the decree of the court in New York would have been as binding upon the court in Connecticut as the decree obtained in Connecticut ought to be upon the wife in New York. ”

“ Atherton, a wife was granted a divorce, without personal service, in the state of a domicil acquired by her after separation, on the sole ground that in the opinion of the court its decree would be binding everywhere. If that is the law it disposes of the case of a husband under similar circumstances,-that is to say, of the present case, a fortiori; for I suppose that the notion that a wife can have a separate domicil from her husband is a modern idea. ”

“ First, that a decree of divorce, valid and effectual by the laws of the state in which it was obtained, is valid and effectual in all other states; second, that a wife may acquire a domicil different from her husband's whenever it is necessary or proper that she should have such a domicil; and on such a domicil, if the case otherwise allow it, may institute proceedings for divorce, though it be neither her husband's domicil nor have been the domicil of the parties at the time of the marriage, or of the offense. ”

“ A proceeding for divorce is a suit in rem, with which is often incorporated a suit in personam. The res is aptly stated in Ellison v. Martin, 53 Mo. 575, as 'the status of the plaintiff in relation to the defendant, to be acted on by the court. This relation being before the court in the person of the plaintiff, the court acts on it, and dissolves it by a judgment of divorce.' The fact subsequently ascertained, that it may have been procured by fraud or false testimony, is wholly beside the question, as we shall hereafter show. ”

“ I do not suppose that civilization will come to an end whichever way this case is decided. But as the reasoning which prevails in the mind of the majority does not convince me, and as I think that the decision not only reverses a previous wellconsidered decision of this court, but is likely to cause considerable disaster to innocent persons, and to bastardize children hitherto supposed to be the offspring of lawful marriage, I think it proper to express my views. ”

“ Subject to these conditions, each state has the right to regulate the marital status of its citizens, at least so far as to determine in what manner and by whom marriages may be solemnized, what shall be deemed the age of consent, what obligations are assumed, what property rights are created, for what causes divorces shall be granted, for what length of time the domicil of plaintiff shall have been acquired prior to the institution of the proceedings, and in what manner notice shall be given to the defendant. ”

“ The husband removed to Wisconsin for the purpose of placing himself beyond the jurisdiction of the court which could enforce it, and there obtained a divorce a vinculo upon the ground of abandonment. The sole question raised by the record was: 'Whether a wife divorced a mensa et thoro can acquire another domiciliation in a state of this Union different from that of her husband, to entitle her, by her next friend, to sue him in a court of the United States, having equity jurisdiction, to recover from him alimony due, and which he refuses to make arrangements to pay ”

“ The whole doctrine is founded, if not upon the doctrine of superior diligence, at least upon the theory of a prior judgment, which fixes irrevocably the rights of the parties whenever and wherever these rights may come in question. ”

“ In Maine, Massachusetts, Rhode Island, Kentucky, California, Tennessee, Ohio, Missouri, Kansas, Louisiana, Wisconsin, Alabama, Iowa, Indiana, Maryland, Minnesota, Illinois, and New Jersey, the validity of a divorce obtained in another state by a party there domiciled, in a proceeding where constructive service upon the defendant only is obtained, is fully recognized. ”

“ If the husband, having his domicil in Connecticut, could not obtain a divorce against his wife domiciled in New York without a personal service, it follows that the wife, domiciled in New York, could not obtain a divorce against her husband in that state without a personal service there. ”

“ There is no doubt of the proposition that a decree of divorce may be lawfully obtained at the matrimonial domicil, notwithstanding that the defendant may have taken up his or her residence separate from the other party in another state, providing that the law of the domicil with respect to the personal service or publication be scrupulously observed. ”

“ That, if one government, by virtue of its authority over marriage, may dissolve the tie as to citizens of another government, that other government would have a similar power, and hence the right of every government over its own citizens might be rendered nugatory by the exercise of the power which every other government possesses. ”

“ In many of them the full faith and credit clause of the Constitution does not seem to have been called to the attention of the court, and the case was disposed of upon principles of comity, which give to the court a certain latitude of discretion, whereas, under the full faith and credit clause, the consideration given to a decree in the state where it is rendered is obligatory in every other state.
One of the earliest of these cases is that of Harding v. Alden, 9 Me. 140, 23 Am. Dec. 549, in which the parties separated, the husband going to North Carolina and the wife to Rhode Island. ”

“ In Atherton v. Atherton, 181 U.S. 155, 45 L. ed. 794, 21 Sup. Ct. Rep. 544, a divorce was granted, on the ground of desertion divorce was granted, on the ground of desertion, a wife who had established herself in New York. She did not appear in the suit and the only notice to her was by mail. Before the decree was made she sued in New York for a divorce from bed and board, but pending the latter proceedings the Kentucky suit was brought to its end. The husband appeared in New York and set up the Kentucky decree. ”