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public, is based. No State is bound, of course, to limit its own ideas of its own jurisdiction by the ideas which its neighbours take of theirs. But every State is bound, in law, in reason, and in morality, to hold the same ideas with respect to its own jurisdiction that it does with respect to theirs. It is not at liberty to measure its own rights by one rule, and its neighbours' rights by another. It is not at liberty to deny that its neighbours have a right to divorce married couples not domiciled within their borders, and at the same time to assume to itself the jurisdiction which it declines to recognise in them.
With these preliminary remarks, it is now proposed to consider the cases bearing on the propositions which have been advanced.
(1.) No English Court has ever recognised the validity of a foreign divorce, where the domicil of the parties was English. In establishing this proposition, it must be admitted that the English Courts began by intimating that they would refuse to recognise a foreign divorce of an English marriage at all.
The rule was undoubtedly laid down in Lolley's case,* and afterwards followed by Lord Brougham,t in the simple terms that no divorce abroad can dissolve a marriage contracted in England. Both these cases were, however, fully considered in Warrender v. Warrender, 1 by the 'House of Lords, sitting to hear Scotch appeals; and the report of that case clearly shows, not only that Lord Brougham disapproved of the rule, as broadly stated in Lolley's case (to the decision of which it was unnecessary), and of the expressions adopting it which were attributed to him in McCarthy v. Decaix, but that it was a rule absolutely inconsistent with the unanimous decision of the House of Lords in the later case. Warrender v. Warrender established that
* R. & R. C. C., 237. + McCarthy v. Decaix, 2 CI & F., 568 (n). I 2 Cl. & F., 488.
§ It must, of course, be remembered that when the rule was first laid down, the English law did not recognise divorce, except by Act of Parliament, at all.
the Scotch Courts had jurisdiction to dissolve a marriage contracted in England, where the domicil of the husband was Scotch; and though the House of Lords was then sitting as a Scotch Court of Appeal, it must be remembered that on all questions of international law, the law of Scotland and of England is theoretically the same. The remarks of Lord Brougham on the effect of the Scotch domicil are peculiarly significant. “This is the case of a marriage contracted in England, between a man, Scotch by domicil and birth, and a woman about to become Scotch by the execution of the contract. It is, moreover, the case of a suit instituted in the Scotch Courts, while the pursuer had his actual domicil in Scotland, and his wife had the same domicil by law. To term a marriage, so contracted, an English marriage, hardly appears to be correct. I am sure that it is, if not wholly a Scotch contract, at the least a contract partaking as much of the Scotch as of the English.". Conversely, it was decided by Dr. Lushington, in the English Consistory Court, in 1831, that a Scotch Court had not power to decree a divorce where the domicil of the parties was at the time of marriage, and remained, English ;* and an exactly similar decision was given, on the same ground, in 1858.t In Pitt v. Pitt, 1 before the House of Lords (a Scotch appeal), the counsel for the petitioner (Sir R. Phillimore and Sir H. Cairns, the present Lord Chancellor) abandoned “as untenable" the ground " that divorce a vinculo might be validly granted to strangers not domiciled, though temporarily resident, within the jurisdiction ;” and the petitioner failing to establish complete domicil, the relief sought for was denied to him. Of this abandonment the Lord Chancellor (Lord Westbury) said, that it was a concession which he trusted was, in the opinion of their Lordships, quite in accordance with the law
* Conway v. Beazley, 3 Hagg. Cons. 639.
of the case."'* The principle involved in these cases came again before the House of Lords in Shaw v. Gould (1868),+ and it was then again laid down that a foreign tribunal had no authority to pronounce a divorce in the case of an English marriage between English subjects, unless such subjects were, at the time of such divorce being pronounced, bonâ fide domiciled within the jurisdiction of such tribunal, and the suit was brought without collusion. And in 1870, on the last occasion when the question came before the Courts, I Lord Penzance laid down the same law with regard to an American divorce of an English marriage, the parties not having acquired an American domicil. It is true that in the case last cited the husband was not even temporarily present in the State where the divorce was sought by the wife, but the decision was distinctly put on the ground that he was not domiciled there. “In no case," said Lord Penzance, “has a foreign divorce been held to invalidate an English marriage between English subjects, where the parties were not domiciled in the country by the tribunals of which the divorce was granted.”'S Proposition (1) has thus, it is hoped, been sufficiently established.
(2.) The second proposition, that an English Court will not in any case refuse to recognise a foreign divorce, if the parties were, at the time it was pronounced, domiciled
* In Mr. Macqueen's note to this case, he says: “This in effect affirms the legal necessity of a real Scotch domicil to give effect to a Scotch divorce; and had the point been argued on both sides, such would have been the true construction. But it was not argued for the respondent, whose able and experienced counsel were not likely to give up any contention that would have benefitted their client.”—4 Macq. 627.
+ L.R. 3 H.L. 55.
§ L.R. 2 P. & D., p. 161. Yelverton v. Yelverton, 1 Sw. & Tr. 574; Tollemache v. Tollemache, ib. 567; and Tovey v. Lindsay, 1 Dow, 117, may be cited in support of the same proposition, but as these cases are criticized by Cotton, L.J., in his judgment, it has been thought better to abstain from relying
within the jurisdiction of the foreign tribunal, rests rather upon suggestion than upon express authority. Except the case of McCarthy v. Decaix,* with regard to which Lord Brougham's criticisms in Warrender v. Warrender of his own decision have been already referred to, there is no instance of such a refusal, and recent authorities have clearly indicated the view of the question that would now be taken. In Shaw v. Gould,t Lord Westbury, having referred to McCarthy v. Decaix only to dismiss it, puts the question in the following tentative form. “The position that the tribunal of a foreign country, having jurisdiction to dissolve the marriage of its own subjects, is competent to pronounce a similar decree between English subjects who were married in England, but who before and at the time of the suit are permanently domiciled within the jurisdiction of such foreign tribunal, such decree being made in a bonâ fide suit without collusion, is a position consistent with all the English decisions, although it may not be consistent with the resolution commonly cited as the resolution of the judges in Lolley's case.” Two years later, in Shaw v. AttorneyGeneral, I Lord Penzance expressed his opinion in the same direction even more plainly. “In no case has a foreign divorce been held to invalidate an English marriage between English subjects where the parties were not domiciled in the country by whose tribunals the divorce was granted. Whether, if so domiciled, the English Courts would recognise and act upon such a divorce, appears to be a question not wholly free from doubt; but the better opinion seems to be that they would do so, if the divorce be for a ground of divorce recognised as such in this country, and the foreign country be not resorted to for the collusive purpose of calling in the aid of its tribunals." It may be added that this last condition is properly included in the idea of
* 2 R. & My. 614; 2 Cl. & F. 568 (n).
domicil.* I am not aware of any stronger or more direct authority for this proposition; but as it is entirely consistent with the reasoning of James & Cotton, LL.JJ., in Niboyet v. Niboyet (who would, it is presumed, even allow something less than domicil to give the foreign Court jurisdiction), it is probably unnecessary to discuss it at further length.
(3.) The third proposition—that there is substantially no precedent for pronouncing a divorce in cases where the domicil of the husband was not English-was not directly disputed in the judgments of James & Cotton, LL.JJ., but needs consideration, inasmuch as there are one or two cases which are said to impeach it, and were cited for that purpose on behalf of the petitioner. Upon careful examination, it appears that the only case, in which it can be contended that such a jurisdiction was really asserted, is Deck v. Deck.t Possibly Brodie v. Brodies may appear to some minds an authority to the same effect.
Deck v. Deck was the case of a wife petitioning in England against a husband who had deserted her, gone to America, and there acquired a domicil, being by nationality (and domicil of origin) English. No counsel appeared for the husband, or for the Queen's Proctor, to dispute the jurisdiction, and the point was therefore not argued, though the Court did, it appears, entertain doubts, and took time to deliver judgment. The judgment, when delivered, § founded the assumption of jurisdiction upon the nationality of the husband, which remained English. It is almost needless to remark that this is a test never applied, before or since, for the purpose; and that such a decision can hardly be relied upon in support of the proposition of James, L.J., that an
* If the foreign country were collusively resorted to to obtain the aid of its tribunals, there would be no real animus manendi, and the foreign domicil would not, of course, be acquired for any purpose. Domicil, unless it is bonâ fide, is not domicil. + 2 Sw. & Tr. go.
I 2 Sw. & Tr. 259. & By Sir Cresswell Cresswell, for the full Court.