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"English home" will authorise the Court to proceed. In Deck v. Deck there could have been no doubt that the abandonment by the husband of his "English home" was complete and irrevocable.*

Brodie v. Brodie + was a different case altogether; and it is submitted that the decision there was really in favour of the domiciliary test. The petition was brought by the husband, whose domicil of origin was Scotch, and who had afterwards lived and acquired a new domicil in Australia. Coming to England, and "taking up his residence" there, he instituted a suit against his wife for adultery committed in Australia, where she still remained. His counsel, having offered to prove that he had abandoned his Australian and acquired an English domicil, obtained an adjournment for that purpose, and did in fact adduce evidence which went a considerable way in that direction. It was then said by the Court: "The question is, whether the petitioner has acquired an English domicil." His counsel thereupon submitted, that "enough had been proved to establish domicil for the purpose of founding jurisdiction." The Court said, that "they would give no opinion as to what the effect of the evidence might be in a testamentary suit, but they thought sufficient bonâ fide residence in England, not casual, had been proved to entitle the petitioner to a decree." The comments of Lord Penzance upon this case, in Wilson v. Wilson and Manning v. Manning,§ sufficiently show that the view taken of it by Brett, L.J., in his judgment in Niboyet v. Niboyet, at p. 18, is the true one. If

* See the comments of Brett, L.J., on this case, expressing disapproval, at p. 18 (L.R. 4 P.D.).

+ 2 Sw. & Tr. 259.

$3 L.R. 2 P. & D. 435, 441. "It is the strong inclination of my own opinion that the only fair and satisfactory rule to adopt on this matter of jurisdiction is to insist upon the parties in all cases referring their matrimonial differences to the Courts of the country in which they are domiciled."

§ L.R. 2 P. & D. 223, 226.

it was held that the petitioner's English domicil was established for the purposes of the suit, the judgment was right; if it was a decision that there can be a minor species of domicil, sufficient for one purpose and not for another, there is no reason or authority for such a distinction.

As it has been asserted that these two cases are the only ones which can, in any sense, be regarded as precedents for the assumption of divorce jurisdiction in cases of residence not amounting to domicil, it remains to dismiss very briefly the other authorities which were cited for the purpose by the petitioner's counsel. In Ratcliff v. Ratcliff,* the domicil was and remained English. In Firebrace v. Firebrace, a mere doubt was suggested whether suits for restitution of conjugal rights were governed by the rule admittedly applicable to proceedings for divorce. Bond v. Bond ‡ was a case in which it did not appear whether the domicil of the husband was English or foreign. Le Sueur v. Le Sueur § is directly opposed to the assumption of the jurisdiction, Sir R. Phillimore having there refused to grant a divorce, at the instance of the wife, the husband being domiciled abroad, though he held that, by the desertion of the husband, the wife had been enabled to acquire, and had acquired, a domicil of her own. Simonin v. Maillac || and Sottomayor v. De Barros were cases which turned upon the validity or nullity of a marriage ab initio, not upon the right of an English Court to dissolve it. So was Lindo v. Belisario,** in which, by the way, the question of domicil was not referred to. Lloyd v. Petitjean,tt the only case cited which has not been referred to, simply decided that a marriage between an Englishman and a domiciled Frenchwoman, celebrated at the house of the British Ambassador in Paris, by the chaplain to the embassy, was valid. It is confidently

1 Sw. & Tr. 467.

2 Sw. & Tr. 93. ||2 Sw. & Tr. 67.

** 1 Hagg. Cons. 216.

† 57 L.J. P. & M. 41.
§ L.R. 1 P.D. 139.

T L.R. 3 P.D. 1.

++ 2 Curt. Eccl. 251.

asserted, therefore, that the decision in Niboyet v. Niboyet is a departure from precedent.

(4.) The fourth proposition, that domicil is the sole and necessary condition required by foreign tribunals and jurists. for divorce jurisdiction, can only be proved by citation; and two or three citations only will be adduced, inasmuch as none of any authority, it is believed, can be brought forward against it. So far as America goes, Story,* after citing the latest decisions, showing that "ordinarily a suit for divorce cannot be entertained unless the parties are bonâ fide domiciled in the State in which the suit is brought," proceeds (s. 230a): "The doctrine now firmly established in America is, that the law of the place of the actual domicil gives jurisdiction to the proper Courts to decree a divorce for any cause allowed by the local law." The opinion of Wharton is to the same effect, and further shows the view taken in Germany. "The Court of actual domicil has alone jurisdiction to pronounce a valid divorce, and a voluntary submission by the parties to any other tribunal is inoperative. This opinion is maintained by Bar (§ 92), by Savigny (VIII., p. 337), and is no doubt that of present German jurists generally."+ As for France, the country primarily concerned in Niboyet v. Niboyet, and that in which the personal jurisdiction over subjects by reason of their nationality (whatever their domicil) is asserted strongly perhaps than in any other, the note of Mr. Macqueen to Pitt v. Pitt is the most accessible and trustworty evidence. Mr. Macqueen, whose authority upon this special subject is undoubted, after a careful examination of Bulkeley's case, decided by the French Cour de Cassation in 1860, and a correspondence with the French judges, says as follows: "It appears that divorce a vinculo, properly obtained from the Court of the domicil, will always be

*Confl. of Laws, ss. 228-230.

+ Wharton. Conflict of Laws, sec. 210.

4 Macq. 649 (n.)

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deferred to in France.

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It would seem that divorce a vinculo can emanate from no other Court but the Court of the domicil." Lastly, it may be added that the Supreme Court of Melbourne, after a careful survey of the English authorities, has recently come to the same conclusion.*

(ii.) The second branch of the argument relates to the distinction between domicil on the one hand, and home or permanent residence on the other, upon which the judgments of the majority of the Court of Appeal so considerably depend.

It may be remarked, in the first place, as a noteworthy fact with reference to the judgment of James, L.J., that it contains not one single reference to a decided case, being composed entirely of a priori reasoning, with some consideration of the effect of the wording of the English Statute which created the Divorce Court and defined its powers. For aught that appears in the judgment, the subject of international jurisdiction in matters of divorce might have been coming for the first time under the consideration of an English Court, instead of having been a fruitful source of litigation for the last half-century. It is true that the Lord Justice concludes by observing that he does not think he is over-ruling any English case in granting the relief sought; but literally no other expression in his judgment betrays the slightest consciousness that any English case relevant to the subject is to be found in the Reports. The reasoning of the whole judgment is in substance the following:

:

(a.) Prior to the creation of the Divorce Court, the Ecclesiastical Courts in England would have had jurisdiction in matrimonial matters from the mere "residence" of the parties, as distinguished from their "secular domicil."

*Duggan v. Duggan, reported in the Law Magazine and Review, No. 227 (Select Cases, February, 1878), p. 223, and in the Law Times, December 29th, 1877, at p. 152.

† 20 & 21 Vict., c. 85.

(b.) The Statute 20 & 21 Vict., c. 85, was passed to constitute a Court with exclusive jurisdiction in matters matrimonial in England. A "matter matrimonial in England" is a matter matrimonial where the matrimonial home is in England.

(c.) The "matrimonial home" and the "matrimonial residence" are conceptions which the law can distinguish from the "matrimonial domicil."

Now it is submitted, with the greatest respect, that a fallacy underlies and vitiates all three of these propositions -a fallacy which is literally contained and formulated in the last (c.) To a certain extent, proposition (a.) begs the question. As no authority whatever is adduced for it (except the introductory phrase, "Can there be any doubt that," &c. ?) it may be sufficient to say that though international law was in a less advanced state in the time of the old Ecclesiastical Courts, the old Ecclesiastical Courts were governed by exactly the same international principles as are the present secular ones; and further, that the legal conception of domicil, though of comparatively modern birth, owes more to the Ecclesiastical Courts, in which it was mainly perfected, than perhaps any other legal conception. The only two instances in the Ecclesiastical Courts which can be used in any way as precedents for the assumption of the jurisdiction without domicil have been already examined. The nature of the error involved in such assumption may, however, be best seen by considering (b.) and (c.), which contain the pith of the whole judgment.

Now, it is quite true that the preamble of the Divorce Act expresses that its object is "to constitute a Court with exclusive jurisdiction in matters matrimonial in England." It is, however, another assumption to read this as equivalent to "a Court with exclusive jurisdiction in such matters matrimonial as are matters matrimonial in England.'"

* Deck v. Deck, 2 Sw. & Tr. 90, and Brodie v. Brodie, 2 Sw. & Tr. 259, ante p. 334.

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