make bold to say that it is upon reason after all that the precedents are, or should be, based.

First let us turn our attention to Thompson v. Thompson, 226 U. S. 551. I will admit at the outset that the Court did not say in so many words that the guilt or innocence of either party had nothing to do with jurisdiction for divorce, but a careful perusal of the opinion will show that it said absolutely nothing about it, one way or another, except on pages 557 and 558 where we find language to the effect that the husband brought suit in Virginia upon the ground that the wife had wilfully deserted him. It is rather strange if the Court thought that guilt or innocence was the determining jurisdictional fact it should not have mentioned it, as it did, it will be remembered, in Haddock v. Haddock. Mr. Justice Pitney in discussing the facts of the Thompson case said at p. 562: "In the present case it appears that the parties were married in the State of Virginia, and had a matrimonial domicil there and not in the District of Columbia or elsewhere. The husband had his actual domicil in that state at all times until and after the conclusion of the litigation." Why this talk about actual domicil if the guilt or innocence of the parties is one of the determining factors of jurisdiction?

But of more significance than any language of the Court are the facts of the case. Let us see just what they were. For convenience I shall do here as I did in my former article, denominate the husband A and the wife B. B brought her suit for maintenance in the Supreme Court of the District of Columbia, where she succeeded; it must be obvious that she succeeded because that Court found she was justified in leaving her husband. According to Mr. Etheridge's contention, whether she was justified or not was a jurisdictional fact and hence the justification of B's leaving A in Virginia was an open one for the trial court of the District of Columbia. It seems strange indeed that the Supreme Court of the United States in its opinion should not have explained why it considered the finding of the trial court to the effect that B was justified in leaving A, wrong, if it considered that question of supreme importance in the decision of the case. The point I have tried to make here will be clearer when I reach the abstract reasoning about which I warned the reader.

As to Parker v. Parker, 222 Fed. 186, I will frankly admit that the language of the opinion cannot be reconciled with the doctrines laid down in my article, but its decision and the refusal of the Supreme Court to grant a writ of certiorari can be. In Parker v. Parker the district court found as a fact that the substituted service on B in the divorce proceedings instituted in Missouri failed to meet the statutory requirements of that state, and hence were void even in Missouri, for as Mr. Justice Pitney says in Thompson v. Thompson, at pages 562-563: "But in order to make a divorce valid, even when granted by the courts of the state of the matrimonial domicil, there must be notice to the defendant either by service of process, or (if the defendant be a non-resident) by such publication or other constructive notice as is required by the law of the state."

Mr. Etheridge criticises sharply my way of dealing with the supposititious case I put on p. 856. The fact is, as I think is fairly evident from the context of the article, that I put this case on the assumption that the Supreme Court in Thompson v. Thompson had adopted the so-called Pennsylvania Doctrine, and for the purpose of showing that that doctrine was untenable. Of course if I am entirely mistaken in supposing that the Court had any idea of adopting such a doctrine; and on the contrary it still adhered to the idea that jurisdiction for divorce depended upon the guilt or innocence of the libellee in the first libel, then the supposititious case has no application whatever. I shall now devote myself, as I did not do in my article, to a discussion of whether guilt or innocence has anything to do with the question of jurisdiction for divorce. It is

interesting to note in passing that in the case of Montmorency v. Montmorency, 139 S. W. 1168, there is a certain lack of enthusiasm on the part of the Texas Court for the opinion of Haddock v. Haddock, it says on p. 1171: "Whatever criticism may be indulged in with reference to the reasoning of the majority in the case of Haddock v. Haddock, it is apparent that it is the judgment of the court of last resort of these United States, and, as such, is entitled to be given the consideration which the dignity of the court and the learning of its judges demand." In this case the Texas court did what courts always would have done without a qualm before Haddock v. Haddock was decided, namely held that it had jurisdiction to grant a divorce to a woman bona fide domiciled within the state. The confusion caused by the language of Mr. Justice White in Haddock v. Haddock is well brought out by what the Texas Court says on p. 1170 to the effect that it has been inferred from the language used in Haddock v. Haddock that a divorce suit is not a proceeding in rem. But leaving the discussion of cases for awhile, let us get down to fundamentals. In any discussion of a question in which the Conflict of Laws is involved it is particularly necessary to do this because of the thick clouds of legal verbiage in which the subject is surrounded. I fear that as a class lawyers are somewhat prone to substitute legal phraseology for thought.

When a case is tried in which the Conflict of Laws is involved either the first or the second of the following questions or both of them together arise; first: is it just and reasonable that a court of State X or of State Y should hear the case on its merits, in other words the question of jurisdiction; second: if the court before which the case is brought decides that it is the proper one to hear the case on its merits, is it just and reasonable that the local rule of law in force in State X or the local rule of law in force in State Y should be applied.

The court before which the case arises should decide both of these questions on their merits, regardless of wrong decisions and ill-advised legislation in other States. But if it once decides that the court of some other State has jurisdiction it should refuse to hear the case. Or if it decides that the rule of local law adopted in some other State should apply it should take that rule as it finds it and not as it thinks it ought to be.

In support of what I have just said in regard to the duties of a court to decide the question of jurisdiction on its merits see Thompson v. Whitman, 18 Wall. 456, 461, where the court quotes Chief Justice Marshall as follows: "Upon principle it would seem that the operation of every judgment must depend upon the power of the court to render that judgment, or in other words, on its jurisdiction over the subject-matter which it has determined." This is merely another way of saying what Prof. Beale, on p. 596, in the article referred to says: "That if her cause (i. e., the libellee in the original action) for leaving the domicile was a jurisdictional fact, it was open to inquiry in the New York Court; and the New York Court in that case (Atherton v. Atherton), as in the case at bar (Haddock v. Haddock), found that the wife was blameless and that the fault lay with her husband."

If we say that jurisdiction for divorce is dependent upon the guilt or innocence of either party we will surely arrive as far as the decisions of the State courts are concerned at the condition Prof Beale outlines in these words on p. 589: "The scope of this doctrine is, however, broader than it might seem, since the fault of the libellant in leaving the libellee becomes a jurisdictional fact. To grant the original decree, the court must have found the libellant faultless in the matter; but in the second process the original libellee is likely to be the only party represented, and his side alone being heard, the second court will 18

VOL. L.

find the original libellant at fault, and therefore the court which rendered the original decree to have been without jurisdiction. This was the course of events in the case at bar." By the words "case at bar," he is referring to Haddock v. Haddock.

The condition above set forth is bound to follow for as the Court says in Huntington v. Attrill, 146 U. S. 657, 684: "In this country the question of international law must be determined in the first instance by the court, State or national, in which the suit is brought." But do not the words "in the first instance" give the clue to the labyrinth in which we seem to be lost? By Article IV, Section 1, of the Constitution, the Supreme Court of the United States was made the final arbiter of the Conflict of Laws as far as the first question, namely, that of jurisdiction is concerned; but not of the second. This is brought out clearly by the language in Huntington v. Attrill, which follows that already quoted. It runs as follows: "If a suit on the original liability under the statute of one State is brought in the court of another State,, the Constitution and the laws of the United States have not authorized its decision upon such a question to be reviewed by this Court. But if the original liability has passed into a judgment in one State, the courts of another State when asked to enforce it, are bound by the Constitution and laws of the United States to give full faith and credit to that judg ment, and if they do not, their decision as said at the outset of this opinion may be reviewed and reversed by this court on writ of error."

Is not the difficulty propounded by Prof. Beale further lessened by the recent case of Creswill v. Knights of Pythias, 225 U. S. 246, which shows clearly how far the United States Supreme Court can go when a federal question is involved, the court says in this case at p. 261: "While it is true that upon a writ of error to a State court we do not review findings of fact, nevertheless two propositions are as well settled as the rule itself, as follows: (a) that where a federal right has been denied as the result of a finding of fact which it was contended there was no evidence whatever to support and the evidence is in the record the resulting question of law is open for decision, and (b) that where a conclusion as to a federal right and finding of fact are so intermingled as to cause it to be essentially necessary for the purpose of passing upon the federal question to analyze and dissect the facts to the extent necessary to do so the power exists as a necessary incident to a decision upon the claim of denial of the federal right." To the same effect are St. Louis, San Francisco and Texas Ry. Co. v. Seale, 229 U. S. 156; Kansas City So. Ry. Co. v. Albers C. Co., 223 U. S. 573.

These cases did not have to do with Article IV Section I, but there can be no doubt that we are dealing with a federal right here as the court was in the cases above

That the same principle is involved in cases under the due faith and credit clause is shown by the language of the Court in the case last cited when it says at p. 593, after laying down rules like those I have quoted from Creswill v. Knights of Pythias: "A like exercise of this power is shown in cases arising under the clause of the Constitution requiring full faith and credit to be given in each State to the judicial proceedings of every other State." Stronger still, however, as bearing .on our present problem is the case of Jacobs v. Marks, 182 U. S. 583, 587, where the Court says: "We come, then, to the question whether, upon the facts disclosed in this record, the courts of Illinois gave full faith and credit, within the meaning of the Constitution of the United States to the judgment and judicial proceedings of the State court of Michigan."

If then, as is plainly evident from the cases just cited, a final and binding decision can be rendered by the United States Supreme Court on this question of jurisdiction, and further that it can examine thor

oughly the grounds upon which the second State court disregarded the decree of the first, are not the evils pointed out by Prof. Beale largely obviated? I think the answer must be in the affirmative.

But does this necessarily lead us to say that Mr. Justice White's distinction between Haddock v. Haddock and Atherton v. Atherton was well taken? It is true that we clearly have a single court whose decision is final, but what is the question it is left to decide in these cases? It is of course, an elementary principle that it is the jurisdictional fact which determines the question of what court has jurisdiction of the controversy. Hence if guilt or innocence is a jurisdictional fact, the United States Supreme Court must necessarily decide whether the libellant in the first action was justified in leaving the libellant in the second. How is the court to decide it, by what rule? Of course justifiable here must mean justifiable according to some law, it surely cannot mean justifiable according to the consciences of the individual men that happen to sit on the Supreme Bench at any given time.

Taking the Haddock case for example, is the question of whether A was justified in leaving B to be determined by the law of New York or the law of Connecticut? Our States have such a variety of laws governing marital relations that what would be justifiable desertion in one State would be unjustifiable in another. It is obvious that in the Haddock case the New York court, in holding that A left B unjustifiably meant that he was not justified by New York law in doing so. Let us suppose that the last State where A and B lived together as man and wife was Nevada, that for a reason good according to Nevada law B leaves A in spite of his wishes and goes to another town in that State, A later goes to Massachusetts and establishes his home there. After a lapse of six years he seeks a divorce in Massachusetts on the ground of desertion, in this action he correctly states the facts to the Massachusetts trial court which grants the divorce because by Massachusetts law B was not justified in leaving A. A later marries C in Massachusetts and dies while domiciled in that State. He leaves real estate in Nevada. B sets up a claim for dower in the Nevada land. C pleads the Massachusetts divorce but the Nevada court decides in favor of B. It will be remembered that B according to Nevada law was justified in leaving A. C appeals to the United States Supreme Court under the due faith and credit clause of the Constitution. Let us suppose that there is no dispute as to the facts, but that the records of the case before the United States Supreme Court show that the Massachusetts decree was pleaded and the Massachusetts law proved to be that A was justified in getting a divorce in the way he did. The Nevada court has found that B was justified in leaving A, that he was the guilty party, and therefore, under the language in Haddock v. Haddock, jurisdiction over the marital status remained in Nevada, and as a logical consequence the Massachusetts decree was entitled to no weight. If jurisdiction depends upon whether A or B was the guilty party, then that question must be determined by the United States Supreme Court. How is it going to decide it? According to the Nevada law, or the Massachusetts law? It would seem to follow logically from Haddock v. Haddock that it would decide it by the Nevada law, in which case B would win. Or is it going to say that it considers the policy adopted in Massachusetts governing marital relations as more moral, and therefore decide that it prefers to adopt that law as the measure of justification? Is not the court as a practical matter legislating upon the question of divorce? It is certainly a new doctrine that the federal courts and not the State Legislatures are to say what are and what are not justifiable causes for desertion.

After all under what has always been the common understanding of the legal profession for generations, does not the word jurisdiction

mean that, in cases where a judgment in rem is called for the thing, or in cases where a judgment in personam is called for, the defendant In any case before a must be within the jurisdiction of the court? court can say that a certain course of action was justifiable or unjustifiable it must first find out whether it has any right to characterize the course of action at all. It would certainly be a strange doctrine for a court of admiralty to adopt, that its jurisdiction over a ship depended upon whether its captain acted rightfully or wrongfully in bringing it into a port within the territorial limits over which the court exercised its judicial powers. Jurisdiction, in the only meaning ever given it, depends upon the location of a person or thing and not upon the conduct of anyone. As Prof. Beale says of this language of Mr. Justice White: "This novel and extraordinary doctrine has never before been suggested by a civilized court or author."

If the old and well established doctrine of domicil is followed we do not encounter any of the difficulties enumerated above. Of course it is true, as far as the decisions of State courts are concerned, that the language used by Prof. Beale would apply, and that domicil being a jurisdictional fact would be subject to be passed upon by any State court before which the validity of a divorce decree was called in question. But in case the former decree is refused recognition the case can be taken to the Supreme Court of the United States, and can there be decided on the basis of a well-known rule of universal application, namely, paraphrasing the language used by the Court in Creswill v. Knights of Pythias, and which is found just before that quoted, whether or not there was material error in the application which the State court made of the principle of domicil to the facts established and which appear in the record.

As we have seen in the absence of any world court to interpret the rules of private international law the court of each country, when the enforcement of the decree of a court of another country is in question, must decide whether the other court had jurisdiction. It is thus unfortunately possible that a man may be married in England and single in France. Such a result between the States in this country, where people are constantly moving from one jurisdiction to another would be a calamity. But if Haddock v. Haddock is followed to its logical conclusion why is not the language I am about to quote from Montmorency v. Montmorency a fair statement of the position we are in? The Texas court says at p. 1171: "The decision (i. e., the decision in Haddock v. Haddock) impresses us with the belief that the reasoning of that decision gives the court of the domicile of the innocent party jurisdiction to render a judgment binding everywhere, and deprives the court of the domicile of the guilty party of jurisdiction to render a judgment binding save in the State where rendered." A lovely result, surely!

Let us suppose that in a case where A has obtained his divorce as he did in Haddock v. Haddock he has married C in Connecticut and has had children by her. As long as they remain in Connecticut all goes well. But unfortunately they in all innocence decide to spend the summer on Lake George. At the outset of their journey A and C are respectable members of the community and the children are legitimate, but at the end of it A and C are fornicators and adulterers subject to criminal prosecution as offenders against the peace and safety of the State of New York and their children are illegitimate. It certainly is a new doctrine which proclaims that a man changes into a criminal by crossing a State line. It seems to me that to state such a rule as this is to damn it. Why should we adopt such a doctrine unless we are absolutely driven to it? Not only are we not driven to it, on the other hand as I indicated in the second part of my article such a result flies