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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 judgment, 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 thorI
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 decieion 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, Jn 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 must be within the jurisdiction of the court? In any case before a 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 rendeEed." 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 ot 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 directly in the face of the Constitution. If the divorce has force and effect in Connecticut it must have the same force and effect elsewhere.
In this country by the terms of the Constitution and the interpretation given it by the Supreme Court in Creswill v. Knights of Pythias and the other cases cited we are fortunate enough to possess a court of the Conflict of Laws as far at least . as the question of jurisdiction is concerned.
In this we have a model for a world court, and there are some of us who still hope that the time will come when such an institution will arise. When that time comes, no matter at how distant a date, I fondly believe it will have a starting point for dealing with questions of both public and private international law in the decisions of our greatest court. I cannot think that the court will persist in the doctrine enunciated in Haddock v. Haddock, thus throwing over its great opportunity to render inestimable service to this country and perhaps ultimately to the world at large.
I will not believe until I am forced to do so, that In order to uphold a decision made by a majority of one vote it will persist in doctrines which leave in a cloud of uncertainty and doubt the most sacred of human relationships.. The law is something above and beyond even courts; judges and lawyers are but its ministers, and while it is true that courts are the only authorized agents to declare the law and so as a practical matter their decrees are the law, yet if on subsequent reflection a decision is clearly wrong, it is the duty of the court to remedy the mistake. Law in its last analysis is right reason and justice, and the squaring of decisions with this ideal, when a great principle is involved, takes precedence even over the doctrine of stare decisis.
Morton L. Lewis.
The Multiplicity Op Laws And The Interpretation Of StatUtes Ry Courts—Views Op Mr. Justice Hughes.—Mr. Justice Hughes of the Supreme Court of the United States delivered in January, before the New York State Bar Association a notable address upon the Development of American Law. He noted the rage for lawmaking in this day and country and suggested some remedies. He said:
"In the mere multiplication of laws, when this is considered relatively to the growth of the country, there is nothing novel. This is an ancient grievance, and the significance of Us continuance lies in the showing of the reluctance of democracy to forego legislative opportunities in the interest of simplicity and efficiency. I-see no prospect of remedying the evil of needless multiplicity until in the place of merely general lamentations and futile inveighing against "too much law," enlightened opinion shall aim at securing improvement in those cases in which the mischief is especially prominent and some measure of relief is not wholly impracticable: For example (1) by increasing restrictions against special and private legislation not only through constitutional provisions where these are appropriate, but by changes in the rules of legislative bodies with respect to the consideration of private bills; (2) by the development in local communities of the sense of civic responsibility which will lead to intrusting each municipality with the care of its purely local affairs under rules of Its own making: (3) by seeking to deal with matters of general concern, though within State power, through uniform State laws not only enacted but maintained as such both by force of the public judgment and by the efforts of the Bench to avoid conflicting interpretations, and (4) by seeking to provide a simple judicial procedure which shall not be a legislative patchwork. We are apt to be suspicious of everything but generalizations, and we find it hard to agree on the details of constructive enterprise. But gains are always possible through a wise dircetion of effort, and if Legislatures are relieved of unnecessary burdens there will be opportunity for increased care in formulating and adopting new laws."
He spoke of the Judicial function to interpret both constitutions and statutes, and how legislative activity is every day raising questions involving not simply the constitutional adjustment of national and State power, but also the application of the historic clauses of our Bill of Rights securing life, liberty and property. He said:
"Here also our system is under an increased strain as efforts to impose new obligations are brought to the constitutional test. In view of the impossibility of comprehensive definition of the content of the great guaranties of due process and equal protection, and of the necessity for what Mr. Justice Miller called the 'gradual process of judicial inclusion and exclusion, as the cases presented for decision require,' there is peculiar danger of defective generalization in a critical estimate of results. For a fair view of judicial wo"rk in this field it must be judged in its entirety and without losing sight of the broad range of legislative discretion which is every day recognized despite constant efforts to induce judicial decision upon matters which are essentially mere questions of legislative expediency and over which the courts have no constitutional authority. Even with respect to procedure, which is of the essence of due process, it has repeatedly been held that there was no intention by the adoption of the Fourteenth Amendment to confine State practice to archaic forms. For, as Mr. Justice Moody said in Twining v. New Jersey, if that were so, 'the procedure of the first half of the seventeenth century would be fastened upon the Amercian jurisprudence like a straight jacket, only to be unloosed by constitutional amendment,' and that, he continued, quoting from Mr Justice Matthews in Hnrtado v. California, would be 'to deny every quality of the law but its age, and to render it incapable of progress or improvement.' Thus it has been found, for example, that there was nothing in the guaranty of due process of law contained in the Fourteenth Amendment which required a State to proceed by indictment by a grand jury (instead of by information) or by trial by a petit jury of twelve persons in prosecutions for infamous crimes, or from dispensing with the exception from compulsory self-incrimination. And in the operation of this amendment according to our established constitutional doctrine as a restriction upon the enactment of substantive legislation, it is manifest that the prohibition was not intended to override legislative action by the views of judges as to its wisdom. The amendment was the affirmation of individual rights deemed to be fundamental. It was incorporated in the constitution with full knowledge of the judicial duty to apply the supreme law in the decision of •controversies. What was thus sought was not a privilege to deny the legislative authority to enact reasonable measures for the protection of the safety, health, morals and welfare of the people, not to make improvement "or rational experimentation impossible, but to preserve and enforce the primary and fundamental conceptions of justice which demand proper notice and opportunity to be heard before a competent tribunal in advance of condemnation, immunity from the confiscation of property, and, with re