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mission he has continuously practiced law in Kansas City. He has never held any public office but has devoted himself entirely to his practice. He is a member of the City, State and National Bar Associations and has served on the Grievance Committee of the Bar Association of Kansas City, Mo., endeavoring there to reform some of the abuses that always exist at the Bar of a large city.
ALEX TEISEN, the writer of the paper on “C. Goos,” was born in Fanefjord parish in 1858. Graduated from the Latin School (A. B.) 1877, took the degree of cand. phil. (Ph. B.) at the Copenhagen University in 1878, and the degree of cand. jur. (L.L. B.) in 1882. He practiced law in Denmark until the fall of 1890, when he settled in California ; was admitted to the Bar of the State in 1892 and practiced in San Francisco. In 1899, he was admitted to the Bar of Philadelphia, where he is now practicing. He has for some years been a constant contributor to American Law journals, and to the Scandinavian “Tideskrift for Retsvidenskab.” Mr. Tiesen is Assistant Secretary of the Comparative Law Bureau of the American Bar Association and one of its editorial staff.
GEORGE WHITELOCK, the Secretary of the American Bar Association, whose portrait appears in this issue, is probably the best known lawyer in the United States, among his brethren of the Bench and Bar. Mr. Whitelock has often contributed to these columns and a short biographical note will be found in 45 Am. L. Rev. 415.
DIVORCE AND THE FEDERAL CONSTITUTION—A CRITICISM AND REPLY.
Dallas, Texas, January 5, 1916. EDITOR AMERICAN LAW REVIEW:
As my firm has just successfully concluded a litigation involving the validity of foreign divorce decrees rendered upon substituted service (Parker v. Parker, 222 Fed. 186, in which an application for a certiorari was denied by the Supreme Court), I naturally read with much interest the article in your last issue entitled “Divorce and the Federal Constitution," by Mr. Morton L. Lewis of Worcester, Mass., with the result that in my judgment he has not "steadily conceived" the pith of the decisions of the ultimate tribunal.
After copiously quoting from Thompson v. Thompson, 226 U. S. 551, as a predicate, Mr. Lewis ventures the assertion that the Supreme Court "has retreated from the untenable position that the guilt or innocnce of either party has anything to do with the question of jurisdiction."
Thompson v. Thompson lends no support to any such assertion. In that case the actual and matrimonial domicile of the husband and wife was in Loudoun County, Virginia, and the wife, without cause, wilfully deserted her husband there and went to the District of Columbia where she
instituted a suit for divorce against her husband. Meantime, the husband had obtained upon substituted service a decree of divorce in the Virginia court and interposed the same as a plea in bar to his wife's suit. The Court of Appeals of the District of Columbia held the Virginia decree valid and remanded the cause with directions to the trial court to enter an order vacating the decree which it had rendered at the instance of the wife, and to dismiss her bill, and the Supreme Court affirmed that ruling. The ruling is clearly based upon the ground that because of the guilty desertion of the wife, the matrimonial domicile remained with the husband, and hence, the res was within the sweep of the judicial power of the Virginia court.
Again, Mr. Lewis says: “Let us suppose that A and B lived together as man and wife in Pennsylvania, that B for some reason leaves A and goes to live in Maine. That A later goes to California where he esatblishes his home. Under the doctrine above set forth, it is necessary, for either party to obtain a valid divorce, that he or she should return and seek a divorce from a court in Pennsylvania." I submit that this proceeds upon an obvious misconception of just what the law is. If B deserts A in Pennsylvania the matrimonial domicile remains there with A, and if thereafter A "goes to California where he establishes his home,” hé takes the matrimonial domicile with him. This proposition has been distinctly decided in Montmorency V. Montmorency, 139 S. W. R. 1168. In that case the husband deserted the wife in the Republic of Mexico by reason of which the matrimonial domicile remained there with the wife. Subsequently she removed to the State of Texas and instituted a divorce action with the result that the court held that when she came to Texas she brough the matrimonial domicile with her, and that, therefore, the court had jurisdiction. In fact, it is not readily conceivable that a citation of authority should be invoked in support of that which is obvious.
I indulge this comment upon the article in question for the reason that it is calculated to confuse and mislead.
My article on Divorce and the Federal Constitution which appeared in the November-December number of the AMERICAN LAW REVIEW was not intended to be a complete discussion of the principles involved in the case of Haddock v. Haddock for the reason that much of the ground has already been covered by Prof. Beale in 19 Harvard Law Review, p. 586.
I do not pretend that my article is an infallible prophecy of what the United States Supreme Court will do if a case like Haddock v. Haddock squarely comes before it again. I wrote it in the hope that it might do a little towards clearing up a subject which seems to be shrouded in a veritable mist of uncertainty and confusion. It seemed to me probable that a court of such ability and standing as the Supreme Court of the United States would not persist in a doctrine which cannot be defended either by reason or authority and one that is bound sooner or later to lead to an impasse,
I shall begin my answer to Mr. Etheridge's letter by dealing first with the cases he cites, but I shall have the temerity to devote most of my reply to abstract reasoning. I know that this mode of procedure is con. trary to the one generally employed, but I share the feeling of many others that there is too great a tendency nowadays when attempting to establish a proposition of law to pile up case upon case without any real effort to examine the reasoning upon which the cases rest. And while I do not wish to be understood as sneering at precedent, I do, however,
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 judg. ment, 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 deci. sions 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 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 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 1, 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