When rights, based on a judgment obtained in one state, are
asserted in the courts of another state under the due faith and
credit clause of the federal Constitution, the power exists in the
state court in which they are asserted to look back of the judgment
and ascertain whether the claim which had entered into it was one
susceptible of being enforced in another state (
Wisconsin v.
Pelican Insurance Company, 127 U. S. 215;
Thompson v.
Whitman, 18 Wall. 457). And where such rights are
in due time asserted, the power to decide whether the federal
question so raised was rightly disposed of in the court below
exists in, and involves the exercise of jurisdiction by, this
Court.
Page 188 U. S. 15
1. Although marriage, viewed solely as a civil relation,
possesses elements of contract, it is so interwoven with the very
fabric of society that it cannot be entered into except as
authorized by law, and it may not, when once entered into, be
dissolved by the mere consent of the parties.
The Constitution of the United States confers no power whatever
upon the government of the United States to regulate marriage or
its dissolution in the states.
A state may forbid the enforcement within its borders of a
decree of divorce procured by its own citizens who, whilst
retaining their domicil in the prohibiting state, have gone into
another state to procure a divorce in fraud of the law of the
domicil.
The statute of Massachusetts, which provides that a divorce
decreed in another state or country by a court having jurisdiction
of the cause and both the parties shall be valid and effectual in
the Commonwealth, but if an inhabitant of Massachusetts goes into
another state or country to obtain a divorce for a cause which
occurred in Massachusetts while the parties resided there, or for a
cause which would not authorize a divorce by the laws of
Massachusetts, a divorce so obtained shall have no force or effect
in that Commonwealth, is an expression of the public policy of that
state in regard to a matter wholly under its control, and does not
conflict with the Constitution of the United States or violate the
full faith and credit clause thereof. And the courts of
Massachusetts are not obliged to enforce a decree of divorce
obtained in another state as to persons domiciled in Massachusetts
and who go into such other state with the purpose of practicing a
fraud upon the laws of the their domicil -- that is, to procure a
divorce without obtaining a
bona fide domicil in such
other state.
2. Although a particular provision of the Constitution may
seemingly be applicable, its controlling effect is limited by the
essential nature of the powers of government reserved to the states
when the Constitution was adopted.
As the State of Massachusetts has exclusive jurisdiction over
its citizens concerning the marriage tie and its dissolution, and
consequently the authority to prohibit them from perpetrating a
fraud upon the law of their domicil by temporarily sojourning in
another state and there procuring a decree of divorce without
acquiring a
bona fide domicil, a decree of divorce
obtained in South Dakota upon grounds which do not permit a divorce
in Massachusetts under the conditions stated in the opinion is not
rendered by a court of competent jurisdiction and hence the due
faith and credit clause of the Constitution does not require the
enforcement of such decree in the Massachusetts against the public
policy of that state as expressed in its statutes.
The plaintiff and the defendant in error, each claiming to be
the lawful widow of Charles S. Andrews, petitioned to be appointed
administratrix of his estate. The facts were found as follows:
Page 188 U. S. 16
Charles S. and Kate H. Andrews married in Boston in April, 1887,
and they lived together at their matrimonial domicil in the State
of Massachusetts. In April, 1890, the wife began a suit for
separate maintenance, which was dismissed in December, 1890,
because of a settlement between the parties, adjusting their
property relations.
In the summer of 1891, Charles S. Andrews, to quote from the
findings,
"being then a citizen of Massachusetts and domiciled in Boston,
went to South Dakota to obtain a divorce for a cause which occurred
here while the parties resided here, and which would not authorize
a divorce by the laws of this commonwealth; he remained personally
in that state a period of time longer than is necessary by the laws
of said state to gain a domicil there, and on November 19, 1891,
filed a petition for divorce in the proper court of that
state."
Concerning the conduct of Charles S. Andrews and his purpose to
obtain a divorce in South Dakota, while retaining his domicil in
Massachusetts, the facts were found as follows:
"The husband went to South Dakota, and took up his residence
there to get this divorce, and that he intended to return to this
state when the business was finished. He boarded at a hotel in
Sioux Falls all the time, and had no other business there than the
prosecution of this divorce suit. I find, however, that he voted
there at a state election in the fall of 1891, claiming the right
to do so as a
bona fide resident under the laws of that
state. His intention was to become a resident of that state for the
purpose of getting his divorce, and to that end to do all that was
needful to make him such a resident, and I find he became a
resident if, as a matter of law, such finding is warranted in the
facts above stated."
And further, that --
"The parties had never lived together as husband and wife in
South Dakota, nor was it claimed that either one of them was ever
in that state, except as above stated."
With reference to the divorce proceedings in South Dakota it was
found as follows:
"The wife received notice, and appeared by counsel and filed an
answer, denying that the libellant was then or ever had been
Page 188 U. S. 17
a
bona fide resident of South Dakota, or that she had
deserted him, and setting up cruelty on his part toward her. This
case was settled, so far as the parties were concerned, in
accordance with the terms of the agreement of April 22, 1892,
signed by the wife and consented to by the husband, and, for the
purpose of carrying out her agreement 'to consent to the granting
of divorce for desertion in South Dakota,' she requested her
counsel there to withdraw her appearance in that suit, which they
did, and thereafterwards, namely, on May 6, 1892, a decree granting
the divorce was passed, and within a day or two afterwards, the
said Charles, having attained the object of his sojourn in that
state, returned to this commonwealth, where he resided and was
domiciled until his death, which occurred in October, 1897."
By the agreement of April 22, 1892, to which reference is made
in the finding just quoted, it was stipulated that a payment of a
sum of money should be made by Charles S. Andrews to his wife, and
she authorized her attorney, on the receipt of the money, to
execute certain papers, and it was then provided as follows:
"Fourth. Upon the execution of such papers, M. F. Dickinson,
Jr., is authorized in my name to consent to the granting of divorce
for desertion, in the South Dakota court."
Respecting the claim of Annie Andrews to be the wife of Charles
S. Andrews, it was found as follows:
"Upon his return to this state, he soon met the petitioner, and
on January 11, 1893, they were married in Boston, and ever after
that lived as husband and wife in Boston, and were recognized as
such by all until his death. The issue of this marriage are two
children, still living."
It was additionally found that Annie Andrews married Charles S.
Andrews in good faith, and in ignorance of any illegality in the
South Dakota divorce, and that Kate H. Andrews, as far as she had
the power to do so, had connived at and acquiesced in the South
Dakota divorce, had preferred no claim thereafter to be the wife of
Charles S. Andrews until his death, when in this case she asserted
her right to administer his estate as his lawful widow.
Page 188 U. S. 18
From the evidence above stated, the ultimate facts were found to
be that Andrews had always retained his domicil in Massachusetts,
had gone to Dakota for the purpose of obtaining a divorce, in fraud
of the laws of Massachusetts, and with the intention of returning
to that state when the divorce was procured, and hence that he had
never acquired a
bona fide domicil in South Dakota.
Applying a statute of the State of Massachusetts forbidding the
enforcement in that state of a divorce obtained under the
circumstances stated, it was decided that the decree rendered in
South Dakota was void in the State of Massachusetts, and hence that
Kate H. Andrews was the widow of Charles S. Andrews and entitled to
administer his estate. 176 Mass. 92.
Page 188 U. S. 28
MR. JUSTICE WHITE, after making the foregoing statement,
delivered the opinion of the Court.
It was suggested at bar that this Court was without
jurisdiction. But it is unquestionable that rights under the
Constitution of the United States were expressly and in due time
asserted, and that the effect of the judgment was to deny these
rights. Indeed, when the argument is analyzed, we think it is
apparent that it but asserts that, as the court below committed
Page 188 U. S. 29
no error in deciding the federal controversy, therefore there is
no federal question for review. But the power to decide whether the
federal issue was rightly disposed of involves the exercise of
jurisdiction.
Penn Mutual Life Insurance Company v.
Austin, (1897)
168 U. S. 685. As
the federal question was not unsubstantial and frivolous, we pass
to a consideration of the merits of the case.
The statute of the State of Massachusetts in virtue of which the
court refused to give effect to the judgment of divorce is as
follows:
"SEC. 35. A divorce decreed in another state or country
according to the laws thereof, by a court having jurisdiction of
the cause and of both the parties, shall be valid and effectual in
this commonwealth; but if an inhabitant of this commonwealth goes
into another state or country to obtain a divorce for a cause which
occurred here, while the parties resided here, or for a cause which
would not authorize a divorce by the laws of this commonwealth, a
divorce so obtained shall be of no force or effect in this
commonwealth."
2 2 Rev.Laws Mass. 1902, c. 152, p. 1357; Pub.Stat. c. 146, §
41.
It is clear that this statute, as a general rule, directs the
courts of Massachusetts to give effect to decrees of divorce
rendered in another state or country by a court having
jurisdiction. It is equally clear that the statute prohibits an
inhabitant of Massachusetts from going into another state to obtain
a divorce, for a cause which occurred in Massachusetts while the
parties were domiciled there, or for a cause which would not have
authorized a divorce by the law of Massachusetts, and that the
statute forbids the courts of Massachusetts from giving effect to a
judgment of divorce obtained in violation of these prohibitions.
That the statute establishes a rule of public policy is undeniable.
Did the court fail to give effect to federal rights when it applied
the provisions of the statute to this case, and therefore refused
to enforce the South Dakota decree? In other words, the question
for decision is does the statute conflict with the Constitution of
the United States? In coming to the solution of this question, it
is essential, we repeat, to bear always in mind that the
prohibitions of the
Page 188 U. S. 30
statute are directed solely to citizens of Massachusetts
domiciled therein, and that it only forbids the enforcement in
Massachusetts of a divorce obtained in another state by a citizen
of Massachusetts who, in fraud of the laws of the State of
Massachusetts, while retaining his domicil, goes into another state
for the purpose of there procuring a decree of divorce.
We shall test the constitutionality of the statute first by a
consideration of the nature of the contract of marriage, and the
authority which government possesses over the subject, and secondly
by the application of the principles thus to be developed to the
case in hand.
1. That marriage, viewed solely as a civil relation, possesses
elements of contract is obvious. But it is also elementary that
marriage, even considering it as only a civil contract, is so
interwoven with the very fabric of society that it cannot be
entered into except as authorized by law, and that it may not, when
once entered into, be dissolved by the mere consent of the parties.
It would be superfluous to cite the many authorities establishing
these truisms, and we therefore are content to excerpt a statement
of the doctrine on the subject contained in the opinion of this
Court delivered by Mr. Justice Field, in
Maynard v. Hill,
(1888)
125 U. S. 190:
"Marriage, as creating the most important relation in life, as
having more to do with the morals and civilization of the people
than any other institution, has always been subject to the control
of the legislature. That body prescribes the age at which parties
may contract to marry, the procedure or form essential to
constitute marriage, the duties and obligations it creates its
effect upon the property rights of both, present and prospective,
and the acts which may constitute grounds for its dissolution."
P. 205.
"
* * * *"
"It is also to be observed that, while marriage is often termed
by text writers and in decisions of courts as a civil contract --
generally to indicate that it must be founded upon the agreement of
the parties, and does not require any religious ceremony for its
solemnization -- it is something more than a mere contract. The
consent of the parties is, of course, essential
Page 188 U. S. 31
to its existence; but when the contract to marry is executed by
the marriage, a relation between the parties is created which they
cannot change. Other contracts may be modified, restricted or
enlarged, or entirely released upon the consent of the parties. Not
so with marriage. The relation once formed, the law steps in and
holds the parties to various obligations and liabilities. It is an
institution, in the maintenance of which in its purity the public
is deeply interested, for it is the foundation of the family and of
society, without which there would be neither civilization nor
progress."
125 U. S. 125
U.S. 210.
It follows that the statute in question was but the exercise of
an essential attribute of government, to dispute the possession of
which would be to deny the authority of the State of Massachusetts
to legislate over a subject inherently domestic in its nature and
upon which the existence of civilized society depends. True, it is
asserted that the result just above indicated will not necessarily
flow from the conclusion that the statute is repugnant to the
Constitution of the United States. The decision that the
Constitution compels the State of Massachusetts to give effect to
the decree of divorce rendered in South Dakota cannot, it is
insisted, in the nature of things, be an abridgment of the
authority of the State of Massachusetts over a subject within its
legislative power, since such ruling would only direct the
enforcement of a decree rendered in another state, and therefore
without the Territory of Massachusetts. In reason it cannot, it is
argued, be held to the contrary without disregarding the
distinction between acts which are done within, and those which are
performed without, the territory of a particular state. But this
disregards the fact that the prohibitions of the statute, so far as
necessary to be considered for the purposes of this case, are
directed not against the enforcement of divorces obtained in other
states as to persons domiciled in such states, but against the
execution in Massachusetts of decrees of divorce obtained in other
states by persons who are domiciled in Massachusetts, and who go
into such other states with the purpose of practicing a fraud upon
the laws of the state of their domicil -- that is, to procure a
divorce without obtaining a
bona fide domicil in such
other state. This being the scope of the statute, it is
Page 188 U. S. 32
evident, as we shall hereafter have occasion to show, that the
argument, while apparently conceding the power of the state to
regulate the dissolution of marriage among its own citizens, yet in
substance necessarily denies the possession of such power by the
state. But, it is further argued, as the Constitution of the United
States is the paramount law, and as, by that instrument, the State
of Massachusetts is compelled to give effect to the decree, it
follows that the Constitution of the United States must prevail,
whatever may be the result of enforcing it.
Before coming to consider the clause of the Constitution of the
United States upon which the proposition is rested, let us more
precisely weigh the consequences which must come from upholding the
contention not only as it may abridge the authority of the State of
Massachusetts, but as it may concern the powers of government
existing under the Constitution, whether state or federal.
It cannot be doubted that, if a state may not forbid the
enforcement within its borders of a decree of divorce procured by
its own citizens, who, while retaining their domicil in the
prohibiting state, have gone into another state to procure a
divorce in fraud of the laws of the domicil, that the existence of
all efficacious power on the subject of divorce will be at an end.
This must follow if it be conceded that one who is domiciled in a
state may, whenever he chooses, go into another state, and without
acquiring a
bona fide domicil therein, obtain a divorce,
and then compel the state of the domicil to give full effect to the
divorce thus fraudulently procured. Of course, the destruction of
all substantial legislative power over the subject of the
dissolution of the marriage tie which would result would be equally
applicable to every state in the Union. Now as it is certain that
the Constitution of the United States confers no power whatever
upon the government of the United States to regulate marriage in
the states or its dissolution, the result would be that the
Constitution of the United States has not only deprived the states
of power on the subject, but, while doing so, has delegated no
authority in the premises to the government of the United States.
It would thus come to pass that the governments, state and federal,
are bereft by the
Page 188 U. S. 33
operation of the Constitution of the United States of a power
which must belong to, and somewhere reside in, every civilized
government. This would be but to declare that, in a necessary
aspect, government had been destroyed by the adoption of the
Constitution. And such result would be reached by holding that a
power of local government vested in the states when the
Constitution was adopted had been lost to the states, though not
delegated to the federal government, because each state was
endowed, as a consequence of the adoption of the Constitution, with
the means of destroying the authority, with respect to the
dissolution of the marriage tie, as to every other state, while
having no right to save its own power in the premises from
annihilation.
But let us consider the particular clause of the Constitution of
the United States which is relied upon, in order to ascertain
whether such an abnormal and disastrous result can possibly arise
from its correct application.
The provision of the Constitution of the United States in
question is Section 1 of Article IV, providing that "full faith and
credit shall be given in each state to the public acts, records,
and judicial proceedings of every other state." The argument is
that, even although the Massachusetts statute but announces a rule
of public policy in a matter purely local, nevertheless it violates
this clause of the Constitution. The decree of the court of another
state, it is insisted, and not the relation of the parties to the
State of Massachusetts and their subjection to its lawful
authority, is what the Constitution of the United States considers
in requiring the State of Massachusetts to give due faith and
credit to the judicial proceedings of the courts of other states.
This proposition, however, must rest on the assumption that the
Constitution has destroyed those rights of local self-government
which it was its purpose to preserve. It moreover presupposes that
the determination of what powers are reserved and what delegated by
the Constitution is to be ascertained by a blind adherence to mere
form, in disregard of the substance of things. But the settled rule
is directly to the contrary. Reasoning from analogy, the
unsoundness of the proposition is demonstrated. Thus, in
enforcing
Page 188 U. S. 34
the clause of the Constitution forbidding a state from impairing
the obligations of a contract, it is settled by the decisions of
this Court: although a state, for adequate consideration, may have
executed a contract sanctioning the carrying on of a lottery for a
stated term, no contract protected from impairment under the
Constitution results, because, disregarding the mere form and
looking at substance, a state may not, by the application of the
contract clause of the Constitution, be shorn of an ever inherent
authority to preserve the public morals by suppressing lotteries.
Stone v. Mississippi, 101 U. S. 814;
Douglas v. Kentucky, 168 U. S. 488. In
other words, the doctrine is that, although a particular provision
of the Constitution may seemingly be applicable, its controlling
effect is limited by the essential nature of the powers of
government reserved to the states when the Constitution was
adopted. In view of the rule thus applied to the contract clause of
the Constitution, we could not maintain the claim now made as to
the effect of the due faith and credit clause without saying that
the states must, in the nature of things, always possess the power
to legislate for the preservation of the morals of society, but
that they need not have the continued authority to save society
from destruction.
Resort to reasoning by analogy, however, is not required, since
the principle which has been applied to the contract clause has
been likewise enforced as to the due faith and credit clause.
In
Thompson v.
Whitman, (1874) 18 Wall. 457, the action in the
court below was trespass for the conversion of a sloop, her tackle,
furniture, etc., upon a seizure for an alleged violation of a
statute of the State of New Jersey. By special plea in bar, the
defendant set up that the seizure was made within the limits of a
named county in the State of New Jersey, and by answer to this
plea, the plaintiff took issue as to the place of seizure, thus
challenging the jurisdiction of the justices who had tried the
information and decreed the forfeiture and sale of the property.
The precise point involved in the case, as presented in this Court,
was whether or not error had been committed by the trial court in
receiving evidence to contradict the record of the New Jersey
judgment as to jurisdictional facts asserted
Page 188 U. S. 35
therein, and especially as to facts stated to have been passed
upon by the court which had rendered the judgment. It was contended
that to permit the jurisdictional facts, which were foreclosed by
the judgment, to be reexamined, would be a violation of the due
faith and credit clause of the Constitution. This Court, however,
decided to the contrary, saying:
"We think it clear that the jurisdiction of the court by which a
judgment is rendered in any state may be questioned in a collateral
proceeding in another state, notwithstanding the provision of the
fourth article of the Constitution and the law of 1790, and
notwithstanding the averments contained in the record of the
judgment itself."
The ground upon which this conclusion was predicated is thus
embodied in an excerpt made from the opinion delivered by Mr. Chief
Justice Marshall, speaking for the Court, in
Rose v.
Himely, 4 Cranch 269, where it was said:
"Upon principle, it would seem that the operation of every
judgment must depend on the power of the court to render that
judgment, or, in other words, on its jurisdiction over the subject
matter which it has determined. In some cases, that jurisdiction
unquestionably depends as well on the state of the thing, as on the
constitution of the court. If, by any means whatever, a prize court
should be induced to condemn, as prize of war, a vessel which was
never captured, it could not be contended that this condemnation
operated a change of property. Upon principle, then, it would seem
that, to a certain extent, the capacity of the court to act upon
the thing condemned, arising from its being within or without their
jurisdiction, as well as the constitution of the court, may be
considered by that tribunal which is to decide on the effect of the
sentence."
And the same principle, in a different aspect, was applied in
Wisconsin v. Pelican Insurance Co., (1888)
127 U.
S. 265. In that case, the State of Wisconsin had
obtained a money judgment in its own courts against the Pelican
Insurance Company, a Louisiana corporation. Availing itself of the
original jurisdiction of this Court, the State of Wisconsin brought
in this Court an action of debt upon the judgment in question. The
answer of the defendant was to the effect that the judgment
Page 188 U. S. 36
was not entitled to extraterritorial enforcement, because the
claim upon which it was based was a penalty imposed upon the
corporation for an alleged violation of the insurance laws of the
State of Wisconsin. The answer having been demurred to, it was, of
course, conceded that the claim which was merged in the judgment
was such a penalty. This Court, having concluded that ordinarily a
penalty imposed by the laws of one state could have no
extraterritorial operation, came then to consider whether, under
the due faith and credit clause of the Constitution of the United
States, a judgment rendered upon a penal statute was entitled to
recognition outside of the state in which it had been rendered
because the character of the cause of action had been merged in the
judgment as such. In declining to enforce the Wisconsin judgment,
and in deciding that, notwithstanding the judgment and the due
faith and credit clause of the Constitution, the power existed to
look back of the judgment and ascertain whether the claim which had
entered into it was one susceptible of being enforced in another
state, the Court, speaking through Mr. Justice Gray, said (p.
127 U. S.
291):
"The application of the rule to the courts of the several states
and of the United States is not affected by the provisions of the
Constitution and of the act of Congress by which the judgments of
the courts of any state are to have such faith and credit given to
them in every court within the United States as they have by law or
usage in the state in which they were rendered. Constitution, Art.
IV, Sec. 1; Act May 26, 1790, 1 Stat. 122, c. 11; Rev.Stat. §
905."
"Those provisions establish a rule of evidence, rather than of
jurisdiction. While they make the record of a judgment, rendered
after due notice in one state, conclusive evidence in the courts of
another state or of the United States, of the matter adjudged, they
do not effect the jurisdiction either of the court in which the
judgment is rendered or of the court in which it is offered in
evidence. Judgments recovered in one State of the Union, when
proved in the courts of another government, whether state or
national, within the United States differ from judgments recovered
in a foreign country in no
Page 188 U. S. 37
other respect than in not being reexaminable on their merits nor
impeachable for fraud in obtaining them, if rendered by a court
having jurisdiction of the cause and of the parties.
Hanley v.
Donoghue, 116 U. S. 1,
116 U. S.
4."
"In the words of Mr. Justice Story, cited and approved by Mr.
Justice Bradley speaking for this Court,"
"the Constitution did not mean to confer any new power upon the
states, but simply to regulate the effect of their acknowledged
jurisdiction over persons and things within their territory. It did
not make the judgments of other states domestic judgments to all
intents and purposes, but only gave a general validity, faith, and
credit to them as evidence. No execution can issue upon such
judgments without a new suit in the tribunals of other states. And
they enjoy not the right of priority or lien which they have in the
state where they are pronounced, but that only which the
lex
fori gives to them by its own laws in their character of
foreign judgments."
"Story's Conflict of Laws, § 609;
Thompson v.
Whitman, 18 Wall. 457,
85 U. S.
462-463."
"A judgment recovered in one state, as was said by Mr. Justice
Wayne, delivering an earlier judgment of this Court,"
"does not carry with it into another state the efficacy of a
judgment upon property or persons, to be enforced by execution. To
give it the force of a judgment in another state, it must be made a
judgment there, and can only be executed in the latter as its laws
may permit."
"
McElmoyle v. Cohen, 13 Pet.
312,
38 U. S. 325."
"The essential nature and real foundation of a cause of action
are not changed by recovering judgment upon it, and the technical
rules which regard the original claim as merged in the judgment,
and the judgment as implying a promise by the defendant to pay it,
do not preclude a court, to which a judgment is presented for
affirmative action (while it cannot go behind the judgment for the
purpose of examining into the validity of the claim) from
ascertaining whether the claim is really one of such a nature that
the court is authorized to enforce it."
2. When the principles which we have above demonstrated by
reason and authority are applied to the question in hand, its
solution is free from difficulty. As the State of Massachusetts
Page 188 U. S. 38
had exclusive jurisdiction over its citizens concerning the
marriage tie and its dissolution, and consequently the authority to
prohibit them from perpetrating a fraud upon the law of their
domicil by temporarily sojourning in another state, and there,
without acquiring a
bona fide domicil, procuring a decree
of divorce, it follows that the South Dakota decree relied upon was
rendered by a court without jurisdiction, and hence the due faith
and credit clause of the Constitution of the United States did not
require the enforcement of such decree in the State of
Massachusetts against the public policy of that state as expressed
in its statutes. Indeed, this application of the general principle
is not open to dispute, since it has been directly sustained by
decisions of this Court.
Bell v. Bell, 181 U.
S. 175;
Streitwolf v. Streitwolf, 181 U.
S. 179. In each of these cases, it was sought in one
state to enforce a decree of divorce rendered in another state, and
the authority of the due faith and credit clause of the
Constitution was invoked for that purpose. It having been
established in each case that, at the time the divorce proceedings
were commenced, the plaintiff in the proceedings had no
bona
fide domicil within the state where the decree of divorce was
rendered, it was held, applying the principle announced in
Thompson v.
Whitman, 18 Wall. 457, that the question of
jurisdiction was open for consideration, and that as, in any event,
domicil was essential to confer jurisdiction, the due faith and
credit clause did not require recognition of such decree outside of
the state in which it had been rendered. A like rule, by inverse
reasoning, was also applied in the case of
Atherton v.
Atherton, 181 U. S. 155.
There, a decree of divorce was rendered in Kentucky in favor of a
husband who had commenced proceedings in Kentucky against his wife,
then a resident of the State of New York. The courts of the latter
state having, in substance, refused to give effect to the Kentucky
divorce, the question whether such refusal constituted a violation
of the due faith and credit clause of the Constitution was brought
to this Court for decision. It having been established that
Kentucky was the domicil of the husband and had ever been the
matrimonial domicil, and therefore that the courts of Kentucky had
jurisdiction over the subject matter, it
Page 188 U. S. 39
was held that the due faith and credit clause of the
Constitution of the United States imposed upon the courts of New
York the duty of giving effect to the decree of divorce which had
been rendered in Kentucky.
But it is said that the decrees of divorce which were under
consideration in
Bell v. Bell and
Streitwolf v.
Streitwolf were rendered in
ex parte proceedings, the
defendants having been summoned by substituted service, and making
no appearance; hence, the case now under consideration is taken out
of the rule announced in those cases, since here, the defendant
appeared, and consequently became subject to the jurisdiction of
the court by which the decree of divorce was rendered. But this
disregards the fact that the rulings in the cases referred to were
predicated upon the proposition that jurisdiction over the subject
matter depended upon domicil, and without such domicil there was no
authority to decree a divorce. This became apparent when it is
considered that the cases referred to were directly rested upon the
authority of
Thompson v. Whitman, supra, where the
jurisdiction was assailed not because there was no power in the
court to operate by
ex parte proceedings on the
res if jurisdiction existed, but solely because the
res was not, at the time of its seizure, within the
territorial sway of the court, and hence was not a subject matter
over which the court could exercise jurisdiction by
ex
parte or other proceedings. And this view is emphasized by a
consideration of the ruling in
Wisconsin v. Pelican Insurance
Company, supra, where the judgment was one
inter
partes, and yet it was held that, insofar as the
extraterritorial effect of the judgment was concerned, the
jurisdiction over the subject matter of the state and its courts
was open to inquiry, and if jurisdiction did not exist, the
enforcement of the judgment was not compelled by reason of the due
faith and credit clause of the Constitution.
Indeed, the argument by which it is sought to take this case out
of the rule laid down in the cases just referred to, and which was
applied to decrees of divorce in the
Bell and
Streitwolf cases, practically invokes the overruling of
those cases, and in effect also the overthrow of the decision in
the
Atherton case, since in reason it but insists that the
rule announced in
Page 188 U. S. 40
those cases should not be applied merely because of a
distinction without a difference.
This is demonstrated as to
Thompson v. Whitman and
Wisconsin v. Pelican Insurance Co. by the considerations
already adverted to. It becomes clear also that such is the result
of the argument as to
Bell v. Bell and
Streitwolf v.
Streitwolf, when it is considered that in both those cases it
was conceded
arguendo that the power to decree the divorce
in
ex parte proceedings by substituted service would have
obtained if there had been
bona fide domicil. The rulings
made in the case referred to, hence, rested not at all upon the
fact that the proceedings were
ex parte, but on the
premise that, there being no domicil, there could be no
jurisdiction. True it is that in
Bell v. Bell and
Streitwolf v. Streitwolf the question was reserved whether
jurisdiction to render a divorce having extraterritorial effect
could be acquired by a mere domicil in the state of the party
plaintiff, where there had been no matrimonial domicil in such
state -- a question also reserved here. But the fact that this
question was reserved does not effect the issue now involved, since
those cases proceeded, as does this, upon the hypothesis conceded
arguendo that if there had been domicil, there would have
been jurisdiction, whether the proceedings were
ex parte
or not, and therefore the ruling on both cases was that at least
domicil was, in any event, the inherent element upon which the
jurisdiction must rest, whether the proceedings were
ex
parte or inter partes. And these conclusions are rendered
certain when the decision in
Atherton v. Atherton is taken
into view, for there, although the proceeding was
ex
parte, as it was found that
bona fide domicil, both
personal and matrimonial, existed in Kentucky, jurisdiction over
the subject matter was held to obtain, and the duty to enforce the
decree of divorce was consequently declared. Nor is there force in
the suggestion that because in the case before us the wife
appeared, hence the South Dakota court had jurisdiction to decree
the divorce. The contention stated must rest on the premise that
the authority of the court depended on the appearance of the
parties, and not on its jurisdiction over the subject matter --
that is,
bona fide domicil, irrespective of the
Page 188 U. S. 41
appearance of the parties. Here again the argument, if
sustained, would involve the overruling of
Bell v. Bell
and
Streitwolf v. Streitwolf. As in each of the cases
jurisdiction was conferred, as far as it could be given, by the
appearance of the plaintiff who brought the suit, it follows that
the decision that there was no jurisdiction because of the want of
bona fide domicil was a ruling that, in its absence, there
could be no jurisdiction over the subject matter, irrespective of
the appearance of the party by whom the suit was brought. But it is
obvious that the inadequacy of the appearance or consent of one
person to confer jurisdiction over a subject matter not resting on
consent includes necessarily the want of power of both parties to
endow the court with jurisdiction over a subject matter which
appearance or consent could not give. Indeed, the argument but
ignores the nature of the marriage contract and the legislative
control over its dissolution which was pointed out at the outset.
The principle dominating the subject is that the marriage relation
is so interwoven with public policy that the consent of the parties
is impotent to dissolve it contrary to the law of the domicil. The
proposition relied upon, if maintained, would involve this
contradiction in terms: that marriage may not be dissolved by the
consent of the parties, but that they can, by their consent,
accomplish the dissolution of the marriage tie by appearing in a
court foreign to their domicil and wholly wanting in jurisdiction,
and may subsequently compel the courts of the domicil to give
effect to such judgment despite the prohibitions of the law of the
domicil and the rule of public policy by which it is enforced.
Although it is not essential to the question before us, which
calls upon us only to determine whether the decree of divorce
rendered in South Dakota was entitled to extraterritorial effect,
we observe, in passing, that the statute of South Dakota made
domicil, and not mere residence, the basis of divorce proceedings
in that state. As, without reference to the statute of South Dakota
and in any event, domicil in that state was essential to give
jurisdiction to the courts of such state to render a decree of
divorce which would have extraterritorial effect, and as the
appearance of one or both of the parties to a divorce
proceeding
Page 188 U. S. 42
could not suffice to confer jurisdiction over the subject matter
where it was wanting because of the absence of domicil within the
state, we conclude that no violation of the due faith and credit
clause of the Constitution of the United States arose from the
action of the Supreme Judicial Court of Massachusetts in obeying
the command of the state statute and refusing to give effect to the
decree of divorce in question.
Affirmed.
MR. JUSTICE BREWER, MR. JUSTICE SHIRAS, and MR. JUSTICE PECKHAM
dissent.
MR. JUSTICE HOLMES, not being a member of the Court when the
case was argued, takes no part.