This Court disclaims altogether any jurisdiction in the courts
of the United States upon the subject of divorce or for the
allowance of alimony, either as an original proceeding in chancery
or as an incident to a divorce
a vinculo or to one from
bed and board.
But where a court of competent jurisdiction in New York decreed
a divorce
a mensa et thoro between man and wife, allowing
alimony to the latter, and the husband removed to Wisconsin for the
purpose of placing himself beyond the jurisdiction of the court
which could enforce it, without having paid any part
of the alimony, or leaving any estate of any kind out of which
it could be paid, the wife can sue by her next friend in a court of
the United States, having equity jurisdiction, to recover the
amount of alimony decreed by the state court.
A divorce
a vinculo, obtained in Wisconsin without a
disclosure of the circumstances of the divorce case in New York and
upon the allegation by the husband that the wife had willfully
abandoned him, cannot release the husband there and everywhere else
from his liability to the decree made against him in New York upon
that decree's being carried into judgment in a court of another
state of this Union or in a court of the United States where the
defendant may be found or where he may have acquired a new domicile
differing from that which he had in New York when the decree was
made there against him.
The cases in England and in the United States examined in which
a wife may sue her husband by her next friend.
A court of chancery in England will interfere to compel the
payment of alimony which has been decreed to a wife by the
ecclesiastical court, and the principal reason for its exercise is
equally applicable to courts of equity in the United States. The
parties to a cause for a divorce and for alimony are as much bound
by a decree for both, which has been given by one of our state
courts
Page 62 U. S. 583
having jurisdiction of the subject matter and over the parties
as the same parties would be if the decree had been given by the
ecclesiastical court of England.
This Court has heretofore decided and now reaffirms that in
order to bar the jurisdiction of the courts of the United States in
equity, the remedy at law must be as practical and efficacious to
the ends of justice and its prompt administration as the remedy in
equity, and it is no objection to such equity jurisdiction that
there is a remedy under the local law.
After the divorce
a mensa et thoro in New York, and the
removal of the husband to Wisconsin, the domicile of the wife did
not follow that of the husband, but remained unchanged in New York.
The jurisdiction of the United States court therefore attached as
it respected the different citizenship of the parties.
The American and English authorities upon this point
examined.
A wife under a judicial sentence of separation from bed and
board is entitled to make a domicile for herself different from
that o� her husband; and she may, by her next friend, sue her
husband for alimony which he had been decreed to pay as an incident
to such divorce, or when it has been given after such a decree by a
supplemental bill.
The equity side of the court was the appropriate tribunal before
which she was to sue, and the district court of the United States
in the State of Wisconsin had jurisdiction over the case.
The facts in the case are stated in the opinion of the
Court.
MR. JUSTICE WAYNE delivered the opinion of the Court.
We regard this as a suit for a wife brought on the equity side
of the District Court of the United States for the District of
Wisconsin, by her next friend, George Cronkhite, a citizen of the
State of New York, against Hiram Barber, a citizen of the State of
Wisconsin, to give the same validity to a judgment
Page 62 U. S. 584
in that state which it has in the State of New York against the
defendant for the payment of alimony to his wife, who has been
divorced from him
a mensa et thoro, with an allowance of
alimony by a court, which had, when the decree was made,
jurisdiction over the parties and the subject matter.
We shall not have occasion to comment upon the relations of
husband and wife in her uninterrupted coverture, nor will we
discuss the general rights, obligations, or disabilities of either
when they have been separated by a divorce
a mensa et
thoro.
Our first remark is -- and we wish it to be remembered -- that
this is not a suit asking the court for the allowance of alimony.
That has been done by a court of competent jurisdiction. The court
in Wisconsin was asked to interfere to prevent that decree from
being defeated by fraud.
We disclaim altogether any jurisdiction in the courts of the
United States upon the subject of divorce or for the allowance of
alimony, either as an original proceeding in chancery or as an
incident to divorce
a vinculo or to one from bed and
board.
The record raises these inquiries: whether a wife divorced
a
mensa et thoro can acquire another domiciliation in a state of
this Union different from that of her husband, to entitle her, by
her next friend, to sue him in a court of the United States having
equity jurisdiction to recover from him alimony due, and which he
refuses to make any arrangement to pay, and whether a court of
equity is not a proper tribunal for a remedy in such a case.
We will first direct our attention to the circumstances of the
case, and will give them from the bill and answer, and from the
testimony in the record.
Hiram Barber and Huldah Adeline Barber were married in the State
of New York in the year 1840, where his domicile then was, and
continued to be until he left it for Wisconsin, which was soon
after a decree had been given for a divorce
a mensa et
thoro between them, with an allowance of alimony to be paid by
him. Her application for such a divorce was made by Cronkhite, her
next friend, in the Court of Chancery for
Page 62 U. S. 585
the Fourth District of the State of New York, that court having
jurisdiction of the subject matter and over the parties.
The defendant appeared and resisted the application. The cause
was heard on the pleadings and proofs. It resulted in a declaration
by the chancellor that the defendant had been guilty of cruel and
inhuman treatment of his wife, and of such conduct towards her as
to render it unsafe and improper for her to cohabit with him, and
that he had abandoned, neglected, and refused to provide for her.
And it therefore decreed that the complainant and defendant be
separated from bed and board forever, provided, however, that they
might at any time thereafter, by their joint petition, apply to the
court to have the decree modified or discharged, and that neither
of the said parties shall be at liberty to marry any other person
during the lifetime of the other party. The court then referred the
cause to a master to ascertain and report what should be allowed
and to be paid by the defendant or out of his estate to Mrs. Barber
for her suitable support and maintenance. In pursuance of this
decretal order and reference, the master made a report. The
defendant filed exceptions to it. The cause was regularly brought
to a hearing upon the defendant's exceptions. They were overruled
and a final decree was made in the cause. The language of the
decree is that the exceptions are overruled and that the report of
the master is absolutely confirmed. That for the suitable support
and maintenance of Mrs. Barber there should be allowed and paid to
her by the defendant or out of his estate, in quarterly
installments, the annual sum of three hundred and sixty dollars in
each and every year, and that as it appeared he had not given to
her any support in the interval between the filing of the bill in
her behalf and the rendition of the decree, that the defendant
should pay to her three hundred and sixty dollars a year in
quarterly payments from the 1st day of July, 1844, that being the
day when the bill was filed, and it was decreed that the sum of
nine hundred and sixty dollars, being the alimony retrospectively
due, should be paid forthwith by the defendant, and that the
complainant should have execution therefor. It was further ordered
that the permanent alimony allowed and to become due after the
Page 62 U. S. 586
1st of March, 1847, to which day alimony is above computed,
should be paid by the defendant in quarterly payments on the 1st
days of March, June, September, and December, in each year during
the life of Mrs. Barber, and in case of its not being so paid, that
the quarterly payments should bear interest as they respectively
became due, and that execution might issue therefor
toties
quoties. The court then decreed that the permanent alimony
allowed to Mrs. Barber was vested in her for her own and separate
use, and as her own and separate estate, with full power to invest
the same in a trustee or trustees, as she might think proper to
appoint, with the power to dispose of the same by will or
otherwise, from time to time during her life or at her death, or
either, as she may think proper, free from any control, claim, or
interposition of the defendant. The said decree, with a taxed bill
of costs in the suit, was signed and enrolled according to the form
of the statute in such cases made and provided in the State of New
York.
It is upon a transcript of all the papers in that suit,
authenticated as the law requires it to be done, that the suit now
before us was brought in the District Court of the United States
for the District of Wisconsin.
The complainants aver in their bill that they are citizens of
the State of New York, and that the defendant is a citizen of the
State of Wisconsin. They then set out the proceedings of the court
in New York divorcing Mr. and Mrs. Barber from bed and board, with
especial reference to the decree and the entire record of that
suit, charging the defendant with not having paid any part of the
alimony adjudged to Mrs. Barber, and that there was then due to her
on that account the sum of four thousand two hundred and forty-two
dollars and fifteen cents, with interest at seven percent, that
being the legal rate in the State of New York. The rest of the bill
it is not necessary to state more particularly than that it is a
recital of a suit which had been brought upon the common law side
of the District Court of the United States for the County of
Milwaukee, in the Territory of Wisconsin, for the amount of alimony
due by the defendant, to the declaration in which he filed a
demurrer, upon which a judgment was rendered in
Page 62 U. S. 587
his favor, which was afterwards affirmed in the supreme court of
the state for the reason that the remedy for the recovery of
alimony was in a court of chancery, and not at law. To this bill
also the defendant demurred on account of the case's not being
within the ordinary jurisdiction of a court of chancery, that the
relief sought could only be had in the court of chancery in the
State of New York, and that it did not appear that the complainants
had exhausted the remedy which they had in New York. This demurrer
was overruled, and the defendant was ordered to answer. He did so.
He admits in his answer the legality and locality of his marriage
with Mrs. Barber; the jurisdiction of the court in the divorce
case; that a divorce had been decreed between them from bed and
board after contestation; and that by that decree he was subjected
to the payment of alimony to the extent and in the way it is
claimed in the bill he was then answering. He admits that he left
the State of New York without having paid any part of it or having
made any arrangement to do so, alleging, however, that he had left
real estate in New York upon which no proceedings had been taken to
make it liable to the decree against him for alimony. And he then
goes on to state that on the 19th day of April, 1852, he had filed
his bill in the Circuit Court of the County of Dodge, in the State
of Wisconsin, against Mrs. Barber, she then being his wife, to
obtain a dissolution of the marriage contract between them, and
that their marriage had been dissolved by a decree of that court,
which is on record in the same. And he adds that his wife by that
decree became a
feme sole, and being so, she could not sue
by her next friend, and that her remedy was in a court of law. To
this answer a general replication was filed. The cause was carried
to a hearing upon the pleadings and proofs, and a decree was made
adjudging that five thousand nine hundred and thirty-six dollars
and eighty cents is due from the defendant upon the alimony sued
for, for principal and interest to and prior to the time of filing
the bill in this cause, and that the defendant should pay it for
the sole and separate support and maintenance of Mrs. Barber,
together with the costs, to be taxed within ten days, and in
default thereof that execution should issue for the same.
Page 62 U. S. 588
It appears from the testimony in the cause that the defendant
left the State of New York in a short time after the decree for the
divorce and for alimony had been rendered for the purpose of
placing himself beyond the jurisdiction of the court which could
enforce it, without having paid any part of the alimony due or
leaving any estate of any kind out of which it could be paid, for
he gave no proof of any kind that he had real estate in the State
of New York in support of that allegation in his answer.
It also appears from the record that the defendant had made his
application to the court in Wisconsin for a divorce
a
vinculo from Mrs. Barber, without having disclosed to that
court any of the circumstances of the divorce case in New York, and
that, contrary to the truth verified by that record, he asks for
the divorce on account of his wife's having willfully abandoned
him. It is not necessary for us to pass any opinion upon the
legality of the decree or upon its operation there or elsewhere to
dissolve the
vinculum of the marriage between the
defendant and Mrs. Barber. It certainly has no effect to release
the defendant there and everywhere else from his liability to the
decree made against him in the State of New York, upon that
decree's being carried into judgment in a court of another state of
this Union or in a court of the United States where the defendant
may be found, or where he may have acquired a new domicile
different from that which he had in New York when the decree was
made there against him.
The questions made by the bill and the answer, and by the
arguments of counsel, we will state in the form of an inquiry. They
are as follows: whether a wife divorced
a mensa et thoro
may not have a domicilciation in a state of this Union different
from that of her husband in another state to enable her to sue him
there by her next friend in equity in a court of the United States
to carry into judgment a decree which has been made against him for
alimony by a court having jurisdiction of the parties and the
subject matter of divorce?
In the consideration of these questions, we must not allow
ourselves to be misled by the general rule which prevails in
England that a suit cannot be maintained at law by a
feme
Page 62 U. S. 589
covert, and that notwithstanding a divorce
a mensa
et thoro, a wife cannot sue or be sued in a court of law, for
in England she may in several cases maintain a suit in her own name
as a
feme sole both at law and in equity. They are
exceptions to the general rule, or privileged cases under certain
circumstances where it cannot be presumed, from his own acts, that
the husband's control of his wife is continued and where she has
been deprived of his protection to represent with her her rights
and interests in a suit at law or in one in equity. The cases
mentioned in the books where a
feme covert may sue as a
feme sole are when her husband is banished, or has abjured
the realm, or has been transported for felony; where the husband is
an alien enemy, and his wife is domiciled in the realm; where the
husband is an alien domiciled abroad, and has never been in the
realm; or where he has voluntarily abandoned her, and is under a
disability to return; so where the husband has deserted the wife in
a foreign country, and she goes to England and maintains herself as
a
feme sole; where the husband, in a foreign state,
compels his wife to leave him for another political jurisdiction,
and she maintains herself there as a
feme sole.
Cases have been decided in Massachusetts in conformity with the
English cases. There are cases in England which have gone much
further, but we do not cite them, preferring only to mention such
instances as have not been questioned by subsequent cases in
England or in the United States.
See Story's Equity
Pleading 6th edition, sec. 61, 59, 60, and the cases cited in the
notes
Except in such cases, a
feme covert cannot sue at law
unless it be jointly with her husband, for she is deemed to be
under the protection of her husband, and a suit respecting her
rights must be with the assent and cooperation of her husband.
Mitf. equity Pl., by Jeremy, 28; Edwards on Parties in equity, 144,
153; Calvert on Parties, ch. 3, sec. 21, 265, 274; 6 How
In the case of
Burr v. Heath,
6 How. 228, this Court said, without any reference to the law of
Louisiana:
"That the general rule was, when the wife complains of her
husband and asks relief against him, she must use the name
Page 62 U. S. 590
of some other person in prosecuting the suit; but where the acts
of the husband are not complained of, he would seem to be the most
suitable person to unite with her in the suit. This is a matter of
practice within the discretion of the court. It is sanctioned in
Story's equity Pleading and by Fonblanque. The modern practice in
England has adopted a different course by uniting the name of the
wife with a person other than her husband, in certain cases."
There are also exceptions in equity which are wholly unknown at
law. Thus, if a married woman claims some right in opposition to
the rights claimed by the husband and it becomes proper to
vindicate her rights against her husband, she cannot maintain a
suit against him at law, but in equity she may do so, and against
all others who may be proper or necessary parties. But it must be
done under the protection of some other person who acts as her next
friend, and the bill is accordingly exhibited in her name by such
next friend. Story's Equity Pl., 6th ed., sec. 61, 61. It is also
said, in the same work, to be our constant experience that the
husband may sue the wife, or the wife the husband, in equity
notwithstanding neither of them can sue the other at law.
Cannel v. Buckle, 2 P.Will. 243, 244;
Ex Parte
Strangeways, 3 Ark. 478; Fonblanque Eq., B. 1, ch. 2, sec. 6,
note N;
Brooks v. Brooks, Pre.Ch. 24; Mitford Pl., by
Jeremy 28. These citations have been made to show the large
jurisdiction which a court of equity has to secure the rights of
married women, when it may be necessary to exert it with the
assistance of the husband or when he improperly interferes with
them, so as to make it necessary for the wife to defend herself
against his unwarranted claims to her property. The result of that
jurisdiction now is that the wife may in all such instances sue her
husband by her next friend.
There is, too, another ground of jurisdiction in equity just as
certainly established as that is of which we have just spoken. It
comprehends the case before us. It is that courts of equity will
interfere to compel the payment of alimony which has been decreed
to a wife by the ecclesiastical court in England. Such a
jurisdiction is ancient there, and the principal reason
Page 62 U. S. 591
for its exercise is equally applicable to the courts of equity
in the United States. It is that when a court of competent
jurisdiction over the subject matter and the parties decrees a
divorce, and alimony to the wife as its incident, and is unable of
itself to enforce the decree summarily upon the husband, that
courts of equity will interfere to prevent the decree from being
defeated by fraud. The interference, however, is limited to cases
in which alimony has been decreed -- then only to the extent of
what is due, and always to cases in which no appeal is pending from
the decree for the divorce or for alimony.
Shaftoe v.
Shaftoe, 7 Vesey 171;
Dawson v. Dawson, 7 Ves. 173;
Haffey v. Haffey, 14 Ves. 261;
Angier v. Angier,
Pre.Ch. 497; Cooper's Eq.P. ch. 3, 149, 150;
Coglan v.
Coglan, 1 Ves. 194;
Street v. Street, 1 Turn. &
Tapel 322
The parties to a cause for a divorce and for alimony are as much
bound by a decree for both, which has been given by one of our
state courts having jurisdiction of the subject matter and over the
parties, as the same parties would be if the decree had been given
in the ecclesiastical court of England. The decree in both is a
judgment of record, and will be received as such by other courts.
And such a judgment or decree, rendered in any state of the United
States, the court having jurisdiction, will be carried into
judgment in any other state, to have there the same binding force
that it has in the state in which it was originally given. For such
a purpose, both the equity courts of the United States and the same
courts of the states have jurisdiction.
We observe in confirmation of what has just been said that the
jurisdiction of the courts of the United States is derived from the
Constitution and from legislation in conformity with it. The first
limitation by the latter upon the jurisdiction of the equity courts
of the United States is that no suit can be sustained in them where
a plain, adequate, and complete remedy may be had at law. The Court
has said:
"It is not enough that there is a remedy at law; it must be
plain and adequate, or, in other words, as practical and
efficacious to the ends of justice, and its prompt administration,
as the remedy in equity.
Boyce's Ex'x v. Grundy, 3
Pet. 210;
United States v.
Rowland,
Page 62 U. S. 592
4 Wheat. 108;
Osborn v. United States
Bank, 9 Wheat. 841,
22 U. S.
842. It is no objection to equity jurisdiction in the
courts of the United States that there is a remedy under the local
law, for the equity jurisdiction of the federal courts is the same
in all of the states, and is not affected by the existence or
nonexistence of an equity jurisdiction in the state tribunals. It
is the same in nature and extent as the jurisdiction of England,
whence it is derived."
Livingston v.
Story, 9 Pet. 632. Such a suit for the enforcement
of a decree for alimony as that before us is not an exception
unless the court has not jurisdiction over the parties and the
amount be not such as is required to bring it into this Court by
appeal.
We proceed to show that it has jurisdiction. The Constitution
requires, to give the courts of the United States jurisdiction,
that the litigants to a suit should "be citizens of different
states." The objection in this case is that the complainant does
not stand in that relation to her husband, the defendant -- in
other words, it is a denial of a wife's right, who has been
divorced
a mensa et thoro, to acquire for herself a
domiciliation in a state of this Union different from that of her
husband in another state, to entitle her to sue him there by her
next friend, in a court of the United States having equity
jurisdiction, to recover from him alimony which he has been
adjudged to pay to her by a court which had jurisdiction over the
parties and the subject matter of divorce where the decree was
rendered.
We have already shown by many authorities that courts of equity
have a jurisdiction to interfere to enforce a decree for alimony,
and by cases decided by this Court; that the jurisdiction of the
courts of equity of the United States is the same as that of
England, whence it is derived. On that score, alone, the
jurisdiction of the court in the case before us cannot be
successfully denied.
But it was urged by the learned counsel who argued this cause
for the defendant, that husband and wife, although allowed to live
separately under a decree of separation
a mensa et thoro,
made by a state court having competent jurisdiction, are still so
far one person, while the married relation continues
Page 62 U. S. 593
to exist, that they cannot become at the same time citizens of
different states within the meaning of the federal Constitution,
and therefore the court below had no jurisdiction. It was also
said, for the purpose of bringing suits for divorces, they may
acquire separate residences in fact, but this is an exception
founded in necessity only, and that the legal domicile of the wife,
until the marriage be dissolved, is the domicile of the husband,
and is changed with a change of his domicile.
Such, however, and not the views which have been taken in Europe
generally, by its jurists, of the domicile of a wife divorced
a
mensa et thoro. They are contrary, too, to the generally
received doctrine in England and the United States upon the
point.
In England it has been decided that where the husband and wife
are living apart under a judicial sentence of separation, that the
domicile of the husband is not the domicile of the wife. 9
Eng.L.& E. 598; 2 Eq.P. 545. When Mr. Philemore wrote his
treatise upon the law of domicile, he said he was not aware of any
decided case upon the question of the domicile of a wife divorced
a mensa et thoro, but there can be little doubt that in
England, as in France, it would not be that of her husband, but the
one chosen for herself after the divorce. In support of his
opinion, he cites Pothier's Introd. aux Coutume 4; Mercadie in his
Commentary upon the French Code, vol. 1, 287; the French Code, tit.
111, art. 108; the Code Civile of Sardinia, and Cocher's Argument
in the
Duchess of Holsten's Case, Ouvres, 1, 2, 223.
Mr. Bishop, in his Commentaries on the law of Marriage and
Divorce, has a passage so appropriate to the point we are
discussing that we will extract it entire. It is of the more value,
too, because it comprehends the opinions entertained by eminent
American jurists and judges in respect to the domicile of a wife
divorced
a mensa et thoro. He says, in discussing the
jurisdiction of courts where parties sought a divorce abroad for
causes which would have been insufficient at home, that
"It was necessary to settle a preliminary question -- namely
whether for the purpose of a divorce suit, the husband and wife can
have separate domiciles; that the general doctrine is familiar
that
Page 62 U. S. 594
the domicile of the wife is that of the husband. But it will
probably be found on examination that the doctrine rests upon the
legal duty of the wife to follow and dwell with the husband
wherever he goes."
"If he commits an offense which entitles her to have the
marriage dissolved, she is not only discharged thereby immediately,
and without a judicial determination of the question, from her duty
to follow and dwell with him, but she must abandon him or the
cohabitation will amount to a condonation, and bar her claim to the
remedy. In other words, she must establish a domicile of her own,
separate from her husband, though it may be, or not, in the same
judicial locality as his. Courts, however, may decline to recognize
such domicile in a collateral proceeding -- that is, a proceeding
other than a suit for a divorce. But where the wife is plaintiff in
a divorce suit, it is the burden of her application that she is
entitled, through the misconduct of her husband, to a separate
domicile. So
when parties are already living under a judicial
separation, the domicile of the wife does not follow that of the
husband."
Section 728.
Chief justice Shaw says, in
Harlean v. Harlean, 14 Peck
181, 185, the law will recognize a wife as having a separate
existence and separate interests and separate rights in those cases
where the express object of all proceedings is to show that the
relation itself ought to be dissolved
or so modified as to
establish separate interests, and especially a separate domicile
and home. Otherwise the parties in this respect would stand upon a
very unequal footing, it being in the power of the husband to
change his domicile at will, but not in that of the wife.
The cases which were cited against the right of a wife, divorced
from bed and board, to choose for herself a domicile, do not apply.
Donegal v. Donegal, in 1 Addam's Ecclesiastical 8, 19.
That of
Shachell v. Shachell, cited in
Whitcomb v.
Whitcomb, 9 Curtteis Ecclesiastical 352, are decisions upon
the domicile of the wife, when living apart from her husband by
their mutual agreement, but not under decrees divorcing
the wife from the bed and board of the husband. The leading case
under the same circumstances is that
Page 62 U. S. 595
of
Warrender v. Warrender, 9 Bligh. 103, 104. In that
case, Lord Brougham makes the fact that the husband and wife were
living apart by agreement, and not by a sentence of divorce, the
foundation of the judgment. The general rule is that a voluntary
separation will not give to the wife a different domiciliation in
law from that of her husband. But if the husband, as is the fact in
this case, abandons their domicile and his wife to get rid of all
those conjugal obligations which the marriage relation imposes upon
him, neither giving to her the necessaries nor the comforts
suitable to their condition and his fortune, and relinquishes
altogether his marital control and protection, he yields up that
power and authority over her which alone makes his domicile hers,
and places her in a situation to sue him for a divorce
a mensa
et thoro, and to ask the court having jurisdiction of her suit
to allow her from her husband's means, by way of alimony, a
suitable maintenance and support. When that has been done, it
becomes a judicial debt of record against the husband which may be
enforced by execution or attachment against his person issuing from
the court which gave the decree, and when that cannot be done on
account of the husband's having left or fled from that jurisdiction
to another where the process of that court cannot reach him, the
wife, by her next friend, may sue him wherever he may be found or
where he shall have acquired a new domicile for the purpose of
recovering the alimony due to her or to
carry the decree into a
judgment there with the same effect that it has in the state in
which the decree was given. Alimony decreed to a wife in a
divorce of separation from bed and board is as much a debt of
record, until the decree has been recalled, as any other judgment
for money is. When it is not paid, the wife can sue her husband for
it in a court of equity as an incident of that condition which gave
to her the right to sue him, by her next friend, for a divorce.
It was decided in the State of Massachusetts as early as the
year 1800 that there were circumstances under which it appears to
be absolutely necessary for the wife to sue as
for the recovery
of alimony. That case was the same in its circumstances as
this with which we are dealing. The wife libeled
Page 62 U. S. 596
for a divorce
a mensa et thoro, on account of the
extreme cruelty of her husband. The divorce was decreed, and the
husband was ordered to pay to her alimony in quarterly
installments. The wife afterwards brought an action against him for
arrears. He demurred to the declaration, and judgment was given for
her.
Wheeler v. Wheeler, 2 Dana H. 310.
The same has been held in other cases in that state. It is now
established doctrine there and in some of our other states. They
hold that a decree for a divorce, with an allowance for alimony, is
as much a judgment as if it had been obtained on the common law
side of the court.
Rogers, Justice, in
Clark v. Clark, 6 Watts & S.,
places the right to recover arrears of alimony on the ground that
the husband, after the decree for a divorce was rendered, had
withdrawn himself from the jurisdiction of the court, to prevent
him from being forced by attachment to pay the alimony which had
been decreed to the wife.
In the State of New York, a wife may file a bill against her
husband for alimony, and it appearing that he had abandoned her
without any support, and threatened to leave the state, the court,
on the wife's petition, granted a writ of
ne exeat res
publica against him.
Denton v. Denton, 1 J.C. 2,
364
In South Carolina, where the court, having no power to grant
divorces, decreed to a wife alimony, on her bill praying for that
remedy only, and ordered the husband to give security for its
payment, the sheriff, having taken him into custody, suffered him
to escape; it was held that the wife might maintain, by her next
friend, an action at law against the sheriff for the escape. Smith,
Justice, said:
"It had been urged in the argument that this woman, being a
feme covert, could not maintain the action by her next
friend. If that argument were to prevail, there would be a failure
of justice, which our law abhors, as there would be no means of
enforcing a decree of a wife against her husband for alimony. The
court of equity could order a refractory husband to be attached,
and the sheriff would let him go, if he thought proper; then, if
the wife could not sue by her next friend, who could? The law
provides no other course. And upon this occasion I would adopt the
course
Page 62 U. S. 597
of a very learned judge, 'if there is no precedent, I will make
one.'"
In Ohio, a wife divorced
a mensa et thoro may maintain
ejectment for a lot of land the use of which was allowed to her as
alimony. In Virginia it was said, in
Purcell v. Purcell, 4
Hen. & Mansf. 507, that the court of chancery has jurisdiction
in all cases of alimony. In Maryland, the high court of chancery,
from the earliest colonial times, exercised the jurisdiction to
decree alimony, but not to grant divorces.
This was done under the belief that it belonged to the high
court of chancery in the absence of ecclesiastical tribunals, and
in 1777 an act of assembly provided that the chancellor shall and
may hear and determine all causes for alimony in as full and ample
a manner as such causes could be heard and determined by the laws
of England in the ecclesiastical courts there.
Under that statute, alimony is granted to the wife whenever the
English courts would be authorized to render a divorce from bed and
board, but the court has no power to extend the remedy and decree a
divorce also.
The inherent jurisdiction of a court of equity to decree alimony
has also been acknowledged in Alabama. In North Carolina, bills of
equity by the wife against the husband praying alimony were
sustained from an early day without question as to the lawfulness
of the jurisdiction.
Where such a decree has been made, whether done as an inherent
power in equity to grant a decree for alimony or as an auxiliary to
enforce the payment of it as an incident of a divorce
a mensa
et thoro, there are no decisions, either in the English or
American books, denying the wife's right to sue her husband for
arrears of alimony due by her next friend.
In some of the states she may do so without the intervention of
her next friend, but she cannot do that, as has been said before,
in the courts of the United States having equity jurisdiction.
We think also that the cases which have been cited in this
opinion are sufficient to show, whatever may have been the doubts
in an earlier day, that a wife under a judicial sentence
Page 62 U. S. 598
of separation from bed and board is entitled to make a domicile
for herself, different from that of her husband, and that she may
by her next friend sue her husband for alimony, which he had been
decreed to pay as an incident to such divorce, or when it has been
given after such a decree by a supplemental bill. In our best
reflections we have been unable to come to a different result. The
privileges allowed to a wife under such circumstances rest upon the
facts that the separation is only grantable
propter
saevitiam; that the alimony commonly allowed is no more than
enough to give her a home and a scanty maintenance, almost always
necessarily short of that from which her husband has driven her,
and that, as a consequence, she should be permitted to change her
domicile where she may live upon her narrow allowance with most
comfort and the least mortification. Her right to sue her husband
by her next friend for alimony already decreed rests upon higher
considerations, or upon legal principles which have been so well
expressed by Chief justice Shaw, as to her right to sue in the
State of Massachusetts, that we will use his language, deeming it
to be applicable in any other state in the American Union:
"After such a divorce, the law of this Commonwealth recognizes
her right to acquire and hold property, to take her own earnings to
her own use, for the maintenance of herself and her children. She
is deprived of the protection, and exempted from the control, of
her husband. She may by the decree of the court granting the
divorce, and pursuant to the provision of the statute law of the
Commonwealth, be charged with the custody, and consequently with
the support and maintenance, of the children of the marriage. The
reason, therefore, why a wife cannot sue or be sued without joining
or being joined with her husband, does not exist. The relation in
which the divorce
a mensa et thoro places the parties
opposes a joinder. If it were necessary to join the husband as
plaintiff, he might release her rights, by which she would be
subjected to costs; if he might be joined as defendant, he might be
made subject to her debts -- both of which consequences are
repugnant to the true relation of divided and separate interests in
which the law by such a decree places them. Whilst the law thus
recognizes
Page 62 U. S. 599
the right of a woman so divorced to acquire and take the
proceeds of her industry to her own use, it recognizes her power to
make contracts, and if she could not sue and be sued, it would
present the anomalous case in which the law recognizes a right
without affording a remedy for vindicating it, and subjects a party
to a duty without lending its aid to enforce it."
We do not deem it necessary to show, further than it has already
been done in this opinion, that the equity side of the court was
the appropriate tribunal for this cause. We have, however, verified
the correctness and applicability of several of the cases cited in
his argument by the counsel of the complainant to sustain that
point, and deem them decisive.
The only point remaining for our determination is that which
questions the complainant's right to pursue her remedy in the
equity side of the District Court of the United States in the State
of Wisconsin.
The facts are that she married the defendant in the State of New
York, the state then of her husband's domicile; that they lived
there until the decree of separation was made; that she has
retained it ever since as her domicile, but that the defendant,
after the decree of separation was given, left her domicile in New
York for another in the State of Wisconsin, in which he says that
he has acquired a domicile. The complainant comes into court in the
character of citizen of the State of New York. Mrs. Barber is
recognized to be such by the laws of that state, and her status as
a divorced woman
a mensa et thoro by a court of competent
jurisdiction in New York, and the rights of citizenship which she
has under it there, are decisive of her right to sue in the courts
of the United States, as that has been done in this instance. The
citizenship of the defendant is admitted and claimed by him to be
in the State of Wisconsin. His voluntary change of domicile from
New York to Wisconsin makes him suable there. That might have been
done in a state court in equity, as well as in the district court
of the United States, but she had a right to pursue her remedy in
either. She has chosen to do so in a court of the United States
which has jurisdiction over the subject matter of her claim to the
same extent that a court of equity of a state has, and we think
that the
Page 62 U. S. 600
court below has not committed error in sustaining its
jurisdiction over this cause nor in the decree which it has
made.
We affirm the decree of that court, and direct a mandate to
be issued accordingly.
MR. CHIEF JUSTICE TANEY, MR. JUSTICE DANIEL, and MR. JUSTICE
CAMPBELL, dissented.
MR. JUSTICE DANIEL:
From several considerations which to me appear essentially
important, I am constrained to differ in opinion with the majority
of the Court in this case.
1. With respect to the authority of the courts of the United
States to adjudicate upon a controversy and between parties such as
are presented by the record before us. Those courts, by the
Constitution and laws of the United States, are invested with
jurisdiction in controversies between citizens of different states.
In the exercise of this jurisdiction, we are forced to inquire,
from the facts disclosed in the cause, whether during the existence
of the marriage relation between these parties the husband and wife
can be regarded as citizens of different states. Whether, indeed,
by any regular legal deduction consistent with that relation, the
wife can, as to her civil or political status, be regarded as a
citizen or person.
By Coke and Blackstone it is said:
"That by marriage, the husband and wife become one person in law
-- that is, the very being or legal existence of the woman is
suspended during the marriage, or at least is incorporated or
consolidated into that of the husband, under whose wing and
protection she performs everything. Upon this principle of union in
husband and wife depend almost all the rights, duties, and
disabilities that either of them acquire by the marriage. For this
reason, a man cannot grant anything to his wife nor enter into a
covenant with her, for the grant would be to suppose her separate
existence, and to covenant with her would be only to covenant with
himself, and therefore it is generally true that all compacts made
between husband and wife, when single, are voided by the
intermarriage."
Co.Lit., 112; Bla.Com., vol.
Page 62 U. S. 601
1, 442. So too, Chancellor Kent, vol. 2, 128:
"The legal effects of marriage are generally deducible from the
principle of the common law by which the husband and wife are
regarded as one person, and her legal existence and authority in a
degree lost and suspended during the existence of the matrimonial
union."
Such being the undoubted law of marriage, how can it be
conceived that pending the existence of this relation the unity it
creates can be reconciled with separate and independent capacities
in that unity, such as belong to beings wholly disconnected, and
each
sui juris? Now the divorce
a mensa et thoro
does not sever the matrimonial tie; on the contrary, it recognizes
and sustains that tie, and the allowance of alimony arises from and
depends upon reciprocal duties and obligations involved in that
connection. The wife can have no claim to alimony but as wife, and
such as arises from the performance of her duties as wife; the
husband sustains no responsibilities save those which flow from his
character and obligations as husband, presupposing the existence
and fulfillment of conjugal obligations on the part of the wife. It
has been suggested that by the regulations of some of the states, a
married woman, after separation, is permitted to choose a residence
in a community or locality different from that in which she resided
anterior to the separation, and different from the residence of the
husband. It is presumed, however, that no regulation, express or
special, can be requisite in order to create such a permission.
This would seem to be implied in the divorce itself, the purpose of
which is that the wife should no longer remain
sub polestate
viri, but should be freed from the control which had been
abused, and should be empowered to select a residence and such
associations as would be promotive of her safety and her comfort.
But whether expressed in the decree for separation, or implied in
the divorce, such a privilege does not destroy the marriage
relation; much less does it remit the parties to the position in
which they stood before marriage, and create or revive antenuptial,
civil, or political rights in the wife. Both parties remain subject
to the obligations and duties of husband and wife. Neither can
marry during the
Page 62 U. S. 602
lifetime of the other, nor do any act whatsoever which is a
wrong upon the conjugal rights and obligations of either. From
these views it seems to me to follow that a married woman cannot,
during the existence of the matrimonial relation, and during the
life of the husband the wife cannot be remitted to the civil or
political position of a
feme sole, and cannot therefore
become a citizen of a state or community different from that of
which her husband is a member.
2. It is not in accordance with the design and operation of a
government having its origin in causes and necessities, political,
general, and external, that it should assume to regulate the
domestic relations of society; should, with a kind of inquisitorial
authority, enter the habitations and even into the chambers and
nurseries of private families, and inquire into and pronounce upon
the morals and habits and affections or antipathies of the members
of every household. If such functions are to be exercised by the
federal tribunals, it is important to inquire by what rule or
system of proceeding, or according to what standard either of
ethics or police, they are to be enforced. Within the range
subjected to the political, general, and uniform control of the
federal Constitution, there are numerous commonwealths, and within
these are ordinances much more numerous and diversified, for the
definition and enforcement of the duties of their respective
members. Now to which of these ordinances, or to which of these
various systems of regulation, will the federal authorities resort
as a source of jurisdiction or as a rule of decision, especially
when it is borne in mind that it is only between members of
different communities, persons legitimately subject to such
separate rules of obligation or policy, that the tribunals of the
federal government have cognizance, when, too, it is recollected
that the federal government is clothed with no power to execute the
laws of the states. The federal tribunals can have no power to
control the duties or the habits of the different members of
private families in their domestic intercourse. This power belongs
exclusively to the particular communities of which those families
form parts, and is essential to the order and to the very existence
of such communities.
Page 62 U. S. 603
It has been suggested, that by the decree for separation
a
mensa et thoro, the husband and wife have become citizens of
different states, and that the allowance to the wife is in the
nature of a debt which, as a citizen of a different state, she may
enforce against the husband in the federal courts. This suggestion,
to my mind, involves two obvious fallacies. The first is the
assumption that by the decree the wife is made a citizen at all, or
a person
sui juris, whilst yet she is wife, still bound by
her conjugal obligations, the faithful observance of which on her
part is the foundation of her claim to maintenance as wife, and
which claim she would forfeit at any time by a violation of these
obligations. Indeed the form of her application is an
acknowledgment that she is not
sui juris, and not released
from her conjugal disabilities and obligations, for she sues by
prochein ami.
The second error in the position before mentioned is shown by
the character and objects of the allowance made as alimony to a
wife. This allowance is not in the nature of an absolute debt. It
is not unconditional, but always dependent upon the personal merits
and conduct of the wife -- merits and conduct which must exist and
continue in order to constitute a valid claim to such an allowance.
This allowance might unquestionably be forfeited upon proof of
criminality or misconduct of the wife, who would not be permitted
to enforce the payment of that to which it should be shown she had
lost all just claim, and this inhibition, it is presumed, might
embrace as well a portion of that allowance at any time in arrears,
as its demand in future. The essential character, then, of this
allowance --
viz., its being always conditional and
dependent, both for its origin and continuation, upon the
circumstances which produced or justified it -- is demonstrative of
the propriety and the necessity of submitting it to the control of
that authority whose province it was to judge of those
circumstances. That authority can exist nowhere but with the power
and the right to control the private and domestic relations of
life. The federal government has no such power; it has no
commission of
censor morum over the several states and
their people.
But irrespective of the disability of the wife as a party, I
Page 62 U. S. 604
hold that the courts of the United States, as courts of
chancery, cannot take cognizance of cases of alimony.
It has been repeatedly ruled by this Court that the jurisdiction
and practice in the courts of the United States in equity are not
to be governed by the practice in the state courts, but that they
are to be apprehended and exercised according to the principles of
equity, as distinguished and defined in that country from which we
derive our knowledge of those principles. Such is the law as
announced in the cases of
Robenson v.
Campbell, 3 Wheat. 212; of
United
States v. Howland, 4 Wheat. 108; of
Boyle v. Zacharie &
Turner, 6 Pet. 648. It is repeated in the cases of
Story v.
Livingston, 13 Pet. 359, and of
Gaines v.
Relf, 15 Pet. 9. Now it is well known that the
Court of Chancery in England does not take cognizance of the
subject of alimony, but that this is one of the subjects within the
cognizance of the ecclesiastical court, within whose peculiar
jurisdiction marriage and divorce are comprised. Of these matters,
the Court of Chancery in England claims no cognizance. Upon
questions of settlement or of contract connected with marriages,
the Court of Chancery will undertake the enforcement of such
contracts, but does not decree alimony as such, and independently
of such contracts.
In Roper on the law of Baron and Feme, vol. 2, 307, it is stated
that Lord Loughborough, in a case in 1 Vesey Jr. 195, is reported
to have said that if a wife applied to the court of chancery upon a
supplicavit for security of the peace against her husband,
and it was necessary that she should live apart as incidental to
that, the chancellor will allow her separate maintenance. That this
passage has been quoted by Sir William Grant in 10 Ves. 397, and
that the same opinion was advanced in the case of
Lambert v.
Lambert, 2 Brown's Parliamentary Cases 26. "But," continues
this writer, "there seems to be no reported instance of such a
jurisdiction, and it would be inconsistent with the object and form
of the writ of
supplicavit," and he concludes with the
position that
"the wife can only obtain a separate maintenance in the
ecclesiastical courts where alimony is decreed to be paid during
the pendency of any suit between husband and wife, and after
its
Page 62 U. S. 605
termination, if it ends in a sentence of separation on the
ground of the husband's misconduct."
From the above views, it would seem to follow, inevitably, that
as the jurisdiction of the chancery in England does not extend to
or embrace the subjects of divorce and alimony, and as the
jurisdiction of the courts of the United States in chancery is
bounded by that of the chancery in England, all power or cognizance
with respect to those subjects by the courts of the United States
in chancery is equally excluded.
It has been said that, there being no ecclesiastical court in
the United States, many of the states have assumed jurisdiction
over the subjects of divorce and alimony, through the agency of
their courts of equity. The answer to this suggestion is, first,
that it concedes the distinction between the character and powers
of these different tribunals. In the next place, it may have been
that the jurisdiction exercised by the state courts may have been
conferred by express legislative grant, or it may have been assumed
by those tribunals, and acquiesced in from considerations of
convenience, or from mere toleration; but whether expressly
conferred upon the state courts, or tacitly assumed by them, their
example and practice cannot be recognized as sources of authority
by the courts of the United States. The origin and the extent of
their jurisdiction must be sought in the laws of the United States,
and in the settled rules and principles by which those laws have
bound them.