$199. Under these circumstances, where there is such a general consent of foreign jurists to the doctrine thus recognized in America, it is not, perhaps, too much to affirm, that a contrary doctrine will scarcely hereafter be established; for in England, as well as in America, in the interpretation of other contracts, the law of the place where they are to be performed, has been held to govern.1 Treated, therefore, as a matter of tacit matrimonial contract, (if it can be so treated,) there is the rule of analogy to govern it. And treated as a matter to be governed by the municipal law, to which the parties were, or meant to be, subjected by their future domicil, the doctrine seems equally capable of a solid vindication.2 CHAPTER VII. FOREIGN DIVORCES. [* §200. Christianity regards marriage as a very sacred, civil, and religious institution, upon the permanency of which social harmony and happiness chiefly depend. §201. Decree of dissolution in the place of domicil and celebration effectual. § 202. Diversity of laws in different states creates embarrassing questions. § 203, 204. Many perplexing questions stated. § 205. The Scottish law does not seem to require actual domicil of both parties to create jurisdiction. § 206. Strictures of Scottish judge upon the subject. § 207. Arguments in favor of the rule of the divine law. § 208. It is thus natural to expect great diversity of practice. § 214. Is divorce according to the law of domicil valid? § 216. Ground of jurisdiction in Scotland. 217. Temporary residence of defendant without change of national domicil sufficient. § 218. The English courts do not assent to this ground of jurisdiction. 219. The English courts require change of domicil at the least. § 220. Broader questions have arisen in Scottish courts. 1 Robinson v. Bland, 2 Burr. R. 1077; Lanusse v. Barker, 3 Wheaton, R. 101; 4 Cowen, R. 513, note; 2 Kent, Comm. Lect. 39, p. 459, 3d edit.; Fergusson on Marr. and Divorce, 341, 342, 395, 396, 416. 2 See Fergusson on Marr. and Divorce, 339 to 346. 221. The doctrines established in the Scottish courts. § 222. Marriage and its obligations depend upon the law of the present domicil of the parties. 223. These are not affected by the will of the parties. 224. These rules are indispensable to national self-respect. §225, 226. Statement of the opposite view. 226 a. Decision in Warrender v. Warrender. (226 b. Doctrines involved in the decision. 226 c. Lord Brougham's reasoning upon the question. 227. Many perplexing questions suggested. § 228. In America divorce must be obtained where parties domiciled at the time of cause. 229. Such divorce valid without regard to place of marriage. § 229 a. The domicil of husband is that of the wife until after separation. 230. The court must have jurisdiction of both parties. 230 a. The actual domicil of both parties gives jurisdiction. 230 b. The effect of such a divorce will be the same in all other countries as a domestic divorce. § 200. WE next come to the consideration of the important subject of divorce.1 Marriage is not a mere contract between the parties, subject as to its continuance, dissolution, and effects, to their mere pleasure and intentions. But it is treated as a civil institution, the most interesting and important in its nature of any in society. Upon it the sound morals, the domestic affections, and the delicate relations and duties of parents and of children, essentially depend. On this account, it has, in many nations, the sanction and solemnity of religious obligation superadded to it.2 And it may be truly said, that Christianity, by giving to it a more affecting and sublime morality, [* and by cementing the domestic tie of marriage by the solemnities of religion,] has conferred upon mankind new blessings; and has elevated woman to the rank and dignity of an equal, instead of being a humble companion, or a devoted slave to her husband. §201. It is not my design to enter into any discussion, as to the general right of the legislative power to authorize directly or indirectly a dissolution of the matrimonial state, and to release the parties from all the future obligation thereof. It is deemed by all modern nations to be within the competency of legislation to provide for such a dissolution and release, in some form, and for some causes. And there is no doubt, that a divorce, regularly 1 See on this subject, 1 Burge, Comm. on Col. and For. Law, Pt. 1, ch. 8, § 1, p. 640 to p. 668; Id. § 2, p. 668 to p. 694. 'See ib. p. 642, 643; post, § 209. obtained according to the jurisprudence of the country, where the marriage is celebrated, and where the parties are domiciled, will be held a complete dissolution of the matrimonial contract in every other country. I say where the marriage is celebrated, and where the parties are domiciled; for both ingredients are, or may be, material; and the presence of one and the absence of the other may change the legal predicament of the case, according to the jurisprudence of different countries, when the subject comes under consideration therein. § 202. The real difficulty is to lay down appropriate principles to govern cases, where the marriage is celebrated in one place, and the parties are at the time domiciled in another; where afterwards there is a change of domicil by one party, without a similar change by the other; where by the law of the place of celebration the marriage is indissoluble, or dissoluble only under peculiar circumstances, and where, by the law of another place, it is dissoluble for various other causes, and even at the pleasure of the parties. By the law of England, marriage is indissoluble except by a special act of Parliament.2 By the law of Scotland a divorce may be had through the instrumentality of a judicial process, and a decree on account of adultery. By the civil law an almost unbounded license was allowed to divorces; and wives were often dismissed by their husbands, not only for want of chastity, and for intolerable temper, but for causes of the most trivial nature. In France a divorce may be judicially obtained for the cause of adultery, excess, cruelty, or grievous injuries of either party; and in certain cases by mutual and persevering consent. In America an equal diversity of principle and practice exists. In some States, as in Massachusetts and New York, 1 2 Kent, Comm. Lect. 27, p. 107, 108, 3d edit. * 1 Black. Comm. 440, 441; 1 Burge, Comm. on Col. and For. Law, Pt. 1, ch. 8, § 1, p. 654 to p. 660. Fergusson on Marr. and Div. 1, 18; Erskine's Inst. B. 1, tit. 6, § 38, 43; 1 Burge, Comm. on Col. and For. Law, Pt. 1, ch. 8, § 2, p. 670 to p. 680. 2 Kent, Comm. Lect. 27, p. 102, 103, 3d edit.; 1 Brown, Civ. Law, 89 to 92; 1 Black. Comm. 441; Justin Novellæ, 117, ch. 8; Cod. Lib. 5, tit. 17, 1. 8; Merlin, Répertoire Divorce, § 2, p. 149, 150; Pothier, Traité de Mariage, art. 463; Van Leeuwen, Comm. B. 1, ch. 15, § 1, 2, 3. Code Civil, art. 229 to 233; Id. 275, &c. See in Fergusson on Marriage and Divorce, Appx. 448, the Prussian Code on the subject of Divorce; among others, incompatibility of temper, endangering life or health, is a good cause of divorce, art. 703. divorces are grantable by judicial tribunals for the cause of adultery. In other States divorces are grantable judicially for causes of far inferior grossness and enormity, approaching sometimes almost to frivolousness. In other States divorces can be pronounced by the legislature only, and for such causes, as in its wisdom it may choose from time to time to allow.2 § 203. Some of the most embarrassing questions belonging to international jurisprudence arise under the head of marriage and divorce. Suppose, for instance, a marriage celebrated in England, where marriage is indissoluble, and a divorce obtained in Scotland a vinculo matrimonii, as it may be for adultery under the laws thereof, will that divorce be operative in England, so as to authorize a new marriage there by either party? Suppose a marriage in Massachusetts, where a divorce may be had for adultery, will a divorce obtained in another State, for a cause unknown to the laws of Massachusetts, be held valid there? If, in each of these cases the divorce would be held invalid in the country, where the marriage is celebrated, but it would be held valid, where the divorce is obtained; what rule is to govern in other countries as to such divorce? Is it to be deemed valid, or invalid there? Will a new marriage contracted there by either party be good, or be not good? These, and many other perplexing questions may be put; and it is difficult at the present moment to give any answer to them, which would receive the unqualified assent of all nations. § 204. Other most perplexing inquiries may grow out of the consideration of the national character of the parties; whether they are both citizens, or subjects, or both foreigners, or one a citizen, and the other a foreigner; whether the marriage is celebrated at home, or celebrated abroad; whether the jurisdiction of any court to pronounce a decree of divorce is to be founded upon the national character of the parties, or upon the celebration of the marriage within the territorial jurisdiction, or upon the domicil of the parties within it, or upon the actual presence or temporary 1 This also is the law in Holland, in Prussia, and in the Protestant states of Germany, in Sweden, Denmark, and Russia. Fergusson on Marr. and Divorce, 202. See 2 Kent, Comm. Lect. 27, p. 106 to 110; Id. p. 117, 118, 3d edit. See also 1 Burge, Comm. on Col. and For. Law, Pt. 1, ch. 8, § 1, p. 640 to p. 668, where are brought together in a general review the laws of different nations on the subject of divorce. residence of one or both of them at the time, when the process for divorce is instituted. And if, upon any of these grounds, the jurisdiction is sustained, another not less important inquiry is, whether the law of divorce of the place of the marriage, or that of the place where the suit is instituted, is to be administered by the court, before which the suit is pending. § 205. It seems to have been thought, that under the Scottish law it is not necessary to found a jurisdiction for divorce in the courts of Scotland, that both the parties should at the time of the adultery committed, or at the time of the suit brought, have their actual domicil in Scotland. It seems to be sufficient, that the defendant, against whom the suit is brought, is domiciled in that kingdom, so that a citation may be served upon him, and that a divorce under such circumstances may be granted, whether the adultery is committed at home, or in a foreign country. Undoubtedly this doctrine is to be understood with the limitation, that the domicil is real, and not pretended, and that it is bonâ fide, and not by collusion between the parties for the mere purpose of maintaining the suit and procuring the divorce.1 1 Fergusson on Marr. and Divorce, Introd. p. 16, 17, 18; Id. p. 115, note; St. Aubyn v. Obrien, Id. Appx. p. 276; Id. note B. p. 363 to p. 376; 1 Burge, Comm. on Col. and For. Law, Pt. 1, ch. 8, § 2, p. 672, 674 to 679, 688, 689. See McCarthy v. DeCaix, cited in a note to 3 Hagg. R. 642, and in Warrender v. Warrender, 9 Bligh, R. 141, 142; Conway v. Beazley, 3 Hagg. Eccles. R. 639, 645, 646; S. C. reported at large in 2 Russ. & Mylne, 614, 618, 619, 620; Tovey v. Lindsay, 1 Dow, R. 115, 131, 135, 136, 137; S. C. 2 Clark & Fin. 569, note; post, § 216, 217, 218. See also, Warrender v. Warrender, 9 Bligh, R. 89, 144; post, § 226 a to 226 c. Mr. Chief Justice Gibson in delivering the opinion of the Supreme Court of Pennsylvania, in a case of divorce, used the following language: In constructing our international law of divorce, we naturally look for the materials of it in the jurisprudence of our ancestors, whose institutions are more congenial with our own than those of their continental neighbors, and whose process of forensic discussion is usually more exact. But we find an irreconcilable difference betwixt the decisions of the English and of the Scottish courts. The English judges acknowledge the legitimacy of no jurisdiction which is not founded in the law of divorce at the place of the marriage, if it be an English one; while the Scottish, in the other extreme, are willing to found theirs even on a temporary residence of the complainant in the country of the forum. Of the latter pretension, I shall say little more than that it is in truth a usurpation of power, to intermeddle in the domestic concerns of a neighbor. If a bonâ fide domicil, in the strictest sense of the word, were not essential to jurisdiction, there would be nothing to prevent the exhibition of a libel by a proctor, and without the presence even of the complainant. But the respondent's presence would be more essential still; for a sentence against one who was not subject to the |