(1.) It is not a judgment in rem, but strictly inter partes. A decree of divorce is as much a proceeding inter partes as an action of tort, or contract. There is no subject-matter, upon which the jurisdiction rests, which is transitory in its nature, like a ship or cargo, and which may be transferred with one of the parties, or without either, from one forum to another. It has no such distinct subject-matter, independent of the parties. This will not be claimed by any one as the ground of jurisdiction.

(2.) The jurisdiction in cases of this kind cannot be affected by the consent of the parties, either express or implied, as in ordinary actions of contract, or tort, where the parties may waive any obstacle to jurisdiction. But in regard to divorce, the matter is not exclusively under the control of the parties. The parties cannot dissolve the relation at will, nor can they effect that result by consent to a decree of court, which is but another mode of effecting the dissolution of the relation by consent alone. The fact of connivance between the parties in creating a decree of divorce would be good ground to avoid its effect, by application to the court passing the decree. The court must have jurisdiction of the subject-matter in a cause of divorce, wholly independent of any consent of the parties, and must proceed upon proofs, and not upon the concessions of the parties, in order to render a valid judgment, which shall have the effect to dissolve the relation, beyond the limits of the particular forum. And in addition to this, the court must have the jurisdiction of both the parties. This jurisdiction of the parties may be effected, perhaps, by consent, where it is done bonâ fide for the purpose of contesting the questions at issue, and not by way of connivance, at a colorable judgment; but to the jurisdiction of the subjectmatter of the cause of divorce, it is essential that it should have accrued within that jurisdiction. Without this all proceedings are absolutely void as to both parties. And even with this, it is requisite also, to have the proper jurisdiction of both the parties.

(3.) What, then, is the subject-matter in a suit for divorce? It is the act or acts which constitute the cause of action. And these are not transitory, as we have seen, but strictly local. They do not depend upon the contract of marriage, or the law of the state

at the time and place of the solemnization of the contract, but upon the continuing law of the state where the parties are domiciled from time to time. A cause of divorce must be a breach of that law of the state, at the time it occurs. The law of the state, where the parties are domiciled, is the law of the contract for the time, and any good cause of divorce must be a breach of this law. The subject-matter of a suit for divorce can only occur where the parties are domiciled at the time it occurs. And it cannot be transferred to another forum by even the bona fide change of the domicil of both parties, because it is an offence against the law of the state where it occurs, and is of such a police and disciplinary character, that no state can delegate its execution to any other sovereignty. It is a matter in which the state where it occurs has an important interest altogether independent of the parties, and which that state may remit without the consent of the parties.

(4.) If, for instance, cruelty or desertion is made ground of divorce a vinculo, in the place where the parties reside, and such facts occur, and thus a good cause of action accrues, it cannot be enforced after the statute creating the penalty is repealed, without any saving of existing causes of divorce. It is like any other penal consequence. It depends not only upon the existence of the law creating such a penalty at the time the facts occur, but its enforcement depends also upon the continuance of the law at the time of the decree, or judgment. This is familiar law as to ordinary penal actions. And there can be no question of its entire application to the subject of divorce.

(5.) One jurisdiction can no more enforce the divorce laws of another jurisdiction than its probate laws. The proceedings in one forum are wholly independent of all others. And the decrees of one probate jurisdiction, upon matters not within its locality and proper jurisdiction, are wholly inoperative in any other forum. And it is equally so in regard to divorce. The jurisdiction, too, in both cases depends upon domicil, so far as personalty in probate matters is concerned. The validity of wills, and the rules of descent, so far as personalty is concerned, depend upon the domi

cil of the decedent at the time of the decease; and the courts of the place of domicil have the exclusive jurisdiction to determine what the law is upon these points, and the decision of any other court, not having the proper jurisdiction on these questions, is of no validity. This has been too often decided, and there is too little question upon the point, to justify the citation of authorities in regard to probate proceedings. And the course of decision is equally uniform in regard to decrees of divorce. The cause of action is entirely local, depending upon the violation of the law of the place of domicil at the time, and can only be enforced in that forum and under that law, the same as any other corrective penal consequence.

20. We may therefore conclude, we think, that when any court attempts to take cognisance of an action for divorce, based upon facts accruing while the parties were domiciled without the forum, they are acting wholly without jurisdiction. Such acts could not be a violation of the laws of any state where the parties were not domiciled. For if they could be so viewed, then they might equally be regarded as a violation of the laws of all other states, and there would be no security. An act which, according to the law of the place of domicil, was indifferent, or to which no penal consequences attached at the time of perpetration, if it could be treated as a violation of the laws of all foreign states, or of the contract of marriage, and of its duties and obligations, as construed, measured, or defined by the laws of all other states, might become the instrument of forfeiting the most important and vital interests pertaining to social life. The absurdity of such a construction is too glaring to require illustration. To be consistent, foreign courts, if they assume to take jurisdiction of causes of divorce accruing while the parties were domiciled abroad, ought to judge the matter, according to the law by which the parties were governed at the time of the commission of the acts. This is done in - all ordinary transitory causes of action, whether growing out of contract or tort. The transaction is judged by the law of the place where it occurred. Any other course would become intolerable. No court, in any civilized country, would presume to determine the rights of the parties, in relation to torts or breaches of

contract, by a law to which they owed no allegiance, and to which they had no reference, even in intent, at the time the facts occurred. And it would be an equal violation of principle, to apply any different rule to causes of divorce, from what is of universal application to all transitory causes of action, when a cause of divorce is attempted to be determined in another forum.

For

21. It is the absurdity of attempting to enforce the laws of a foreign jurisdiction, in regard to the rights and duties of married people, which has led some of the American states, who assume to grant divorces on that ground, to attempt to judge such causes by their own laws, a rule to which they had no reference at the time they occurred. It is escaping from one absurd consequence by falling into another, and, if possible, a grosser absurdity. however unreasonable it may seem, for one state to attempt to enforce the laws of another state in regard to the grounds of granting divorces a vinculo, it is certainly not less so, to attempt to grant divorces of that character, in one state, for causes accruing while the parties are domiciled in another, and to do it upon the ground that such causes constituted, at the time of their occurrence, good reason for granting divorce according to the laws of another state, to which the parties were wholly strangers, without regard to the fact whether they afforded any just cause of divorce where they occurred.

22. But there is still an additional reason why the courts cannot grant such divorces upon the mere residence, or domicil, of one of the parties only. Courts can acquire no proper jurisdiction for the trial of any cause, affecting correlative parties, without having both parties, constructively, within the jurisdiction of the court. Hence, it has often been determined, that a judgment rendered upon the suit of one party, without the presence of the other within the jurisdiction, is a mere nullity, in every other state or country. It does not come within the provision of the United States Constitution and the Act of Congress, giving the judgments and judicial proceedings of one state the same force in every other state which they have in the state where rendered. Such ez parte judgments are not what was intended by this constitutional

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provision, which it is now fully settled has reference only to judgments rendered between party and party, where there is full jurisdiction of both parties. This is now the universally received rule. Some of the states have attempted to maintain the literal construction of that constitutional provision, that transactions in the courts of a state are "judicial proceedings," and are therefore entitled to full faith and credit" in every other state, which, by the Act of Congress and the doctrine of some of the early cases in the United States Supreme Court, is defined to be the same credit which such acts receive in the state where transacted. This is the view attempted to be maintained in Mills vs. Duryee, 7 Cranch 481; Hamilton vs. McConnell, 3 Wheaton 234; Lapham vs. Briggs, 27 Vt. R. 26; but it is not the doctrine which has finally prevailed, even in the national tribunals. It is now clearly settled that to entitle a judgment in one state to full faith and credit in another, it must be a complete judgment, in all essential particulars, and above all, there must have been in the court complete jurisdiction, both of the subject-matter and of both the parties; and where this latter quality is wanting, the adjudication is wholly inoperative, out of the jurisdiction, whatever may be its weight within that jurisdiction. This was early declared in Bissell vs. Briggs, 9 Mass. R. 462; Hall vs. Williams, 6 Pick. 246; Thurber vs. Blackbourne, 1 N. H. R. 242, 245; Kilburn vs. Woodworth, 5 Johns. R. 37; Holt vs. Alloway, 2 Blackf. R. 108; and many others in the courts of the different states; Earthman vs. Jones, 2 Yerger 484. And the same rule is now fully established in the Supreme Court of the United States: D'Arcy vs. Ketchum, 11 How. R. 165; Webster vs. Reid, 11 Id. 456.

23. And it will not help the jurisdiction of the courts in one state to bind persons residing in other states, and not served with process within the forum, that notice was given them out of the state, of the pendency of such action in another state. No man is obliged to go into a foreign jurisdiction to contest his rights, or to submit them to the judgment of a foreign judicatory. This has been often so held: STORY, J., in Picquet vs. Swan, 3 Mason 469; Flower vs. Parker, Id. 251; Fenton vs. Garlick, 8 Johns. R.