Probably for other reasons, to be considered in another connection, it is impossible to deal legally with belief, which is an internal matter, so long as it is not manifested externally. As the law is a practical institution, it can deal only with acting, not with subjective states in and of themselves. But the manifestations of belief, as, for instance, in the case of political opinions adverse to the right of the federal government during our Civil War to coerce the states in rebellion, may so affect the activities of the state necessary to its preservation as to outweigh the individual interest or even the social interest in free belief and free speech." Roscoe Pound.

HARVARD LAW SCHOOL.

100

streets); Anderson v. State, 69 Neb. 686, 96 N. W. 149 (1903) (distribution of handbills on the street; in this case the social interest in general security was also involved through the danger from fire in a city); Mashburn v. Bloomington, 32 Ill. App. 245 (1889) (Salvation Army); Commonwealth v. Plaisted, 148 Mass. 375, 19 N. E. 224 (1889) (Salvation Army); the social interest in general morals, State v. McKee, 73 Conn. 18, 46 Atl. 409 (1900) (paper devoted to narration of crimes); State v. Van Wye, 136 Mo. 227, 37 S. W. 938 (1896) (paper devoted to scandal). 100 Ex parte Vallandigham, 1 Wall. (U. S.) 243 (1863). See also the opinion of Leavitt, J., Trial of Vallandigham (Cincinnati, 1883), 265 ff.

THE term

EX PARTE DIVORCE

'ex parte divorce" is used herein to designate a proceeding in which the libellee is not domiciled within the jurisdiction, is not personally served with process within the state, and does not appear to defend against the libel. It is not used to describe a divorce rendered upon a hearing at which, although only one side was represented, jurisdiction over the libellee was obtained by virtue of his residence, or by personal service of process upon him within the jurisdiction, or by his voluntary appearance as a party to the litigation. The subject is one upon which there have been many conflicting ideas and a considerable uncertainty as to the state of the law. Some of its phases have come before the Supreme Court of the United States, and so far as the question is one of the existence and effect of a judgment, the law has been declared in several cases. But the decisions of that court leave a very broad field untouched, because of the theory that a divorce is not necessarily the result of a judicial proceeding. It is the purpose of this article to attempt to show that enough has already been decided to lead logically and justly to the further conclusion that all ex parte divorces are invalid everywhere, save only those granted in the state having exclusive jurisdiction of the marital status, and that those of the last named class are valid everywhere.

Slowly, but in one of the late cases quite definitely, the real subject of contention has appeared. It is the nature and attributes of the res called the marital status. There is no adequate discussion of the topic in the earlier cases, and the law relating to it has developed rather by chance, as from time to time some point incident to the subject came up for decision. Unless the present sentiment of the bar throughout the country is greatly at fault, the last word upon the subject has not been said. The best that can be claimed for the present situation is that the status of an ex parte decree of divorce is somewhat uncertain.

Eight years ago the Supreme Court decided the case of Haddock v. Haddock. The decision was generally regarded as marking a

201 U. S. 562 (1906).

wide departure from the earlier authorities upon the subject of divorce jurisdiction. More especially it appeared to many to deny the rule laid down in Atherton v. Atherton 2 five years before the decision of the Haddock Case. Roughly speaking, the Atherton Case seemed to give some countenance to the idea of extra-territorial validity for an ex parte decree of divorce, when jurisdiction over the res was debatable; while the Haddock Case, upon quite similar facts, denied to such a decree the protection of the "full faith and credit" clause of the Constitution of the United States.3 It established the rule that the mere domicil of one spouse within a state is not sufficient to give jurisdiction so as to make a decree of divorce, rendered without appearance of the libellee in the suit or personal service upon him within the state, a judgment within the meaning of the Constitution.

Predictions of dire results to follow from the decision were not wanting. They were in the first instance voiced by the dissenting members of the court. Much emphasis was laid upon the idea that many innocent persons would be made to suffer unjustly. Children would be bastardized, and supposedly lawful relations rendered meretricious. And on the other hand there was equally earnest commendation of the decision. It was hailed as a welcome sign that "the divorce evil" was no longer to be permitted to run rampant. It had put a needed check upon easy divorce. In one thing supporters and critics agreed. Both assumed that the decision was to have a far-reaching effect. It was the consensus of opinion that, either for good or for ill, a great landmark in our jurisprudence had been set up.

It was not long, however, before it appeared that the decision was not as drastic as it at first seemed. Its mandate was not a positive command to the several states. Instead of saying, “thou shalt not," it merely says, "you are not obliged to." The ex parte divorce was not one which must be recognized abroad, but if it were so recognized, no one could complain. The states might recognize it if they desired to do so. Accepting this method of continuing the theretofore general practice, and recognizing such decrees as matter of grace though not of right, the states have largely nullified the decision. At least, they have avoided its effect in many instances.

In a few states, of which New York is the most prominent example, advantage has been taken of the power declared by the decision, in some degree. It has been used to prevent the circumvention of the limited divorce laws of that state. As a practical proposition it is true that, save in that state and in Pennsylvania and the Carolinas, the results of the decision have been inconsiderable. The law has been administered almost precisely as it was before. Considering results only, and not the mental process by which the results were arrived at, it may be said that the condition remains exactly as it was eight years ago. Courts which before recognized a large class of foreign divorces because of a belief that such course was made obligatory upon them by the Constitution, now reach the same result because of the opinion that sound public policy requires it.

The reason for this somewhat unexpected result is not far to seek. It has followed inevitably from the announced conclusion that divorce proceedings are not necessarily judicial. Because it took this view, the Supreme Court at once reached the limit of its power in these cases. Had the controversy been over the title to a horse, the court both could and would have gone further. It would not necessarily have stopped with the decision that New York was not bound to respect the Connecticut decree, unless it chose to do so. The decision would have been that New York could not give the decree effect, even if it so desired. More than that, it would have been held, if the question had arisen, that Connecticut could not treat the decree as valid. A man's title to his horse is protected by the Constitution of the United States, but his title to his marital rights is not.

This proposition was first announced by the Supreme Court in Maynard v. Hill. The question there related to the validity of an act of the territorial legislature of Oregon, declaring that one Maynard was thereby divorced from his non-resident wife. The litigation was over certain lands in Washington (formerly a part of Oregon), and title was claimed by the wife's heirs, upon the ground that the legislative act was invalid. The question of the extra-territorial effect of the act was not considered, nor was anything said as to whether the decision was to be confined to persons

4 125 U. S. 190 (1888). From this conclusion Justices Matthews and Gray dissented.

and rights within the territory. The holding was that it was within the power of the legislative body to grant the divorce, and that the wife's future rights in these lands were thus ended.

The decision is not questioned by the majority of the court in the Haddock Case. Limiting the effect of the act to the state where it was passed, the soundness of the proposition is declared to be beyond question. If this had been thought to be a vital point in the Haddock Case, it may fairly be assumed that the doctrine of the Maynard Case would have been thoroughly reëxamined. But this point was not deemed to be in issue in the later case. If the true limitation of the Maynard Case was correctly stated in the majority opinion in the Haddock Case, there was no occasion to consider further the Maynard Case. It did not apply. If, on the other hand, the minority in the Haddock Case were right, and the Maynard Case means that a legislative divorce should be given effect generally and not merely locally, then, as they say, the case is an authority for their position. If divorce were a proper subject for legislative action in the specific instance, the legislature might delegate the function to its agency, upon the same principle that it delegates its rate-making power. If the ex parte legislative divorce were valid extra-territorially, equally so would be the ex parte divorce granted by the duly authorized legislative agency.

It is to be regretted that the majority did not discuss the question whether, in view of their decision as to the nature of the marital status, — the res which was the subject of litigation, —it did not follow that the Maynard Case was decided wrongly, and dispose of its authority in the instant case in that way, or upon the ground that the Fourteenth Amendment now requires a different rule, rather than by declaring that a legislative divorce is of local effect only. But this was not done. The fact remains that the court, having declared in the Haddock Case what the Maynard case was not, had no occasion to go further and state what it was. The extra-territorial effect of the act having been denied, there was no occasion to inquire whether it had any local efficiency. The first point having been decided, the second was thereafter immaterial, and the remarks upon it may fairly be classed as dicta. They throw no light upon the question whether the ex parte Connecticut decree was a judgment entitled to protection under the "full faith and credit " clause of the Constitution.