The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1850-06-21

obig cation of contracts"
The right of u sovereign State to regulate by
law the marriage relations of those within ITS Jurs-
diction cannot be denied, without at once with.
holding power, absolutely essential 10 the good
order of society, and the pretecuon OF the weak
and deienceless. against injustice, cruelty ana OPP
preston. Marriage is not only civil contract, to
which certain civil rights are Incident, but 1t is
something more. Ii places the parties in new
and most important relation to socety-in status,
or condition which may be so far regulated, modl-
fled or changed, as the Legislature In its wisdom
may deem necessary for the public good. The
language of our own Court of Appeals, in the case
of Mcclure VS.. Mcclure, 7th Dana, Isl, is conclu-
sive on this point. "Marrisgs being much more
Than contract, and depending especially on the
sovereign will, is not, as We presume, embraced
by the constitutional introduction of legislative
acts, mpairing the obligation of contracts: The
obligation is created by the public law subject to
the public will, and not to that of the parties"
No respectable authority can be adduced for the
position, that law regulating divorces can BE-
sense OF that term The object of its Introduction
INFO The constitution, and the Judicial Interpretation
which has been placed upon il, utterly exclude such
an idea. The views already presented OF the ma
ture of the contract and Of the general authority of
the legislature over it, leave room to doubt upon
the subject.
Admitting this law, therefore, to be retrospective
in its operation il does not therefore follow that it
is unconstitutional. So far the legislative and
judicial action of this State can furnish authority
upon the subject, il is conclusive upon the point.
Up to the year 1909 all acts for divorce were spe
cia, eonienn ing upon the courts power to divorce in
special for past acts committed; the facts to
be found by Jury. [See LitelPs laws OF KY, vols.
2, 3 and The first general law regulating di-
vorces, approved January 81, 1909, is retrospective
in term, and has been judicously enforced from
that time TO the present day. In Mcclure VS.
Mcclure, 9TH Dana, Isl, it is pronounced TO be free
from any constitutional objection.
z. w, come now to the question Of jurisdic-
ton.
Ii is admitted that there are various and conflict
ing authorities upon this point. To determine this
que ton, therefore, it is necessary to recur to the
principles regulating the law of marriage and
divorce, and to make careful analysis Of the au-
thoriles applicable TO this The Legislation
OF different governments, and the various and con-
fictlng interests arising out OF the marriage con-
tract, have necessarily led to conflict of laws
which is well calculated to embarrass the discus
sion. Extreme views as to the indissolubility of
the marriage contract, to some extent, no doubt,
dependent upon the peculiar doctrine of political
allegiance, led to the decision OF Lolly's case in
1872, that by the English law, marriage con-
tracted IN England could not be dissolved by the
judicial tribunals of any other country, or in any
way except by act Of Parliament For many years
the doctrine was uniformly and firmly maintained,
denyEg The competency OF any court to pronouncs
decree of divorce a rincuia Of any English mar
rsges or to pronounce any other decree Ia the
cont,actus. On the other hand, the Scotch courts
have uniformly held, that the relation OF husband
and wife, wherever originally constituted, was en-
utled TO the same protection and redress, as to
wrongs committed in Scotland, that belong OF right
to that relation by the law of Scotland. To redress
the violation Of the duties and abuse of the powers
OF The marriage slate, belong to the law of the
country where the parties reside, and to which they
contract the duties Of obedience whenever they
enter IT'S territories. [See Ferguson, 23-l6S-2O9
226-276 The English House of Lords have at
last selued this question in conformity with the
principle OF the Scotch decisions. See the case of
Warrender VS.. Warrender, 0, Bligh. SO Lolly's
case Is, therefore, essentially override and the
doctrine is settled that the court has ur ction in
divorce, when the domicil has been acq ID, with
out any regard to the native country OF The parties
or OF the marriage. The law of this -ubject has
at last been reduced to the simple prime pie that the
Ter foci contractns ought TO be invoked, when the
question Is whether marriage was in the first in
stance valid in law, and that the appropriate law
by which the dssolubility Of the marriage is to be
determined ought TO be that of the domici. Kent
Com, VOL 2, p. liz n. al The same general doc
trlne may be considered as firmly established by
OF the actual bona Fde, domic of the parties, gives
jurisdiction To the proper courts TO decree divorce
for any cause allowed by the local law. tStory's
conflicts of laws, 49,, end authorities cited also,
Dorsey Va. Dorsey, 9TH Waus-3il. Mcclure VS..
Mcclure, It'll Dana-lSl. ~
But is said that the domcil of the wife follows
that of the husband, and il remains for to inquire
how far this maxim is applicable to this case. Has
this general principle been subjected to any modi-
fcstion, or change, in its application TO this sub
ject
That wife can acquire separate, distinct, and
adversary residence, 80 as TO enable her to insti-
tue o SUIT for divorce, in State which Is not the
domicil Of the husband, principle clearly recog-
ni ed in several, If not most, Of the States in this
Union. Our own statute OF 1909, provides that
"the parry DESTROYS OF divorce, may apply to the
Circuit Court Of the county in which he or she re-
sides" and also provides for publication against
the absent defendant. The same principle is adopt
ed by the laws regulating divorce in the States of
Indiana, Ohio, Michigan, North Carolina, and
Missouri. IL is unquestionably true, that the prn
cple has been acted upon in Kentucky, by uni
form and uninterrupted course OF decisions from
1863 To the present time.
The true doctrine upon this subject, is thus stated
by Chief Justice Shaw, in Hareau vs. Harteau,
la,h, Pickering l0i; "The mtxim," Chat the
domcil of the wife follows that of the husblud)
els founded upon the theorenc identity Of person
aud OF interest between husband and wife, as cs-
tablisbed BY law, and the presumption that from
the nature of the relation, that the home OF the
one is the home Of the other, and intended to pro-
mote and strengthen their interests in this relation
az il ordinarily exists, where union and harmony
prevail But the law will recognise wife as
having separate existence and separate interests
and separate rights, IN those cases where the ex-
press object Of alt proceedings is TO show that the
relation itself ought 10 be dissolved. Otherwise in
this respect, the parties would stand on very un-
equal grounds, il being in the power Of the hus-
band TO change his domcil at will, but not in that
OF the wife" The same principle - settled IN To-
len vs.. Toen,2 Blsckford, iO7. The statute Of Ia
diana ircvi1es that absolute divorces shall be
grantee on the petition Of the party aggrieved, aud
that an persons who sh all have resided ia the
State year, shall be entitled 10 the benefit of
the sct. The marriage was solemnizsd in Kea-
lucky. where the parties resided. The hush ind
deserted bis wlfe-she subsequently removed 10
the State of lndiana-the husband was never
resident there, and had no other than construc-
tive notice by publication. In view Of these facts,
the court decide, that in the absence of fraud aud
coliusion, and the party applying for divorce Is
bona hide resident Of the Stale, aud has acquired
domieil amino manendi, she is entitled to relief"
In other words, for the purpose of sserting her
claim TO divorce, the domcl Of the wife il not
necessarily that Of the husband, but is such
actual residence as brings her under the protection
Of the State, and entities her to the benefit Of the
law. The same doctrine is held in Harding IL Tx,
vs. Alden, 9, Greenleaf, Ito.
This principle is in strict harmony with the well
settled doctrine, that regulations the subject Of
marriage and divorce, ere rather parts Of the
criminal than Of the civil code; and apply lot so
much 10 the contract, between individuals, as to
the personal relations resulting from IL, and to ths
relative duties Of the parties TO their standing end
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