belong, and dealt with by the tribunals which alone can administer those laws. An honest adherence to this principle, moreover, will preclude the scandal which arises when a man and woman are held to be man and wife in one country and strangers in another. It is not possible however to avoid to some extent collision with the courts of different countries, because, if the courts of every country adhered to domicile as the rule of jurisdiction, there would still remain the fact of domicile to be established; and as all countries do not adopt the same rules of evidence, the evidence on this question might be very different in one country to what it might be in another: " in Wilson v. Wilson, quoted above under § 40. The remark on the uncertainty attending the fact of domicile suggests the question whether the British legislature would not be wise in enacting, in accordance with the modern tendency, that political nationality shall, as far as possible, be the criterion for personal law and jurisdiction. Lord justice Brett, on the appeal in Niboyet v. Niboyet, maintained the same views as lord Penzance, citing the authorities which establish that in the United States the jurisdiction on divorce is held to be founded exclusively on domicile.

§ 42. When the husband, being either petitioner or respondent, is not domiciled in England, or resident there within the terms of § 41, the wife's residence there within the terms of the same § will not give the English court jurisdiction to grant a divorce.

The doctrine asserted in this § would of course receive the assent of all those who make the jurisdiction for divorce depend on domicile. It would also result from the condition that the matrimonial home should be in England, which is required in the opinion of lord justice James, above, p. 72. But can it be pressed so far as to say that a wife deserted by her husband, or whose husband has so conducted himself that she is justified in living apart from him, and who up to the time when she was deserted or began to be so justified was domiciled or resident with her husband in England, can nevertheless not sue him in England for a divorce, she alone being any longer resident in this country? The point is doubtful.

In Deck v. Deck, 1860, 2 S. & T. 90; Cresswell, Martin, Willes; a divorce was granted to the wife under the circumstances here stated, the husband having become domiciled in the United States, and Cresswell, in delivering the judgment of the court, put it on the ground of the wife's political nationality being British. On the same day the same judge delivered the judgment of himself and the same colleagues in Bond v. Bond, 2 S. & T. 93, in which the point of the wife alone being domiciled or resident in England did not arise, since it was held that the husband's domicile was to be treated as English; and the case was stated to be the same in substance as Deck v. Deck. It appears therefore that the decision in Deck v. Deck had nothing to do with the

wife's having had an English domicile or residence with her husband up to the time when she began to be justified in living apart from him, which indeed is scarcely noticed in the judgment, and that it might have been cited for the broad proposition that the English jurisdiction in divorce is accessible to all British subjects once domiciled in England, and not actually domiciled in any other British country. For such a proposition however there is no other authority. In Yelverton v. Yelverton, quoted below under § 44, Cresswell distinguished the case of a wife with a separate residence seeking to be released from the marriage tie from that of her seeking to enforce it: p. 591 of the report. Consequently it does not appear that we possess any clear utterance of that judge on the subject of this §. In Le Sueur v. Le Sueur, 1876, L. R., 1 P. D. 139, Phillimore, a divorce was refused to a wife who since her desertion had come to reside in England in such a manner that had she been sui juris she would have acquired a domicile there, her husband's domicile not having been English either before or after the desertion; and lord Penzance refused to allow any validity to a foreign divorce in a parallel case. See below, § 47. Lord justice Brett, in Niboyet v. Niboyet, said: "the case of an adulterous husband deserting his wife, by leaving the country of his domicile and assuming to domicile himself in another, might seem to raise an intolerable injustice; but we" [the learned judge spoke for himself only] "cannot help thinking that in such case, if sucd by his wife in the country in which he had left her, he could not be heard to allege that that was not still the place of his married home, that is, for the purpose of that suit, of his domicile."

§ 43. The jurisdiction of the English court to decree judicial separation depends on the same circumstances as its jurisdiction to grant a divorce.

This is necessarily the view of those who, like the majority of the court of appeal in Niboyet v. Niboyet, determine the latter jurisdiction by identifying it with the former, as deduced by them from the ancient ecclesiastical practice. And those who make divorce depend strictly on domicile limit the jurisdiction for judicial separation with equal strictness, on the ground of legal principle without reference to ecclesiastical practice.

It was in a suit for judicial separation, Manning v. Manning, that lord Penzance made some of the remarks on the jurisdiction for divorce which are quoted above, p. 75. And lord justice Brett, in Niboyet v. Niboyet, after laying down the rule of domicile for divorce, proceeded thus. "The same rule, I confess, seems to me to apply for the same reason to its," the English court's, "power to grant any relief which alters in any way that relation between the parties which arises by law from their marriage. It applies therefore, as it seems to me, to suits for judicial separation and to suits for the restitution of conjugal rights. I do not think it does apply to suits for a declaration of nullity of marriage, or in respect of jactitation of marriage." L. R., 4 P. D. 19.

If the matter be considered on the ground of social rather than of legal principle, a doubt may be suggested whether it is necessary to identify the jurisdiction for judicial separation with that for divorce. The former decree leaves the parties man and wife, but gives to the injured party a protection against some of the consequences of that status; and it may therefore be reasonable to allow its benefit to be enjoyed within the territory by those who are resident in it, even though the court of their country or domicile should alone be held competent to dissolve the tie of marriage between them.

§ 44. The jurisdiction of the English court to decree restitution of conjugal rights also depends on the same circumstances as its jurisdiction to grant a divorce.

What has been said in the last § on the jurisdiction for judicial separation may be repeated here, mutatis mutandis, including the doubt whether a remedial decree, not affecting the marriage tie, need be limited by domicile, even should that limitation be established for divorce.

Yelverton v. Yelverton, 1859, 1 S. & T. 574, Cresswell; where it was held that a wife cannot obtain a decree of restitution, the husband being neither domiciled nor resident in the country, notwithstanding her own residence in it since his desertion of her. Firebrace v. Firebrace, 1878, L. R., 4 P. D. 63, Hannen, where "the difficulty, amounting in most cases to an impossibility, of enforcing the decree of the court" against a respondent neither domiciled nor resident in the country, was referred to as a reason for not claiming jurisdiction over a husband who had failed in rendering conjugal rights to his wife while he was here; and where it was held that the matrimonial causes act gives no power to serve a petition for the restitution of conjugal rights out of England. See also the quotation from lord justice Brett under § 43.

§ 45. The jurisdiction of the English court in suits for a declaration of nullity of marriage, or in respect of jactitation of marriage, depends on the petitioner's being resident in England, not on a visit or as a traveller, and not having taken up that residence for the purpose of the suit.

"A decree of nullity of a pretended marriage is quite as much a decree in rem" [as one of divorce], "and has all the consequences. How would it be possible to make domicile the test of jurisdiction in such a case? Suppose the alleged wife were the complainant, her domicile would depend on the very matter in controversy. If she was really married, her domicile would be the domicile of her husband; if not married, then it would be her own previous

And

domicile." Lord justice James, in Niboyet v. Niboyet, L. R., 4 P. D. 9. see the quotation from lord justice Brett in the same case, under § 43. Thus both sides to the controversy on § 41 are agreed as to this §.

§ 46. A divorce pronounced by a foreign court is treated as valid in England only when the parties were domiciled within the jurisdiction of that court at the time of the suit in it.

The doctrine here stated is far from certain. As might have been expected, recognition was refused to a foreign divorce founded only on a residence not amounting to domicile, and taken up for the purpose of obtaining or facilitating the divorce, in Dolphin v. Robins, 1859, 7 H. of L. 390, Cranworth, Kingsdown, Campbell; affirming Robins v. Dolphin, 1858, 1 S. & T. 37, Cresswell; and in Shaw v. Gould, 1868, L. R., 3 E. & I. A. 55, Cranworth, Chelmsford, Westbury, Colonsay. But in neither of those cases was any thing positive said, and in the latter of them Chelmsford and Colonsay expressly reserved their opinion, as to the effect of a foreign divorce founded on a residence such as described in § 41. The exact point appears to have arisen, and the doctrine stated in the § was asserted, in Tollemache v. Tollemache, 1859, 1 S. & T. 557, Cresswell, Wightman, Williams. But I should scarcely have framed the § as a statement, had it not been for lord Penzance's description of the tendency of English courts, quoted above, p. 75, from his judgment in Manning v. Manning.

§ 47. Not even where the husband had deserted the wife, or so conducted himself that she was justified in living apart from him, will a divorce obtained by her in a country which was not that of his actual domicile be treated as valid in England. "Actual domicile or residence" must be read here, if the preceding § be deemed too strict in requiring domicile as the only foundation for a foreign divorce.

This question is the counterpart of one which was discussed under § 42 for the jurisdiction of the English court.

In Shaw v. Att.-Gen., 1870, L. R., 2 P. & M. 156, Penzance, recognition was refused to a foreign divorce obtained under the circumstances here considered; but it was observed in the judgment that the husband had had no notice of the divorce suit, "except an advertisement which he never saw and was never likely to see," and that that suit had been brought in a country in which he had never been domiciled or resident. See lord justice Brett's opinion, where the suit is brought in the husband's old domicile, above, p. 77. Having regard however to the greater hesitation which the court appears to show in recognizing foreign divorces than in granting English ones, I have ventured to frame the § as a statement.

§ 48. Divorce can only be pronounced for cause sufficient by the

lex fori; and when cause sufficient by the lex fori exists, the jurisdiction being established under the rules already considered, divorce cannot be refused because it would be refused either by the lex loci contractus of the marriage, or by the personal law of the parties at the time of the marriage, or by the law of the place where any fact occurred on which the application for a divorce is grounded, or by the personal law of the parties at the time when any such fact occurred. This doctrine is received in England, both for granting divorces there and for recognizing the validity of foreign divorces.

The complete dependence of the cause for divorce on the lex fori, in the estimation of any country the law of which allows of divorce at all, results from the reservation in favour of all stringent domestic policy which is understood in private international law; see above, p. 39. The only law, except that of the forum, the claim of which to decide on the cause of divorce can be advanced with much plausibility, is the personal law of the parties derived from their matrimonial domicile. Representing marriage as a contract made at a given place, with contemplated performance in the matrimonial domicile, it may be said that the substance of the marriage, including the causes of its possible dissolution, must be affected by the place of contemplated performance to the same extent to which that place affects the operation of the marriage, or of any contract collateral to it, on property. The answer is that the substance of the marriage is not left to the choice of the parties, like its operation on their property. They are free to contract the marriage, but not to modify its substance. The existence of the marriage is an effect of contract, but its terms are not. The parties contract a mutual relation on some of the particulars of which different views are held in different countries, but as to which all nations agree in thinking it to be of the utmost social importance that all its particulars shall be determined by law.

In England, the propriety of putting in force our procedure for the dissolution of a marriage has never been disputed on the ground that a foreign law, having any possible relation to the matter, would either not divorce for the cause in question, or even would refuse to divorce at all. There are however authorities to the effect that what