should be required on the part of the defendant who has changed his or her state domicile since the cause of divorce arose. 4. An innocent and injured party, husband or wife, seeking a divorce should not be compelled to ask for a dissolution of the bonds of matrimony, but should be allowed, at his or her option, at any time, to apply for a divorce from bed and board. Therefore, divorces a mensa should be retained where already existing and provided for in states where no such rights exist. 5. The causes for divorce existing by legislative enactment may be classed into groups that would be approved by the common consent of all the communities represented in this Congress, or at least substantially so. These causes should be restricted to offenses by one party to the marriage contract against the other of so serious a character as to defeat the objects of the marital relation; and they should never be left to the discretion of a court, but in all cases should be clearly and specifically enumerated in the statute. Uniformity in this branch of the law is much to be desired; but the evils arising from diverse causes in the different states will be very greatly abated if migratory divorces are prohibited. 6. While the following causes for annulment of the marriage contract for divorce from the bonds of matrimony, and for legal separation or divorce a mensa seem to be in accordance with the legislation of a large number of American states, this Congress, desiring to see the number of causes reduced rather than increased, recommends that no additional causes should be recognized in any state; and in those states where causes are restricted, no change is called for: A. CAUSES FOR ANNULMENT OF THE MARRIAGE CONTRACT. 1. Impotency. 2. Consanguinity and affinity, properly limited. B.-CAUSES FOR DIVORCE- a. v. m. 1. Adultery. 2. Bigamy. 3. Conviction of crime in certain classes of cases. 4. Intolerable cruelty. 5. Wilful desertion for two years. 6. Habitual drunkenness. C.-CAUSES FOR LEGAL SEPARATION, OR DIVORCE, a. m. 1. Adultery. 2. Intolerable cruelty. 3. Wilful desertion for two years. 5. Habitual drunkenness. 7. If conviction for crime should be made a cause for divorce, it should be required that such conviction has been followed by a continuous imprisonment for at least two years, or in case of indeterminate sentence, one year; and that such conviction has been the result of trial in some one of the states of the union, or in a federal court, or in some of the countries or courts subject to the jurisdiction of the United States, or in some foreign country granting a trial by jury, followed by an equally long term of imprisonment. 8. A decree should not be granted a. v. m. for insanity arising after marriage. 9. In those states where desertion is a cause for divorce, it should never be recognized as a cause unless it is wilful and is persisted in for a period of at least two years. 10. A divorce should not be granted unless the defendant has been given full and fair opportunity by notice brought home to him to have his day in court, when his residence is known or can be ascertained. 11. Anyone named as co-respondent should in all cases be given an opportunity to intervene. 12. Hearings and trials should always be before the court, and not before any delegated representative of it; and in all uncontested divorce cases, and in any other divorce case where the court may deem it necessary or proper, a disinterested attorney should be assigned by the court, actively to defend the case. 13. A decree should not be granted unless the cause is shown by affirmative proof, aside from any admissions on the part of the respondent. 14. A decree dissolving the marriage tie so completely as to permit the remarriage of either party should not become operative until the lapse of a reasonable time after hearing or trial upon the merits of the cause. The Wisconsin, Illinois and California rule of one year is recommended. 15. In no case should the children born during coverture be bastardized, excepting where they are the offspring of bigamous marriages or the impossibility of access by the husband has been proved. 16. Each state should adopt a statute embodying the principle contained in the Massachusetts act, which is as follows: "If an inhabitant of this commonwealth goes into another state or country to obtain a divorce for a cause which occurred here while the parties resided here or for a cause which would not authorize a divorce by the laws of this commonwealth, a divorce so obtained shall be of no force or effect in this commonwealth." 17. Fraud or collusion in obtaining or attempting to obtain divorces should be made statutory crimes by the criminal code. Before adjourning the delegates from Pennsylvania, William H. Staake, Walter George Smith and C. LaRue Munson, with Vice Chancellor John R. Emery, of New Jersey, were appointed a sub-committee to frame a Uniform Statute on Divorce for submission to the full Committee on Resolutions. They have completed their work and it is in print, entitled Proposed Uniform Statute relating to Annulment of Marriage and Divorce." It will be considered by the Committee on Resolutions at their meeting in St. Paul on September 1, 1906, and will then be submitted to the Divorce Congress. The decision in the divorce case of Haddock vs. Haddock, in the Supreme Court of the United States, of April 16, 1906, is one of the most surprising decisions ever rendered by that august court. In an article on this decision by Professor Beale in the Harvard Law Review for June, 1906, he says: "It has remained for the present court to astonish the whole Bar of the country." The court held that the New York courts are not compelled, under the "full faith and credit" clause of the Constitution to give effect to a decree of divorce granted in Connecticut to a husband who had left his wife in New York and had acquired a domicile in Connecticut, the wife not appearing in the Connecticut suit and the separation, as the New York court found, having occurred by the fault of the husband, although the Connecticut court had found the contrary. The New York decree, from which appeal had been taken, granted divorce and alimony to the wife, notwithstanding the Connecticut decree; and this judgment was affirmed. The opinion was written by Mr. Justice White, the Chief Justice and Justices Peckham, McKenna and Day concurring. Mr. Justice Brown wrote a dissenting opinion and Justices Harlan, Brewer and Holmes concurred in his dissent, and Mr. Justice Holmes wrote a short supplementary opinion. Contrary to the general impression, this decision will not affect the law or the practice of the great majority of states which now give effect to all decrees of divorce where the libellant or petitioner was domiciled within the state granting the decree. No state but New York is certainly affected by the decision, and Professor Beale says, in his excellent analysis of this case, to which I am indebted, that it is tolerably clear that New York, Pennsylvania and the Carolinas are the only states affected by it. But in order to give jurisdiction over divorce proceeding, the decision in this case still makes domicile of the libellant in the state where the libel is filed a prerequisite, as distinguished from mere residence, and personal jurisdiction over the libellee is also necessary, or the constitutional provision, the "full faith and credit" clause will not apply. This personal jurisdiction over the libellee may be acquired (1) by actual appearance in the suit; (2) by actual domicile within the jurisdiction; (3) even where the libellee has left the jurisdiction in which the parties lived together as husband and wife, he or she is still subject to the divorce courts of that jurisdiction, which is called the "matrimonial domicile." "The effect of the decision is therefore confined to a case where the libellant abandoned the libellee wrongfully, left the matrimonial domicile and acquired a new domicile, not shared by the libellee, in the state of forum." "The scope of this doctrine is, however, broader than it might seem, since the fault of the libellant in leaving the libellee becomes a jurisdictional fact. To grant the original decree, the court must have found the libellant faultless in the matter; but in the second process the original libellee is likely to be the only party represented, and his (or her) side alone being heard, the second court will find the original libellant in fault, and therefore the court which rendered the original decree to have been without jurisdiction. This was the course of events in the case at bar." (The same was true in Atherton vs. Atherton, 181 U. S. 155.) "This novel and extraordinary doctrine has never before been suggested by a civilized court or author. The Supreme Court of the United States is entitled to the credit of originality at least." The reasoning of the court is thus summarized by Professor Beale: "For a valid divorce it is necessary that the libellant should be domiciled in the state which grants the divorce; it is also necessary that there should be personal jurisdiction over the libellee in order that it should be enforceable under the "full faith and credit" clause of the Constitution; but if there is no such jurisdiction over the libellee the divorce will be valid where granted." "If Mr. Justice White is right in requiring domicile of the libellant for jurisdiction, he is wrong in regarding jurisdiction over the libellee as essential. If he is right in saying the decree is valid in Connecticut, he is wrong in saying it is not |