The opinion of the Court was read at an adjourned session in Cumberland, in August following, as drawn up by
Weston J.
The contract of marriage is of universal obligation”; and by the law and practice of all civilized nations, a marriage valid by the law of the place, where it is entered into, is binding every where. Huberus, de conjlictu legum,. sec. 8, holds, that if parties domiciled in one jurisdiction, go into another, and enter into the contract of marriage, in a form and manner, and under circumstances, forbidden by the law of their domicil, and with a view.to evade that law, such marriage would not there be recognised as valid. And this doctrine is supported by the opinion of Lord Mansfield, in Robinson v. Bland, 2 Burr. 1077. But the law has been otherwise settled in England. Thus marriages in Scotland, by parties who repair thither to evade the laws of England, where they were domiciled, are nevertheless held binding by the courts of their domi-cil. And the1 English rule has been adopted in Massachusetts. Medway v. Needham, 16 Mass. 157, Putnam v. Putnam & al. 8 Pick. 433. It is confessedly against the general principles of law, in relation to other contracts ; and this exception is allowed, to avoid the injurious consequences, which would attach to the innocent from a different rule, as well as the unfavorable effect, it would have upon public morals.
With regard to the law of divorce, there is less uniformity. In general the policy of the law, in Christian countries, has been against it, except for adultery. For this cause divorces are allowed by some judicial tribunal, clothed with competent authority, in almost every State in the Union. In some of the states this authority is limited by statute. Thus in New York, it is allowed only if the parties, at the time of the offence, be inhabitants of the state ; or .if the marriage had taken place in' that state, and the party injured be resident there, at the time of the adultery committed.
The statute of Massachusetts, and of Maine, contains no such [147]*147limitation, but directs that all questions of divorce and alimony-should be heard and tried in the county, where the parties live. But from the construction and practice, which has obtained under this statute, this may be understood to mean, where the party injured lives, at the time of the adultery. The case of Richardson v. Richardson, 2 Mass. 153, was placed upon the ground, that an attempt was made to evade the statute; but it was there intimated that the decision was not to be understood to apply to a case, where the party charged with adultery, shall have left his or her domicil. In Hopkins v. Hopkins, 3 Mass. 158, the chief justice expressly states, that all the court decided was, that if the parties live in another state, and one of them commits adultery there, and the injured party removes into Massachusetts, and libels for a divorce, that such libel could not there be sustained. Carter v. Carter, 6 Mass. 263, presented such a case, and the libel was dismissed. Under the pauper laws, and upon general principles, the wife is regarded as having the domicil of her husband ; but this results from his marital rights, and the duties of the wife. If the husband has forfeited those rights by misbehavior, and has left and deserted the wife, they may have different domicils, in the view of the law regulating divorces. The statute assumes that the guilty party may be out of the state, and makes provision in that case. And in Hopkins v. Hopkins the court say, that the statute applies, where such party has changed his domicil, and the adultery is there committed. This 'may be, and géneralíy is, the husband; and yet for the purpose of sustaining a libel, the former domicil of the wife is regarded as continuing. Divorces have repeatedly been decreed in this state, where the husband ‘has left his wife, established his domicil in another state, and there committed adultery, by a new marriage or otherwise. There seems to be no good reason, why she should be limited to the county, in which she resides, at the time when her husband may have left her. She may find it convenient, and even necessary, to change her residence ; and it would better accord with the statute that she should libel, where she lives at the time of the adultery. And if a married woman, domiciled in another State, [148]*148having been- left- or abandoned by her husband, finds it convenient to establish, her residence in this state, she thereby becomes entitled to the benefit and protection of our laws. Her relation as a, married woman, and her rights thence resulting, would be recognized. And if her husband subsequently committed adultery in another State, why should the court here, upon a verification of the facts, after such notice as they might order, refuse to liberate her from a husband, who had proved himself unworthy to sustain the relation? Upon this point however we reserve ourselves, until a case, so circumstanced, may present itself in our own State.
But if the laws of any State, authorize divorces in such cases, we perceive nothing in them, which violates the comity due to other States, or which offends public morals. It has never been held necessary, that the offence should be committed, within the jurisdiction making the decree; as it is in.the administration of criminal justice.. If we refuse to give full faith and credit, to the decree of the Supreme Judicial Court of Rhode Island, because the party libelled had' his domicil in another State, and was not within their jurisdiction, we- refuse to accord to the decrees of that court the efficacy we claim for our own, when liable to the same objection.
In the case before us, it is agreed that the party injured was at the time an inhabitant of Rhode Island, residing in Providence, and this fact is recited in the decree. It appears that by order of court a citation was served upon the defendant in person; and that a continuance was twice granted, to give him an opportunity to appear in defence. This shows a due regard to that principle of justice, which gives to the party accused, the right to be heard. The decree was rendered by the highest judicial tribunal in that State. As it belongs to that tribunal to declare, authoritatively and definitively, what the law of the State is, we are bound to infer that by that law, the bonds of matrimony, previously existing, between the libellant and her former husband, were thereby dissolved; and that such is the effect of the decree, within the State of Rhode Island. As the law is understood in England, an English marriage cannot be dissolved by a foreign tribunal; and the reason given is, that a mar[149]*149riage is indissoluble in England, except by act of parliament; and that in these cases, the lex loci contractus is to govern. Tovey v. Lindsay, 1 Low’s Rep. 117. That was upon an appeal from Scotland, where the law had been otherwise settled.
The marriage dissolved, for the cause of adultery, by the decree in question, was solemnized in Massachusetts, which, as well as our own State, allows divorces for this cause; so that the divorce insisted on is for a cause, in accordance with the law of both States. Had it been otherwise, it would not follow, that the divorce might not have been valid, under the constitution and laws of the United States. By the federal constitution it is provided, art. 4, sec.
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The opinion of the Court was read at an adjourned session in Cumberland, in August following, as drawn up by
Weston J.
The contract of marriage is of universal obligation”; and by the law and practice of all civilized nations, a marriage valid by the law of the place, where it is entered into, is binding every where. Huberus, de conjlictu legum,. sec. 8, holds, that if parties domiciled in one jurisdiction, go into another, and enter into the contract of marriage, in a form and manner, and under circumstances, forbidden by the law of their domicil, and with a view.to evade that law, such marriage would not there be recognised as valid. And this doctrine is supported by the opinion of Lord Mansfield, in Robinson v. Bland, 2 Burr. 1077. But the law has been otherwise settled in England. Thus marriages in Scotland, by parties who repair thither to evade the laws of England, where they were domiciled, are nevertheless held binding by the courts of their domi-cil. And the1 English rule has been adopted in Massachusetts. Medway v. Needham, 16 Mass. 157, Putnam v. Putnam & al. 8 Pick. 433. It is confessedly against the general principles of law, in relation to other contracts ; and this exception is allowed, to avoid the injurious consequences, which would attach to the innocent from a different rule, as well as the unfavorable effect, it would have upon public morals.
With regard to the law of divorce, there is less uniformity. In general the policy of the law, in Christian countries, has been against it, except for adultery. For this cause divorces are allowed by some judicial tribunal, clothed with competent authority, in almost every State in the Union. In some of the states this authority is limited by statute. Thus in New York, it is allowed only if the parties, at the time of the offence, be inhabitants of the state ; or .if the marriage had taken place in' that state, and the party injured be resident there, at the time of the adultery committed.
The statute of Massachusetts, and of Maine, contains no such [147]*147limitation, but directs that all questions of divorce and alimony-should be heard and tried in the county, where the parties live. But from the construction and practice, which has obtained under this statute, this may be understood to mean, where the party injured lives, at the time of the adultery. The case of Richardson v. Richardson, 2 Mass. 153, was placed upon the ground, that an attempt was made to evade the statute; but it was there intimated that the decision was not to be understood to apply to a case, where the party charged with adultery, shall have left his or her domicil. In Hopkins v. Hopkins, 3 Mass. 158, the chief justice expressly states, that all the court decided was, that if the parties live in another state, and one of them commits adultery there, and the injured party removes into Massachusetts, and libels for a divorce, that such libel could not there be sustained. Carter v. Carter, 6 Mass. 263, presented such a case, and the libel was dismissed. Under the pauper laws, and upon general principles, the wife is regarded as having the domicil of her husband ; but this results from his marital rights, and the duties of the wife. If the husband has forfeited those rights by misbehavior, and has left and deserted the wife, they may have different domicils, in the view of the law regulating divorces. The statute assumes that the guilty party may be out of the state, and makes provision in that case. And in Hopkins v. Hopkins the court say, that the statute applies, where such party has changed his domicil, and the adultery is there committed. This 'may be, and géneralíy is, the husband; and yet for the purpose of sustaining a libel, the former domicil of the wife is regarded as continuing. Divorces have repeatedly been decreed in this state, where the husband ‘has left his wife, established his domicil in another state, and there committed adultery, by a new marriage or otherwise. There seems to be no good reason, why she should be limited to the county, in which she resides, at the time when her husband may have left her. She may find it convenient, and even necessary, to change her residence ; and it would better accord with the statute that she should libel, where she lives at the time of the adultery. And if a married woman, domiciled in another State, [148]*148having been- left- or abandoned by her husband, finds it convenient to establish, her residence in this state, she thereby becomes entitled to the benefit and protection of our laws. Her relation as a, married woman, and her rights thence resulting, would be recognized. And if her husband subsequently committed adultery in another State, why should the court here, upon a verification of the facts, after such notice as they might order, refuse to liberate her from a husband, who had proved himself unworthy to sustain the relation? Upon this point however we reserve ourselves, until a case, so circumstanced, may present itself in our own State.
But if the laws of any State, authorize divorces in such cases, we perceive nothing in them, which violates the comity due to other States, or which offends public morals. It has never been held necessary, that the offence should be committed, within the jurisdiction making the decree; as it is in.the administration of criminal justice.. If we refuse to give full faith and credit, to the decree of the Supreme Judicial Court of Rhode Island, because the party libelled had' his domicil in another State, and was not within their jurisdiction, we- refuse to accord to the decrees of that court the efficacy we claim for our own, when liable to the same objection.
In the case before us, it is agreed that the party injured was at the time an inhabitant of Rhode Island, residing in Providence, and this fact is recited in the decree. It appears that by order of court a citation was served upon the defendant in person; and that a continuance was twice granted, to give him an opportunity to appear in defence. This shows a due regard to that principle of justice, which gives to the party accused, the right to be heard. The decree was rendered by the highest judicial tribunal in that State. As it belongs to that tribunal to declare, authoritatively and definitively, what the law of the State is, we are bound to infer that by that law, the bonds of matrimony, previously existing, between the libellant and her former husband, were thereby dissolved; and that such is the effect of the decree, within the State of Rhode Island. As the law is understood in England, an English marriage cannot be dissolved by a foreign tribunal; and the reason given is, that a mar[149]*149riage is indissoluble in England, except by act of parliament; and that in these cases, the lex loci contractus is to govern. Tovey v. Lindsay, 1 Low’s Rep. 117. That was upon an appeal from Scotland, where the law had been otherwise settled.
The marriage dissolved, for the cause of adultery, by the decree in question, was solemnized in Massachusetts, which, as well as our own State, allows divorces for this cause; so that the divorce insisted on is for a cause, in accordance with the law of both States. Had it been otherwise, it would not follow, that the divorce might not have been valid, under the constitution and laws of the United States. By the federal constitution it is provided, art. 4, sec. 1, that “full faith and credit-shall be given, in each State, to the public acts, records, and judicial proceedings of every other State. And the Congress may, by penal laws, prescribe the manner, in which such acts, records and proceedings shall be proved, and the effect thereof.” In pursuance of this provision, the act of Congress, of May 26, 1790, has'declared that the records and judicial proceedings of other States, authenticated in the manner prescribed, “ shall have such faith and credit, given to them in every court within the United States, as they have by law or usage, in the courts of the States, from whence the said records are, or shall be taken.”
In Mills v. Duryee, 7 Cranch, 481, and in Hampton v. McConnel, 3 Wheaton, 234, the Supreme Court of the United States have given a literal construction to the act of Congress, and .have declared, that the judgments and decrees of a judicial tribunal in one State, shall have equal force and effect in every State. The efficacy of the act of Congress to this extent, has been qualified by judicial construction, in several of the States; and in Massachusetts, by the case of Bissel v. Briggs, 9 Mass. 416, and by Hall v. Williams, 6 Pick. 232; the one prior, and the other subsequent to the decisions of the Supreme Court of the United States, before cited. The latter case reaffirms the position taken in Bissel v. Briggs, and relies upon part of the opinion of Mr. Justice Story in Mills v. Duryee to sustain them. The qualification insisted upon is, that if a judgment be rendered in a State against a man not within that [150]*150State, nor bound by its laws, nor amenable to its jurisdiction, and that judgment should be produced in any other State against the defendant, it would be entitled to no credit. Chief Justice Parsons, who gave this opinion in Bissel v. Briggs, concedes that such judgment would bind any property the defendant might have, within the State rendering the judgment, taken under process of foreign attachment. In this case the injured party, then an inhabitant of Rhode Island, sought to be liberated from the claims of the husband upon her, arising from the conjugal relation, which he had forfeited. It was his interest in her, his right to exact from her the performance of duties, upon which the decree operated. She was within the jurisdiction. By the condition implied in the marriage contract, that neither party should commit adultery, she was entitled to be thus relieved. She being under the protection of the laws of the State, where she resided, the highest tribunal there, judicially declared and settled her right, after due notice, and ample opportunity, afforded to the guilty party, to defend himself against her charge.
Under these circumstances, it does not appear to us to fall within the qualification of the rule, established by the Supreme Court of the United States, set up in the cases cited from Massachusetts, even if it is to be sustained to the extent there stated, which has not yet been decided by the court, to whom it ultimately belongs to settle the question.
A divorce for the cause of adultery, does not violate or impair the contract of marriage. This was intimated by Chief Justice Marshall and by Justice Story in the case of Dartmouth College v. Woodward, 4 Wheaton, 518. The law of Rhode Island, authorizing the divorce, was not therefore restrained or limited, by any paramount law. It was then lawful there, and qualified the party liberated, to enter anew into the marriage relation. Most of the reasons, which led to the adoption of the rule, that a marriage valid by the law of the place where solemnized, should be valid every where, the protection of innocent parties, and the purity of public morals, require that divorces lawfully pronounced in one jurisdiction, and the new relations thereupon formed, should be recognized as [151]*151■operative and binding every'where. To this may be excepted cases of'fraud and collusion, which, when pleaded and verified, vacate all judgments and decrees. And of this class, are decrees, obtained in fraud of the law of the domicil of the parties. Jackson v. Jackson, 1 Johns. 424, and Hanover v. Turner, 14 Mass. 227, were decided upon this ground.
There would be great inconvenience in holding that a divorce decreed in the State, where the injured party resided, might not be held valid through the Union, where the right, of citizenship is common, where the party accused had established his domicil in another State, and there committed adultery. And this is the only objection to the efficacy of the decree in question; it being insisted that the court had no jurisdiction over the absent party. As has been before intimated, it would apply with equal force to many divorces decreed in this State. It would require that the wife, abandoned and dishonored, should seek the new domicil of the guilty husband, animo, manendi, before she could claim the benefit of the law, tobe relieved from his control.
In giving effect here to the divorce decreed in Rhode Island, we would wish to be understood, that the grounds upon which we place our decision, is limited to the dissolution of the marriage. In the libel, alimony was prayed for; and certain personal property, then in the possession of the wife, was decreed to her. Hád the court awarded her a gross sum, or a weekly or an annual allowance, to be paid by the husband, and the courts of this or any other State had been resorted to to enforce it, a different question would be presented, falling within the distinctions, which have been supposed to qualify the decisions of the Supreme Court of the United States.
If then the divorce, decreed in Rhode Island, is valid here, the remaining question is, whether the wife was thereupon entitled to draw in any estate of inheritance, of which the husband was seized, during the coverture. The statute allows it, in the lands of the husband, where a divorce is decreeffifor the cause of adultery, committed by the husband, to be assigned in the same manner, as if he were dead. The language is general, and is not limited to divorces [152]*152decreed within the State. But it is insisted, that her right must be restricted to such lands, as the husband had not aliened. And this construction is attempted to be supported, by a reference to a change of language, in a former revision of the laws of Massachusetts, upon the subject of divorce. But if her right was to be thus restricted, we apprehend more explicit language to this effect, would have been used. By the lands of the husband, must be understood all the lands, in which she had an inchoate right of dower, prior to the divorce. And thus the law was settled in Davol v. Howland, 14 Mass. 219. The levies on the lands of the husband by his creditors, vested such lands in them, subject to the right of dower in the wife. That right did not arise from the saving in the statute, authorizing such levies. And if there might be room for doubt, if we looked only to the saving, there is none under the general law, upon which her right depended. Judgment for the demandants.