should sit to hear such controversies, they would not sit as a court; at the most they would be arbitrators only, and their action could not be sustained on that theory, unless it appeared that the parties had designed to make the judges their arbitrators, instead of expecting from them valid judicial action as an organized court. Even then the decision could not be binding as a judgment, but only as an award; and a mere neglect by either party to object the want of jurisdiction could not make the decision binding upon him either as a judgment or as an award. Still less could consent in a criminal case bind the defendant; since criminal charges are not the subject of arbitration, and any infliction of criminal punishment upon an individual, except in pursuance of the law of the land, is a wrong done to the State, whether the individual assented or not. Those cases in which it has been held that the constitutional right of trial by jury cannot be waived are strongly illustrative of the legal view of this subject.1

If the parties cannot confer jurisdiction upon a court by consent, neither can they by consent empower any individual other than the judge of the court to exercise its powers. Judges are chosen in such manner as shall be provided by law; and a stipulation by parties that any other person than the judge shall exercise his functions in their case would be nugatory, even though the judge should vacate his seat for the purposes of the hearing.2

Sometimes jurisdiction of the subject-matter will depend upon considerations of locality, either of the thing in dispute or of the

*

parties. At law certain actions are local, and others are [*400] transitory. The first can only be tried where the property is which is the subject of the controversy, or in respect to which the controversy has arisen. The United States courts take cognizance of certain causes by reason only of the fact that the parties are residents of different States or countries.

Brown v. State, 8 Blackf. 561; Work v. Ohio, 2 Ohio, N. s. 296; Cancemi v. People, 18 N. Y. 128; Smith v. People, 9 Mich. 193; Hill v. People, 16 Mich. 351. See also State v. Turner, 1 Wright, 20.

2 Winchester v. Ayres, 4 Greene (Iowa), 104.

3 See a case where a judgment of a United States court was treated as of no force, because the court had not jurisdiction in respect to the plaintiff. Vose v. Morton, 4 Cush. 27. As to third persons, a judgment against an individual may sometimes be treated as void, when he was not suable in that court or in that manner, notwithstanding he may have so submitted himself to the jurisdiction as

The question of jurisdiction in these cases is sometimes determined by the common law, and sometimes is matter of statutory regulation. But there is a class of cases in respect to which the courts of the several States of the Union are constantly being called upon to exercise authority, and in which, while the jurisdiction is conceded to rest on considerations of locality, there has not, unfortunately, at all times been entire harmony of decision as to what shall confer jurisdiction. We refer now to suits for divorce from the bonds of matrimony.

The courts of one State or country have no general authority to grant divorce, unless for some reason they have control over the particular marriage contract which is sought to be annulled. But what circumstance gives such control? Is it the fact that the marriage was entered into in such country or State? Or that the alleged breach of the marriage bond was within that jurisdiction? Or that the parties resided within it either at the time of the marriage or at the time of the offence? Or that the parties now reside in such State or country, though both marriage and offence may have taken place elsewhere? Or must marriage, offence, and residence, all or any two of them, combine to confer the authority? These are questions which have frequently demanded the thoughtful attention of the courts, who have sought to establish a rule at once sound in principle, and that shall protect as far as possible the rights of the parties, one or the other of whom, unfortunately, under the operation of any rule which can be established, it will frequently be found has been the victim of gross injustice.

We conceive the true rule to be that the actual, bona fide residence of either husband or wife within a State will give to that * State authority to determine the status of such [* 401] party, and to pass upon any questions affecting his or her continuance in the marriage relation, irrespective of the locality of the marriage, or of any alleged offence; and that any such court in that State as the legislature may have authorized to take cognizance of the subject may lawfully pass upon such questions, and annul the marriage for any cause allowed by the local law. But if a party goes to a jurisdiction other than that of his domicile for the purpose of procuring a divorce, and has residence there for

to be personally bound. See Georgia R.R. &c. v. Harris, 5 Geo. 527; Hinchman v. Town, 10 Mich. 508.

that purpose only, such residence is not bona fide, and does not confer upon the courts of that State or country jurisdiction over the marriage relation, and any decree they may assume to make would be void as to the other party.1

1 There are a number of cases in which this subject has been considered. In Inhabitants of Hanover v. Turner, 14 Mass. 227, instructions to a jury were sustained, that if they were satisfied the husband, who had been a citizen of Massachusetts, removed to Vermont merely for the purpose of procuring a divorce, and that the pretended cause for divorce arose, if it ever did arise, in Massachusetts, and that the wife was never within the jurisdiction of the court of Vermont, then and in such case the decree of divorce which the husband had obtained in Vermont must be considered as fraudulently obtained, and that it could not operate so as to dissolve the marriage between the parties. See also Vischer v. Vischer, 12 Barb. 640; and McGiffert v. McGiffert, 31 Barb. 69. In Chase v. Chase, 6 Gray, 157, the same ruling was had as to a foreign divorce, notwithstanding the wife appeared in and defended the foreign suit. In Clark v. Clark, 8 N. H. 21, the court refused a divorce on the ground that the alleged cause of divorce (adultery), though committed within the State, was so committed while the parties had their domicile abroad. This decision was followed in Greenlaw v. Greenlaw, 12 N. H. 200. The court say: "If the defendant never had any domicile in this State, the libellant could not come here, bringing with her a cause of divorce over which this court had jurisdiction. If at the time of the [alleged offence] the domicile of the parties was in Maine, and the facts furnished no cause for a divorce there, she could not come here and allege those matters which had already occurred, as a ground for a divorce under the laws of this State. Should she under such circumstances obtain a decree of divorce here, it must be regarded as a mere nullity elsewhere." In Frary v. Frary, 10 N. H. 61, importance was attached to the fact that the marriage took place in New Hampshire; and it was held that the court had jurisdiction of the wife's application for a divorce, notwithstanding the offence was committed in Vermont, but during the time of the wife's residence in New Hampshire. See also Kimball v. Kimball, 13 N. H. 225; Bachelder v. Bachelder, 14 N. H. 380; Payson v. Payson, 34 N. H. 518; Hopkins v. Hopkins, 35 N. H. 474. In Wilcox v. Wilcox, 10 Ind. 436, it was held that the residence of the libellant at the time of the application for a divorce was sufficient to confer jurisdiction, and a decree dismissing the bill because the cause for divorce arose out of the State was reversed. And see Tolen v. Tolen, 2 Blackf. 407. See also Jackson v. Jackson, 1 Johns. 424; Barber v. Root, 10 Mass. 263; Borden v. Fitch, 15 Johns. 121; Bradshaw v. Heath, 13 Wend. 407. In any of these cases the question of actual residence will be open to inquiry wherever it becomes important, notwithstanding the record of proceedings is in due form, and contains the affidavit of residence required by the practice. Leith v. Leith, 39 N. H. 20. And see McGiffert t. McGiffert, 31 Barb. 69; Todd v. Kerr, 42 Barb. 317; Hoffman v. Hoffman, 46 N. Y. 30; People v. Dawell, 25 Mich. 247. The Pennsylvania cases agree with those of New Hampshire, in holding that a divorce should not be granted unless the cause alleged occurred while the complainant had domicile within the State.

* But to render the jurisdiction of a court effectual in [* 402] any case, it is necessary that the thing in controversy, or

Dorsey v. Dorsey, 7 Watts, 349; Hollister v. Hollister, 6 Penn. St. 449; McDermott's Appeal, 8 W. & S. 251. And they hold also that the injured party in the marriage relation must seek redress in the forum of the defendant, unless where such defendant has removed from what was before the common domicile of both. Calvin v. Reed, 35 Penn. St. 375; Elder v. Reel, 62 Penn. St. 308; s. c. 1 Am. Rep. 414. For cases supporting to a greater or less extent the doctrine stated in the text, see Harding v. Alden, 9 Greenl. 140; Ditson v. Ditson, 4 R. I. 87; Pawling v. Bird's Ex'rs, 13 Johns. 192; Kerr v. Kerr, 41 N. Y. 272; Harrison v. Harrison, 19 Ala. 499; Thompson v. State, 28 Ala. 12; Cooper v. Cooper, 7 Ohio, 594; Mansfield v. McIntyre, 10 Ohio, 28; Smith v. Smith, 4 Greene (Iowa), 266; Yates v. Yates, 2 Beasley, 280; Maguire v. Maguire, 7 Dana, 181; Waltz v. Waltz, 18 Ind. 449; Hull v. Hull, 2 Strob. Eq. 174; Manley v. Manley, 4 Chand. 97; Hubbell v. Hubbell, 3 Wis. 662; Gleason v. Gleason, 4 Wis. 64; Hare v. Hare, 15 Texas, 355. And see Story, Confl. Laws, § 230 a; Bishop on Mar. and Div. 727 et seq.; ib. (4th ed.) Vol. II. § 155 et seq. The recent cases of Hoffman v. Hoffman, 46 N. Y. 30; s. c. 7 Am. Rep. 299; Elder v. Reel, 62 Penn. St. 308; s. c. 1 Am. Rep. 414; and People v. Dawell, 25 Mich. 247, are very explicit in declaring that where neither party is domiciled within a particular State, its courts can have no jurisdiction in respect to their marital status, and any decree of divorce made therein must be nugatory. A number of the cases cited hold that the wife may have a domicile separate from the husband, and may therefore be entitled to a divorce, though the husband never resided in the State. These cases proceed upon the theory that, although in general the domicile of the husband is the domicile of the wife, yet that if he be guilty of such act or dereliction of duty in the relation as entitles her to have it partially or wholly dissolved, she is at liberty to establish a separate jurisdictional domicile of her own. Ditson v. Ditson, 4 R. I. 87; Harding v. Alden, 9 Greenl. 140; Maguire v. Maguire, 7 Dana, 181; Hollister v. Hollister, 6 Penn. St. 449. The doctrine in New York seems to be, that a divorce obtained in another State, without personal service of process or appearance of the defendant, is absolutely void. Vischer v. Vischer, 12 Barb. 640; McGiffert v. MeGiffert, 31 Barb. 69; Todd v. Kerr, 42 Barb. 317. See Cox v. Cox, 19 Ohio, N. s. 502; s. c. 2 Am. Rep. 415. An appearance by defendant afterwards for the purposes of a motion to set aside the decree, which motion was defeated on technical grounds, will not affect the question. Hoffman v. Hoffman, 46 N. Y. 30; s. c. 7 Am. Rep. 299.

Upon the whole subject of jurisdiction in divorce suits, no case in the books is more full and satisfactory than that of Ditson v. Ditson, supra, which reviews and comments upon a number of the cases cited, and particularly upon the Massachusetts cases of Barber v. Root, 10 Mass. 265; Inhabitants of Hanover v. Turner, 14 Mass. 227; Harteau v. Harteau, 14 Pick. 181; and Lyon v. Lyon, 2 Gray, 367. The divorce of one party divorces both. Cooper v. Cooper, 7 Ohio, 594. And will leave both at liberty to enter into new marriage relations, unless the local statute expressly forbids the guilty party from contracting a

the parties interested, be subjected to the process of the court. Certain cases are said to proceed in rem, because they take notice rather of the thing in controversy than of the persons concerned;

and the process is served upon that which is the object of [* 403] the suit, without * specially noticing the interested parties; while in other cases the parties themselves are brought before the court by process. Of the first class admiralty proceedings are an illustration; the court acquiring jurisdiction by seizing the vessel or other thing to which the controversy relates. In cases within this class, notice to all concerned is required to be given, either personally or by some species of publication or proclamation; and if not given, the court which had jurisdiction of the property will have none to render judgment.1 Suits at the common law, however, proceed against the parties whose interests are sought to be affected; and only those persons are concluded by the adjudication who are served with process, or who voluntarily appear.2 Some cases also partake of the nature both of proceedings in rem and of personal actions, since, although they proceed by seizing property, they also contemplate the service of process on defendant parties. Of this class are the proceedings by foreign attachment, in which the property of a non-resident or concealed debtor is seized and retained by the officer as security for the satisfaction of any judg ment that may be recovered against him, but at the same time pro

second marriage. See Commonwealth v. Putnam, 1 Pick. 136; Baker v. 2 Hill, 325.

1

People,

Doughty v. Hope, 3 Denio, 594. See Matter of Empire City Bank, 18 N. Y. 199; Nations v. Johnson, 21 How. 204, 205; Blackwell on Tax Titles, 213.

2 Jack v. Thompson, 41 Miss. 49. As to the right of an attorney to notice of proceedings to disbar him, see notes to pp. 337 and 404. "Notice of some kind is the vital breath that animates judicial jurisdiction over the person. It is the primary element of the application of the judicatory power. It is of the essence of a cause. Without it there cannot be parties, and without parties there may be the form of a sentence, but no judgment obligating the person." See Littleton v. Richardson, 34 N. H. 179; Black v. Black, 4 Bradf. Sur. Rep. 205. Where, however, a statute provides for the taking of a certain security, and authorizes judgment to be rendered upon it on motion, without process, the party entering into the security must be understood to assent to the condition, and to waive process and consent to judgment. Lewis v. Garrett's Adm'r, 6 Miss. 434; People v. Van Eps, 4 Wend. 390; Chappee v. Thomas, 5 Mich. 53; Gildersleeve v. People, 10 Barb. 35; People v. Lott, 21 Barb. 130; Pratt v. Donovan, 10 Wis. 378; Murray v. Hoboken Land Co., 18 How. 272; Philadelphia v. Commonwealth, 52 Penn. St. 451; Whitehurst v. Coleen, 53 Ill. 247.