Page images
PDF
EPUB

only with the requirements of the law but also with the more subtle exactions of professional proprieties. They are more directly responsible to the court, and are, at least in theory, more subject to judicial restraint, than are the vastly greater number of American lawyers who may go into any court without the patent of professional nobility which distinguishes the English barrister. And, furthermore, the judges themselves are selected from the bar and generally from among the leaders. Yet in spite of the traditions of such a highly trained bench and bar the highest standards of judicial decorum are not always observed.

Thus English judges are not less prone than American judges to ignore Bacon's admonitions that they "should be more learned than wittie" and that "an over-speaking Judge is no well-tuned cymbal." I have before me records in four recent trials in England, selected at random, in which the judges repeatedly indulged in quite gratuitous witticisms which evoked unchecked laughter. A little humor creating a genial atmosphere during a trial, aids the judge, counsel and jury in the investigation of truth; and it produces in witnesses a self-possession which aids them in testifying. But too frequent indulgence in pleasantries is hardly consonant with proper decorum, and especially since it is a very poor judicial sally to which the gravest court-room audience will not obligingly react.

The Midland Bank case, involving an extraordinary blackmail plot, and the Dennistoun case, disclosing unusual phases of social depravity filled the columns of the English papers with nauseous particulars. It resulted that not only was there criticism of judges and counsel, but also a widespread discussion of a proposed censor

ship of reports of sensational trials. The record in the Midland Bank case was replete with loathsome details, most of which were published even in such papers as the London Times. Lord Darling, who presided at the trial, shortly afterwards publicly favored a bill in the House of Lords to restrain the publication of "any indecent matter or medical, surgical or physiological details calculated to injure public morals, in relation to divorce or separation cases." Discussion by the press followed on both sides of the Atlantic, the prevailing view being that the remedy does not lie in restrictive legislation, but in a restraint imposed by an aroused public opinion.

It is beyond my present purpose to deal with the sensationalism of a section of the American press in sex litigation. But there are certain features of the administration of divorce laws in this country that, quite apart from the publicity given to individual cases, are tending to impair the respect of the American people for the administration of justice. I refer particularly to the sojourn of persons of wealth and social prominence in states or countries other than their real homes, for the sole purpose of obtaining divorces, and the ease with which they secure decrees which would not be granted by their home courts. From repeated instances of this kind an impression is created that the laws relating to domestic relations may be evaded if one is willing and able to incur the necessary trouble and expense. And a similar impression seems to be growing under the divorce laws of England; not, however, because English citizens resort to foreign courts, but because of the frequency with which decrees are based on evidence voluntarily tendered by the husband. Of such cases Justice

Swift recently said: "Many of these cases are perfect farces, and the legislature had much better let these people go before a Registrar of Births, Marriages and Deaths and record the fact that they no longer desire to be married. * * Quite half of these cases are collusive, but that is not always a reason, in my view, for refusing relief to an injured spouse. Indeed, half the petitions for divorce now are, in fact, though not in form, brought by the guilty party." And a correspondent of Truth says that "the game is so well known that, in polite circles in which it is played, his confession has acquired the nolo espiscopari flavour, and no one pays any attention to it."

In this country a uniform divorce law adopted by all of the states would be an obvious remedy. But few states have thus far been willing to surrender their right to have their laws reflect the ideas of their own people concerning matrimonial status. In South Carolina the Constitution provides that divorce shall not be granted for any cause. In other states a number of causes, such as desertion, non-support and cruelty, are adequate. There is in the several states a great variety not only of legal causes for divorce, but also of the duration and character of the residence necessary to give their courts jurisdiction. In France the courts will entertain divorce cases brought by foreigners after a brief residence and will grant divorces upon grounds which differ little from mere incompatibility; and until recently such divorces have been obtained without unpleasant publicity.

Our courts, particularly in New York, are vigilant to discover collusion like that referred to by Mr. Justice Swift. But the difference between a collusive arrangement and mere acquiescence in a proceeding initiated by

one of the spouses, is sometimes hard to discern. Both want a divorce, and if an adequate cause does not exist at home, one spouse takes up a brief residence in another state to give its court jurisdiction; and the other offers no defense. In practice this frequently results in divorce by mutual consent.

Any "bad eminence" some of our Western states have gained in such cases has been due to the impression, whether well-founded or not, that their courts have accepted slight testimony in support of the statutory requirements and have not been very astute in inquiring about the good faith of the residence adopted to give them jurisdiction. This matter of legal residence has much to do with the divorce problem. The binding force of a decree, whether obtained in a foreign country or in one of the states of the Union, depends on the power of the court to determine matrimonial status. Residence of the plaintiff determines jurisdiction, but not conclusively, in spite of the provision of the Constitution of the United States (Art. IV, Sec. 1) which provides that "full faith and credit shall be given in each state to the public acts, records and judicial proceedings of every other state." Thus, a discontented wife leaves the state of New York, where she has a home, and goes to another state, where, after remaining for the period prescribed by its laws, she commences suit for divorce and obtains a decree. She then returns to her home in New York and continues there to reside. the proceedings in the other state were begun without notice to the husband, or if such notice was merely constructively given by publishing it in a newspaper, or perhaps by mailing it to him outside the state, and he never personally or by attorney appeared within the

If

state, the divorce may be valid under the laws of the state where the decree was granted, was granted, but may be questioned in the Federal or New York state courts. If, on the other hand, the husband does appear personally or by attorney, and either contests the suit or interposes no defense, a different legal situation is presented; for if he attempts thereafter to question the binding force of the decree he will be met with the objection that he has estopped himself by submitting to the jurisdiction of the court which rendered the decree.

In

One of the most confusing and difficult questions lawyers have presented to them is: What constitutes residence, or, as it is sometimes called, domicile? It is a subject that the American Law Institute has already in a preliminary way dealt with. It puzzles judges, professors and lawyers. It is easy to say that residence or domicile depends upon intent and fact. Fact, that is, actual physical presence in a place, is easily proved; intent must usually be inferred from circumstances. many cases where a discontented spouse leaves his or her home and goes to another state of the Union, the inference is inevitable that the purpose is to procure a divorce and to return immediately to the former abode. If all the circumstances point to that conclusion, then the courts of the original residence will re-examine the facts on which the foreign court assumed jurisdiction, and may decide that the decree of divorce is without force.

But the legalistic view is less than half the story. As a decree of divorce relates to personal status, no one but the parties can raise the question of validity; and in by far the largest number of suits brought in a foreign country or another state, both husband and wife are

« PreviousContinue »