vorced a mensa et thoro, or even one entitled to a divorce on the ground of the desertion or other misconduct of her husband, with power to act for herself under a variety of circumstances, leaves little room to doubt that the capacity of one so divorced to select for herself a domicil will be generally recognized in this country. § 222. Domicil of Husband continues to be that of Divorced Wife or Widow until she has established another for herself. Marriage does not operate as a mere suspension of the maiden domicil of the wife, but as a substitution for it of the domicil of the husband. "The domicil which she had before marriage was forever destroyed by that change in her condition," said Lord Brougham, in Warrender v. Warrender; and the dissolution of the marriage, either by the death of her husband or by divorce, would not remit her to her former domicil. Her derivative domicil continues after the death of her husband,1 or after divorce a vinculo matrimonii,2 until she acquires a domicil of choice in the usual way, or obtains another derivative domicil by a second marriage. Such was also the doctrine of the Roman law: "Vidua mulier amissi mariti domicilium retinet, exemplo clarissimæ personæ per maritum factæ; sed utrumque aliis intervenientibus nuptiis permutatur."3 Zangerus 4 holds that if the husband had several domi wife. Both parties remain subject to the obligations and duties of husband and wife. Neither can marry during the lifetime of the other, nor do any act whatsoever which is a wrong upon the conjugal rights and obligations of either. From these views it seems to me to follow, that a married woman cannot during the existence of the matrimonial relation, and during the life of the husband the wife cannot be remitted to the civil or political position of a feme sole, and cannot therefore become a citizen of a State or community different from that of which her husband is a member." 1 Gout v. Zimmerman, 5 Notes of Cases, 440; Lockhart's Trusts, 11 Ir. Jur. (N. s.) 245; Pennsylvania v. Ravenel, 21 How. 103; Danbury v. New Haven, 5 Conn. 584; Ensor v. Graff, 43 Md. 391; Harkins v. Arnold, 46 Ga. 656; Voet, Ad Pand. 1. 5, t. 1, no. 95; Donellus, De Jure Civili, l. 17, c. 12, p. 979, no. 20; Zangerus, De Except. pt. 2, c. 1, nos. 56 and 96-98; Pothier, Intr. aux Cout. d'Orléans, no. 12; Demolombe, Cours de Code Napoléon, t. 1, no. 370; Delvincourt, Cours de Code Civil, t. 1, p. 42, no. 12; Savigny, System, etc. § 353; Guthrie's transl. p. 100; Bar, § 29; Calvo, Dict. de Droit, Int. verb. Dom.; Phillimore, Dom. p. 27, no. 41 et seq.; Id. Int. L. vol. iv. no. 74 et seq.; Dicey, Dom. p. 108; Story, Confl. of L. § 46. 2 Dicey, Dom. p. 109, and see infra, note 6. 8 Dig. 50, t. 1, 1. 22, § 1. 4 De Except. pt. 2, c. 1, no. 98. cils, upon his death his widow would retain them all, unless she has selected one of them in a certain place, and there dwells, with her family, "holding fire and light." The doctrine of the widow's title to the domicil of her deceased husband was successfully maintained by Sir Leoline Jenkins, against the lawyers of France, in the question of the disputed succession to the personal property of Henrietta Maria, widow of Charles 1.5 It has been held in several cases in this country that a wife retains after divorce a vinculo the settlement of her husband, until she gains another for herself, and the same doctrine would undoubtedly be applied in cases of domicil of whatever grade. Demolombe 7 thus sums up the subject: "When the cause upon which is founded the legal attribution of a domicile de droit' ceases, the person does not recover the old domicil which he formerly had; he preserves, on the contrary, his domicil in the place where the law had put it, until he has adopted another. It is thus that the wife, after the dissolution of the marriage or separation de corps, does not recover, 'de plein droit,' the domicil which she had before she was married." It would seem that the burden of proof would be upon the party alleging a domicil for the widow or divorced woman different from that of her husband at the time of the dissolution of marriage. § 223. Can a Wife who is entitled to a Divorce establish for herself a Domicil different from that of her Husband? — We come now to consider briefly a subject involved in great difficulty, and about which there has been much conflict of opinion; namely, whether when a husband has deserted his wife or committed other acts which would entitle her to a divorce, but there having been no decree of dissolution or judicial separation by a court of competent jurisdiction, the wife is entitled to and may be considered as having an independent 5 Wynne's Life of Sir Leoline Jenkins, vol. i. p. xix, vol. ii. pp. 665-670. See Phillimore, Dom. pp. 28, 29, no. 42 et seq.; Id. Int. L. vol. iv. no. 76 et seq. 6 Royalton v. West Fairlee, 11 Vt. 438; Guilford v. Oxford, 9 Conn. 321; 370. domicil of her own. This question has generally arisen in cases involving jurisdiction to grant divorce. We have already seen that, as a general rule, jurisdiction for the purpose named, according to the doctrine received in Great Britain and this country, and indeed in all other countries in which the principle of nationality has not been substituted, depends upon the domicil of the parties. But suppose, for example, a husband domiciled and living with his wife in Pennsylvania, deserts her there and removes to Tennessee, where he becomes domiciled. If the husband deserts his wife without leaving the State, by the law of Pennsylvania the courts of that State have jurisdiction to grant to the wife a divorce after the lapse of two years. Does the husband's change of domicil to another State make any difference? Does it compel the wife to seek redress in a Tennessee court and oust the jurisdiction of the proper Pennsylvania court? § 224. Ia. To hold the affirmative, would be in most instances to deny all redress to the wife. That she may follow her husband to his new home and maintain proceedings there is held in some of the decided cases,1 and denied in others,2 -the denial usually, however, resting upon purely statutory grounds, such as the requirement of actual residence by the libellant. But however that may be, she is not bound to resort to the courts of her husband's new domicil for redress,3 but may maintain her suit for divorce at the place where she was domiciled with her husband at the time his offence occurred.1 But upon what ground is this jurisdiction to be predicated? It would seem sufficient to say that, while recog 1 Supra, § 39. 1 Greene v. Greene, 11 Pick. 410; Masten v. Masten, 15 N. H. 159; Harrison v. Harrison, 20 Ala. 629; Smith v. Moorehead, 6 Jones Eq. 360; Davis v. Davis, 30 Ill. 180; Kashaw v. Kashaw, 3 Cal. 312; see Bishop, Marr. & Div. vol. ii. § 127, 4th ed. 2 Hopkins v. Hopkins, 35 N. H. 474; Schonwald v. Schonwald, 2 Jones Eq. 367; Jenness v. Jenness, 24 Ind. 355; Dutcher v. Dutcher, 39 Wis. 651; Kruse v. Kruse, 25 Mo. 68; Pate v. Pate, 6 Mo. App. 49. 3 Authorities cited infra, notes 4 and 5. 4 Hopkins v. Hopkins, 35 N. H. 474; Harteau v. Harteau, 14 Pick. 181; Shaw v. Shaw, 98 Mass. 158; Dorsey v. Dorsey, 7 Watts, 349; Colvin v. Reed, 55 Pa. St. 375; Reel v. Elder, 62 id. 308; Van Storch v. Griffin, 71 id. 240; Platt's Appeal, 80 id. 501; Hull v. Hull, 2 Strob. Eq. 174; Hanberry v. Hanberry, 29 Ala. 719; Turner v. Turner, 44 id. 437. And the authorities cited infra, note 7, apply a fortiori in support of this position. nizing the theoretical identity of domicil of husband and wife, the courts of the place last mentioned will assume jurisdiction of the case in order to prevent a failure of justice,—in order to prevent a husband who has committed a wrong against his wife and against the marriage relation from, at the same time, depriving her of the means of redress; in other words, that they will not suffer the theoretical ground of jurisdiction to be pressed to the extent of defeating the ends of justice.5 5 This is substantially what was said by Shaw, C. J., in Harteau v. Harteau, supra, although he does in that case speak of the wife having a separate domicil under such circumstances. His opinion, which has been constantly referred to in the cases, and upon which much of the reasoning on these questions is built, is as follows: "The ground of defence to this libel is, that the parties were not within the jurisdiction or limits, nor subject to the laws of the Commonwealth, at the time of the act done, which is relied on as the cause of divorce. We consider it to be proved that these parties had bona fide changed their domicil, and become citizens of the State of New York, before the desertion charged. Such being the fact, it seems to us to be the same case as if they had never been inhabitants of this Commonwealth. As such, it seems to fall within the principle of the cases of Richardson v. Richardson, 3 Mass. R. 153, and Hopkins v. Hopkins, 3 Mass. R. 158. The true ground of argument in this case is, not that the parties did not live in this county, but that they were not then subject to the jurisdiction of the court, and their conjugal rights and obligations did not depend upon the operation of laws. our "The right to a divorce, in the cases in which it shall be granted, are regulated by the St. 1785, c. 69, § 3. The seventh section regulates the place where the trial shall be had. It appears, from the preamble to this section, that two objects were to be ac complished by this act: the first, to transfer the jurisdiction from the gover nor and counsel to the Supreme Judicial Court; and the second, which resulted as a consequence from the other, to have the hearing in the several counties, instead of requiring all persons to attend at Boston, as they must when the jurisdiction was in the governor and counsel. "The term 'live,' in this section, it appears to me, must mean where the parties have their domicil when the libel is filed, or the suit commenced. "To test this, suppose parties live as man and wife in Suffolk, and adultery is committed by the husband, but it is unknown to the wife. They remove into Middlesex, bona fide, and whilst residing there the adultery is discovered. Must the wife libel in Suffolk? It may be said the fact was committed there; but the rule of locality applicable to a trial for crime does not apply. Suppose, in the above case, that while living at Boston, the husband had committed the offence in Providence, out of the jurisdiction of Massachusetts. Would not this be as much a good cause of divorce for the wife, as if done within the jurisdiction? The fact is to be tried, not because it is a violation of the law of the Commonwealth, which the State has a right to punish, but because it is a violation of the conjugal obligation, contract and duty. "The wife is, in such case, entitled to a divorce; and if she continues to reside in the same county, her libel But the doctrine of many of the American cases goes further, and assumes that under circumstances similar to those would properly be brought in that county, though the parties do not live therein, within the literal construction of the statute. But suppose, in the mean time, for necessity or otherwise, she has taken up her abode in another county, she still has a right to a divorce, and the question is, in what county shall she file her libel. Neither of the parties now live in the county where they formerly lived together. It would seem to be a good compliance with the requisition of the statute, which cannot be construed literally, to construe it cy pres, and permit her to file her libel in the county where she has her abode at the time (Lane v. Lane, 2 Mass. R. 167). The statute directs that the suit shall be brought in the county where the parties live, for two reasons, to save expense, and because the truth can be better discerned. This would in general be true, not only be cause, often, the fact would be done at such place, but also because the parties would there be better known. It clearly does not limit the place of trial to the county where the fact was committed, because that is often out of the State, or in the State, but in a county other than that where the parties live. Much obscurity has, we think, been thrown on the subject, by confounding the two questions, which are essentially different, viz., (1) in what cases a party is entitled to claim a divorce; and (2) in what county the libel should be brought. "As it is a right conferred by statute, the one question may sometimes depend on the other; for if by the terms of the statute no suit can be instituted, it is very clear that no divorce can be had. "But I think there may be cases where the statute confers a right to have a divorce, in which the statute gives a general jurisdiction to this court, and yet where the parties do not live, that is, have their domicil, —either at the time of the act done, or at the time of the suit commenced, in any county in this Commonwealth. If so, there are cases where the statute cannot be literally complied with, and must be construed cy pres according to the intent. "Suppose a husband commits adultery and then purchases a house and actually takes up his domicil in another State, but, before his wife has joined him, she is apprised of the fact, and immediately files a libel for a divorce, and obtains an order to protect her from the power of her husband, as by law she may. He is an inhabitant of another State, and can in no sense be said to live in any county in this State. And yet it would be difficult to say that she is not entitled to have a divorce here. "Supposing, instead of the last case, he has actually purchased a house and changed his domicil to another State, and there commits adultery, and the wife, not having joined him, and not having left her residence in this State, becomes acquainted with the fact, aud libels and obtains a similar order; could she not maintain it? Yet in the latter case, at the time of the act done, and in the other, at the time of the suit instituted, the respondent, one of the parties, certainly did not live in any county of this Commonwealth. "This suggests another course of inquiry, that is, how far the maxim is applicable to this case, that the domicil of the wife follows that of the husband.' Can this maxim be true in its application to this subject, where the wife claims to act, and by law, to a certain extent, and in certain cases, is allowed to act, adversely to her husband? It would oust the court of its jurisdiction in all cases where the husband should change his domicil to another State before the suit is instituted. "It is in the power of a husband to change and fix his domicil at his will. If the maxim could apply, a man might go from this county to Providence, take |