354
THE GREEN BAG
tempting to hold that mere consent can give jurisdiction to grant a divorce as against a defendant as regards whom the jurisdiction would not otherwise exist, have al ready been pointed out. It is submitted, however, that assuming that the law was and still is in New York that a husband may confer jurisdiction by submitting him self to the state where his wife is domiciled, so that the decree would also be good to determine his status (although this ques tion of how far submission can give juris diction is expressly left open in Jones v. Jones, 108 N. Y. 415, upon which the Eng lish court relies for its New York law) and that consequently the Dakota decree was good against the husband, if the status of any person was involved in the Armitage case it was not that of G, A's former hus band, but of A herself, and the effect of the divorce decree as to her status ought to have been settled by the law of her domi cile, Dakota. At the time of this decree (1891) it seems clear that whether G had appeared or not, if A had been really domi ciled in Dakota, a fact which seems not to have been seriously questioned, that even in New York she would have been recog nized as divorced (People v. Baker, ante). After all, however, was the question of the New York status of either G or A really involved as a matter of principle? The im mediate question before the co'urt was as to the validity of A's marriage with H. That took place in Colorado. The general rule prevailing in this country, and which seem to be sound, is that the validity of a mar riage and the capacity of the parties thereto are settled, as a matter of public policy, to favor legal rather than illegal unions, just like anv other contract, by the law of the place where the parties enter into the rela tion. Commonwealth v. Lane, 113 Mass.
458 (1873); Wall v. Williamson, 8 Ala. 48 (1845); Whart., Conflict of Laws, 3d ed., sec. 165 a. There are certain exceptions to this, viz: polygamous or incestuous mar riages, and possibly where the contracting parties leave the state of their domicile for the express purpose of evading the laws thereof, which forbid their union. Whether as a matter of decision the bulk of these latter cases involves anything more than the proposition that persons who live to gether as man and wife under these cir cumstances may be punished for so doing, is perhaps an open question. Be that as it may, in the present case there was no evi dence of any facts to bring the case within any of the above exceptions, for certainly the law of Colorado does not make valid or recognize either polygamous or incestuous marriages. Consequently it would have seemed that the short and correct test in this case would have been to refer the valid ity of the marriage to Colorado law. It must be admitted, however, that there has been a tendency among the English decisions to refer the capacity of the parties to a marriage to the lex domicilii. Sottomayer v. De Barros, L. R. 3 Prob. Div. i (1877) was the first case clearly so to do. The present case is perhaps to be recog nized as standing for the same principle, and the line of reasoning that it pursues to be explained on that ground. The collat eral inquiries that such a principle involves are obvious and numerous. A general adoption thereof in this country, taken in conjunction with the decision in the Had dock case and the principles that apparently underlie it, could not be said to make with very great force toward a simplification of the problems of interstate divorce and remarriage. CHICAGO, ILL., May, 1906.
