Modern International Law Problems.

5 Rui. Cas. 703), gave a deathblow to that theory. Then came a curious current of quasi authorities to the effect that in addi tion to jurisdiction arising from the fact of the spouses having their domicil of succession within the territory, the general law of na tions recognizes that a concurrent and equally effective jurisdiction to divorce is created by the spouses' residence within the territory of such permanence as to constitute what has been termed a " matrimonial dom icil," although not of sufficient permanence to fix their true domicil there. As a typical instance we may take Niboyct 7'. Niboyet (L. R. 4 P. i ). A French man and an English woman were married at Gibraltar in 1856. In 1875 the husband went to Newcastle-onTyne, and continued to reside there till Oc tober, 1876, when his wife filed a petition in the divorce division of the High Court of Justice in England, alleging adultery, coupled with desertion for two years and upwards. It was admitted that the respondent, being in the consular service of France, had never lost his domicil of origin. The Judge Ordi nary, Sir Robert Phillimore, held that he had had no jurisdiction to dissolve the marriage. On appeal Lords Justices James and Cotton reversed his decision (Lord Justice Brett dis senting). The main ground of the reversal was the opinion of the judges that before the English Divorce Act of 1857 became law the petitioner would have been entitled to sue her husband in the Bishop's Court, 'although he was not domiciled in England, and to ask either for restitution of conjugal rights or for divorce a mensa et tkoro, and in either case for proper alimony; and consequently that, after the act of 1857 passed, jurisdiction in divorce might be exercised in the same cir cumstances. The fallacy of the argument obviously lay in the word consequently. Re stitution of conjugal rights and divorce a ntnsa et thoro on the one hand, and dissolu tion of marriage on the other are totally dif ferent remedies, and it by no means follows 'hat residence which will give jurisdiction as

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to the former should also suffice for the lat ter.' Further evidence of the existence of the theory with which we are dealing will be found in the following cases : Brodie v. Brodie (2 Swa. & Tr. 557); Shields v. Shields (15 Court Sess. Cas. 2d Ser. 142); Jack v. Jack (24 Court Sess. Cas. 2cl Ser. 467), where it was formulated by Lord President Inglis, then the Lord Justice Clerk of Scot land; and Hume v. Hume (ib. p. 1342), where the Scotch judges granted a decree of divorce for adultery to a wife whose husband had been in America for seventeen years, and was living with a woman whom he had married there. Side by side, however, with .this stream of authorities there was a coun ter current, proclaiming the necessity of domicil as a foundation of divorce, e.g. Man ning i1. Manning (L. R. 2 P. & D. 233), in which the Judge Ordinary dismissed a peti tion of divorce at the instance of an Irish husband, upon the ground that he was not a bona fide resident in England. (Wilson v. Wilson, L. R. 2 P. & D. 435); and Ritt v. Ritt (4 Macq. App. Cas. 627), where the the ory of domicil by mere permanence of resi dence only escaped condemnation by the House of Lords because it was abandoned in argument by counsel at the bar. These authorities created a sufficient impression among the exponents of the theory to reduce Lord President Inglis's description of it from the level of binding law in 1862 (Jack v. Jack, ubi supra) to that of matters of specu lation in 1882 (Stavert v. Stavert, 9 Court Sess. Cas. 4th Ser. 529). Then came Le Mesurier v. Le Mesurier, an appeal to the Privy Council from the Supreme Court of Ceylon. The decision in this case is not technically binding on the English courts. But the tribunal which heard it, consisting of the Earl of Halsbury, Lord Watson, Lord Hobhouse, Lord Macnaghton, Lord Morris and Sir Richard Couch, was an exceptionally strong one, and it was in 1897 (S v. 1 Probably this distinction survives the Le Mesurier case. See In re Tucker (1897), (Prob. 83).