Williams v. North Carolina

Mr. Justice Black,

dissenting.

Anglo-American law has, until today, steadfastly maintained the principle that before an accused can be convicted of crime, he must be proven guilty beyond a reasonable doubt. These petitioners have been sentenced to prison because they were unable to prove their innocence to the satisfaction of the State of North Carolina. They have been convicted under a statute so uncertain in its *262 application that not even the most learned member of the bar could have advised them in advance as to whether their conduct would violate the law. In reality the petitioners are being deprived of their freedom because the State of Nevada, through its legislature and courts, follows a liberal policy in granting divorces. They had Nevada divorce decrees which authorized them to remarry. Without charge or proof of fraud in obtaining these decrees, 1 and without holding the decrees invalid under Nevada law, this Court affirms a conviction of petitioners, for living together as husband and wife. I cannot reconcile this with the Full Faith and Credit Clause and with Congressional legislation passed pursuant to it.

It is my firm conviction that these convictions cannot be harmonized with vital constitutional safeguards designed to safeguard individual liberty and to unite all the states of this whole country into one nation. The fact that two people will be deprived of their constitutional rights impels me to protest as vigorously as I can against affirmance of these convictions. Even more, the Court’s opinion today will cast a cloud over the lives of countless numbers of the multitude of divorced persons in the United States. The importance of the issues prompts me to set out my views in some detail.

Statistics indicate that approximately five million divorced persons are scattered throughout the forty-eight states. 2 More than 85% of these divorces were granted in *263 uncontested proceedings. 3 Not one of this latter group can now retain any feeling of security in his divorce decree. Ever present will be the danger of criminal prosecution and harassment.

All these decrees were granted by state courts. Erie R. Co. v. Tompkins, 304 U. S. 64 , and cases following it, recognized the obvious truth, that rules of law laid down by state courts are binding. These judicial “laws” are represented by decrees, judgments and court opinions. Today’s opinion, however, undermines and makes uncertain the validity of every uncontested divorce decree. It wipes out every semblance of their finality and decisiveness. It achieves what the Court terms the “desirable effect” of providing the “same” quality to every divorce decree, *264 “wherever the question arises” — it endows them all alike with the “same” instability and precariousness. The result is to classify divorced persons in a distinctive and invidious category. A year ago, a maj ority of this Court in a workmen’s compensation case declared that the Full Faith and Credit Clause of the Constitution was a “nationally unifying force”; 4 today, as to divorce decrees, that clause, coupled with a new content recently added to the Due Process Clause, has become a nationally disruptive force. Uncontested divorce decrees are thus so degraded that a person who marries in reliance upon them can be sent to jail. With much language the Court has in effect adopted the previously announced hypothesis upon which the North Carolina Supreme Court permitted another person to be sent to prison, namely, that “the full faith and credit clause does not apply to actions for divorce, and that the states alone have the right to determine what effect shall be given to the decrees of other states in this class of cases.” State v. Herron, 175 N. C. 754, 758 , 94 S. E. 698 ; cf. Matter of Holmes, 291 N. Y. 261, 273 , 52 N. E. 2d 424 .

The petitioners were married in Nevada. North Carolina has sentenced them to prison for living together as husband and wife in North Carolina. This Court today affirms those sentences without a determination that the Nevada marriage was invalid under that state’s laws. This holding can be supported, if at all, only on one of two grounds: (1) North Carolina has extra-territorial power to regulate marriages within Nevada’s territorial boundaries, or, (2) North Carolina can punish people who live together in that state as husband and wife even though they have been validly married in Nevada. A holding based on either of these two grounds encroaches upon the general principle recognized by this Court that a marriage validly consummated under one state’s laws is valid in *265 every other state. 5 If the Court is today abandoning that principle, it takes away from the states a large part of their hitherto plenary control over the institution of marriage. A further consequence is to subject people to criminal prosecutions for adultery and bigamy merely because they exercise their constitutional right to pass from a state in which they were validly married into another state which refuses to recognize their marriage. Such a consequence runs counter to the basic guarantees of our federal union. Edwards v. California, 314 U. S. 160 . It is true that persons validly married under the laws of one state have been convicted of crime for living together in other states. 6 But those state convictions were not approved by this Court. And never before today has this Court decided a case upon the assumption that men and women validly married under the laws of one state could be sent to jail by another state for conduct which involved nothing more than living together as husband and wife.

The Court’s opinion may have passed over the marriage question on the unspoken premise that the petitioners were without legal capacity to marry. If so, the primary question still would be whether that capacity, and other issues subsidiary to it, are to be determined under Nevada, North Carolina, or federal law. Answers to these ques *266 tions require a discussion of the divorce decrees awarded to the petitioners in a Nevada court prior to their marriage there.

When the Nevada decrees were granted, the petitioners’ former spouses lived in North Carolina. When petitioners were tried .and convicted, one of their former spouses was dead and the other had remarried. Under the legal doctrine prevailing in Nevada and in most of the states, these facts would make both the decrees immune from attack unless, perhaps, by persons other than the North Carolina spouses, whose property rights might be adversely affected by the decrees. 7 So far as appears from the record no person’s property rights were adversely affected by the dissolution decrees. None of the parties to the marriage, although formally notified of the Nevada divorce proceedings, made any protest before or after the decrees were rendered. The state did not sue here to protect any North Carolinian’s property rights or to obtain support for the families which had been deserted. The result of all this is that the right of the state to attack the validity of these decrees in a criminal proceeding is today sustained, although the state’s citizens, on whose behalf it purports to act, could not have done so at the time of the conviction in a civil proceeding. Furthermore, all of the parties to the first two marriages were apparently satisfied that their happiness did not lie in continued marital cohabitation. North Carolina claims no interest in abridging their individual freedom by forcing them to live together against their own desires. The state’s interest at the time these petitioners were convicted *267 th.us comes down to its concern in preserving a bare marital status for a spouse who had already married again. If the state's interest before that time be considered, it was to preserve a bare marital status as to two persons who had sought a divorce and two others who had not objected to it. It is an extraordinary thing for a state to procure a retroactive invalidation of a divorce decree, and then punish one of its citizens for conduct authorized by that decree, when it had never been challenged by either of the people most immediately interested in it. I would not permit such an attenuated state interest to override the Pull Faith and Credit Clause of the Constitution and an Act of Congress pursuant to it. 8 Here again, North Carolina’s right to attack this judgment, despite the Full Faith and Credit Clause and the Congressional enactment, is not based on Nevada law; nor could it be. For in Nevada, even the Attorney General could not have obtained a cancellation of the decree on the ground that it was rendered without jurisdiction. State v. Moore, 46 Nev. 65 , 207 P. 75 . This makes it clear beyond all doubt that North Carolina has not given these decrees the same effect that they would be given in the courts of Nevada.

The Court permits North Carolina to disregard the decrees on the following line of reasoning. No state need give full faith and credit to a “void” decree. A decree *268 rendered by a court without “jurisdiction” is “void.” No state court has “jurisdiction” to grant a divorce unless one of the parties is “domiciled” in the state. The North Carolina court has decided that these petitioners had no “domicile” in Nevada. Therefore, the Nevada court had no “jurisdiction,” the decrees are “void,” and North Carolina need not give them faith or credit. The solution to all these problems depends in turn upon the question common to all of them — does state law or federal law apply?

The Constitution provides that “Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.” (Emphasis added.) Acting pursuant to this constitutional authority, Congress in 1790 declared what law should govern and what “Effect” should be given the judgments of state courts. That statute is still the law. Its command is that they “shall have such faith and credit given to them ... as they have by law or usage in the Courts of the state from which they are taken.” 28 U. S. C. 687. If, as the Court today implies, divorce decrees should be given less effect than other court judgments, Congress alone has the constitutional power to say so. We should not attempt to solve the “divorce problem” by constitutional interpretation. At least, until Congress has commanded a different “Effect” for divorces granted on a short sojourn within a state, we should stay our hands. A proper respect for the Constitution and the Congress would seem to me to require that we leave this problem where the Constitution did. If we follow that course, North Carolina cannot be permitted to disregard the Nevada decrees without passing upon the “faith and credit” which Nevada itself would give to them under its own “law or usage.” The Court has decided the matter as though it were a purely federal question; Congress and the *269 Constitution declared it to be a state question. The logic of the Court does not persuade me that we should ignore these mandates of the Congress and the Constitution. Nevada's decrees purported to grant petitioners an absolute divorce with a right to remarry. No “law or usage” of Nevada has been pointed out to us which would indicate that Nevada would, under any circumstances, consider its decrees so “void” as to warrant imprisoning those who have remarried in reliance upon such existing and unan-nulled decrees.

A judgment may be “void” in the general sense, and yet give rise to rights and obligations. While on the books its existence is a fact, not a theory. And it may be said of decrees, later invalidated, as of statutes held unconstitutional, that “The past cannot always be erased by a new judicial declaration. The effect of the subsequent ruling as to invalidity may have to be considered in various aspects, — with respect to particular relations, individual and corporate, and particular conduct, private and official . . . an all-inclusive statement of a principle of absolute retroactive invalidity cannot be justified.” Chicot County Drainage District v. Baxter State Bank, 308 U. S. 371, 374 . Despite the conclusion that a judgment is “void,” courts have in the interest of substantial justice and fairness declined to attribute a meaning to that word which would make such judgments, for all purposes, worthless scraps of paper. 9 After a judgment has been declared “void” it still remains to decide as to the consequences attached to good faith conduct between its rendition and its nullification. That determination, I think, must, in this case, under the Full Faith and Credit Clause, be made in *270 accordance with the “law or usage” of Nevada — not of North Carolina or the federal government.

This brings me to the Court’s holding that Nevada decrees were “void.” That conclusion rests on the premise that the Nevada court was without jurisdiction because the North Carolina Court found that the petitioners had no “domicile” in Nevada. The Nevada court had based its decree on a finding that “domicile” had been established by evidence before it. As I read that evidence, it would have been sufficient to support the findings, had the case been reviewed by us. Thus, this question of fact has now been adjudicated in two state courts with different results. It should be noted now that this Court very recently has said as to the Full Faith and Credit Clause and the 1790 Congressional enactment, that “From the beginning this Court has held that these provisions have made that which has been adjudicated in one state res judicata to the same extent in every other.” Magnolia Petroleum Co. v. Hunt, supra, at 438. 10 That it was appropriate for *271 the Nevada court to pass upon the question of domicile can hardly be doubted, since the concurring opinion in our first consideration of this case correctly said that the “Nevada decrees do satisfy the requirements of the Due Process Clause and are binding in Nevada on the absent spouses . . .” 317 U. S. 287, 306 . The Court today, however, seems to place its holding that the Nevada decrees are void on the basis that the Due Process Clause makes domicile an indispensable prerequisite to a state court’s “jurisdiction” to grant divorce. It further holds that this newly created federal restriction of state courts projects fact issues which the state courts cannot finally determine for themselves. Davis v. Davis, 305 U. S. 32 , provides a possible exception to this holding. It decided that where both spouses appeared, a state court could finally determine the question of domicile. Whether the Court today overrules that ease I cannot be sure. Certainly, if a state court cannot finally determine the question of domicile because it is a federal question, each divorce controversy involving domicile must be subject to review here whether both parties appear or not.

I cannot agree to this latest expansion of federal power and the consequent diminution of state power over marriage and marriage dissolution which the Court derives from adding a new content to the Due Process Clause. The elasticity of that clause necessary to justify this holding is found, I suppose, in the notion that it was intended to give this Court unlimited authority to supervise all assertions of state and federal power to see that they comport with our ideas of what are “civilized standards of law.” See Malinski v. New York, 324 U. S. 401 . I have not agreed that the Due Process Clause gives us any such unlimited power, but unless it does, I am unable to understand from what source our authority to strip Nevada of its power over marriage and divorce can be thought to derive. Certainly, there is no language in the Constitu *272 tion which even remotely suggests that the federal government- can fix the limits of a state court’s jurisdiction over divorces. In doing so, the Court today exalts “domicile,” dependent upon a mental state, to a position of constitutional dignity. State jurisdiction in divorce cases now depends upon a state of mind as to future intent. Thus “a hair perhaps divides” the constitutional jurisdiction or lack of jurisdiction of state courts to grant divorces. Cf. Pollock v. Williams, 322 U. S. 4, 21 . And this “hair-line” division involves a federal question, apparently open to repeated adjudications at the instance of as many different parties as can be found to raise it. Moreover, since it is a federal question, each new litigant has a statutory right to ask us to pass on it.

The two cases cited by the Court do not support this novel constitutional doctrine. Bell v. Bell, 181 U. S. 175 , held a Pennsylvania decree invalid on the ground that there was no domicile shown. It specifically stated, however, that Pennsylvania law required one year’s domicile. Neither the decision in that case, nor any of the others on which it relied, rested on an interpretation of the Due Process Clause as requiring “domicile.” 11 Nor did the decision in Andrews v. Andrews, 188 U. S. 14 , support today’s Due Process Clause extension, for there it was said that “. . . it is certain that the Constitution of the United States confers no power whatever upon the government of the United States to regulate marriage . . .” 12

*273 It is a drastic departure from former constitutional doctrine to hold that the Federal Constitution measures the power of state courts to pass upon petitions for divorce. The jurisdiction of state courts over persons and things within their boundaries has been uniformly acknowledged through the years, without regard to the length of their sojourn or their intention to remain. And that jurisdiction has not been thought to be limited by the Federal Constitution. Legislative dissolution of marriage was common in the colonies and the states up to the middle of the Nineteenth Century. A legislative dissolution of marriage, granted without notice or hearing of any kind, was sustained by this Court long after the Fourteenth Amendment was adopted. Maynard v. Hill, 125 U. S. 190 ; cf. Pennoyer v. Neff, 95 U. S. 714, 734-735 . The provision that made “due process of law” a prerequisite to deprivation of “life, liberty, or property” was not considered applicable to proceedings to sever the marital status. It was only when legislatures attempted to create or destroy financial obligations incident to marriage that courts began to conclude that their Acts encroached upon the right to a judicial trial in accordance with due pro *274 cess. 13 The Court’s holding now appears to overrule Maynard v. Hill , sub silentio. This perhaps is in keeping with the idea that the Due Process Clause is a blank sheet of paper provided for courts to make changes in the Constitution and the Bill of Rights in accordance with their ideas of civilization’s demands. I should leave the power over divorces in the states. And in the absence of further federal legislation under the Full Faith and Credit Clause, I should leave the effect of divorce decrees to be determined as Congress commanded — according to the laws and usages of the state where the decrees are entered. 14

Implicit in the majority of the opinions rendered by this and other courts, which, whether designedly or not, have set up obstacles to the procurement of divorces, is the assumption that divorces are an unmitigated evil, and that the law can and should force unwilling persons to live with each other. Others approach the problem as one which can best be met by moral, ethical and religious teachings. Which viewpoint is correct is not our concern. I am confident, however, that today’s decision will no more aid in the solution of the problem than the Bred Scott decision aided in settling controversies over slavery. This decision, I think, takes the wrong road. Federal courts should have less, not more, to do with divorces. Only when one state refuses to give that faith and credit to a divorce decree which Congress and the Constitution command, should we enter this field.

*275 The Court has not only permitted North Carolina to invalidate a Nevada decree contrary to the law and usage of that state. It has actually placed the burden of establishing the validity of that decree on a defendant charged with crime. The only contested question was the validity of the decree, since the petitioners openly lived together as man and wife. And the only issue involved concerning that validity was domicile. The burden of proving that single issue upon which petitioners’ liberty depended was cast upon them. Cf. State v. Herron, 175 N. C. 754, 759 , 94 S. E. 698 . The-jury was not charged that the state must prove the defendants guilty; they were required to prove their innocence. The result is that a state court divorce decree is no protection from being sent to prison in another state unless a defendant charged with acting as it authorized can prove the state court rendering the decree made no error in resolving facts as to domicile. State court judgments exalted by the Constitution and by Congress are thus degraded to a lowly status by today’s decision. State courts, no less than federal courts, were recognized by the founding fathers as instruments of justice. I would continue to recognize them as such. At the very minimum we should not permit holders of these decrees to be convicted of crime unless another state sustained the burden of invalidating them. In a case involving nothing but property, this Court has declined to permit a second marriage to be impugned through an alleged prior marriage “save upon proof so clear, strong and unequivocal as to produce a moral conviction of the existence of that impediment.” Sy Joc Lieng v. Sy Quia, 228 U. S. 335, 339 . And we declined to permit a naturalization decree to be set aside because of an absence of “clear, unequivocal and convincing evidence.” Schneiderman v. United States, 320 U. S. 118, 125, 159, 164, 166-170 . It is no justification for requiring a less burdensome requirement here to say that in these former cases we were *276 dealing with federal questions. That is exactly what is done here. Eor the basic question in this case revolves around the Full Faith and Credit constitutional provision and the 1790 Congressional Act. The standard of proof sustained is a federal, not a state, standard. To require a defendant in a criminal case to carry the burden of proof in sustaining his decree to prove his innocence deprives him of all but the last shred of protection that the Full Faith and Credit Clause and the 1790 Act of Congress sought to give him. Cf. Tot v. United States, 319 U. S. 463, 473 . It makés of human liberty a very cheap thing — too cheap to be consistent with the principles of a free government.

Moreover, the Court’s unjustifiable devitalization of the Full Faith and Credit Clause and the Act passed pursuant to it creates a situation which makes the North Carolina statute an inescapable trap for any person who places the slightest reliance on another state’s divorce decree— a situation which a proper interpretation of the federal question would avoid. The North Carolina statute excludes from its coverage those who “have been lawfully divorced.” Who after today’s decision can know or guess what “right” he can safely exercise under a divorce decree in the intervening period between the day of its entry and the day of its invalidation by a jury? 15 This Court has said that “a statute which either forbids or requires the *277 doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application, violates the first essential of due process of law” (italics added). 16 The North Carolina statute, as applied to condemn these two petitioners to serve prison sentences, falls precisely within this description. It does so, because the sole essential contested issue in this case was the validity of the divorce decrees. Involved in this issue are questions of law mixed with questions of fact which perplex lawyers and judges little less than they baffle “men of common intelligence.” Today’s decision adds new intricacies to the whole problem for lawyers to argue about. It provides a new constitutional concept of “jurisdiction,” which itself rests on a newly announced federal “concept of domicile.” No final determination as to its own “jurisdiction” can hereafter be made by a state court in an uncontested divorce case. And so far as I can tell, no other court can ever finally determine this question. It might do so as between any two litigants, but I suppose the question of domicile would still be left open for others to challenge. A man might be tried for bigamy in two or more states. He might be convicted in one or both or all, I suppose. The affirmance of these convictions shows that a divorced person’s liberty, so far as this North Carolina statute is concerned, hinges on his ability to “guess” at what may ultimately be the legal and factual conclusion resulting from a consideration of two of the most uncertain word symbols in all the judicial lexicon, “jurisdiction” and *278 “domicile.” While the doctrine that “Ignorance of the law excuses no man” has sometimes been applied with harsh consequences, American courts have not been in the habit of making ignorance of law the crucial and controlling element in a penitentiary offense. Men have from time to time been sent to prison for violating court commands which were later held invalid. 17 It is quite a different thing, however, to send people to prison for lacking the clairvoyant gift of prophesying when one judge or jury will upset the findings of fact made by another.

In earlier times, some Rulers placed their criminal laws where the common man could not see them, in order that he might be entrapped into their violation. Others imposed standards of conduct impossible of achievement to the end that those obnoxious to the ruling powers might be convicted under the forms of law. No one of them ever provided a more certain entrapment, than a statute which prescribes a penitentiary punishment for nothing more than a layman’s failure to prophesy what a judge or jury will do. This Court’s decision of a federal question today does just that.

Mr. Justice Douglas joins in this dissent.

Previous decisions of this Court have asserted that a state cannot justify its refusal to give another state’s judgment full faith and credit, at least, in the absence of a showing that fraud is an adequate ground for setting the judgment aside in the state where it was rendered. See Christmas v. Bussell, 5 Wall. 290, 302-304 ; Maxwell v. Stewart, 22 Wall. 77, 81 ; Bigelow v. Old Dominion Copper Co., 225 U. S. 111, 134 .

According to the best available statistics more than five million divorces were granted in the last twenty years and the annual rate is steadily increasing. See Marriage and Divorce Statistics, Bureau of *263 the Census, 1942, and the same reports f,or different years; Divorce, Depression and War, Social Forces, University of North Carolina Press, Dec. 1943,191, 192; Social and Statistical Analysis, Law and Contemporary Problems, Duke University, Summer 1944; 1940 Census, Bureau of the Census, Vol. 4, Tables 29 and 48; Ogbum, Marriages, Births and Divorces, Annals, American Academy, Sept. 1943, 20.

This percentage is shown by the various “Marriage and Divorce” publications of the Bureau of the Census, Department of Commerce. Careful studies in particular localities have indicated that the percentage of uncontested divorces is substantially above the 85% shown in Census Reports. In Maryland, for instance, 3,306 petitions for divorce were filed in 1929. 1,847 defendants faded to answer and the complainant had decrees in all but six cases. “A total of 1,459 defendants, however, filed answers to the plaintiff’s allegations and thus staged a technical contest. This does not necessarily mean that a given defendant was opposed to a decree being granted. Of these 1,459 technically contested actions, 442 dropped out without coming to hearing, thus leaving 1,017 technical contests in the field. ... If we accompany the plaintiffs in the 1,017 remaining technical contests to the hearing, we find little in the way of substantial contest. There js a positive record of no contest in 808 cases; of a contest in 81 cases; and data are not available with respect to contest in 128 cases. . . . It seems likely that in less than 100 cases was there at the hearing a contest concerning whether a decree should be granted.” Marshall and May, The Divorce Court, 226-227.

Magnolia Petroleum Co. v. Hunt, 320 U. S. 430, 439 .

Loughran v. Loughran, 292 U. S. 216, 223-225 ; Dudley v. Dudley, 151 Iowa 142 , 130 N. W. 785 ; Ex parte Crane, 170 Mich. 651 , 136 N. W. 587 ; see Radin, Authenticated Full Faith and Credit Clause, 39 Ill. L. R. 1, 32. See also Annotations, 60 Am. St. Rep. 942 ; 28 L. R. A. N. S. 754; 127 A. L. R. 437.

This question has arisen most frequently in the application of state laws making it a criminal offense for persons of different races to live together as husband and wife. See e. g., State v. Bell, 7 Baxt. (Tenn.) 9 . That case has been explained as a holding that “Without denying the validity of a marriage in another state, the privileges flowing from marriage may be subject to the local law.” Yarborough v. Yarborough, 290 U. S. 202, 218 . See also Greenhow v. James, 80 Va. 636 . Cf. Pearson v. Pearson, 51 Cal. 120 ; State v. Ross, 76 N. C. 242 ; Whittington v. McCaskill, 65 Fla. 162 , 61 So. 236 .

See e. g., Foy v. Smith’s Estate, 58 Nev. 371 , 81 P. 2d 1065 ; Dwyer v. Nolan, 40 Wash. 459 , 82 P. 746 , 1 L. R. A. N. S. 551; Chapman v. Chapman, 224 Mass. 427 , 113 N. E. 359 ; Matter of Bingham, 265 App. Div. 463 , 39 N. Y. S. 2d 756; Moyer v. Koontz, 103 Wis. 22 , 79 N. W. 50 ; Leathers v. Stewart, 108 Me. 96 , 79 A. 16 , Ann. Cas. 1913B, 366, 369-372; Kirschner v. Dietrich, 110 Cal. 502 , 42 P. 1064 ; Schouler Divorce Manual, 588-590.

Here too we approach the domain where the line may be shadowy between the individual rights of people to choose and keep their own associates and the power of the state to prescribe who shall be their most intimate associates. People in this country do not “belong” to the state. Le Mesurier v. Le Mesurier, [1895] A. C. 517. Our Constitution preserves an area of individual freedom which the state has no right to abridge. The favor of the Court’s opinion is that a state has supreme power to control its domiciliarles’ conduct wherever they go and that the state may prohibit them from getting a divorce in another state. In this aspect the decision is not confined to a holding which relates to state as opposed to federal rights. It contains a restriction of individual as opposed to state rights. See Radin, supra, 28-32.

Gray v. Brignardello, 1 Wall. 627, 634 ; Colvin v. Colvin, 2 Paige (N. Y.) 385; Harper, The Myth of the Void Divorce, 2 Law and; Contemporary Problems, 335; The Validity of Void Divorces, 79 U. Pa. L. Rev. 158 ; Tainter, Restitution of Property Transferred Under Void or Later Reversed Judgments, 9 Miss. L. J. 157.

The Nevada court had general jurisdiction to grant divorces, and the complaint was required to allege domicile along with the other requisite allegations. Domicile is as much an integral element in the litigation as the proof of cruelty or any of the other statutory grounds for divorce in Nevada. Labeling domicile as “jurisdictional” does not make it different from what it was before. Since the Nevada court had no power to render a divorce without proof of facts other than domicile, there is nothing to prevent this Court, under its expansive interpretation of the Due Process Clause, from labeling these other facts as “jurisdictional” and taking more state powers into the federal judicial orbit. Both these types of facts, however labeled, were part of the controversy which the Nevada legislature gave its courts power to resolve. The state could label them “jurisdictional” and, having the exclusive power to grant divorces, could attach such consequences to them as it sees fit. But, while Congress might, under the Full Faith and Credit Clause, prescribe the “effect” in other states, of decrees based on the finding, I do not think the federal courts can, by their mere label, attach jurisdictional consequences to the state’s requirement of domicile. Hence, I think the quoted statement from the Magnolia Petroleum case should control this case.

Streitwolf v. Streitwolf, 181 U. S. 179 , decided the same day as Bell v. Bell, held a North Dakota divorce decree invalid. That holding did not rest on any “federal concept of domicile,” but on the fact that North Dakota law required “a domicile in good faith . . . for ninety days as a prerequisite to jurisdiction of a case of divorce.”

Andrews v. Andrews did not assert that any particular federal constitutional provision made domicile a state jurisdictional requirement in divorce cases. It emphasized state and common law concepts of domicile and a state’s power over its “inhabitants.” This emphasis led the Court to permit Massachusetts to invalidate a South *273 Dakota divorce decree, even though both husband and wife had appeared in the South Dakota Court. Cf. Davis v. Davis, supra. Massachusetts had a statute which prohibited its “inhabitants” from going into another state to get a divorce on account of conduct which occurred in Massachusetts, or for conduct which would not have authorized a divorce under Massachusetts law. This statute obviously rested on a hypothesis that each state possesses these sweeping powers over individuals: (1) power to make it a crime for its inhabitants to go to another state to engage in conduct which might be lawful there; (2) power to punish an inhabitant who went into another state and engaged in conduct in harmony with that state’s laws. If North Carolina has attempted to impose such sweeping statutory prohibition upon its inhabitants, it has not been called to our attention. In its .absence the Andrews decision gives no support to the opinion and judgment in this case.

Wright v. Wright’s Lessee, 2 Md. 429, 453 ; Crane v. Meginnis, 1 G. & J. Rep. (Md.) 463; Dwyer v. Nolan, supra. See also Owens v. Claytor, 56 Md. 129 ; 2 Sehouler, Marriage, Divorce and Separation, Sixth Edition, Pars. 1471-1473; Validity of Legislative Divorce, 18 L. R. A. 95.

For an interesting discussion of the consequences of shifting divorces from the legislatures to the courts, to be worked out in the pattern of adversary controversies, see Marshall and May, supra, Chap. VI, The Mirage of Judicial Controversy. For bibliography of pertinent discussions see same, 338-341.

The answer is that, by reason of today’s decision, no person can exercise any right whatever under an uncontested divorce decree without subjecting himself to possible penitentiary punishment. “To make the enjoyment of a right dependent upon an impossible condition is equivalent to an absolute denial of the right under any condition, and such denial, enforced for a past act, is nothing less than punishment imposed for that act.” Cummings v. Missouri, 4 Wall. 277, 327 . The “condition” here, that a divorced person cannot remarry without the possibility of being subjected to repeated prosecutions in all the states where he lives as a married person, would seem to rank as “an impossible condition.” If, therefore, the Court’s object is to make divorces *277 dangerous, its object has been accomplished. I think divorce policy is the business of the people and their legislatures — not that of this Court.

Connally v. General Construction Co., 269 U. S. 385, 391 . See also Yu Cong Eng v. Trinidad, 271 U. S. 500, 518 ; United States v. Cohen Grocery Co., 255 U. S. 81, 89-93 ; Lanzetta v. New Jersey, 306 U. S. 451 ; Smith v. Cahoon, 283 U. S. 553 ; Screws v. United States, ante, p. 91; cf. Nash v. United States, 229 U. S. 373 , 377 with Cline v. Frink Dairy Co., 274 U. S. 445, 457, 463-464 .

See e. g., People v. Morley, 72 Colo. 421 , 211 P. 643 ; Holbrook v. Prichard Motor Co., 27 Ga. App. 480 , 109 S. E. 164 ; St. George’s Society v. Sawyer, 204 Iowa 103 , 214 N. W. 877 ; State v. La Follette, 100 Ore. 1 , 196 P. 412 .