"Some of the most embarrassing questions": extraterritorial divorces and the problem of jurisdiction before Pennoyer.

• Author: O'Hear, Michael M.
• Position: Antebellum period

In the venerable case of Pennoyer v. Neff,(1) the Supreme Court expounded for the first time what limits the Due Process Clause placed on state-court jurisdiction. The Court held that service of process and a defendant's physical presence in a state when served were necessary and sufficient conditions for the exercise of jurisdiction.(2) The significance of Pennoyer, however, transcends its specific holding, for Pennoyer, in the words of one commentator, "represents a particular way of looking at the law of jurisdiction."(3) Although subsequent decisions significantly altered the Pennoyer jurisdictional rules, the conceptual structure of the opinion has remained "substantially intact."(4)

In essence, the Supreme Court conceptualized jurisdiction as a function of state territorial sovereignty; that is, the exclusive right of every state to determine the legal status of everyone and everything within its borders.(5) If a person entered a state and became subject to its laws, even for a brief period of time, then the state's tribunals could exercise full authority over him. In the time since Pennoyer, the Court's jurisdictional jurisprudence has continued to exhibit a deep concern for protecting state sovereignty.(6) The Court looks for "minimum contacts" between a state and the parties to a lawsuit,(7) but imposes few additional constraints on state-court jurisdiction.(8)

By emphasizing state sovereignty, however, the Pennoyer approach downplays other interests. It disregards convenience or fairness to litigants, focusing on state rights instead of individual rights.(9) Moreover, the Pennoyer approach provides no mechanism for prioritizing the competing claims of jurisdiction that several states (each with the requisite level of minimal contacts) might possess for a given cause of action. Although national policy interests might provide plausible bases for sorting out such competing claims,(10) the Pennoyer approach also subordinates national interests to state rights.

Emphasizing these shortcomings, many scholars have criticized Pennoyer's conceptual framework. These critics argue that the law of jurisdiction ought to be more oriented toward individual or national interests, and less toward state interests. Several of these critics have also directly attacked the correctness of the Pennoyer decision itself Among their criticisms is the claim that Pennoyer was somehow historically illegitimate because its emphasis on state sovereignty did not reflect prevailing nineteenth-century jurisprudence.(11) In developing this argument, some scholars have offered accounts of pre-Pennoyer jurisdictional law in which state sovereignty played a lesser role than alternative concerns, such as convenience or procedural fairness.(12)

Other commentators, in contrast, have taken issue with the historical claims of Pennoyer's critics.(13) One such scholar has commented:

The game plan of [Professors Redish and Drobak] is clear. Each seeks a unified doctrine of personal jurisdiction throughout our country's history, one which can be explained by reference to a single overarching principle - procedural fairness....

I want to suggest that the conclusion that the early state courts were unconcerned with state sovereignty in invoking the personal jurisdiction doctrine simply distorts history.(14)

Disagreement over the proper focus of jurisdictional law has thus generated a historical debate concerning the nature of jurisdiction in the era before Pennoyer.(15)

This Note seeks to add a new dimension to the scholarship on the early American law of jurisdiction. Previous writers on the question have drawn on a limited number of cases covering a wide range of substantive legal problems, usually providing only cursory treatment of individual cases. This Note, in contrast, will focus on a series of cases concerning one narrow legal problem: the recognition of out-of-state divorces during the antebellum period.(16) Because this Note focuses on a narrow problem, its conclusions about early jurisdictional doctrines must be qualified. Nonetheless, the approach has a number of advantages. At a minimum, it adds many new cases to the debate. More important, by examining one substantive problem in depth, it provides a greater sense of the content and context of the decisions examined, revealing patterns of rhetoric and patterns of results that a more wide-ranging approach fails to capture.(17)

Ultimately, the divorce recognition cases suggest that pre-Pennoyer jurisdiction doctrines were indeed primarily concerned with protecting state territorial sovereignty. In the divorce cases, courts adopted and designed jurisdictional tests specifically to protect the territorial integrity of substantive divorce laws: Courts insisted that the state to which a marriage belonged had an exclusive right to apply its laws to end the marriage; divorces granted by other states (those lacking "jurisdiction") represented a territorial overreaching by the laws of the decreeing state. Faced with sister-state divorce decrees, forum courts disregarded an apparent constitutional requirement that such decrees be unconditionally accorded full faith and credit; instead, courts looked to the principles of international law and refused to recognize decrees rendered without proper jurisdiction. Then, in giving content to this jurisdiction test, courts continued to insist on the primacy of the principle of state territorial sovereignty in making several critical doctrinal choices, including the decisions to apply the forum state's jurisdictional law, to limit jurisdiction to the state of domicile, and to dispense with the requirement of service of process on out-of-state defendants.

Part I of this Note considers the context of divorce recognition problems, indicating how the problems were generated in the antebellum period by the interplay of state-specific substantive divorce law, the character of American culture, and the importance of marital status in a variety of legal contexts. Part II examines how courts conceptualized the recognition problem as a question of international, not constitutional, law, and accordingly incorporated a jurisdiction test into recognition jurisprudence. Part III presents the mechanics of the jurisdiction test, covering the threshold questions of jurisdictional analysis (i.e., whose jurisdictional law is applied to which facts), the domicile rule, and the problem of the out-of-state defendant.

1. The Context: The Birth and Development

   of American Divorce Law

   Several legal and social aspects of antebellum America gave rise to the litigation of out-of-state divorce decrees: the substantial variation in substantive divorce law from state to state; the increasing size of the United States and migratory character of its people; and the variety of types of litigation that might turn on the validity of a divorce decree.

   At the time of Independence, most American states had little experience with divorce law. Some colonial legislatures had been receptive to divorce suits on a case-by-case basis, but such legislative divorces were squelched by the British government in the years leading up to the Revolution.(18) For a brief period, the colonists were subject to the strict divorce laws of England, which permitted dissolution of a marriage only by an act of Parliament. In the years following Independence, the new American states slowly moved away from the restrictive legislative act requirement. In 1785, Pennsylvania passed the nation's first divorce law, which authorized the state's supreme court to dissolve marriages on four grounds: impotence, bigamy, adultery, or willful desertion for four years.(19) Massachusetts passed a similar law the following year, but declined to permit divorce for desertion.(20)

   As other states followed the lead of Pennsylvania and Massachusetts over the next few decades, clear regional trends emerged. New England states tended to pass divorce laws relatively quickly (mostly in the 1790's), and to provide relatively liberal grounds for divorce, including cruelty.(21) Southern states operated on the opposite end of the spectrum, limiting themselves through most of the antebellum period to legislative divorces, and granting those, at least initially, with great reluctance.(22) South Carolina, in fact, granted no divorces during the entire antebellum period.(23) The Mid-Atlantic states followed a middle path. New York's 1787 divorce law permitted judicial divorces, but limited grounds to adultery.(24) By 1860, only South Carolina was more stingy than New York in granting divorces.(25) In contrast, as trans-Appalachian states joined the Union, they tended to follow the New England model, granting judicial divorces for a relatively large number of reasons.(26)

   Such variation in the country's divorce laws set the stage for the recognition problem. The strict divorce laws of some states encouraged residents to seek divorces in more lenient jurisdictions, producing thousands of "bad faith" extraterritorial divorces obtained in circumvention of state laws. Litigation over the validity of such divorce decrees became the paradigmatic recognition case, shaping the development of recognition doctrines, and perhaps contributing to the acute suspiciousness with which the strict states regarded all extraterritorial divorces.(27)

   The increasingly migratory character of American society and the growing number of states in the Union added to the recognition problem.(28) Antebellum divorce cases are full of stories of couples who were married in one state, moved together to another, and then separated and moved to two new states. In such instances, each state might claim that its laws should rightfully govern the couple's marital status, a conflict producing a number of difficult legal puzzles.(29) Furthermore, the changing face of American society may also have contributed to the number of marital breakups by facilitating desertion. The...