cess." The Court's holding now appears to overrule Maymard 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 Consutution 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 se obstacles to the procurement of divorces, is the assumpant that dvorces are an unmitigated evil, and that THALV est and should force unwilling persons to live with tal mober. Others approach the problem as one which not best be met by moral, ethical and religious teachings. 12 "EVDALI 8 correct is not our concern. I am conLe best today's decision will no more aid in Do I De problem than the Dred Scott decision 43 aming troversies over slavery. This deciAs the wrong road. Federal courts should #11x with divorces. Only when one ve that faith and credit to a divorce Ds and the Constitution command, Tag - Doren, I M £9, 453; Crane v. Meginnis, the consequences of shifting dibe worked out in the Marshal and May, supra, versy. For bibliography 226 BLACK, J., dissenting. 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, 166170. It is no justification for requiring a less burdensome requirement here to say that in these former cases we were dealing with federal questions. That is exactly what is done here. For 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 makes 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 decreea 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 15 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 1 226 BLACK, J., dissenting. 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 dangerous, its object has been accomplished. I think divorce policy is the business of the people and their legislatures-not that of this Court. 16 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. BLACK, J., dealing with federal questio Moreover, the Court - |