(dissenting)
Prior to its recent amendment, which is here in controversy, the divorce statute of the Virgin Islands was silent as to the jurisdictional basis of divorce in that United States possession, except for a requirement that *620one suing for divorce must show that he has resided in the territory six weeks and must give the defendant appropriate notice of the pendency of the suit. However, the system and the generally accepted rules of the common law obtain in the Virgin Islands, except as modified by statute. Accordingly, without benefit of any additional legislative definition of divorce jurisdiction, it was judicially declared by this court that in the Virgin Islands a divorce could be granted only to a party who was domiciled there. Burch v. Burch [2 V.I. 559], 3 Cir. (1952), 195 F.2d 799.
With the law in this state the legislative authority of the Virgin Islands in 1953 amended the divorce statute to change the preexisting situation in two ways. First, proof that the plaintiff in a divorce action has been continuously present in the Virgin Islands for six weeks is now made prima facie evidence of that party’s domicil in the territory. Second, where personal jurisdiction has been obtained over both spouses the divorce power may be exercised in favor of a complaining spouse who has ■resided in the territory for six weeks, regardless of domicil. The result of this legislation is to establish alternative bases of divorce jurisdiction, the one predicated upon domicil without regard to personal jurisdiction over the defendant, and the other predicated upon personal jurisdiction over both spouses without regard to domicil. And, in either event, the legislature has deemed it appropriate to require six weeks’ residence before the suitor’s complaint shall be entertained.
The majority of the court think that both of these changes violate the Constitution of the United States. Dissenting, I think both changes are within legislative competency. They are of course quite different in their nature and effect and require separate analysis.
*621I
The first challenged amendment to the Virgin Islands divorce statute merely adds to preexisting law a provision that six weeks’ continuous presence in the Virgin Islands shall constitute prima facie proof of domicil there. At the outset it is to be emphasized that this is not a substitution of a requirement of six weeks’ presence for the requirement of domicil. Domicil remains the jurisdictional fact to be proved. Evidence is admissible to prove or disprove the plaintiff’s domicil in the Virgin Islands exactly as it was before the statute was amended. The amendment merely shifts the burden of going forward with evidence if the hearing develops a certain situation; namely, that on the issue of domicil there is proof of six weeks continuous presence and no other evidence. The normal course of introduction of other evidence is in no way impeded. The defendant may present his own witnesses or cross-examine the plaintiff’s witnesses. The court may exercise its normal prerogative of interrogating witnesses where their testimony is unclear or otherwise unsatisfactory. If, despite this full opportunity for rebuttal of the statutory presumption there is no refutation, then, and only then, must the court conclude that plaintiff has established his domicil in the territory. This is the total effect of the statutory provision now under consideration.
The court says that this evidentiary rule offends the due process clause of the Fifth Amendment. However, it recognizes that the only requirement of the Fifth Amendment in such a situation, as stated in Mobile, Jackson & Kansas City R. Co. v. Turnipseed (1910) 219 U.S. 35, 31 S. Ct. 136, 138, 55 L. Ed. 78, and frequently reiterated since then, is that there must be “some rational connection” between the proved fact and the presumed fact so that the inference of the existence of one *622from the proof of the other is not “so unreasonable as to be a purely arbitrary mandate.”
Up to this point I think we all are in agreement. Our divergence comes in the application of the Turnipseed doctrine. I think the most stringent rule that can be derived from the Turnipseed case and those that apply it — and .many of the cases do not go this far1 — is that the fact accorded the value of prima facie evidence have such relationship to the matter in issue as to be admissible in evidence as relevant and material to that issue. This does not mean that the proved fact standing alone need be enough to go to the jury on the matter in issue, absent the statutory rule. It means merely that without the statute the proved fact would be a normal and proper item in the total body of evidence introduced and effective to establish the ultimate fact.
Here the question is whether an individual has acquired a new domicil of choice. Ordinarily to establish the affirmative of that issue it would be necessary to show that the individual in question had come to the place of alleged new domicil and that his presence there was coupled with an intention to make that place his home for an indefinite period. Gallagher v. Philadelphia Transportation Co., 3 Cir. (1950), 185 F.2d 543. Of course proof of six weeks’ presence standing alone would establish the physical element of domicil. And the fact that one has been continuously in the community for more than a month is one relevant fact which, in normal course without any statutory presumption, would properly be accepted, along with any and all other indicia of connection with and attachment to the community, as some objective manifestation of an intention to make more than a transient sojourn. It would be proof of behavior having *623some probative value on the question of the state of mind. Thus it seems to me that the rational connection between six weeks’ continuous presence and domicil is substantial and very clear. It proves one element of domicil and is relevant to the other. In these circumstances it is difficult to see upon what basis the statutory presumption can be attacked unless it is argued that domicil must in logic be inferable from six weeks’ presence standing alone before the latter fact can by legislation be made prima facie evidence of the former. Apparently, this is the view of the majority. The difficulty with that position is that the Supreme Court seems to have settled the law the other way. The accepted doctrine was stated in Yee Hem v. United States (1925) 268 U.S. 178, 45 S. Ct. 470, 472, 69 L. Ed. 904, as follows: “If the effect of the legislative act is to give to the facts from which the presumption is drawn an artificial value to some extent, it is no more than happens in respect of a great variety of presumptions not resting upon statute.” An examination of the cases shows that the Supreme Court and other courts have repeatedly approved statutes which, for the limited purpose of prima facie proof as herein defined, accord facts greater artificial probative value than is attributed to the proved fact by the present statute. Thus, membership in any organization on a state’s subversive list may validly be made prima facie evidence that the individual himself advocates the overthrow of our government by force. Adler v. Board of Education (1952), 342 U.S. 485, 72 S. Ct. 380, 96 L. Ed. 517. A statute may make the fact that a naturalized citizen goes abroad to establish his home within five years after his acquisition of American citizenship prima facie evidence that he fraudulently misrepresented his intention to adhere to this country years earlier when he applied for citizenship. Luria v. United States (1913) 231 U.S. 9, 34 S. Ct. *62410, 58 L. Ed. 101. Congress can validly provide that possession of narcotics without a package bearing a revenue stamp creates a rebuttable presumption that the possessor acquired them by purchase and not in a stamped package. Casey v. United States (1928) 276 U.S. 413, 48 S. Ct. 603, 72 L. Ed. 632. Under the statute approved in the Turnipseed case itself, the fact that a moving train damages a person or property, unless rebutted, requires a conclusion that the employees of the railroad were negligent. Under another rather familiar type of statute, if an automobile driven by a person not its owner is involved in a collision, the driver is to be regarded as the agent of the owner, unless evidence is adduced to the contrary. Koops v. Gregg (1943) 130 Conn. 185, 32 A.2d 653. Cf. People v. Kayne (1938) 286 Mich. 571, 282 N.W. 248. A statute may raise a presumption of fraud against a bank’s officers and directors from the fact that the bank has become insolvent. Griffin v. State (1914) 142 Ga. 636, 83 S.E. 540, L.R.A. 1915C, 716. Even the commonplace presumption that motorists and pedestrians on today’s highways use due care for their safety, however useful as a rule of evidence, is highly artificial if measured by common experience. If artificiality does not condemn all these rules and many others as well, I cannot see anything objectionable in the provision in suit.
The opinion of the court makes two additional points. One seems to be that this statute should be treated as if it embodied something different from the ordinary shifting of the burden of going forward with evidence because in so many jurisdictions, including the Virgin Islands, so few defendants elect to contest divorce actions. To me this circumstance is not relevant to the question of legislative power to make one fact prima facie evidence of another. I cannot see that the percentage of defendants who take advantage of the opportunity to rebut a *625presumption affects the genuineness or the essential fairness of the opportunity the legislature has given all defendants to eliminate the presumption entirely by merely offering evidence on the ultimate issue. And that, in my judgment, is the important consideration here.
The other point urged by the majority is that because the issue of domicil goes to the jurisdiction of the court the fact from which domicil is presumed must be more strongly probative than a fact normally must be to become prima facie evidence of another fact. It is recognized that there is no authority for this proposition, but it is advanced by its proponents as an inherently reasonable distinction. However, it seems to me that the answer to the critical question whether it is arbitrary and unfair to create a presumptive relationship between a period of presence and domicil is in logic the same whether in a given case the purpose of proving domicil is to determine the inheritance of personal property, or voting rights, or entitlement to poor relief, or the existence of divorce jurisdiction, or any other issue in a lawsuit. Indeed, from the point of view of a defendant I think it is more likely to be harmful to use a statutory presumption to establish the merits of a claim against him than to determine whether one professionally competent tribunal or another is to hear the suit.
This brings me to my last point on this provision of the statute. Whom does the questioned rule of evidence deprive of anything without due process of law? The Fifth Amendment says “No person shall be” denied the essentials of fair procedure. But the present rule deprives no defendant of a fair and full opportunity to challenge the domiciliary claims of the plaintiff and the jurisdiction of the court. In contrast it is instructive to consider how much harsher and more drastic than this provision is the legislation approved as consistent with due process by the Supreme Court *626in York v. State of Texas, 1890, 137 U.S. 15, 11 S. Ct. 9, 34 L. Ed. 604, under which a defendant, could not even appear to challenge the jurisdiction of a court without submitting fully to its attempted assertion of power.
Also relevant to the problem of finding whose rights this statute invades is the fact that the present defendant has not even questioned the validity of the Virgin Islands rule of prima facie evidence. This is something the courts are doing on their own initiative.-
II
In striking down the second amendment of the statute, which provides for divorce where both parties are subject to the jurisdiction of the insular possession and its courts, this court now says that the Fifth Amendment requires that the exercise of legal power to grant divorce be restricted to those cases where one party at least is a local domiciliary. The agreed starting point in this phase of the case is the fact that English and American judges in recent times have refrained, in the absence of statute, from exercising their divorce power except in cases involving local domiciliaries. But what is it that raises this judicial rule of self-restraint to the status of an invariable Constitutional principle? What makes any legislative effort to establish an alternative basis upon which state power may be exercised in divorce cases a violation of due process of law?
I can find nothing in the history of the present judge-made rule which entitles it to Constitutional sanction. Certainly it is no ancient landmark of the common law. I do not know of any evidence that such a concept even existed in the jurisprudence of 18th century England or that it could even possibly have been a part of the conception of procedural due process at the time our Constitution wás adopted.
*627The common law courts in England had no divorce jurisdiction at the time of the American Revolution and I know of none which was exercised by the courts in the North American British colonies. The English ecclesiastical courts could grant a form of relief analogous to our present separation from bed and board. And Parliament could legislate an absolute divorce, presumably for any subject to the King wherever he might make his home. But it was not until 1857 that the common law courts in England were for the first time given authority to entertain divorce causes. See 20 and 21 Vict. c. 85.
In the United States our Constitutional scheme placed this power among those relegated to the several states. They began exercising it through their courts in the early days of the nation. A contemporary scholar has suggested, and I have seen no contrary evidence or suggestion, that it was Story, in the 1834 publication of the first edition of his Commentaries on the Conflict of Laws, who first gave currency to and soon won rather general judicial acceptance for the theory that matters of divorce should be left to the place where the spouses made their home. Cook, Is Haddock v. Haddock Overruled, 1943, 18 Ind. L.J. 165. Perhaps this is an oversimplification of history. However, it does seem clear that the rule that divorce jurisdiction. will be exercised only by the courts of a state which has a domiciliary connection with the spouses is a creation of nineteenth century American judges. It is also clear that the rule did not become settled in England, the normal source of common law tradition, until the 1895 decision of the Privy Council in Le Mesurier v. Le Mesurier, [1895] A.C. 517. Thus, we seem to have the curious chronology of the American courts adopting a rule of practice in the first half of the nineteenth century under the influence of the creative scholarship of a distinguished writer, the British courts adopting this doctrine ■ in the latter half of. the *628nineteenth century, and now in mid-twentieth century, American judges saying that the doctrine is one of those fundamental ideas which must be read into the original provisions of our Constitution. My conclusion is that, on such evidence as is at hand, the limitation of the divorce power to the domiciliary state has no such ancient roots or impressive history as to suggest its entitlement to perpetuation as a Constitutional requirement.
I do not mean to suggest that prerevolutionary existence is essential to Constitutional protection of a doctrine. But it does seem to me that when a rule is one of self-limitation which judges have imposed upon themselves in relatively recent times we should not treat it as a Constitutional requirement unless it is very plain that a proposed legislative change would result in a fundamentally arbitrary and unfair way of dealing with men in modern society. Accordingly, I think our real question on this phase of the case is whether it is clearly arbitrary or unfair for a legislature to adopt an alternative for domicil as an appropriate foundation for divorce power.
When I get to this point I am impressed that a number of states in the British Commonwealth have by legislation made domicil unnecessary to divorce jurisdiction in various situations. See Griswold, Divorce Jurisdiction and Recognition of Divorce Decrees — A Comparative Study, 1951, 65 Harv. L. Rev. 193, 197-208. I find it difficult to see in what respect these abandonments of domicil as a fundamental basis of divorce are patently unfair and arbitrary, even though a particular legislature may not have been restrained by a written Constitution.
I have also found it helpful in judging whether the domiciliary rule is a Constitutional necessity to reread some of the judicial discussion before our judicial forbears, through much restatement by themselves, had come to regard this rule as something fundamental in the legal *629order. I find particularly interesting the discussion of the Lord Justices in Niboyet v. Niboyet, 1878, L.R. 4 P.D. 1. The Justices there debated the merits and demerits of the domicil rule against a wider rule which would extend jurisdiction to persons living for the time being in England but domiciled in Prance. The reading of such a judicial discussion leaves one rather confident that there is nothing in the essential nature of civilized procedure or even inherent in the common law viewpoint which makes the domicil rule a must.
I think the soundness of this view is but emphasized if one contests the majority’s position on the ground of its own choosing. The court reasons this way: “Because it [marriage] is a matter of public concern, the public, through the state, has an interest both in its formation and in its dissolution, and the state which has that interest is the state of domicile, because that is where the party ‘dwelleth and hath his home’ ”. Accordingly, the court concludes “that adherence to the domiciliary requirement is necessary if our states are really to have control over the domestic relations of their citizens”, and that any departure from the domiciliary rule would be a denial of procedural due process. This statement of social justification of a legal rule presupposes a stable and intimate attachment of both spouses to a single community which in fact and alone has a genuine interest in their relationship.2 But this picture is no longer characteristic of our society or of the conduct of estranged spouses in it. In their activities and their careers men are increasingly mobile. Community attachments tend to be less intimate and less lasting than heretofore. And when the unsettling factor of do*630mestic estrangement is added there is considerable likelihood that the spouses will go their- separate ways, in different communities. One need not approve these patterns of behavior to recognize what doubt they cast upon the essentiality of a legal rule which must be justified by premising a single community which alone and intimately is concerned with each unsuccessful marriage.
Actually, the concept of domicil as a basis of jurisdiction is in practice elusive and very unsatisfactory for several reasons. It is a highly technical concept depending upon the proof of the mental attitude of a person toward a place. Whether in taxation or in divorce, the use of domicil as a jurisdictional base gives trouble when it is applied to people who really have no “home feeling” toward any place or, at the other end of the scale, to those who have more than one home. And, as already pointed out, in the divorce field difficulties are multiplied because the estranged spouses so often establish separate homes. Thus, when a court is asked to grant a divorce it very often finds that not one domicil but at least two — potentially more through refinements of the “marital domicil” concept — may be interested in the parties and their relationship. In these all too familiar situations of divided domicil, the jurisdictional requirement which the majority regards as so essential to fairness that it can not be changed is a troublemaker and a potential source of injustice.
In this very case, suppose Mrs. Alton had proved to the satisfaction of the majority of this court that her six weeks stay in the Virgin Islands had been attended by the intention to remain there permanently, while Mr. Alton continued a domiciliary of Connecticut. Under the rule of the power of the domicil of one spouse as settled in Williams v. State of North Carolina, 1942, 317 U.S. 287, 63 S. Ct. 207, 87 L. Ed. 279, overruling Haddock v. Haddock, 1906, 201 U.S. 562, 26 S. Ct. 525, 50 L. Ed. 867, it is clear that the *631Virgin Islands would have plenary divorce power in this situation. But what of the interest of Connecticut, the home of the husband, the place of marriage, and the last matrimonial domicil, which must be very important under the rationalization offered to justify the domiciliary rule? Or consider the facts in Maynard v. Hill, 1887, 125 U.S. 190, 8 S. Ct. 723, 31 L. Ed. 654, where the Territory of Oregon granted a legislative divorce to a man who had left his family in the east, promising to send for them when he became settled in the west, but instead persuaded a friendly territorial legislature in his new home to grant him a divorce. The domiciliary rule says that Oregon had jurisdiction to divorce the parties. In all such cases as these the domiciliary rule permits the public interest and concern of the defendant’s domicil as well as his personal interest to be ignored entirely if it can only be shown that the complaining spouse really intends to live in the place where suit is filed.
At this stage it seems to me that a reasonable person can say that the domiciliary rule does not accomplish what its proponents, including the majority here, claim for it. If it is socially justified in some circumstances, it works unfairly without social justification, in others. Perhaps the trouble is that it exaggerates the theoretical interest of the technical domicil of a plaintiff at the time of suit for divorce at the expense of personal and community interests on the defendant’s side. . .
When the merits and demerits of the rule of domiciliary jurisdiction are thus weighed, one person may conclude that it still works well enough in a large enough number of cases to deserve retention. But that permissible conclusion cannot be a requirement of justice or logic. There is room for difference of judgment.
In the Virgin Islands it has seemed to the legislature that an alternative to the domiciliary rule is worth a trial. *632And in selecting the alternative of personal jurisdiction over both parties, the legislature has obviated that very disregard of interests on the defendant’s side which is the great weakness of the domiciliary rule. In this section I can find nothing arbitrary or unfair; hence, nothing inconsistent with the Fifth Amendment.
One other matter should be mentioned. Although the court recognizes that, as concerns authoritative precedents, this case requires us to travel beyond the place “where legal trails end”, the majority opinion places some reliance upon the less than pellucid body of case law which is concerned with various aspects of the problem of recognition of divorce granted in one state of the union by a sister state. For present purposes I do not find these cases very helpful. The due process question in divorce jurisdiction which we have to decide is whether it is fair for a state and its courts to adjudicate the merits of a petition for the dissolution of a particular marriage. The problem of the full faith and credit cases is to what extent a second state must subordinate its notions of policy about a marital matter in which it wants to have a voice to what a sister state has already decided. Perhaps full faith should be given to every American divorce decree which satisfies due process. But until the Supreme Court makes it clear that in this area due process and full faith are of the same dimensions, I mistrust any inversion of reasoning which would extract from the not invariant line of decisions on full faith and credit the essentials of due process in the original exercise of divorce power.
Ill
Although for the reasons already stated I believe both of the questioned provisions of the Virgin Islands divorce statute are valid, they may differ in their bearing upon the proper disposition of a suit.
*633In all of the proceedings in this case prior to decision by this court the litigation has been treated as if it involved only the problem of adequate prima facie proof of domicil, and not the alternative possibility of maintaining the suit regardless of domicil. Thus, when the matter came before the district court on motion to confirm findings of the commissioner who had sat as a master, there was this colloquy between the court and counsel:
“The Court: I have looked at the Transcript of the Record herein and I would like to ask whether you have any more evidence to offer on the question of domicile.
“Mr. Dudley: No, sir.
“The Court: It is my opinion, after examining the record, that the proof herein is not sufficient to establish domicile in accordance with the directive in the case of Burch v. Burch, decided by the Court of Appeals of this Circuit.
“Mr. Dudley: If your Honor please, our divorce law has been amended as of May 29, 1953, and there is a new section 9a now in effect which makes six weeks residence on the part of the plaintiff prior to the filing of the complaint prima facie evidence of domicile.
“The Court: I have seen the new section and, as I said before, I doubt whether it is sufficient to confer jurisdiction, and I will have to deny your motion. The motion will therefore be denied and the complaint will be dismissed.”
In this court the appellant has urged only that the ruling based upon the above quoted colloquy was incorrect. Since the plaintiff has thus tried to prove domicil and contends that she succeeded, I think there should be a reversal on the ground that she did prove domicil in the manner provided by a valid statute.
But because the majority, disapproving this rule of prima facie evidence, found it necessary also to consider the second provision of the statute, I have thought it appropriate to set out my reasons for believing that the due process clause does not prevent the entertaining and ad*634judicating of a divorce action in any American state or territory which has personal jurisdiction over both spouses. However, it seems proper to point out that if a state proceeds upon this new basis of divorce jurisdiction another conflict of laws difficulty must be faced before the merits of the claim can be decided. That, difficulty is the proper choice of the law to govern the controversy.
So long as one of the spouses has had a domiciliary relationship to the forum it has been conventional theory that the forum has sufficient connection with the domestic relation which is the subject matter of suit to justify not only the exercise of its judicial power to decide the controversy but also the application of its own substantive law of divorce as well. Stewart v. Stewart, 1919, 32 Idaho 180, 180 Pac. 165. It is quite possible that some of the difficulties which have arisen in this field are the result of failure to keep in view that these are distinct problems although the existence of a domiciliary relationship is thought to solve both.
But once the power to decide the case is based merely upon personal jurisdiction a court must decide as a separate question upon what basis, if any, the local substantive law of divorce can properly be applied to determine whether the plaintiff is entitled to the relief sought. In this case, if it should appear that Mr. and Mrs. Alton were both domiciled in Connecticut at the time of suit in the Virgin Islands and that their estrangement had resulted from conduct in the matrimonial home state, it may well be that under correct application of conflict of laws doctrine, and even under the due process clause, it is encumbent upon the Virgin Islands, lacking connection with the subject matter, to apply the divorce law of some state that has such connection, here Connecticut. Cf. Hartford Accident & Indemnity Co. v. Delta & Pine Land Co., 1934, 292 U.S. *635143, 54 S. Ct. 634, 78 L. Ed. 1178; Home Ins. Co. v. Dick, 1930, 281 U.S. 397, 50 S. Ct. 338, 74 L. Ed. 926.
Of course such a solution would be a novelty in divorce procedure. But the entire situation presented by this statute is very unusual. And the legislation is an innovation in a very important area. I think, therefore, that we should try to answer no more questions than the exigencies of this litigation require. I am specially reluctant to express any judgment on a point which was not considered below and was not briefed before us. Accordingly, I do no more than point out that this choice of law question would have to be considered if the court’s power to decide this case depended upon personal jurisdiction and that basis of jurisdiction were sustained, as I believe it should be.
As this case actually stands before us, I think we need and should do no more than to reverse on the issue that was actually contested in the district court.
I am authorized to state that Chief Judge BIGGS and Circuit Judge KALODNER concur in the views stated in this opinion.
Dean Wigmore cites many cases to supp.ort the view that a legislature has the broadest discretion in establishing these rules of prima facie evidence. See 4 Wigmore, Evidence § 1356 (3d ed.).
For such a situation, see the setting of the controversy in Williams v. State of North Carolina, supra, as vividly outlined in Powell, And Repent at Leisure, an Inquiry into the Unhappy Lot of Those Whom Nevada Hath Joined Together and North Carolina Hath Put Asunder (1945), 58 Harv. L. Rev. 930, 932-933, notes 6 and 7.