CHAPTER XVII

A CENTURY AND A QUARTER OF DIVORCE LEGISLATION IN THE UNITED STATES, 1776-1903

[BIBLIOGRAPHICAL NOTE XVII.--The session laws and compilations used in the preparation of this chapter are the same as those mentioned in Bibliographical Note XVI; and they are listed in the Bibliographical Index, V. The entire body of divorce laws enacted in each of the states and territories since 1775 has been examined. Among the decisions cited the most important are West Cambridge _v._ Lexington (October, 1823), 1 Pickering, _Mass. Reports_, 507-12; Putnam _v._ Putnam (September, 1829), 8 Pickering, _Mass. Reports_, 433-35; Desaussure's comments on the case of Vaigneur _v._ Kirk (1808), 2 _South Carolina Equity Reports_, 644-46; Justice Pope's opinion in McCrery _v._ Davis (1894), 44 _South Carolina Reports_, 195-227; Justice Nisbet's opinion in Head _v._ Head, 2 _Georgia Reports_ (1847), 191-211; Van Voorhis _v._ Brintnall, 86 _New York Reports_ (1881), 18; Willey _v._ Willey, 22 _Washington Reports_ (1900), 115-21; and Estate of Wood, 137 _California Reports_ (1902), 129 ff.

For summaries of the divorce laws of the states at different periods see Lloyd, _Treatise on the Law of Divorce_ (Boston and New York, 1887); Hirsh, _Tabulated Digest of the Divorce Laws of the U. S._ (New York, 1888; new ed., 1901); Stimson, _American Statute Law_ (Boston, 1886), I, 682-715; Fairbanks, _The Divorce Laws of Mass._ (Boston, 1887); Neubauer, "Ehescheidung im Auslande," in _ZVR._, VIII, 278-316; IX, 160-74 (Stuttgart, 1889-91); Woolsey, _Divorce and Divorce Legislation_ (2d ed., New York, 1882); and compare the works of Vanness, Noble, Convers, Snyder, Ernst, and Whitney mentioned in Bibliographical Note XVI. Whitmore has a helpful article on "Statutory Restraints on the Marriage of Divorced Persons," in _Central Law Journal_, LVII, 444-49 (St. Louis, 1903). Consult the literature described in Bibliographical Note XVIII.]

I. THE NEW ENGLAND STATES

During the colonial era the broad outlines and essential principles of the American divorce law, as it still exists in the various states, had already taken form. Long before the Revolution it was predetermined that a free and tolerant policy in this regard must prevail in the United States. The task of the legislator during the century following the birth of the nation has, in general, consisted in effecting a further liberalization in the causes of divorce; while at the same time the details of the system have been gradually wrought out. At the close of the period one finds much more elaborate and careful provisions regarding causes, residence, notice, alimony and property than at the beginning. An attempt will be made in this chapter to sketch the course of legislation in all of the states during a hundred and twenty-five years. Necessarily only the more salient features can be brought out. The beginning and the end, with some of the more important intervening changes, may be dwelt upon. The immense volume of laws, the constant stream of legislative enactments, the ceaseless tinkering of the statute-maker, the wearisome repetitions, render anything more than this very difficult and perhaps unnecessary. The most that one can hope for is to make the right impression; to disclose the true perspective by a judicious selection and grouping of the materials.

_a_) _Jurisdiction; causes and kinds of divorce._--Through their silence on the subject nearly all of the first state constitutions left the power of granting divorces in the hands of the legislative bodies. In Massachusetts, however, the practice of the provincial period was temporarily continued. "All causes of marriage, divorce, and alimony," declares the constitution of 1780, "shall be heard by the Governor and Council, until the Legislature shall by law make other provision."[1] Such provision was made in 1786. Yet six years thereafter Governor Hancock is obliged to return to the senate unsigned a bill "for dissolving the bond of matrimony between Daniel Chickering and Abigail his wife," remarking that it is unconstitutional and the proposed divorce is for a cause for which by law only a separation _a mensa et thoro_ may be granted.[2] By the act of 1786 all questions of divorce and alimony are referred to the "Supreme Judicial Court holden for the County where the parties live," and its decrees are final.[3] Here the jurisdiction remained until 1887, when it was vested in the superior court with appeal to the first-named tribunal; and the power to hear petitions for separate maintenance and for the care, custody, education, and support of minor children was given to the courts of probate in the several counties.[4]

[1] _Const. of Mass._ (1780), chap. 3.

[2] For the document containing this veto see _Acts and Laws of the Commonwealth of Mass._ (1790-91: reprinted by the secretary of state, Boston, 1895), 575, 576.

[3] _Laws of the Commonwealth of Mass., 1780-1816_ (1807-16), I, 303.

[4] Act of May 31, 1887: _Supp. to the Pub. Stat. of the Com. of Mass., 1882-88_ (1890), 584, 585.

The statute of 1786 is reactionary with respect to the grounds of divorce. It is expressly declared that no divorce from the bond of matrimony, in the proper sense of the word, shall be allowed except for impotency or adultery in either of the parties. But in the outset it is necessary to be on one's guard against a confusion of terms caused by a retention of canonical usage. In this act, and for many years in the statutes of Massachusetts, as in those of some of the other states, the sentence of nullity of void or voidable wedlock, on the usual grounds of forbidden degrees, bigamy, or the like, is called "divorce."[5] For the first time in the revision of 1835 such unions, if solemnized within the state, are declared to be "absolutely void, without any decree of divorce, or other legal process;"[6] and this is typical of the tendency in other states[7] to adopt what is now the prevailing usage.[8]

[5] The act provides "That divorces from the bond of matrimony shall be decreed, in case the parties are within the degrees aforesaid, or either of them had a former wife or husband, or for impotency or adultery in either of the parties."--_Laws of the Com. of Mass., 1780-1816_, I, 301.

[6] "All marriages which are prohibited by law on account of consanguinity or affinity between the parties, or on account of either of them having a former wife or husband then living; all marriages, solemnized when either of the parties was insane or an idiot, and all marriages, between a white person and a negro, Indian or mulatto," shall, if solemnized within the state, be absolutely void, "without any decree of divorce, or other legal process."--_Rev. Stat. of the Com. of Mass._ (1836), 479. The same is true when either of the parties is under the age of consent, "if they shall separate during such nonage, and shall not cohabit together afterwards."--_Ibid._, 479. The clause forbidding marriages between a white person and a negro, Indian, or mulatto was repealed Feb. 25, 1843: _Supp. to Rev. Stat., 1836-53_ (1854), 248; _Acts and Resolves_ (1843), 4.

[7] So in New Hampshire: compare the act of Feb. 17, 1791: _Laws of the State of N. H._ (1797), 295, with _Rev. Stat._ (1843), 293, when the modern usage was adopted. For Rhode Island see _Pub. Laws_ (1798), 497, and later revisions; for Maine compare _Laws_ (1821), I, 344, 345, with _Rev. Stat._ (1847), 364 (modern usage).

[8] On the confusing use of terms see BISHOP, _Marriage, Divorce, and Separation_, II, 214, who says: "Not unfrequently the judicial declaration of nullity is called a 'divorce.' It is properly so when the marriage it declares void was only voidable. For example, it is common and correct in law language to speak of impotence as cause for divorce;" but to prevent confusion he favors the term "sentence" or "decree of nullity" to indicate "the legal avoiding of a voidable marriage." On the other hand, SHELFORD, _Marriage and Divorce_, 365, holds that "divorce" cannot properly be applied to sentences for annulment of either void or voidable marriages. For the present state of the law this appears to be the right conclusion. BLACKSTONE, _Com._, I, 440, retains the canonical usage.

The act under discussion was conservative in another important respect. Divorce from bed and board, which had crept into the judicial practice toward the close of the provincial era, was now allowed either partner by statute on the one ground of "extreme cruelty." Two new causes were added twenty-five years later. By the act of 1786, it will be observed, desertion and long absence, admitted during the earlier period as sufficient causes for dissolving the marriage bond, are not mentioned for either kind of divorce.[9] But in 1811 it was enacted that the wife may be divorced _a mensa et thoro_, whenever the husband "shall utterly desert" her, or whenever, "being of sufficient ability thereto," he shall "wantonly and cruelly neglect or refuse to provide suitable maintenance for her."[10] In all cases of separation from bed and board, as provided in 1829, the court may assign the wife all the personal estate which the husband received through the marriage, or such part of it as may seem just under the circumstances; while "all promissory notes and other choses in action" belonging to her before the marriage, or made payable during the coverture to her alone, or jointly with the husband on account of property belonging to her or debts due to her before the marriage, and all legacies to her, and personal property, which may have descended to her, as heir, or be held for her in trust, or in any other way appertaining to her in her own right, none of which things enumerated have been reduced to possession by the husband before the libel was filed, shall be and remain her separate property; and she is empowered to bring suit to recover it "in the same manner as if she were a _feme sole_."[11] No further important change[12] in the law appears to have been made before 1870, when divorce from bed and board was abolished.[13]

[9] But an act of the preceding year "against adultery, polygamy, and lewdness" exempts from its penalties a person whose husband or wife has been absent seven years unheard of: Act of Feb. 17, 1785, _Laws of the Com. of Mass., 1780-1816_, I, 217, 218.

[10] Act of Feb. 28, 1811: _ibid._, IV, 223.

[11] Act of Feb. 18, 1829: _Laws of the Com. of Mass., 1828-31_ (1831), 83, 84.

[12] The causes of divorce _a mensa et thoro_ remain unaltered in _Rev. Stat. of the Com. of Mass., 1835_ (1836), 480.

[13] _Supp. to Gen. Stat. of the Com. of Mass., 1860-72_, I (2d ed., Boston, 1873), 871 (act of June 23, 1870).

Chief interest, therefore, centers in the history of divorce from the bond of wedlock. To the two grounds of dissolution originally permitted new causes were added from time to time. Thus in 1835 the confinement of either spouse at hard labor under penal sentence for a period of seven years or more is declared sufficient for such a divorce; and a pardon granted to the guilty person will not work a restoration of conjugal rights.[14] Utter and wilful desertion for a term of five years came next in 1838;[15] and in 1850 a fifth cause, probably relating to the Shakers, was added. If either partner, it is declared, shall leave the other without consent and join a "religious sect or society that believes, or professes to believe, the relation between husband and wife void or unlawful," and there remain for three years, such act shall be deemed in behalf of the injured person a "sufficient cause of divorce from the bond of matrimony."[16]

[14] _Rev. Stat._ (1836), 480. Impotency is also sanctioned; but this was already allowed by the act of 1786.

[15] Act of April 17, 1838: _Laws of the Com. of Mass._ (1838), 415.

[16] Act of March 20, 1850: _Supp. to Rev. Stat., 1836-53_, I, 592.

A measure of fundamental importance makes its appearance in 1867. By it the divorce system of Massachusetts is completely reorganized. Not only is the way opened for presently doing away with separation from bed and board, but provision is made for suspending final action in any suit for dissolution of marriage by a device similar to that adopted in the English statute of 1860. The distinction between the "decree _nisi_" and the "decree absolute" was then introduced. "Decrees for divorce from the bond of matrimony may in the first instance be decrees _nisi_, to become absolute after the expiration of such time, not being less than six months from the entry thereof, as the court shall, by general or special orders, direct. At the expiration of the time assigned, on motion of the party in whose favor the decree was rendered, which motion may be entertained by any judge in term or vacation, the decree shall be made absolute, if the party moving shall have complied with the orders of the court, and no sufficient cause to the contrary shall appear." The orders of the court referred to require the person in whose favor a decree _nisi_ has been rendered to publish at his own cost, in one or more newspapers, designated by the court, the fact of granting of the decree together with its terms and such other notice as the court may direct.[17] It will be observed that there is no express provision for "intervention," as in England by a private citizen or the Queen's proctor.[18] The institution of the decree _nisi_ gave the legislator thereafter a great deal of trouble. Statute after statute was enacted to alter, extend, or repeal its provisions. These it would be useless to dwell upon, even if the import of some of them could readily be understood.[19] After thirty years of tinkering and experiment, the law now stands in substance about as it was first made. By the act of May 2, 1893, all decrees of divorce are in the first instance to be decrees _nisi_, without further proceedings "to become absolute after the expiration of six months;" unless the court on the application of some interested person otherwise orders.[20] The requirement of publication in the newspapers at the expense of the petitioner is not retained.

[17] Act of May 9, 1867: _Supp. to Gen. Stat. of the Com. of Mass., 1860-72_, I, 565, 566. _Cf._ 98 _Mass. Reports_, 408; 104 _ibid._, 567.

[18] See above chap. xi, sec. iii, _d_).

[19] So by an act of 1870 the decree _nisi_ _may_ in three years and _shall_ in five years be made absolute, upon proof of the parties living separate during the period; if they live together, the decree _nisi_ becomes void: _Supp. to Gen. Stat., 1860-72_, I, 871. This act was repealed in 1873: _Supp. to Gen. Stat., 1873-77_, II, 104; but the interval in case of a decree for desertion was then fixed at three years: _ibid._, 104. In the next year the act of 1867 was amended by adding, "but a decree of divorce when personal service is made on the libellee, or when the libel for divorce shall have been entered at a term prior to the term granting a decree of divorce, shall be a decree absolute, and not _nisi_": _ibid._, II, 306 (June 30, 1874). On May 19, 1875, the interval fixed by the law of 1870 was restored: three years on petition of the libellant; five years on petition of either party: _ibid._, II, 364. But in 1881 it was again made six months on the petition of either party: _Acts and Resolves_ (1881), 563. The next year the law was slightly modified in the details of procedure, the six months' interval being retained: _ibid._ (1882), 178, 179; amending chap. 146, _Pub. Stat. of the Com. of Mass._ (1882), 813, 815.

[20] Act of May 2, 1893: _Acts and Resolves_ (1893), 916, amending slightly another act of the same year: _ibid._, 829, 830. _Cf._ _Rev. Laws_ (1902), II, 1355.

The introduction of the decree _nisi_ in 1867, and the abrogation of the decree from bed and board in 1870, led at once to an extension of the causes of divorce from the bond of marriage. In addition to the five grounds already existing, a statute of the last-named year authorizes a full divorce for "extreme cruelty," "gross and confirmed habits of intoxication contracted after marriage," or "cruel or abusive treatment by either of the parties," and "on the libel of the wife, when the husband, being of sufficient ability, grossly or wantonly and cruelly refuses or neglects to provide suitable maintenance for her." Several of these causes, it will be noticed, had already existed as grounds for separation from bed and board, and were now merely transferred to full divorce. "Utter desertion," first allowed in 1838, likewise appears in this act as a new cause; but it is so only for the reason that all limitation as to the term of desertion is now omitted.[21] But in 1873 the period was fixed at three years,[22] and this term is retained in the present law.[23] Finally in 1889 dissolution of wedlock is granted for "gross and confirmed drunkenness" caused "by the voluntary and excessive use of opium or other drugs."[24] By the omission of one, the modification and combination of others, these ten causes have now been reduced to seven. By the present law a full divorce, to be a decree _nisi_ in the first instance, may be granted for (1) adultery; (2) impotency; (3) utter desertion for three years; (4) gross and confirmed habits of intoxication caused by the voluntary and excessive use of intoxicating liquors, opium, or other drugs; (5) cruel and abusive treatment; (6) on the libel of the wife, if the husband, being of sufficient ability, grossly or wantonly and cruelly refuses or neglects to provide suitable maintenance for her; (7) when either spouse has been sentenced to confinement at hard labor for life or for five years or more.[25]

[21] _Supp. to Gen. Stat. of the Com. of Mass., 1860-72_, I, 871.

[22] Act of June 11, 1873: _Acts and Resolves_ (1873), 908.

[23] _Pub. Stat. of the Com. of Mass._ (Boston, 1882), 813.

[24] Act of June 7, 1889: _Acts and Resolves_ (1889), 1172.

[25] _Rev. Laws_ (1902), II, 1352, 1353. Divorce for joining a religious sect, under the act of 1850, seems to have been dropped out in the revision. It is still in _Pub. Stat._ (1882), 813.

The century's legislation in the other New England states regarding the causes of divorce shows important differences in details and in the rate of progress; but the general tendency and the final result are much the same. For a short period previous to 1784 the legislature of New Hampshire exercised the right of granting divorces from the marriage bond.[26] The constitution of that year, following the example of Massachusetts, put a stop to the practice.[27] So by the act of February 17, 1791, which determined the general character of the divorce laws of that state for half a century, jurisdiction is vested in the superior court of judicature, where, under sanction of the constitution[28] of 1792, it remained until 1855, when it was transferred to the supreme court.[29] In the outset the laws of New Hampshire are more liberal in this regard than those of Massachusetts, and the development is more rapid. By the act of 1791, just mentioned, a divorce _a vinculo_ may be granted for the impotency, adultery, extreme cruelty, or three years' absence of either spouse; and to the wife when the husband wilfully abandons her for three years, refusing to provide.[30] But, it should be observed, separation from bed and board is not recognized. This law stood unaltered until 1839, when, in addition to the causes already assigned, a divorce is authorized for three years' wilful desertion or refusal to cohabit by either person, if the cause continues at the time of petition.[31]

[26] See the _Index to the MSS. Laws of New Hampshire Recorded in the Office of the Secretary of State, 1679-1883_ (1886), 149, 150, where a list is given showing that legislative decrees were granted in 1766, 1771, 1773, 1778, 1779, 1780, 1781, 1782, and 1783.

[27] See the provision in POORE, _Charters_, II, 1290.

[28] It is by that constitution left in the hands of the superior court until the legislature shall make provision: POORE, _Charters_, II, 1305; also in _Const. and Laws of the State of N. H._ (1805), 18.

[29] See _Laws of N. H._ (1855), 1542; also _Gen. Stat._ (1867), 386; _Gen. Laws_ (1878), 432, 433; _Pub. Stat._ (1891), 573.

[30] _Laws of the State of N. H._ (1797), 295.

[31] _Laws of N. H._ (1839, act of July 6), 400. This act was amended in 1840 so that the divorce may be given within three months after passage of the act, provided the whole time of desertion before and after shall not be less than three years: _Laws of N. H._ (1840, June 19), 439, 440.

The next year a broad step in advance was taken. In addition to the existing causes, five[32] new and important grounds were at once introduced. A divorce may be granted in favor of the "innocent party" when the other is convicted and actually imprisoned for a felony; or becomes a habitual drunkard and so continues for three years; or "so treats the other, as seriously to injure health, or endanger reason;" or "when the conduct of either party shall be so gross, wicked and repugnant to the marriage covenant, as to occasion the separation of the other for the space of three years."[33] This last clause is omitted from the revised statutes of 1842. But among the twelve grounds there enumerated two new ones appear. As by the Massachusetts law of 1850, divorce is now granted either person when the other joins and remains three years with a religious sect or society "professing to believe the relation of husband and wife unlawful;" or to the "wife of any alien or citizen of another state, living separate," when she has resided in the commonwealth three years, the husband "having left the United States with the intention of becoming a citizen of some foreign country, and not having during that time" returned to "claim his marital rights," nor having made suitable provision for her support.[34] With the subsequent addition of two more causes the tale is complete. Since 1854 any "citizen" may claim a divorce when without his consent the wife willingly absents herself "for three years together;" or when in like manner she has "gone to reside beyond the limits" of the state and there remained ten years together without returning to claim her marriage rights.[35] These fourteen general grounds of divorce still appear in the statute-book;[36] but it should be noted that not less than seven of them have to do with absence or desertion of one or the other of the persons under various conditions.

[32] Counting divorce for injury to health or endangering reason as two grounds, as in the _Rev. Stat._ (1842), 293.

[33] _Laws of N. H._ (1840, November), 488, 489. In the case of habitual drunkenness and of gross and wicked conduct not more than two of the three years may precede the passage of the act.

[34] _Rev. Stat. of the State of N. H._ (1843), 293. In these cases the time may be counted before and after the act, or if the three years have already expired, then a divorce may be granted in one month after it goes into force: _ibid._, 293, 294. The period for joining a religious sect was reduced to six months by the act of Jan. 4, 1849: _Laws of N. H._ (1848-49), 707; _Comp. Stat._ (1853), 377.

[35] _Laws of N. H._ (1854), 1424, 1425; also _Gen. Stat. of the State of N. H._ (1867), 335.

[36] They are still in force in _Pub. Stat._ (1900), 591. To constitute a cause there must now be conviction for a "crime" punishable in the state by more than one year's imprisonment; and there must be actual confinement under the sentence.

At the close of the colonial era and until 1850, it will be remembered,[37] the legislature of Connecticut continued to grant divorces on various grounds; but jurisdiction in most cases was exercised by the superior court,[38] where it still remains.[39] Legislative divorce is not prohibited by the constitution; and it appears to be still permitted by the law. A recent act provides that "whenever any petition for divorce shall have been referred to any committee of the general assembly, such committee may give to the attorney general reasonable notice of all hearings on such petition, and he shall thereupon take such action as he shall deem to be just and equitable in the premises, and he shall appear before such committee ... whenever in his opinion justice so requires."[40] Since 1667, as elsewhere seen, divorce from the bond of wedlock had been granted for adultery, fraudulent contract, wilful desertion for three years, and for seven years' absence without word. To these grounds, in 1843, "habitual intemperance" and "intolerable cruelty" were added.[41] Three more new causes followed in 1849. Divorce was then sanctioned for sentence to imprisonment for life; "infamous crime involving a violation of conjugal duty;" and for "any such misconduct ... as permanently destroys the happiness of the petitioner, and defeats the purpose of the marriage relation."[42] The remarkable "omnibus" clause last quoted was not repealed until 1878.[43] The number of causes was thus reduced to eight, and thereafter no further changes seem to have been made.[44]

[37] See chap. XV, sec. i, _c_).

[38] So in the _Acts and Laws of his Majesty's Colony of Conn._ (1750), 43; in _Acts and Laws_ (1784), 41; _ibid._ (1805), 457; the _Pub. Stat. Laws_ (1821), 178, 179; _ibid._ (1835), 162, 163; _ibid._ (1838), 185, 186; _Pub. Acts_ (1849), 17.

[39] _Gen. Stat. of Conn._ (1887), 612.

[40] Act of March 21, 1899: _Pub. Acts_, 996.

[41] _Pub. Acts_ (1843), 20; _Rev. Stat._ (1849), 274. For a construction of "intolerable cruelty" see Shaw _v._ Shaw, 17 _Conn. Reports_, 189.

[42] _Pub. Acts_ (1849), 17 (June 19). _Cf._ _Gen. Stat._ (1866), 305, 306, where the nine causes already existing in 1849 are enumerated; also _ibid._ (1875), 188.

[43] _Pub. Acts_ (1878), 305.

[44] The eight causes already named appear in _Gen. Stat._ (1887), 612; and no later action seems to have been taken. _Cf._ _Gen. Stat._ (1902), 1090, 1091.

Throughout the century the supreme court of Rhode Island has exercised jurisdiction in cases of divorce and alimony,[45] although until 1851, as elsewhere explained, the legislature retained a share in this power. At the beginning of the period a marriage might be dissolved for (1) impotency, (2) adultery, (3) extreme cruelty, (4) wilful desertion for five years, (5) the husband's neglect or refusal to provide, or (6) for any other "gross misbehaviour and wickedness in either of the parties, repugnant to and in violation of the marriage covenant."[46] The last clause is surely broad enough, and no further ground of separation was found necessary until 1844. In that year (7) "continued drunkenness" is added.[47] Seven years later the court is given discretionary power to dispense with proof of full five years' desertion and to grant relief in less time.[48] Finally the extreme limit of modern legislation is reached in allowing (8) a decree when either spouse is guilty of "habitual, excessive, and intemperate use of opium, morphine, or chloral."[49] In 1902 the fifth cause in the above series was modified, a full divorce being then authorized for the husband's neglect _and_ refusal to provide his wife with necessaries for at least one year.[50] So the century, which began with six grounds, ends with but two new causes for the dissolution of wedlock. In the meantime, however, we have a rare example of reactionary legislation. In 1882 the policy of nearly two hundred and fifty years was reversed.[51] It was then provided that in future "divorce from bed, board, and cohabitation, until the parties be reconciled, may be granted for any of the causes for which by law a divorce from the bond of marriage may be decreed, and for such other causes as may seem to require the same."[52] This sweeping provision is still in force.[53]

[45] So in 1798: _Pub. Laws of R. I._ (1798), 481. See also _Gen. Laws_ (1896), 760, 761, where exclusive jurisdiction in such cases is vested in the appellate division of the supreme court.

[46] _Pub. Laws_ (1798), 479.

[47] _Pub. Laws_ (1844), 263. But this provision may be earlier; I have not been able to verify the date.

[48] _Laws of R. I._ (1851), 796.

[49] _Gen. Laws_ (1896), 634. Eight causes are here formally enumerated; but the act further declares that when it is alleged in the petition that the parties have lived apart from each other for at least ten years, the court may in its discretion grant a divorce: _ibid._, 634. This provision originated in 1893: _Acts and Resolves_ (1892-93), 237.

[50] _Pub. Laws_ (1902), 39-41.

[51] For the rare cases of permission to live "apart" granted by the legislature cannot be regarded as historically important.

[52] _Pub. Stat._ (1882), 427.

[53] _Gen. Law_ (1896), 634, 635; _Pub. Laws_ (1902), 39. This act of 1902 allows such separation, provided the petitioner has been a domiciled inhabitant of the state and has resided there for such length of time as the court shall deem sufficient.

The first word in the history of divorce legislation for Vermont appears in the records of the "assumption" period. In 1779 the "representatives of the freemen" authorize the superior court to grant dissolution of the bond of marriage for the same four causes allowed at that time by the Connecticut laws, but by implication only the aggrieved person is permitted to remarry.[54] This restriction does not appear in the statutes enacted after the attainment of statehood. By these the supreme court may grant either spouse a decree for impotence, adultery, intolerable severity, three years' wilful desertion with total neglect of duty, or for the usual term of long absence unheard of.[55] The same grounds are retained in 1805, but with one important modification. In the case of "intolerable severity" it is left optional with the court whether the decree shall be from bed and board or from the marriage bond.[56] This provision, however, was short-lived, for it seems to have been repealed in 1807.[57] The number of causes of divorce _a vinculo_ in 1839 has increased to six, but one old ground--impotence has given place to two new ones--actual confinement on a criminal sentence for three years or more, and gross, wanton, and cruel neglect of the husband to provide when he is able.[58] By the existing law the same six causes are expressly recognized.[59] But the statute contemplates divorce on still other grounds; for it is provided that libels for causes other than those named shall be tried in the county where the persons or one of them resides.[60] The last word of the period is retrogressive, decrees from bed and board being restored after an interval of almost exactly one hundred years. By the act of November 24, 1896, such separations, "forever or for a limited time," are authorized, as in Rhode Island, "for any of the causes for which a divorce from the bond of matrimony may be declared."[61] Jurisdiction is now vested in the county courts, each held by an assigned judge of the supreme court, who may try questions of fact as well as of law.[62]

[54] SLADE, _Vermont State Papers_, including laws enacted 1779-86 (1823), 364.

[55] _Laws of the State of Vermont_ (1798), 333.

[56] Act of Nov. 7, 1805: _Laws of the State of Vt._ (1808), I, 270-72.

[57] It appears to have been abrogated by sec. 3 of the act of Oct. 21, 1807: see _Laws of Vt._ (1825), 364, 365, note.

Very naturally the first divorce legislation of Maine is based largely upon the contemporary laws of Massachusetts; and her policy in this regard since the attainment of statehood in 1820 has developed on lines parallel to those followed by the parent commonwealth, although there are some interesting divergences in matters of detail. The statutes of 1821 embody the Massachusetts law of 1786, together with such subsequent legislation as was still in force. Jurisdiction is vested in the supreme judicial court. Divorce from the bond of marriage is allowed for the same two causes named in that act. Separation from bed and board for cruelty, utter desertion, and neglect to provide is authorized, just as in Massachusetts after 1811,[63] and this kind of divorce existed until 1883. Three new grounds for dissolving marriage were allowed in 1830. These were five years' wilful desertion, uniting with the society called Shakers, and sentence to state's prison--in each of the latter two cases the term being likewise five years.[64] To these were subsequently added fraudulent contract and three years' habitual drunkenness such as to incapacitate either spouse from taking care of the family.[65]

[58] _Revision of the Stat._ (1840), 324.

[59] _Vermont Stat._ (1894), 507.

[60] _Ibid._

[61] _Acts and Resolves_ (1896), 43, 44.

[62] _Vermont Stat._ (1894), 508, 236.

[63] _Laws of the State of Maine_ (1821), I, 344-47; also SMITH, _Laws of the State of Maine_ (1834), I, 424 ff.

[64] Act of March 6, 1830: _Pub. Acts_ (1830), 1227, 1228. This statute merely changes the terms of another of the preceding year: _ibid._ (1829), 1208, 1209.

[65] In 1835 a divorce is authorized "where the consent of one of the parties to the marriage was obtained, by gross and deliberate fraud or false pretences ... provided the parties have not cohabited, as husband and wife, after such fraud was known to the party, thus deceived."--_Pub. Acts_ (1835), 177. Habitual drunkenness was added in 1838: _Pub. Acts_ (1838), 499, 500; _cf._ _Rev. Stat._ (2d ed., 1847), 364.

A radical change was made in 1847. All the foregoing causes were at once superseded by a sweeping provision which is without parallel in the previous history of New England. By an act of that year, amended in one particular in 1849, any justice of the supreme judicial court, at any term held in the county of the parties, may grant decrees of divorce from the bond of wedlock, when "in the exercise of a sound discretion" he may "deem the same reasonable and proper, conducive to domestic harmony, and consistent with the peace and morality of society."[66] Moreover, to understand the full import of this law we must take into account an enactment of 1850. In no case is the libellant then to be "restricted to the proof of causes happening within the state," or where either of the persons is "residing within the state," but he "may allege and prove any facts tending to show that the divorce would be" just according to the provision of the law in question.[67] The act of 1847 remained in force until 1883,[68] when a new statute appeared which completely transformed the divorce system of Maine. Seven causes of dissolution _a vinculo_ are prescribed. These are (1) adultery; (2) impotence; (3) extreme cruelty; (4) utter desertion for three years; (5) gross and confirmed habits of intoxication; (6) cruel and abusive treatment; and (7) gross, cruel, and wanton neglect or refusal of the husband, being able, to provide for the wife.[69] At the same time the decree from bed and board is abolished; and the decree _nisi_ is instituted in practically the same form as in Massachusetts.[70] In 1897 a modified provision as to residence was adopted, and two years later the law took its present form. The same seven causes sanctioned by the act of 1883 are retained, except that under the fifth head the qualifying words are added, "from the use of intoxicating liquors, opium, or other drugs."[71]

[66] The act of July 13, 1847, gave a "majority" of the justices this power: _Acts and Resolves_ (1847), 8; but this was amended in harmony with the text in 1849: _Acts and Resolves_ (1849), 104.

[67] _Ibid._ (1850), 150, 151.

[68] Except by an act of 1863, in addition to the "blanket" provision of 1847, three years' wilful desertion is specified as a cause: _Laws_ (1863), chap. 211, sec. 2; also in _Rev. Stat._ (1871), 488.

[69] _Acts and Resolves_ (1883), chap. 212, secs. 1, 2, p. 175 (March 13); _Rev. Stat._ (1884), 520-23.

[70] _Acts and Resolves_ (1883), chap. 212, sec. 4, pp. 175, 176; _Rev. Stat._ (1884), 522.

[71] Compare the act of March 2, 1897: _Acts and Resolves_ (1897), 232, 233, with that of March 15, 1899: _ibid._ (1899), 89.

_b_) _Remarriage, residence, notice, and miscellaneous provisions._--The character of a divorce law does not, of course, depend wholly upon the number of causes for separation allowed, but in large measure upon the conditions under which the decree is granted and the safeguards provided to prevent hasty or clandestine action. Whether or not either or both of the divorced persons shall be allowed to contract further marriage, and on what terms, has always been an important question. The more general tendency of modern legislation, in the United States and elsewhere, is to allow entire freedom in this regard, except for a short period after the decree. But in New England during the century the matter has been dealt with in various ways. Thus in Massachusetts, for more than fifty years after the Revolution, the guilty party to a complete divorce was absolutely incapable of contracting a legal marriage. This doctrine is established by later judicial construction of the act of February 17, 1785, in connection with that of March 16, 1786. "We think it very clear," declares Chief Justice Parker, interpreting these laws in 1823, that "the marriage of the guilty party, after a divorce _a vinculo_ for the cause of adultery, if contracted within this state, would be unlawful and void. The statutes which we think must have this construction are not expressed in very intelligible terms, but, on close examination, we think the intention of the legislature cannot be mistaken."[72] In this decision the court further raises one of the gravest difficulties of divorce legislation in the United States. The marriage in another state of the guilty party to a divorce in Massachusetts, under the laws just considered, is held to be valid, if such marriage is not forbidden in the state where the new marriage is contracted.[73] But will such a marriage be good in Massachusetts, should the persons at once return to that commonwealth? This important question, left in doubt by Chief Justice Parker, was settled in 1829. In the case of Putnam _v._ Putnam the court decided that if a man, "being a resident in this state for the sake of evading the law, goes into a neighboring state where such a marriage is valid, and is there married and immediately returns and continues to reside here, the marriage is valid here, and after his death his widow is entitled to dower in his estate."[74]

[72] Case of West Cambridge _v._ Lexington (Oct., 1823), 1 PICKERING, 507-12. The act of 1785 provides that the penalties for "polygamy," which it prescribes, shall not extend "to any person that is or shall be at the time of such marriage divorced, by sentence of any Court ... unless such person is the guilty cause of such divorce."--_Acts and Laws_ (Reprint, Boston, 1784), 118; also in _Perpetual Laws of the Com. of Mass._, I, 217, 218. The act of 1786, chap. 69, provides that all "marriages where either of the parties shall have a former wife or husband living at the time of such marriage, shall be absolutely void."--_Perpetual Laws of the Com._, I, 301. This provision is ambiguous, and might of itself seem to make void the marriage even of the innocent party to a divorce; but, in the case just cited, the court held: "Supposing the legislature to have considered the parties to a marriage which had been dissolved as standing in the relation of husband and wife, so far as to bring them within the purview of the former statute [that of 1785], it will follow that a marriage of persons so situated would be void. It is true, that by this statute [that of 1786] standing by itself, the marriage of an innocent party to a divorce would not be protected; but the statutes, being _in pari materia_, must be construed together, and the exception in the first cited statute in favor of such persons, would avail."--1 PICKERING, 509.

[73] See 1 PICKERING, 510, 511.

[74] Case of Putnam _v._ Putnam, 8 PICKERING, 433-35 (Sept., 1829).

Gradually the stringency of the early Massachusetts rule was relaxed. An act of 1841 declares that whenever a divorce from the bond of matrimony "shall be decreed for any of the causes allowed by law, the guilty party shall be debarred from contracting marriage during the life-time" of the other, subject for disobedience to the penalty prescribed for "polygamy."[75] Twelve years later, by leave of the court, in case of divorce for desertion, the offending spouse is allowed to remarry.[76] A further step is taken in 1855. In all cases, except for adultery, the court is then empowered, on petition and proper notice, to allow the person against whom a decree has been granted to marry again.[77] In 1864 a new rule appears. Three years must now elapse in all cases, not excepting a decree for adultery, before such permission may be granted.[78] Still later all restriction as to time is removed,[79] but as the law now stands, the offending person, without petition to the Court, may again marry after an interval of two years from the date of the absolute decree.[80]

[75] Act of March 13, 1841: _Acts and Resolves_ (1841), 371; also in _Supp. to Rev. Stat., 1836-53_, I, 189.

[76] Act of May 19, 1853: _Supp. to Rev. Stat., 1836-53_, I, 976.

[77] Act of May 21, 1855, repealing the act of May 19, 1853: _Acts and Resolves_ (1855), 823.

[78] Act of May 11, 1864: _Supp. to Gen. Stat., 1860-72_, I, 279. But there must be no collusion. See 10 ALLEN, 276.

[79] Act of June 11, 1873: _Supp. to Gen. Stat., 1873-77_, 104; Act of June 30, 1874: _ibid._, 306.

[80] Act of May 6, 1881: _Acts and Resolves_ (1881), 563; _Pub. Stat._ (1882), 815; _Rev. Laws_ (1902), II, 1355.

The early laws of Maine show no restraints upon remarriage after divorce, but since 1883 the Massachusetts precedent has been followed, with some interesting variations. In case of collusion, where both persons are guilty of adultery, no separation will be allowed. After obtaining the final decree, the person in whose favor it is granted may not marry within two years without the court's permission. Within that period the adverse party is absolutely forbidden to remarry; nor may he do so thereafter without the court's consent.[81] There is also a unique provision for a new trial. Within three years after a judgment has been rendered, a rehearing as to divorce may be had in case the persons have not cohabited nor either of them contracted a new marriage during the period. Moreover, if either has married again, such new trial may be "granted as to alimony or specific sum decreed" when "it appears that justice has not been done through fraud, accident, mistake, or misfortune."[82]

[81] _Rev. Stat._ (1884), 520-22.

[82] _Rev. Stat. of the State of Maine_ (1884), 522. This provision originated in 1874: _Acts and Resolves_ (1874), chap. 184, sec. 3, p. 130.

During the "assumption" period the popular assembly of Vermont followed the Connecticut rule as it then stood, allowing only the innocent person to contract a new marriage.[83] But from 1797 onward the laws of the state grant entire freedom to either spouse in this regard.[84] At present the "libellee" is not permitted "to marry a person other than the libellant for three years," unless the latter dies.[85]

[83] SLADE, _State Papers_, 364.

[84] By an act of 1797, both parties may at once remarry: _Laws of the State of Vt._ (1798), 364.

[85] Act of Nov. 27, 1878: _Acts and Resolves_ (1878), 32, 33; also in _Stat. of Vt._ (1894), 511, 512. The penalty for violation of this provision is imprisonment from one to five years.

The other states have been less conservative. By the New Hampshire law of 1840, already noticed, divorce from the bond of marriage is allowed to the "innocent party" in case of felony, drunkenness, and the other causes there assigned.[86] This provision is still retained;[87] but either person may remarry. So also by the Connecticut law previous to 1849 it is the "aggrieved" who is to be counted as "single" and able to marry, while at present no such limitation appears. Rhode Island has been even more liberal. At no time during the century, apparently, has the legislature placed any conditions upon the remarriage of either party to a divorce decreed for any cause, except that in 1902 it was provided that no decree shall become final and operative until six months after trial and decision.[88]

[86] _Laws of N. H._ (1840), 488, 489. See subsection _a_) above.

[87] _Pub. Stat. of N. H._ (1900), 591.

[88] _Pub. Laws of R. I._ (1902), 41.

Clandestine divorce is an evil as notorious, if not so harmful, as clandestine marriage. To prevent it the New England states have been fairly prudent in their regulation of "residence" and "notice." By the existing law of Massachusetts, a divorce will be granted for any lawful cause, occurring in the state or elsewhere, when the libellant has lived for five years in the commonwealth; or, when the parties were inhabitants of the state at the time of the marriage, if the libellant has been such an inhabitant for three years before the libel was filed, provided neither person came into the state for the purpose. With this exception, as expressly provided in the statute, a divorce will not be granted for any cause, if the parties have never lived together as man and wife in the commonwealth; nor for any cause occurring in another state or country, unless, before it occurred, they had so lived together in the commonwealth, and one of them was there living at the time it took place. A divorce lawfully decreed in another state or country is recognized as valid. On the other hand, when an inhabitant of the commonwealth goes outside the state to obtain a divorce for a cause which occurred in the state while the persons there resided, or for a cause which would not be recognized as lawful therein, the "divorce so obtained shall be of no force or effect" in the commonwealth.[89] Proceedings for a divorce are not barred, however, when the "libellee has been continuously absent for such a period of time and under such circumstances as would raise a presumption of death."[90]

[89] _Pub. Stat. of the Com. of Mass._ (1882), 813, 817; _Rev. Laws_ (1902), II, 1353, 1357. The main features of the present law originated as early as 1835; _Rev. Stat._ (1836), 480, 484. By the act of May 2, 1877, the prior time of residence had been fixed at three years in all cases where the parties were inhabitants of the state at the time of the marriage: _Supp. to Gen. Stat., 1873-77_, II, 516.

[90] Act of May 8, 1884: _Acts and Resolves_, 181; _Supp. to Pub. Stat._, chap. 219, p. 185; _Rev. Laws_ (1902), II, 1353.

Similar provisions exist in the other states, although sometimes they are less severe. The New Hampshire court has jurisdiction in matters of divorce under three alternate conditions: (1) when both parties are domiciled in the state when the libel is filed; (2) when the plaintiff is so domiciled and the defendant is personally served with process in the state; and (3) when either of the parties is domiciled in the state at the commencement of the suit, and has actually resided there for the year preceding.[91] In Rhode Island the term of prior residence for the petitioner is two years.[92] As early as 1805 in Vermont a three-years' residence was required in order to obtain a divorce; and a decree would not be granted for any cause occurring before the applicant became a resident of the state.[93] The term was reduced to one year in 1807.[94] As the law stood in 1863, the requirement as to residence was still defective. "Such divorce for adultery, intolerable severity, and wilful desertion for three years may be granted when the causes happened while residing in another state or country if the libellant has resided in the state two years previous to the term of court to which the petition is preferred."[95] An attempt was made in 1878 to put a check upon the increasing number of divorces by prescribing more careful conditions. No divorce is henceforth to "be decreed for any cause, if the parties have never lived together as husband and wife" in the state, nor unless the libellant shall have resided there "one full year next preceding the filing of the libel in court." Furthermore, no divorce may be granted for any cause "which shall have accrued in any other state or country, unless one of the parties was then living in the state, and unless before such cause accrued the parties had lived together in this state as husband and wife.[96] In substance this law is still in force, though the present provisions are more precise. A divorce may not be granted "for any cause which accrued in another state or country before the parties lived together in this state as husband and wife, and while neither party was a resident of this state, unless the libellant shall have resided in this state at least one year and in the county where the libel is preferred at least three months next before the term of the court to which the libel is preferred."[97] The statutes of Maine authorize divorce for any legal cause, if the persons were married in the state; or if they cohabited there after marriage; or if the libellant resided in the state when the cause of action occurred, or had so resided for one year prior to the commencement of the suit; or if the libellee is a resident of the state when suit is brought.[98] With regard to foreign divorces and divorces obtained outside the state by inhabitants thereof, the law of Maine is identical with that of Massachusetts.[99] Throughout the century Connecticut has maintained a high standard in this regard. With some qualifications, three years' prior residence has always been required of a petitioner coming into the state from abroad.[100] As the law now stands, a complaint will be dismissed unless the complainant has continuously resided in the state for the preceding three years, except when the cause of divorce arose subsequently to his removal into the same; or unless the defendant had in like manner there resided for three years, and actual service was made upon him; or "unless the alleged cause is habitual intemperance, or intolerable cruelty and the plaintiff was domiciled in the state at the time of the marriage," and before bringing the complaint has returned with the intention of there remaining.[101]

[91] _Pub. Stat. of the State of N. H._ (1891), 495; _ibid._ (1900), 590, 591.

[92] Raised from one year to two by _Pub. Laws_ (1902), 40; but it is provided that if the defendant has for that time been a resident and domiciled inhabitant of the state, and has been actually served with process, the requirement of the act as to term of the petitioner's residence shall be satisfied.

[93] Act of Nov. 7, 1805: _Laws of State of Vt._ (1808), I, 270.

[94] _Laws of State of Vt._, I, 272, 273, 274.

[95] _Gen. Stat._ (1863), chap. 70.

[96] Act of Nov. 27, 1878: _Vermont Acts and Resolves_ (1878), 32, 33.

[97] _Vermont Stat._ (1894), 507.

[98] Act of March 15, 1899: _Acts and Resolves_, 89. _Cf._ the act of 1897: _Acts and Resolves_, 232, 233, which in the residence clause contained the additional words "or if the libellee is a resident of the state" at the time. This clause was restored by _Acts and Resolves_ (1903), 31.

[99] _Rev. Stat._ (1884), 522.

[100] See _Acts and Laws_ (1797), 457; also _Stat. of the State of Conn._ (1854), 380, where the term may be less for the plaintiff when the defendant has been three years in the state.

[101] _Gen. Stat. of Conn._ (1887), 613; _Gen. Stat._ (1902), 1091.

Provision is likewise made by statute for proper notice to the defendant. Usually much freedom in this regard is left to the court. Thus in Maine, when the residence of the defendant can be ascertained, it must be named in the libel; and if the defendant lives out of the state, notice is to be made in such manner as the court may order. When the residence of the defendant is not known to the plaintiff and cannot be ascertained, the fact must be alleged under oath in the libel.[102] According to the Connecticut statute, the person aggrieved may make complaint to the court "in the form prescribed for civil actions, which shall be duly served on the other party, and whenever alimony is claimed, attachments to secure the same may be made by direction in the suit, or by an order pending suit in the same manner as in other civil actions." But when the adverse party resides out of the state or is absent from it, or his whereabouts is unknown to the plaintiff, "any judge or clerk of the supreme court of errors, or of the superior court, or any county commissioner, may make such order of notice to the adverse party as he may deem reasonable." Then "such notice having been given and duly proved," if the court finds that the defendant has actually received it, the suit may go on; otherwise the court may either "hear the case, or, if it see cause, order such further notice to be given as it may deem reasonable, and continue the complaint until the order is complied with."[103] In no case may a complaint be heard or a decree rendered until after the expiration of ninety days; except when the defendant appears in person or by counsel, when the complaint is to be treated as "privileged" and assigned at once for trial.[104] By the Vermont act of November 26, 1884, designed to "diminish the frequency of divorces," it is provided that "at the term succeeding the term at which the cause is entered, or at any subsequent term to which the cause may be continued, the same shall not be heard unless the libellee is present, except in cases when it is proven to the court that the libellant has, in good faith, attempted to procure the attendance of the libellee and has been unable to do so." In this last event the court may in its discretion proceed to try the case, postpone the hearing in the hope of securing the presence of the libellee, or it may require the latter's deposition.[105] This provision was repealed in 1886.[106] By the present law, when the "libellee is without the state, the libellant may file his libel in the office of the clerk of the court in the county where the same is required to be brought, and such clerk shall issue an order stating the substance of the libel or petition, and requiring the adverse party to appear on the first day of the next stated term of the county court" and make answer. This order the libellant "shall cause to be published in such newspaper as is directed by the order, three weeks successively, the last publication to be at least six weeks previous to the commencement of the term at which the libellee is required to appear." Should the libellee not appear, and "the notice of the pendency of the libel is considered by the court defective or insufficient, it may order further notice to be given."[107]

[102] _Rev. Stat. of Maine_ (1884), 521.

[103] _Gen. Stat. of Conn._ (1887), 612; as modified by the act of May 11, 1899: _Pub. Acts_, 1042. For the earlier laws as to notice see _Acts and Laws_ (1797), 457; _Pub. Stat._ (1821), 178; _Pub. Stat. Laws_ (1835), 162, 163; _Rev. Stat._ (1849), 274, 275; _Stat. of the State_ (1854), 379, 380. _Cf._ _Gen. Stat._ (1902), 1090.

[104] _Gen. Stat. of Conn._ (1887), 613.

[105] _Vermont Acts and Resolves_ (1884), 86.

[106] _Acts and Resolves_ (1886), 50.

[107] _Vermont Stat._ (1894), 508.

Massachusetts likewise has a recent provision as to notice. "When the adverse party does not appear," declares the act of 1898, "and the notice of the pendency of the libel is considered by the court to be defective or insufficient, it may order such further notice as it may consider proper." This statute further provides that "in all libels for divorce where the cause alleged is adultery, the person alleged to be _particeps criminis_ with the libellee may appear and contest the libel."[108] Similar rules have been adopted by other states.[109]

[108] Act of June 2, 1898: _Acts and Resolves_, 443; _cf._ _Rev. Laws_ (1902), II, 1353, 1354.

[109] Rhode Island, in _Pub. Laws_ (1902), 41, has provided that no divorce from the bond of marriage shall be granted "unless the defendant shall, in accordance with the rules adopted by the court, have been personally served with process, if within the state, or with personal notice duly authenticated, if out of the state, or unless the defendant shall have entered an appearance in the cause; or unless it shall appear to the satisfaction of the court that the petitioner does not know the address nor the residence of the defendant and has not been able to ascertain either after reasonable and due inquiry and search for six months," in which case the court may authorize publication. For the former law see _Pub. Stat._ (1882), 428; superseded by _Gen. Laws_ (1896), 635. _Cf._ _Stat. of N. H._ (1891), 497.

Any serious attempt to go into the intricacies of divorce law and procedure would, of course, here be out of place. Every phase of the subject, as illustrated by the decisions and practice of the various state courts, is treated with sufficient fulness and remarkable clearness in Bishop's work on _Marriage, Divorce, and Separation_, but a few details of more general interest may be mentioned. As a rule, the legitimacy of the children, with the right of inheritance, is not affected by a divorce, even when it occurs for the adultery of the mother, but that question is left for separate determination by the courts in the usual way.[110] So also when a supposed second marriage is dissolved, because entered into by mistake while the former wife or husband was living, the children are regarded as the legitimate issue of the parent who at the time of the marriage was capable of contracting, provided the union was made in good faith.[111] When the validity of a marriage or the effect of any former decree of divorce or nullity is doubted, the question may be tried by the court on filing a libel, as in case of divorce.[112] Sometimes the husband and wife are expressly allowed to be witnesses in the suit;[113] or the statute may grant trial by jury at the election of the parties.[114] Usually the court may authorize the wife to resume her maiden name;[115] and occasionally it is empowered to change the name of the minor children.[116]

[110] _Rev. Stat. of Mass._ (1835), 481; _Pub. Stat. of Mass._ (1882), 815; _Rev. Laws of Mass._ (1902), II, 1355; _Pub. Stat. of N. H._ (1900), 592; _Rev. Stat. of Maine_ (1884), 522.

[111] _Rev. Stat. of Mass._ (1835), 482; _Pub. Stat. of Mass._ (1882), 810; _Rev. Laws of Mass._ (1902), II, 1347; _Rev. Stat. of Maine_ (1884), 523.

[112] _Rev. Stat. of Maine_ (1847), 367; _ibid._ (1883), 529; _Rev. Stat. of N. H._ (1843), 293; _Vermont Stat._ (1894), 505; _Rev. Laws of Mass._ (1902), II, 1346.

[113] As in Rhode Island: _Gen. Laws_ (1896), 840; and Vermont: _Stat._ (1894), 273; Maine: _Acts and Resolves_ (1899), 89. _Cf._ _Pub. Stat. of N. H._ (1891), 622.

[114] As in Maine: _Acts and Resolves_ (1899), 89; _Rev. Stat._ (1884), 521; _ibid._ (1847), 368.

[115] _Vermont Stat._ (1894), 512; _Gen. Laws of R. I._ (1896), 636; _Gen. Stat. of Conn._ (1887), 613; _Pub. Stat. of Mass._ (1882), 815. In Maine the court may change the wife's name "at her request": _Acts and Resolves_ (1901), 167.

[116] _Vermont Stat._ (1894), 512.

_c_) _Alimony, property, and custody of children._--During the pendency of a suit for divorce the court is authorized to make orders forbidding the husband to put any restraint upon the personal liberty of the wife, and for the care and custody of the minor children. At the same time it may require the husband to deposit money to enable the wife to maintain or defend the libel;[117] and just provision may also be made for her temporary alimony or support.[118] Vermont grants the county court authority, when the parents are living separate, though not divorced, to make orders for the "care, custody, maintenance and education" of the minor children. Similar orders relating to the children and for the support of the wife, in that state, may be made when without just cause a husband "fails to furnish suitable support to his wife, or has deserted her, or when the wife, for a justifiable cause, is actually living apart from her husband."[119] In like manner, in all the states, the court may make proper orders for the care, custody, and education of the children after the divorce, and for permanent alimony to the wife. In Vermont, New Hampshire, and Massachusetts alimony, or an allowance in the nature of alimony, may be decreed to the husband as well as to the wife.

[117] By the Vermont act of Nov. 22, 1898: _Acts and Resolves_, 38, 39, when a married woman files a libel for divorce and prays for alimony, the husband is enjoined from conveying or removing from the state, during pendency of the libel, such portion of his estate as the judge may think necessary to secure alimony, and from concealing or interfering with the property or clothing of the wife and minor children, or such portion of his personal property as may be at the time in her possession.

[118] _Pub. Stat. of Mass._ (1882), 814; _Laws of Mass._ (1821), 508, 509; _Rev. Stat. of Mass._ (1835), 482; _Vermont Stat._ (1894), 509; _Rev. Stat. of Maine_ (1884), 521; _Rev. Stat. of N. H._ (1843), 294.

[119] _Vermont Stat._ (1894), 510, 511.

A divorce for the cause of adultery committed by the woman, by the Massachusetts statute, does not affect her title to her separate real and personal estate during her life, except that the court may award the man a just share of it for the support of the minor children decreed to his custody. Should the divorced wife marry again, the former husband's interest in such separate estate, after her death, ceases, except as thus required for the children's alimony. After divorce the wife is not entitled to dower; unless the cause be the husband's infidelity or his sentence to confinement at hard labor; and except when the husband dies before a decree _nisi_, granted on the wife's petition, has become absolute.[120] The Massachusetts law, as thus broadly outlined, is typical of that which prevails throughout New England, although there are some important variations in matters of detail.[121] The Vermont statute, in particular, is very clear and elaborate in its provisions. "Upon the dissolution of a marriage, by a divorce or decree of nullity, for any cause except that of adultery committed by the wife," the latter is entitled to the immediate possession of her real estate. In all cases "the court may decree to the wife such part of the real and personal estate of her husband, as it deems just, having regard to the circumstances of the parties respectively; and it may require the husband to disclose on oath, what real and personal estate has come to him by reason of the marriage, and how the same has been disposed of, and what portion thereof remains in his hands." There is also provision for placing the property awarded the wife in the hands of trustees in her behalf.[122]

[120] _Pub. Stat. of Mass._ (1882), 814-16; _Rev. Laws_ (1902), II, 1355.

[121] For New Hampshire, see _Pub. Stat._ (1900), 592, 593. The law of Connecticut is very general. For instance, the court may assign the woman as alimony any part of her late husband's estate not exceeding one-third thereof. If divorced for her misconduct, all property received from the husband in consideration of the marriage or of "love and affection" must be restored. A minor child must be supported by the parents; and upon complaint of either of them at any time, the court may inquire into their pecuniary ability, and pass a decree against either or both for its just maintenance: _Gen. Stat. of Conn._ (1888), 612-14. See also _Gen. Laws of R. I._ (1896), 633-36; _Rev. Stat. of Maine_ (1884), 520-23, where it is provided that, when a divorce is decreed for the adultery of the wife, the husband "may hold her personal estate forever, and her real estate, of which she was seized during coverture, during his life, if they had a child born alive during marriage, otherwise during her life only, if he survives her; but the court may allow her so much of her real or personal estate as is necessary for her subsistence."--_Ibid._, 522. But by an act of 1903 it is provided that where the wife is at fault the husband is "entitled to one-third, in common and undivided of all her real estate, except wild lands, which shall descend to him as if she were dead;" and the court in its discretion may grant him a part of her personal estate. In all cases the right, title, or interest of the libellee in the libellant's real estate is barred by the decree of divorce: _Acts and Resolves_ (1903), 171.

[122] _Vermont Stat._ (1894), 509 ff.

Finally, it may be noted, that only in recent years have any of these states made any adequate provision for gathering and publishing the statistics of divorce.[123]

[123] Massachusetts made such provision in 1882. Clerks of court are to submit annual reports to the secretary of the commonwealth who is to embody the facts in his own report to the legislature. The first report is to cover the period 1879-82: _Supp. to Pub. Stat., 1882-88_, 40, 41. In Connecticut and Rhode Island the clerks are to make a similar report to the secretary of the state board of health: _Gen. Stat. of Conn._ (1887), 566, 567: _Gen. Laws of R. I._ (1896), 768, 322. The same officer is made register of vital statistics in New Hampshire: _Pub. Stat._ (1891), 490; and that state has provided that the clerks of the supreme court shall report to the register the record of all divorces decreed since July 1, 1858: _Laws_ (1901), 513. Similar reports of decrees _nisi_ are required in Maine: _Rev. Stat._ (1884), 522. Vermont has provided for the registration of decrees under general direction of the secretary of the state board of health, who is to publish a biennial report, beginning in 1900: _Acts and Resolves_ (1898), 41 ff.

II. THE SOUTHERN AND SOUTHWESTERN STATES[124]

[124] In this section are considered the laws of the District of Columbia and Porto Rico; the four territories, Arizona, Indian Territory, New Mexico, and Oklahoma; and the fifteen states, Alabama, Arkansas, Florida, Georgia, Kentucky, Louisiana, Maryland, Mississippi, Missouri, North Carolina, South Carolina, Tennessee, Texas, Virginia, and West Virginia.

_a_) _Legislative divorce._--In the South, as elsewhere[125] shown, divorces were at no time granted during the provincial era. Even the provisions of the English ecclesiastical law were not in force, because tribunals competent to administer them were not created. Separation by mutual consent, or some sort of separate maintenance, was the only kind of relief then obtainable. Indeed, after independence was declared, it was more than half a century in Virginia and Maryland, and many years in North Carolina, before the courts were granted even partial jurisdiction in divorce causes.

[125] See chap. xv, sec. ii.

The legislature, however, was not inactive. Conservative as southern sentiment is supposed to have been regarding dissolution of the marriage bond, it is precisely in the South that legislative divorce was tried on the widest scale and where it bore its most evil fruit. It seems probable that from the earliest times following the Revolution, in some of these states, marriages were dissolved by ordinary bills passed by the assemblies. Of these a few examples have been discovered, although they are all of relatively late origin. The earliest appear in the Maryland statutes. Thus, by the act of December 21, 1790, the marriage between John Sewall, of Talbot county, and Eve, his wife, was declared null and void, on the ground, set forth by John in his petition, that, having been convicted of bearing a "mulatto child," his wife with the child had been condemned to servitude and sold, according to the cruel statute of 1715 "in such case made and provided."[126] Another instance of absolute divorce occurred in 1805. It seems that on account of his misconduct Archibald Alexander and his wife Susanna had "mutually agreed to live separate and apart from each other, and that articles of separation were entered into between them for that purpose." While they so lived apart the "said Susanna" took "upon herself the charge of six children, two of which were the children of the said Alexander." But, continues the petition, "in the month of July last there was a well founded report" that Archibald was dead; and "under this belief" Susanna formed a second marriage with John Musket. Accordingly, on their prayer, the legislature declared the former contract "absolutely and to all purposes null and void," and Archibald and Susanna "divorced _a vinculo matrimonii_," but without affecting the rights or legitimacy of the children of the first marriage.[127]

[126] _Laws of Md._ (1790), chap. xxv. _Cf._ BACON, _Laws of Md._ (1715), chap. 44, sec. 26.

[127] _Laws of Md._ (1805), chap. xxxiii.

The session laws for 1806-7 afford five more examples of absolute divorce. On January 3, 1807, Pamela Sampson got herself released from her husband George, because they had long lived "on terms incompatible with the happiness of the conjugal union, which every day, if possible, increased, owing to intoxication which deranged his mind." On the next day Catherine Dimmett, finding herself in the same sad relation with James, her spouse, alleges that she "considers herself in hourly danger from his violence, as he not only attempted his own life, by cutting his own throat in the most barbarous and shocking manner," but has also repeatedly threatened hers, "thereby showing himself free from every moral restraint, and prepared for the commission of the most desperate and bloody deeds." Moreover, he remains in "one continuous state of intoxication, and freely indulges in every species of irregularity;" for all of which the worthy lawmakers felt justified in granting her prayer. On the same day, for cause not named, the nuptial tie of Benjamin and Ruth Fergusson was dissolved, but on condition that the act shall have no force unless the husband shall "give bond, with good and sufficient authority, to be approved by the orphan's court of Baltimore County, ... for the payment of the sum of thirty dollars _per annum_ to the said Ruth during her life, so long as the said Benjamin shall live." In the other two cases no ground is assigned.[128]

[128] _Maryland Laws_ (1806-7), chaps. xxxix, lxix, lxxvi, lxxvii, lxxx.

During the following years the legislature was from time to time appealed to for relief.[129] In 1830 the first act regulating divorce appears in the statute-book. This law provides for judicial process in the initial stages, but leaves the final action to the assembly. It is made "lawful for any person who may intend to apply to the legislature for a divorce, to file a petition, stating the ground of his application, in the court of the county in which the person from whom he desires to be divorced resides." Upon the "filing of such petition, a subpoena shall issue to the party implicated, to appear and answer the same; and, upon such appearance, it shall be the duty of the court to issue a commission to a person or persons therein to be named, to take such testimony as the respective parties require." This testimony, taken after twenty days' notice, must be returned to the clerk of the court issuing the process, who is directed to forward it to the legislature together with "the petition, answer, and all other proceedings had under the application."[130]

[129] Thus the _Laws_ of 1807-8, chaps. xx (no cause given), xxx (no cause given), ciii (desertion and elopement of wife), clxvi (no cause given), yield four cases; and the _Laws_ of 1809, chaps. xxiv, l, two cases more (no cause assigned).

[130] Act of Feb. 27, 1830: _Laws_ (1829-30), chap. 202.

Still further precautions were taken in 1836. In no instance, it is declared, may a divorce be granted unless the persons shall have been _bona fide_ residents of the state for at least twelve months before application. Furthermore, in the case of such residents the sanction of two-thirds of each branch of the legislature is required either for an absolute or for a limited divorce.[131] Five years later the preliminary procedure was changed, and some provision for notice to non-residents was introduced. Application is now to be made "to some justice of the peace, who shall thereupon issue a subpoena directed to some constable or other person, who shall serve the same on the person from whom the divorce is sought." After service and return of the subpoena, either party may, after the lapse of thirty days, proceed to take testimony before a justice of the peace, if they both reside in the same county or city, otherwise by deposition, and transmit it to the legislature at its next annual session. But when the libellee is a non-resident, or is absent from the state, the applicant must give at least three months' notice of his intention to ask the assembly for a divorce, in some newspaper published in the city of Baltimore. Such testimony shall be taken on oath before a justice and transmitted to the legislature as in the case of residents.[132]

[131] Act of March 4, 1836: _Laws_ (1835-36), chap. 128. Twelve months' residence is required by this act.

[132] Act of March 9, 1841: _Laws_ (1840-41), chap. 238.

The law of 1841 was the last attempt in Maryland to regulate legislative divorce. The efforts of the preceding twelve years to devise checks and provide safeguards were largely unavailing. Division of responsibility between the court and the legislature, whose effects are so well illustrated in the case of Georgia presently to be considered, is pretty sure to result in the removal of all real responsibility. Each successive year produced an increasing crop of divorces. Thirty-one were granted in 1835, and thirty-six in 1837. Occasionally the decree is from bed and board; in most cases it is for absolute dissolution of the marriage bond. Usually it is curtly expressed in a few words of the statute-book. Often the cause is not mentioned; although, after 1830, the details in most instances are doubtless to be found in the judicial papers transmitted to the assembly.[133] In 1842, for the first time, full jurisdiction in divorce cases is bestowed upon the courts. Consequently there is a falling off in the number of legislative decrees; but they nevertheless continue to appear in the session laws until the constitution of 1851 forbids the general assembly to interfere in such matters.[134]

[133] For the numerous cases of legislative divorce see the _Index to the Laws of Maryland, 1826-31_; _ibid._, _1832-37_; _ibid._, _1837-45_, 224-29.

[134] The constitution of 1851, Art. III, sec. 21, declares that "no divorces shall be granted by the General Assembly."

Virginia anticipated Maryland by fifteen years in granting to the superior court of chancery full power to hear and determine suits for absolute and partial divorce. The act of 1827 names the causes for which alone judicial divorces of either kind may be granted, and provides for alimony and custody of the children. But this statute also contemplates the obtaining of divorce _a vinculo_ through resort to the legislature. It is provided that "every person intending to petition the general assembly for a divorce, shall file in the clerk's office of the superior court of laws, for the county in which he or she may reside, a statement of the causes on which the application is founded." At least two months before the next court, notice must be given to the adverse party "by personal service," when a resident in the state; otherwise, by publication for four weeks in "some newspaper printed in the city of Richmond." Thereupon, "without other pleadings in writing," the court "shall cause a jury to be impanelled to ascertain the facts set forth in the said statement; and their verdict shall be recorded;" but the confession of the parties shall not be accepted as evidence at the trial. A certified copy of these proceedings must accompany every petition presented to the legislature; unless a divorce from bed and board shall have been previously granted by the court of chancery, in which case a copy of the record may be substituted.[135]

[135] Act of Feb. 17, 1827: _Acts of the Gen. Assembly_ (1826-27), 21, 22. The same act is repeated in _Supp. to Rev. Code_ (1833), 222, 223. The law of 1827 appears to be the first legislation of Virginia on the subject of divorce, although "lawful divorce"--meaning doubtless that of the legislature--is incidentally mentioned in the act of 1792: _Acts_ (1794), 205. The act of 1827 provides in all cases for an appeal to the court of appeals, but, apparently, not in divorces granted by the assembly.

Under the law of 1827 resort was often made to the general assembly,[136] until in 1848 an act appeared which, after granting to Robert Moran a divorce from his wife Lydia, seeks to abrogate the practice so far as by statute it may be done. "Whereas," runs the preamble, "applications to the legislature for divorces _a vinculo matrimonii_ are becoming frequent, and occupy much time in their consideration, and moreover involve investigations more properly judicial in their nature, and ought, so far as the legislature can do it, [to] be referred to the judicial tribunals of the state;" therefore the courts are granted the same full jurisdiction in absolute divorce which they already possessed in petition for separation from bed and board.[137] This law would not necessarily have put an end to the evil; for the acts of one legislature cannot bind those of another; but that was soon effected by the constitution of 1851, which deprived the assembly of all authority to hear divorce petitions.[138]

[136] Thus, on Jan. 25, 1827, Macy, _alias_ Amasa Gay (formerly Birdsong), got a divorce from her husband Charles. The cause is not mentioned, but he is not permitted to marry during her lifetime: _Acts_ (1826-27), 126. On Jan. 27, 1827, David Parker, of the county of Nansemond, was released from his wife Jane, who likewise was not allowed to remarry: _ibid._, 126.

[137] Act of March 18, 1848: _Acts of the Assembly_ (1847-48), 165-67.

[138] Constitution of 1851, Art. IV, sec. 35: see _Code_ (1860), 48.

For a few years North Carolina tried a still different plan for sharing responsibility between the courts and the legislature. By the act of 1814 full authority to grant separation from bed and board, for any of the causes therein named, with alimony to the wife, is conferred upon the superior court. The same tribunal may also try petitions for full divorce, dismissing the petition, dissolving the "nuptial ties or bonds of matrimony," or declaring the contract null and void, as the case demands; but it is especially provided that "no judgment, sentence, or decree of final or absolute divorce" shall be "valid until ratified by the general assembly."[139] This condition was, however, removed in 1818;[140] and ten years thereafter legislative divorce was entirely abolished, so far as it was possible to accomplish it by statute. Because "the numerous applications for divorce and alimony, annually presented to the general assembly, consume a considerable portion of time in their examination, and consequently retard the investigation of more important (_sic_) subjects of legislation;" and because "such applications might be adjudicated by other tribunals with much less expenditure to the state, and more impartial justice to individuals;" it is therefore enacted that the superior courts of law shall have "sole and original jurisdiction" in both kinds of divorce. From this act it may be inferred that the legislature had granted divorces on petitions which had not gone through the courts and come up to it for ratification; and for causes other than those named in the statute.[141] A few years later, by a constitutional amendment ratified in 1835, the assembly was deprived of the "power to grant a divorce or secure alimony in any individual case;" and the same prohibition appears in the constitution of 1876.[142]

[139] _Laws_ (1814), chap. 5; also in _Haywood's Manual of the Laws of N. C._ (1819), 174-78.

[140] _Acts_ (1818), chap. 968.

[141] This inference is justified by the words of the act as quoted, and from the clause declaring "that all applications for other causes than those specified"--in the act of 1814--"shall be subject to the rules and regulations provided in said act for the causes therein mentioned."--_Acts_ (1827-28), 19, 20. The law of 1814, as to causes, appears unaltered in _Laws of the State_ (1821), II, 1292-95.

[142] POORE, _Charters_, II, 1416 (1835), 1439 (1876).

Until constitutionally prohibited in 1852-53, legislative divorce also existed in Missouri.[143] The law of 1833 endeavors to restrict the action of the assembly to cases for whose trial "before the judiciary" the law has not provided; and it forbids entirely the hearing of any petition when the causes for it "shall have accrued since the next two months preceding the sitting of the legislature." At the same time notice to the opposite party is made essential. In the case of residents, two months' written notification is required, service to be proved by affidavit. If the libellee is a non-resident, publication in a newspaper for at least three weeks successively will suffice.[144]

[143] By the ninth amendment to the constitution of 1820, ratified at the session of 1852-53: _Rev. Stat._ (1856), I, 96; POORE, _Charters_, II, 1122. The prohibition is retained in the constitution of 1875, Art. IV, sec. 53: POORE, _Charters_, II, 1175.

[144] Act of Jan. 31, 1833: _Laws of a Public and General Nature_ (1842), II, 361.

The government report shows several divorces in South Carolina for the year 1869-70; and these were probably granted by the legislature, for no divorce statute then existed.[145]

As early as 1803 the statutes of the Mississippi Territory make provision for both kinds of divorce by judicial sentence; but resort to the legislature is not prohibited.[146] Later, by the constitution of 1817 and the laws thereunder enacted, it is declared that "divorces from the bonds of matrimony shall not be granted, but in cases provided for by law, by suit in chancery;" but it is especially provided that "no decree for such divorce shall have effect until the same shall be sanctioned by two-thirds of both branches of the general assembly."[147] This unwise condition--in substance so often appearing in the enactments of the South--seems to have lasted only until 1832, when it was omitted in the constitution framed in that year. In the meantime the legislature had found plenty of work to do. The session laws of 1833, for example, contain nine divorce decrees, passed probably just before the new constitution went into effect.[148]

[145] WRIGHT, _Report_, 388, 389, 155.

[146] Act of March 10, 1803: _Stat. of Miss. Ter._ (1816), 252-54.

[147] Constitution of 1817, Art. VI, sec. 17: POORE, _Charters_, II, 1064; carried out by act of June 15, 1822: _Code of Miss._ (1848), 496.

[148] _Laws_ (1833), 235 ff.; Const. of 1832, Art. VII, sec. 15: POORE, _Charters_, II, 1077. The omission of the clause expressly requiring legislative sanction in the constitution of 1832 seems clearly to be intended to abolish legislative divorce. Yet the act of 1840 makes the decrees of the courts "final and conclusive, as fully as though the same had been confirmed by the legislature;" from which language one would naturally infer that the legislature had continued to ratify divorces after the constitution went into effect: _Laws_ (1840), 51.

Legislative divorce is prohibited by the constitution of 1868, Art. IV, sec. 22: POORE, _Charters_, II, 1084; and by Art. IV, secs. 87 and 90 of the constitution of 1890: _New York Convention Manual_, Part II, Vol. I, 1067 (1894).

Alabama, as a part of the Mississippi Territory, was, of course, affected by the act of 1803 above cited.[149] Resort to the legislature may have been practiced from the beginning. At any rate, during the existence of the Alabama Territory--from 1817 to 1819--ten divorces were thus obtained.[150] The people seem to have been so much in love with the custom that it is sanctioned, on the usual co-operative plan, by the constitution of 1819. The sixth article of that instrument requires that all decrees of the courts granting absolute dissolution of wedlock shall be confirmed by two-thirds of each house of the assembly, precisely in the same form as by the constitution of Mississippi two years earlier.[151] The act of the next year, conferring jurisdiction in such cases on the circuit courts and defining the causes of divorce, directs that the record of evidence made by the court in each suit shall be sent to the speaker of the house of representatives, who is to open and have it read before the members.[152]

[149] The act also appears in _Digest of Laws of Ala._ (1823), 252.

[150] _Digest_ (1823), 254.

[151] Art. VI, sec. 3, Const. of 1819: _Digest_ (1823), 255: POORE, _Charters_, I, 42.

[152] Act. of Dec. 21, 1820: _Digest_ (1823), 256.

It is not surprising that these "safeguards" proved as futile in Alabama as elsewhere. The obtaining of divorces was facilitated rather than hindered. The number annually granted mounts apace. In 1822 the record is not yet formidable, but the session laws show twenty-three cases in 1843, twenty-four in the next year, and not less than sixty-seven in 1849-50.[153] So it seemed necessary to appeal to organic law for a remedy. The constitution of 1865 therefore declares that absolute divorces shall only be granted by a suit in chancery; and that decrees in chancery "shall be final, unless appealed from in the manner prescribed by law, within three months" from the date of their enrolment. This section is repeated in the constitution of 1867; but in that of 1875 a different provision appears. "No special or local law," it is now declared, "shall be enacted for the benefit of individuals or corporations in cases which are or can be provided for by a general law, or where the relief sought can be given by any court" in the state.[154] From the terms of this section it may be inferred that in exceptional cases resort might still be had to the assembly. Accordingly, in 1883, by legislative decree, we find that Claudia Shaw, of Macon county, was released from the conjugal bond and constituted a _feme sole_ for all purposes whatsoever.[155]

[153] For these examples see _Digest_ (1823), 256-58 (those of 1821-22); _Acts_ (1843), 143-47; _Acts_ (1843-44), 210; _Acts_ (1849-50), 517.

[154] _Cf._ Const. of 1865, Art. IV, sec. 30; that of 1867, Art. IV, sec. 30; and that of 1875, Art. IV, sec. 23: POORE, _Charters_, I, 53, 65, 81.

[155] _Acts_ (1882-83), 587.

The history of American lawmaking in Louisiana opens with two divorce decrees passed by the legislative council of the Territory of Orleans. By the first of these acts, dated January 23, 1805, and signed by Governor Claiborne, the marriage of Captain James Stille and Lydia his wife is dissolved and each is "fully authorized" to "contract in matrimony" again whenever to either it "may seem right." This separation is allowed "in consequence of an unhappy disagreement, resulting from circumstances of an afflicting nature," which had prevented the couple from "enjoying that harmony and domestic happiness which the conjugal state was designed to produce," and leading them soon after the marriage "to resolve upon and stipulate for a complete and perpetual separation."[156]

[156] _Acts Passed at the First Session of the Leg. Council of the Ter. of Orleans_ (1805), 454-56. On May 1, 1805, a divorce was granted to James Elliot and Sophia his wife: _ibid._, 456-58.

This example found frequent imitation both before and after the state of Louisiana was organized. By March 3, 1827, forty-six legislative divorces had been granted.[157] With these, however, the history of such cases comes to an end; for, a few days later, exclusive jurisdiction in all divorce matters was bestowed upon the courts;[158] and the policy thus adopted by statute was ratified by the constitution of 1845.[159]

[157] LISLET, _Gen. Digest_, II, Appendix, 25, 26, gives the list, with dates. These divorce acts, as usual, fill each but two or three lines in the statute-book, and usually the cause is not assigned. For examples see _Acts_ (1822), 12; _ibid._ (1826), 34, 58, 60, 62, 222; and _ibid._ (1827), 12, 18, 24.

[158] By the act of March 19, 1827: _Acts_, 130-35.

[159] Const. of 1845, Art. CXVII: POORE, _Charters_, I, 721; also Const. of 1852, Art. CXIV: POORE, _op. cit._, I, 735; _Civil Code_ (1853), 19; Const. of 1864, Art. CXVII; and Const. of 1868, Art. CXIII: POORE, _op. cit._, I, 750, 767.

A federal law in 1886 prohibits legislative divorce in any of the territories of the United States. Previous to that date, however, it had existed in Arizona. During the single session of 1879 seventeen divorces were granted by legislative decree; and the practice may have continued until stopped by congressional authority.[160]

[160] Fifteen of these divorces were granted by the one act of Feb. 7, 1879: _Acts and Resolutions_ (1879), 5-8; for the others see _ibid._, 46, 112; and compare the act of Congress of July 30, 1886: _Statutes at Large_, XXIV, 170. In the same year, 1879, twenty-eight divorces were granted by the courts of Arizona, and five in the year before: WRIGHT, _Report_, 151.

Kentucky refrained from any divorce legislation until 1809, when jurisdiction was conferred upon the circuit courts.[161] But the jurisdiction was not exclusive; for year by year until 1850, when the usual constitutional interdict appears,[162] the session laws show the assembly engaged in passing divorce decrees.[163] In the meantime provision was made for notice to the adverse party. By the act of 1837, in case of residents of the state, there must be one month's written notice in which the ground of the intended application to the legislature shall be set forth; while, if the defendant is a non-resident, publication of the notice for four weeks in some "authorized" newspaper "may supersede the necessity of personal service." When a divorce is granted on such application, the wife shall receive back the estate which the husband had with her at the marriage, unless she has been guilty of conduct such as by the laws of the state would forfeit her right of dower; and when the husband's conduct is the cause of separation, she is entitled to the same share of his real and personal property as if he were dead.[164]

[161] Act of Jan. 31, 1809: LITTELL, _Stat. Law_ (1814), IV, 19, 20.

[162] Const. of 1850, Art. II, sec. 32: POORE, _op. cit._, I, 671.

[163] See the Index to _Acts of the Gen. Assembly_ for each year, 1809-50.

[164] Act of Feb. 23, 1837: _Acts_ (1836-37), 323, 324.

A few years later the Kentucky assembly accomplished a feat which surely "breaks the record" in the history of social legislation. On the 4th of March, 1843, in one short act of less than two pages of type the hymeneal bonds of thirty-seven couples were severed by one fatal clip of the lawmakers' shears; while, in addition, room is found in the bill to make provision for the children and to restore the maiden names of some of the women, but not for any mention of the causes.[165]

[165] _Acts of the Gen. Assembly_ (1842-43), 205, 206.

It is in Georgia, however, that the divorce laws and judicial decisions reveal the strangest vicissitudes and the most singular vagaries. To understand the course of events it is essential in the outset to observe two important facts. The common law, it will be remembered,[166] was, with certain limitations, adopted by the state in 1784; and the constitution of 1798 permits "two-thirds of each branch of the legislature to pass acts of divorce," but only after the parties shall have had a fair trial before the superior court, and a "verdict shall have been obtained authorizing a divorce upon legal principles."[167] It would have been hard to select a phrase more ambiguous than the clause last quoted. Just what are the "legal principles" referred to? Are they the principles of the English ecclesiastical law, as constituting a part of the common law made binding in 1784? Are they perhaps to be sought in previous enactments of the state or province of Georgia? No such statutes have been discovered; and no divorce seems ever to have been granted, unless by the assembly after the Revolution. With this analysis of the problem before us, the course of legislation during the half-century following the adoption of the constitution of 1798 may now be traced.

[166] See chap. xv, sec. ii.

[167] Const. of 1798, Art. III, sec. 9: _Digest of Laws of Ga._ (1801), 40; POORE, _op. cit._, I, 394.

The worthy lawmaker starts out valiantly. The act of 1802, giving the superior court primary and the legislature final jurisdiction in petitions for total divorce, as required by the constitution, is justified in language which seems grotesque in the light of later experience. Such a measure is needful, we are assured, not only because there are doubts as to the powers of the judges in divorce causes without a statute, but because "marriage being among the most solemn and important contracts in society, has been regulated in all civilized nations by positive systems;" and because "circumstances may require a dissolution of contracts founded on the most binding and sacred obligations which the human mind has been capable of devising, and such circumstances may combine to render necessary the dissolution of the contract of marriage, which dissolution ought not to be dependent on private will, but should require legislative interference; inasmuch as the republic is deeply interested in the private business of its citizens."

The preliminary trial provided for by this act is before a jury whose verdict must take the following form: "We find that sufficient proofs have been referred to our consideration to authorize a total divorce, that is to say, a divorce _a vinculo matrimonii_, upon legal principles between the parties in this case"--which is an attempt, however awkward, to satisfy the demands of both law and constitution.[168] In 1806 a new statute appears, creating a most intricate procedure. As in 1802, no specific causes are named for either limited or complete divorce. All petitions coming before the superior court are to be referred to a "special jury, who shall enquire into the situation of the parties before their marriage and also at the time of the trial." They may grant either a conditional or a total divorce. In the former case their verdict shall make provision out of the husband's property for the separate maintenance of the wife and children; and the court shall cause the "verdict or decree to be carried into effect according to the rules of law, or according to the practice of chancery, as the nature of the case may require." The verdict for absolute divorce is, of course, placed before the legislature for approval. If the legislature "refuse to pass a law or to carry the same into effect," either person, on due notice to the other, may apply to the superior court of his county to appoint three commissioners who, after proper inquiry into the circumstances of the parties, by witnesses when necessary, may allow separate maintenance. The report of the commissioners to the court is to be entered as its judgment. Even now the matter is not ended. There is still a last chance for the discontented spouse. If dissatisfied with the judgment, either person may apply for its modification to the next court, which shall refer the first report or decree to a commission comprising the original three members, with two others. The finding of this body is then entered as the definitive judgment of the court.[169]

[168] Act of Dec. 1, 1802: in _Compilation of Laws of Ga._ (1812), 98-100.

[169] _Compilation of Laws of Ga._ (1812), 312-14.

Thus the law remained until 1833, except that a form of oath was prescribed in 1810.[170] In the meantime an ever-increasing number of divorce acts appears in the session laws.[171] Between 1798 and 1835 at least two hundred and ninety-one decrees for absolute dissolution of marriage were granted by the legislature. In the beginning of the period the average annual output was but four; at the close it had risen to not less than twenty-eight.[172] In one instance the previous finding of a jury seems to have been thought superfluous. John Cormick, having fled from Ireland to Georgia in 1798, before the constitution went into effect, and his family refusing to accompany him, the legislature, without a verdict, declared his person and property exempt from the claims of Eliza his wife as if they were never married, and John was fully authorized to do all things as if he had never entered into the matrimonial state.[173] Another case shows the Georgia lawmaker a close second in legal economics to his brother of Kentucky. On December 13, 1816, twenty-one pairs were set free and the offenders forbidden to remarry in thirteen lines of print, excluding the names.[174] In 1833 a remedy was therefore sought through an amendment to the constitution. "Whereas," explains the preamble, whose redundant adjectives may well be a sign of serious distress, "the frequent, numerous, and repeated, applications to the legislature to grant divorces has (_sic_) become a great annoyance to that body, and is (_sic_) well worth their attention," both on account of the expense and the unnecessary "swelling" of the laws and journals, and "believing that the public good would be much promoted, and that the parties would receive full and complete justice;" therefore it is enacted as a part of the organic law that "divorces shall be final and conclusive when the parties shall have obtained the concurrent verdicts of two special juries authorizing a divorce upon legal principles."[175]

[170] PRINCE, _Digest_ (1837), 190; Head _v._ Head, 2 _Georgia_, 193.

[171] In the _Compilation of Laws_ (1812), 61, 83, 113, 202-4, 264, 385, 408, 508, 509, 512, 569, are eighteen divorce acts; many appear in _Laws of Ga., 1810-19_ (1821), 193-96, 252-63; and eighty-six cases, in DAWSON, _Compilation, 1819-29_ (1831), 141-53.

[172] PRINCE, _Digest_ (1837), 187, note, gives the following summary, which appears to be inconsistent: "The number of persons divorced by the legislature since the date of the present constitution up to the close of the annual session of 1835, is 291, averaging from 1800 to 1810, about 4; from 1810 to 1820, 8; from 1820 to 1830, 18, and since that time, 28 per annum." If his averages are correct, the total number for the entire period would be about 440.

[173] Nov. 27, 1807: _Compilation_ (1812), 385, 386.

[174] _Laws of Ga., 1810-19_ (1821), 262, 263.

[175] Const. 1798, Art. III, sec. 9, amendment of 1833, in force 1835: PRINCE, _Digest_ (1837), 911; POORE, _Charters_, I, 399.

Unless it be assumed that there was no serious intention to put a check upon the facility with which divorces could be obtained, it is almost incredible that a provision so loose and ambiguous should have been adopted. For the retention of the phrase "upon legal principles" still left a rich field for speculation as to the proper grounds of divorce, total or conditional; and it was equally uncertain whether the juries could determine the law as well as the facts in each case. So the courts, apparently, continued to grant as many divorces without help of the assembly as were permitted before that body lost its power to interfere.

Affairs continued in this unsatisfactory condition until 1847, when suddenly what proved in the end to be a drastic remedy was administered in the case of Head _v._ Head, tried on appeal from the superior court of Monroe county. The elaborate opinion of Justice Nisbet in this suit, reviewing as it does the preceding legislation, is the best source of information for the history of divorce in Georgia. The case arose in a petition for dissolution of the marriage bond on the sole ground of abandonment of the husband by the wife, which ground, "it is too plain to admit of question," is not "recognized as a cause of divorce _a vinculo_" by the common law. On the other hand, the counsel for the appellant argued that by "a fair construction of the constitution of Georgia, and of the laws enacted to carry it into effect, the question of a divorce or not, in its totality, is submitted to the special juries; that they are the sole and final judges in all cases of what shall be a good cause of divorce, irrespective of the common law principles." To determine, therefore, the relative powers of the judge and the jury, and to discover what are the "legal principles" mentioned in the constitution, became the dual problem which the court was called upon to solve. In the outset it is held by the court that the constitution of 1798 is in restraint of divorce in three ways: (1) by transferring full jurisdiction in the first instance from the legislature to the superior courts; for before that date the assembly had exercised "unlimited power over the subject;" (2) by restraining the legislative will through requiring a fair trial before a jury before that will could be exercised; (3) by "restricting both the courts and the legislature, as to their power to grant divorces, to such cases as were grantable upon _legal principles_."

Disregard of these intended restrictions in the statutes and in judicial practice had led to most serious evils. The reasons assigned in the preamble to the amendment of 1835, Justice Nisbet urges, were not the true reasons which actuated its authors. That amendment arose "in a conviction upon the minds of prudent and discerning men, that divorces under the constitution of 1798 were alarmingly frequent;" and this was due to the fact that responsibility was divided between the courts and the legislature. "Under the old system, the courts but rarely seem to have felt, that they had anything to do with the trial of the divorce cause, other than to subserve the double purpose of an automaton agent in the hands of lawyers to present their cases to the juries. Believing that the legislature, whether for good or evil, had made the juries the sole arbiters of the law and facts, they could of course feel no responsibility about the matter, and the consequence was, as all men know who know anything of our courts of justice, that divorces were had with flagrant facility; that some were refused which ought to have been allowed, and hundreds were granted which ought to have been refused; and that the event of a divorce cause depended more upon the fact whether it was defended or not, and if defended, upon the zeal and ability of counsel, than upon anything else. Nor was the case essentially different when it came before the legislature. The legislature, taking it for granted that the courts had settled all the _legal principles_ involved, in the majority of cases, with ready acquiescence affirmed the judgment of the court and divorced the parties. The wealth and standing of the parties, their political and social relations, or, perhaps, the personal beauty and address of a female libellant, controlled in many cases the action of the legislature." Referring to the statistics of legislative divorce, above quoted, the court continues: "How fearful was the ratio of increase! Well might the patriot, the Christian, and the moralist look about him for some device to stay this swelling tide of demoralization." But "it is said that the new mode of granting divorces has not remedied the evil; that divorces are as frequent under the new as under the old constitution. This is, we admit, to a great extent true, and the reason is obvious. It is owing to the wrong construction of the constitution"--the submission to the jury of the whole question of law as well as of fact. The Georgia legislature was not checked, as in England, by the record of two preceding trials;[176] "and although in France, divorces by the Napoleonic Code[177] may be granted without cause, upon mutual consent merely, yet the application must be made to a judicial tribunal, and the consent is subjected to constraints, which create great and serious checks upon its abuse."

[176] See chap. xi, sec. 3, _c_).

Accordingly, it was held by the court that the sole causes for "divorce in Georgia are those of the common law." For total divorce, or, more properly speaking, annulment of a voidable marriage, these causes are "pre-contract, consanguinity, affinity, and corporal infirmity;" while for a partial divorce adultery and cruelty are the only grounds recognized.

One cannot help admiring the stern moral courage which enabled the court to render this decision. At one stroke and without warning the social standing of hundreds was put in jeopardy. Those who thought themselves single found themselves married. Many who may have taken new partners became liable to actions for bigamy; and their children were bastards. The justice was aware of his grave responsibility. "The judgment we have given in this case is in repeal of the practice of the courts in a majority of the circuits, and in disaffirmance of the opinion of eminent jurists upon the bench and at the bar, and in conflict with that public sentiment which, springing out of, and strengthened by, the heretofore judicial facility which has characterized the action of the courts, tolerates and expects divorces for slight causes." At the same time, however wise, and in the event beneficent, may have been this judgment, one must also confess that in its wider bearings it reveals the dangers for society which may lurk in the unyielding logic of individual judicial opinion, should healthy public sentiment not be allowed, at least in some measure, to direct and mold the decrees of our courts of justice.[178] The hardships arising from the decision in question were redressed in 1849 by an act validating all second marriages formed in consequence of divorces granted for illegal causes by the courts or by the legislature; and the same year this extraordinary episode in social history was brought to a close by a constitutional amendment declaring that "divorces shall be final and conclusive when the parties shall have obtained the concurrent verdicts of two special juries authorized to divorce upon such legal principles as the general assembly may by law prescribe."[179]

[177] _Code Napoléon_, Nos. 233, 275-97.

[178] Case of Head _v._ Head, 2 _Georgia Reports_, 191-211.

[179] Const. of 1798, Art. III, sec. 9, amendment of 1849: COBB, _Digest_ (1851), 1123; POORE, _Charters_, I, 401.

_b_) _Judicial divorce: jurisdiction, kinds, and causes._--Although during the colonial period divorce laws had not been enacted, after the birth of the nation the wheels of legislation, in most cases, were slow in starting. Once set going, however, they have moved swiftly enough, so that now a great variety of grounds for dissolution of wedlock are sanctioned. Under influence of ecclesiastical law and tradition, conservatism is shown in the retention by nearly all the older states of so-called divorce from bed and board. Except in Arizona, Mississippi, Missouri, New Mexico, Oklahoma, Porto Rico, and Texas, partial divorce is still permitted in all of the commonwealths and territories under review having any legislation on the general subject; for South Carolina, except for a brief period, has never by statute authorized any kind of divorce; and in Florida separate alimony has the same effect as divorce from bed and board.

By the Virginia law of 1827, as already seen, absolute divorce, properly so called, can only be obtained from the legislature, although the superior courts of chancery are then authorized to annul voidable marriages.[180] The same tribunals, however, are granted full "cognizance of matrimonial causes on account of adultery, cruelty, and just cause of bodily fear; and in such cases may grant divorce _a mensa et thoro_ in the usual method of proceeding in those courts." They may thus "decree perpetual separation and protection to the persons and property of the parties;" grant to "either, out of the property of the other, such maintenance as shall be proper;" restore "to the injured party, as far as practicable, the rights of property conferred by the marriage on the other;" and provide for the custody, guardianship, and support of the children.[181]

[180] For natural and incurable impotency of body at the time of entering into the matrimonial contract; as also for idiocy and bigamy.

[181] Act of Feb. 17, 1827: _Acts of Gen. Assembly_ (1826-27), 21, 22. _Cf._ same law in _Supp. to Rev. Code_ (1833), 222, 223.

To the causes for which a limited divorce may be obtained "abandonment and desertion" was added in 1841, and the provision authorizing annulments was somewhat modified.[182] By the act of 1848, putting an end to legislative interference, the "circuit and superior courts of law and chancery" are given authority to grant absolute divorce on the single ground of adultery, with liberty to both parties to remarry, or only to the innocent or injured party, as may seem just.[183] A statute of the next year allows limited divorce for cruelty, reasonable apprehension of bodily hurt, abandonment, or desertion; and these four causes are still in force.[184]

[182] Act of March 17, 1841: _Acts of the Assembly_ (1840-41), 78, 79. The court may declare contracts void on the grounds named in 1827, "or for any other cause for which marriage is annulled by the ecclesiastical law" (78).

[183] Act of March 18, 1848: _Acts of Assembly_ (1847-48), 165-67.

[184] _Va. Code_ (1849), 561. Probably the abandonment or desertion is for a time less than five years, as the latter period is sufficient for a divorce _a vinculo_: _Code_ (1860), 530, and note. On joint application of the parties and due evidence of reconciliation, a decree of separation may be revoked by the same court granting it; and when three years have elapsed without reconciliation after such a decree, the court may grant a full divorce: _Acts_ (1895-96), 103; modified by _ibid._ (1902-3), 87, 98.

By the present law, which, with a slight modification in 1872 and another in 1894, has remained unaltered since the act of 1853, eight causes for complete dissolution of wedlock are recognized; and jurisdiction in all suits for divorce, annulment, or separation is vested in the "circuit and corporation courts on their chancery side." An absolute decree may be obtained (1) for adultery; (2) natural or incurable impotency of body existing at the time of entering into the marriage contract; (3) where either party is sentenced to confinement in the penitentiary; (4) where prior to the marriage either party, without the knowledge of the other, has been convicted of an infamous offense; (5) "where either party charged with an offence punishable by death or confinement in the penitentiary has been indicted, is a fugitive from justice, and has been absent for two years;"[185] (6) where either party wilfully deserts or abandons the other for three years; (7) "where at the time of the marriage, the wife, without the knowledge of the husband, was _enceinte_ by some person other than the husband;" (8) or where prior to the marriage she had been, without the husband's knowledge, notoriously a prostitute. But it is especially provided that for the last two causes no divorce shall be decreed if it appears that the person applying has cohabited with the other after gaining knowledge of the facts. The same is true of "conviction of an infamous offence;" and under the third cause, that of sentence to the penitentiary, a pardon shall not restore the offender to conjugal rights.[186]

[185] This cause was added by the act of March 23, 1872: _Acts of the Assembly_ (1871-72), 418, 419.

[186] _Code of Va._ (1887), 561: _Acts of the Assembly_ (1852-53), 47, 48. The term of desertion was reduced from five to three years by _Acts_ (1893-94), 425.

In West Virginia the circuit court on its chancery side may grant total divorce for eight causes. Of these the first four are identical with the corresponding numbers for Virginia. The rest are: (5) where either party wilfully abandons or deserts the other for three years; (6 and 7) the same as the seventh and eighth for Virginia; (8) where the husband, prior to the marriage, has been, without knowledge of the wife, notoriously a licentious person--thus dealing even justice to each spouse. Furthermore, five grounds of limited divorce are there sanctioned. The first four are the same as those existing in Virginia since 1849; and in addition a fifth cause gives jurisdiction when either the husband or wife after marriage becomes a habitual drunkard.[187]

[187] _Code of West Va._ (1891), 612, 613; _ibid._ (1900), 660-62. It is provided that "a charge of prostitution made by the husband against the wife falsely shall be deemed cruel treatment, within the meaning of this section."--_Code_ (1900), 662. The penalties for bigamy do not extend to a person forming a new marriage when the husband or wife has been absent seven years and not heard from: _ibid._, 971.

Kentucky anticipated by many years the mother-commonwealth of Virginia in defining the grounds for dissolving a marriage.[188] Under the act of 1809 the several circuit courts are authorized to grant total divorce to either spouse (1) for abandonment and living in adultery, or (2) where the other has been condemned for a felony in any court of record in the United States; to the husband, when the wife has voluntarily left his bed and board for three years with the intention of abandonment; and to the wife, for treatment so cruel, barbarous, and inhuman as actually to endanger her life. To prevent too facile action of the courts, a check is devised similar to that later adopted by the English law. It is made the duty of the attorney prosecuting for the commonwealth to oppose the granting of any divorce warranted by this statute.[189] A new cause of full divorce, analogous to that allowed in some of the New England states, appears in 1812. When a man renounces the marriage agreement and refuses to live with his wife in conjugal relation "by uniting himself to any sect whose creed, rules, or doctrines require a renunciation of the marriage covenant, or forbid a man and wife to dwell and cohabit together," the aggrieved woman may have a full release; the offender is forbidden to remarry during the former's lifetime; or the wife may claim separate alimony and maintenance without divorce.[190]

[188] As early as 1800 separate maintenance is secured to the wife in certain cases. It is enacted "that any court of quarter sessions or district court, shall be vested with jurisdiction to hear and determine applications from wives against their husbands for alimony, in cases where the husband has, or may hereafter desert or abandon his wife for the space of one year successively, or where he lives in open avowed adultery with another woman for the space of six months, and in cases of cruel, inhuman, and barbarous treatment."--_Digest of the Stat. Laws of Ky._ (1834), I, 121. Such cruel treatment warrants alimony even when life is not endangered: 2 J. J. MARSHALL, 324; but not divorce: _ibid._, 322.

"Before the passage of the above act, the chancellor had power to grant alimony, and since the statute it may be decreed in cases not embraced by it."--_Digest_ (1834), I, 121, note. "After a decree for alimony, the power of the husband over the wife shall cease;" and she may use such alimony, and acquire and dispose of any property, "without being subject to the control, molestation, or hindrance" of the husband, as if she were a _feme sole_: _ibid._, I, 122. The two kinds of common-law divorce, in canonical sense, were originally recognized in Kentucky: HUMPHREY, _Compendium of the Common Law in Force in Ky._ (1822), 135.

[189] LITTELL, _Statute Law of Kentucky_ (1814), IV, 19, 20.

[190] Act of Feb. 8, 1812: LITTELL, _loc. cit._, 407 ff. In case of divorce, the wife may not marry again within one year (409).

No further legislation regarding the grounds of divorce appears until the foundation of the existing law of Kentucky was laid in the act of 1843. The present statute presents an exceedingly complex analysis of causes. "A jury shall not be impaneled in any action for divorce, alimony, or maintenance, but courts having general equity jurisdiction may grant a divorce for any of the following causes, to both husband and wife": I. To either party: (1) for "such impotency or malformation as prevents the conjugal relation;" (2) living apart without any cohabitation for two consecutive years. II. To the party not in fault: (1) for abandonment for one year; (2) living in adultery; (3) condemnation for felony within or without the state; (4) concealment of any loathsome disease existing at the time of the marriage, or contracting such afterwards; (5) force, duress, or fraud in obtaining the marriage; (6) uniting with any religious society whose creed and rules require renunciation of the marriage covenant, or forbid husband and wife to cohabit. III. To the wife, if not in like fault: (1) for confirmed habit of drunkenness on the part of the husband of not less than one year's duration, "accompanied with a wasting of his estate, and without any suitable provision for the maintenance of his wife and children;" (2) "habitually behaving toward her by the husband, for not less than six months, in such cruel and inhuman manner as to indicate a settled aversion to her, or to destroy permanently her peace or happiness;" (3) "such cruel treatment or injury, or attempt at injury, of the wife by the husband, as indicates an outrageous temper in him, or probable danger to her life, or great bodily injury from remaining with him." IV. To the husband: (1) when the wife is pregnant by another man without the husband's knowledge at the time of the marriage; (2) for habitual drunkenness on the part of the wife of not less than one year's duration, if he is not guilty of the same fault; (3) for adultery of the wife, or such lewd, lascivious behavior on her part as proves her to be unchaste, without actual proof of adultery committed.

A judgment of divorce in all cases "authorizes either party to marry again;" but, by a unique provision, "there shall not be granted to any person more than one divorce, except for living in adultery, to the party not in fault, and for the causes for which a divorce may be granted to both husband and wife." On joint application of the parties, every judgment for a divorce may be annulled by the court rendering it, they being restored to the condition of husband and wife; but thereafter a second divorce cannot be obtained for the same cause.

Separation from bed and board may originally have been obtainable in Kentucky under the common law:[191] but it does not seem to be noticed by any of the early statutes. For the first time, by the present code, it may be granted on any of the grounds which warrant a total divorce, or for "such other cause as the court in its discretion may judge sufficient."[192]

[191] HUMPHREY, _Compendium of the Common Law, in Force in Ky._, 135, above cited.

[192] For the present law of divorce see _Ky. Stat._ (1903), 846-51; and compare the act of March 2, 1843: _Acts_ (1842-43), 29, 30.

Previous to 1842 the function of the Maryland courts in divorce matters was restricted to the preparation of cases for the legislature. By the act of that year full, though not exclusive, jurisdiction in both kinds of divorce is conferred upon the chancellor and upon the county courts sitting as equity tribunals. Divorce _a vinculo_ is permitted (1) for impotence of either person at the time of the marriage; (2) "for any cause which by the laws of the state renders a marriage null and void _ab initio_;" (3) for adultery; (4) for abandonment with absence from the state for five years. The causes for which divorce _a mensa et thoro_ is granted are (1) cruelty of treatment; (2) excessively vicious conduct; (3) abandonment and desertion; (4) in all cases where a total divorce is prayed for, if the causes proved be sufficient for such limited decree under the act.[193] In 1844 the term of absence as cause of complete divorce is reduced to three years.[194] Three years later a fifth cause appears. Complete dissolution of wedlock is now allowed when the female before marriage has been guilty of illicit carnal intercourse with another man without the husband's knowledge.[195] The five grounds of total divorce thus recognized are the only ones still sanctioned by the existing code; although under the fourth head it is provided, in more detail, that a decree shall be rendered only when the court is satisfied by competent testimony that there has been uninterrupted abandonment for at least three years, that such abandonment is deliberate and final, and that the separation of the parties is "beyond any reasonable expectation of reconciliation."[196] Likewise the same four causes of partial divorce, laid down in 1842, still appear in the statute-book, and in such cases the decree may be "forever" or "for a limited time," as shall seem just to the court. The equity tribunals now possess exclusive jurisdiction in all divorce matters.[197]

[193] _Code of Md._ (1888), I, 143.

[194] Act of March 1, 1842: _Laws_ (1841-42), chap. 262.

[195] _Laws_ (1844), chap. 306.

[196] _Laws_ (1846-47), chap. 340 (act of March 10, 1847); MACKALL, _Maryland Code_ (1861), I, 74, 75. The causes of limited divorce and the other provisions of the act are the same as in that of 1842.

[197] _Laws_ (1888), chap. 486, modifying an act of 1872, chap. 272, which is the basis of the present law in _Code of Md._ (1888), I, 142, 143.

The North Carolina statute of 1814 allows the superior court to grant either kind of divorce (1) for bodily infirmity, or (2) for desertion and living in adultery. Separation from bed and board is likewise sanctioned when "any person shall either abandon his family or maliciously turn his wife out of doors, or by cruel or barbarous treatment endanger her life, or offer such indignities to her person as to render her condition intolerable or life burdensome."

Previous to 1827, as already noted, the judicial decree for partial divorce was final, while that for absolute dissolution of the marriage bond must be confirmed by the assembly. On the abolition of legislative divorce in that year a provision was inserted in the statute which seems to have had the effect of an "omnibus" clause. "All applications for other causes than those specified" in the act of 1814 for either kind of divorce "shall be subject to the rules and regulations provided in said act for the causes therein mentioned," thus giving the judiciary the full range which the assembly had hitherto possessed.[198] Later this clause took a simpler form, the courts being empowered to grant divorces on the grounds named in 1814 and for "any other just cause."[199] Six grounds subsequently added are retained in the present law. The superior courts are now authorized to decree absolute divorce (1) "if either party shall separate from the other and live in adultery;" (2) "if the wife shall commit adultery;" (3) "if either party at the time of the marriage was and still is naturally impotent;" (4) "if the wife at the time of the marriage be pregnant" by some other man and the husband be ignorant of the fact; (5) "if the husband shall be indicted for a felony and flee the state and does not return within one year from the time the indictment is found;" (6) "if after the marriage the wife shall wilfully and persistently refuse" marital duty for twelve months; (7) if either spouse shall abandon the other and live separate and apart for two years; and (8) in favor of the wife, being a citizen of the commonwealth at the time of the marriage, if the husband shall remove with her to another state, and while living with her there shall by cruel or barbarous treatment endanger her life or render her condition intolerable or burdensome, should she return to North Carolina and there reside separate and apart from the husband for the period of twelve months.[200] A divorce from bed and board may be granted (1) if either spouse shall abandon his or her family; (2) or shall maliciously turn the other out of doors; (3) or shall by cruel or barbarous treatment endanger the life of the other; (4) or shall offer such indignities to the person of the other as to render his or her condition intolerable and life burdensome; (5) or shall become a habitual drunkard.[201]

[198] _North Carolina Acts_ (1827-28), 20. _Cf._ the preceding section of the text.

[199] _Rev. Stat. of N. C._ (1837), 238-42.

[200] The first three causes appear in _Public Laws_ (1871-72), 339; the fourth is added by _ibid._ (1879), chap. 132, p. 240; the fifth by _ibid._ (1887), chap. 100, p. 190; the sixth by _ibid._ (1889), chap. 442, pp. 422, 423; the seventh by _ibid._ (1903), 846, amending an act in _ibid._ (1899), 337, which made the term of desertion one year; and the eighth by _ibid._ (1899), 124, 125. The seventh cause applies only to cases occurring before Jan. 1, 1903. The offender divorced for the seventh cause may not rewed in five years; and he must have been a resident of the state for the same period.

[201] The five causes of partial divorce are in _Public Laws_ (1871-72), 339, 340. _Cf._ _Code of N. C._ (1883), I, 514.

With the exception of one or two peculiar provisions, the law of Tennessee, enacted in 1799, is similar to that of the parent state North Carolina, adopted fifteen years later, although confirmation by the assembly is not required. A total divorce may be granted by the superior court (1) for bodily infirmity at the time of marriage; (2) bigamy; (3) when either consort "hath been guilty of acts and deeds inconsistent with the matrimonial vow, by adultery, or wilful and malicious desertion or absence without a reasonable cause, for the space of two years." In all cases the innocent person may remarry; but when the cause is long absence, he does so at his peril. For, as in Pennsylvania, should he contract a second marriage and thereafter the missing first spouse prove to be alive, a cruel Enoch Arden clause offers to the "party remaining single" at his return the option either of having his former wife restored or his marriage with her dissolved. By the same statute a divorce from bed and board may be allowed when (1) the husband "shall maliciously abandon, or (2) turn his wife out of doors; or (3) by cruel or barbarous treatment endanger her life; or (4) offer such indignities to her person as to render her condition intolerable, and thereby force her to withdraw." In such cases the court may grant the wife alimony, not exceeding one-third either of the husband's income or of his estate, as may seem just; and such alimony shall continue until a reconciliation takes place, or until the husband by his petition shall "offer to cohabit with her again, and use her as a good husband ought to do." Then the court may suspend the decree; or, if the wife refuse, may discharge and annul it at its discretion. Should the husband after reconciliation fail to keep his engagements, the decree of separation is to be renewed and the arrears of alimony paid.[202]

[202] SCOTT, _Laws of Tenn., Including those of North Carolina Now in Force_ (1821), I, 645-48 (act of Oct. 26, 1799).

A new cause was added in 1819, the husband being allowed a total divorce when the woman at the time of the marriage was pregnant with a "child of color."[203] The act of 1835 recognizes practically the same causes for limited divorce as were prescribed in 1799, although they are differently expressed; and the separation may now be granted "forever" or for a "limited time," as shall seem just and reasonable to the court. By this statute likewise the grounds of total divorce are in substance identical with those of 1799, except that a new cause is added. Whenever a person has in good faith removed to the state and become a citizen thereof, and has resided there two years, he may secure a total divorce should his wife wilfully and without reasonable cause refuse to accompany him; provided he proves that he earnestly tried to get her to live with him after separation and that he did not come to the state for the sake of procuring the divorce.[204] So also in 1840 a female of good character who has resided in the state during the two years next preceding her petition, may be released from her husband for desertion during that period, or for any legal cause of divorce, although such cause may have accrued in another state.[205] Four years thereafter it is declared that a marriage may be dissolved when one party is "guilty of an attempt upon the life of the other," either by trying to poison, "or by any other means shewing malice."[206]

[203] _Laws_ (1819), chap. 20; _Stat. Laws_ (1831), I, 76.

[204] _Laws_ (1835), cited in CARUTHERS AND NICHOLSON, _Compilation of the Stat. of Tenn._ (1836), 257-62.

[205] Act of Jan. 7, 1840: _Acts_ (1839-40), chap. 54, p. 90.

[206] Act of Jan. 27, 1844: _Acts_ (1843-44), chap. 176, pp. 200, 201.

With some further important changes in 1858 and 1868, the law of Tennessee, as it now stands, was completed. Ten causes of absolute divorce are at present sanctioned: (1) natural and continued impotency of body; (2) knowingly entering into a second marriage in violation of a previous contract still existing; (3) adultery by either spouse; (4) "wilful or malicious desertion, or absence of either party without a reasonable cause for two whole years;" (5) conviction of any crime which by the laws of the state renders the offender infamous; or (6) which by the same law is declared to be a felony, with sentence to confinement in the penitentiary; (7) an attempt upon the life of husband or wife by poison or any other means showing malice; (8) refusal on the part of the wife to remove with her husband to the state, wilfully thus absenting herself for two years; (9) pregnancy at the time of the marriage by another man without the husband's knowledge; (10) habitual drunkenness, when either spouse has contracted the habit after marriage.[207] A limited divorce, or a total divorce in the discretion of the court, may be granted to the wife (1) when the husband is guilty of cruel and inhuman treatment; or (2) of such conduct as renders it unsafe and improper for her to cohabit with him and be under his dominion and control; (3) when he has offered such indignities to her person as to render her condition intolerable and thereby forced her to withdraw; (4) when he has abandoned her; or (5) turned her out of doors and refused or neglected to provide for her support.[208] These causes, it will be noticed, are very nearly the same in substance as those named in 1799; and, as in 1819, separation may still be decreed for a limited time.

[207] _Code of Tenn._ (1884), 611; SHANNON, _Code_ (1896), 1042. The fifth and sixth causes appear in _ibid._ (1858), 483; the tenth, in _Acts_ (1867-68), chap. 68.

[208] _Code of Tenn._ (1884), 611, 612. In SHANNON, _Code_ (1896), 1043, these are combined under three heads.

The history of divorce in Georgia has already been brought down to 1849, when resort to the assembly was finally forbidden. By the act of the next year specific causes for either kind of divorce are for the first time enumerated. After obtaining the concurrent verdict of two juries a total divorce may be decreed for (1) intermarriage within the Levitical degrees of consanguinity; (2) mental incapacity or (3) impotency at the time of the marriage; (4) force, menace, or duress in obtaining the marriage; (5) pregnancy of the woman at the time of the marriage by another man without the husband's knowledge; (6) adultery in either of the persons after marriage; (7) wilful and continued desertion for the term of three years; (8) conviction of either spouse of an offense involving moral turpitude, under which the offender is sentenced to imprisonment in the penitentiary for two years or longer. Besides these, certain "discretionary" grounds are approved. In case of cruel treatment or habitual drunkenness on the part of either, the jury in its discretion may determine whether the divorce shall be absolute or limited. A general clause declares that all grounds other than those named in the act shall "only be cause for divorce from bed and board." In case of adultery, desertion, cruel treatment, or intoxication, a decree may not be granted when there is collusion or both parties are guilty of the same offense.[209] At the beginning of the century, the law of 1850, so far as the causes of full divorce and the discretionary grounds are concerned,[210] is still in force; while, in addition, the present statute simply authorizes a separation from bed and board on "any ground which was held sufficient in the English courts prior to the fourth of May, 1784."[211] By the existing constitution the superior court still has jurisdiction; and for total dissolution of wedlock the concurrent verdicts of two juries at different terms of the court are essential to a decree.[212]

[209] Act of Feb. 22, 1850: COBB, _Digest_ (1851), 226; _Acts_ (1849-50), 151, 152.

[210] Except that "fraud" is added to the fourth cause.

[211] _Code of Ga._ (1896), II, 224 ff. Instead of "Levitical," "prohibited" degrees is now used.

[212] Const. of 1877, Art. VI, secs. 4, 15, 16: _N. Y. Convention Manual_, Part II, Vol. I, 427, 431. _Cf._ Const. of 1865, Art. IV, sec. 2; 1868, Art. V, secs. 2, 3: POORE, _Charters_, I, 409, 420, 422.

In case of partial divorce one jury is sufficient: Const. of 1877, Art. VI, sec. 15; and such seems to have been the earlier practice: 16 _Ga._, 81; _Code of Ga._ (1882), 394, note. A juror may be challenged for "conscientious scruples" regarding divorce: _Code_ (1882), 397. This last-named provision appears in the act of Dec. 22, 1840: COBB, _Digest_ (1851), 225, 226.

The grounds on which marriage may be annulled or dissolved were in 1803 first defined for the region of Alabama by the territorial assembly. The courts having equity jurisdiction were then authorized to grant total divorce for (1) intermarriage within the forbidden degrees; (2) natural impotency of body; (3) adultery; (4) "wilful, continued, and obstinate desertion, for the term of five years." Bigamous marriages were, of course, void from the beginning. Separation from bed and board was allowed on the sole ground of extreme cruelty in either of the parties; but in neither kind of divorce was a decree permitted where there was proof of collusion.[213] In 1820, the year after the admission of the state to the Union, the circuit courts gained jurisdiction and were given power to render decrees of total divorce, subject to legislative appeal, on the following grounds: I. In favor of the husband: when the wife (1) is "taken in adultery;" (2) has voluntarily left his bed and board for the space of two years with the intention of abandonment; (3) has deserted him and lived in adultery with another man. II. In favor of the wife: when the husband (1) has left her during the space of two years with the intention of desertion; (2) has abandoned her to live in adultery with another woman; (3) when his treatment of her is "so cruel, barbarous, and inhuman as actually to endanger her life."[214] The provisions of this act were considerably modified in 1824;[215] but in 1832 they were restored, except that the period of abandonment for either partner was then fixed at three years.[216] A new cause was sanctioned in 1843, a total divorce being then allowed for pregnancy of the wife by another man at the time of the marriage, if without the husband's knowledge or consent;[217] and habitual drunkenness on the part of either was added to the list in 1870.[218]

[213] Act of March 10, 1803, passed by the Mississippi territorial legislature: _Digest of the Laws of Ala._ (1823), 252.

[214] Act of Dec. 21, 1820: _Digest_ (1823), 256.

[215] Act of Dec. 23, 1824: _Acts_ (1824), 61, 62.

[216] AIKIN, _Digest_ (1833), 130-32.

[217] CLAY, _Digest of Laws of Alabama_ (1843), 172; also in _Acts_ (1843), 27.

[218] _Acts_ (1869-70), 207, 208 (March 1).

The basis of the existing law of Alabama was laid in the act of 1852, although important additions to the causes were subsequently made. The court of chancery now has power to grant a divorce from the bond of wedlock according to the following complex scheme: I. In favor of either spouse: (1) when at the time of the contract the other is "physically and incurably incapacitated from entering into the marriage state;" (2) for adultery; (3) for voluntary abandonment for two years; (4) for imprisonment in any state penitentiary for two years, the sentence being for seven years or longer; (5) for a crime against nature; (6) for "becoming addicted after marriage to habitual drunkenness."[219] II. In favor of the husband: for pregnancy of the wife, as provided in 1843. III. In favor of the wife: "when the husband has committed actual violence on her person, attended with danger to life or health, or when from his conduct there is reasonable apprehension of such violence." The chancellor is further authorized to decree a separation from bed and board for cruelty[220] in either of the consorts, or for any cause which will justify a decree from the bonds of matrimony, if the person applying therefor desires only a partial divorce.[221]

[219] _Code of Ala._ (1887), 253; _ibid._ (1897), 491-95. The first four of these causes appear in _Code_ (1852), 378; the fifth and sixth in the act of 1870.

[220] For interpretation of "cruelty" see 23 _Alabama_, 785; 27 _Alabama_, 222; 28 _Alabama_, 315; 30 _Alabama_, 714; 44 _Alabama_, 670, 698.

[221] _Code of Ala._ (1887), 524-26; _ibid._ (1897), 492. The causes of full divorce mentioned under II and III appear in _Code_ (1852), 378.

The law of March 10, 1803, beginning the history of divorce legislation for Alabama, applies also to Mississippi during the territorial stage; and, five years after the state was erected, its provisions, so far as they relate to the causes and kinds of divorce, were re-enacted in 1822.[222] In 1840 the time of desertion to warrant a total divorce was shortened from five to three years.[223] Ten years thereafter it was provided that any person already having a separation from bed and board may, by application to the chancery court of the district or the circuit court of the county where he resides, and producing a transcript of the decree, be divorced from the bond of matrimony. For the future the same privilege is extended to each of the parties to a partial divorce when they "have lived separate and apart from each other for the term of four years."[224] By a statute of 1858 this term is reduced to three years; and only those who have thus lived apart after partial separation are now allowed to petition for the entire dissolution of the marriage bond.[225] But in 1860, apparently to meet special cases, a law provides simply for a divorce _a vinculo_ where the persons, prior to the act, have lived apart in the state four years without collusion.[226] A peculiar cause, a product of the Civil War, appears in 1862. The wife is then allowed a complete divorce when her husband is in the army or navy of the United States or resides in one of the United States in preference to one of the states of the Confederacy.[227] By a statute of 1863 a second marriage is valid when the first spouse has been five years absent; and such spouse is to be presumed dead in any question of alimony arising under the second marriage.[228] In 1867 any citizen marrying out of the state, whose spouse commits adultery before his return to the state, may after such return apply for a total divorce, provided he has not cohabited after discovery of the offense.[229] The causes of separation from bed and board, which had remained unaltered since 1803, were extended in 1857. A partial divorce is then allowed for habitual drunkenness, as well as for extreme cruelty in either person; while the wife is granted the same relief whenever the husband, being of sufficient ability, wantonly and cruelly fails to provide for her support; but a decree for partial separation shall in no case bar the right to full divorce from the bond of wedlock.[230] A very important relaxation in the law takes place in 1871. The two causes of partial divorce just mentioned--habitual drunkenness and cruel treatment--become grounds for total divorce; and the term of desertion is shortened from three to two years.[231]

[222] _Stat. of Miss. Ter._ (1816), 252-54; and act of June 15, 1822, in _Code of Miss._ (1848), 495, 496.

[223] Act of Feb. 13: _Laws_ (1840), 125.

[224] Act of Feb. 14: _Laws_ (1850), 122.

[225] Act of Nov. 29: _Laws_ (1858), 166.

[226] Act of Feb. 9: _Laws_ (1860), 202.

[227] Act of Jan. 29, 1862: _Laws_ (1861-62), 246.

[228] Act of Dec. 1, 1863: _Laws_ (1862-63), 125, 126.

[229] Act of Feb. 21, 1867: _Laws_ (1866-67), 387.

[230] _Rev. Code_ (1858), 334.

[231] By the _Rev. Code_ (1871): see WRIGHT, _Report_, 154; and WILLCOX, _The Divorce Problem_, 52.

By the present code of Mississippi, therefore, limited divorce is not authorized. But courts having chancery jurisdiction may decree entire release from the marriage bond to the injured person (1) for natural impotency; (2) adultery, except by collusion or where there is cohabitation after knowledge of the offense; (3) sentence to the penitentiary when there is no pardon before imprisonment begins; (4) wilful continued, and obstinate desertion for two years; (5) habitual drunkenness; (6) "habitual and excessive use of opium, morphine, or other like drug;" (7) habitual cruel and inhuman treatment;[232] (8) insanity or idiocy at the time of the marriage, if the party complaining did not then know of the infirmity; (9) previous marriage with some other person; (10) pregnancy of the wife by another man at the time of the marriage, the husband being ignorant of the fact; (11) intermarriage within the degrees of kindred prohibited by law.[233]

[232] For interpretation of "cruel treatment" see Johns _v._ Johns, 57 _Miss._, 530.

[233] _Ann. Code of Miss._ (1892), 419, 420.

The first statute defining the grounds of divorce for Missouri was approved in 1807 by the legislature of Louisiana Territory. Either a full or a partial divorce was then authorized when either person (1) is naturally impotent; (2) has entered into the marriage in violation of a "previous vow;" (3) has committed adultery; or (4) has been guilty of wilful and malicious desertion, without a reasonable cause, for four years. The general court may likewise grant the wife a separation from bed and board when the husband shall either abandon his family or turn her "out of doors, or by cruel and barbarous treatment endanger her life, or offer such indignities to her person as to render her condition intolerable and thereby force her to withdraw from his house or family."[234] This law remained in force until 1833, when "extreme cruelty" and conviction of an "infamous crime" were added as causes warranting either the husband or wife to petition for absolute divorce.[235] The number is raised to seven by the revision of 1835, which is silent as to partial divorce; for "indignities" to the person of either such as already described are now made a legal ground for entire dissolution of marriage.[236] Vagrancy[237] of the husband and habitual drunkenness of either for the space of two years came next in 1845; and four years thereafter the introduction of two more causes completed the full quota of eleven grounds on which total divorce is still allowed by Missouri law. The act of 1849 authorizes a divorce to the man when the woman at the time of the marriage, or when it was solemnized, was pregnant by another person without the intended husband's knowledge; and to the wife, when the man prior to the marriage or its solemnization had been convicted of a felony or infamous crime without the woman's knowing it when the marriage took place. The benefits of this cause may now accrue to both persons; otherwise no essential change in the statute has been made for half a century.[238]

[234] Act of May 13, 1807: _Laws of a Pub. and Gen. Nature_ (1842), 1, 90-92.

[235] _Ibid._, II, 360.

[236] _Rev. Stat._ (1835), 225 (Jan. 24). The "indignities" need not be offered to the person: 5 _Missouri_, 278; 19 _Missouri_, 352; 16 _M. A._, 422; 17 _M. A._, 390; but one or two such acts are insufficient: 34 _Missouri_, 211.

[237] According to the code, a "vagrant" is "every person who may be found loitering around houses of ill-fame, gambling houses, or places where liquors are sold or drunk, without any visible means of support, or shall attend or operate any gambling device or apparatus;" and "every able-bodied married man who shall neglect or refuse to provide for the support of his family, and every person found tramping or wandering around from place to place without any visible means of support." Besides being liable to suit for divorce, such a husband may be sentenced to not less than twenty days in the county jail, or to pay a fine of 20 dollars, or both: _Rev. Stat._ (1889), I, 917; _ibid._ (1899), I, 621. On vagrancy as a cause see 26 _M. A._, 647.

[238] Act of March 12: _Laws_ (1849), 49, 50; _Rev. Stat._ (1889), I, 1029-32; _ibid._ (1899), I, 741. The circuit courts have jurisdiction; and process is as in civil suits, except that the answer of the defendant need not be under oath.

In Florida, since 1828, divorce may be sought only by bill in chancery; and, since 1885, the equity courts have had exclusive jurisdiction, granting only complete dissolution of the marriage bond,[239] although in that state separate maintenance is equivalent to separation from bed and board. The causes now sanctioned are: (1) intermarriage within the forbidden degrees; (2) natural impotence of the defendant; (3) adultery in either party; (4) excessive cruelty; (5) habitual indulgence in violent and ungovernable temper;[240] (6) habitual intemperance; (7) wilful, obstinate, and continued desertion for one year; (8) a divorce obtained by the defendant in any other state or country; (9) having a husband band or wife living at the time of the marriage; (10) incurable insanity.

[239] Acts of Oct. 31, 1828, and Feb. 4, 1835, in _Rev. Stat. of Fla._ (1892), 504; or THOMPSON, _Manual or Digest_ (1847), 47, 222-24. Incurable insanity is made a legal ground of divorce by _Acts_ (1901), 118-21.

[240] On the allegations necessary see Johnson _v._ Johnson, 23 _Florida_, 413; Burns _v._ Burns, 13 _Florida_, 369; and on what does not constitute a cause, Crawford _v._ Crawford, 17 _Florida_, 180.

The Louisiana code of 1808 provides for the annulment of marriage on legal grounds; and allows separation from bed and board (1) for adultery of the wife; or (2) for that of the husband "when he has kept his concubine in their common dwelling;" (3) when either has been guilty of excesses, cruel treatment, or outrages toward the other, if the ill-treatment is of such a nature as to render their living together insupportable; (4) on account of a public defamation by one of the married persons toward the other; (5) for abandonment; or (6) an attempt upon the life of the other by either spouse.[241]

[241] _Digest of Civil Laws Now in Force_ (1808), 26, 28, 30; also _Code Civil_ (1825), 80, 87-91; LISLET, _Gen. Digest_, II, 3 ff.; _Civil Code of La._ (1853), 19.

In 1827 the "district courts throughout the state and the parish court of New Orleans" were given "exclusive original jurisdiction in cases of divorce," with appeal to the supreme court. They were authorized to grant total divorce (1) for adultery of the wife; or (2) for that of the husband "when he has kept his concubine in the common dwelling, or openly and publicly in any other;" (3) for excesses, cruel treatment, or outrages, as conditioned for separation in 1808; (4) condemnation of either married person to an "ignominious punishment;" (5) abandonment for five years when the offender has "been summoned to return to the common dwelling," as is provided for in cases of separation from bed and board. It is, however, especially declared that, except when the cause is adultery or ignominious punishment, no full divorce shall be granted "unless a judgment of separation from bed and board shall have been previously rendered," and unless two years shall have thereafter expired without reconciliation. But in the two cases excepted above a "judgment of divorce may be granted in the same decree which pronounced the separation from bed and board."[242] The fifth cause approved in 1827 was supplemented by a new ground in 1832. Whenever either spouse is charged with an infamous crime and is a fugitive from justice beyond the state, a total divorce may be claimed by the other, without need of a previous decree of separation, on producing evidence of the actual guilt and flight of the accused.[243] "Habitual intemperance" on the part of either husband or wife was added to the list in 1855;[244] and in 1857 the time which must elapse between the decrees for partial and full divorce was reduced to one year.[245] An "omnibus" clause comes next in 1870, complete dissolution of wedlock being then permitted "for any such misconduct repugnant to the marriage covenant as permanently destroys the happiness of the petitioner;" but it was repealed in 1877.[246]

[242] Act of March 19: _Acts_ (1827), 130-35; also in _Civil Code_ (1853), 19, 20. Such is still the law, except as to the term between the decrees.

[243] Act of April 2: _Acts_ (1832), 152; also in _Civil Code_ (1853), 20, 21.

[244] _Acts_ (1855, March 14), 376.

[245] Act of March 16: _Acts_ (1857), 137; VOORHIES, _Rev. Stat. Laws_ (1876), 313.

[246] Compare the act of March 9: _Acts_ (1870), 108; with _Acts_ (1877), 192. VOORHIES, _op. cit._ (1884), 204-6, gives the law regarding the causes of divorce just as _ibid._ (1876), 312-14; and _ibid._ (1870), 18 ff.

For the sake of convenience, the present law of Louisiana covering the grounds of divorce--whose evolution was thus completed in 1870--may now be summarized. Absolute divorce, without need of a previous decree of separation, is permitted where the husband or wife may have (1) been sentenced to an infamous punishment; or (2) been guilty of adultery.[247] A limited divorce, which may be followed in each case by a total divorce after one year, is authorized (1) for adultery on the part of either spouse; (2) when the other party has been condemned to an infamous punishment; (3) on account of the habitual intemperance of one of the married persons; (4) excesses, cruel treatment, or outrages of one of them toward the other; (5) for public defamation; (6) for abandonment on the part of one of the married persons; (7) for an attempt of one of them against the life of the other; (8) when the husband or wife has been charged with an infamous offense and shall have fled from justice, on producing proof of the actual guilt or flight.[248] An important modification was made in 1898. The person in whose favor a limited divorce has been rendered may apply and get a full divorce in one year, while the adverse party must wait two years before fore he can secure a similar decree, in the meantime the wife's right to alimony remaining unimpaired.[249]

[247] As in 1827, in these cases, a divorce may be "granted in the same decree which pronounces the separation from bed and board."

[248] _Rev. Civil Code_ (1888), 68 ff.; _ibid._ (1897), 305, 306; _ibid._ (1870), 18 ff. _Cf._ WRIGHT, _Report_, 97, 98. The habitual intemperance (Cause 3) and cruel treatment (Cause 4) must still be of "such a nature as to render their living together insupportable."

"The abandonment (Cause 6) with which the husband or wife is charged must be made to appear by the three reiterated summonses made to him or her from month to month, directing him or her to return to the place of the matrimonial domicile and followed by a judgment which has sentenced him or her to comply with such request, together with a notification of the said judgment, given to him or her from month to month for three times successively."--_Rev. Civil Code_ (1888), 70.

[249] Act of July 4, 1898: _Acts of the Assembly_, 34.

The divorce legislation of the "Republic of Texas" has remained in force with little modification to the present hour. The district courts still have jurisdiction. By the act of January 6, 1841, a marriage may be declared null and void for impotency; and absolute divorce may be granted as follows: I. In favor of the husband: (1) when the wife is guilty of adultery; or (2) has left his bed and board for three years with the intention of abandonment. II. In favor of the wife: (1) when the husband has left her for three years with like intention; or (2) has abandoned her and lived in adultery with another woman. III. In favor of either spouse for excesses, cruel treatment, or outrages toward the other, if the ill-treatment is of such a nature as to render their living together insupportable.[250] These three groups appear unaltered in the present code; and there is added the following: IV. In favor of either husband or wife, "when the other shall have been convicted, after marriage, of a felony and imprisoned in the state prison; _provided_, that no suit for divorce shall be sustained" because of such conviction "until twelve months after final judgment," nor "then if the governor shall have pardoned the convict;" and provided also that the conviction has not been obtained on the testimony of either spouse.[251]

[250] _Laws of the Rep. of Texas_, V, 19-22; also in DALLAM, _Digest_ (1845), 80, 81. _Cf._ the earlier act of 1837, in DALLAM, _op. cit._, 79.

[251] _Rev. Civil Stat._ (1888), I, 885-88; _Ann. Civil Stat._ (1897), I, 1095, 1096. No. IV was added by act of May 27, 1876: _Laws_, 16.

The grounds of divorce recognized in the statutes of Arkansas have been in force since 1838. The circuit courts may now grant total or limited divorce for the following causes: (1) when either spouse was at the time of the marriage and still is impotent of body; (2) when either deserts the other and remains absent one year without reasonable cause; (3) when a former spouse was living at the time of the marriage; (4) when either is convicted of felony or other infamous crime; or (5) shall be addicted to habitual drunkenness for the space of one year; or (6) shall be guilty of such cruel and barbarous treatment as to endanger the life of the other; or (7) shall offer such indignities to the person of the other as shall render his or her condition intolerable; (8) when subsequent to the marriage either person has committed adultery.[252]

[252] _Digest of Ark._ (1894), 680-83; _Rev. Stat._ (1838), 333. Incurable insanity appears as a ground in _Civil Code_, sec. 464, as amended in 1873; but it was dropped by _Acts_ (1895), 76.

By act of Congress,[253] certain general laws of Arkansas, including those of divorce, are extended to the Indian Territory; so the causes just enumerated are there in force.[254] Limited divorce does not exist in Oklahoma; but in that territory the district court may grant full dissolution of wedlock (1) when either person had a spouse living at the time of the marriage; (2) for abandonment during one year; (3) for adultery; (4) for impotency; (5) "when the wife at the time of the marriage was pregnant by another than her husband;" (6) for extreme cruelty; (7) for fraudulent contract; (8) for habitual drunkenness; (9) for gross neglect of duty; (10) for conviction and imprisonment in the penitentiary for a felony after marriage.[255]

[253] Act of May 2, 1890: _U. S. Stat. at Large_, XXVI, chap. 182, p. 81.

[254] _Ann. Stat. of Ind. Ter._ (1899), 324.

[255] WILSON, _Stat. of Okla._ (1903), II, 1119.

"Arizona, from 1871-77, in addition to six ample reasons for divorce, had an 'omnibus clause' in operation which is a marvelous piece of legislation." "Whereas," we are told, "in the developments of future events, cases may be presented before the courts falling substantially within the limits of the law, as hereinbefore stated, yet not within its terms, it is enacted, that whenever the judge who hears a cause for divorce deems the case to be within the reason of the law, within the general mischief the law is intended to remedy, or within what it may be presumed would have been provided against, by the legislature establishing the foregoing causes of divorce had it foreseen the specific case and found language to meet it without including cases not within the same reason, he shall grant the divorce." Well was this called, continues Richberg, "the 'seventh wonder' of Arizona's divorce code."[256]

[256] RICHBERG, "Incongruity of the Divorce Laws in the United States," _Publications of Mich. Pol. Sc. Association_, No. 4, p. 58.

For this act of Feb. 16, 1871, see _Comp. Laws of the Ter. of Ariz., 1864-71_ (1871), 303, 304. The other six causes referred to in the text are (1) impotency; (2) marriage of a female under fourteen without parental consent and not ratified by her after reaching that age; (3) adultery in either without collusion or subsequent voluntary cohabiting; (4) extreme cruelty, or habitual intemperance, wilful desertion for one year, or neglect to provide for the wife; (5) force or fraud; (6) conviction of either of felony after marriage. For the earlier law see the _Howell Code_, 232 ff.; and the amendments of 1865, in _Comp. Laws_ (1871), 297-303.

A later statute, somewhat more cautiously, allows the district court to decree a total divorce (1) when the husband or wife is guilty of excesses, cruel treatment, or outrage toward the other, whether by the use of personal violence or any other means; (2) in favor of the husband when his wife shall have been taken in adultery; or (3) when she has voluntarily left his bed and board for the space of six months with the intention of abandonment; (4) in favor of the wife when the husband has left her for the same time with a like motive; (5) for his habitual intemperance; (6) for his wilful neglect to provide the necessaries or comforts of life during the same period, having sufficient ability, or failing to do so by reason of his idleness, profligacy, or dissipation; or (7) when he shall be taken in adultery; (8) in favor of either spouse when the other has been convicted after marriage of a felony and confined in any prison. Suit on the last-named ground cannot be sustained until six months after final judgment, nor when the husband or wife was convicted on the testimony of the other.[257] This law is superseded by the act of 1903. Absolute divorce may now be granted on complaint of the aggrieved for (1) adultery; (2) physical incapacity; (3) conviction and imprisonment for felony, provided that suit may not be sustained until one year after judgment and that conviction has not been had on the testimony of either spouse; (4) wilful desertion for one year, or for habitual intemperance; (5) excesses, cruel treatment, or outrages, whether by the use of personal violence or any other means; (6) to the wife for the husband's neglect for one year to provide her with common necessaries of life, having the ability, or his failure to do so because of idleness, profligacy, or dissipation; (7) to either for the other's conviction of felony before marriage without the innocent person's knowledge; (8) to the husband when without his knowledge the wife was pregnant by another man at the time of the marriage.[258]

[257] _Rev. Stat. of Ariz._ (1887), 373, 374; _cf._ WRIGHT, _Report_, 90. By the act of 1871 the period of desertion is fixed at one year; and it is two years by the _Howell Code: Compiled Laws_ (1871), 298, 304.

[258] _Rev. Stat. of Ariz._ (1901), 812-15; amended by _Acts_ (1903), 52.

In New Mexico the district courts may grant absolute divorce for (1) abandonment; (2) adultery; (3) impotency; (4) when without the husband's knowledge the wife at the time of the marriage was pregnant by another man; (5) cruel and inhuman treatment; (6) to the wife for the husband's neglect to support; (7) habitual drunkenness; (8) conviction and imprisonment for felony subsequent to the marriage.[259] Separation _a mensa et thoro_ does not exist; but in the laws of 1884 there is a curious provision, which seems designed, in a truly patriarchal spirit, to soothe domestic ills and check matrimonial transgressions through intervention of the local magistrate. One is left in little doubt as to the right ideal of family life, being assured that "the duties and relations that should exist between married persons are the following, to wit: The husband is the head of the family; he, nevertheless, owes fidelity, favor, support, and protection to the wife; he should make her a participant in all the conveniences he enjoys; he should show her the utmost and every attention in cases of sickness, misfortune or accident, and provide for her the necessaries of life according to his condition and ability; and the wife owes fidelity and obedience to the husband; she is obliged to live with him and accompany him to such place as he may deem proper and advantageous to make his residence." So when any difficulty arises on account of failure in any of these things, the injured person may go before the justice of the peace in his "precinct and make complaint demanding judicial action." Then the magistrate "shall forthwith dispatch his compulsory writ directing the party defendant immediately to appear to such complaint; both parties being present, it shall be the duty of the justice to endeavor to effect a reconciliation, the first of which endeavors he shall enter on record upon his docket, affording the parties a reasonable opportunity; but if after having so done, the person making the complaint does not agree, the justice shall then proceed to try the matter in a summary manner, provided always, that the reasons for disagreement are simple, such as non-fulfillment" of the duties above set forth. In "case of conviction he shall cause the delinquent to act as required by the laws of the conjugal relation;" and when there is resistance he "may order that such person be confined in the county jail, there to remain until he comply with those duties by which both the husband and wife were mutually bound." Furthermore, it is especially provided, that when any persons are thus put in jail "for an infraction of duty" and fail to "furnish their own provision," the sheriff may "dispose of their services for their maintenance." Should, however, the trouble "arise from adultery, or cruelty, or ill temper, rendering the life of the consort insecure, the justice ... shall, after due investigation send the case up to the district court which shall take cognizance of and try the same;" and "whenever a temporary separation occurs between husband and wife in order to bring suit before the district court, the justice of the peace will provide how the family shall be cared for, and will immediately report to the probate judge of the county, so that the latter may provide for the care of the minors, their support and education, as also for the wife, in case she be the injured party, during the controversy or until otherwise provided for by the district court."[260] It is not, perhaps, surprising that this whole subject is omitted from the compilation of 1897.

[259] _Acts of N. M._ (1901), 116 ff. For the earlier laws see _Acts of the Ass. of N. M._ (1886-87), 68; _Comp. Laws_ (1897), 407. In case of permanent separation, without a dissolution of marriage, either spouse may institute a suit for division of property or disposal of the children; or the wife may bring suit for alimony alone: _ibid._, 116.

[260] _Compiled Laws of N. M._ (1885), 514, 516.

By the code of Porto Rico the district court has jurisdiction. Partial divorce is not recognized; but marriage may be dissolved, on the petition of the aggrieved, for (1) adultery; (2) conviction of felony, which may involve the loss of civil rights; (3) "habitual drunkenness or the continued and excessive use of opium, morphine, or any other narcotic;" (4) cruel treatment or gross injury; (5) abandonment for one year; (6) "absolute, perpetual, and incurable impotence" occurring after marriage; (7) the "attempt of the husband or wife to corrupt their sons or to prostitute their daughters," or connivance of either in the same; (8) the proposal of the husband to prostitute the wife.[261]

[261] _Rev. Stat. and Codes of Porto Rico_ (1902), 813-17.

The experience of South Carolina is peculiar. After abstaining from any legislation on the subject for two hundred years, that state indulged in a conservative divorce statute in 1872. Hitherto the courts were competent only to grant separation from bed and board under the common law. By the act in question they were empowered to pronounce decrees of absolute divorce in favor of either spouse (1) for adultery and (2) for abandonment[262] during the space of two years.[263] But this law was of short duration, being repealed in 1878.[264] South Carolina legal sentiment on the divorce problem is fairly revealed in connection with two important decisions during the century. Commenting on the case of Vaigneur _et al._ _v._ Kirk, decided in 1808, Editor Desaussure contrasts the laxity of the marriage laws with the stringency of the rule relating to divorce. "The subject of marriage, and consequently the legitimacy of children, is on the same loose footing in this state that it was in England before" 1753[265] and as "it now is in Scotland. We have no statute regulating marriages, or providing any form for the celebration of them, or for recording them. And they are usually celebrated in any form the parties please, before a clergyman or magistrate." This "remarkable facility of contracting matrimony ... is strongly contrasted with the impracticability of dissolving the contract. No divorce has ever taken place within the state. The legislature has uniformly refused to grant divorces, on the ground that it was improper for the legislative body to exercise judicial powers. And it has as steadily refused to enact any law to authorize the courts of justice to grant divorces _a vinculo matrimonii_, on the broad principle that it was a wise policy to shut the door to domestic discord, and to gross immorality in the community."[266]

[262] "Provided, that, when the suit is instituted by the party deserting, it appears that the desertion was caused by the extreme cruelty of the other party, or that the desertion of the wife was caused by the gross or wanton and cruel neglect of the husband to provide suitable maintenance for her, he being of sufficient ability to do so" (p. 30).

[263] Act of Jan. 31: _Acts and Joint Res._ (1872), 30 ff.

[264] Repealed by act of Dec. 20: _Acts and Joint Res._ (1878), 719.

[265] Previous to 26 Geo. II., chap. 33.

[266] H. W. DESAUSSURE, in 2 _S. C. Equity Reports_, 644 (revised edition).

With this view harmonizes the opinion of Justice Pope in McCreery _v._ Davis rendered in 1894. While separation from bed and board--the only form of divorce obtainable in the state--"is a judicial barrier to any attempt to exercise the rights or enforce the duties of the parties affected by the judgment, yet the courts are only too willing to have the parties restored to their original _status quo_, upon good cause shown. While the remedy is a hard one, and to a certain extent interferes with the operation of the laws of nature, still woman must be protected! After all, an unbending adhesion to the laws of right living has a healthy effect upon the lives of others. If self-denial is thus necessitated, it should not be forgotten that many natures are perfected through its beneficent influence. True philosophy would extract good from every condition.... By art. IV, sec. 15, of our constitution, the courts of common pleas have exclusive jurisdiction in all cases of divorce, and by art. XIV, sec. 5, divorces from the bonds of matrimony shall not be allowed but by the judgment of a court as shall be prescribed by law. Thus the general assembly is denied the power to grant divorces directly, but is permitted to clothe the courts of common pleas with that power. This last they have refused to do by repealing the act of 1872;" and thus "we have the common law restored to us on this subject."[267]

[267] Opinion of Justice Pope in McCreery _v._ Davis, 44 _S. C. Reports_, 195-227 (1894).

Finally it may be noted that the supreme court of the District of Columbia has exclusive jurisdiction in all applications for either full or partial separation. Until recently a divorce from the bond of wedlock might be granted (1) when either spouse had a husband or wife living at the time of the contract, "unless the former marriage had been lawfully dissolved and no restraint imposed" on further marriage; (2) when the marriage was contracted during the lunacy of either party; (3) when either was matrimonially incapacitated at the time of the marriage; or (4) has since committed adultery; (5) for habitual drunkenness for a period of three years; (6) for cruel treatment endangering the life or health of the complainant; or (7) for wilful desertion and abandonment for two years. A divorce from bed and board was allowed (1) for cruel treatment endangering life or health; or (2) "reasonable apprehension, to the satisfaction of the court, of bodily harm."[268] A new and drastic law was passed in 1901. Hereafter absolute divorce will be granted only for adultery, the guilty person not being allowed to remarry. Legal separation from bed and board may be obtained for (1) drunkenness, (2) cruelty, or (3) desertion. Only residents may bring suit for divorce; and unless the applicant has for three years been a _bona fide_ resident, no decree will be granted for a cause occurring outside the District before such residence began.[269]

[268] _Comp. Stat. of D. C._ (1894), 275, 276.

[269] MOORE, _Code of D. C._ (1902), 199, 200.

_c_) _Remarriage, residence, notice, and miscellaneous provisions._--Throughout the century, and especially during the first half, many of the southern states have been conservative, even severe, regarding the liberty of the person offending to remarry after full separation; but in very few cases is any restraint put upon the further marriage of the person in whose favor the decree is granted. The divorce acts passed by the assembly of Virginia sometimes expressly forbid the guilty person to contract further wedlock during the lifetime of the former spouse.[270] The law of 1848, when the marriage bond is dissolved on account of infidelity, authorizes the court in its discretion to allow both parties to remarry or only the injured person, as may seem just.[271] Such substantially is the present law. "In granting a divorce for adultery, the court may decree that the guilty party shall not marry again; in which case the bond of matrimony shall be deemed not to be dissolved as to any future marriage of such party, or in any prosecution on account thereof. But for good cause shown, so much of any decree as prohibits the guilty party from marrying again, may be revoked and annulled at any time after such decree, by the same court by which it was pronounced."[272] No restraint appears to be put upon the immediate remarriage of persons separated for other causes.

[270] See the cases already cited, _Acts_ (1826-27), 126.

[271] Act of March 18, 1848: _Acts of the Assembly_ (1847-48), 165, 166.

[272] _Code of Va._ (1887), 562.

The early statutes and the decrees for full divorce in individual cases passed by the assembly of Maryland, by their silence on the subject, appear to contemplate the further marriage of the persons at pleasure. The law of 1872, however, is somewhat conservative. "In all cases where a divorce _a vinculo matrimonii_ is decreed for adultery or abandonment, the court may, in its discretion," forbid the guilty party to "contract marriage with any other person during the lifetime" of the injured spouse, the bond of marriage not being dissolved, but remaining in full force with respect to such offender.[273] This restriction is now omitted from the code.[274] In the District of Columbia the guilty person may not remarry except with the former spouse.[275]

[273] Act of April 1: _Laws_ (1872), chap. 272, p. 445.

[274] The _Code of Md._ (1888) seems to be entirely silent as to remarriage.

[275] _Comp. Stat. of D. C._ (1894), 275 ff., allowing entire freedom; superseded by the act of 1901: MOORE, _Code_ (1902), 199, 200.

Formerly the law of North Carolina was stringent in this regard. The act of 1814 permits the "complainant or innocent person" to "marry again as if he or she had never been married;" leaving us to infer, perhaps, that the defendant was not allowed such liberty.[276] In 1828 it is squarely enacted that "no defendant or party offending, who shall be divorced from the bonds of matrimony ... shall ever be permitted to marry again."[277] This rule stands in sharp contrast with the policy of the later law. First the prohibition was restricted to the lifetime of the aggrieved.[278] Next, in 1869, the term was reduced to two years.[279] From 1871 to 1895 no check whatever was put upon the further marriage of either spouse, whether guilty or innocent;[280] but now in case of wilful desertion the guilty defendant may not rewed in five years, or during the lifetime of the plaintiff, if divorced for the eighth cause above considered.

[276] _Laws_ (1814), chap. 5; and HAYWOOD, _Manual_ (1819), 176. The same provision appears in _Laws of the State of N. C._ (1821), II, 1294.

[277] _Acts_ (1827-28), 20.

[278] _Rev. Code_ (1855), chap. 39, sec. 17, p. 254.

[279] Act of April 7, 1869: _Pub. Laws_, 323.

[280] All restriction is removed by _Laws_ (1870-71), chap. 193, sec. 46, p. 343; also in _Code of N. C._ (1883), I, 518.

The Georgia statute approved in 1806 allows remarriage when a contract is nullified under the principles of ecclesiastical law; but denies the privilege to the person whose "improper or criminal conduct" is the cause of an absolute divorce, so long as the innocent consort lives.[281] This rule long remained in force;[282] but under the existing code a rather peculiar procedure is adopted. The jury according to whose final verdict a decree of absolute divorce is granted determines the rights and disabilities of the parties, including the question of remarriage, subject to the revision of the court; but provision is made for subsequent removal of the disabilities thus imposed. On proper application, notice of which must be published in a newspaper for sixty days, with twenty days' personal notification to the other divorced person if still living and residing in the county, the question of granting relief is submitted to a new jury, "who shall hear all the facts, and if, in their judgment, the interest of the applicant or of society demands the removal of such disabilities," shall so find; and the person relieved shall then be allowed to form a second marriage as if no former contract had ever existed. At the trial the divorced person or any citizen of the county may resist the application; but should no person appear for this purpose, then "the solicitor-general shall represent the state, with full power to resist the same, as in ordinary divorce cases."[283]

[281] _Compilation of Laws of Ga._ (1812), 313.

[282] For instance, see HOTCHKISS, _Codification_ (1845), 331; COBB, _Analysis_ (1846), 294 ff.; COBB, _Digest_ (1851), 226 ff.

[283] _Acts_ (1872), 14; _ibid._ (1879), 51; also in _Code of Ga._ (1896), II, 29, 30. A "verdict of divorce in 1866 will not authorize the guilty party to marry again without proof of a decree of court authorizing to marry."--62 _Ga._, 408.

By the Tennessee statute of 1799 no restraint is put upon immediate remarriage in any case of divorce, except where the cause is infidelity, when the guilty defendant may not marry the person with whom the crime was committed during the lifetime of the former spouse.[284] This provision still appears unchanged in the code.[285] The offender is dealt with in precisely the same way by the Kentucky law of 1809; and by it also the injured spouse is permitted to marry again only after two years.[286] In 1820 the innocent person is relieved from all restraint;[287] both parties are treated as "single" persons in 1843;[288] and likewise by the present statute, in all cases of divorce, no matter what the cause, guilty and innocent alike are absolutely free to form new marriages whenever it shall please them so to do.[289] The same freedom exists in Arizona, New Mexico, Arkansas, Indian Territory, Texas, West Virginia, and Missouri; although in the last-named state until 1885 the guilty defendant was not permitted to remarry for five years, "unless otherwise expressed in the decree of the court."[290] Since 1857, in Mississippi, by a more stringent clause "the decree may provide, in the discretion of the court, that a party against whom a divorce is granted because of adultery shall not be at liberty to marry again;" but the freedom of the successful plaintiff is unrestrained.[291] In 1824 the Alabama assembly in all cases forbade the guilty person to remarry; but this prohibition was removed by an act of February, 1870, which, however, lasted only until April, 1873, when it in turn was repealed. By the existing code the chancellor in making his decree may, according to the evidence and nature of the case, direct whether the party, against whom the decree is rendered, shall be permitted to marry again; and in decrees now or hereafter rendered, when no order is made allowing or disallowing the divorced person to remarry, he may on petition and proper proof allow or disallow the petitioner to form a new marriage.[292] It is constituted bigamy in Oklahoma for either divorced person to remarry within six months after the divorce, or until thirty days after final judgment, if appeal be taken. Every decree of divorce shall recite that it "does not become absolute and take effect until the expiration of six months" from the day when it was rendered.[293] According to the Louisiana law, since 1808--at least until 1888--the wife cannot remarry until ten months after dissolution of the contract, whether by death, divorce, or decree of nullity.[294] In case of divorce for infidelity the offender may not marry his or her accomplice; and this last provision has been in force since 1827.[295] Under the same conditions as in Louisiana, the woman in Porto Rico may not marry during a period of three hundred and one days after dissolution of the marriage, or until a child is born if she be pregnant at the time of the husband's death.[296] By the criminal code of Florida, apparently, the guilty party may not rewed.[297]

[284] Act of Oct. 26, 1799: SCOTT, _Laws of Tenn._ (1821), I, 647.

[285] _Code of Tenn._ (1884), 617; SHANNON, _Code_ (1896), 1050.

[286] LITTELL, _Stat. Laws of Ky._ (1814), IV, 20. This restriction upon the defendant appears also in the act of 1812: _ibid._, IV, 407-10.

[287] _Acts_ (1819-20), 896.

[288] Act of March 2, 1843: _Acts_ (1842-43), 29, 30.

[289] _Kentucky Stat._ (1899), 827.

[290] _Rev. Stat. of Ariz._ (1887), 374; _Comp. Laws of N. M._ (1897), 407 ff.; _Digest of Ark._ (1894), 680 ff.; _Ann. Stat. of Ind. Ter._ (1899), 324-27; _Laws of the Rep. of Tex._ (act of Jan. 6, 1841), V, 20; also _Rev. Civil Stat. of Tex._ (1888), I, 887; _Ann. Civil Stat._ (1897), I, 1095-1100; _Code of W. Va._ (1899), 660 ff.; also KELLY, _Rev. Stat. of W. Va._ (1878), I, 495. The five-year limit for Missouri is fixed by the act of Jan. 24, 1835: _Rev. Stat._ (1835), 226; and is retained in _Rev. Stat._ (1845), 428; and _ibid._ (1879), I, 362; but it is struck out by _Laws_ (1885), 159; and there is no restriction in _Rev. Stat._ (1899), I, 741-44. But by the act of Jan. 31, 1833, it was provided that "when one of the parties ... shall be divorced, it shall ... be lawful for the other party to marry again, after two years shall have expired."--_Laws of a Pub. and Gen. Nature_ (1842), II, 361.

[291] _Ann. Code of Miss._ (1892), 420; _Rev. Code_ (1857), 334.

[292] _Cf._ _Acts_ (1824), 61, 62; _ibid._ (1869-70), 76, 77; _ibid._ (1872-73), 122; _Code of Ala._ (1897), 492, 493.

[293] _Stat. of Okla._ (1893), 876, 877; WILSON, _Statutes_ (1903), II, 1122.

[294] _Digest of Civil Laws_ (1808), 28; _Rev. Civil Code_ (1888), 68.

[295] _Rev. Laws_ (1897), 306; _ibid._ (1870), 21; _Acts_ (1827), 132, 134; Acts (1855), 376, 377.

[296] _Rev. Stat. and Codes of Porto Rico_ (1902), 860.

[297] _Rev. Stat. of Fla._ (1892), 820.

In all of the southern and southwestern states, except Louisiana and, of course, South Carolina, a short term of residence is required to qualify the plaintiff to bring suit. Virginia began with a fairly cautious act in 1848. A definite term is not fixed; but a petition for divorce must be brought in the court of the county, city, or town where one of the parties lives, and when the plaintiff has left the county or other place where the married persons dwelt together, the "suit shall be instituted and heard in the court" held for that same county, if the defendant lives there still. The benefits of the act do not extend to any save _bona fide_ citizens at the time of petition; nor to any case where the parties have never lived together as citizens and as married persons in the commonwealth; nor to any cause of adultery which shall have occurred in any other state or country, unless the parties at the time of such cause or before it took place were citizens of the state and lived there together as husband and wife.[298] By the present law no suit can be sustained unless one of the persons has been domiciled in the state for at least one year before; and it must be brought either in the county or corporation where the parties last cohabited, or, at the option of the plaintiff, in that of the defendant, if still a resident of the state; otherwise in the place where the plaintiff dwells.[299]

[298] Act of March 18: _Acts of the Assembly_ (1847-48), 165, 166.

[299] _Code of Va._ (1887), 561.

The same rule as that of the parent state has existed in West Virginia since 1882, when a year's residence of one of the persons instead of mere residence at the time of the filing of the suit was introduced.[300] In Georgia twelve months in the state and six in the county for a divorce of either kind are required.[301] By the laws of Kentucky and Arkansas the term of previous residence for the plaintiff is also one year; and if the cause for divorce arose or existed without the state, he must have been a resident of the state at the time, unless it was also a ground of divorce where it existed or arose. In each of these states "an action for divorce must be brought within five years next after the doing of the act complained of."[302] In Alabama, when the defendant lives outside the state, the plaintiff must have been a _bona fide_ resident for one year before bringing the action; or for three years when abandonment is the cause alleged.[303] Since 1822 in Mississippi the term of residence in the state for the applicant has been one year;[304] although, in 1857, a divorce shall be denied when the parties have never lived together as husband and wife in the state; as also for a cause occurring elsewhere, unless prior to its occurrence they have so dwelt together in the commonwealth. This last restriction does not apply to a _bona fide_ citizen who marries abroad and does not discover the cause of divorce until after return to the state; but in case of desertion the term of _bona fide_ residence must be three years.[305] An important change was introduced in 1863. It is then sufficient to be a citizen of the state or a resident of it for one year; but the applicant must make affidavit that he has not taken up residence to obtain a divorce.[306] By the existing code the courts of chancery may exercise jurisdiction only (1) when both persons are domiciled in the state when suit is commenced; or (2) when the complainant is so domiciled and the defendant is personally served with process in the state; or (3) when one of the consorts is thus domiciled and one or the other of them an actual resident for one year before action began.[307]

[300] _Code of W. Va._ (1900), 662; _Acts_ (1882), chap. 60.

[301] Act of Oct. 20, 1891: _Acts_ (1890-91), 235.

[302] _Ky. Stat._ (1894), 769, 770; _Digest of Ark._ (1894), 681. _Cf._ WRIGHT, _Report_, 80.

[303] _Code of Ala._ (1887), 525; _ibid._ (1897), 493.

[304] Act of June 15, 1822: _Code of Miss._ (1848), 495.

[305] _Rev. Code_ (1857), 335.

[306] Act of Dec. 1, 1863: _Laws_ (1862-63), 125, 126.

[307] _Ann. Code of Miss._ (1892), 421.

The time of residence for the petitioner is three years in the District of Columbia; and two years in Florida.[308] It is also two years in Tennessee, although the acts complained of were committed out of the state, or the petitioner lived out of the state at the time, and no matter where the defendant resides. A decree of divorce in a foreign state granted to a citizen of Tennessee who has merely temporarily transferred his residence there is void and will not be recognized.[309] In Maryland, since 1842, a divorce will not be granted when the cause occurs outside of the state, unless either the plaintiff or the defendant has resided in the state for the two preceding years.[310] By the North Carolina act of 1814 a stringent rule was adopted, only a citizen resident in the state for three years being allowed to sue.[311] At present the plaintiff must show that the facts constituting the ground for divorce have existed for at least six months prior to filing the complaint, and that he has been a resident of the state for the preceding two years; and if the wife be plaintiff, she may set forth "that the husband is removing or about to remove his property and effects from the state, whereby she may be disappointed in her alimony."[312] But in case of desertion the term of previous residence is five years. The period of previous residence for the plaintiff is six months in the state and county in Texas;[313] one year within the territory in New Mexico, Arizona, and Oklahoma;[314] while in Missouri it is one year, unless the offense or injury complained of was committed within the state, or when one or both of the persons resided there. In all cases when the proceedings are _ex parte_, the court "shall, before granting the divorce, require proof of the good conduct of the petitioner and be satisfied that he or she is an innocent or injured" person.[315] In Arkansas and Indian Territory the plaintiff must "allege and prove" (1) "residence in the state for one year next before the commencement of the action:" (2) that the cause of divorce occurred or existed in the state, or, if out of the state, either that it was a legal cause there or that the applicant's residence was then in the state; (3) that the cause of divorce occurred or existed within five years before the suit began.[316] One year's residence is likewise required in Porto Rico, unless the act complained of was committed in the island or while one of the consorts resided there.[317]

[308] _Rev. Stat. of Fla._ (1892), 504. But by the act of May 19, 1899, "when the defendant has been guilty of adultery in this state," then any citizen of the state, being the aggrieved, may get a divorce at any time, the two years' previous residence not being required: _Acts and Res._ (1899), 117. _Cf._ _Comp. Stat. of D. C._ (1894), 276, requiring two years; superseded by the act of 1901: MOORE, _Code_ (1902), 200.

[309] _Code of Tenn._ (1884), 612; SHANNON, _Code_ (1896), 1044 n. 2. Earlier the condition was citizenship and residence for one year: Act of Oct. 26, 1799: SCOTT, _Laws_ (1821), I, 647; same in 1835, except the petitioner may have been absent on business or for health: CARUTHERS AND NICHOLSON, _Compilation_ (1836), 260; also see 5 _Yerg._, 203. A male citizen bringing suit for divorce must give bond and security for costs: _Acts_ (1891), chap. 221, p. 433. On divorce in a foreign state see 3 _Lea_, 260.

[310] _Code of Md._ (1888), I, 144; _cf._ _Laws_ (1841-42), chap. 262; _Laws_ (1843), chap. 287; _Laws_ (1886), chap. 10.

[311] _Laws_ (1814), chap. 5; HAYWOOD, _Manual_ (1819), 177; _Laws_ (1821), II, 1294, 1295.

[312] _Code of N. C._ (1883), I, 575. See WRIGHT, _Report_, 83; _Pub. Laws_ (1903), 846.

[313] The plaintiff must also be a _bona fide_ resident of the state: _Rev. Civil Stat. of Tex._ (1888), I, 886; _Ann. Civil Stat._ (1897), I, 1097.

[314] By act of Congress, May 25, 1896: _Stat. at Large_, XXIX, 136, not less than one year's previous residence in any of the territories is required to entitle the plaintiff to bring suit for divorce. See _Rev. Stat. of Ariz._ (1901), 813; _Acts of N. M._ (1901), 117; WILSON, _Stat. of Okla._ (1903), II, 1119.

[315] _Rev. Stat. of Mo._ (1889), I, 1030; _ibid._ (1899), I, 742, 743. This provision for residence appears in the statutes from 1835 onward: _Rev. Stat._ (1835), 225; _ibid._ (1845), 427; _ibid._ (1879), 361; and the period is one year by the act of May 13, 1807; _Laws of Pub. and Gen. Nature_ (1842), I, 92.

[316] _Digest of Ark._ (1894), 681; _Ann. Stat. of Ind. Ter._ (1899), 325. The statute does not contemplate "constructive" residence; and applies to limited as well as absolute divorce: see Wood _v._ Wood, 54 _Ark._, 172; 15 _S. W._, 459.

[317] _Rev. Stat. and Codes of Porto Rico_ (1902), 814.

A few of the states under consideration have adopted special provisions governing notice to the defendant. Thus in Louisiana, "when the defendant is absent, or incapable of acting for any cause, an attorney shall be appointed to represent him, against whom, contradictorily, the suit shall be prosecuted."[318] In North Carolina, if personal service cannot be made, the court may order service by publication, as in any other actions.[319] By the law of Tennessee, process is authorized as in chancery cases. If the wife is the petitioner, the suit may be heard and decided without service, either personal or by publication, if the bill was filed and the subpoena placed in the hands of the sheriff of the county in which the suit is instituted three months before the time when the subpœna is returnable; but the officer having the subpœna shall execute it if he can.[320] In New Mexico service of process can be made by publication after obtaining an order from a judge of the supreme court, based on an affidavit showing the present residence of the defendant, if known, or last known place of residence, and efforts made to ascertain the present residence. The order for publication shall direct that a copy of the summons be mailed to the present or last known residence of the defendant, and may direct such other means of bringing the action to the knowledge of the defendant as the judge shall deem proper.[321] Until recently Florida had a still different law. If the defendant is absent from the state, so that ordinary process cannot be served, or, if served, he cannot be compelled to appear and answer or plead, the court may order a hearing on the bill, a copy of such order to be published in some public newspaper of the state, for the space of three months at least, or for a longer time, if the court shall so direct, or a copy of the bill and order for the hearing, certified by the clerk of the court, shall be actually served upon or delivered to the defendant at least three months before the day fixed for the hearing, or for a longer time, as the court may determine. The present statute, however, directs simply that process be served as in other chancery suits.[322] This is the rule also in Virginia, West Virginia, Maryland, Mississippi, Arkansas, and Indian Territory; likewise in Georgia when the defendant is a non-resident; and in Alabama, where, if the defendant is a non-resident, publication is essential.[323] In the District of Columbia process is according to the usual course of equity and the rules adopted by the court. Missouri requires process as in other civil actions; and this is the law in the remaining states and territories of the group.[324]

[318] _Rev. Civil Code of La._ (1888), 69; _ibid._ (1870), 19.

[319] _Code of N. C._ (1883), I, 81, 82; WRIGHT, _Report_, 88.

[320] _Code of Tenn._ (1884), 613; WRIGHT, _Report_, 88.

[321] _Comp. Laws_ (1897), 408.

[322] Compare _Rev. Stat. of Fla._ (1892), 505; WRIGHT, _Report_, 87.

[323] _Code of Va._ (1887), 561; _Code of W. Va._ (1900), 662; _Code of Md._ (1888), 142; _Ann. Code of Miss._ (1892), 421; _Code of Ga._ (1882), 395; _ibid._ (1896), II, 227; _Digest of Ark._ (1894), 681; _Ann. Stat. of Ind. Ter._ (1899), 325. See WRIGHT, _Report_, 85-89.

By the Alabama Act of Dec. 14, 1898, in case of a decree _pro confesso_ taken in the chancery court, the evidence having been taken and the cause being ready for decree, and no defense being interposed, if the complainant or his solicitor shall file a written request to the register or the clerk of the court to deliver the papers in the suit to the chancellor or judge, at the same time submitting his note of testimony in the case, then the chancellor shall render a decree in term time or in vacation: _Gen. Laws of Ala._ (1898-99), 118.

[324] _Rev. Stat. of Mo._ (1899), I, 742; _Rev. Stat. of Ariz._ (1887), 373 ff.; _ibid._ (1901), 439; _Rev. Civil Stat. of Tex._ (1888), I, 885 ff.; _Stat. of Okla._ (1893), 875; WILSON, _Stat. of Okla._ (1903), II, 1120; MOORE, _Code of D. C._ (1901), 21.

The miscellaneous provisions are much the same as in the other parts of the United States. Usually, in case of divorce, the legitimacy of the children is expressly acknowledged.[325] Sometimes provision is made for trial by jury, as in Georgia, Texas, and North Carolina;[326] or it is carefully forbidden, as in Kentucky;[327] and the law may permit the woman to resume her maiden name, as in Arkansas, Kentucky, Indian Territory, Oklahoma, Mississippi, and the District of Columbia.[328] Furthermore, in the District of Columbia, a disinterested attorney must be assigned to resist the decree in uncontested cases, or in any suit when the court sees fit;[329] and similar laws exist in Louisiana and Kentucky. Arbitration in place of judicial divorce is prohibited in Louisiana;[330] the married persons are allowed to be witnesses in Texas, Oklahoma, North Carolina,[331] and formerly in Florida; and occasionally provision is made for the annulment of the decree by further process before the courts.[332]

[325] For example, by _Code of Va._ (1887), 620; _Code of W. Va._ (1891), 666; _ibid._ (1900), 713; _Code of N. C._ (1883), I, 518; _Code of Ga._ (1896), II, 230; _Rev. Stat. of Fla._ (1892), 505; _Rev. Stat. of Ariz._ (1901), 814; _Rev. Civil Stat. of Tex._ (1888), I, 887; _Ann. Civil Stat. of Tex._ (1897), I, 1099; _Comp. Stat. of D. C._ (1894), 276, 277.

[326] _Code of Ga._ (1882), 396; _Rev. Civil Stat. of Tex._ (1888), I, 886; _Ann. Civil Stat. of Tex._ (1897), I, 1097; _Code of N. C._ (1883), I, 516.

[327] _Ky. Stat._ (1894), 767.

[328] _Digest of Ark._ (1894), 683; _Ann. Stat. of Ind. Ter._ (1899), 327; _Stat. of Ky._ (1894), 772; _Rev. Stat. of Mo._ (1899), I, 740; _Stat. of Okla._ (1893), 876; WILSON, _Stat. of Okla._ (1903), II, 1121; _Comp. Stat. of D. C._ (1894), 277; MOORE, _Code of D. C._ (1902), 200.

[329] MOORE, _Code of D. C._ (1902), 201.

[330] _Rev. Civil Code of La._ (1888), 69.

[331] _Laws of Tex._ (1897), 49; _Code of N. C._ (1883), I, 516; _Stat. of Okla._ (1893), 877, 878; WILSON, _Stat. of Okla._ (1903), II, 1123: _Acts and Res. of Fla._ (1885), 24.

[332] As by _Kentucky Stat._ (1894), 770, 771; _Digest of Ark._ (1894), 683; _Ann. Stat. of Ind. Ter._ (1899), 327; _Code of Va._ (1887), 562, 563; _Code of W. Va._ (1891), 614; _ibid._ (1900), 663.

_d_) _Alimony, property, and custody of children._--The statutes of these states contain the usual provisions for the protection and support of the wife and children during the suit for divorce; and sometimes the husband is required to furnish money to defray the wife's expenses in the same. The Virginia law authorizes the court in term or the judge in vacation to make an order compelling the "man to pay any sums necessary for the maintenance of the woman and to enable her to carry on the suit, or to prevent him from imposing any restraint on her personal liberty, or to provide for the custody and maintenance of the minor children" during the litigation. In the same way steps may be taken to preserve the estate of the husband, "so that it may be forthcoming to meet any decree," even compelling him to give security to abide by the decision.[333] North Carolina also grants the wife alimony _pendente lite_; but an order allowing it shall not be made "unless the husband shall have had five days' notice;" and in all cases of application for alimony it is admissible for him to be heard by affidavit in answer to the allegations made by the complainant. If he has abandoned his wife and left the state, or is in parts unknown, or is about to remove or dispose of his property for the purpose of defeating her claims, a notice is not required.[334] Arkansas and Indian Territory allow similar support during the suit, including attorney's fees.[335] By the Louisiana statute, "if the wife who sues for a separation" from bed and board, or for a divorce, "has left or declared her intention to leave the dwelling of her husband, the judge shall assign the house wherein she shall be obliged to dwell until the determination of the suit." She "shall be subject to prove her said residence as often as she may be required to do so, and in case she fails so to do, every proceeding on the separation shall be suspended." She is entitled to alimony _pendente lite_, if she constantly resides in the house assigned; and during the action, for the preservation of her rights, she may require an inventory and appraisement to be made of the property in the husband's possession and demand an injunction restraining him from disposing of any part thereof. After the commencement of the suit the husband may not contract a debt on account of the community, nor sell the immovables belonging to the same; such alienation being void, if made "with the fraudulent view of injuring the rights of the wife." Custody of the children of the marriage, "whose provisional keeping is claimed by both husband and wife," belongs to the husband, whether plaintiff or defendant, "unless there shall be strong reasons to deprive him of it;" but when a separation from bed and board has been decreed, the "children shall be placed under the care of the party who shall have obtained the separation, unless the judge shall, for the greater advantage of the children and with the advice of the family meeting, order that some or all" of them be intrusted to the other spouse. In all cases of full divorce "the minor children shall be placed under the tutorship of the party who shall have obtained" the decree.[336]

[333] _Code of Va._ (1887), 562; _cf._ _Code of W. Va._ (1900), 662.

[334] _Code of N. C._ (1883), I, 517.

[335] _Digest of Ark._ (1894), 681; _Ann. Stat. of Ind. Ter._ (1899), 326.

[336] Rev. _Civil Stat. of La._ (1888), 70-72; _ibid._ (1870), 19-21; _ibid._ (1897), 306.

Permanent alimony and the custody of the children after dissolution of marriage are generally provided for. Sometimes the wife is granted separate alimony without a decree of divorce, as in Virginia, Florida, Georgia, and Oklahoma.[337] From an early period the North Carolina statutes have been conspicuous for the relief granted to the wife after divorce, or, under certain circumstances, without formal separation. Thus by the act of 1814 the court may grant a woman having a limited divorce for cruelty or abandonment such alimony as the husband's means will admit, not exceeding either one-third of his real or personal estate or a like share of the annual profits of his estate, occupation, or labor.[338] The deserted wife gains still further protection in 1816. "Whereas," declares an act of that year, "cases of great hardship often occur, the husband being at liberty to return and squander away the estate of the wife, subsequently obtained;" to remedy the evil it is therefore enacted that in future the decree of separation from bed and board shall have the effect of securing to the wife "any property which she may subsequently obtain, either by her own labor, gift, devise, or operation of law, unless the court shall in their judgment otherwise order."[339] Furthermore, in 1828-29 the courts were authorized to grant the wife separate alimony without divorce "whenever a man shall become an habitual drunkard or spendthrift, wasting his substance to the impoverishment of his family."[340] The present law is conceived in the spirit of these early enactments. In case of separation from bed and board, the amount of alimony is the same as in 1814. Separate maintenance without a divorce is still allowed. "When any husband shall separate himself from his wife and fail to provide her with the necessary subsistence according to his means and condition in life, or if he shall be a drunkard or spendthrift, the wife may apply for a special proceeding to the judge of the superior court for the county in which he resides, to have a reasonable subsistence secured to her and to the children of the marriage." Finally it may be noted that alimony may be decreed to the husband as well as the wife in Virginia and West Virginia.

[337] _Code of Ga._ (1896), II, 236; _Rev. Stat. of Fla._ (1892), 505; _Stat. of Okla._ (1893), 877; WILSON, _Stat. of Okla._ (1903), II, 1123; _Code of Va._ (1887), 562. _Cf._, for Virginia, 4 H. AND M., 507; 4 RAND., 662: 1 _Rob._, 608; 1 MINOR'S _Inst._, 282.

[338] _Laws of N. C._ (1814), chap. 5; HAYWOOD, MANUAL (1819), 174 ff. It may be noted that the act of 1814 lays on the party "cast" in each divorce suit a tax of ten pounds payable to the state: _ibid._, 177.

[339] _Acts_ (1816), chap. 33: also in HAYWOOD, _Manual_, 177, 178.

[340] _Acts_ (1828-29), 25.

Measures are taken in nearly every state for the division or other disposal of property after separation or divorce. The North Carolina law is very elaborate. "Every woman who shall be living separate from her husband, either upon a judgment of divorce ... or under a deed of separation, executed by said husband and wife, and registered in the county in which she resides, or whose husband shall have been declared an idiot or a lunatic, shall be deemed and held ... a free trader, and shall have power to convey her personal estate and her real estate without the assent of the husband." So also "every woman whose husband shall abandon her, or shall maliciously turn her out of doors, shall be deemed a free trader, so far as to be competent to contract and be contracted with, and to bind her separate property, but the liability of the husband for her reasonable support shall not thereby be impaired, and she shall have power to convey" her real and personal estate without her husband's assent. When a marriage is dissolved _a vinculo_, each of the parties loses all right to any estate by courtesy or dower, and all right to a year's provision or a distributive share in the personal property of the other, or to administer on the other's estate, and all rights whatsoever in the other's estate gained by settlement in consideration of the marriage. But if a "married woman shall elope with an adulterer, or shall wilfully and without just cause abandon her husband and refuse to live with him, and shall not be living with" him at his death; or if a limited divorce be granted on the husband's petition, "she shall thereby lose all right to dower in the lands and tenements of her husband, and also all right to a year's provision." In such cases the husband may convey his real estate as if he were unmarried, and the wife is thereafter barred of all claims to dower. When the husband is guilty of a similar offense, and his conduct is not condoned by the wife, or in case a partial divorce has been granted on her application, he shall suffer the like penalties.[341]

[341] _Code of N. C._ (1883), I, 696, 700; and _Laws_ (1893), chap. 153, pp. 114-16, amending _Laws_ (1871-72), chap. 193, sec. 44. By the law of the District of Columbia, "in case of adultery of the wife, committed after ... divorce from bed and board, the court may, on petition of the husband ... deprive the wife of alimony from the date of her said criminal act, and rescind her right of dower, as well as dispossess her ... of the care, custody, and guardianship" of any child awarded to her by the original judgment: _Comp. Stat._ (1894), 277. _Cf._ MOORE, _Code_, 201.

In Missouri a divorce obtained by the wife is considered in law as the death of the husband, and she is looked upon as his widow; but when at fault she is barred of dower.[342] The guilty wife loses her right of dower also in Tennessee; and there she cannot claim permanent alimony. In the same state, when divorce is for the wife's infidelity, and the woman afterwards cohabits with her paramour, she is made "incapable of alienating, directly or indirectly, any of her lands;" and after her death these are to be distributed according to the rules of intestate inheritance.[343] Dower is barred by grant of permanent alimony in Georgia;[344] and in Louisiana, in case of separation from bed and board, the defendant loses "all the advantages or donations" which the plaintiff "may have conferred by the marriage contract or since," while the latter preserves all those to which he or she would otherwise have been entitled; and these dispositions are to take place even when the advantages and donations were "reciprocally made."[345]

[342] _Rev. Civil Stat._ (1889), I, 1036. _Cf._ 61 _Mo._, 148; and 57 _Mo._, 200; 3 _M. A._, 321.

[343] _Code of Tenn._ (1884), 616, 617. "If the wife, at the time of a decree dissolving the marriage, be the owner of any lands, or have in her possession goods or chattels or choses in action acquired by her own industry or given to her by devise or otherwise, or which may have come to her, or to which she may be entitled by the decease of any relative intestate, she shall have entire and exclusive dominion and control thereof, and may sue for and recover the same in her own name subject, however, to the rights of creditors who became such before the decree was pronounced." When "a marriage is dissolved at the suit of the husband, and the defendant is owner, in her own right, of lands, his right to and interest therein and to the rents and profits of the same, shall not be taken away or impaired by the dissolution."--_Ibid._, 616, 617. _Cf._ SHANNON, _Code_ (1896), 1050.

[344] _Code of Ga._ (1896), II, 237; and 43 _Ga._, 295. But in case of _bona-fide_ separation without divorce alimony may be granted: _Code_ (1882), 401: _ibid._ (1896), II, 235.

[345] _Rev. Civil Code_ (1888), 72, 73; _ibid._ (1870), 20.

In general, on all these provisions, see also _Code of Md._ (1888), I, 143, 144; _Rev. Civil Stat. of Mo._ (1899), I, 742, 743; _Code of Ga._ (1896), II, 230 ff.; _Ann. Code of Miss._ (1892), 420; _Digest of Ark._ (1894), 681 ff.; _Ann. Stat. of Ind. Ter._ (1899), 325-27; _Stat. of Okla._ (1893), 875 ff.; WILSON, _Stat. of Okla._ (1903), II, 1119-28; _Kentucky Stat._ (1903), 846-51; _Rev. Stat. of Ariz._ (1887), 374, 375; _ibid._ (1901), 814, 815; _Rev. Stat. of Fla._ (1892), 505, 506; _Rev. Civil Stat. of Tex._ (1888), I, 886-88.

Finally it must be noted as a matter of regret that in no instance in these states has any provision been made for the registration of divorces or the return and publication of divorce statistics.

III. THE MIDDLE AND WESTERN STATES[346]

[346] In this section are analyzed the statutes of the following twenty-six states, districts, and territories: Alaska, California, Colorado, Delaware, Hawaii, Idaho, Illinois, Indiana, Iowa, Kansas, Michigan, Minnesota, Montana, Nebraska, Nevada, New Jersey, New York, North Dakota, Ohio, Oregon, Pennsylvania, South Dakota, Utah, Washington, Wisconsin, and Wyoming.

_a_) _Legislative divorce._--An examination of the session laws reveals the fact that legislative divorce has at some time existed in many western commonwealths. During the territorial stage, in particular, and in some cases for a considerable period thereafter, the assemblies at each meeting were called upon to hear and determine petitions for dissolution of marriage which ought to have been relegated to the courts. Such, for example, was the practice in Michigan until 1837, when it was forbidden by the first constitution of the state;[347] and in Illinois until a later time. At the session of 1817-18 the assembly of Illinois Territory granted relief to Elizabeth Spriggs because she had been "shamefully abandoned" by her husband, who, it is alleged, is still guilty of "shameful" misconduct, and because she must be "considerably injured if she cannot obtain a divorce sooner than in the ordinary way."[348] Other cases occurred from time to time;[349] and in 1831 the marital bonds of twenty couples were dissolved by one act of a few lines.[350] Indiana appears to have been nearly as indiscreet. For instance, in 1838 the marriage of John Duvall and Nancy Duvall, _alias_ Nancy Stack, was declared null and void.[351] Two years later occurred a divorce from the bond of wedlock, the wife being permitted to resume her maiden name. Thereafter it became the practice in this state for the assembly to grant persons leave to file bills in the courts in cases where the prescribed causes for divorce by judicial process did not exist. Thus in 1842 Mary Ann Bruner was allowed to file a petition because of "her disability by reason of her husband not having absented himself from her for two years," the full term necessary to constitute a valid ground according to the statute.[352] Until 1851, when the constitution put a stop to this evil custom, many such applications were referred to the circuit courts, the full legal requirement being similarly waived.[353] The early Minnesota lawmakers found plenty of business of the same kind. "Be it enacted," runs a decree of the assembly in 1849, "that the marriage heretofore existing between Catherine Hathaway and her husband, Isaac Hathaway, ... is hereby dissolved; and the said parties are restored to all the rights and privileges of unmarried persons."[354] Another example seems to show that a "pale-face" cannot always live happily with a "dusky mate." It is solemnly declared "that Louis Laramie is hereby divorced from Wa-kan-ye-ke-win, his wife, as fully and effectually, as if the legal ceremony of marriage and its rites had never been solemnized."[355] Similar decrees appear in the statute-book until in 1856 constitutional authority finally put a stop to legislative interference.[356]

[347] Special divorce acts may be found in the _Ter. Laws of Mich._, II, 655, 709, 710, 752, 753, 769; III, 840, 842, 847, 895, 901, 905 (three cases), 907 (two cases).

[348] _Laws of Ill._ (1817-18), 356.

[349] Thus on Jan. 15, 1825, two decrees were granted in one bill: _Laws_ (1825), 120.

[350] Act of Feb. 15, 1831: _Laws_, 71, 72. There is another example in _Laws_ (1839), 79.

[351] _Laws of a Local Nature_ (1838), 406.

[352] _Laws of a Local Nature_ (1842), 117.

[353] _Cf._ _ibid._ (1842), 119, 120, 121; _ibid._ (1844), 148; _ibid._ (1849), 203, 300 (two cases); _ibid._ (1850), 105, 129, 194, 342, 344; _ibid._ (1851), 404, 441, 497.

[354] _Laws of Minn._ (1849), 89.

[355] _Ibid._

[356] For examples see _Laws_ (1851), 39, 40 (four cases); and _ibid._ (1852), 60, 61 (two cases). Seven of the acts cited are also given or restated in _Collected Stat. of the Ter. of Minn. and Decis. of Supreme Court_ (1853).

During the first six years of territorial life many special divorce decrees may be found in the Nebraska laws; and they are invariably expressed in the curt and summary style peculiar to such legislation throughout the country, no reference usually being made to causes or to alimony.[357] At the same time Kansas was having a similar experience. One divorce petition was granted by the assembly in 1857, three in 1858, eight in 1859, while in 1860 the number suddenly rose to forty-three; for this was the "last chance" before the constitutional prohibition of 1859 went into effect.[358] Previous to 1847 Iowa was still more indulgent. Year after year appeals were made to the assembly for relief. Sometimes the intention appears to be to deny the defendant the privilege of further wedlock; as in 1840, when a decree was granted to dissolve the marriage contract, "so far as relates to the said Harriet Williams," who is allowed to change her name. Sometimes a partial divorce is sanctioned, as when the marital bond between John Philips and Nancy his wife was "so far dissolved as to permit the said parties to live separate and apart from each other." In this case the woman was given power to sue and be sued, and was allowed to retain the children. In 1841-42 eleven more legislative decrees were granted. The next year saw nineteen petitions combined in one bill, which was passed over the governor's veto by a two-thirds vote. The last examples occur in 1846, the year when Iowa was admitted to the Union as a state, and when the usual constitutional interdict appears.[359]

[357] Here is an example: "The bonds of matrimony between Obediah J. Niles and Hannah M. Niles shall be and the same are hereby dissolved."--_Laws and Resolutions_, I, 373 (act of Feb., 1857). For other cases see _ibid._, 569, 570 (two cases, 1858), 653-55, 656 (three cases, 1860), 766, 767 (two cases, 1861). On Jan. 23, 1856, six petitions in one bill were referred to the judge of the district court for the first judicial district with power to dissolve marriage: _ibid._, 300.

[358] _Private Laws of Kan._ (1860), 232-54. For other cases see _ibid._ (1858), 10-12 (three cases); and _ibid._ (1859), 41-45 (eight cases).

[359] _Cf._ _Laws of Ia._ (1840), 12; _ibid._ (1840-41), 7, 12; _ibid._ (1841-42), 3, 11, 13, 28, 30, 31, 66, 73, 94, 95 (eleven cases); _ibid._ (1842-43), 82-84 (nineteen cases); _ibid._ (1845-46), 42, 48, 51, 52, 61, 72, 79 (eleven cases).

The practice existed also in Idaho,[360] Montana,[361] and Oregon.[362] On the Pacific coast, however, Washington is the chief offender. Beginning with three cases in 1858 and one in 1859, the number mounts to fifteen in 1860, seventeen in 1861, fifteen in 1862, and sixteen in 1863; while after this date the session laws are silent on the subject.[363]

[360] There are two cases in _Laws and Res._ (1871), 86, 91; others in _Gen. Laws_ (1879), 54, 59-61; five in _ibid._ (1881), 439-41; and four in _ibid._ (1883), 164, 165.

[361] _The Private and Spec. Laws of Mont._ (1864-65), 554, 610, 685, 695, 699, 700, show nine cases of legislative divorce.

[362] For examples see _Spec. Laws_ (1857), 12; _ibid._ (1857-58), 107, 108, 110, 111, 112 (twelve cases); _ibid._ (1858-59), 92-107 (thirty-one cases).

[363] See _Acts_ (1858), 53, 54; _ibid._ (1859), 62; _ibid._ (1860: private laws), 473-79; _Session Laws_ (1861: local laws), 71, 73, 74, 81, 83, 92, 93, 101-3, 110, 131, 132; _ibid._ (1862), Index; _ibid._ (1863), 138-44.

In some of the old middle states the custom was particularly tenacious. Of it the New York laws show scarcely a trace;[364] and in those of New Jersey no evidence at all has been discovered. The case is very different in Pennsylvania. Although in 1785 the courts were empowered to grant full or partial divorce for the causes specified, the habit of resorting to the assembly, especially when the offense complained of was not a cause recognized by the statute, survived from the provincial era. Thus in 1805 Rebecca Adkinson was released from her spouse Thomas, who for crimes committed had been sentenced to five years' imprisonment. "Whereas it appears that the conduct of the said Thomas, from the month of May, 1803, to the present time, has been one continued scene of vice, evincing a total dereliction of morality, and an entire neglect of his wife and tender infant," therefore, since the law has not provided for such emergency, the assembly sets Rebecca absolutely free from the wedding bond.[365] During the next year a case of somewhat unusual character arose. From the preamble to the bill it appears that as early as 1777 Jacob Sell and Eve, his wife, had divorced themselves by mutual consent, the woman by a written instrument relinquishing all her rights under the marriage. Thereafter, the man considering himself entirely free from former obligations, took unto himself another wife, "by whom he now has living six children." Through "hard labor and honest industry" a considerable property was in due course acquired, some of which Sell had transferred. To this under the existing laws he could not give perfect title because of a claim to dower which "the aforesaid Eve may be supposed to possess." For this reason, and because he had grown old and was in a "delicate state of health," the assembly granted his petition for an absolute dissolution of the first marriage.[366] From this time onward many divorce decrees may be found in the session laws; and not until the adoption of the constitution of 1874 was the practice entirely abandoned.[367]

[364] But in _Laws_ (1848), 94, 95, the following case of legislative interference may be found: "The right is hereby given to Ludwig Brunileu to apply to the supreme court of this state, in equity, for a divorce from his wife Bertha, ... with the same effect and on the same footing in every respect, as if they had been married in this state, and the offence or offences complained of had been committed in this state, and within five years prior to the time of such application."

[365] THOMPSON, _Laws of the Commonwealth of Pa._ (1804-6), VII, 73-75.

[366] THOMPSON, _op. cit._, 326-28.

[367] See, for example, _Acts_ (1808), 138, 140, 146 (for cruelty, force at marriage, etc.); _ibid._ (1810), 82, 89, 194 (insanity before and after marriage, imprisonment for crime, abuse, and abandonment); _ibid._ (1811-12), 28, 34, 143, 195, 198, 228, 231, 237; _ibid._ (1820-21), 3, 29, 35, 48, 139.

It was in Delaware, however, that legislative divorce died the hardest death. By the act of 1832 the superior court was given "sole cognizance of granting divorces" for cruelty, abandonment, and some other causes; and in 1852 it was enacted that no "petition for a divorce shall be received or acted on by the general assembly for any cause cognizable" by that court, "nor without proof of one month's public notice of the intention to prefer such petition, by advertisements in a newspaper published within the county of the petitioner's residence, if there be one," or, if not, then in some other newspaper in the state.[368] Although this declaration of the assembly restricting its jurisdiction to cases not provided for by law was subsequently more than once repeated,[369] there was still a wide range for interference, even if the will of one legislature could bind that of another. The number of petitions granted waxed apace. In 1887 it was forty-two; in 1889, sixty-three; and two years later, forty-eight.[370] In the meantime a remedy was sought through appeal to constitutional interdict. Once the effort was almost successful. By an act of April 20, 1893, the assembly proposed an amendment to the constitution giving the supreme court exclusive jurisdiction in divorce suits, but only "for the causes and upon the conditions prescribed by the legislature.[371] This amendment failed of adoption; but its purpose was soon secured in the new constitution of 1897, which declares that "no divorce shall be granted, nor alimony allowed, except by the judgment of a court, as shall be prescribed by general and uniform law."[372]

[368] _Rev. Stat. of Del._ (1852), 78.

[369] _Ibid._ (1874), 150; _ibid._ (1893), 242.

[370] _Laws_ (1887), 528-40; _ibid._ (1889), 1046-64; _ibid._ (1895), 300-308.

[371] _Laws_ (1893), 617.

[372] _Const. of the State of Del._ (1897), Art. II, sec. 18, p. 141.

_b_) _Judicial divorce: jurisdiction, kinds, and causes._--Regarding the causes of divorce the history of the middle and western states reveals little that is peculiar as compared with that of the southern or eastern group. On the whole, a medial course has been pursued. There is nothing very radical or very conservative. The statutes of these commonwealths are entitled to be looked upon as constituting the average American type.

The policy of New York has, indeed, seemed to be exceptional. Throughout the century absolute divorce has been allowed only on the scriptural ground. In 1787--for the first time since New Netherland came under English rule--a general divorce law was enacted. The preamble hints at the recent practice of special legislation. "Whereas," we are told, "the Laws at present in being within this state, respecting Adultery, are very defective, and Applications have, in Consequence, been made to the Legislature, praying their Interposition;" and since "it is thought more advisable ... to make some general Provision in such Cases, than to afford relief to Individuals, upon their partial representations, without a just and Constitutional Trial of the Facts;" therefore for the offense named, when the persons are inhabitants of the state, a "Petition or Bill" may be presented to the chancellor. The latter is empowered to direct the trial of the case by a "special or common jury" before either the supreme or any circuit court; and in case of conviction may "pronounce the marriage between the said parties to be dissolved, and both of them freed" from its obligations. The guilty defendant is forbidden to "remarry any person whatsoever;" while the innocent plaintiff is fully authorized to "make and complete another marriage, in like manner as if the party convicted was actually dead." The divorce is not to affect the legitimacy of the children, and the chancellor is required to make proper orders for their care and maintenance and for the wife's alimony.[373]

[373] Act of March 30, 1787: _Laws of the State of N. Y._ (1789), II, 133, 134; and _ibid._ (1792), I, 428, 429.

No further legislation on the subject appears until 1813, when some important changes in the law were made. Now a petition for divorce, on the same grounds, may be brought only when the persons concerned were inhabitants of the state at the time the offense was committed; or when the marriage was solemnized or took place in the state, and the person injured was an actual resident of the state at the time of the offense and at the time of exhibiting the bill. The facts are to be tried by a "special or foreign" jury at some circuit court or sittings, to be held by a justice of the supreme court; and the person convicted is prohibited from further marriage only during the lifetime of the other spouse. But the most important innovation made by this act is the provision for partial divorce in favor of the wife. Under the same conditions as to residence, the court of chancery is empowered to grant a _feme covert_ a decree of "separation from bed and board forever thereafter, or for a limited time, as shall seem just and reasonable," when the husband has been guilty (1) of cruel and inhuman treatment; or (2) of such conduct "as may render it unsafe and improper for her to cohabit with him, and be under his dominion and control;" or (3) when he has abandoned her and neglected or refused to provide for her support. In all such cases, if the defendant prove the ill conduct of the complainant as a justification, he may be "dismissed with or without costs in the discretion of the court." On the other hand, whether a separation be decreed or not, the court is authorized "to make such orders and decree for the suitable support and maintenance" of the wife and children by the husband or out of his property, as the chancellor shall deem just.[374]

[374] Act of April 13, 1813: VAN NESS AND WOODWORTH, _Laws of N. Y._ (1813), II, 197-201.

The _Revised Statutes_ of 1827-28 make careful provision for the annulment of voidable marriages; and by the same enactment the divorce law is recast. Through sentence of nullity the chancellor may declare void a marriage for the following causes existing at the time of the contract: when (1) either husband or wife was below the age of consent; or (2) had a spouse living under a marriage still in force; or (3) was an idiot or lunatic; or (4) when consent of either was obtained by force or fraud; or (5) when either was physically incompetent to enter the matrimonial state. All these grounds of nullity, with one slight change and some modification of the conditions on which suit may be brought, are sanctioned by the present code.[375] Divorce from the bond of wedlock according to the revision of 1827-28 may be granted on the same conditions regarding residence as those prescribed in 1813, except that it allows the injured person, if an actual inhabitant at the time of exhibiting the bill, to bring suit whenever the offense complained of has been committed in the state. As in 1803, the guilty defendant is forbidden to remarry until after the death of the complainant. The three grounds of separation from bed and board in favor of the wife allowed in that year remain unaltered, save that under the second head the phrase referring to her being under the husband's "dominion and control" is omitted; and now, when the marriage takes place out of the state, the parties must have "become and remained inhabitants" of it for at least one year, and in order to warrant a decree the woman must be an actual resident thereof at the time of bringing complaint.[376]

[375] _Rev. Stat. of 1827-28_ (Albany, 1829), II, 141-44. This law provides that no bill for annulment may be brought by the party who was of lawful age of consent, nor by the other if there is voluntary cohabitation after age of consent. Suit on the ground of force or fraud is likewise barred, if there has at any time been voluntary cohabitation; and in case of physical disability, it must be brought within two years after solemnization of the marriage: _ibid._, II, 142, 143. _Cf._ STOVER, _Code of Civil Procedure_ (1902), II, 1832-33, where the last-named provision is retained. By this _Code_, II, 1626, 1627, the fourth ground of annulment is broadened by adding the word "duress;" and a woman is authorized to bring action (1) when she had not reached the age of sixteen at the time of the marriage; (2) when the marriage took place without the consent of parent or guardian; or (3) "when it was not followed by consummation or cohabitation, and was not ratified by any mutual assent of the parties after the plaintiff attained the age of sixteen years." _Cf._ _Laws_ (1887), chap. 22, p. 25, for the origin of these clauses.

[376] _Rev. Stat. of 1827-28_, II, 144-47.

Under the existing law of New York, for adultery, absolute divorce may be granted to either the husband or wife (1) when both were residents of the state at the time of the offense; (2) when the marriage took place within the state; (3) when the plaintiff was a resident of the state when the offense was committed, and so remains at the commencement of the suit; (4) where the offense was committed in the state and the person injured is a resident thereof when the action is brought. In the first instance the judgment is "interlocutory;" and three months must elapse before it can be made final.[377] Remarriage is allowed only under the same conditions as in 1813 and 1827, except that now the law does not "prevent the remarriage of the parties to the action." At present suit for partial divorce may be brought by either spouse, and not by the wife only, as under the earlier laws. The grounds allowed are (1) cruel and inhuman treatment; (2) conduct rendering it unsafe and improper for the plaintiff to cohabit with the defendant; (3) abandonment; (4) where the wife is plaintiff, the neglect or refusal of the husband to provide for her.[378] When the marriage takes place out of the state the provision of 1827-28 requiring one year's previous residence of the parties and actual residence of the plaintiff at the commencement of the action is still maintained.[379]

[377] So required by _Laws_ (1902), II, chap. 364; STOVER, _Code of Civil Proced._ (1902), II, sec. 1774, p. 1863.

[378] It has been decided in Kennedy _v._ Kennedy, 73 _N. Y._, 363, affirming 47 _N. Y. Supr._, 56, that "threats of violence of such a character as to induce a reasonable apprehension of bodily injury, and charges of infidelity, made in bad faith, as auxiliary to and in aggravation of the threatened violence, are sufficient to constitute 'cruel and inhuman treatment.'" _Cf._ STOVER, _Code of Civil Proced._ (1892), II, 1639, 1640, note.

A "groundless and malicious charge against a wife's chastity, and spitting upon her are gross acts of cruelty, and words of menace accompanied by the probability of bodily violence, if they inflict indignity and threaten pain, are sufficient." See Whispell _v._ Whispell, 4 BARB., 217; and _cf._ Lutz _v._ Lutz, 31 _N. Y. St. Rep._, 718; Waltermire _v._ Waltermire, 110 _N. Y._, 183; Uhlmann _v._ Uhlmann, 17 _Abb. N. C._, 236; Mason _v._ Mason, 1 EDW., _Ch._, 278; Perry _v._ Perry, 2 BARB., _Ch._, 311.

[379] STOVER, _Code of Civil Proced._ (1902), II, 1846.

New Jersey, whose early history ran so closely parallel to that of New York, has during the century pursued a policy regarding divorce more liberal than that of the neighboring commonwealth. As so often happens, the act of 1794 confuses the grounds of annulment with those of divorce proper. The court of chancery is authorized to decree "divorces from the bond of matrimony" (1) when the husband and wife are within the prohibited degrees of kinship; (2) for adultery; (3) for "wilful, continued, and obstinate desertion for the term of seven years;" or (4) when either person had a lawful spouse living at the time of the later marriage, although the statute inconsistently declares such unions "invalid from the beginning" and "absolutely void." This last-named provision is still in force.[380] By the law of 1794, moreover, separation from bed and board is sanctioned for "extreme cruelty" in either spouse.[381]

[380] _Gen. Stat. of N. J._ (1896), II, 1267.

[381] Act of Dec. 2, 1794: PATERSON, _Laws of N. J._ (1800), 143, 144.

A new statute appears in 1820. The conditions as to residence are now defined; the court of chancery may grant absolute dissolution of wedlock for the same causes as in 1794; and separation from bed and board is still permitted for extreme cruelty, but now it may be decreed, "forever, or for a limited time."[382] In the revision of the divorce laws approved April 15, 1846, the term of wilful and continued desertion is reduced to five years;[383] in 1857 two years more are lopped off;[384] and finally a statute of 1890 declares a period of two years' such desertion sufficient to constitute a ground of full divorce.[385]

[382] Act of Feb. 16, 1820: _Laws of N. J._ (1821), 667-69.

[383] _Stat. of N. J._ (1847), 923.

[384] Act of March 20: _Acts_ (1857), 399. The law of 1846 is retained in ELMER, _Digest_ (2d ed. by NIXON, Philadelphia, 1855), 205-8.

[385] Act of March 5: _Pub. Laws_ (1890), 34; _Gen. Stat._ (1896), II, 1274.

Accordingly, by the present law of New Jersey dissolution of wedlock may be decreed by the court of chancery (1) when the marriage is bigamous; (2) when it is within the forbidden degrees of kinship;[386] (3) for adultery; (4) for "wilful, continued, and obstinate desertion during the term of two years;" and (5) when at the time of the marriage either spouse was "physically and incurably impotent," in which case the contract is declared "invalid from the beginning and absolutely void."[387] But it is important to observe that in certain cases the term of desertion is subject to a peculiar statutory definition. It is declared that "wilful and obstinate desertion shall be ... construed as 'continued' ... notwithstanding that after such desertion has ... begun, the deserting party has ... been imprisoned in this or any other state or country upon conviction by due process of law for a crime, misdemeanor or offence, not political," anywhere committed; provided, however, that such desertion has continued without interruption a sufficient length of time after discharge from prison to make up when added to the term of desertion prior to the confinement the full term of three [two] years.[388] Since 1891 three causes of separation from bed and board have been allowed. For desertion, adultery, or extreme cruelty, in either spouse, the court of chancery may now decree such partial divorce "forever thereafter, or in the case of extreme cruelty, for a limited time, as shall seem just and reasonable;" but in every case except for extreme cruelty the petitioner "shall prove that he or she has conscientious scruples against applying for a divorce from the bond of matrimony."[389]

[386] A marriage within the forbidden degrees is not void but voidable, and until so pronounced must be treated as valid: Boylan _v._ Deinzer, 18 STEWART, _N. J. Equity Reports_, 485.

[387] Impotence as a ground of divorce appears in _Rev. Stat._ (1874), 255. _Cf._ also _Gen. Stat._ (1896), II, 1267. Before this enactment a marriage could not be annulled for impotence: Anonymous, 9 C. E. GREEN, _N. J. Equity Reports_, 19.

[388] Act of Apr. 1: _Pub. Laws_ (1887), 132; also in _Gen. Stat._ (1896), II, 1273. This provision thus seems to be in force; if so, since the act of 1890 already cited, the term must be two years.

[389] Act of March 4: _Pub. Laws_ (1891), 76. In general, for the present law regulating both kinds of divorce in New Jersey, see _Gen. Stat._ (1896), II, 1267-75.

The framers of the Pennsylvania statute of 1785 saw fit to indulge in an apologetic preamble. "Whereas," we are assured, "it is the design of marriage, and the wish of the parties entering into that state, that it should continue during their joint lives, yet where the one party is under natural or legal incapacities of faithfully discharging the matrimonial vow, or is guilty of acts and deeds inconsistent with the nature thereof, the laws of every well-regulated society ought to give relief to the innocent and injured person;" therefore it is enacted that the justices of the supreme court may grant divorce, "not only from bed and board, but also from matrimony,"(1) when either person at the time of the contract was and still is physically incompetent; (2) has knowingly entered into a bigamous marriage; (3) has committed adultery; or (4) has been guilty of "wilful and malicious desertion, without a reasonable cause," for the space of four years. The court is empowered to grant a divorce from bed and board, but not from the bond of wedlock, "if any husband shall, maliciously, either (1) abandon his family, or (2) turn his wife out of doors, or (3) by cruel and barbarous treatment endanger her life, or (4) offer such indignities to her person, as to render her condition intolerable, or life burdensome, and thereby force her to withdraw from his house and family." In these cases the wife is allowed "such alimony as her husband's circumstances will admit of so as the same do not exceed the third part of the annual profits or income of his estate, or of his occupation or labour," or the court may decree "but one of them" as justice may require. She shall continue to enjoy this alimony "until a reconciliation shall take place, or until the husband shall by his petition or libel, offer to receive or cohabit with her again, and to use her as a good husband ought to do." Then the court is authorized either to suspend the decree; or, if the wife refuse "to return and cohabit under the protection of the court," it may discharge and annul the same. But if he fail to make good his offers and engagement, the "former sentence and decree may be revived and enforced;" and the arrears of alimony may be ordered paid.[390]

[390] Act of Sept. 19, 1785: _Laws of the Com. of Pa._ (1803), III, 102-6. Repealed March 13, 1815: _Laws of Gen. Assem._ (1822), VI, 286; PURDON, _Digest_ (1818), 130.

By the first statute of the period, it thus appears, a liberal divorce policy was adopted by Pennsylvania, and besides, it should be remembered, the courts were not the only source of relief. For many years, as already seen, the assembly exercised jurisdiction in divorce matters. After 1785 the first step in the practical relaxation of the law was taken in 1804, when jurisdiction, hitherto vested exclusively in the supreme court, was extended to the county courts of common pleas, where it still remains.[391] Since that date the progress of legislation has been rapid enough. Under the existing law, as the result of a century's growth, not less than eleven grounds of complete divorce are recognized. By the statute of 1815, repealing the law of 1785, the four causes sanctioned by the latter are re-enacted, the term of "malicious desertion and absence from the habitation of the other"--as the clause is now phrased--being reduced to two years; and it is further provided that full dissolution of marriage may be decreed (5) when any husband, by cruel and barbarous treatment, shall have endangered the life of his wife; or (6) offered such indignities to her person as to render her condition intolerable and life burdensome, thereby forcing her to withdraw from his house and family.[392] Marriage within the forbidden degrees of affinity or consanguinity (7) was made a ground in the same year;[393] lunacy of the wife (8) came next in 1843;[394] and in 1854 divorce was sanctioned (9) when the alleged marriage was procured by fraud, force, or coercion, and has not been later confirmed by the acts of the person injured; (10) when the wife, by cruel and barbarous treatment, has rendered the condition of her husband intolerable or life burdensome; or (11) when either spouse has been convicted for felony with imprisonment for more than two years.[395] These eleven causes are still in force, although in 1903 a new law regarding the crimes of either spouse to constitute a cause was adopted.[396]

[391] _Laws of the Com._, VII, 375.

[392] Act of March 13, 1815: in _Laws of Com._ (1822), VI, 286; and PEPPER AND LEWIS, _Digest_ (1896), I, 1633.

[393] _Laws of the Com._ (1822), VI, 288; PEPPER AND LEWIS, _Digest_, I, 1634. But when marriages within such degrees "shall not have been dissolved during the lifetime of the parties, the unlawfulness of the same shall not be enquired into after the death of either husband or wife."

[394] By the act of April 13, 1843: _Laws_ (1843), 233; PEPPER AND LEWIS, _Digest_, I, 1636, "where the wife is lunatic or _non compos mentis_" a petition for divorce may be "exhibited by any relative or next friend" who shall make the affidavit provided for in other cases of divorce.

[395] Act of May 8: _Laws_ (1854), 644; PEPPER AND LEWIS, _Digest_ (1896), I, 1635. When divorce is granted the husband for the tenth cause, the wife may be allowed alimony according to his circumstances.

By an act of March 9, 1855 (_Pub. Laws_, 68; PEPPER AND LEWIS, _Digest_, I, 1636), the courts of common pleas are given jurisdiction in all cases of divorce "from the bonds of matrimony for the cause of personal abuse, or for such conduct on the part of either the husband or the wife as to render the condition of the other party intolerable and life burdensome, notwithstanding the parties were at the time of the occurring of said causes domiciled in another state;" but the applicant must be a citizen and have been a resident of the state for one year. This act, according to judicial interpretation, does not establish new causes for divorce, but only enlarges the jurisdiction of the court in reference to the parties under causes already recognized: Schlichter _v._ Schlichter, 10 _Phila. Reports_, 11 (1873). Cruel and barbarous treatment must be alleged in the libel: Pennington _v._ Pennington, _ibid._, 22.

[396] _Laws of Pa._ (1903), 19; repealing the act of June 1, 1891: _ibid._ (1891), 142.

On the other hand, the century has produced but one change in the special grounds of partial divorce. Petitions for separation from bed and board are still allowed only in favor of the wife. The four causes sanctioned in 1785, re-enacted in 1815 and 1817, are yet in force;[397] while, since 1862, adultery on the part of the husband is admitted as a fifth ground of complaint.[398]

[397] PEPPER AND LEWIS, _Digest_ (1896), I, 1687. _Cf._ the act of March 13, 1815: _Laws of the Com._ (1822), VI, 286; and _Laws_ (1817), 405.

[398] _Laws_ (1862), 430; PEPPER AND LEWIS, _Digest_, I, 1637, 1638.

An important innovation appears in 1893. A new group of discretionary causes is then created. The courts are empowered to grant the wife a divorce, either from bed and board or from the bond of wedlock, on four several grounds. Three of these are identical with the third, fourth, and fifth causes of partial divorce just enumerated. In addition, two years' "wilful and malicious desertion" by the husband is admitted. These same four causes are declared valid "where it shall be shown to the court by any wife that she was formerly a citizen of this commonwealth, and that having intermarried with a citizen of any other state or any foreign country, she has been compelled to abandon the habitation and domicile of her husband" in such place, thereby being "forced to return to this commonwealth in which she had her former domicile." In any such case, if personal service by subpœna cannot be made upon the husband by reason of his non-residence, the court before entering a decree shall require proof that, in addition to the publication required by law, actual or constructive notice of the proceedings has been given him, either "by personal service or by registered letter to his last known place of residence, and that a reasonable time has thereby been afforded to him to appear" and make defense. The wife, however, is only entitled to the benefits of this act when she has been a citizen and resident of the state for one year previous to bringing suit.[399]

[399] Act of June 20: _Laws_ (1893), 471; PEPPER AND LEWIS, _Digest_, I, 1638, 1639.

It must further be observed, in connection with the present laws of Pennsylvania regarding absolute divorce, that the principle of the colonial statute touching cases of long absence has unfortunately been perpetuated. The snare is still set for the feet of the unwary. "If any husband or wife, upon false rumor, in appearance well founded, of the death of the other (when such other has been absent for the space of two whole years), hath married ... again, he or she shall not be liable to the pains of adultery;" but on return the person remaining unmarried may elect either to have the former spouse restored or to have the former contract dissolved, leaving the second marriage undisturbed.[400]

[400] Act of 1815: _Laws of the Commonwealth_ (1822), VI, 288; PEPPER AND LEWIS, _Digest_ (1896), I, 1634.

"While a well-founded belief in the death of her first husband will relieve a woman marrying a second time from the pains of adultery, it cannot validate her second marriage, if, in fact, her first husband was living when it was solemnized."--Thomas _v._ Thomas, 124 _Pa._, 646; s. c., 23 _W. N. C._, 410 (1889). _Cf._ PEPPER AND LEWIS, _Digest_, I, 1634, ed. note.

By the Delaware statute of February 3, 1832, the superior court is authorized to grant absolute divorce, or, in its discretion, partial divorce or merely alimony, where either spouse (1) had a lawful husband or wife living at the time of the marriage; (2) has been wilfully absent from the other for three years with the intention of abandonment; (3) has committed adultery; or (4) extreme cruelty; or (5) where the male was actually impotent when the marriage took place.[401] Just twenty years later an entirely new grouping of causes and kinds of separation was introduced. The superior court is empowered to grant a full divorce (1) for adultery of the wife; and (2) for impotency of either person at the time of marriage; while separation from bed and board is allowed (1) for adultery of the husband; (2) for extreme cruelty; or (3) for wilful absence of either for three years with intent to abandon. At the same time a distinction was made between divorce and annulment. The court is authorized to declare null and void a marriage (1) within the prohibited degrees of affinity or consanguinity; (2) between a white person and a negro or mulatto; (3) where either person was insane; or (4) had a spouse living at the time of the contract.[402] At present the annulment of voidable contracts is still governed by the enactment of 1852.[403]

[401] _Laws of Del._ (1832), 148-50.

[402] _Rev. Stat. of Del._ (1852), 238.

[403] _Rev. Stat._ (1893), 596.

In 1859 a revised scheme was substituted. Absolute divorce is authorized on the same two grounds as in 1852, the unjust discrimination regarding the husband's infidelity being still maintained. On the other hand, "a divorce from the bond of matrimony, or from bed and board, at the discretion of the court," may now be decreed for (1) adultery of the husband; (2) extreme cruelty; (3) procurement of the marriage by force or fraud; (4) want of legal age--sixteen for males and fourteen for females--if after that age the marriage has not been voluntarily ratified; (5) wilful abandonment for three years; (6) conviction in any place, before or after marriage, of a crime deemed felony by the laws of the state; (7) habitual gross drunkenness for three years, contracted after marriage; or (8) three years' wilful neglect by the husband to provide his wife with the common necessaries of life.[404]

[404] Act of Feb. 24, 1859, amending the act of 1852: _Laws_ (1859), 730, 731.

By the present law of Delaware, which has existed since 1873, the superior court may decree absolute divorce for (1) adultery in either spouse; (2) desertion for three years; (3) habitual drunkenness; (4) impotency at the time of marriage; (5) extreme cruelty; or (6) conviction of felony, as in 1859. The discretionary grounds on which the court may grant either full or limited divorce are now reduced to two, these in substance being nearly identical with the fourth and eighth causes sanctioned by the statute of 1859.[405]

[405] _Cf._ Act of March 12: _Laws of Del._ (1873), 633-35; or the same in _Rev. Stat._ (1874), 475; with _Rev. Stat._ (1893), 595.

The discretionary grounds are now (1) "procurement of the marriage by fraud for want of age, the husband being under the age of eighteen years or the wife being under the age of sixteen years at the time of the marriage, and such marriage not being after those ages voluntarily ratified;" (2) "wilful neglect on the part of the husband for three years to provide for his wife the necessaries of life suitable to her condition."

The history of judicial divorce in the West begins with the statute adopted for the Northwest Territory in 1795. Jurisdiction is vested in the general court and the circuit courts, which are empowered to grant absolute divorce (1) for adultery; (2) impotency; (3) where either person had a husband or wife alive at the time of the second marriage; or to grant partial divorce for extreme cruelty in either spouse.[406] This law was repealed in 1804 by an act of the legislature of Ohio--that portion of the Northwest Territory having been made a state in 1802--giving the supreme court sole cognizance of divorce suits. By it no provision for partial divorce is made; but full dissolution of marriage is sanctioned (1) for bigamy, as in 1795; (2) for wilful absence for five years; (3) for adultery; and (4) for extreme cruelty.[407] After eighteen years' trial, the plan of 1804 was in its turn superseded. Six grounds of absolute divorce were then provided. Of these four are identical with those just mentioned, except that the term of wilful absence is reduced to three years. In addition there are recognized (5) physical incompetence at the time of the marriage; and (6) sentence with actual imprisonment for violation of the criminal laws of the state, provided application be made during the term of confinement.[408] Two years later a new plan was adopted. Absolute divorce was permitted for the six causes allowed in 1822; and partial divorce, which had not existed by statute for twenty years, was revived; the courts, on the same six grounds, being authorized, instead of full dissolution of wedlock, to decree separation from bed and board, or merely alimony, according to justice and the circumstances in each case.[409] This provision, however, was short-lived; for in 1833 partial divorce was a second time abolished.[410]

[406] CHASE, _Stat._, I, 192, 193 (act of July 15, 1795).

[407] _Ibid._, 493, 494.

[408] Act of Jan. 11, 1822: CHASE, _Stat._, II, 1210, 1211.

[409] Act of Jan. 7, 1824: CHASE, _Stat._, II, 1408, 1409.

[410] Act of Feb. 22, 1833: CHASE, _Stat._, III, 1934.

Thus matters stood until 1853, when a measure appeared by which the law was much relaxed in several important respects. Jurisdiction, which since 1804 had remained solely in the supreme tribunal of the state, was now vested in the several courts of common pleas. In addition to the six grounds for full divorce already created, four new causes were recognized. These were (7) fraudulent contract; (8) gross neglect of duty; (9) habitual drunkenness for three years; and (10) a decree of divorce in another state "by virtue of which the party who shall have obtained such decree shall have been released from the obligations of the marriage contract, while the same remains binding upon the other."[411]

[411] Act of March 11, 1853: SWAN, _Stat. of Ohio_ (1854), 324-28. But the provision regarding sentence and imprisonment is differently worded. At present (BATES, _Ann. Rev. Stat._ (1900), II, 2948) the paragraph reads: "The imprisonment of either party in a penitentiary under sentence thereto; but the petition for divorce under this clause shall be filed during the imprisonment of the adverse party."

These ten causes of absolute divorce are still sanctioned by Ohio law. No provision is made for limited divorce; but there is an "action for alimony, which is in effect a limited divorce, and which may be brought by the wife for any of the following causes," also sanctioned by the act of 1853: (1) adultery; (2) any gross neglect of duty; (3) abandonment without good cause; (4) separation in consequence of the husband's ill-treatment, whether the wife is maintained by him or not; (5) habitual drunkenness; and (6) sentence to imprisonment in a penitentiary, if application be made while the husband is so confined.[412]

[412] For the present law of Ohio see BATES, _Ann. Rev. Stat._ (1897), II, 2804-10. _Cf._ WRIGHT, _Report_, 106. Jurisdiction is still vested in the courts of common pleas, although in certain counties the probate courts have cognizance: BATES, _op. cit._, II, 2804.

Indiana, in 1816, is the next portion of the Northwest Territory to be admitted to the Union. Two years after the attainment of statehood her legislature passed the first divorce statute, granting jurisdiction to the circuit courts. By the enactment full divorce in favor of either spouse when aggrieved is allowed for (1) adultery; (2) matrimonial incapacity; (3) bigamous contract; (4) two years' absence with intent to abandon; (5) desertion and living in adultery; (6) conviction for felony; and (7) in favor of the wife when the husband's treatment of her is extremely barbarous and inhuman.[413] In 1824 an "omnibus" clause was introduced, a full divorce being then allowed on petition of the injured person (8) "in all cases where the court in its discretion" shall deem the same "just and reasonable."[414] These grounds are all sanctioned by the act of 1831.[415] Still another cause was admitted in 1836. The circuit courts are empowered to grant the wife absolute divorce (9) when the husband for two years has been a habitual drunkard, and has failed for "any unreasonable length of time to make provision for his family." By the same act, moreover, a marriage may be dissolved "in all cases where the parties have been guilty of murder, manslaughter, burglary, robbery, grand or petty larceny, forgery, counterfeiting, arson, bribery, perjury, or any other crime" the penalty for which on conviction is "imprisonment at hard labor in the penitentiary."[416] But, apparently, this is meant to be a restatement of the sixth cause above given.[417]

[413] Act of Jan. 26, 1818: _Laws of the State of Ind._ (1818), 226-29.

[414] _Rev. Laws_ (1824), 156, 157; same in _ibid._ (1831), 213-15.

[415] Act of Jan. 17, 1831: _Rev. Laws_ (1831), 213.

[416] _Laws of a Gen. Nature_ (1836), 69.

[417] Nevertheless, the act of 1836 provides for causes in addition to those sanctioned by the act of 1831, which includes conviction for felony as in 1818.

Only two years elapsed before a new general statute was adopted, authorizing full divorce on eight grounds. Six of these correspond to the first, second, sixth, seventh, eighth, and ninth causes already sanctioned. Bigamous marriage and desertion with adultery no longer appear as causes; while the fourth ground, as above enumerated, is so modified as to require a separate statement for the husband and wife respectively. The husband (7) is allowed a full divorce for two years' absence of the wife with intent to abandon; and the wife is granted the same relief (8) for like absence of the husband, "and also for any other cause or causes"--a most singular legislative freak.[418] In 1843 this vicious clause was dropped. Abandonment for two years is now made a cause of divorce in favor of either person, thus reducing the number of legal grounds to seven. At the same time, in modification of a cause already existing, the wife is allowed a petition on account of "cruel and inhuman treatment" by the husband, "or when his conduct towards her has been such as may render it unsafe and improper for her to live with him." The other five causes sanctioned by the statute of 1838 are re-enacted without change.[419] A relaxation of the law takes place in 1849. One year's abandonment is declared sufficient to constitute a cause; but in such case the court is especially empowered, in its discretion, to grant a divorce, waiving all objections in regard to time of separation, if it deems a reconciliation "hopeless."[420]

[418] _Rev. Stat._ (1838), 242-44. The sixth ground, as enumerated in the text, the first of this act, is "any crime" committed in the United States or the territories, the punishment for which is deemed "infamous."

[419] _Rev. Stat._ (1843), 598 ff.

[420] Act of June 1: _Gen. Laws_ (1849), 62, 63.

A pause of three years next ensues before the lawmaker resumes his tinkering with the causes of divorce. The act of 1852 admits the seven general grounds, as these had existed since the change in 1849; but with two important modifications. For now "habitual drunkenness," without reference to the term during which it has existed, and cruel treatment, each on the part of either husband or wife, are constituted reasons for dissolving the marriage bond. By the same law a divorce for adultery is denied when there has been (1) connivance; (2) voluntary cohabitation after knowledge of the offense; (3) neglect to petition within two years; or (4) when the petitioner is guilty of the same crime.[421] Seven years later the time of abandonment, to constitute a cause, was reduced to one year, the court being thus deprived of its discretionary power to grant a divorce for desertion during a shorter period.[422]

[421] _Rev. Stat._ (1852), II, 233-38.

[422] _Laws of Ind._ (1859), 108.

Finally the long series of enactments defining the grounds of absolute divorces came to a halt in 1873, when the law of Indiana in this regard took its present form. The superior and circuit courts, on petition of either spouse, are granted jurisdiction. Three very important and beneficial amendments, producing a marked decrease in the number of divorces annually granted, are now made. The term of abandonment is increased from one year to two years; "failure of the husband to make reasonable provision for his family" is changed to such failure for a "period of two years;" and, most significant of all, the omnibus clause, existing since 1824 and rephrased in 1838, providing that divorces may be granted "for any other cause" which the court shall deem "reasonable and proper," is stricken out.[423] As a result, the marriage tie may now be dissolved for (1) adultery; (2) impotence existing at the time of the marriage; (3) abandonment for two years; (4) cruel and inhuman treatment; (5) habitual drunkenness; (6) failure of the husband to make reasonable provision for his family for two years; (7) the conviction of either person, in any country, subsequent to the marriage, of an infamous crime. Until very recently limited divorce was not recognized in Indiana; but a married woman might bring action for the support of herself and infant children in the following cases, being analogous to those sanctioned by the Ohio law: (1) when the husband shall have deserted his wife, or wife and children, without leaving sufficient provision for support; (2) when he shall have been convicted of felony and imprisoned in the state prison, not leaving his wife, or wife and children, the same provision; (3) when he is a habitual drunkard and by reason thereof becomes incapacitated or neglects to provide for his family; or (4) when he renounces the marriage covenant, or refuses to live with his wife in the conjugal relation, by joining himself to a sect or denomination the rules and doctrines of which require such renunciation or forbid a man and woman to dwell and cohabit together in the conjugal relation according to the true intent and meaning of the institution of marriage.[424] A statute of 1903 authorizes separation from bed and board "for a limited time" in case of (1) adultery; (2) "desertion, or where the wife is plaintiff, neglect or refusal to suitably provide for her, covering a period of six months;" (3) habitual cruelty of one party, "or such constant strifes of both parties as render their living together intolerable;" (4) habitual drunkenness, "or the confirmed and excessive use of morphine, cocaine, or any other drug;" (5) gross and wanton neglect of conjugal duty for six months.[425]

[423] For construction of the omnibus clause, see Ritter _v._ Ritter, 5 BLACKF., 81.

[424] Act of March 10: _Laws of Ind._ (1873), 107-12; also HORNER, _Rev. Stat._ (1896), I, secs. 1024-49; II, sec. 5132; BURNS, _Ann. Stat._ (1901), I, 443, 444; III, 559.

[425] _Laws of Ind._ (1903), 114, 115.

In 1818, closely following Indiana, Illinois was carved from the bountiful region northwest of the Ohio River. After a year's delay, a divorce law was enacted in 1819; and this, as amended in 1825, authorizes both kinds of separation. Full dissolution of wedlock may be granted for (1) physical incapacity at the time of solemnization; (2) adultery; (3) two years' voluntary and continued absence. Partial divorce is likewise sanctioned for (1) extreme and repeated cruelty in either spouse: or (2) constant and habitual intemperance in either for two years. "But in the latter case it shall be incumbent on the complaining party to show that he or she had performed all the duties of a faithful and affectionate husband or wife."[426]

[426] Act of Jan. 17, 1825, to amend an act of Feb. 22, 1819: _Laws of Ill._ (1825), 169.

The act of 1827 is silent as to limited divorce, which has not since been recognized in Illinois. Full divorce may now be granted by the circuit courts, sitting as courts of equity, when either person (1) was at the time of the marriage and still is naturally impotent; (2) had a husband or wife living at the time of the marriage; (3) has since been guilty of adultery; or (4) wilful desertion for two years; or (5) extreme and repeated cruelty; or (6) habitual drunkenness for two years.[427] A step backward was taken in 1832 through the adoption of a kind of omnibus clause. By proceedings in chancery full dissolution of marriage is authorized (7) for all causes of divorce not provided for by any law of the state.[428] Next, after an interval of thirteen years, on the petition of the aggrieved, comes (8) conviction for felony or other infamous crime.[429] This is followed after the lapse of thirty years more by the sanction (9) of absolute divorce when either person "has attempted the life of the other by poison or other means showing malice."[430]

[427] _Rev. Code_ (1827), 180, 181.

[428] Act of Dec. 4, 1832: _Rev. Laws_ (1833), 234, 235. In the statutes this is not enumerated as a cause; but it surely is one in effect.

[429] _Rev. Stat._ (1845), 196; also in PURPLE, _Comp._ (1856), I, 493, 494; and in _Stat. of Ill._ (1864), 150, 152.

[430] Act of March 10, 1874: GROSS, _Stat. of Ill., 1818-74_ (3d ed., 1872-74), III, 176.

The tale of causes allowed by the present law of Illinois is thus complete. Separation from bed and board is not provided for by statute. In general, chancery process is required. The circuit courts of the respective counties and the superior court of Cook county (Chicago) are clothed with jurisdiction in divorce controversies.[431]

[431] HURD, _Rev. Stat._ (1898), 631-34. _Cf._ _Rev. Stat._ (1845), 196, 197; and STARR AND CURTIS, _Ann. Stat._ (1896), II, 1435-55.

Michigan became a separate territory in 1805, and seven years thereafter the supreme court was granted jurisdiction in both kinds of divorce.[432] By the act of 1819 marriage may be dissolved for adultery in either spouse, when the husband and wife are inhabitants of the territory, or when the marriage was solemnized therein; as also when the injured person was an actual resident of the territory at the time of the offense, and so remains when the bill is filed. When guilty, the wife forfeits her right of dower. On the other hand, the court may grant her a divorce _a mensa_, forever or for a limited time, (1) for "cruel and inhuman treatment;" (2) for such conduct on the part of the husband "as may render it unsafe and improper for her to cohabit with him and be under his dominion and control;" or (3) when "he has abandoned her and refuses or neglects to provide" for her support.[433]

[432] Act of 1812: _Territorial Laws of Mich._, I, 183.

[433] Act of Nov. 13, 1819: _Territorial Laws of Mich._, I, 495-98; _cf._ the act of Apr. 12, 1827: _ibid._, II, 363-66, repeating the provisions given in the text from the act of 1816.

A different plan appears in 1832. A divorce from the bond of wedlock is now permitted (1) for impotency, and (2) for adultery. Furthermore, the court, in its discretion, is empowered to grant either person a full or a partial divorce (1) for extreme cruelty, or (2) for five years' wilful desertion. By this act jurisdiction is vested in the supreme court and either of the circuit courts of the territory.[434] A statute of the next year retains all these provisions of 1832, except that the term of wilful desertion, to constitute a discretionary ground, is reduced to three years.[435] Five years later, after Michigan became a state, a divorce is made unnecessary when a marriage is void or when the persons contracting it are below the age of consent. At the same time the grounds of separation are reconsidered. Absolute divorce is now authorized (1) for adultery; (2) for impotence; (3) for five years' desertion; (4) for sentence to imprisonment at hard labor for three years or more; and either a full or a partial divorce, on the petition of either spouse, (1) for extreme cruelty; (2) for three years' "utter desertion;" or (3) on application of the wife, when the husband, being of sufficient ability to provide a suitable maintenance for her, "shall grossly or wantonly and cruelly refuse or neglect to do so."[436] In 1844 extreme cruelty, "whether practiced by using personal violence, or by any other means," was substituted for the corresponding clause in the act of 1838.[437] Next, in 1846 and 1847 came swift changes in the law of desertion, but only in their turn to be swept away in 1848.[438] So in 1851 we reach an act by which the grounds of divorce in Michigan have been determined for half a century.

[434] Act of June 28, 1832: _Ter. Laws of Mich._, III, 931, 932.

[435] Act of Apr. 4, 1833: _Ter. Laws of Mich._, III, 1005-7.

[436] _Rev. Stat._ (1838), 336, 337.

[437] _Acts_ (1844), 74.

[438] The _Rev. Stat._ (1846), 333, make the term of desertion two years for either absolute or limited divorce. The _Acts_ (1847), 168, 169, lengthen the period to five years for absolute divorce and three years for partial divorce. But these changes are repealed by _Acts_ (1848), 194.

By the existing law, as then enacted, on application of the aggrieved, a full divorce may be decreed by the court of chancery, or by the circuit court of the county where the parties or one of them resides, for (1) adultery; (2) physical incompetency; (3) sentence to imprisonment for three years or more, no pardon to affect the status of the divorced persons; (4) two years' desertion; (5) when the husband or wife shall have become a habitual drunkard; "and (6) the circuit courts may, in their discretion, upon application as in other cases, divorce from the bonds of matrimony any party who is a resident of this state, and whose husband or wife shall have obtained a divorce in any other state." The same tribunals are authorized, in their discretion, to grant either a limited or a full divorce in favor of the aggrieved for (1) extreme cruelty, "whether practiced by using personal violence, or by any other means;" (2) utter desertion for two years; or (3) on complaint of the wife for the husband's neglect to provide, as by the law of 1838.[439]

[439] HOWELL, _Gen. Stat._ (1882-83), II, 1621-30; MILLER, _Comp. Laws_ (1899), III, 2653-66; _cf._ _Acts_ (1851), 71, 72. The partial divorce may, as originally, be "forever or for a limited time."

Wisconsin, the remaining[440] portion of the region originally governed by the ordinance of 1787, was erected into a separate territory in 1836. Its divorce legislation, which in its general outline is similar to that of Michigan, began in 1838-39, when the district court of each county was given jurisdiction in both kinds of separation. The causes of absolute divorce then recognized are (1) impotence; (2) adultery. Those of partial divorces are (1) extreme cruelty; (2) two years' wilful desertion; (3) habitual drunkenness; (4) abandonment of the wife by the husband, or "his refusal or neglect to provide for her."[441]

[440] Except a part of Minnesota.

[441] _Stat. of the Ter. of Wis._ (1838-39), 140, 141.

In 1849, the year following the attainment of statehood, was adopted a new statute by which the foundation of the present system was laid. By it, as under the present law, a marriage is declared absolutely dissolved without any decree of divorce or legal process whenever either spouse is sentenced to imprisonment for life; and a pardon is not to effect a restoration of conjugal rights. The circuit courts are granted jurisdiction. Both full and partial divorce are provided for. Absolute divorce is allowed for (1) adultery; (2) impotence; (3) sentence of either spouse to imprisonment for a period of three years or more, no pardon working a restoration of conjugal rights; (4) wilful desertion for one year next preceding the commencement of the action; (5) when the treatment of the wife by the husband has been "cruel and inhuman, whether practiced by using personal violence, or by any other means," or "when the wife shall be guilty of like cruelty to her husband or shall be given to intoxication;" (6) when the husband or wife shall have been a habitual drunkard for the space of one year immediately preceding the filing of the bill. To these grounds was added as a cause in 1866: (7) voluntarily living entirely separate for the five years next preceding the commencement of the action.[442] So the law of absolute divorce remains at the present time, all attempts to make insanity a permanent ground having thus far failed.[443]

[442] Act of March 31, _Gen. Laws_ (1866), 40.

[443] In 1856 the court in its discretion was authorized to decree a divorce when either spouse shall become incurably insane and "shall have so remained for the term of seven years continuously," the husband being required to give bond with security for the maintenance of the wife during her life: Act of March 31, _Gen. Acts_ (1856), 96. After two years this act was repealed: _Gen. Laws_ (1858), 82. A second attempt was made in 1881. A full divorce was then authorized when either husband or wife shall have been insane for the space of five years immediately preceding the commencement of the action, and the court shall be satisfied that the insanity is incurable: Act of April 2, _Laws_ (1881), 376-78. This statute was repealed the next year: _Laws_ (1882), 798.

The history of partial divorce in Wisconsin is soon told. The provisions of the act of 1849 are still in force. The causes of separation from bed and board, forever or for a limited time, there recognized are (1) the fourth, fifth, and sixth grounds of full divorce above specified; (2) extreme cruelty of either spouse; (3) on complaint of the wife when the husband, being of sufficient ability, shall refuse or neglect to provide for her; or (4) when his conduct toward her is such as may render it unsafe and improper for her to live with him. It is expressly declared that a divorce from the bond of matrimony may be decreed for either of the three causes last named, "whenever, in the opinion of the court, the circumstances of the case are such that it will be discreet and proper to do so." From the somewhat awkward arrangement of its provisions, therefore, the general effect of this statute appears to be that a full divorce _may_ be granted for any ground recognized by it, provided the court deems it prudent to exercise its discretionary authority. Furthermore, it must be noted that by the existing law, just as in 1849, the circuit court is empowered to allow separate maintenance when a partial divorce is denied.[444]

[444] _Cf._ _Rev. Stat._ (1849), 393-98; _ibid._ (1858), 623-28; _ibid._ (1872), II, 1269-76; _Ann. Stat._ (1889), I, 1362-75; and SANBORN AND BERRYMAN, _Wis. Stat._ (1899), I, 1702-20.

We may next pass to the long list of new states in the West and Northwest whose generous boundaries spread over the Mississippi valley, the vast regions of the Rocky Mountains, and the Pacific slope. The course of legislation in Minnesota has run closely parallel to that of Wisconsin, though it is divergent in some important details. In 1851, seven years before the admission of that state to the Union, a statute logically declared bigamous marriages and those within the forbidden degrees, if solemnized in the territory, void without a decree. At the same time, as causes of absolute divorce in favor of the aggrieved were sanctioned (1) adultery; (2) impotency; (3) sentence to imprisonment in the penitentiary after the marriage, no subsequent pardon effecting a restoration of conjugal rights; (4) wilful desertion for one year next preceding the commencement of the suit; (5) cruel and inhuman treatment, whether practiced by using personal violence or by any other means; (6) habitual drunkenness for one year immediately preceding the filing of the complaint. By this act no provision is made for partial divorce.[445] The term of wilful desertion was increased from one year to three years in 1866;[446] but in 1895 the shorter period was restored, so that under the existing law the six grounds of absolute divorce as sanctioned in 1851 are recognized, except that "cruel and inhuman treatment" is constituted a cause, the original explanatory clause being omitted.[447] On the other hand, limited divorce is now provided for. Since 1876, on complaint of a married woman, separation from bed and board is authorized (1) for cruel and inhuman treatment by the husband; (2) for such conduct on his part as may render it unsafe and improper for her to cohabit with him; or (3) for abandonment and refusal or neglect by him to provide for her. The district court of the county where the persons or one of them resides is now vested with jurisdiction in all actions for divorce or for the annulment of marriage.[448]

[445] _Rev. Stat. of Minn._ (1851), 272-76.

[446] _Gen. Stat. of Minn._ (1866), 408-12. "The revisers repeated this chapter under two titles, the second being entitled 'Limited Divorces,' but the legislature rejected Title II and did not change or amend Title I."--_Ibid._, 408, note.

[447] Act of April 22, _Session Laws_ (1895), 158. _Cf._ _Gen. Stat._ (1894), I, 1267, for the law modified in 1866.

[448] _Cf._ _Laws_ (1876), chap. 118; _Gen. Stat. of Minn._ (1894), I, 1273, 1267; _Session Laws_ (1895), 158.

One of the worst and most characteristic features of American state legislation is seen in the session laws of Iowa, where the statute-maker is perennially engaged in adopting, changing, abrogating, or re-enacting plans of divorce and alimony. The first step was taken in 1838, when the district court of the county where the persons or one of them resides was given jurisdiction on the petition of the aggrieved. The grounds of absolute divorce then allowed are (1) impotence; and (2) adultery. Those of divorce _a mensa_ or of divorce from the bond of wedlock, in the discretion of the court, are (1) extreme cruelty; or (2) wilful desertion for one year.[449] This law was repealed and a new one adopted in the next year. Nothing is now said of separation from bed and board; but a full divorce may be had by the injured spouse for (1) impotency; (2) bigamous marriage; (3) adultery; (4) one year's desertion; (5) felony; (6) habitual drunkenness; (7) cruel treatment; (8) indignities.[450] Three years later this statute in turn gave place to another by which the same causes are sanctioned, except, under the sixth head, it is provided that "said habitual drunkenness shall be contracted after marriage."[451] In 1846, however, this proviso was dropped; and at the same time an "omnibus" clause was sanctioned. A full divorce may now be granted (9) "when it shall be made fully apparent to the satisfaction of the court, that the parties cannot live in peace and happiness together, and that their welfare requires a separation."[452] The eighth ground was dropped in 1851, and at the same time it was again specified under the sixth head that drunkenness shall have become habitual after marriage.[453]

[449] Act of Dec. 29, 1838: _Laws of Ia._ (1838-39), 179, 180.

[450] Act of Jan. 17, 1840: _Laws of Ia._ (1839-40), 120-22.

[451] Act of Jan. 20, 1843: _Rev. Stat. of Ia._ (1843), 237-41.

[452] Act of Jan. 17, 1846: _Laws of Ia._ (1845-46), 23.

[453] _Code of Ia._ (1851), 223.

Thus matters stood until 1855, when the worthy legislators managed to put the law in a curiously awkward shape. It was then decreed that "hereafter no divorce otherwise than from bed and board shall be granted except" (1) where either spouse shall commit adultery; (2) be convicted of felony; (3) was impotent at the time of the marriage; or (4) wilfully deserts the other for the space of three years. "In all other enumerated causes heretofore deemed sufficient"--continues the statute--"no divorce otherwise than a divorce from bed and board shall be granted."[454] This scheme was short-lived. An act of 1858 revives the law as it stood in 1851, except that the term of wilful desertion was extended to two years and the omnibus clause was omitted, thus leaving seven grounds of petition in force.[455]

[454] Act of Jan. 24, 1855: _Laws of Ia._ (1854-55), 112, 113.

[455] Act of March 15: _Laws of Ia._ (1858), 97, 98.

The present law of Iowa governing the causes of divorce took its rise in the code of 1873. The district court in the county where the plaintiff or defendant resides still has jurisdiction. Limited divorce is not recognized, but "it appears that courts of equity will grant alimony without divorce to a wife where she is separated from her husband because of his misconduct, though no express statutory provision is found authorizing such proceeding."[456] A full divorce may be decreed against the husband (1) when he has committed adultery subsequent to the marriage; (2) when he wilfully deserts his wife and absents himself without reasonable cause for the space of two years; (3) when after marriage he is convicted of felony; or (4) becomes addicted to habitual drunkenness; or (5) when he is guilty of such inhuman treatment as to endanger the life of his wife; and against the wife, for the five causes just enumerated, and also (6) when at the time of the marriage she was pregnant by a man other than her husband, unless the husband then had an illegitimate child or children living and the fact was unknown to her.[457]

[456] WRIGHT, _Report_, 96. _Cf._ Graves _v._ Graves, 36 _Ia._, 310; Whitcomb _v._ Whitcomb, 46 _Ia._, 437.

[457] _Cf._ _Ann. Code of Ia._ (1897), 1135-47; and _Code of Ia._ (1873), 399-401; also _Laws of Ia._ (1870), 429 (jurisdiction).

The divorce legislation of Kansas begins in 1855, the next year after the territory was erected. The grounds on which the aggrieved may secure a complete dissolution of the matrimonial bond are (1) impotence continuing from the time of the marriage; (2) bigamous marriage; (3) adultery; (4) wilful desertion and absence for two years without reasonable cause; (5) conviction of felony or infamous crime; (6) habitual drunkenness for two years; (7) cruel and barbarous treatment endangering life; (8) intolerable indignities offered to the person; (9) vagrancy of the husband.[458] In 1859 this law gave place to another, by which the fifth, eighth, and ninth causes above enumerated were omitted; the term of wilful absence, under the fourth head, was reduced to one year; and habitual drunkenness became a cause, without specification of the time during which it must have existed.[459] The very next year this plan was in its turn superseded. A new act allowed separate alimony without dissolution of marriage, and sanctioned eleven grounds of total divorce. The first four of these are identical with the corresponding numbers in 1855, as modified in 1859. In addition are approved (5) pregnancy of the wife at the time of the marriage by a man other than the husband; (6) extreme cruelty; (7) fraudulent contract; (8) gross neglect of duty; (9) habitual drunkenness; (10) sentence for crime and imprisonment therefor in a penitentiary, provided complaint be filed during the term of confinement; (11) when one person has secured a divorce in another state or territory, leaving the obligation binding on the other.[460]

[458] _Stat. of Kan._ (1855), 310, 311.

[459] Act of Feb. 7: _Gen. Laws of Kan._ (1859), 385.

[460] Act of Feb. 27: _Gen. Laws of Kan._ (1860), 105-10. An Act of June 4, 1861, provides that a person presenting a copy of an act of the Territory of Kansas by which he has been divorced "shall be entitled to a decree of divorce without issuing summons thereon."--_Gen. Laws_ (1861), 146.

The eleventh cause just specified was dropped in 1868. The remaining ten were then re-enacted;[461] and these grounds, without addition or essential change, constitute the law of Kansas at the present time. In this state there is no separation from bed and board. But "the wife may obtain alimony alone from the husband without a divorce ... for any of the causes for which a divorce may be granted."[462] By the constitution, jurisdiction in all divorce actions is vested in the district courts;[463] and the supreme court has authority when suits are brought up on error.[464]

[461] "Code of Civil Procedure," approved Feb. 25, 1868, Art. XXVIII: in PRICE, RIGGS, AND MCCAHON, _Gen. Stat. of Kan._, 757-59. The law of 1868 reappears in DASSLER, _Laws of Kan._ (1876), II, 761-63; _ibid._ (1879), 690-92.

[462] _Laws of Kan._ (1897), II, 273-77; DASSLER, _Gen. Stat._ (1901), 1055.

[463] Art. II, sec. 18, Const. of 1859.

[464] See Ulrich _v._ Ulrich, 8 _Kan._, 402. _Cf._ Wesner _v._ O'Brien, 1 _Ct. App._, 416; and McPherson _v._ the State, 56 _Kan._, 140 ff.

Both kinds of separation are provided for by the Nebraska law of 1856; and a marriage is then declared to be completely dissolved without decree in case of conviction and imprisonment for life. The district court of the county where the married persons or one of them resides is empowered to grant absolute divorce on complaint of the aggrieved for (1) adultery; (2) physical incompetency at the time of the marriage; (3) sentence to imprisonment for three years or more, no pardon effecting a restoration of conjugal rights; (4) two years' wilful abandonment without good cause; (5) habitual drunkenness. The same tribunal may decree either a limited or a full divorce for (1) extreme cruelty; or (2) two years' utter desertion by either spouse; and (3) in favor of the wife, when the husband, being of sufficient ability, shall grossly or wantonly and cruelly refuse or neglect to provide for her.[465] No essential change appears in the statutes until 1875, when imprisonment for life was made a sixth ground of absolute divorce;[466] and so the law of Nebraska remains at the present hour.[467]

[465] Act of Jan. 26: _Laws_ (1856), 154-59.

[466] Act of Feb. 19: _Laws_ (1875), 80. _Cf._ _Gen. Stat. of Neb._ (1873), 344-51; and _Stat. of Neb._, in force Aug. 1, 1867, 128-35, where the causes approved in 1856 appear without essential change.

[467] _Compiled Stat._ (1901), 577. The law regarding jurisdiction is the same as in 1856.

Separation from bed and board has at no time been authorized by the laws of Colorado. The district courts have jurisdiction. Full divorce may now be granted in favor of the aggrieved on eight grounds; and in this regard there have been few changes since the first statute of 1861. The present causes are (1) impotence continuing from the time of the marriage or originating thereafter in consequence of immoral or criminal conduct; (2) bigamous contract; (3) adultery; (4) one years' wilful desertion and absence without reasonable cause (5) extreme or repeated acts of cruelty, consisting as well in the infliction of mental suffering as of bodily violence; (6) failure on the part of the husband, being in good bodily health, to make reasonable provision for his family for the space of one year; (7) habitual drunkenness of either spouse for the same period; (8) conviction of felony.[468]

[468] Act of April 3, 1893: _Laws of Col._, 236, 237; also in MILLS, _Ann. Stat._ (1897), III, 434. The sixth cause was added in 1881. At the same time the term of habitual drunkenness was reduced to one year, instead of two years, as by the law of 1861; while desertion and departure from the territory "without intention of returning," until then a ground for divorce when committed by the husband, was made a ground when committed by either party: _Laws of Col._ (1881), 112; also in _Gen. Stat._ (1883), 397 ff. The first cause, in its present form, arose in _Laws of Col._ (1885), 189, and it differs somewhat from the original provision in _ibid._ (1861-62), 360.

Since the original statute of 1870, in Wyoming, a bigamous contract or a marriage where the persons are related within the forbidden degrees, or where either is insane or an idiot, is void without judicial decree.[469] In that state separation from bed and board has never been sanctioned. Under the existing law, as it has stood since 1882, absolute divorce is allowed either person when aggrieved for (1) adultery; (2) physical incompetence continuing from the time of the marriage; (3) conviction of a felony and imprisonment therefor in any prison, no subsequent pardon effecting a restitution of conjugal rights; (4) wilful desertion for one year; (5) when either husband or wife has become a habitual drunkard; (6) extreme cruelty; (7) neglect of the husband for the period of one year to provide the common necessaries of life, unless such neglect is the result of poverty which he could not have avoided by ordinary industry; (8) indignities rendering the condition of either spouse intolerable; (9) conduct on the part of the husband constituting him a vagrant within the meaning of the law; (10) when before the marriage or its solemnization either person shall have been convicted of a felony or infamous crime in any state, territory, or count[r]y without knowledge of the fact by the other at the time of the marriage; (11) when the intended wife at the time of contracting the marriage or its solemnization is pregnant by any man other than her intended husband, and without the latter's knowledge at the time of the solemnization.

[469] Act in force Jan. 1, 1870: _Laws_ (1869), 274; VAN ORSDEL AND CHATTERTON, _Rev. Stat._ (1899), 794.

Although there is no limited divorce in Wyoming, the law in certain cases allows separate alimony to be granted to the wife without a formal decree of separation.[470]

[470] Act of March 8: _Laws_ (1882), 73-81; _Rev. Stat._ (1887), sec. 1571, pp. 419-24; also VAN ORSDEL AND CHATTERTON, _Rev. Stat._ (1899), 794-800. The first six of the causes above enumerated were introduced by the act which came into force Jan. 1, 1870: _Laws_ (1869), 274-81; but then under the third head, conviction and imprisonment for three years or more were necessary to constitute a ground; and by the sixth cause it was required that one of the parties should be "repeatedly guilty of such unhuman treatment as shall endanger the life of the other." The remaining five causes first appeared in 1882.

The legislation of Utah begins in 1852 with an act so faulty that its consequences have become notorious in the divorce annals of the United States. A vicious residence clause, coupled with a loose requirement regarding notice and an "omnibus" provision among the enumerated grounds of complaint, became in effect a standing temptation to clandestine divorce seekers from outside the territory. It is formally declared that the court of probate of the county of the plaintiff shall have jurisdiction in all petitions, and these are to be made in writing upon oath or affirmation setting forth the grounds of action. "If the court is satisfied," continues the statute, "that the person so applying is a resident of the Territory, or wishes to become one; and that the application is made in sincerity and of" the plaintiff's "own free will and choice, and for the purpose set forth in the petition; then the court may decree a divorce from the bonds of matrimony" against the defendant "for any of the following causes, to wit": (1) impotence at the time of the marriage; (2) adultery; (3) wilful desertion or absence without reasonable cause for more than one year; (4) habitual drunkenness subsequent to the marriage; (5) inhuman treatment endangering life; (6) "when it shall be made to appear to the satisfaction and conviction of the court, that the parties cannot live in peace and union together, and that their welfare requires a separation." Nevertheless, the courts are encouraged to adopt a cautious and conservative policy. They are allowed to defer "their decree of divorce, when the same is applied for, to any specified time, not exceeding one year, when it appears" that a compromise may be made; and "during the time of such deference ... , the bonds and engagements of matrimony may not be violated by the parties." Furthermore, the court is empowered to punish by fine or imprisonment or both any person "who shall stir up unwarrantable litigation between husband and wife, or seek to bring about a separation between them."

This statute was doubtless made in good faith. For, although it remained in force without change for a quarter of a century, it does not appear that the Latter Day Saints showed any strong tendency to take advantage of its glaring defects. But it is not surprising that evil should come of it. The petitioner in a divorce suit need not be a "_bona fide_ resident of the territory. The formal expression of an intention to become a resident was all that was required. The plea of a citizen of any part of the United States that he intended to become a citizen of Utah was entertained equally with that of a regularly domiciled resident."[471] Besides, under the "blanket" provision anything might be alleged in the petition as a ground for action. The natural result was that certain sharp lawyers in eastern cities seized the opportunity to promote clandestine divorce on a large scale. Through their skilful plans and the connivance of local judges, the courts of several counties were converted into veritable "divorce bureaus," so that between 1875 and 1877 there was a surprising increase in the annual crop of divorce decrees. Accordingly, in 1878 the assembly passed a statute which effectually put an end to this anomalous state of affairs. One year's _bona fide_ residence was now required; a decree was forbidden in case of default of the defendant except on legal testimony; better provisions for notice were made; and the "omnibus" clause was abandoned. By this act, separation from bed and board is not provided for; but an absolute divorce, in favor of the aggrieved, may be granted for (1) impotence at the time of marriage; (2) adultery; (3) wilful desertion for more than one year; (4) wilful neglect of the husband to provide for the wife the common necessaries of life; (5) habitual drunkenness; (6) conviction of felony; (7) cruel treatment, to the extent of causing great bodily injury or great mental distress.[472] To these grounds in 1903 was added (8) permanent insanity, when the defendant has been duly declared insane five years before.[473] Furthermore, by an act of 1896 separate maintenance without a decree of divorce is allowed the wife for desertion by the husband or when, without her fault, she is living separate from him.[474]

[471] WRIGHT, _Report_, 203-6, 156.

[472] Act of Feb. 2: _Laws_ (1878), 1, 2; also _Rev. Stat. of Utah_ (1898), 333, 334.

[473] _Laws of Utah_ (1903), 39, 40.

[474] _Laws_ (1896), 111.

By an act of 1853 the legislature of Oregon Territory allows divorce petitions presented under oath to be determined by the district court of the county in which the cause occurs, or in which the defendant resides or is found, or in which the plaintiff resides, if in this last case it be either the county in which the parties last cohabited or that in which the plaintiff has resided for six months next preceding the action. Absolute divorce in favor of the aggrieved is permitted on ten grounds. These are (1) impotence continuing since marriage; (2) adultery committed since marriage and remaining unforgiven; (3) bigamous contract; (4) compulsion or gross fraud in procuring the marriage, if a rescission be sought in a reasonable time after removal of the restraint or discovery of the fraud; (5) wilful desertion for two years without reasonable cause; (6) conviction of felony or infamous crime; (7) habitual gross drunkenness contracted since marriage; (8) harsh and cruel treatment; (9) personal indignities rendering life burdensome; (10) six months' voluntary neglect of the husband to provide the wife with a home and the common necessaries of life.[475] This statute was, however, of short duration. In 1854 the third and fourth causes were dropped; bigamous contracts and those entered into through compulsion or fraud being now properly treated as grounds for annulment of void or voidable marriages. The remaining eight causes recognized in 1853 were retained, except that the term of wilful desertion was reduced to one year; and a period of one year was likewise fixed in case of voluntary neglect to provide.[476] Eight years later neglect to provide ceased to be a legal ground of complaint. At the same time it was enacted that "habitual gross drunkenness" to constitute a cause must exist for two years immediately before the commencement of the suit; and the period of wilful desertion was extended to three years.[477]

[475] Act of Feb. 1, 1853: _Gen. Laws of Ore._ (1852-53), 49-51.

[476] Act of Jan. 17, 1854: _Stat. of Ore._ (1853-54), 494-97. _Cf._ also the same, _ibid._ (1854-55), 536-41.

[477] Act of Oct. 11, 1862: _Laws_, secs. 485 ff.; and the same in DEADY AND LANE, _Organic and Other Gen. Laws of Ore., 1843-1872_ (1874), 208-12.

The law governing the grounds of action, as it still exists in Oregon, took its present form in 1887; and, with the exception of the one clause omitted in 1862, it is practically the same as it was established in 1854. Separation from bed and board is not recognized. The circuit courts, sitting at least twice a year in each county, have jurisdiction. A full divorce may be obtained on petition of the aggrieved for (1) impotence; (2) adultery; (3) conviction of felony; (4) habitual gross drunkenness contracted since marriage and continuing for one year prior to the commencement of the suit; (5) wilful desertion for the period of one year; (6) cruel and inhuman treatment or personal indignities rendering life burdensome.[478]

[478] Act of Feb. 27: _Laws_ (1887), 52, 53; same in _Codes and Stat. of Ore._ (1902), I, 275. On cruelty as a cause see Morris _v._ Morris, 73 _Am. Dec._, 619-31.

The divorce laws of Washington have been remarkably free from violent changes. The current of legislation has run smoothly along. Separation from bed and board has never been provided for; but eight causes of absolute divorce were recognized by the first territorial act on the subject in 1854. These are (1) force or fraud in procuring the marriage, provided there be no subsequent voluntary cohabitation; (2) adultery unforgiven, if application be made within one year after knowledge of the offense; (3) impotence; (4) abandonment for one year; (5) cruel treatment; (6) habitual drunkenness; (7) neglect or refusal of the husband to make suitable provision for his family; (8) imprisonment in the penitentiary, if complaint be filed during the term of such confinement.[479] In 1860 was added a new ground in the form of an "omnibus" provision. A divorce was then permitted on application of either spouse (9) "for any other cause deemed by the court sufficient, or when the court shall be satisfied that the parties can no longer live together."[480] Thus the law remained without change for twenty-five years; but in 1885 it was provided (10) that in "case of incurable, chronic mania or dementia of either party, having existed for ten years or more, the court may in its discretion grant a divorce."[481] Finally in 1891 the list of grounds for full dissolution of wedlock sanctioned by the present code of Washington was completed. A full divorce is now allowed, in modification of the fifth cause above enumerated, (11) for "personal indignities rendering life burdensome."[482] Originally the district courts were vested with jurisdiction, but since 1889 the superior courts in the separate counties have had authority in all cases of divorce, alimony, and annulment.[483]

[479] _Stat. for the Ter. of Wash._ (1854), 405-7.

[480] Act of Jan. 23: _Acts_ (1860), 318-20.

[481] Act of Dec. 22, 1885: _Laws_ (1885-86), 120.

[482] Act of Feb. 24: _Laws_ (1891), 42; also in _Ann. Codes and Stat. of Wash._ (1897), II, 1595-1600.

[483] _Const. of 1889_, Art. IV, secs. 5, 6.

In 1851, at the second session of the state legislature, California granted the district courts "within their respective districts" jurisdiction in divorce questions. Nine causes of "divorces from bed and board, or from the bonds of matrimony," were then recognized. But in 1874 three of these--natural impotence, force or fraud, and the marriage of a female under the age of fourteen years without consent of parent or guardian or without ratification by her after reaching that age--were dropped, and thereafter they were rightly treated as grounds for annulment of voidable contracts. The remaining six causes were then re-enacted, with some changes in the prescribed conditions, but only as grounds of absolute divorce. The statute of 1874 is still in force, full dissolution of wedlock, but not separation from bed and board, being sanctioned for (1) adultery; (2) extreme cruelty; (3) wilful desertion; (4) wilful neglect; (5) habitual intemperance; (6) conviction of felony.

After this formal enumeration of the grounds of petition, the first code of California carefully defines the terms employed and prescribes the conditions under which the law shall take effect. Thus "wilful desertion, wilful neglect, or habitual intemperance must continue for one year before either is a ground for divorce." By the original act of 1851, it may be noted, a period of three years was prescribed for both wilful desertion and wilful neglect to provide. In 1853, however, the term of wilful desertion was reduced to two years; and the same time was fixed for wilful neglect in 1870. A period during which habitual intemperance must exist to constitute a cause of divorce was not mentioned until the statute of 1874, by which, in this case as well as in the two others above named, the one-year term was required. By the existing code extreme cruelty is defined as the "infliction of grievous bodily injury or grievous mental suffering."[484] "Wilful desertion is the voluntary separation of one of the married parties from the other with the intent to desert." But when one person is induced by the stratagem or fraud of the other "to leave the family dwelling-place, or to be absent, and during such absence the offending party departs with intent to desert the other, it is desertion by the party committing the stratagem or fraud, and not by the other." In like manner "departure or absence of one party from the dwelling-place, caused by cruelty or by threats of bodily harm from which danger would be reasonably apprehended from the other, is not desertion by the absent party but it is desertion by the other." Separation by consent, with or without the understanding that one of the married persons will apply for a divorce, is not desertion. Moreover, "absence or separation, proper in itself, becomes desertion whenever the intent to desert is fixed during such absence or separation."[485] Wilful neglect is defined as the neglect of the husband to provide for his wife the common necessaries of life, he having the ability to do so; or his failure to provide as the result of "idleness, profligacy, or dissipation."[486] Finally, habitual intemperance is described as "that degree of intemperance from the use of intoxicating drinks which disqualifies the person a great portion of the time from properly attending to business, or which would reasonably inflict a cause of great mental anguish" upon the innocent person.[487] In like spirit the reasons for denying a decree are minutely specified by the law. Original jurisdiction in all questions of divorce and annulment of marriage is now vested in the superior courts in their respective counties or other districts.[488]

[484] On cruelty see Powelson _v._ Powelson, 22 _Cal._, 358; Morris _v._ Morris, 14 _Cal._, 76; Kelly _v._ Kelly, 1 _West Coast Rep._, 143; Eidenmuller _v._ Eidenmuller, 37 _Cal._, 394; Johnson _v._ Johnson, 14 _Cal._, 459; Pierce _v._ Pierce, 15 _Am. Dec._, 210, note. In general Poore _v._ Poore, 29 _Am. Dec._, 664.

[485] Sec. 96 of the "Civil Code" also declares that "persistent refusal to have reasonable matrimonial intercourse as husband and wife, when health or physical condition does not make such refusal reasonably necessary, or the refusal of either party to dwell in the same house with the other party, when there is no just cause for such refusal, is desertion."--DEERING, _Codes and Stat._ (1886), II, 34; POMEROY, _Civil Code_ (1901), 48.

On desertion see especially Hardenberg _v._ Hardenberg, 14 _Cal._, 654; Benkert _v._ Benkert, 32 _Cal._, 467; Morrison _v._ Morrison, 20 _Cal._, 431; Christie _v._ Christie, 53 _Cal._, 26; also Stein _v._ Stein, 5 _Col._, 55; Pilgrim _v._ Pilgrim, 57 _Iowa_, 370.

[486] For interpretation of the law regarding neglect to provide see Devoe _v._ Devoe, 51 _Cal._, 543; Washburn _v._ Washburn, 9 _Cal._, 475; Rycraft _v._ Rycraft, 42 _Cal._, 444.

[487] On habitual intemperance consult Mahone _v._ Mahone, 19 _Cal._, 626, 629; Haskell _v._ Haskell, 54 _Cal._, 262.

[488] DEERING, _Codes and Stat. of Cal._ (1886), III, 31. The development of the law of California regarding divorce, as given in the text, may be traced in _Stat._ (1851), 186, 187; _ibid._ (1853), 70; _Comp. Laws_ (1853), 371, 372; act of March 12, 1870: in _Stat._ (1869-70), 291; act of March 30, 1874: in _Acts Amendatory of the Codes_, 181-91; POMEROY, _Civil Code_ (1901), 40-62.

The California codes and decisions, as is well understood, have been freely adopted or followed by a number of western states. This is especially true regarding divorce legislation. The causes and conditions of action recognized by California law have often been accepted outright.[489] Such, for example, is the case in Montana. By the code of 1895 the same six causes sanctioned by the law of California since 1874 are recognized; while the prescribed definitions, already in part summarized from that law, are almost exactly reproduced. The grounds for dissolution of wedlock are identical, except in their phraseology, with those authorized by the original Montana act of 1865, save that in addition impotence and bigamous contract were then enumerated among the legal causes of divorce. There is no separation from bed and board in Montana; but the wife may be allowed separate maintenance, although a decree of divorce is denied. Since 1865 the respective district courts, on the chancery side, have had jurisdiction in absolute divorce and in all questions of alimony and annulment of voidable contracts.[490]

[489] For some account of the influence of the California Codes see HEPBURN, _Hist. Dev. of Code Pleading in America and Eng._ (Cincinnati, 1897), especially 93 ff., 104 ff., 160.

[490] Compare the act of Feb. 7, 1865: in _Acts_ (1864-65), 430, 431; and _Comp. Codes and Stat. of Mont._ (1895), 478-80.

What has just been said of Montana may be repeated for Idaho, where the California system was adopted in 1887.[491] By an act of 1895, however, incurable insanity was admitted as a seventh cause of full divorce.[492] In this case, as in all the others since 1864, the district court in the county of the plaintiff has jurisdiction. Earlier the laws relating to the causes were somewhat less closely patterned upon the California statutes. The act of 1864 allows a full divorce for (1) impotence at the time of the marriage; (2) adultery committed since marriage and remaining unforgiven; (3) wilful desertion for two years; (4) conviction of felony or infamous crime; (5) habitual gross drunkenness, contracted since marriage, incapacitating the offender from contributing his or her share to the support of the family; (6) extreme cruelty; (7) neglect of the husband for two years to provide the common necessaries of life, unless such neglect is the result of poverty which could not be avoided by ordinary industry.[493] Three years later the California law, as it then stood, allowing nine causes of full divorce, was adopted, except that the terms of habitual intemperance and wilful neglect were each fixed at two years, and a period of one year was made sufficient for wilful desertion. It should also be noted that this Idaho statute, unlike the contemporary law of California, made no provision for partial divorce.[494] It was superseded in 1875 by a new act[495] which is identical in its provision regarding the grounds of action with that of 1867; and no further change was made until the present California plan was sanctioned in 1887.

[491] _Rev. Stat. of Idaho_ (1887), 303-7.

[492] But a divorce is not allowed, under this provision, unless the insane person shall have been regularly and duly confined in an insane asylum of the state for at least six years immediately before the action: act of Feb. 4: _Gen. Laws_ (1895), 11, 12. By an act of Feb. 14: _Gen. Laws_ (1899), 232, 233, were added the words, "nor unless it shall appear to the court that such insanity is permanent and incurable;" and now it is sufficient if the previous confinement has been in an asylum "of a sister state," provided the plaintiff has been an actual resident for one year: _ibid._, (1903), 332, 333.

[493] Act of Jan. 16, 1864: in _Laws of the Ter. of Idaho_ (1863-64), 615-18.

[494] Act of Jan. 9: _Laws_ (1867), 69-71.

[495] Act of Jan. 13, 1875: _Comp. and Rev. Laws of Idaho_ (1875), 639-41.

The experience of the Dakotas has been very similar to that of Idaho and Montana, so far as the final results are concerned; but the early territorial legislation was often clumsy in form, vicious in character, and subject to frequent and violent changes. The original act of 1864 grants the several district courts jurisdiction in petitions for absolute dissolution of marriage on suit brought in the county where the persons or one of them resides, for (1) adultery; (2) impotence; (3) imprisonment in a penitentiary subsequently to the marriage, no pardon effecting a restoration of conjugal rights; (4) cruel and inhuman treatment, "whether practised by using personal violence, or by any other means"; (5) habitual drunkenness for one year next before filing the complaint; (6) "when it shall be made fully to appear that from any other reason or cause existing, the parties cannot live in peace and happiness together, and that their welfare requires a separation."[496] Separation from bed and board is not contemplated by the law of 1864; but in 1866 a new statute appears by which both kinds of divorce are provided for. A full divorce is permitted only on the scriptural ground; but a partial divorce "for life or for a limited time" may be decreed in favor of the aggrieved for (1) cruel treatment; (2) conduct rendering cohabitation unsafe or improper; (3) abandonment, accompanied by refusal to fulfil the matrimonial obligations sanctioned by the statute. If in any case a decree of separation be denied, the court may provide for the separate maintenance of the wife and children by the husband or out of his property.[497] The very next year this act was replaced by another which allows the aggrieved spouse absolute divorce for (1) bigamous contract; (2) wilful absence for five years; (3) adultery; (4) impotency; (5) pregnancy of the wife at the time of the marriage by a man other than the husband without the latter's knowledge; (6) extreme cruelty; (7) habitual drunkenness; (8) imprisonment in a penitentiary anywhere in the United States for violation of the criminal laws;[498] (9) whenever it shall be made to appear that the husband or wife of the applicant "has obtained a decree of divorce in any of the courts of any other territory or state, by virtue of which the party who shall have obtained such decree shall have been released from the obligation of the marriage contract, while the same remains binding upon the other party." Limited divorce is not mentioned by this statute; but, in place of it, a wife may obtain separate alimony for (1) the husband's adultery; (2) his gross neglect of duty; (3) abandonment by him without good cause; (4) where there is a separation in consequence of his ill-treatment; (5) his habitual drunkenness; or (6) his confinement in any prison in the country, or for any crime warranting such punishment in the territory.[499]

[496] Act of Jan. 15: in _Gen. and Private Laws_ (1864), 19-26.

[497] Act of Jan. 12, 1866: _Laws, Memorials, and Resolutions_ (1865-66), 13-16.

[498] If for a crime of the same grade as warrants such imprisonment in the territory, and if application be made during the term of confinement.

[499] Act of Jan. 10, 1867; in _Gen. Laws_ (1866-67), 45-52.

Only four years elapsed before the restless lawmaker was again at work. By an act of 1871 a divorce from bed and board or from the bonds of matrimony may be granted (1) for impotence at the time of marriage; (2) "when the female at the time of the alleged marriage was under the age of fourteen years, and the alleged marriage was without the consent of her parents, or guardians, or other persons having the legal custody or charge of her person; and when such marriage was not voluntarily ratified on her part" after the attainment of that age; (3) for adultery; (4) for extreme cruelty by the infliction of grievous bodily or mental suffering; (5) for habitual intemperance; (6) for two years' wilful desertion; (7) for having the ability to provide and failure so to do on account of idleness, profligacy, or dissipation; (8) "when from threatening words or acts, the weaker party feels in danger of bodily injury;" (9) when the consent was obtained by "force, fraud, intimidation, deception, or influence of stronger minds;" (10) for conviction of felony after marriage.[500] Here matters rested until 1877, when the California system, including the six causes and the careful definitions of the code, was adopted.[501] This plan without change is retained in the existing laws of South Dakota;[502] as also in those of North Dakota, except that between 1899 and 1901, following the lead of Idaho, incurable insanity for two years was admitted as a seventh ground of absolute divorce.[503] In neither of these states is partial divorce recognized. The district courts in North Dakota still have original jurisdiction; while in South Dakota authority is vested in the circuit courts within the respective circuits or their subdivisions.[504]

[500] Act of Jan. 13, 1871: in _Gen. Laws_ (1870-71), 414. In the same volume, curiously enough, the civil code of Jan. 12, 1866, including the divorce law of that year, as given in the text, is re-enacted; and so the act of Jan. 10, 1867, is entirely ignored. But the early legislation of Dakota is exceptionally bungling and confusing.

[501] _Rev. Codes of the Ter. of Dak._ (1877), 215, 216; also in LEVISSEE, _Ann. Codes_ (1883), II, 747-52. By the code of 1877 the term of wilful desertion, wilful neglect, and habitual intemperance was fixed at two years; but the one-year period was substituted in 1881: Act of March 1, _Laws_ (1881), 66.

[502] _Stat. of S. D._ (1899), II, 1025-30; _Rev. Codes_ (1903), 598-603.

[503] Act of March 6: _Acts_ (1899), 95; but insanity as a ground is omitted in _Laws_ (1901), 81, 82. There is no partial divorce in North Dakota; but, though a decree be denied, the court may provide for the maintenance of the wife and children by the husband: _Rev. Codes_ (1895), 614. _Cf._ McFarland _v._ McFarland, 2 _N. W. Rep._, 269; Ross _v._ Ross, 10 _N. W. Rep._, 193.

[504] _Rev. Codes of N. D._ (1895), 611-15, 929; _Stat. of S. D._ (1899), II, 1489; I, 267.

Nevada has likewise closely followed the example of California. Separation from bed and board has at no time been provided for. Bigamous marriages and those within the forbidden degrees of consanguinity are void without decree or other legal proceedings.[505] But since 1875, with one exception, the grounds of absolute divorce have been practically the same as those prescribed by the California code, although they are differently expressed, and there are not the same minute provisions regarding the application of the law and the conditions of action. On complaint of the aggrieved the courts are now authorized to dissolve the bonds of wedlock for (1) impotence at the time of the marriage continuing to the time of divorce; (2) adultery since marriage, remaining unforgiven; (3) wilful desertion for one year; (4) conviction of felony or infamous crime; (5) habitual gross drunkenness, contracted since marriage and incapacitating the offender from contributing his or her share toward the support of the family; (6) extreme cruelty; (7) neglect of the husband for the period of one year to provide the common necessaries of life, unless such neglect is the result of poverty which could not have been avoided by ordinary industry. Thus the laws of Nevada regarding the causes of divorce have been remarkably free from change; for the statute of 1875 in this regard is identical with the original act of 1861, except that by the latter the terms of wilful desertion and wilful neglect to provide are each fixed at two years.[506]

[505] Since 1861 these marriages have thus been void without judicial proceedings; while those below the age of consent, or when there was want of understanding, or when obtained by fraud with no subsequent voluntary cohabitation, are void from the time a decree of nullity is pronounced. But a marriage shall in no case be adjudged a nullity, on the ground of being under age of consent, if the parties cohabited freely after reaching that age; nor the marriage of an insane person, if there be similar cohabitation after restoration to reason: act of March 28: _Laws_ (1861), 96, 97; same in _Comp. Laws_ (1900), 115.

[506] _Cf._ the act of Nov. 28: _Laws_ (1861), 96-99; that of Feb. 15: _Laws_ (1875), 63; and _Comp. Laws_ (1900), 115-18. Partial divorce is not recognized; but the common law, as administered by the ecclesiastical courts, is a part of the law of Nevada, so far as not superseded by statute: Wuest _v._ Wuest, 17 _Nev._, 216. For the interpretation of extreme cruelty see Reed _v._ Reed, 4 _Nev._, 395; Gardner _v._ Gardner, 23 _Nev._, 207; Kelley _v._ Kelley, 18 _Nev._, 48.

For Alaska the act of Congress does not authorize partial divorce; but marriage may be dissolved for (1) impotency; (2) adultery; (3) conviction of felony; (4) two years' wilful desertion; (5) "cruel and inhuman treatment, calculated to impair health or endanger life;" or (6) habitual gross drunkenness contracted since marriage and continuing one year before the suit.[507]

[507] _U. S. Stat. at Large_, XXXI, 408-10; _Laws of Alaska_ (1900), 243-46.

By the law of Hawaii both kinds of divorce are provided for. Separation from bed and board forever or for a limited time will be granted when either spouse has been guilty of (1) excessive and habitual ill-treatment; or (2) habitual drunkenness; and (3) to the wife for the husband's neglect or refusal to provide her with the necessaries of life. At any time, on joint application of the persons, with satisfactory evidence of reconciliation, the decree of separation may be revoked by the court. According to a unique scheme, the grounds of absolute divorce are arranged in two groups: (1) A marriage will be dissolved, on petition of the aggrieved, when either consort has (_a_) committed adultery; (_b_) is guilty of three years' wilful and utter desertion; (_c_) has been sentenced to imprisonment for life, or for seven years or more, no pardon effecting a restitution of conjugal rights; or (_d_) has contracted "the disease known as Chinese leprosy, and is incapable of cure." (2) When one of the married persons has been guilty of (_a_) extreme cruelty; or (_b_) habitual drunkenness; and (_c_) when the husband, being of sufficient ability to provide suitable maintenance for his wife, neglects or refuses so to do. But it is especially enacted that if the person applying for a decree "shall not insist upon a divorce from the bond of matrimony, a divorce only from bed and board shall be granted." Jurisdiction is vested in the circuit courts of the circuit where the persons last cohabited as husband and wife; but no divorce for any cause will be allowed if they have never so lived together in the territory.[508]

[508] _Civil Laws of the Hawaiian Islands_ (1897), 715-21.

_c_) _Remarriage, residence, notice, and miscellaneous provisions._--It has been found convenient in the preceding section to trace throughout the period the development of the New York law regarding the remarriage of divorced persons. By the original statute of 1787, it thus appears, the guilty defendant is forever prohibited from marrying again. Under the acts of 1813 and 1827-28 the restriction is limited to the lifetime of the innocent former spouse; and this rule is retained in the present law, although in harmony with the practice elsewhere widely prevailing, the parties to the action are at liberty to renew their matrimonial vows. The defendant, however, may marry again in case the court in which the judgment is given "shall in that respect modify such judgment, which modification shall only be made upon satisfactory proof that the complainant has remarried, that five years have elapsed since the decree of divorce was rendered, and that the conduct of the defendant since the dissolution of said marriage has been uniformly good."[509] At no time, apparently, has any legal check been put upon the immediate remarriage of the successful plaintiff after final decree; and a way has been found by which the guilty defendant may at once contract further wedlock through evasion of the statute. In 1881 the precedent established by Massachusetts in 1829 was followed by the New York court of appeals. It was then decided that when a husband who has been divorced in New York for his adultery "goes into another state for the purpose of evading our law, and there contracts a second marriage during the lifetime of his former wife, and immediately returns to and resides within this state, such second marriage is, nevertheless, valid, and the issue thereof legitimate."[510] On the other hand, it is held that the restraint applies to the remarriage of divorced persons even when the divorce was granted in another state. Thus dower was "denied on a showing that the deceased husband, while a resident of Massachusetts, had been divorced from his wife for his fault and later had removed to New York and married the plaintiff while his former wife was living. It was held that the New York statutes governed whether the divorce was granted in that state or not, so long as the marriage was celebrated in New York."[511] But elsewhere the courts have taken the opposite position, holding that the restraint on remarriage applies only to divorces granted in the state where it is imposed.[512]

[509] _Rev. Stat._ (1889), IV, 2599; STOVER, _Code of Civil Proced._ (1902), II, 1843. _Cf._ 5 BARBOUR, _Chancery Reports_, 117; 11 _N. Y._, 228; 34 _N. Y._, 643; 42 _N. Y._, 546; 2 HUN, _N. Y. Supreme Court Reports_, 241; 92 _N. Y._, 146.

[510] Van Voorhis _v._ Brintnall, 86 _N. Y._, 18; reversing s.c. 23 HUN, _N. Y. Supreme Court Reports_, 260; as summarized in BRIGHTLY, _Digest of the Decis. of all the Courts of N. Y._, II, 2531, 2532, where the later cases are cited. _Cf._ especially Thorp _v._ Thorp (1882), 90 _N. Y._, 602; and Moore _v._ Hegeman (1883), 92 _N. Y._, 521.

[511] H. J. WHITMORE, "Statutory Restraints on the Marriage of Divorced Persons," _Central Law Journal_, LVII, 447; Smith _v._ Woodworth, 44 BARBOUR, _Chancery Reports_, 198.

[512] Bullock _v._ Bullock, 122 _Mass. Reports_, 3; Clark _v._ Clark, 8 CUSHING, _Mass. Reports_, 385; Succession of Hernandez, 46 _La. Ann._, 962; 15 _So. Rep._, 461.

During the century the statutes of New Jersey have in effect, though not expressly, allowed either person absolute freedom of remarriage after divorce.[513] A different rule has been followed in Pennsylvania and Delaware. By a law of the former state in 1785, "he or she, who hath been guilty of the adultery, may not marry the person with whom the said crime was committed, during the life of the former husband or wife."[514] This provision is still in force; and, except in the single case specified, the law of that state puts no restriction whatever upon the remarriage of either person after a decree dissolving the marriage tie. Since 1832 with respect to remarriage the law of Delaware has in substance been identical with that of the sister-commonwealth, except that the prohibition of marriage with the paramour is not confined to the lifetime of the former spouse.[515]

[513] The law provides that the penalties for "polygamy" shall not extend to persons marrying after having been lawfully divorced from the bonds of matrimony: _Gen. Stat. of N. J._, I, 1057. _Cf._ _ibid._, II, 1267 ff.

[514] _Cf._ the act of 1785: CAREY AND BIOREN, _Laws of the Com._, III, 105; PEPPER AND LEWIS, _Digest_, I, 1646, 1647.

[515] _Cf._ the act of February 3, 1832: _Laws_, 150, with _Rev. Stat. of Del._ (1893), 598.

By their complete silence on the subject the statutes of Ohio appear always to have allowed either person entire freedom of remarriage after divorce. Since 1831 the same liberty has been expressly granted by the laws of Indiana;[516] except that when the defendant has been "constructively" summoned without other notice than publication in a newspaper, the person obtaining a decree of divorce is not permitted to marry again until the expiration of two years, during which period the judgment may be opened at the instance of the defendant.[517] But by the original act of 1818 the offender is not released from the bonds of matrimony while his former spouse is living.[518] This restriction is maintained by the statute of 1824, unless the court in its discretion, "judging from the circumstances of the case," shall expressly grant a release.[519] In 1825 the legislature of Illinois required the court in a decree of absolute divorce to prohibit the offender from remarrying within two years.[520] After 1827 this provision was dropped;[521] and at present Illinois, like New Jersey, through the remission of the penalty for bigamy allows entire freedom in this regard.[522] Michigan began with a severe rule. The territorial enactment of 1819 forbids the defendant adulterer to wed again until the complainant be actually dead.[523] This provision was not long retained; and the existing statute permits the court to decree that the person against whom any divorce is granted shall not marry again within any period not exceeding two years.[524]

[516] _Rev. Laws of Ind._ (1831), 214; _Rev. Stat._ (1838), 243; _ibid._ (1843), 606; _ibid._ (1852), II, 237; _ibid._ (1896), I, sec. 1048; BURNS, _Ann. Stat._ (1901), I, 1059.

[517] _Laws of Ind._ (1873), 108, 109; _Rev. Stat._ (1896), I, sec. 1030. This section applies only to parties "constructively" summoned: Sullivan _v._ Learned, 49 _Ind._, 252. The general policy of the law is against disturbing divorces granted: McJunkin _v._ McJunkin, 3 _Ind._, 30; McQuigg _v._ McQuigg, 13 _Ind._, 294.

[518] Act of Jan. 26, 1818: _Laws of Ind._ (1818), 228.

[519] _Rev. Laws of Ind._ (1824), 157.

[520] Act of Jan. 17: _Laws of Ill._ (1825), 169.

[521] The act of June 1, 1827: _Rev. Code_ (1827), 181, allows the injured person to obtain a dissolution of the marriage contract; but neither this nor any subsequent statute seems expressly to forbid the defendant to remarry.

[522] HURD, _Rev. Stat._ (1899), 565.

[523] _Ter. Laws of Mich._, I, 496; see also act of April 12, 1827: _ibid._, II, 363-66. An act of this last date (_ibid._, II, 543), for the punishment of crime, exempts persons marrying again after divorce from the pains of bigamy, provided they may do so by the terms of the decree or by those of the law where the divorce was granted. The act of June 28, 1832 (_ibid._, III, 931, 932), is silent as to remarriage.

[524] HOWELL, _Gen. Stat._ (1890), III, 3605; MILLER, _Comp. Laws_ (1899), III, 2666.

The legislation of the newer states of the Mississippi valley and the Pacific slope discloses the same lack of harmony in dealing with the question in hand. By the laws of Wyoming, Utah, and Nevada either spouse, whether guilty or innocent, is left absolutely free to contract further wedlock as soon as he likes after divorce. At present the same is true of Iowa, although under the early enactments the guilty defendant was forbidden to remarry.[525] In Kansas, by a statute of 1855, the guilty person is restrained from marrying again during five years unless so permitted by the terms of the decree.[526] Between 1859 and 1881 entire freedom was allowed.[527] Subsequently in that state it has been "unlawful for either party ... to marry any other person within six months from the date of the decree of divorcement," or, if appeal be taken, "until the expiration of thirty days from the day on which final judgment shall be rendered by the appellate court." Marriage in violation of this statute is declared bigamy and void.[528] Nebraska since 1885, Oregon since 1862, Washington since 1893, and Minnesota since 1901, have each interdicted remarriage within the same period of six months after a decree of divorce.[529] In Idaho since 1903 the term is "more than six months;" while in North Dakota since 1901 it is but three.[530] Since 1893 Colorado has gone farther, requiring in such a case a delay of one year.[531] The same delay is required in Wisconsin since 1901;[532] while in Montana, since 1895, the innocent person must needs wait two years and the guilty person three years before renewing the marital bond with anyone save the former spouse.[533] South Dakota, when the cause is adultery, still refuses, as in the territorial stage, to permit the guilty defendant to rewed during the lifetime of the innocent plaintiff, unless, indeed, with the latter.[534] In Alaska neither party may marry a third person until proceedings on appeal are ended, or if no appeal be taken, during one year, the statutory term for bringing such action.[535]

[525] By the act of Jan. 24, 1855, the guilty party is prohibited from remarrying: _Laws of Ia._ (1854-55), 112. The restriction was dropped in 1858: _Laws_ (1858), 97, 98, 236: _Ann. Code_ (1897), 1135-47.

[526] _Stat. of Kan._ (1855), 312.

[527] _Gen. Laws of Kan._ (1859), 385. This and the later acts to 1881 are silent as to remarriage.

[528] _Laws of Kan._ (1889), 145; same in _Comp. Laws of Kan._ (1897), II, 276: "Every decree of divorce shall recite the day and date when judgment was rendered in the cause, and that the decree does not become absolute and take effect until the expiration of six months from said time." _Cf._ the act of March 5: _Laws of Kan._ (1881), 229-31, where the six-months' prohibition first appears.

[529] The Nebraska law is peculiar in that, in addition to the general prohibition of marriage in six months, it especially forbids the defendant in error or appellee to marry again during the pendency of proceedings in error or on appeal under the penalties prescribed for bigamy: _Laws of Neb._ (1885), chap. 49, pp. 248, 249; _Comp. Stat. of Neb._ (1901), 582. See _Codes and Stat. of Ore._ (1902), I, 280, 296; _Codes and Gen. Laws_ (1892), I, 458; being the same as act of Oct. 11, 1862: _Organic and Other Gen. Laws of Ore., 1843-72_, 211, 218; _Ann. Codes and Stat. of Wash._ (1897), II, 1599; _Laws_ (1893), 225.

[530] _Laws of N. D._ (1901), 81, 82; _Laws of Idaho_ (1908), 10, 11.

[531] _Laws of Col._ (1893), 240, 241; MILLS, _Ann. Stat._ (1897), III, 441, 442.

[532] "But upon application of such divorced person, any court of record or presiding judge thereof, who granted the divorce, ... may authorize" marriage within the year: _Acts of Wis._ (1901), 369.

[533] _Complete Codes and Stat. of Mont._ (1895), 480.

[534] _Stat. of S. D._ (1899), II, 1025, 1028; _Rev. Codes_ (1903), 602. This principle was adopted by the territorial assembly: LEVISSEE, _Ann. Codes_ (1884), II, 750. Except for a brief term in 1866, the earlier territorial laws allow entire freedom of remarriage: see act of Jan. 12, 1866: _Laws, Memorials, and Resolutions_ (1865-66), 14, forbidding the guilty adulterer to remarry during the lifetime of the innocent spouse; but in the next year this was replaced by a new law allowing full liberty: Act of Jan. 10, 1867: _Gen. Laws, Memorials, and Resolutions_ (1866-67), 45-52.

[535] _U. S. Stat. at Large_, XXXI, 408-10, 415.

Until very recently in California no clear restraint was put upon further wedlock after full separation. In 1897, following the example of Colorado, the legislature provided that in case of dissolution a new marriage may validly be contracted by either person only when the decree of divorce has been rendered at least one year before.[536] This amendment, it seems, was designed primarily to remedy an abuse arising in the uncertainties of California law--one often encouraged by careless legislation in the United States. Its purpose, says Judge Belcher in the opinion below cited, "was to correct a great public evil which had become too rife--to put a stop to marriages within the period allowed for the appeal from the decree of divorce, which might be and sometimes had been reversed, with great scandal to the parties who had married again." In the meantime this new and stringent provision has given occasion for still more serious evils originating in the inharmonious laws of adjacent states. The statutes of Nevada, whose borders are within easy reach of San Francisco, have not fixed a period within which divorced persons may not contract further wedlock. As a result, Reno has become the Gretna Green of California couples who there seek to evade the interdict of their own law. Whether a person who retains his domicile in California may contract a valid marriage in Nevada within less than one year after having been divorced in the former state is a question regarding which the decisions of the superior courts long contradicted one another.[537] But the supreme tribunal has just determined[538] that California in this regard is to take her place by the side of New York and Massachusetts, whose example Washington had already followed.[539] To overcome the effect of this decision, the legislature has enacted that if in any case the court "determines that a divorce ought to be granted an interlocutory judgment must be entered, declaring that the party in whose favor the court decides is entitled to a divorce." After one year has expired, on its own motion or the motion of either person, the court "may enter final judgment granting the divorce," unless action on appeal or on a motion for a new trial is pending. "In no case can a marriage of either of the parties during the life of the other be valid in this state, if contracted within one year after the entry of an interlocutory decree." But this legislation,[540] it is believed, will be declared unconstitutional by the supreme court.[541]

[536] "Sec. 61. A subsequent marriage contracted by any person during the life of a former husband or wife ... , with any person other than such former husband or wife, is illegal and void from the beginning unless:

"1. the former marriage has been annulled or dissolved; provided, that in case it be dissolved, the decree of divorce must have been rendered and made at least one year prior to such subsequent marriage."--Act of Feb. 25: _Stat. and Amend. to the Codes_ (1897), 34.

"Sec. 91. The effect of a judgment decreeing a divorce is to restore the parties to the state of unmarried persons."--Act of March 30, 1874: _Amendments to the Codes_ (1873-74), 189; also in DEERING, _Codes and Stat. of Cal._ (1886), II, 31; POMEROY, _Civil Code_ (1901), 44.

[537] In Abbie Rose Wood _v._ Estate of Joseph M. Wood, filed in the superior court of San Francisco, June 14, 1900, Judge Belcher decided that the marriage on Jan. 1, 1898, in Reno, Nev., of a person divorced in California, Aug. 19, 1897, the former husband still living, was not valid. He relies upon the words of nullity in the amendment of 1897; and the fact that the person went to another state solely for the purpose of getting married while still retaining her domicile in California. "Section 61, Civil Code, contains no penal clause, as stated; but it does contain words of nullity, and words which suspend, as to third persons, the operation of the decree ... ; and these cannot be avoided by merely invoking another jurisdiction for that purpose. The two sections (61 and 91, C. C.) are to be read together, and, so read, their interpretation and meaning are free from either uncertainty or ambiguity. The law of the domicile is invoked, and the law of the domicile controls. No other jurisdiction can relieve against it."--See _San Fran. Law Journal_ (July 2, 1900), 1.

In a case decided on Dec. 10, 1900, Judge Trout, of the superior court of San Francisco, takes the same position as Judge Belcher.

On the other hand, on Dec. 4, 1900, Judge Hebbard, of the same court, in Adler _v._ Adler, maintains the validity of a similar Reno marriage. He holds that the California law "is in restraint of marriage," since it fixes an arbitrary prohibitory period. "We may imagine the reason which induced the passage of the section, by an examination of the law of the State of Oregon upon the same subject. In that state there is no fixed prohibitory period, but the law is to the effect that, pending an appeal from a decree of divorce, if one be taken, and, if not, during the time in which it may be taken, the parties shall be incapable of contracting marriage with a third person. In California an appeal from a final judgment must be taken in six months; an appeal from an order granting or refusing a new trial in sixty days. The great majority of divorce cases go to judgment upon the default of the defendants, and in such cases there can be no appeal upon the merits of the cause. When no appeal can be taken, or when the time for appeal has gone by and none taken, why compel the parties in the case to abstain from matrimony for the remainder of the year thereafter? The proportion of divorce decrees appealed from is infinitely small, and therefore the prohibition in section 61 discriminates against the many, for the protection of the few; it is an arbitrary law." He relies upon Pearson _v._ Pearson, 51 _Cal._, 120 (1875), construing sec. 63 of the Civil Code to the effect that "all marriages contracted without this state, which would be valid by the laws of the country in which the same were contracted, are valid in this state."--_San Fran. Law Journal_ (July 16, 1900), 1.

[538] See the Estate of Wood, 137 _Cal._ (1902), 129 ff., where Reno marriages are held valid, three justices dissenting.

[539] In Willey _v._ Willey, 22 _Wash._ (Jan. 27, 1900), 115-21. The courts of Oregon have taken the opposite view, holding such marriages of residents of Oregon contracted in another state absolutely void under the statute: McLennan _v._ McLennan, 31 _Ore._ (1897), 480.

[540] Acts of March 2 and 16, 1903, _Stat. and Amend. to the Codes_, chaps. lxvii, clviii.

[541] It has already been so declared by Judge Rhodes in the superior court of Santa Clara county.

Expressly or by implication the divorced couple are excepted from the restraint, and permitted to rewed in Alaska, California, Colorado, Idaho, Kansas, Montana, New York, Oklahoma, Oregon, South Dakota, Vermont, and Washington. On the question whether, in the absence of statutory authority, such remarriage of the divorced persons comes within the restraint, the decisions of the courts are conflicting.[542]

[542] Compare Moore _v._ Moore, 8 ABB., _N. C._, 171-73; Colvin _v._ Colvin, 2 PAIGE, 385-87, denying the right of remarriage in such cases; with Moore _v._ Hegeman, 92 _N. Y._, 521-29, where the question is left undecided.

All of the twenty-six states under consideration have prescribed rules or conditions regarding the residence of the plaintiff in divorce suits. In nearly every instance a definite term of previous residence in the state, or in the state and in the county, of the action is fixed. This term varies from six months to three years, one year being the prevailing period. In the West the requirements in this regard are not in general so rigid as in some eastern and southern states; but during the past two decades encouraging progress has been made.

The law of New York governing residence has in the preceding subsection already been presented. A fixed term is not prescribed, except that in cases of partial divorce, when the marriage was solemnized outside the state, the persons must have "continued to be residents" of the state for at least one year, and the plaintiff must be resident at the time the action is commenced.[543] Delaware has not fixed a definite period of residence; but no divorce from the bond of matrimony will be decreed when the cause assigned therefor in the petition occurred out of the state and the "petitioner was a non-resident thereof at the time of its occurrence, unless for the same or like cause such divorce would be allowed by the laws of the state or country in which it is alleged to have occurred."[544] Delaware, like Maine and Massachusetts, has attempted to prevent clandestine divorce through evasion of the laws. "When any inhabitant ... shall go into any other jurisdiction to obtain a divorce for any cause occurring here; or for any cause which would not authorize a divorce by the laws of this state; a divorce so obtained shall be of no force or effect in this state."[545] The statute of New Jersey gives the court of chancery jurisdiction in actions for divorce when either the complainant or defendant is an inhabitant of the state "at the time of the injury, desertion, or neglect;" when the marriage took place within the state, and the complainant is an actual resident at the time the injury arose, and at the time of exhibiting the bill; when the adultery occurred within the state and either spouse is a resident thereof at the commencement of the suit; or when one of the persons, at the time of filing the bill and for the term of two years during which the desertion shall have continued, is a resident of the commonwealth.[546] When the cause is adultery committed outside the state, three years' previous residence on the part of either the complainant or the defendant is always required.[547]

[543] STOVER, _Code of Civil Proced._ (1892), II, 1640.

[544] _Rev. Stat. of Del._ (1893), 598; being the act of 1891: _Laws_, XIX, chap. 243, p. 480.

[545] _Rev. Stat. of Del._ (1893), 598. "In all other cases a divorce decreed in any other state or country" is valid: _ibid._, 598.

[546] _Gen. Stat. of N. J._ (1896), II, 1273; being act of March 7, 1889: _Pub. Laws_, 48. This law has existed in nearly the same form since 1820: see act of Feb. 16, 1820: _Laws of the State_ (1821), 667.

[547] _Gen. Stat. of N. J._ (1896), II, 1273; being act of May 11, 1886: _Pub. Laws_, 345.

A term of twelve months' previous residence was established by Indiana in 1831.[548] This was increased to two years in 1838, regardless of the place where the alleged cause of divorce occurred.[549] A period of one year was again adopted in 1849.[550] Three years later the law was still further relaxed by making _bona fide_ residence in the county of the action sufficient to warrant a petition.[551] In 1859 the one-year term was once more restored,[552] only to yield in 1873 to a _bona fide_ residence of two years in the state and six months in the county; and this provision is still in force.[553] The legislation of Michigan shows similar vicissitudes. The act of 1819 allows an absolute divorce for adultery when the parties are "inhabitants" of the territory, or when the marriage was solemnized therein, and the injured person is an actual resident at the time of the offense and at the time the complaint is filed.[554] In 1832 a residence of three years was fixed for the plaintiff in both full and partial divorce;[555] but in 1838 the term was reduced to two years, and to half that time in 1844.[556] The period of one year is still sanctioned when the cause of action occurs within the state. By the careful act of May 26, 1899, no decree of divorce will be granted in any case unless (1) the plaintiff has resided in the state for one year preceding; or (2) the marriage sought to be dissolved was solemnized in the state and the plaintiff has since resided therein to the time of the petition. Furthermore, in no case will a decree be granted unless (1) the defendant is domiciled in the state when the petition is filed; or (2) was so domiciled when the alleged cause for the action arose; or (3) when he voluntarily appears at the trial, or is brought in by publication, or has been personally served with process or notice. On the other hand, when the cause of action occurs outside the state, a divorce will not be allowed unless the complainant or the defendant shall have resided in the commonwealth for two years immediately before the filing of the petition. If the defendant is not domiciled in the state at the time of commencing the suit, or when the alleged cause arose, before a decree will be granted the complainant must prove that the parties have actually lived and cohabited together as husband and wife within the state, or that the complainant has there resided in good faith for the two preceding years.[557]

[548] _Rev. Laws of Ind._ (1831), 213.

[549] _Ibid._ (1838), 243.

[550] _Gen. Laws_ (1849), 62.

[551] _Rev. Stat._ (1852), 234: of "which _bona fide_ residence the affidavit of the petitioner shall be _prima facie_ evidence."

[552] _Laws of the State_ (1859), 108.

[553] Act of March 10: _Laws_ (1873), 109; same in _Rev. Stat._ (1896), I, sec. 1031.

[554] _Ter. Laws of Mich._, I, 495.

[555] _Ter. Laws of Mich._, III, 931.

[556] _Rev. Stat._ (1838), 337; _Acts_ (1844), 74.

[557] _Pub. Acts_ (1899), 326, 327. When the order for appearance is served outside the state, the law requires that the fact of service be proved by affidavit before a justice or notary whose legal character and signature must be attested by the certificate of a court of record. See the earlier act of 1895: _Pub. Acts_ (1895), 371; and _cf._ HOWELL, _Gen. Stat._, II, 1624; MILLER, _Comp. Laws_ (1899), III, 2657.

Since 1785 Pennsylvania has required that the plaintiff in a suit for absolute divorce must be a citizen of the state and a resident therein at least one whole year before the action is begun.[558] The one-year term is prescribed likewise in Ohio, except when the action is for alimony alone;[559] in Illinois since 1827, unless the offense or injury complained of was committed in the state, or while one or both of the persons resided there;[560] in Minnesota since 1851, except when the suit is on the ground of adultery committed while the plaintiff was a resident of the state;[561] in Wisconsin since 1838-39, except when the cause is adultery similarly committed, or when the marriage was solemnized in the state and the plaintiff resided there from the time of such marriage to the time of bringing suit, or when the wife is plaintiff and the husband has resided in the state for one year preceding the commencement of the action;[562] in Iowa since 1838, "except when the defendant is a resident of the state served by personal service;"[563] in Colorado since 1861, unless the application is made upon "grounds of adultery or extreme cruelty when the offence was committed within the state;"[564] in Kansas since 1855;[565] in Utah since 1878;[566] in Montana since 1865;[567] in Washington since 1854;[568] in Oregon since 1862;[569] in California since 1891;[570] in North Dakota since 1899;[571] and in Wyoming since 1901.[572] In Alaska by the federal law of 1903, the plaintiff must be an inhabitant of the district for two years before suit is brought; and the same term had already been prescribed for Hawaii.[573]

[558] _Cf._ the act of June 20: _Laws of Pa._ (1893), 471; also in PEPPER AND LEWIS, _Digest_ (1896), I, 1638, 1639; and the act of Sept. 19, 1785: _Laws of the Com. of Pa._ (1803), III, 105.

[559] BATES, _Ann. Stat. of Ohio_ (1897), II, 2805. The law of 1827 requires two years' residence on the part of the plaintiff: CHASE, _Stat._, III, 1581.

[560] _Cf._ act of June 1, 1827: _Rev. Code of Ill._ (1827), 182; HURD, _Rev. Stat. of Ill._ (1898), 632: being the same as _ibid._ (1845), 196.

[561] _Cf._ _Rev. Stat. of Minn._ (1851), 274; _Gen. Stat._ (1894), I, 1268, 1269.

[562] The development of the Wisconsin law of residence may be traced in _Stat. of the Ter._ (1838-39), 140; _Rev. Stat._ (1849), 395; _ibid._ (1858), 623-28 (in which the clause referring to the wife as plaintiff first appears); _Ann. Stat._ (1889), I, 1368.

[563] The petition for divorce "must state that the plaintiff has been for the last year a resident of the state, specifying the township and county in which he or she has resided, and the length of such residence therein after deducting all absences from the state; that it has been in good faith and not for the purpose of obtaining a divorce only"; and "in all cases it must be alleged that the application is made in good faith and for the purpose set forth in the petition."--_Ann. Code of Ia._ (1897), 1137; same in _Code_ (1873), 339. See also act of Dec. 29, 1838: _Laws_ (1838-39), 179, 180, first fixing the period of one year's previous residence.

[564] "Provided, further, that such suit shall only be brought in the county in which such plaintiff or defendant resides, or where such defendant last resided."--MILLS, _Ann. Stat. of Col._ (1897), III, 437, 438; being the act of 1893: _Laws_, 239. _Cf._ the original act in _Laws of Col._ (1861-62), 360, 361, fixing the one-year term.

[565] _Laws of Kan._ (1897), II, 273; being same as _Gen. Stat._ (1868), 757. _Cf._ original act of 1855: _Stat._ (1855), 311. In 1859 the term of residence was reduced to six months, but the one-year period was restored the next year: _Laws of Kan._ (1859), 385; _ibid._ (1860), 108. Now the petitioner must be a resident of the county of the action.

[566] See the preceding subsection.

[567] _Comp. Codes and Stat. of Mont._ (1895), 482. See _Acts_ (1864-65), 430.

[568] _Ann. Codes and Stat. of Wash._ (1897), II. 1596; _Stat._ (1854), 405-7. The term was reduced to three months in 1864, but restored to one year in 1866: _Stat._ (1864), 13; _Stat._ (1865-66), 89, 90.

[569] When the marriage was solemnized in the state, it is sufficient if the plaintiff be an inhabitant thereof at the commencement of the suit. If not solemnized in the state, both parties must be inhabitants at the commencement of the suit, and the plaintiff for one year before (act of 1862). The plaintiff must be an inhabitant of the state at the commencement of the suit and for one year before; "which residence shall be sufficient to give the court jurisdiction, without regard to the place where the marriage was solemnized, or the cause of suit arose" (act of 1865): _Codes and Gen. Laws_ (1902), I, 277. By the act of 1853, in force till 1862, the term of residence was fixed at six months: _Gen. Laws._ (1852-53), 49-51.

[570] _Stat. and Amend. to Codes of Cal._ (1891), 52. The plaintiff must be a resident of the state one year and of the county three months. Between 1851 and 1891 the term was six months: Act of March 25: _Stat. of Cal._ (1851), 186, 187.

[571] _Acts_ (1899, Feb. 3), 94: The plaintiff must have been a resident of the state in good faith for twelve months, and be a citizen of the United States or have declared his intention to become such citizen. By the earlier law, as at the close of the territorial period, the term of residence was ninety days: _Rev. Codes of N. D._ (1895), 614.

[572] _Laws of Wyo._ (1901), 4.

[573] _U. S. Stat. at Large_, XXXIII, 944. The period is two years in Hawaii: _ibid._, XXXI, 150.

Four states are less stringent in their requirements. In Nebraska, since 1856, petition will not be granted unless the plaintiff has resided in the state for six months, except when the marriage was solemnized in the state and the plaintiff has there dwelt since the marriage to the time when the suit is commenced.[574] The same term has been required in Idaho since 1864;[575] while in Nevada, since 1861, the plaintiff must have resided six months in the county where suit is brought, unless the action is begun "in the county in which the cause thereof shall have accrued, or in which the defendant shall reside, or be found, or in which the plaintiff shall reside if the latter be the county in which the parties last cohabited."[576] Until 1899, as in the territorial stage, South Dakota required only ninety days' _bona fide_ residence on the part of the plaintiff. In that year the term was increased to six months; but in no case will a divorce be granted without personal service within the state, or, when the defendant is non-resident, personal service and order of publication "until the plaintiff shall have a _bona fide_ residence in the state for one year" next before the granting of a decree.[577]

[574] _Comp. Stat. of Neb._ (1901), 577; _Laws_ (1856), 155.

[575] _Rev. Stat. of Idaho_ (1887), 305; _Laws_ (1867), 69. The law of residence took its present form in 1867: but the provision of 1864, _Laws_ (1863-64), 615, 616, is identical with that of Nevada quoted in the text.

[576] _Comp. Laws of Nev._ (1900), 115. _Cf._ _Laws_ (1861), 96, 97; and _Laws_ (1875), 63.

[577] _Stat. of S. D._ (1899), II, 1029; _Rev. Codes_ (1903), 602. The territorial law of 1883: LEVISSEE, _Ann. Codes of Ter. of Dak._ (1884), 751, requires a residence of ninety days.

The laws of every state in this group contain some provision requiring notice to the defendant when personal service cannot be had. Such notice is given as in equity suits in Illinois and Nebraska; as in ordinary civil actions in California,[578] Idaho, Montana, Oregon, Utah, Washington, Wisconsin,[579] and Wyoming; and in the remaining commonwealths special rules regarding publication, usually in the newspapers, are in force.[580]

[578] In California and Montana summons and publication in divorce suits are given under the general provisions for civil actions: POMEROY, _Codes and Stat.: Civil Proced._ (1901), secs. 410 ff.; _Codes and Stat. of Mont._ (1895), 782, 796, 797. This is, of course, not inconsistent with Sharon _v._ Sharon (1885), 67 _Cal._, 185, ruling that an action for divorce is a case in equity under the clause in the constitution conferring appellate jurisdiction on the supreme court.

[579] The statute of Wisconsin requires the proceedings to be as in "courts of record" so far as practicable: _Ann. Stat._ (1889), I, 1362.

[580] In New York, for instance, the order for publication must direct that the summons be published "in two newspapers, designated in the order as most likely to give notice to the defendant, for a specified time, which the judge deems reasonable, not less than once a week for six successive weeks;" and unless the judge is satisfied from affidavits presented that the defendant's residence is unknown, it must also require that copies of the summons, complaint, and order be mailed to him at a specified place: BIRDSEYE, _Rev. Stat._ (1896), I, 18. The laws of Ohio and Kansas are similar: BATES, _Ann. Rev. Stat. of Ohio_ (1897), II, 2805; _Laws of Kan._ (1897), II, 273. By the statute of Pennsylvania, if the adverse party is not found, the court may issue an alias subpoena, and trial may be set for a later term. If a second time personal service cannot be had, notice must be "published in one or more newspapers printed within or nearest to the said county for four weeks successively" prior to the first day of the next term: PEPPER AND LEWIS, _Digest_ (1896), I, 1642. Colorado has a careful provision. See also _Civil Laws of the Hawaiian Islands_ (1897), 716-18; and the new law of New Jersey: _Acts_ (1903), 122, 123.

The miscellaneous provisions regarding divorce and divorce actions are in character similar to those already mentioned for other states. In California, Hawaii, Illinois, Michigan, Montana, Nebraska, New Jersey, New York, North Dakota, Ohio, South Dakota, and Wyoming the legitimacy of the children of the marriage is expressly recognized in case of divorce. Trial by jury in the finding of facts is allowed in Illinois, Nevada, New York,[581] Pennsylvania, and Wisconsin; while in Washington it is expressly denied; and in Colorado the guilt or innocence of the defendant must be determined by the verdict in every case.[582] The statutes of Kansas, Nebraska, Ohio, Wisconsin, and Wyoming permit either consort to be a witness in the case; and by those of Illinois, Kansas, Minnesota, Nevada, Ohio, Oregon, Wisconsin, and Washington the court may authorize the woman to change her name. She is granted this privilege in Alaska only when not the person in fault. In several instances special provision is made for defending the action. According to the Indiana law, "when a petition for divorce remains undefended, it shall be the duty of the prosecuting attorney to appear and resist" the same.[583] In Colorado, when the defendant fails to appear, the court must appoint an attorney who shall secure a fair and impartial hearing of the case.[584] By the law of Oregon the state is constituted a party in such suits, and it is the duty of the district attorney, "so far as may be necessary to prevent fraud or collusion," to control the proceedings for the defense.[585] Washington has a similar law;[586] and in special cases the prosecuting attorney in Idaho and Michigan is likewise required to oppose the granting of a decree.[587] Soliciting divorce business by advertising or otherwise is sometimes prohibited under severe penalty, such being the case in California, Illinois, Indiana, Minnesota, Montana, New York, Ohio, and Washington.[588] Indiana has a unique enactment expressly declaring that a divorce legally granted in any other state shall have full effect in that commonwealth.[589] Everywhere due provision is made for alimony, care of the children, and the adjustment of property rights. There is great variation in matters of detail; but in general the laws of the middle and western states relating to these subjects are very similar to those of New England. For the purpose of the present chapter further notice may therefore be dispensed with. Only in Michigan,[590] Ohio, Illinois, and Indiana, it may be mentioned in conclusion, has any adequate provision been made for the collection and publication of divorce statistics.

[581] By _Laws_ (1899), 1471, 1472, on application of either party, when the assigned cause is adultery, a jury must be called; and in other cases it may be empaneled.

[582] MILLS, _Ann. Stat. of Col._ (1897), III, 438; _Ann. Codes and Stat. of Wash._ (1897), II, 1600.

[583] _Rev. Stat. of Ind._ (1896), I, sec. 1038. An emergency act of 1901 makes provision for counties of 100,000 inhabitants; that is, for Marion county, containing Indianapolis. Where no _bona fide_ counsel for the defendant is entered in the appearance docket, the prosecuting attorney is to enter his name therein, and to resist the petition on behalf of the state. Any attorney, other than the prosecuting attorney, appearing for the defendant, if so ordered by the court, must file a written authority executed by the defendant: _Laws_ (1901), chap. 151, pp. 336, 337. In substance this requirement as regards the prosecuting attorney is made general for the state by an act of 1903: _Laws_, 393, 394.

[584] MILLS, _Ann. Stat._, III, 438; _Laws_ (1893), 238, 239.

[585] _Codes and Gen. Stat._ (1892), I, 664 (act of Oct. 11, 1862); _Codes and Stat._ (1902), I, 456.

[586] _Ann. Codes and Stat._ (1897), II, 1600.

[587] This is the duty of the district attorney in Idaho, and of the county attorney in Utah, when the ground of the petition is the alleged insanity of the defendant: _Gen. Laws of Id._ (1895), 12; _Laws of Utah_ (1903), 39, 40; and of the prosecuting attorney in Michigan, when there are children under fourteen years of age whose interests require his intervention: HOWELL, _Gen. Stat._, III, 3605; MILLER, _Comp. Laws_ (1899), III, 2665.

[588] _Cal. Stat. and Amend. to the Codes_ (1891), 279; _ibid._ (1893), 48; _ibid._ (1900-1901), 444; _Rev. Stat. of Ill._ (1898), 633, 634; _Rev. Stat. of Ind._ (1896), I, sec. 2129; BATES, _Ann. Rev. Stat. of Ohio_ (1897), II, 3218; _Ann. Codes and Stat. of Wash._ (1897), II, 1987, 1988; _Gen. Laws of Minn._ (1901), 286. By _Laws of N. Y._ (1902), I, 536, this offense is made a misdemeanor. _Cf._ _Laws of Montana_ (1903), 146.

[589] _Rev. Stat._ (1896), I, 1049.

[590] Act of Feb. 11, 1897: _Pub. Acts of Mich._, 12; _ibid._ (1899), 69.