principal points were that the law declared marriage to be a civil
contract, all breaches or violations of which were proper subjects
for the judiciary alone. The courts alone could hear the testimony of
the parties and they alone could render final judgment and decree for
alimony and determine which of the parties should have the care and
custody of the minor children. Although sixteen divorces were granted
at this session, an act was passed at the succeeding session which
practically committed the granting of divorces to the courts, and the
practice of applying to the legislature was soon discontinued.
Pickering's position on the question, as brought out in his first
gubernatorial message to the legislature on December 17, 1862, was
as follows: "I should be recreant to the duty I owe to society, if I
failed to call your serious attention to the sad and immoral effects
growing out of the readiness with which our legislative assemblies
have heretofore annulled that most solemn contract of marriage.
Let me earnestly invoke you to stay the evils, which result from
the legislature granting divorces, thereby destroying the sacred
responsibilities and duties of husband and wife merely upon the
request, or petition, of one of the parties.
"Without intending to trespass upon your law making province, permit
me to suggest for your consideration the fact, that the present laws
declare marriage to be a civil contract; therefore all breaches or
violations of its conditions are proper subjects for the judiciary
alone, and not for legislative enactment on one side, or ex parte
statements.
"The law as it stands upon the statute books of the territory has
conferred full jurisdiction upon the courts, in all cases belonging to
divorces, which is the only tribunal that can deliberately hear and
examine all the witnesses on both sides of those unfortunate domestic
difficulties of the parties applying for a dissolution of the marriage
contract.
"The legislature seldom has the opportunity of hearing any witnesses,
even on the side of the complaining party, and never can have before
them all the witnesses connected with both parties, especially
necessary to the proper adjudication of these cases. It will also be
well to remember, that in the divorce cases the legislature cannot
decree or enter judgment for alimony, division of property belonging to
the married parties, nor legally decide whether the separate husband or
wife, shall lawfully continue the possession, care and control of their
children.
"The court alone can have full power to render final judgment and
decree of alimony, division of property and direct who shall have the
care and control of the minor children.
"Many of the legislatures of the states, for several years past, have
positively refused to grant divorces. Eminent lawyers are agreed in
the opinion that all divorces granted by the legislature are entirely
unconstitutional, and therefore null and void, for the reason that
no act of the legislature can destroy, annul, violate, or set aside
the said civil contract nor the sacred and religious bonds and mutual
obligations entered into by man and wife at the solemnization of
marriage. It is at all times a very serious and delicate matter for any
person or persons to interfere in any manner in the unhappy quarrels
and family difficulties of man and wife. There are few subjects brought
before the courts of our country requiring to be treated with more
deliberate care and caution than divorces.
"Whenever a legislative body takes an action in cases of divorces, it
is not improperly regarded as an infringement upon the legislative
provinces of the courts. For these reasons I trust your honorable body
will firmly refuse to interfere with the rights of husband and wife.
Applicants, seeking separation, should be directed to the courts of our
territory where they can receive all the relief and remedy for their
grievances which the laws of our country afford."
In spite of this protest that same session enacted sixteen such
private bills, and at the following session the governor renewed his
objections. In January, 1866, the legislature enacted a law declaring
marriage to be a civil contract which would throw the consideration of
divorce into the courts. In 1871 another divorce bill was passed but
this was the last and subsequent efforts to revive the practice failed.
The attempted constitution of 1878, which was drawn up at Walla Walla,
declared against such legislative divorces, as did the approved
constitution of 1889.
The causes of this dissatisfaction in the method of granting divorces
are apparent. The people realized that marriage is the institution at
the basis of our social existence. An undoubted reaction against the
laxity of the divorce laws was springing up, not only in Washington,
but throughout the United States. This action ultimately resulted
in two reforms. It diminished the grounds on which a divorce may be
granted and it extended the period necessary to establish a legal
residence. Today there is no state in which an action for divorce may
be brought without a preliminary residence of at least six months. The
drift of legislation in the last twenty years has been almost wholly
in the direction of greater restriction. In spite of this the national
ratio of divorce is 1:12.
Although most states have but a single provision in their constitution
regarding divorce, Washington has two. They are: Article II, Section
24. The legislature shall never authorize any lottery or grant
any divorce. Article IV, Section 6. The superior court shall have
jurisdiction of all matters of divorce and for the annulment of
marriage. These provisions have removed, beyond all doubt, the granting
of legislative divorces.
A brief survey of the laws at the present time reveal the following
information:
_Jurisdiction._
Jurisdiction shall lie in the district court in the county where the
petitioner resides.
The act of February 21, 1891 provides that divorces shall be granted by
the superior court.
_Residence._
The petitioner must have been a resident of the state for one year next
before the filing of the petitions. This is an amendment of the act of
January, 1864, which required only three months.
_Service of Process or Notice._
Legal notice shall be personal or by publication.
Like process shall be had as in all other civil suits.
By the laws of 1893 it is provided that when the defendant cannot be
found in the state, a copy of the summons and complaint shall be mailed
to him at his place of residence, but if the residence is not known,
service may be by publication. Publication must be once each week for
six consecutive weeks in a newspaper published in the county where the
action is brought or, if there be none there, in an adjoining county,
or if there be none there, in the capital of the state.
_Causes for Absolute Divorce._
1. When the consent to the marriage of the party applying for the
divorce was obtained by force or fraud and there has been no subsequent
voluntary cohabitation.
2. For adultery on the part of the wife or husband, when unforgiven,
and application is made within one year after it shall come to his or
her knowledge.
3. Impotency.
4. Abandonment for one year.
5. Cruel treatment of either party by the other.
6. Personal iniquities rendering life burdensome.
7. Habitual drunkenness of either party.
8. Neglect or refusal of the husband to make suitable provisions for
his family.
9. The imprisonment of either party in the penitentiary, if complaint
is filed during the term of such imprisonment.
10. Any other cause deemed by the court sufficient, when the court
shall be satisfied that the parties can no longer live together.
11. In the discretion of the court, in case of incurable, chronic mania
or dementia of either party, the same having existed for ten years or
more.
The above causes were in effect in 1887.
By an act approved Feb. 24, 1891, cause 6, as given above, was amended
so as to read as follows: "Personal indignities rendering life
burdensome."
_Limited Divorce._
There is no limited divorce in Washington.
_Special Provisions for Defence._
Whenever a petition for divorce remains undefended, it shall be the
duty of the prosecuting attorney to resist such petition, except where
the attorney for the petitioner is a partner of or keeps his office
with, such prosecuting attorney, in which case the court shall appoint
an attorney to resist the petition.
_Temporary Alimony._
During the pendency of an action for divorce, the court may make such
orders relative to the expenses of the suit as will insure to the wife
an efficient preparation of her case, and a fair and impartial trial
thereof.
_Permanent Alimony._
In granting a divorce the court shall make such disposition of the
property of the parties as shall appear just and equitable, having
regard to the respective merits of the parties, and to the condition in
which they will be left by such division and to the party through whom
the property was acquired, and to the burdens imposed upon it for the
benefit of the children.
_Refusal of Divorce._
No divorce shall be granted in case of adultery, if the offense has
been forgiven by the petitioner, or on the ground of force or fraud, if
there has been subsequent voluntary cohabitation of the parties.
In case of adultery the action must be commenced within one year after
petitioner shall have knowledge of the act.
_Answer or Cross-complaint._
The defendant may, in addition to the answer, file a cross complaint
for divorce, and the court may grant a divorce in favor of either party.
_Change of Name After Divorce._
In granting a divorce, the court may, for just and reasonable cause,
change the name of the wife, who shall thereafter be known and called
by such name as the court shall in its order or decree appoint.
_Trial by Jury._
Practice in civil actions govern all proceedings in the trial of
actions for divorce, except that trial by jury is dispensed with.
_No Divorce on Confession._
When the defendant does not answer or, answering, admits the
allegations in the petition, the court shall require proof before
granting the divorce.
_Custody of Children._
On granting a decree, the court shall make provision for the
guardianship, custody, support and education of the minor children of
the marriage.
Pending an action for divorce the court may make such orders for the
disposition of the children of the parties as may be deemed right and
proper.
_Remarriage._
When a divorce is granted, a full and complete dissolution of the
marriage as to both parties follows: Provided, That neither party
shall be capable of contracting marriage with a third person until the
period has expired within which an appeal may be taken, or until the
determination of such appeal, if taken. The act approved March 9, 1893
in addition, makes such a marriage unlawful under any circumstances
within six months, and requires that the judgment or decree must
expressly prohibit such a marriage within six months.
Thus we have a summary of past and present conditions. In conclusion,
a few statistics will clearly show whether or not the laws have
accomplished their purpose.
Divorces granted in Washington.
1867-86. 1887-1906.
996 16,215
Average annual divorces per 100,000 population.
1900 1890 1880 1870
184 190 75 88
Per 100,000 married population.
1900 1890
513 316
Rank according to average number of annual divorces per 100,000
population.
1900 1890 1880 1870
1. Wash. Colo. Colo. Wyom. & Ind. Terr.
2. Mont. Mont. Mont. ...
3. Colo. Wash. Utah Rhode Is.
4. Ind. Ore. Wyo. Wash.
11. Wash.
In city counties In other counties Excess of city rates
1900 1890 1900 1890 1900 1890
266 140 162 103 104 37
Number and cause of divorces granted from 1867-1906.
Desertion 6,446
Cruelty 4,026
Neglect to provide 3,087
Adultery 699
Drunkenness 674
Combinations of preceding causes 1,388
All other causes 891
Thus we have the most recent government statistics. However, a review
of conditions in King County during the last year will give us a more
accurate idea of conditions. The records show that almost 25 per cent
of the total number of cases filed in the superior court were divorce
cases. The figures show a total of 6,710 cases filed, of which 1,539
were divorce cases. The increase in the number of divorces over 1912 is
approximately ten per cent.
Of the total number of divorce cases filed decrees were granted in 986
cases, and nearly 200 cases are now pending. The majority of applicants
for divorce are wives, the larger number asking for divorce on the
grounds of cruelty. The ratio of marriage to divorce in this county for
1913 is 3.5:1.
Judges of the superior court, while ascribing different causes to the
increase of divorce, all deplore it. One judge holds that a change in
the laws would tend to decrease the number of divorces. Other judges
hold that divorce is a social matter that is entirely outside of the
particular form of law and arises from personal and local surroundings.
The total number of divorces, it is held, should not be taken as an
indication of local domestic trouble, for the reason that 20 per cent
or more come from British Columbia. Of the remainder a large number
arise in the cases of people who have arrived from the East during the
past two years.
The fact remains, however, that it is not easy to account for the wide
variation in the divorce rates in the different states. The results
are affected by a wide variety of influences: the composition of the
population as regards race or nationality; the proportion of immigrants
in the total population and the countries from which they came; the
relative strength of the prevailing religions and particularly the
strength of the Roman Catholic faith against divorce; the variation in
divorce laws and in the procedure and practice of the courts granting
divorces; the interstate migration of population, either for the
purpose of obtaining a divorce or for economic or other reasons not
connected with divorce--all these, and doubtless many more, are factors
which may affect the divorce rate.
The states with the highest ratio are generally those in the western
part of the country. The west is a progressive country. But this is
one path along which we would prefer to progress less rapidly. Let
us not, in our mad rush for wealth, honor and pleasure, forget the
religion of our fathers and the sacredness of the marriage bond.
Remember that marriage is the foundation of the state and divorce is
the torrent which is rushing madly forward in an ever-increasing effort
to undermine it. Let each one do his part to divert this ruthless enemy
to progress.
RALPH R. KNAPP.
DOCUMENTS
A NEW VANCOUVER JOURNAL
Vancouver was one of the greatest explorers who visited the shores of
Northwestern America. Any new document that can throw light on his work
is therefore important.
The known history of this present document is very brief. In 1907, the
Macmillan Company published Vancouver's Discovery of Puget Sound, by
Edmond S. Meany. The relatively few copies printed travelled widely
over the earth. Among the letters received by the author was one from
A. H. Turnbull of Wellington, New Zealand.
He said Vancouver's work was of great interest to the people in that
part of the world because of his explorations there. The armed tender
Chatham, consort of Vancouver's ship Discovery, had discovered and
named Chatham Island, which was later associated with New Zealand
in government. In his search for books bearing on explorations, Mr.
Turnbull had located in an old book stall in London the manuscript of
a journal kept by a member of the Chatham's crew. He purchased it and
placed it in his private library in Wellington.
Finding that part of the journal related to the Northwest coast of
America he had that portion carefully copied and it is from this copy
that the present publication is made, Mr. Turnbull entered "(sic)" in a
few doubtful places and these are allowed to stand. He also omitted a
portion descriptive of a tragedy in Hawaii.
This journal is by no means as full or as finished in style as that of
Vancouver, but it will certainly be cherished as a companion to the
larger work.
Probably one reason for the name of the writer being unknown is that it
was a government expedition and no private journals were permitted.
The present editor is responsible for the annotations.
EDMOND S. MEANY.
* * * * *
March, 1792.
_From the Sandwich Islands to the No. We. Coast of America._
After leaving Ooneehow we had the wind from the Northward and
Eastward, with which we stood to the N. W. close hauled. At daylight
Ooneehow[147] bore East 7 or 8 leagues, Atooi Eb N 1-2 N, and Tahouru
S E b S. As the morning advanced we got the wind from the N. Wrd.
and the Signal was made to steer NNE. The wind blew fresh in squalls
attended with rain all day and at night, and we lost sight of the
Discovery, in the morning she was perceived a considerable distance to
Leeward with only her head sails set, and we bore down to her, and as
we came nearer we judged from what we saw going forward on board her,
that she had sprung her Main Mast, indeed we could observe clearly
that they were fishing it. This disagreeable weather continued several
days, the wind chiefly from the Nd. & NbE. On the 23rd our Latitude:
was 24.49 Nd. and the Longe: 209° Et. We now began to feel a very
considerable change in the weather, and from the thin linen clothes
that we were used to wear at the Islands, we were obliged to change to
our warmest dresses. The Sandwich Island fowls though fed on their own
country food all died.
The 24th in the afternoon being calm Capt. B. went on board the
Discovery, and Mr. Paget[148] returned and dined on board the Chatham,
when we learnt that their Main Mast was not only sprung, as we
conjectured but that they had found the head of the Foremast also
sprung, and had carried away both the Fore & Main Top Gallant Yards
on the night of the 19th. In the evening we had the wind again from
the N Erd. which continued and with it continued also very gloomy
disagreeable weather. On the 27th our Lat: was at noon 24.21 N and
the Longe: 215.5 Et. Tack'd and stood to the N W. We kept tacking
occasionally, and on the 31st we were no further to the Nd. than the
Lat. of 28°.
The 1st of April being the Anniversary of our leaving England, double
allowance of Grog was served to the Ship's Company to commemorate the
day and drink the healths of their old friends at home. We made but a
very poor hand of working through the Trade Wind and from the 1st to
the 4th made scarce anything. We then got the breeze pretty fresh with
fair weather at N. E. and steered N. N. W. the Lat: 30.26 N. this fine
weather continued till the 6th when we were in Lat: of 33.59 N. and the
Longe: of 216.30 Et. It was not till the 8th in the Lat: of 36° N. that
we lost the N E trade, to carry it so far is uncommon; we then had it
calm, and two gentlemen from the Discovery who had been shooting some
marine Birds came on board. They had kill'd a very large bird call'd by
the sailors Mother Carey's Goose, it measured 7-1/2 feet from tip to
tip of the wings. They told us they had seen a duck fly past the Ship
the day before, which is somewhat surprising as we know of no land
very near us. This day and yesterday observed the surface of the water
to be covered with a species of what is call'd the Medusa Vanilla.[149]
The weather became now very thick & foggy with drizzling rain, and it
continued for the most part calm till the 10th. When a breeze began
to freshen from the W b S we made all sail steering E N E. In the
morning of the 11th it veer'd to S E b S where it made a stand with
fine pleasant weather. Our Lat: that day was 36.10 and the Longe:
221.8 Et. We had this fine weather till the 16th when the wind veer'd
to E S E blowing in hard squalls attended with rainy dirty weather,
that at night increased to a hard gale and brought us to close reef'd
Topsails. We wore occasionally, and our Lat: at Noon was 38.50 N.
The gale settled at S. E. increasing in volume, and in the course of
the night, we were oblig'd to hand the Topsails. Moderating a little
by the morning, we let out the reefs and stood to the E N E. At noon
the 17th the Lat: was 39.23 N and the Longe: 234.50 Et. The weather
was very thick and Hazy, and about 4 o'clock in the afternoon, the
Discovery who was two mile ahead of us made the Signal for seeing the
Land. At this time we had vast numbers of Shags, Divers, Ducks & other
Birds of the Seashore about us, but from the thickness of the weather
it was not till near 5 o'clock that we saw the Land, when the Coast
of New Albion[150] was seen bearing from N b E to E b S. not many
miles distant. The haze over the Land clearing up a little gave us
an opportunity of seeing it. It had a very pleasing appearance, high
and covered to the top with tall pines with here and there some rich
verdant lawns. We tack'd early and stood off and on during the night
and in the morning stretch'd in again for the shore. We had no wind
till towards noon when a fine breeze from S. S. E. sprung up and we
bore away along shore with all sail set. As we had now entered upon
our Station, and the survey of the Coast, we were obliged to haul off
at dark and spend the night in short boards, that we might take up the
Land in the morning where we left off the evening before. The 19th we
had a fine moderate Breeze at S. E. with which we run along shore. Our
Lat: at Noon 40.2 N & Long: 235.22 Et. It freshened in the evening
with rainy hazy weather and by midnight we had a very hard gale which
continued all the 21st. In the morning of the 22nd it fell calm with
thick, foggy unpleasant weather and it was not till the following day
that we were enabled to get in with the Land and run along shore. Our
weather was now clear and pleasant with the wind from the Sd: & S.
Eastd. At noon on the 24th our Lat: was 42.31 N and it falling calm
soon after, with a Current setting us fast on Shore we anchor'd per
Signal in 37 fm: in a deep Bay, the N Extreme of which is a remarkable
Cape, which Captn: Vancouver named Cape Orford[151], in honor of the
Earl of that name.
We presently found that this place was inhabited, for two Canoes
appear'd (the first on this Coast we had seen) one of which went to
the Discovery, the other came to us. In this one there were five men
who after making fast their canoe came on board with great confidence,
and did not shew much surprise on entering the Vessel. Though they
had brought nothing purposely to sell yet they were perfectly well
acquainted with bartering, and their Cloathing which was Deer Skins
with one or two Fox Skins, and a few Bows & Arrows that they had, they
readily sold for trifles, nor wou'd they part with anything till they
got what they conceived an equivalent. They were fond of metal of any
kind and Bits of Iron & Yellow Buttons they eagerly took. One of them
had a thin bit of old Iron fixed into a piece of wood as a knife. Some
of them had ornaments of Necklaces, composed of a small black berry
and shells, intermixed with small tubes of copper. Their Ears and the
Septum of the Nose were perforated and ornamented in the same manner.
They were perfectly naked except two of them that had deer skins
thrown loosely over their shoulders. Their colour was not easily to
be found out from the quantity of dirt and paint with which they were
besmeared, but were they clean I should suppose they are something of
an Olive colour. They had very bad teeth, their hair was black and grew
long behind, and their Language was the most uncouth I ever heard.
Their Bows were small and made from the Ewe Tree and their Arrows were
strait and even of about two feet and a half long, feathered at one
end and barbed and pointed with flint at the other. Some of them had
also Knives of Flint. Their canoes were extremely rude and unwieldy
and little calculated for any distant embarkation, they were about 17
feet in length, 4ft. 6in. in breadth at the Gunwales, and 3 feet deep,
roughly hewn out of one solid tree, flat bottom'd and square at each
end. After selling every little thing they had they took their leave.
This Canoe had no Sea Otter skins in her but the one that went to the
Discovery had a couple of small Cub Otter Skins.