LEGISLATION IN THE UNITED STATES, 1776-1903 388-497
I. The New England States 388-408
_a_) Solemnization 389-395
_b_) Forbidden Degrees: Void and Voidable Marriages 395-401
_c_) Certificate and Record 401-408
II. The Southern and Southwestern States 408-452
_a_) Solemnization 409-427
_b_) Forbidden Degrees: Void and Voidable Marriages 427-441
_c_) Certificate and Record 441-452
III. The Middle and the Western States 452-497
_a_) Solemnization 452-470
_b_) Forbidden Degrees: Void and Voidable Marriages 470-481
_c_) Certificate and Record 481-497
VOLUME THREE
PART III--_Continued_
CHAPTER XVII. A CENTURY AND A QUARTER OF DIVORCE
LEGISLATION IN THE UNITED STATES 3-160
I. The New England States 3-30
_a_) Jurisdiction: Causes and Kinds of Divorce 4-18
_b_) Remarriage, Residence, Notice, and Miscellaneous
Provisions 18-28
_c_) Alimony, Property, and Custody of Children 28-30
II. The Southern and Southwestern States 31-95
_a_) Legislative Divorce 31-50
_b_) Judicial Divorce: Jurisdiction, Kinds, and Causes 50-79
_c_) Remarriage, Residence, Notice, and Miscellaneous
Provisions 79-90
_d_) Alimony, Property, and Custody of Children 90-95
III. The Middle and the Western States 96-160
_a_) Legislative Divorce 96-101
_b_) Judicial Divorce: Jurisdiction, Kinds, and Causes 101-144
_c_) Remarriage, Residence, Notice, and Miscellaneous
Provisions 145-160
CHAPTER XVIII. PROBLEMS OF MARRIAGE AND THE FAMILY 161-259
I. The Function of Legislation 167-223
_a_) The Statutes and the Common-Law Marriage 170-185
_b_) Resulting Character of Matrimonial Legislation 185-203
_c_) Resulting Character of Divorce Legislation 203-223
II. The Function of Education 223-259
BIBLIOGRAPHICAL INDEX 263-402
I. Early History of Matrimonial Institutions 264-291
II. Matrimonial Institutions in England and under
Germanic and Canon Law 291-339
III. Matrimonial Institutions in the United States 339-355
_a_) Manuscripts 339-340
_b_) Books and Articles 340-355
IV. Problems of Marriage and the Family 355-396
V. Session Laws and Collected Statutes Used in Chapters
XVI-XVIII 396-402
CASE INDEX 405-411
SUBJECT INDEX 413-449
PART III
MATRIMONIAL INSTITUTIONS IN THE UNITED STATES
CONTINUED
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.