Both kinds of separation are provided for by the Nebraska law of

1856; and a marriage is then declared to be completely dissolved

without decree in case of conviction and imprisonment for life. The

district court of the county where the married persons or one of

them resides is empowered to grant absolute divorce on complaint of

the aggrieved for (1) adultery; (2) physical incompetency at the

time of the marriage; (3) sentence to imprisonment for three years

or more, no pardon effecting a restoration of conjugal rights; (4)

two years' wilful abandonment without good cause; (5) habitual

drunkenness. The same tribunal may decree either a limited or a full

divorce for (1) extreme cruelty; or (2) two years' utter desertion

by either spouse; and (3) in favor of the wife, when the husband,

being of sufficient ability, shall grossly or wantonly and cruelly

refuse or neglect to provide for her.[465] No essential change

appears in the statutes until 1875, when imprisonment for life was

made a sixth ground of absolute divorce;[466] and so the law of

Nebraska remains at the present hour.[467]

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

[466] Act of Feb. 19: _Laws_ (1875), 80. _Cf._ _Gen. Stat. of

Neb._ (1873), 344-51; and _Stat. of Neb._, in force Aug. 1,

1867, 128-35, where the causes approved in 1856 appear without

essential change.

[467] _Compiled Stat._ (1901), 577. The law regarding

jurisdiction is the same as in 1856.

Separation from bed and board has at no time been authorized by

the laws of Colorado. The district courts have jurisdiction. Full

divorce may now be granted in favor of the aggrieved on eight

grounds; and in this regard there have been few changes since

the first statute of 1861. The present causes are (1) impotence

continuing from the time of the marriage or originating thereafter

in consequence of immoral or criminal conduct; (2) bigamous

contract; (3) adultery; (4) one years' wilful desertion and absence

without reasonable cause (5) extreme or repeated acts of cruelty,

consisting as well in the infliction of mental suffering as of

bodily violence; (6) failure on the part of the husband, being in

good bodily health, to make reasonable provision for his family for

the space of one year; (7) habitual drunkenness of either spouse for

the same period; (8) conviction of felony.[468]

[468] Act of April 3, 1893: _Laws of Col._, 236, 237; also in

MILLS, _Ann. Stat._ (1897), III, 434. The sixth cause was added

in 1881. At the same time the term of habitual drunkenness was

reduced to one year, instead of two years, as by the law of

1861; while desertion and departure from the territory "without

intention of returning," until then a ground for divorce when

committed by the husband, was made a ground when committed by

either party: _Laws of Col._ (1881), 112; also in _Gen. Stat._

(1883), 397 ff. The first cause, in its present form, arose in

_Laws of Col._ (1885), 189, and it differs somewhat from the

original provision in _ibid._ (1861-62), 360.

Since the original statute of 1870, in Wyoming, a bigamous contract

or a marriage where the persons are related within the forbidden

degrees, or where either is insane or an idiot, is void without

judicial decree.[469] In that state separation from bed and board

has never been sanctioned. Under the existing law, as it has stood

since 1882, absolute divorce is allowed either person when aggrieved

for (1) adultery; (2) physical incompetence continuing from the

time of the marriage; (3) conviction of a felony and imprisonment

therefor in any prison, no subsequent pardon effecting a restitution

of conjugal rights; (4) wilful desertion for one year; (5) when

either husband or wife has become a habitual drunkard; (6) extreme

cruelty; (7) neglect of the husband for the period of one year to

provide the common necessaries of life, unless such neglect is

the result of poverty which he could not have avoided by ordinary

industry; (8) indignities rendering the condition of either spouse

intolerable; (9) conduct on the part of the husband constituting

him a vagrant within the meaning of the law; (10) when before

the marriage or its solemnization either person shall have been

convicted of a felony or infamous crime in any state, territory, or

count[r]y without knowledge of the fact by the other at the time of

the marriage; (11) when the intended wife at the time of contracting

the marriage or its solemnization is pregnant by any man other than

her intended husband, and without the latter's knowledge at the time

of the solemnization.

[469] Act in force Jan. 1, 1870: _Laws_ (1869), 274; VAN ORSDEL

AND CHATTERTON, _Rev. Stat._ (1899), 794.

Although there is no limited divorce in Wyoming, the law in certain

cases allows separate alimony to be granted to the wife without a

formal decree of separation.[470]

[470] Act of March 8: _Laws_ (1882), 73-81; _Rev. Stat._ (1887),

sec. 1571, pp. 419-24; also VAN ORSDEL AND CHATTERTON, _Rev.

Stat._ (1899), 794-800. The first six of the causes above

enumerated were introduced by the act which came into force

Jan. 1, 1870: _Laws_ (1869), 274-81; but then under the third

head, conviction and imprisonment for three years or more were

necessary to constitute a ground; and by the sixth cause it was

required that one of the parties should be "repeatedly guilty of

such unhuman treatment as shall endanger the life of the other."

The remaining five causes first appeared in 1882.

The legislation of Utah begins in 1852 with an act so faulty that

its consequences have become notorious in the divorce annals of

the United States. A vicious residence clause, coupled with a

loose requirement regarding notice and an "omnibus" provision

among the enumerated grounds of complaint, became in effect a

standing temptation to clandestine divorce seekers from outside the

territory. It is formally declared that the court of probate of the

county of the plaintiff shall have jurisdiction in all petitions,

and these are to be made in writing upon oath or affirmation

setting forth the grounds of action. "If the court is satisfied,"

continues the statute, "that the person so applying is a resident

of the Territory, or wishes to become one; and that the application

is made in sincerity and of" the plaintiff's "own free will and

choice, and for the purpose set forth in the petition; then the

court may decree a divorce from the bonds of matrimony" against the

defendant "for any of the following causes, to wit": (1) impotence

at the time of the marriage; (2) adultery; (3) wilful desertion

or absence without reasonable cause for more than one year; (4)

habitual drunkenness subsequent to the marriage; (5) inhuman

treatment endangering life; (6) "when it shall be made to appear

to the satisfaction and conviction of the court, that the parties

cannot live in peace and union together, and that their welfare

requires a separation." Nevertheless, the courts are encouraged

to adopt a cautious and conservative policy. They are allowed to

defer "their decree of divorce, when the same is applied for, to

any specified time, not exceeding one year, when it appears" that a

compromise may be made; and "during the time of such deference ... ,

the bonds and engagements of matrimony may not be violated by the

parties." Furthermore, the court is empowered to punish by fine or

imprisonment or both any person "who shall stir up unwarrantable

litigation between husband and wife, or seek to bring about a

separation between them."

This statute was doubtless made in good faith. For, although it

remained in force without change for a quarter of a century, it does

not appear that the Latter Day Saints showed any strong tendency

to take advantage of its glaring defects. But it is not surprising

that evil should come of it. The petitioner in a divorce suit

need not be a "_bona fide_ resident of the territory. The formal

expression of an intention to become a resident was all that was

required. The plea of a citizen of any part of the United States

that he intended to become a citizen of Utah was entertained equally

with that of a regularly domiciled resident."[471] Besides, under

the "blanket" provision anything might be alleged in the petition

as a ground for action. The natural result was that certain sharp

lawyers in eastern cities seized the opportunity to promote

clandestine divorce on a large scale. Through their skilful plans

and the connivance of local judges, the courts of several counties

were converted into veritable "divorce bureaus," so that between

1875 and 1877 there was a surprising increase in the annual crop

of divorce decrees. Accordingly, in 1878 the assembly passed a

statute which effectually put an end to this anomalous state of

affairs. One year's _bona fide_ residence was now required; a

decree was forbidden in case of default of the defendant except on

legal testimony; better provisions for notice were made; and the

"omnibus" clause was abandoned. By this act, separation from bed

and board is not provided for; but an absolute divorce, in favor

of the aggrieved, may be granted for (1) impotence at the time of

marriage; (2) adultery; (3) wilful desertion for more than one year;

(4) wilful neglect of the husband to provide for the wife the common

necessaries of life; (5) habitual drunkenness; (6) conviction of

felony; (7) cruel treatment, to the extent of causing great bodily

injury or great mental distress.[472] To these grounds in 1903 was

added (8) permanent insanity, when the defendant has been duly

declared insane five years before.[473] Furthermore, by an act of

1896 separate maintenance without a decree of divorce is allowed the

wife for desertion by the husband or when, without her fault, she is

living separate from him.[474]

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

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

Utah_ (1898), 333, 334.

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

[474] _Laws_ (1896), 111.

By an act of 1853 the legislature of Oregon Territory allows divorce

petitions presented under oath to be determined by the district

court of the county in which the cause occurs, or in which the

defendant resides or is found, or in which the plaintiff resides,

if in this last case it be either the county in which the parties

last cohabited or that in which the plaintiff has resided for six

months next preceding the action. Absolute divorce in favor of the

aggrieved is permitted on ten grounds. These are (1) impotence

continuing since marriage; (2) adultery committed since marriage

and remaining unforgiven; (3) bigamous contract; (4) compulsion or

gross fraud in procuring the marriage, if a rescission be sought in

a reasonable time after removal of the restraint or discovery of

the fraud; (5) wilful desertion for two years without reasonable

cause; (6) conviction of felony or infamous crime; (7) habitual

gross drunkenness contracted since marriage; (8) harsh and cruel

treatment; (9) personal indignities rendering life burdensome; (10)

six months' voluntary neglect of the husband to provide the wife

with a home and the common necessaries of life.[475] This statute

was, however, of short duration. In 1854 the third and fourth

causes were dropped; bigamous contracts and those entered into

through compulsion or fraud being now properly treated as grounds

for annulment of void or voidable marriages. The remaining eight

causes recognized in 1853 were retained, except that the term of

wilful desertion was reduced to one year; and a period of one year

was likewise fixed in case of voluntary neglect to provide.[476]

Eight years later neglect to provide ceased to be a legal ground

of complaint. At the same time it was enacted that "habitual

gross drunkenness" to constitute a cause must exist for two years

immediately before the commencement of the suit; and the period of

wilful desertion was extended to three years.[477]

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

[476] Act of Jan. 17, 1854: _Stat. of Ore._ (1853-54), 494-97.

_Cf._ also the same, _ibid._ (1854-55), 536-41.

[477] Act of Oct. 11, 1862: _Laws_, secs. 485 ff.; and the

same in DEADY AND LANE, _Organic and Other Gen. Laws of Ore.,

1843-1872_ (1874), 208-12.

The law governing the grounds of action, as it still exists in

Oregon, took its present form in 1887; and, with the exception

of the one clause omitted in 1862, it is practically the same as

it was established in 1854. Separation from bed and board is not

recognized. The circuit courts, sitting at least twice a year in

each county, have jurisdiction. A full divorce may be obtained on

petition of the aggrieved for (1) impotence; (2) adultery; (3)

conviction of felony; (4) habitual gross drunkenness contracted

since marriage and continuing for one year prior to the commencement

of the suit; (5) wilful desertion for the period of one year; (6)

cruel and inhuman treatment or personal indignities rendering life

burdensome.[478]

[478] Act of Feb. 27: _Laws_ (1887), 52, 53; same in _Codes and

Stat. of Ore._ (1902), I, 275. On cruelty as a cause see Morris

_v._ Morris, 73 _Am. Dec._, 619-31.

The divorce laws of Washington have been remarkably free from

violent changes. The current of legislation has run smoothly

along. Separation from bed and board has never been provided for;

but eight causes of absolute divorce were recognized by the first

territorial act on the subject in 1854. These are (1) force or

fraud in procuring the marriage, provided there be no subsequent

voluntary cohabitation; (2) adultery unforgiven, if application be

made within one year after knowledge of the offense; (3) impotence;

(4) abandonment for one year; (5) cruel treatment; (6) habitual

drunkenness; (7) neglect or refusal of the husband to make suitable

provision for his family; (8) imprisonment in the penitentiary,

if complaint be filed during the term of such confinement.[479]

In 1860 was added a new ground in the form of an "omnibus"

provision. A divorce was then permitted on application of either

spouse (9) "for any other cause deemed by the court sufficient, or

when the court shall be satisfied that the parties can no longer

live together."[480] Thus the law remained without change for

twenty-five years; but in 1885 it was provided (10) that in "case

of incurable, chronic mania or dementia of either party, having

existed for ten years or more, the court may in its discretion

grant a divorce."[481] Finally in 1891 the list of grounds for full

dissolution of wedlock sanctioned by the present code of Washington

was completed. A full divorce is now allowed, in modification of

the fifth cause above enumerated, (11) for "personal indignities

rendering life burdensome."[482] Originally the district courts were

vested with jurisdiction, but since 1889 the superior courts in

the separate counties have had authority in all cases of divorce,

alimony, and annulment.[483]

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

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

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

[482] Act of Feb. 24: _Laws_ (1891), 42; also in _Ann. Codes and

Stat. of Wash._ (1897), II, 1595-1600.

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

In 1851, at the second session of the state legislature, California

granted the district courts "within their respective districts"

jurisdiction in divorce questions. Nine causes of "divorces from bed

and board, or from the bonds of matrimony," were then recognized.

But in 1874 three of these--natural impotence, force or fraud, and

the marriage of a female under the age of fourteen years without

consent of parent or guardian or without ratification by her

after reaching that age--were dropped, and thereafter they were

rightly treated as grounds for annulment of voidable contracts. The

remaining six causes were then re-enacted, with some changes in the

prescribed conditions, but only as grounds of absolute divorce. The

statute of 1874 is still in force, full dissolution of wedlock,

but not separation from bed and board, being sanctioned for (1)

adultery; (2) extreme cruelty; (3) wilful desertion; (4) wilful

neglect; (5) habitual intemperance; (6) conviction of felony.

After this formal enumeration of the grounds of petition, the

first code of California carefully defines the terms employed and

prescribes the conditions under which the law shall take effect.

Thus "wilful desertion, wilful neglect, or habitual intemperance

must continue for one year before either is a ground for divorce."

By the original act of 1851, it may be noted, a period of three

years was prescribed for both wilful desertion and wilful neglect to

provide. In 1853, however, the term of wilful desertion was reduced

to two years; and the same time was fixed for wilful neglect in

1870. A period during which habitual intemperance must exist to

constitute a cause of divorce was not mentioned until the statute

of 1874, by which, in this case as well as in the two others above

named, the one-year term was required. By the existing code extreme

cruelty is defined as the "infliction of grievous bodily injury or

grievous mental suffering."[484] "Wilful desertion is the voluntary

separation of one of the married parties from the other with the

intent to desert." But when one person is induced by the stratagem

or fraud of the other "to leave the family dwelling-place, or to

be absent, and during such absence the offending party departs

with intent to desert the other, it is desertion by the party

committing the stratagem or fraud, and not by the other." In like

manner "departure or absence of one party from the dwelling-place,

caused by cruelty or by threats of bodily harm from which danger

would be reasonably apprehended from the other, is not desertion by

the absent party but it is desertion by the other." Separation by

consent, with or without the understanding that one of the married

persons will apply for a divorce, is not desertion. Moreover,

"absence or separation, proper in itself, becomes desertion

whenever the intent to desert is fixed during such absence or

separation."[485] Wilful neglect is defined as the neglect of the

husband to provide for his wife the common necessaries of life,

he having the ability to do so; or his failure to provide as the

result of "idleness, profligacy, or dissipation."[486] Finally,

habitual intemperance is described as "that degree of intemperance

from the use of intoxicating drinks which disqualifies the person a

great portion of the time from properly attending to business, or

which would reasonably inflict a cause of great mental anguish" upon

the innocent person.[487] In like spirit the reasons for denying a

decree are minutely specified by the law. Original jurisdiction in

all questions of divorce and annulment of marriage is now vested

in the superior courts in their respective counties or other

districts.[488]

[484] On cruelty see Powelson _v._ Powelson, 22 _Cal._, 358;

Morris _v._ Morris, 14 _Cal._, 76; Kelly _v._ Kelly, 1 _West

Coast Rep._, 143; Eidenmuller _v._ Eidenmuller, 37 _Cal._, 394;

Johnson _v._ Johnson, 14 _Cal._, 459; Pierce _v._ Pierce, 15 _Am.

Dec._, 210, note. In general Poore _v._ Poore, 29 _Am. Dec._, 664.

[485] Sec. 96 of the "Civil Code" also declares that "persistent

refusal to have reasonable matrimonial intercourse as husband

and wife, when health or physical condition does not make such

refusal reasonably necessary, or the refusal of either party to

dwell in the same house with the other party, when there is no

just cause for such refusal, is desertion."--DEERING, _Codes and

Stat._ (1886), II, 34; POMEROY, _Civil Code_ (1901), 48.

On desertion see especially Hardenberg _v._ Hardenberg, 14

_Cal._, 654; Benkert _v._ Benkert, 32 _Cal._, 467; Morrison _v._

Morrison, 20 _Cal._, 431; Christie _v._ Christie, 53 _Cal._, 26;

also Stein _v._ Stein, 5 _Col._, 55; Pilgrim _v._ Pilgrim, 57

_Iowa_, 370.

[486] For interpretation of the law regarding neglect to provide

see Devoe _v._ Devoe, 51 _Cal._, 543; Washburn _v._ Washburn, 9

_Cal._, 475; Rycraft _v._ Rycraft, 42 _Cal._, 444.

[487] On habitual intemperance consult Mahone _v._ Mahone, 19

_Cal._, 626, 629; Haskell _v._ Haskell, 54 _Cal._, 262.

[488] DEERING, _Codes and Stat. of Cal._ (1886), III, 31. The

development of the law of California regarding divorce, as given

in the text, may be traced in _Stat._ (1851), 186, 187; _ibid._

(1853), 70; _Comp. Laws_ (1853), 371, 372; act of March 12,

1870: in _Stat._ (1869-70), 291; act of March 30, 1874: in _Acts

Amendatory of the Codes_, 181-91; POMEROY, _Civil Code_ (1901),

40-62.

The California codes and decisions, as is well understood, have

been freely adopted or followed by a number of western states.

This is especially true regarding divorce legislation. The causes

and conditions of action recognized by California law have often

been accepted outright.[489] Such, for example, is the case in

Montana. By the code of 1895 the same six causes sanctioned by the

law of California since 1874 are recognized; while the prescribed

definitions, already in part summarized from that law, are almost

exactly reproduced. The grounds for dissolution of wedlock are

identical, except in their phraseology, with those authorized by the

original Montana act of 1865, save that in addition impotence and

bigamous contract were then enumerated among the legal causes of

divorce. There is no separation from bed and board in Montana; but

the wife may be allowed separate maintenance, although a decree of

divorce is denied. Since 1865 the respective district courts, on

the chancery side, have had jurisdiction in absolute divorce and in

all questions of alimony and annulment of voidable contracts.[490]

[489] For some account of the influence of the California Codes

see HEPBURN, _Hist. Dev. of Code Pleading in America and Eng._

(Cincinnati, 1897), especially 93 ff., 104 ff., 160.

[490] Compare the act of Feb. 7, 1865: in _Acts_ (1864-65), 430,

431; and _Comp. Codes and Stat. of Mont._ (1895), 478-80.

What has just been said of Montana may be repeated for Idaho, where

the California system was adopted in 1887.[491] By an act of 1895,

however, incurable insanity was admitted as a seventh cause of full

divorce.[492] In this case, as in all the others since 1864, the

district court in the county of the plaintiff has jurisdiction.

Earlier the laws relating to the causes were somewhat less closely

patterned upon the California statutes. The act of 1864 allows a

full divorce for (1) impotence at the time of the marriage; (2)

adultery committed since marriage and remaining unforgiven; (3)

wilful desertion for two years; (4) conviction of felony or infamous

crime; (5) habitual gross drunkenness, contracted since marriage,

incapacitating the offender from contributing his or her share to

the support of the family; (6) extreme cruelty; (7) neglect of the

husband for two years to provide the common necessaries of life,

unless such neglect is the result of poverty which could not be

avoided by ordinary industry.[493] Three years later the California

law, as it then stood, allowing nine causes of full divorce, was

adopted, except that the terms of habitual intemperance and wilful

neglect were each fixed at two years, and a period of one year was

made sufficient for wilful desertion. It should also be noted that

this Idaho statute, unlike the contemporary law of California, made

no provision for partial divorce.[494] It was superseded in 1875 by

a new act[495] which is identical in its provision regarding the

grounds of action with that of 1867; and no further change was made

until the present California plan was sanctioned in 1887.

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

[492] But a divorce is not allowed, under this provision, unless

the insane person shall have been regularly and duly confined in

an insane asylum of the state for at least six years immediately

before the action: act of Feb. 4: _Gen. Laws_ (1895), 11, 12.

By an act of Feb. 14: _Gen. Laws_ (1899), 232, 233, were added

the words, "nor unless it shall appear to the court that such

insanity is permanent and incurable;" and now it is sufficient

if the previous confinement has been in an asylum "of a sister

state," provided the plaintiff has been an actual resident for

one year: _ibid._, (1903), 332, 333.

[493] Act of Jan. 16, 1864: in _Laws of the Ter. of Idaho_

(1863-64), 615-18.

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

[495] Act of Jan. 13, 1875: _Comp. and Rev. Laws of Idaho_

(1875), 639-41.

The experience of the Dakotas has been very similar to that of

Idaho and Montana, so far as the final results are concerned;

but the early territorial legislation was often clumsy in form,

vicious in character, and subject to frequent and violent changes.

The original act of 1864 grants the several district courts

jurisdiction in petitions for absolute dissolution of marriage

on suit brought in the county where the persons or one of them

resides, for (1) adultery; (2) impotence; (3) imprisonment in a

penitentiary subsequently to the marriage, no pardon effecting a

restoration of conjugal rights; (4) cruel and inhuman treatment,

"whether practised by using personal violence, or by any other

means"; (5) habitual drunkenness for one year next before filing

the complaint; (6) "when it shall be made fully to appear that

from any other reason or cause existing, the parties cannot live

in peace and happiness together, and that their welfare requires a

separation."[496] Separation from bed and board is not contemplated

by the law of 1864; but in 1866 a new statute appears by which both

kinds of divorce are provided for. A full divorce is permitted

only on the scriptural ground; but a partial divorce "for life or

for a limited time" may be decreed in favor of the aggrieved for

(1) cruel treatment; (2) conduct rendering cohabitation unsafe or

improper; (3) abandonment, accompanied by refusal to fulfil the

matrimonial obligations sanctioned by the statute. If in any case

a decree of separation be denied, the court may provide for the

separate maintenance of the wife and children by the husband or out

of his property.[497] The very next year this act was replaced by

another which allows the aggrieved spouse absolute divorce for (1)

bigamous contract; (2) wilful absence for five years; (3) adultery;

(4) impotency; (5) pregnancy of the wife at the time of the marriage

by a man other than the husband without the latter's knowledge;

(6) extreme cruelty; (7) habitual drunkenness; (8) imprisonment in

a penitentiary anywhere in the United States for violation of the

criminal laws;[498] (9) whenever it shall be made to appear that the

husband or wife of the applicant "has obtained a decree of divorce

in any of the courts of any other territory or state, by virtue of

which the party who shall have obtained such decree shall have been

released from the obligation of the marriage contract, while the

same remains binding upon the other party." Limited divorce is not

mentioned by this statute; but, in place of it, a wife may obtain

separate alimony for (1) the husband's adultery; (2) his gross

neglect of duty; (3) abandonment by him without good cause; (4)

where there is a separation in consequence of his ill-treatment;

(5) his habitual drunkenness; or (6) his confinement in any prison

in the country, or for any crime warranting such punishment in the

territory.[499]

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

[497] Act of Jan. 12, 1866: _Laws, Memorials, and Resolutions_

(1865-66), 13-16.

[498] If for a crime of the same grade as warrants such

imprisonment in the territory, and if application be made during

the term of confinement.

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

Only four years elapsed before the restless lawmaker was again at

work. By an act of 1871 a divorce from bed and board or from the

bonds of matrimony may be granted (1) for impotence at the time of

marriage; (2) "when the female at the time of the alleged marriage

was under the age of fourteen years, and the alleged marriage was

without the consent of her parents, or guardians, or other persons

having the legal custody or charge of her person; and when such

marriage was not voluntarily ratified on her part" after the

attainment of that age; (3) for adultery; (4) for extreme cruelty

by the infliction of grievous bodily or mental suffering; (5) for

habitual intemperance; (6) for two years' wilful desertion; (7) for

having the ability to provide and failure so to do on account of

idleness, profligacy, or dissipation; (8) "when from threatening

words or acts, the weaker party feels in danger of bodily injury;"

(9) when the consent was obtained by "force, fraud, intimidation,

deception, or influence of stronger minds;" (10) for conviction of

felony after marriage.[500] Here matters rested until 1877, when

the California system, including the six causes and the careful

definitions of the code, was adopted.[501] This plan without change

is retained in the existing laws of South Dakota;[502] as also in

those of North Dakota, except that between 1899 and 1901, following

the lead of Idaho, incurable insanity for two years was admitted

as a seventh ground of absolute divorce.[503] In neither of these

states is partial divorce recognized. The district courts in North

Dakota still have original jurisdiction; while in South Dakota

authority is vested in the circuit courts within the respective

circuits or their subdivisions.[504]

[500] Act of Jan. 13, 1871: in _Gen. Laws_ (1870-71), 414. In the

same volume, curiously enough, the civil code of Jan. 12, 1866,

including the divorce law of that year, as given in the text, is

re-enacted; and so the act of Jan. 10, 1867, is entirely ignored.

But the early legislation of Dakota is exceptionally bungling and

confusing.

[501] _Rev. Codes of the Ter. of Dak._ (1877), 215, 216; also

in LEVISSEE, _Ann. Codes_ (1883), II, 747-52. By the code of

1877 the term of wilful desertion, wilful neglect, and habitual

intemperance was fixed at two years; but the one-year period was

substituted in 1881: Act of March 1, _Laws_ (1881), 66.

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

598-603.

[503] Act of March 6: _Acts_ (1899), 95; but insanity as a

ground is omitted in _Laws_ (1901), 81, 82. There is no partial

divorce in North Dakota; but, though a decree be denied, the

court may provide for the maintenance of the wife and children

by the husband: _Rev. Codes_ (1895), 614. _Cf._ McFarland _v._

McFarland, 2 _N. W. Rep._, 269; Ross _v._ Ross, 10 _N. W. Rep._,

193.

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

(1899), II, 1489; I, 267.

Nevada has likewise closely followed the example of California.

Separation from bed and board has at no time been provided

for. Bigamous marriages and those within the forbidden degrees

of consanguinity are void without decree or other legal

proceedings.[505] But since 1875, with one exception, the grounds of

absolute divorce have been practically the same as those prescribed

by the California code, although they are differently expressed, and

there are not the same minute provisions regarding the application

of the law and the conditions of action. On complaint of the

aggrieved the courts are now authorized to dissolve the bonds of

wedlock for (1) impotence at the time of the marriage continuing

to the time of divorce; (2) adultery since marriage, remaining

unforgiven; (3) wilful desertion for one year; (4) conviction of

felony or infamous crime; (5) habitual gross drunkenness, contracted

since marriage and incapacitating the offender from contributing his

or her share toward the support of the family; (6) extreme cruelty;

(7) neglect of the husband for the period of one year to provide

the common necessaries of life, unless such neglect is the result

of poverty which could not have been avoided by ordinary industry.

Thus the laws of Nevada regarding the causes of divorce have been

remarkably free from change; for the statute of 1875 in this regard

is identical with the original act of 1861, except that by the

latter the terms of wilful desertion and wilful neglect to provide

are each fixed at two years.[506]

[505] Since 1861 these marriages have thus been void without

judicial proceedings; while those below the age of consent, or

when there was want of understanding, or when obtained by fraud

with no subsequent voluntary cohabitation, are void from the

time a decree of nullity is pronounced. But a marriage shall in

no case be adjudged a nullity, on the ground of being under age

of consent, if the parties cohabited freely after reaching that

age; nor the marriage of an insane person, if there be similar

cohabitation after restoration to reason: act of March 28: _Laws_

(1861), 96, 97; same in _Comp. Laws_ (1900), 115.

[506] _Cf._ the act of Nov. 28: _Laws_ (1861), 96-99; that of

Feb. 15: _Laws_ (1875), 63; and _Comp. Laws_ (1900), 115-18.

Partial divorce is not recognized; but the common law, as

administered by the ecclesiastical courts, is a part of the law

of Nevada, so far as not superseded by statute: Wuest _v._ Wuest,

17 _Nev._, 216. For the interpretation of extreme cruelty see

Reed _v._ Reed, 4 _Nev._, 395; Gardner _v._ Gardner, 23 _Nev._,

207; Kelley _v._ Kelley, 18 _Nev._, 48.

For Alaska the act of Congress does not authorize partial divorce;

but marriage may be dissolved for (1) impotency; (2) adultery; (3)

conviction of felony; (4) two years' wilful desertion; (5) "cruel

and inhuman treatment, calculated to impair health or endanger

life;" or (6) habitual gross drunkenness contracted since marriage

and continuing one year before the suit.[507]

[507] _U. S. Stat. at Large_, XXXI, 408-10; _Laws of Alaska_

(1900), 243-46.

By the law of Hawaii both kinds of divorce are provided for.

Separation from bed and board forever or for a limited time will

be granted when either spouse has been guilty of (1) excessive and

habitual ill-treatment; or (2) habitual drunkenness; and (3) to

the wife for the husband's neglect or refusal to provide her with

the necessaries of life. At any time, on joint application of the

persons, with satisfactory evidence of reconciliation, the decree

of separation may be revoked by the court. According to a unique

scheme, the grounds of absolute divorce are arranged in two groups:

(1) A marriage will be dissolved, on petition of the aggrieved, when

either consort has (_a_) committed adultery; (_b_) is guilty of

three years' wilful and utter desertion; (_c_) has been sentenced

to imprisonment for life, or for seven years or more, no pardon

effecting a restitution of conjugal rights; or (_d_) has contracted

"the disease known as Chinese leprosy, and is incapable of cure."

(2) When one of the married persons has been guilty of (_a_) extreme

cruelty; or (_b_) habitual drunkenness; and (_c_) when the husband,

being of sufficient ability to provide suitable maintenance for his

wife, neglects or refuses so to do. But it is especially enacted

that if the person applying for a decree "shall not insist upon a

divorce from the bond of matrimony, a divorce only from bed and

board shall be granted." Jurisdiction is vested in the circuit

courts of the circuit where the persons last cohabited as husband

and wife; but no divorce for any cause will be allowed if they have

never so lived together in the territory.[508]

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

_c_) _Remarriage, residence, notice, and miscellaneous

provisions._--It has been found convenient in the preceding section

to trace throughout the period the development of the New York

law regarding the remarriage of divorced persons. By the original

statute of 1787, it thus appears, the guilty defendant is forever

prohibited from marrying again. Under the acts of 1813 and 1827-28

the restriction is limited to the lifetime of the innocent former

spouse; and this rule is retained in the present law, although in

harmony with the practice elsewhere widely prevailing, the parties

to the action are at liberty to renew their matrimonial vows. The

defendant, however, may marry again in case the court in which the

judgment is given "shall in that respect modify such judgment,

which modification shall only be made upon satisfactory proof that

the complainant has remarried, that five years have elapsed since

the decree of divorce was rendered, and that the conduct of the

defendant since the dissolution of said marriage has been uniformly

good."[509] At no time, apparently, has any legal check been put

upon the immediate remarriage of the successful plaintiff after

final decree; and a way has been found by which the guilty defendant

may at once contract further wedlock through evasion of the statute.

In 1881 the precedent established by Massachusetts in 1829 was

followed by the New York court of appeals. It was then decided that

when a husband who has been divorced in New York for his adultery

"goes into another state for the purpose of evading our law, and

there contracts a second marriage during the lifetime of his former

wife, and immediately returns to and resides within this state,

such second marriage is, nevertheless, valid, and the issue thereof

legitimate."[510] On the other hand, it is held that the restraint

applies to the remarriage of divorced persons even when the divorce

was granted in another state. Thus dower was "denied on a showing

that the deceased husband, while a resident of Massachusetts, had

been divorced from his wife for his fault and later had removed

to New York and married the plaintiff while his former wife was

living. It was held that the New York statutes governed whether

the divorce was granted in that state or not, so long as the

marriage was celebrated in New York."[511] But elsewhere the courts

have taken the opposite position, holding that the restraint on

remarriage applies only to divorces granted in the state where it is

imposed.[512]

[509] _Rev. Stat._ (1889), IV, 2599; STOVER, _Code of Civil

Proced._ (1902), II, 1843. _Cf._ 5 BARBOUR, _Chancery Reports_,

117; 11 _N. Y._, 228; 34 _N. Y._, 643; 42 _N. Y._, 546; 2 HUN,

_N. Y. Supreme Court Reports_, 241; 92 _N. Y._, 146.

[510] Van Voorhis _v._ Brintnall, 86 _N. Y._, 18; reversing s.c.

23 HUN, _N. Y. Supreme Court Reports_, 260; as summarized in

BRIGHTLY, _Digest of the Decis. of all the Courts of N. Y._, II,

2531, 2532, where the later cases are cited. _Cf._ especially

Thorp _v._ Thorp (1882), 90 _N. Y._, 602; and Moore _v._ Hegeman

(1883), 92 _N. Y._, 521.

[511] H. J. WHITMORE, "Statutory Restraints on the Marriage of

Divorced Persons," _Central Law Journal_, LVII, 447; Smith _v._

Woodworth, 44 BARBOUR, _Chancery Reports_, 198.

[512] Bullock _v._ Bullock, 122 _Mass. Reports_, 3; Clark _v._

Clark, 8 CUSHING, _Mass. Reports_, 385; Succession of Hernandez,

46 _La. Ann._, 962; 15 _So. Rep._, 461.

During the century the statutes of New Jersey have in effect,

though not expressly, allowed either person absolute freedom of

remarriage after divorce.[513] A different rule has been followed

in Pennsylvania and Delaware. By a law of the former state in 1785,

"he or she, who hath been guilty of the adultery, may not marry the

person with whom the said crime was committed, during the life of

the former husband or wife."[514] This provision is still in force;

and, except in the single case specified, the law of that state

puts no restriction whatever upon the remarriage of either person

after a decree dissolving the marriage tie. Since 1832 with respect

to remarriage the law of Delaware has in substance been identical

with that of the sister-commonwealth, except that the prohibition of

marriage with the paramour is not confined to the lifetime of the

former spouse.[515]

[513] The law provides that the penalties for "polygamy" shall

not extend to persons marrying after having been lawfully

divorced from the bonds of matrimony: _Gen. Stat. of N. J._, I,

1057. _Cf._ _ibid._, II, 1267 ff.

[514] _Cf._ the act of 1785: CAREY AND BIOREN, _Laws of the

Com._, III, 105; PEPPER AND LEWIS, _Digest_, I, 1646, 1647.

[515] _Cf._ the act of February 3, 1832: _Laws_, 150, with _Rev.

Stat. of Del._ (1893), 598.

By their complete silence on the subject the statutes of Ohio appear

always to have allowed either person entire freedom of remarriage

after divorce. Since 1831 the same liberty has been expressly

granted by the laws of Indiana;[516] except that when the defendant

has been "constructively" summoned without other notice than

publication in a newspaper, the person obtaining a decree of divorce

is not permitted to marry again until the expiration of two years,

during which period the judgment may be opened at the instance of

the defendant.[517] But by the original act of 1818 the offender is

not released from the bonds of matrimony while his former spouse

is living.[518] This restriction is maintained by the statute

of 1824, unless the court in its discretion, "judging from the

circumstances of the case," shall expressly grant a release.[519]

In 1825 the legislature of Illinois required the court in a decree

of absolute divorce to prohibit the offender from remarrying within

two years.[520] After 1827 this provision was dropped;[521] and

at present Illinois, like New Jersey, through the remission of

the penalty for bigamy allows entire freedom in this regard.[522]

Michigan began with a severe rule. The territorial enactment of 1819

forbids the defendant adulterer to wed again until the complainant

be actually dead.[523] This provision was not long retained; and

the existing statute permits the court to decree that the person

against whom any divorce is granted shall not marry again within any

period not exceeding two years.[524]

[516] _Rev. Laws of Ind._ (1831), 214; _Rev. Stat._ (1838), 243;

_ibid._ (1843), 606; _ibid._ (1852), II, 237; _ibid._ (1896), I,

sec. 1048; BURNS, _Ann. Stat._ (1901), I, 1059.

[517] _Laws of Ind._ (1873), 108, 109; _Rev. Stat._ (1896), I,

sec. 1030. This section applies only to parties "constructively"

summoned: Sullivan _v._ Learned, 49 _Ind._, 252. The general

policy of the law is against disturbing divorces granted:

McJunkin _v._ McJunkin, 3 _Ind._, 30; McQuigg _v._ McQuigg, 13

_Ind._, 294.

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

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

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

[521] The act of June 1, 1827: _Rev. Code_ (1827), 181, allows

the injured person to obtain a dissolution of the marriage

contract; but neither this nor any subsequent statute seems

expressly to forbid the defendant to remarry.

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

[523] _Ter. Laws of Mich._, I, 496; see also act of April 12,

1827: _ibid._, II, 363-66. An act of this last date (_ibid._,

II, 543), for the punishment of crime, exempts persons marrying

again after divorce from the pains of bigamy, provided they may

do so by the terms of the decree or by those of the law where the

divorce was granted. The act of June 28, 1832 (_ibid._, III, 931,

932), is silent as to remarriage.

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

Laws_ (1899), III, 2666.

The legislation of the newer states of the Mississippi valley and

the Pacific slope discloses the same lack of harmony in dealing

with the question in hand. By the laws of Wyoming, Utah, and Nevada

either spouse, whether guilty or innocent, is left absolutely free

to contract further wedlock as soon as he likes after divorce.

At present the same is true of Iowa, although under the early

enactments the guilty defendant was forbidden to remarry.[525]

In Kansas, by a statute of 1855, the guilty person is restrained

from marrying again during five years unless so permitted by the

terms of the decree.[526] Between 1859 and 1881 entire freedom was

allowed.[527] Subsequently in that state it has been "unlawful for

either party ... to marry any other person within six months from

the date of the decree of divorcement," or, if appeal be taken,

"until the expiration of thirty days from the day on which final

judgment shall be rendered by the appellate court." Marriage in

violation of this statute is declared bigamy and void.[528] Nebraska

since 1885, Oregon since 1862, Washington since 1893, and Minnesota

since 1901, have each interdicted remarriage within the same period

of six months after a decree of divorce.[529] In Idaho since 1903

the term is "more than six months;" while in North Dakota since

1901 it is but three.[530] Since 1893 Colorado has gone farther,

requiring in such a case a delay of one year.[531] The same delay is

required in Wisconsin since 1901;[532] while in Montana, since 1895,

the innocent person must needs wait two years and the guilty person

three years before renewing the marital bond with anyone save the

former spouse.[533] South Dakota, when the cause is adultery, still

refuses, as in the territorial stage, to permit the guilty defendant

to rewed during the lifetime of the innocent plaintiff, unless,

indeed, with the latter.[534] In Alaska neither party may marry a

third person until proceedings on appeal are ended, or if no appeal

be taken, during one year, the statutory term for bringing such

action.[535]

[525] By the act of Jan. 24, 1855, the guilty party is prohibited

from remarrying: _Laws of Ia._ (1854-55), 112. The restriction

was dropped in 1858: _Laws_ (1858), 97, 98, 236: _Ann. Code_

(1897), 1135-47.

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

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

1881 are silent as to remarriage.

[528] _Laws of Kan._ (1889), 145; same in _Comp. Laws of Kan._

(1897), II, 276: "Every decree of divorce shall recite the day

and date when judgment was rendered in the cause, and that

the decree does not become absolute and take effect until the

expiration of six months from said time." _Cf._ the act of

March 5: _Laws of Kan._ (1881), 229-31, where the six-months'

prohibition first appears.

[529] The Nebraska law is peculiar in that, in addition to the

general prohibition of marriage in six months, it especially

forbids the defendant in error or appellee to marry again during

the pendency of proceedings in error or on appeal under the

penalties prescribed for bigamy: _Laws of Neb._ (1885), chap.

49, pp. 248, 249; _Comp. Stat. of Neb._ (1901), 582. See _Codes

and Stat. of Ore._ (1902), I, 280, 296; _Codes and Gen. Laws_

(1892), I, 458; being the same as act of Oct. 11, 1862: _Organic

and Other Gen. Laws of Ore., 1843-72_, 211, 218; _Ann. Codes and

Stat. of Wash._ (1897), II, 1599; _Laws_ (1893), 225.

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

11.

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

(1897), III, 441, 442.

[532] "But upon application of such divorced person, any court of

record or presiding judge thereof, who granted the divorce, ...

may authorize" marriage within the year: _Acts of Wis._ (1901),

369.

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

[534] _Stat. of S. D._ (1899), II, 1025, 1028; _Rev. Codes_

(1903), 602. This principle was adopted by the territorial

assembly: LEVISSEE, _Ann. Codes_ (1884), II, 750. Except for

a brief term in 1866, the earlier territorial laws allow

entire freedom of remarriage: see act of Jan. 12, 1866: _Laws,

Memorials, and Resolutions_ (1865-66), 14, forbidding the guilty

adulterer to remarry during the lifetime of the innocent spouse;

but in the next year this was replaced by a new law allowing

full liberty: Act of Jan. 10, 1867: _Gen. Laws, Memorials, and

Resolutions_ (1866-67), 45-52.

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

Until very recently in California no clear restraint was put upon

further wedlock after full separation. In 1897, following the

example of Colorado, the legislature provided that in case of

dissolution a new marriage may validly be contracted by either

person only when the decree of divorce has been rendered at least

one year before.[536] This amendment, it seems, was designed

primarily to remedy an abuse arising in the uncertainties of

California law--one often encouraged by careless legislation in

the United States. Its purpose, says Judge Belcher in the opinion

below cited, "was to correct a great public evil which had become

too rife--to put a stop to marriages within the period allowed for

the appeal from the decree of divorce, which might be and sometimes

had been reversed, with great scandal to the parties who had

married again." In the meantime this new and stringent provision

has given occasion for still more serious evils originating in the

inharmonious laws of adjacent states. The statutes of Nevada, whose

borders are within easy reach of San Francisco, have not fixed

a period within which divorced persons may not contract further

wedlock. As a result, Reno has become the Gretna Green of California

couples who there seek to evade the interdict of their own law.

Whether a person who retains his domicile in California may contract

a valid marriage in Nevada within less than one year after having

been divorced in the former state is a question regarding which the

decisions of the superior courts long contradicted one another.[537]

But the supreme tribunal has just determined[538] that California

in this regard is to take her place by the side of New York and

Massachusetts, whose example Washington had already followed.[539]

To overcome the effect of this decision, the legislature has enacted

that if in any case the court "determines that a divorce ought to

be granted an interlocutory judgment must be entered, declaring

that the party in whose favor the court decides is entitled to a

divorce." After one year has expired, on its own motion or the

motion of either person, the court "may enter final judgment

granting the divorce," unless action on appeal or on a motion for

a new trial is pending. "In no case can a marriage of either of

the parties during the life of the other be valid in this state,

if contracted within one year after the entry of an interlocutory

decree." But this legislation,[540] it is believed, will be declared

unconstitutional by the supreme court.[541]

[536] "Sec. 61. A subsequent marriage contracted by any person

during the life of a former husband or wife ... , with any person

other than such former husband or wife, is illegal and void from

the beginning unless:

"1. the former marriage has been annulled or dissolved; provided,

that in case it be dissolved, the decree of divorce must have

been rendered and made at least one year prior to such subsequent

marriage."--Act of Feb. 25: _Stat. and Amend. to the Codes_

(1897), 34.

"Sec. 91. The effect of a judgment decreeing a divorce is to

restore the parties to the state of unmarried persons."--Act of

March 30, 1874: _Amendments to the Codes_ (1873-74), 189; also

in DEERING, _Codes and Stat. of Cal._ (1886), II, 31; POMEROY,

_Civil Code_ (1901), 44.

[537] In Abbie Rose Wood _v._ Estate of Joseph M. Wood, filed in

the superior court of San Francisco, June 14, 1900, Judge Belcher

decided that the marriage on Jan. 1, 1898, in Reno, Nev., of a

person divorced in California, Aug. 19, 1897, the former husband

still living, was not valid. He relies upon the words of nullity

in the amendment of 1897; and the fact that the person went to

another state solely for the purpose of getting married while

still retaining her domicile in California. "Section 61, Civil

Code, contains no penal clause, as stated; but it does contain

words of nullity, and words which suspend, as to third persons,

the operation of the decree ... ; and these cannot be avoided

by merely invoking another jurisdiction for that purpose. The

two sections (61 and 91, C. C.) are to be read together, and,

so read, their interpretation and meaning are free from either

uncertainty or ambiguity. The law of the domicile is invoked,

and the law of the domicile controls. No other jurisdiction can

relieve against it."--See _San Fran. Law Journal_ (July 2, 1900),

1.

In a case decided on Dec. 10, 1900, Judge Trout, of the superior

court of San Francisco, takes the same position as Judge Belcher.

On the other hand, on Dec. 4, 1900, Judge Hebbard, of the same

court, in Adler _v._ Adler, maintains the validity of a similar

Reno marriage. He holds that the California law "is in restraint

of marriage," since it fixes an arbitrary prohibitory period. "We

may imagine the reason which induced the passage of the section,

by an examination of the law of the State of Oregon upon the same

subject. In that state there is no fixed prohibitory period, but

the law is to the effect that, pending an appeal from a decree of

divorce, if one be taken, and, if not, during the time in which

it may be taken, the parties shall be incapable of contracting

marriage with a third person. In California an appeal from a

final judgment must be taken in six months; an appeal from an

order granting or refusing a new trial in sixty days. The great

majority of divorce cases go to judgment upon the default of

the defendants, and in such cases there can be no appeal upon

the merits of the cause. When no appeal can be taken, or when

the time for appeal has gone by and none taken, why compel the

parties in the case to abstain from matrimony for the remainder

of the year thereafter? The proportion of divorce decrees

appealed from is infinitely small, and therefore the prohibition

in section 61 discriminates against the many, for the protection

of the few; it is an arbitrary law." He relies upon Pearson _v._

Pearson, 51 _Cal._, 120 (1875), construing sec. 63 of the Civil

Code to the effect that "all marriages contracted without this

state, which would be valid by the laws of the country in which

the same were contracted, are valid in this state."--_San Fran.

Law Journal_ (July 16, 1900), 1.

[538] See the Estate of Wood, 137 _Cal._ (1902), 129 ff., where

Reno marriages are held valid, three justices dissenting.

[539] In Willey _v._ Willey, 22 _Wash._ (Jan. 27, 1900), 115-21.

The courts of Oregon have taken the opposite view, holding such

marriages of residents of Oregon contracted in another state

absolutely void under the statute: McLennan _v._ McLennan, 31

_Ore._ (1897), 480.

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

Codes_, chaps. lxvii, clviii.

[541] It has already been so declared by Judge Rhodes in the

superior court of Santa Clara county.

Expressly or by implication the divorced couple are excepted from

the restraint, and permitted to rewed in Alaska, California,

Colorado, Idaho, Kansas, Montana, New York, Oklahoma, Oregon, South

Dakota, Vermont, and Washington. On the question whether, in the

absence of statutory authority, such remarriage of the divorced

persons comes within the restraint, the decisions of the courts are

conflicting.[542]

[542] Compare Moore _v._ Moore, 8 ABB., _N. C._, 171-73; Colvin

_v._ Colvin, 2 PAIGE, 385-87, denying the right of remarriage in

such cases; with Moore _v._ Hegeman, 92 _N. Y._, 521-29, where

the question is left undecided.

All of the twenty-six states under consideration have prescribed

rules or conditions regarding the residence of the plaintiff in

divorce suits. In nearly every instance a definite term of previous

residence in the state, or in the state and in the county, of the

action is fixed. This term varies from six months to three years,

one year being the prevailing period. In the West the requirements

in this regard are not in general so rigid as in some eastern

and southern states; but during the past two decades encouraging

progress has been made.

The law of New York governing residence has in the preceding

subsection already been presented. A fixed term is not prescribed,

except that in cases of partial divorce, when the marriage was

solemnized outside the state, the persons must have "continued to

be residents" of the state for at least one year, and the plaintiff

must be resident at the time the action is commenced.[543]

Delaware has not fixed a definite period of residence; but no

divorce from the bond of matrimony will be decreed when the cause

assigned therefor in the petition occurred out of the state and

the "petitioner was a non-resident thereof at the time of its

occurrence, unless for the same or like cause such divorce would be

allowed by the laws of the state or country in which it is alleged

to have occurred."[544] Delaware, like Maine and Massachusetts, has

attempted to prevent clandestine divorce through evasion of the

laws. "When any inhabitant ... shall go into any other jurisdiction

to obtain a divorce for any cause occurring here; or for any cause

which would not authorize a divorce by the laws of this state;

a divorce so obtained shall be of no force or effect in this

state."[545] The statute of New Jersey gives the court of chancery

jurisdiction in actions for divorce when either the complainant or

defendant is an inhabitant of the state "at the time of the injury,

desertion, or neglect;" when the marriage took place within the

state, and the complainant is an actual resident at the time the

injury arose, and at the time of exhibiting the bill; when the

adultery occurred within the state and either spouse is a resident

thereof at the commencement of the suit; or when one of the persons,

at the time of filing the bill and for the term of two years during

which the desertion shall have continued, is a resident of the

commonwealth.[546] When the cause is adultery committed outside the

state, three years' previous residence on the part of either the

complainant or the defendant is always required.[547]

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

[544] _Rev. Stat. of Del._ (1893), 598; being the act of 1891:

_Laws_, XIX, chap. 243, p. 480.

[545] _Rev. Stat. of Del._ (1893), 598. "In all other cases a

divorce decreed in any other state or country" is valid: _ibid._,

598.

[546] _Gen. Stat. of N. J._ (1896), II, 1273; being act of March

7, 1889: _Pub. Laws_, 48. This law has existed in nearly the same

form since 1820: see act of Feb. 16, 1820: _Laws of the State_

(1821), 667.

[547] _Gen. Stat. of N. J._ (1896), II, 1273; being act of May

11, 1886: _Pub. Laws_, 345.

A term of twelve months' previous residence was established by

Indiana in 1831.[548] This was increased to two years in 1838,

regardless of the place where the alleged cause of divorce

occurred.[549] A period of one year was again adopted in 1849.[550]

Three years later the law was still further relaxed by making

_bona fide_ residence in the county of the action sufficient to

warrant a petition.[551] In 1859 the one-year term was once more

restored,[552] only to yield in 1873 to a _bona fide_ residence

of two years in the state and six months in the county; and this

provision is still in force.[553] The legislation of Michigan shows

similar vicissitudes. The act of 1819 allows an absolute divorce

for adultery when the parties are "inhabitants" of the territory,

or when the marriage was solemnized therein, and the injured person

is an actual resident at the time of the offense and at the time

the complaint is filed.[554] In 1832 a residence of three years was

fixed for the plaintiff in both full and partial divorce;[555] but

in 1838 the term was reduced to two years, and to half that time

in 1844.[556] The period of one year is still sanctioned when the

cause of action occurs within the state. By the careful act of May

26, 1899, no decree of divorce will be granted in any case unless

(1) the plaintiff has resided in the state for one year preceding;

or (2) the marriage sought to be dissolved was solemnized in the

state and the plaintiff has since resided therein to the time of

the petition. Furthermore, in no case will a decree be granted

unless (1) the defendant is domiciled in the state when the petition

is filed; or (2) was so domiciled when the alleged cause for the

action arose; or (3) when he voluntarily appears at the trial, or

is brought in by publication, or has been personally served with

process or notice. On the other hand, when the cause of action

occurs outside the state, a divorce will not be allowed unless the

complainant or the defendant shall have resided in the commonwealth

for two years immediately before the filing of the petition. If the

defendant is not domiciled in the state at the time of commencing

the suit, or when the alleged cause arose, before a decree will be

granted the complainant must prove that the parties have actually

lived and cohabited together as husband and wife within the state,

or that the complainant has there resided in good faith for the two

preceding years.[557]

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

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

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

[551] _Rev. Stat._ (1852), 234: of "which _bona fide_ residence

the affidavit of the petitioner shall be _prima facie_ evidence."

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

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

(1896), I, sec. 1031.

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

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

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

[557] _Pub. Acts_ (1899), 326, 327. When the order for appearance

is served outside the state, the law requires that the fact of

service be proved by affidavit before a justice or notary whose

legal character and signature must be attested by the certificate

of a court of record. See the earlier act of 1895: _Pub. Acts_

(1895), 371; and _cf._ HOWELL, _Gen. Stat._, II, 1624; MILLER,

_Comp. Laws_ (1899), III, 2657.

Since 1785 Pennsylvania has required that the plaintiff in a suit

for absolute divorce must be a citizen of the state and a resident

therein at least one whole year before the action is begun.[558]

The one-year term is prescribed likewise in Ohio, except when the

action is for alimony alone;[559] in Illinois since 1827, unless

the offense or injury complained of was committed in the state, or

while one or both of the persons resided there;[560] in Minnesota

since 1851, except when the suit is on the ground of adultery

committed while the plaintiff was a resident of the state;[561] in

Wisconsin since 1838-39, except when the cause is adultery similarly

committed, or when the marriage was solemnized in the state and

the plaintiff resided there from the time of such marriage to the

time of bringing suit, or when the wife is plaintiff and the husband

has resided in the state for one year preceding the commencement

of the action;[562] in Iowa since 1838, "except when the defendant

is a resident of the state served by personal service;"[563] in

Colorado since 1861, unless the application is made upon "grounds of

adultery or extreme cruelty when the offence was committed within

the state;"[564] in Kansas since 1855;[565] in Utah since 1878;[566]

in Montana since 1865;[567] in Washington since 1854;[568] in Oregon

since 1862;[569] in California since 1891;[570] in North Dakota

since 1899;[571] and in Wyoming since 1901.[572] In Alaska by the

federal law of 1903, the plaintiff must be an inhabitant of the

district for two years before suit is brought; and the same term had

already been prescribed for Hawaii.[573]

[558] _Cf._ the act of June 20: _Laws of Pa._ (1893), 471; also

in PEPPER AND LEWIS, _Digest_ (1896), I, 1638, 1639; and the act

of Sept. 19, 1785: _Laws of the Com. of Pa._ (1803), III, 105.

[559] BATES, _Ann. Stat. of Ohio_ (1897), II, 2805. The law of

1827 requires two years' residence on the part of the plaintiff:

CHASE, _Stat._, III, 1581.

[560] _Cf._ act of June 1, 1827: _Rev. Code of Ill._ (1827), 182;

HURD, _Rev. Stat. of Ill._ (1898), 632: being the same as _ibid._

(1845), 196.

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

(1894), I, 1268, 1269.

[562] The development of the Wisconsin law of residence may

be traced in _Stat. of the Ter._ (1838-39), 140; _Rev. Stat._

(1849), 395; _ibid._ (1858), 623-28 (in which the clause

referring to the wife as plaintiff first appears); _Ann. Stat._

(1889), I, 1368.

[563] The petition for divorce "must state that the plaintiff

has been for the last year a resident of the state, specifying

the township and county in which he or she has resided, and the

length of such residence therein after deducting all absences

from the state; that it has been in good faith and not for the

purpose of obtaining a divorce only"; and "in all cases it must

be alleged that the application is made in good faith and for the

purpose set forth in the petition."--_Ann. Code of Ia._ (1897),

1137; same in _Code_ (1873), 339. See also act of Dec. 29, 1838:

_Laws_ (1838-39), 179, 180, first fixing the period of one year's

previous residence.

[564] "Provided, further, that such suit shall only be brought

in the county in which such plaintiff or defendant resides, or

where such defendant last resided."--MILLS, _Ann. Stat. of Col._

(1897), III, 437, 438; being the act of 1893: _Laws_, 239. _Cf._

the original act in _Laws of Col._ (1861-62), 360, 361, fixing

the one-year term.

[565] _Laws of Kan._ (1897), II, 273; being same as _Gen. Stat._

(1868), 757. _Cf._ original act of 1855: _Stat._ (1855), 311.

In 1859 the term of residence was reduced to six months, but

the one-year period was restored the next year: _Laws of Kan._

(1859), 385; _ibid._ (1860), 108. Now the petitioner must be a

resident of the county of the action.

[566] See the preceding subsection.

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

(1864-65), 430.

[568] _Ann. Codes and Stat. of Wash._ (1897), II. 1596; _Stat._

(1854), 405-7. The term was reduced to three months in 1864,

but restored to one year in 1866: _Stat._ (1864), 13; _Stat._

(1865-66), 89, 90.

[569] When the marriage was solemnized in the state, it is

sufficient if the plaintiff be an inhabitant thereof at the

commencement of the suit. If not solemnized in the state, both

parties must be inhabitants at the commencement of the suit, and

the plaintiff for one year before (act of 1862). The plaintiff

must be an inhabitant of the state at the commencement of

the suit and for one year before; "which residence shall be

sufficient to give the court jurisdiction, without regard to the

place where the marriage was solemnized, or the cause of suit

arose" (act of 1865): _Codes and Gen. Laws_ (1902), I, 277. By

the act of 1853, in force till 1862, the term of residence was

fixed at six months: _Gen. Laws._ (1852-53), 49-51.

[570] _Stat. and Amend. to Codes of Cal._ (1891), 52. The

plaintiff must be a resident of the state one year and of the

county three months. Between 1851 and 1891 the term was six

months: Act of March 25: _Stat. of Cal._ (1851), 186, 187.

[571] _Acts_ (1899, Feb. 3), 94: The plaintiff must have been a

resident of the state in good faith for twelve months, and be a

citizen of the United States or have declared his intention to

become such citizen. By the earlier law, as at the close of the

territorial period, the term of residence was ninety days: _Rev.

Codes of N. D._ (1895), 614.

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

[573] _U. S. Stat. at Large_, XXXIII, 944. The period is two

years in Hawaii: _ibid._, XXXI, 150.

Four states are less stringent in their requirements. In Nebraska,

since 1856, petition will not be granted unless the plaintiff has

resided in the state for six months, except when the marriage was

solemnized in the state and the plaintiff has there dwelt since the

marriage to the time when the suit is commenced.[574] The same term

has been required in Idaho since 1864;[575] while in Nevada, since

1861, the plaintiff must have resided six months in the county where

suit is brought, unless the action is begun "in the county in which

the cause thereof shall have accrued, or in which the defendant

shall reside, or be found, or in which the plaintiff shall reside if

the latter be the county in which the parties last cohabited."[576]

Until 1899, as in the territorial stage, South Dakota required only

ninety days' _bona fide_ residence on the part of the plaintiff. In

that year the term was increased to six months; but in no case will

a divorce be granted without personal service within the state, or,

when the defendant is non-resident, personal service and order of

publication "until the plaintiff shall have a _bona fide_ residence

in the state for one year" next before the granting of a decree.[577]

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

[575] _Rev. Stat. of Idaho_ (1887), 305; _Laws_ (1867), 69. The

law of residence took its present form in 1867: but the provision

of 1864, _Laws_ (1863-64), 615, 616, is identical with that of

Nevada quoted in the text.

[576] _Comp. Laws of Nev._ (1900), 115. _Cf._ _Laws_ (1861), 96,

97; and _Laws_ (1875), 63.

[577] _Stat. of S. D._ (1899), II, 1029; _Rev. Codes_ (1903),

602. The territorial law of 1883: LEVISSEE, _Ann. Codes of Ter.

of Dak._ (1884), 751, requires a residence of ninety days.

The laws of every state in this group contain some provision

requiring notice to the defendant when personal service cannot

be had. Such notice is given as in equity suits in Illinois and

Nebraska; as in ordinary civil actions in California,[578] Idaho,

Montana, Oregon, Utah, Washington, Wisconsin,[579] and Wyoming; and

in the remaining commonwealths special rules regarding publication,

usually in the newspapers, are in force.[580]

[578] In California and Montana summons and publication in

divorce suits are given under the general provisions for civil

actions: POMEROY, _Codes and Stat.: Civil Proced._ (1901), secs.

410 ff.; _Codes and Stat. of Mont._ (1895), 782, 796, 797. This

is, of course, not inconsistent with Sharon _v._ Sharon (1885),

67 _Cal._, 185, ruling that an action for divorce is a case in

equity under the clause in the constitution conferring appellate

jurisdiction on the supreme court.

[579] The statute of Wisconsin requires the proceedings to be as

in "courts of record" so far as practicable: _Ann. Stat._ (1889),

I, 1362.

[580] In New York, for instance, the order for publication

must direct that the summons be published "in two newspapers,

designated in the order as most likely to give notice to

the defendant, for a specified time, which the judge deems

reasonable, not less than once a week for six successive weeks;"

and unless the judge is satisfied from affidavits presented that

the defendant's residence is unknown, it must also require that

copies of the summons, complaint, and order be mailed to him at a

specified place: BIRDSEYE, _Rev. Stat._ (1896), I, 18. The laws

of Ohio and Kansas are similar: BATES, _Ann. Rev. Stat. of Ohio_

(1897), II, 2805; _Laws of Kan._ (1897), II, 273. By the statute

of Pennsylvania, if the adverse party is not found, the court may

issue an alias subpoena, and trial may be set for a later term.

If a second time personal service cannot be had, notice must be

"published in one or more newspapers printed within or nearest to

the said county for four weeks successively" prior to the first

day of the next term: PEPPER AND LEWIS, _Digest_ (1896), I, 1642.

Colorado has a careful provision. See also _Civil Laws of the

Hawaiian Islands_ (1897), 716-18; and the new law of New Jersey:

_Acts_ (1903), 122, 123.

The miscellaneous provisions regarding divorce and divorce actions

are in character similar to those already mentioned for other

states. In California, Hawaii, Illinois, Michigan, Montana,

Nebraska, New Jersey, New York, North Dakota, Ohio, South Dakota,

and Wyoming the legitimacy of the children of the marriage is

expressly recognized in case of divorce. Trial by jury in the

finding of facts is allowed in Illinois, Nevada, New York,[581]

Pennsylvania, and Wisconsin; while in Washington it is expressly

denied; and in Colorado the guilt or innocence of the defendant must

be determined by the verdict in every case.[582] The statutes of

Kansas, Nebraska, Ohio, Wisconsin, and Wyoming permit either consort

to be a witness in the case; and by those of Illinois, Kansas,

Minnesota, Nevada, Ohio, Oregon, Wisconsin, and Washington the court

may authorize the woman to change her name. She is granted this

privilege in Alaska only when not the person in fault. In several

instances special provision is made for defending the action.

According to the Indiana law, "when a petition for divorce remains

undefended, it shall be the duty of the prosecuting attorney to

appear and resist" the same.[583] In Colorado, when the defendant

fails to appear, the court must appoint an attorney who shall

secure a fair and impartial hearing of the case.[584] By the law

of Oregon the state is constituted a party in such suits, and it

is the duty of the district attorney, "so far as may be necessary

to prevent fraud or collusion," to control the proceedings for the

defense.[585] Washington has a similar law;[586] and in special

cases the prosecuting attorney in Idaho and Michigan is likewise

required to oppose the granting of a decree.[587] Soliciting divorce

business by advertising or otherwise is sometimes prohibited

under severe penalty, such being the case in California, Illinois,

Indiana, Minnesota, Montana, New York, Ohio, and Washington.[588]

Indiana has a unique enactment expressly declaring that a divorce

legally granted in any other state shall have full effect in that

commonwealth.[589] Everywhere due provision is made for alimony,

care of the children, and the adjustment of property rights. There

is great variation in matters of detail; but in general the laws of

the middle and western states relating to these subjects are very

similar to those of New England. For the purpose of the present

chapter further notice may therefore be dispensed with. Only in

Michigan,[590] Ohio, Illinois, and Indiana, it may be mentioned in

conclusion, has any adequate provision been made for the collection

and publication of divorce statistics.

[581] By _Laws_ (1899), 1471, 1472, on application of either

party, when the assigned cause is adultery, a jury must be

called; and in other cases it may be empaneled.

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

and Stat. of Wash._ (1897), II, 1600.

[583] _Rev. Stat. of Ind._ (1896), I, sec. 1038. An emergency act

of 1901 makes provision for counties of 100,000 inhabitants; that

is, for Marion county, containing Indianapolis. Where no _bona

fide_ counsel for the defendant is entered in the appearance

docket, the prosecuting attorney is to enter his name therein,

and to resist the petition on behalf of the state. Any attorney,

other than the prosecuting attorney, appearing for the defendant,

if so ordered by the court, must file a written authority

executed by the defendant: _Laws_ (1901), chap. 151, pp. 336,

337. In substance this requirement as regards the prosecuting

attorney is made general for the state by an act of 1903: _Laws_,

393, 394.

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

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

1862); _Codes and Stat._ (1902), I, 456.

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

[587] This is the duty of the district attorney in Idaho, and

of the county attorney in Utah, when the ground of the petition

is the alleged insanity of the defendant: _Gen. Laws of Id._

(1895), 12; _Laws of Utah_ (1903), 39, 40; and of the prosecuting

attorney in Michigan, when there are children under fourteen

years of age whose interests require his intervention: HOWELL,

_Gen. Stat._, III, 3605; MILLER, _Comp. Laws_ (1899), III, 2665.

[588] _Cal. Stat. and Amend. to the Codes_ (1891), 279; _ibid._

(1893), 48; _ibid._ (1900-1901), 444; _Rev. Stat. of Ill._

(1898), 633, 634; _Rev. Stat. of Ind._ (1896), I, sec. 2129;

BATES, _Ann. Rev. Stat. of Ohio_ (1897), II, 3218; _Ann. Codes

and Stat. of Wash._ (1897), II, 1987, 1988; _Gen. Laws of Minn._

(1901), 286. By _Laws of N. Y._ (1902), I, 536, this offense is

made a misdemeanor. _Cf._ _Laws of Montana_ (1903), 146.

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

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

(1899), 69.

CHAPTER XVIII

PROBLEMS OF MARRIAGE AND THE FAMILY

[BIBLIOGRAPHICAL NOTE XVIII.--Materials for a more extended

study of the questions touched upon in this chapter are set

forth in Part IV of the Bibliographical Index. Wright's _Report

on Marriage and Divorce_ is, of course, indispensable. It may

be supplemented from the _Eleventh Census, U. S._, I; the

_Census of Massachusetts_, 1875, 1885, 1895; the _Registration

Reports_ of the New England states, of which the forty-first

for Massachusetts is most important; and from those of Indiana,

Illinois, Michigan, and Ohio. Useful summaries of statistics

may also be found in Secretary Dike's _Reports of the National

Divorce Reform League_, and its successor, the _National League

for the Protection of the Family_ (Montpelier and Boston,

1886-1903). An important statistical monograph is Willcox's

_Divorce Problem_ (2d ed., New York, 1897). This should be read

in connection with his "Study in Vital Statistics," in _Pol.

Science Quarterly_, VIII (New York, 1893); his "Marriage Rate

in Michigan," in _Pub. of Am. Stat. Association_, IV (Boston,

1895); Crum's "Marriage Rate in Massachusetts," in the same

volume; and Kuczynski's article in _Quart. Jour. of Economics_,

XVI (Boston, 1902). See also Dike, "Statistics of Marriage and

Divorce," in _Pol. Science Quarterly_, IV (New York, 1889), a

study of the government report; _idem_, "Facts as to Divorce in

New England," in _Christ and Modern Thought_ (Boston, 1881);

Wells, _Divorce in Mass._, extract from the _41st Registration

Report_ (Boston, 1882); Abbott, "Vital Statistics," in _28th

Rep. Mass. State Board of Health_ (Boston, 1897); Wright,

_Practical Sociology_ (New York and London, 1899); Mayo-Smith,

_Statistics and Sociology_ (New York and London, 1895); Loomis,

"Divorce Legislation in Conn.," in _New Englander_, XXV (New

Haven, 1866); and Allen, "Divorces in New England," in _North

Am. Rev._, CXXX (New York, 1880). Important foreign statistical

works are Bertillon, "Note pour l'étude stat. de divorce," in

_Annales de démographie internat._, IV (Paris, 1880); _idem_,

_Étude démographique du divorce_ (Paris, 1883); _idem_, "Du

sort des divorcés," in _Jour. de la soc. de statistique_

(Paris, 1884); Oettingen, _Die Moralstatistik_ (2d ed.,

Erlangen, 1874); Rubin and Westergaard, _Statistik der Ehen_

(Jena, 1890); Bertheau, _Lois de la population_ (Paris, 1892);

Molinari, "Decline of the French Population," in _Jour. of

Royal Stat. Soc._, L (London, 1887); Ogle, "Marriage-Rates and

Marriage-Ages," _ibid._, LIII (London, 1890); Farr, "Influence

of Marriage on the Mortality of the French People," in _Trans.

Nat. Assoc. for Promotion of Soc. Science_, LVIII (London,

1859); _idem_, _Vital Statistics_, Parts I, II (London,

1885); Newsholme, _Vital Statistics_ (3d ed., London, 1892);

Cauderlier, _Les lois de population_ (Brussels, 1900); Lindner,

_Die unehelichen Geburten als Sozialphänomen_ (Naumburg, 1899);

_Statistik der Ehescheidungen in der Stadt Berlin, 1885-94_

(Berlin, n. d.); the parliamentary _Return of the Number of

Divorces in Foreign Countries, Misc._, No. 4 (London, 1895),

Part II, being for British Colonies; and _Reports of the Laws of

Marriage and Divorce_, Parts I, II (London, 1894).

On the divorce problem see _An Essay on Marriage; or, the

Lawfulness of Divorce_ (Philadelphia, 1788), presenting the

principal arguments in its favor; Westbrook, _Marriage and

Divorce_ (Philadelphia, 1883); _idem_, _The Clerical Combination

to Influence Civil Legislation on Marriage and Divorce_

(Philadelphia, 1887); Fisher, _The Causes of the Increase

of Divorce_ (Boston, 1883); Richard, _Marriage and Divorce_

(London, 1888); Robinson, "The Diagnostics of Divorce," in

_Jour. of Soc. Science_, No. 14 (Boston and New York, 1881);

Janes, "Divorce: Sociologically Considered," in _New Englander

and Yale Review_, LIV (New Haven, 1891); Phillips, "The Divorce

Question," in _International Review_, XI (New York, 1881);

Savage, "Matrimony and the State," in _Forum_, X (New York,

1890); Adler, "The Ethics of Divorce," in _Ethical Record_, II,

III (Philadelphia, 1889-90); Wright, "Marriage and Divorce,"

in _Christian Register_, LXX, 655-58 (Boston, 1891); Lecky,

_Democracy and Liberty_, I, chap. vii (New York and London,

1896); and Bryce, "Marriage and Divorce," in his _Studies in

Hist. and Jur._ (New York and London, 1901). The following are

very conservative: David Hume, "Of Polygamy and Divorces," in

his _Essays_, I (London, 1875); Little, "Marriage and Divorce:

the Doctrine of the Church of England," in _Contemporary

Review_, LXVIII (London, 1895); Hurd, "Scriptural Ground of

Divorce," in the _New Englander and Yale Review_, XLV (New

Haven, 1886); Phelps, "Divorce in the United States," in

_Forum_, VIII (New York, 1889); Caverno, _Treatise on Divorce_

(Madison, 1899); Gladstone, symposium with Bradley and Dolph on

"The Question of Divorce," in _North Am. Review_, CXLIX (New

York, 1889); Greeley, "Marriage and Divorce: a Discussion with

Robert Dale Owen," in _Recollections of a Busy Life_, 571 ff.

(New York, 1869); _idem_, _Love, Marriage, and Divorce, and the

Sovereignty of the Individual_ (New York, 1853), a discussion

with James and Andrews; Convers, _Marriage and Divorce_

(Philadelphia, 1889), presenting the Catholic view; Dike, "Some

Aspects of the Divorce Question," in _Princeton Review_, N.

S., XIII (New York, 1884); and Woolsey, _Divorce and Divorce

Legislation_ (2d ed., New York, 1882).

In Italy divorce is favored by Gioja, _Teoria civile e penale

del divorzio_ (Milan, 1803); Mazzoleni, _La famiglia nei

rapporti coll individuo e colla società_ (Milan, 1870); Bianchi,

_Il divorzio_ (Pisa, 1879); Bernardo, _Il divorzio nella teoria

e nella pratica_ (Palermo, 1875); Marescalchi, _Il divorzio e

la instituzione sua in Italia_ (Rome, 1889); and opposed by

Giudici, _Memoria sul divorzio_ (Milan, 1798); Rosmini, _Des

lois civiles concernant le mariage des chrétiens_ (trans.,

Paris, 1853); Zamperini, _Il divorzio considerato nella teoria

e nella pratica di D. di Bernardo_ (Verona, 1876); and Gabba,

"The Introduction of Divorce in Italy," in _Am. Church Review_,

XXXIII (New York, 1881). In France the rise of a sentiment

favoring divorce may be traced in _Cri d'une honnête femme qui

reclame le divorce_ (London, 1770); _Contrat conjugal_ (Paris,

1781; Neuchatel, 1783); Bouchotte, _Observations sur le divorce_

(Paris, 1790); Hennet, _Du divorce_ (Paris, 1792); Tissot, _Le

mariage, la séparation, et le divorce_ (Paris, 1868), giving an

account of the principal French and Italian writers; Naquet, _Le

divorce_ (Paris, 1877); Bertillon, in the works above cited;

Cavilly, _La séparation de corps et le divorce_ (Paris, 1882);

Fiaux, _La femme, le mariage, et le divorce_ (Paris, 1880); and

Dumas, _La question du divorce_ (Paris, 1879; 5th ed., 1880).

Divorce is opposed by Madame Necker, _Réflexions sur le divorce_

(Paris, 1792; or Lausanne, 1794); Bonald, _Du divorce_ (Paris,

1801); Malleville, _Du divorce_ (Paris, 1801); Chrestien,

_Dissertation historique_ (Paris, 1804); Hennequin, _Du divorce_

(Paris, 1832); Ozanam, "Du divorce," in his _Mélanges_, I

(Paris, 1859); Daniel, _Le mariage chrétien et le Code Napoléon_

(Paris, 1870); Durrieux, _Du divorce_ (Paris, 1881); Vidieu,

_Famille et divorce_ (Paris, 1879). This book was answered by

Dumas in the work just cited; and he in turn was replied to by

Féval, _Pas de divorce_ (11th ed., Paris, 1880); and Hornstein,

_Le divorce_ (Paris, 1880). Kellen, _Was ist die Frau?_

(Leipzig, 1892) gives an account, with extracts, of Dumas's

utterances on social questions.

Problems of the family are discussed by Allen, "The New England

Family," _New Englander_, XLI (New Haven, 1882); Dike, _Perils

to the Family_ (Auburndale, 1887); _idem_, _The Family in the

History of Christianity_ (New York, 1886); _idem_, "Problems

of the Family," in _Century_, XXXIX (New York, 1890); _idem_,

"The Religious Problem of the Country Town," in _Andover

Review_, II, III, IV (Boston, 1884-85); Mathews, "Christian

Sociology: the Family," in _Amer. Jour. of Sociology_, I

(Chicago, 1896); Blaikie, _The Family: Its Scriptural Ideal and

its Modern Assailants_ (London, 1889); Mulford, _The Nation_,

chap. xv (New York, 1871); Bushnell, "The Organic Unity of

the Family," in his _Christian Nurture_ (New York, 1861);

Potter, "The Message of Christ to the Family," in his _Message

of Christ to Manhood_ (Boston, 1899); Peabody, "Teachings of

Jesus Concerning the Family," in his _Jesus Christ and the

Social Question_ (New York, 1900); Buckham, "The Relation of

the Family to the State," in _International Review_, XIII (New

York, 1882); Pearson, "Decline of the Family," in his _National

Life and Character_ (London, 1893); answered by Muirhead, "Is

the Family Declining?" in _Internat. Jour. of Ethics_, VII

(Philadelphia, 1896); Commons, "The Family," chap. 10 of his

"Sociological View of Sovereignty," in _Am. Jour. of Sociology_,

V (Chicago, 1900); Stewart, _Disintegration of the Families

of the Workingmen_ (Chicago, 1893); Salter, _The Future of

the Family_ (Chicago, 1885); Devas, _Studies of Family Life_

(London and New York, 1886); Henderson, _Social Elements_ (New

York, 1898); Small and Vincent, _Study of Society_ (New York,

Cincinnati, and Chicago, 1894); Ward, _Dynamic Sociology_, I,

chap, vii (New York, 1883); Thwing, _The Family_ (Boston, 1887);

Planta, _Reconstruction der Familie_ (Chur, 1886); Hermann, _Die

Familie vom Standpunkte der Gesammtwirthschaft_ (Berlin, 1889);

Thiersch, _Ueber Christliches Familienleben_ (8th ed., Augsburg,

1889); Naumann, _Christenthum und die Familie_ (Berlin, 1892);

Riehl, _Die Familie_ (11th ed., Stuttgart, 1897); Gasparin,

_Die Familie_ (Gütersloh, 1870); Koenigswarter, _Hist. l'org.

de la famille en France_ (Paris, 1851); Godelle, _Des principes

fond. de la famille_ (Metz, 1869); Grevin, _L'égalité dans la

famille_ (Douai, 1876); Bobbio, _Sulle origini e sul fond. della

famiglia_ (Turin, 1891); Assirelli, _La famiglia e la società_

(Milan, 1887); Janet, _La famille_ (10th ed., Paris, 1877); Le

Play, _L'organisation de la famille_ (4th ed., Tours and Paris,

1895); Durkheim, _Int. à la sociologie de la famille_ (Bordeaux,

1888); Bonjean, _Enfants révoltés et parents coupables_

(Paris, 1895); Baudrillart, _La famille et l'éducation en

France_ (Paris, 1874); Morillot, _Condition des enfants nés

hors mariage_ (Paris, 1865); Lallemand, _Hist. des enfants

abandonnés_ (Paris, 1885); _idem_, _La question des enfants

abandonnés_ (Paris, 1885); Milhaud, _Protection des enfants sans

famille_ (Paris, 1896); Gaume, _Hist. de la société domestique_

(Paris, 1844), presenting the strong Catholic view; Pelletan,

_La famille: la mère_ (Paris, n. d.). For Germany and England

see Biographical Note XI.

Marriage problems are discussed by Giles, _Treatise on Marriage_

(London, 1771); Ryan, _Philosophy of Marriage_ (3d ed., London,

1839); Amat, _Treatise on Matrimony_ (San Francisco, 1864);

Watkins, _Holy Matrimony_ (London, 1895); Potwin, "Should

Marriage be Indissoluble?" in _New Englander and Yale Review_,

LVI (New Haven, 1892); Malcome, _The Christian Rule of Marriage_

(Philadelphia, 1870); Pomeroy, _Ethics of Marriage_ (New York,

1889); Gray, _Husband and Wife_ (2d ed., Boston, 1886); Lea,

_Christian Marriage_ (London, 1881); Harte, _Laws and Customs

of Marriage_ (London, 1870); Quilter, _Is Marriage a Failure?_

(Chicago, 1889); Colfavru, _Du mariage ... en Angleterre et aux

États-Unis_ (Paris, 1868); Carlier, _Le mariage aux États-Unis_

(Paris, 1860); Cook, "Marriage Celebration in the U.S.," and

"Reform of the Marriage Celebration," both in _Atlantic_, LXI

(Boston, 1888); Snyder, _The Geography of Marriage_ (2d ed.,

New York and London, 1889); Chavassé, _Traité de l'excellence

du mariage_ (Paris, 1685); Gasparin, _Le mariage au point

de vue chrétien_ (2d ed., Paris, 1844); Picot, _Le mariage_

(Paris, 1849); Cadet, _Le mariage en France_ (Paris, 1870);

Acollas, _Trois leçons ... du mariage_ (Geneva and Berne,

1871); _idem_, _Le mariage_ (Paris, 1880); Sincholle, _Le

mariage civil et le mariage religieux_ (Poitiers, 1876);

Legrand, _Le mariage et les mœurs en France_ (Paris, 1879);

Hayem, _Le mariage_ (Paris, 1872); Schoelcher, _La famille, la

propriété, et le christianisme_ (Paris, 1875); Hippel, _Ueber

die Ehe_ (4th ed., Frankfort and Leipzig, 1794); Volkmar,

_Philosophie der Ehe_ (Halle, 1794); Krug, _Philosophie der

Ehe_ (Reutlingen, 1801); Jörg and Tzschirner, _Die Ehe aus dem

Gesichtspunkte der Natur, der Moral, und der Kirche_ (Leipzig,

1819); Stäudlin, _Geschichte der Vorstellungen und Lehren von

der Ehe_ (Göttingen, 1826); Liebetrut, _Die Ehe nach ihrer Idee

und nach ihrer geschichtlichen Entwicklung_ (Berlin, 1834);

Marr, _Der Mensch und die Ehe_ (Leipzig, 1848); Hoffmann,

_Die christliche Ehe_ (Berlin, 1860); Glock, _Die christliche

Ehe und ihre modernen Gegner_ (Karlsruhe and Leipzig, 1881).

Socialistic writers on the subject are Robert Owen, _Marriages

of the Priesthood of the Old Immoral World_ (4th ed., Leeds,

1840); Robert Dale Owen, "Marriage and Placement," in _Free

Inquirer_, May 28 (New York, 1831); Pearson, _Ethic of Free

Thought_ (London, 1888); Besant, _Marriage; As It Was, As It Is,

and As It Should Be_; Gronlund, _The Co-operative Commonwealth_

(3d ed., London, 1891); Morris and Bax, _Socialism_ (London and

New York, 1893); Carpenter, _Love's Coming of Age_; Stürmer,

_Moderner Eheschacher_ (Leipzig, 1894); Proudhon, _Amour et

mariage_ (Brussels and Leipzig, n. d.); and Bebel, _Die Frau

und der Sozialismus_ (31st ed., Stuttgart, 1900), whose book is

discussed by Oettingen, _Zur Theorie und Praxis des Heiratens_

(Leipzig, n. d.). See also Oettingen's _Obligatorische und

fakultative Civilehe nach den Ergebnissen der Moralstatistik_

(Leipzig, 1881); Coulon, _De la réforme du mariage_ (Paris,

1900); Kuhlenbeck, _Reform der Ehe_ (Leipzig, 1891); Ewart,

_Die Emancipation in der Ehe_ (Hamburg and Leipzig, 1895);

Vortmann, _Die Reform der Ehe_ (Zürich, 1894); Lacombe, _Le

mariage libre_ (Paris, 1867); Löwenherz, _Prostitution oder

Production, Eigentum oder Ehe_ (Neuwied, n. d.); especially the

able and radical works of Caird, _The Morality of Marriage_

(London, 1897); Stetson, _Women and Economics_ (Boston, 1900);

and Schreiner, "The Woman Question," in _Cosmopolitan_, XXVIII

(Irvington, 1899); _idem_, "The Woman's Movement of Our Day," in

_Harper's Bazar_, XXXVI (New York, 1902). Swedenborg's system is

set forth in his _Conjugal Love and its Chaste Delights_ (new

ed., London, 1862); it is summarized by Hayden, _Ten Chapters on

Marriage_ (2d ed., Boston, 1863); and expounded by Mann, _Five

Sermons on Marriage_ (New York, 1882).

On questions of heredity and selection consult Nisbet, _Marriage

and Heredity_ (London, 1890); Laurent, _Mariages consanguins

et dégénérescences_ (Paris, 1895); Féré, _La famille

névropathique_ (Paris, 1894); Strahan, _Marriage and Disease_

(London, 1892); Reibmayr, _Die Ehe Tuberculoser_ (Leipzig and

Vienna, 1894); Fournier, _Syphilis und Ehe_ (Berlin, 1881);

Stanley, "Artificial Selection and the Marriage Problem," in

_Monist_, II (Chicago, 1891); _idem_, "Our Civilization and the

Marriage Problem," in _Arena_, II (Boston, 1890); criticised

by Wallace, "Human Selection," in _Fortnightly Review_, XLVIII

(London, 1890); Wertheimer, "Homiculture," in _Nineteenth

Century_, XXIV (London, 1898); and especially Wood, _Some

Controlling Ideals of the Family Life of the Future_ (New York,

1902).

Sex problems are treated by Clarke, _Sex in Education_ (Boston,

1873), who is criticised in the works of Brackett, Howe,

and Greene; Geddes, _Evolution of Sex and Sex in Education_

(1899-1900); Maudsley, _Sex in Mind and Education_ (New York,

1884); Ames, _Sex in Industry_ (Boston, 1875); Lyttelton,

_Training of the Young in the Laws of Sex_ (London and New

York, 1900); Blackwell, _The Human Element in Sex_ (new ed.,

London, 1894); Brown, _Gunethics_ (New York and London, 1887);

Trall, _Sexual Physiology and Hygiene_ (Glasgow and London,

1897); Gardner, _The Conjugal Relations_ (Glasgow and London,

1898); Walker, _Intermarriage_ (Birmingham, 1897); Heinzen,

_The Rights of Women and the Sexual Relations_ (Chicago, 1898);

Tait, _Magdalenism_ (2d ed., Edinburgh, 1842); Lecour, _La

prostitution à Paris et à Londres, 1789-1877_ (Paris, 1882);

Guyot, _La prostitution_ (Paris, 1882); Parents-Duchatelet, _De

la prostitution dans la ville de Paris_ (Paris, 1837); Dühren,

_Das Geschlechtsleben in England_ (Charlottenburg and Berlin,

1901-3); Klebs, _Verhältniss des männ. und weib. Geschlechts in

der Natur_ (Jena, 1894); Herman, _Sexualismus und Aetiologie_

(Leipzig, 1899); Lindwurm, _Geschlechtsliebe_ (Leipzig, 1879);

Debay, _Philosophie des Ehelebens_ (Berlin, 1895); Mantegazza,

_Hygiene der Liebe_ (3d ed., n. p., n. d.); Nemmersdorf, _Der

Kampf der Geschlechter_ (Leipzig, 1891); Daalen, _Die Ehe und

die geschlecht. Stellung der Frau_ (Berlin, 1896); Gardener, "A

Battle for Sound Morality, or the Hist. of Recent Age-of-Consent

Legislation in the U. S.," in _Arena_, XIII, XIV (Boston,

1895); Flower, "Wellsprings of Immorality," _ibid._, XI, XII

(Boston, 1894-95); _idem_, "Social Conditions as Feeders of

Immorality," _ibid._, XII (Boston, 1895); _idem_, "Prostitution

within the Marriage Bond," _ibid._, XIII (Boston, 1895);

Pearson, "Socialism and Sex," in his _Ethic of Free Thought_

(London, 1888). Early German works of interest are _Der rechte

Gebrauch und Missbrauch des Ehe-Bettes_ (Leipzig, 1734); being

a translation of Defoe's _Use and Abuse of the Marriage Bed_

(London, 1727); Hencke, _Volles entdecktes Geheimniss der Natur_

(Braunschweig, 1786); Josephi, _Ueber die Ehe und physische

Erziehung_ (Göttingen, 1788); Heydenreich, _Mann und Weib: ein

Beytrag zur Philosophie über die Geschlechter_ (Leipzig, 1798);

Butte, _Die Biotomie des Menschen_ (Bonn, 1829). See also the

works of Stetson, Caird, Bebel, and Schreiner above mentioned.

In the text an account is given of the early literature of the

movement for woman's emancipation in its relation to marriage.

For further study may be consulted Stanton, Anthony, and Gage,

_History of Woman Suffrage_ (New York and Rochester, 1881-87);

Fawcett, Hirsch, _et al._, in Theodore Stanton's _Woman Question

in Europe_ (New York, London, and Paris, 1884); Ostrogorski,

_Rights of Women_ (London, 1893); Johnson, _Woman and the

Republic_ (New York, 1897), strongly anti-suffrage; Legouvé,

_Hist. morale des femmes_ (8th ed., Paris, n. d.); Cohn, _Die

deutsche Frauenbewegung_ (Berlin, 1896), containing a select

bibliography; Duboc, _Fünfzig Jahre Frauenfrage in Deutschland_;

Sybel, _Ueber die Emancipation der Frauen_ (Bonn, 1870);

Richter, _Das Recht der Frauen auf Arbeit_ (2d ed., Vienna,

1869); Büchner, _Ueber weibliche Berufsarten_ (Darmstadt, 1872);

Morgenstern, _Frauenarbeit in Deutschland_ (Berlin, 1893);

Hertzberg, _Der Beruf der Frau_ (Leipzig, 1892); Jastrow, _Das

Recht der Frau_ (Berlin, 1897); Bridel, _Le droit des femmes_

(Paris, 1893); Günther (R.), _Weib und Sittlichkeit_ (Berlin,

1898); Günther (C.), _Das Recht der Frau auf Arbeit_ (Berlin,

1899); Mont, _Das Weib_ (2d ed., Leipzig, 1880); Gamble,

_Evolution of Woman_ (New York, 1894); Bücher, _Die Frauenfrage

in dem Mittelalter_ (Tübingen, 1882); and Mary Roberts Smith's

able study of the "Statistics of College and Non-College Women,"

in _Pubs. of Am. Stat. Assoc._, VII (Boston, 1901). For further

material see Bibliographical Notes IX, X, XI.]

I. THE FUNCTION OF LEGISLATION

In the United States, not less clearly than elsewhere in countries

of western civilization, marriage and the family are emerging

as purely social institutions. Liberated in large measure from

the cloud of mediæval tradition, their problems are seen to be

identical in kind with those which have everywhere concerned men

and women from the infancy of the human race. Accordingly, the

extension of the sphere of secular legislation practically to the

entire province of these institutions is a phenomenon of surpassing

interest. Consciously or unconsciously, it is a recognition of the

fact that matrimonial forms and family types are the products of

human experience, of human habits, and are therefore to be dealt

with by society according to human needs. In this regard the

Reformation marks the beginning of a social revolution. From the

days of Luther, however concealed in theological garb or forced

under theological sanctions, however opposed by reactionary dogma,

public opinion has more and more decidedly recognized the right of

the temporal lawmaker in this field. In the seventeenth century

the New England Puritan gave the state, in its assemblies and in

its courts, complete jurisdiction in questions of marriage and

divorce, to the entire exclusion of the ecclesiastical authority.

Even the Council of Trent, by adjusting the dogma regarding the

minister of the sacrament, had already left to Catholic states the

way open for the civil regulation of matrimony--a way, as already

seen, on which France did not hesitate to enter.[591] Later the

French Revolution wrested from the church judicial and legislative

authority in matrimonial law and administration, and placed it in

the hands of the state. In 1792, by a wise and tolerant enactment,

civil marriage and civil registration were established; but at the

same time the revolt against the old ecclesiastical régime led to

the sanction of free divorce. Absolute dissolution of wedlock was

then authorized at the mutual desire of both husband and wife, for

incompatibility of temper on the petition of either spouse, and for

seven other specified causes.[592] The natural result was a vast

number of decrees.[593] Accordingly, in 1803 the Code Napoléon,

while retaining civil marriage, adopted a more conservative policy

regarding divorce. Incompatibility was no longer recognized; mutual

consent was admitted under limitations; and the whole number of

specified causes was reduced to five. The divorce law of 1803 was

abrogated in 1816, and only restored in its essential features

in 1884; but the liberal policy of France, as expressed in the

Code Napoléon, has undoubtedly had a powerful influence in the

extension of civil marriage and divorce throughout Europe, where,

as in America, the modern statute-maker has recovered and passed

beyond the point gained by the Roman imperial constitutions between

Augustus and Justinian.

[591] See chap, viii, sec. i; and consult GLASSON, _Le mar. civil

et le divorce_, 210 ff., 232-51.

[592] On the revolutionary legislation regarding marriage and

divorce (1792-1816) see NAQUET, _Le divorce_ (Paris, 1877),

37-56, 153-353, containing extracts from the debates, text of the

laws, reports, and other documents; _Archives parlementaires_,

XXVI, 166-86, giving the report on the proposed civil marriage

law; WRIGHT, _Report_, 1004-6, presenting summaries of the laws;

CHAMPION, "La revolution et la réforme de l'état civil," _La

révolution française_, June 14, 1887; COLFAVRU, "La question

du divorce devant les législateurs de la révolution," _ibid._,

March 14, 1884; KOENIGSWARTER, _Histoire de l'organisation de

la famille en France_, 268 ff.; GLASSON, _Le mar. civil et le

divorce_, 252-75; LEGRAND, _Le mariage et les mœurs en France_,

196-99; DURRIEUX, _Du divorce_, 99 ff.; FÉVAL, _Pas de divorce_,

74 ff.; FIAUX, _La femme, le mariage, et le divorce_, 25 ff.;

VRAYE AND GODE, _Le divorce et la séparation du corps_, I,

7-26; BERTILLON, _Étude démographique du divorce_, 89 ff.;

and in general LASAULX, _Uebereinstimmung der französischen

Ehetrennungsgesetze mit Gotteswort_ (Koblenz and Hadamar, 1816).

A powerful influence on revolutionary opinion must have been

exerted by the remarkable _Contrat conjugal_, published in

1781, again in 1783, and in German translation in 1784, which

advocated civil marriage and free divorce, while attacking

the ecclesiastical system of impediments and dispensations.

The revolutionary ideas regarding divorce are also vigorously

presented by HENNET, _Du divorce_ (3d ed., Paris, 1792); and by

BOUCHOTTE, _Observations sur le divorce_ (Paris, 1790). On the

other hand, the divorce law of 1792 is criticised and divorce

opposed by MADAME NECKER, _Réflexions sur le divorce_ (Paris,

1792; Lausanne, 1794); as in _Du divorce_ (Paris, 1801), 1 ff.,

by BONALD, who opposed the law of 1803 and secured its repeal in

1816. See PÈRE DANIEL'S _Le mariage chrétien et le Code Napoléon_

(Paris, 1870); and for an examination of the literature of the

period, TISSOT, _Le mariage, la séparation, et le divorce_, 174

ff., 180 ff., 196 ff., 211 ff., 222 ff.

[593] In Paris alone during the first twenty-seven months after

the passage of the act 5,994 divorces were granted; while in

1797 the divorce decrees in that city actually outnumbered

the marriages: GLASSON, _Le mar. civil et le divorce_, 261,

262. Accordingly, in 1798, the law was amended so as to make

divorce for "incompatibility allowable only six months after

final failure of attempts at reconciliation;" and this law also

required all municipal authorities to proceed, and all teachers

of public and private schools to take their pupils, "to the usual

meeting places of the community every ten years in person and in

state, there to make stern proclamation of the parties divorced

during the previous decade, with the view of thus checking

divorces."--WRIGHT, _Report_, 1005; NAQUET, _Le divorce_,

212-37, giving documents; BRUN, "Divorce Made Easy," _North Am.

Rev._, CLVII (July, 1893), 12, 13; citing DUVAL, _Souvenirs

thermidoriens_, I, 60, 61. See also the _Rapport_ (27 thermidor,

an. V) of Portalis, who was the chief advocate of the amendment.

In 1800, it is alleged, there were about 4,000 marriages and 700

divorces in Paris. To what extent the relative decrease was due

to the change in the law can only be conjectured.

The right of society to deal freely with the whole province of

marriage, divorce, and the family may be conceded. To determine the

proper character and sphere of legislation is a very different

matter. What is the quality of the existing laws under the

interpretation given to them by the courts? Are they adequate to

secure proper social control? What is the legitimate aim, and what

are the needful limits of future legislation? Should the laws be

uniform for the fifty-three states and territories; and, if so, how

is uniformity to be attained? These are practical questions with

whose solution it is high time that society should more earnestly

concern itself.

_a_) _The statutes and the common-law marriage._--The defects in

the matrimonial laws of the United States are many and grave; but

perhaps the chief obstacle in the way of securing a proper social

control is the general recognition of the validity of the so-called

"common-law marriage." Almost everywhere the public celebration of

wedlock is intended by the statute; and in nearly all the states

a license or certificate is required before the solemnization

may take place. Yet, according to the prevailing doctrine, as

expressed in judicial decisions or in the statutes themselves, these

provisions are interpreted as merely "directory," not "mandatory;"

and marriage contracts made in total disregard of them, by words

of mutual present consent, are sustained as valid, although the

prescribed penalties may be enforced for violation of the written

law. In short, the vicious mediæval distinction between validity and

legality is retained as an element of common matrimonial law in the

United States.[594]

[594] On this doctrine, with the leading cases, see KENT,

_Commentaries_ (14th ed., Boston, 1896), II, secs. 87 ff.,

pp. 119 ff.; REEVE, _The Law of Husband and Wife_ ("Domestic

Relations"), 250-58; GREENLEAF, _Law of Evidence_ (16th ed.,

Boston, 1899), II, secs. 460-64, pp. 441-47; and especially

BISHOP, _Mar., Div., and Sep._, I, secs. 409 ff., pp. 176 ff.

The doctrine that an informal marriage _per verba de praesenti_

is valid unless expressly declared void by "words of nullity" in

the statute is not an invention of the American courts. It is the

doctrine maintained by the English judges previous to the decision

in the case of the Queen _v._ Millis in 1844; and from the evidence

already presented[595] it seems almost certain, if indeed it be

not demonstrated, that it was the accepted doctrine in the English

colonies. According to an able writer, the colonial statutory

"system" entirely superseded the common law; and this system has

been "destroyed" by a revolution, effected through the decisions

of the American courts, "which has introduced into our law much

of the insecurity, the irreverence, the license, of the Middle

Ages," our common law today being "the canon law that existed prior

to the Council of Trent."[596] No doubt our common-law marriage

is thoroughly bad, involving social evils of the most dangerous

character; and no doubt the colonial legislative system was a

remarkable advance upon anything which had elsewhere appeared.

But the common-law marriage was not introduced by the American

judges; nor is it historically correct to say that in the English

colonies it had been entirely supplanted by legislation, however

admirable in its intent and quality that legislation may have been.

For the colonial period, as elsewhere shown, the relation of the

statutes governing marriage to the common law can only partially

be determined from the court records. In the southern colonies the

judicial history of the subject is almost a complete blank.[597]

Other evidence, however, is available. Only during the thirty-five

years between 1661 and 1696 does any statute of Virginia expressly

declare a marriage void if not contracted according to its

provisions. The new law of 1696, enacted in place of the statute

of 1661/2, which was then repealed, declares that "many great and

grievous mischeifes ... dayly doe arise by clandestine and secret

marriages to the utter ruin of many heirs and heiresses;" and yet it

is significant that the words of nullity contained in the earlier

act are omitted. Indeed, by the terms of this law the validity of

an irregular marriage thereafter contracted by a female between the

ages of twelve and sixteen is clearly implied, although she is to be

severely punished.[598] Dissenters had refused to marry according to

the statute which they regarded as oppressive; and their resistance,

perhaps with a feeling that the act of 1661/2 was itself invalid

as being in conflict with the English common law, may have led to

the omission of the words of nullity in all subsequent statutes of

Virginia. After 1696 irregular marriages were probably regarded as

valid, as they certainly were previous to 1661/2; for an act of

1642/3, while prescribing severe penalties for the secret marriage

of indented servants, shows beyond question that such a contract, or

one between a freeman and an indented maid servant, is looked upon

as binding.[599] The facts are much the same for the other southern

colonies. After 1692 the invalidating clause disappears from the

statutes of Maryland. Only between 1766 and 1778, in North Carolina,

is a marriage contracted without previous license expressly declared

to be null and void; and it is enlightening that even during this

short period of twelve years the penalty of invalidity is not

extended to illegal celebration. It was mainly a device of the

lawmaker to secure the governor in his revenue from the license

fees. The South Carolina act of 1706 merely prescribes penalties

for its violation; and, besides, its provisions relating to the

celebration were entirely disregarded in the western country, where

the various religious sects made use of civil forms or practiced

their own peculiar rites. In both the Carolinas as well as in

Georgia, since marriages illegally celebrated before unauthorized

laymen or ministers seem to have been valid, there is little reason

to doubt that clandestine and other informal contracts by present

consent of the parties were likewise good; but regarding this point

we have no positive information.[600]

[595] See chaps. xii-xv, inclusive.

[596] COOK, "The Marriage Celebration in the United States,"

_Atlantic_, LXI, 521. "But in the early part of this century

there arose in the courts a discussion regarding the nature of

our common law, and the relation of that law to our statute

law in governing the celebration of marriage--a discussion

which since then has constantly increased, and has gradually

brought about a revolution unparalleled in the history of our

subject."--_Ibid._

[597] Chap. xv, sec. ii; chap. xiii, sec. iv.

[598] Chap. xiii, sec. i.

[599] HENING, _Statutes_, I, 252, 253. See chap. xiii, sec. i.

[600] For these colonies see chap. xiii, secs, iii, iv.

The history of marriage in the middle and the New England colonies

leads us to a similar result. From the facts brought to light

in the Lauderdale Peerage case, backed by the testimony of Rev.

John Rodgers in 1773, it is almost certainly established that the

common-law marriage was valid in New York province, and that for

eighty-four years preceding the Revolution no other law relating

to the subject was in force.[601] In New England the formalities

prescribed by the statutes were doubtless usually observed. Yet

there were many clandestine and other irregular marriages, and in

some instances we know that these were treated as valid.[602] Such

was the case in the Plymouth jurisdiction, where "self-marriage"

was punished only by a fine. In Massachusetts similar cases of

"hand-fasting" and "self-gifta" appear. In one case, that of

Governor Bellingham in 1641, the contract was not declared void by

the court, although the grand jury had presented his excellency for

his offense. Fifteen years later Joseph Hills, "being presented

by the grand jury for marrying of himself contrary to the law of

the colony," confessed his fault and was merely "admonished by the

court."[603] Moreover, at no time during the colonial and provincial

periods did the statutes of Massachusetts expressly declare

marriages void for disregard of the celebration or other formalities

prescribed;[604] and the same is true of the daughter-colony of

Connecticut. By the Rhode Island acts of 1647 and 1665 the issue

of a union not formed by the "due and orderly course of law" is

pronounced illegitimate; but it is very suggestive that the words of

nullity do not appear in any of the later statutes of that province.

Occasionally in the colonies statutes were enacted to validate

irregular marriages previously contracted. Such were the acts of

Rhode Island, 1698; of North Carolina, 1766; and of Virginia,

1780. But it would clearly be rash to infer that the marriages

concerned were in fact void without such special intervention.

Notoriously this is but a speedy and simple way of quieting doubt

as to the status of the children or their rights of property and

inheritance. Whether a court would nullify the contracts in question

is a different matter. On the whole, the evidence seems clearly

to show that the colonial statutes sustained the same relation to

the English common law as did the constitutions of the English

church requiring the solemnization of wedlock before a clergyman.

The colonial statute, like the ecclesiastical constitution, might

determine the legal forms which must be observed to escape a

penalty; but the common-law marriage was nevertheless valid unless

expressly declared null and void in the act itself. Furthermore, it

is by no means certain that the colonial assemblies were generally

competent, even in this way, to set aside the common law.

[601] Chap. xiv, sec. i, _c_).

[602] Chap. xii, sec. vi.

[603] _MSS. Records of the County Court of Middlesex_ (Apr. 1,

1656), I, 80.

[604] See the case of Usher _v._ Troop (Throop), 1724-29, in

which is raised the question as to whether the "constitutions

and canons ecclesiastical of the Church of England" are binding

in Massachusetts: _MSS. Records of the Superior Court of

Judicature_, 1725-30, fol. 236. _Cf._ chap. xii, secs, i, ii.

After the beginning of independent national life the English common

law as a whole in its various branches was retained as a part

of the law of the land, unless superseded by constitutional or

statutory legislation. It was therefore inevitable that the state

and federal courts, as cases arose, should declare whether it had

been so superseded. There could no longer be any question, as in

the colonial period, regarding the competency of the legislator

to define the conditions of a valid matrimonial contract. A brief

history of the acceptance or rejection of the common-law marriage

in the United States, whether by statute or by judicial decree, may

now be presented.[605]

[605] COOK, "The Mar. Cel. in the U.S.," _Atlantic_, LXI, 520-32,

has given a systematic account of the subject to the year 1888.

To this article, and to his "Reform in the Celebration of

Marriage," _ibid._, 680-90, I am indebted; as also to BENNETT,

"Uniformity in Marriage and Divorce Laws," _Am. Law Register_,

N. S., XXXV, 221-31. _Cf._ CONVERS, _Mar. and Divorce_, 15-119;

STEWART, _Mar. and Divorce_, 78 ff.

The leading case came before the supreme court of New York in

1809, when Chief Justice Kent accepted as binding a common-law

marriage, declaring that no solemnization was requisite; that "a

contract of marriage made _per verba de praesenti_ amounts to an

actual marriage, and is as valid as if made in _facie ecclesiae_;"

and that the existence of such a contract may be proved "from

cohabitation, reputation, acknowledgment of the parties, acceptance

in the family, and other circumstances from which a marriage may

be inferred."[606] This decision determined the policy of New York

for nearly a century, until the common-law marriage was at last

superseded by the statute of 1901; and its influence upon the

tribunals of other states has been increased through the sanction

of its doctrine by the leading authorities upon matrimonial

law.[607] The contract by mere present consent of the parties,

regardless of the statutory requirements, has been widely accepted

as valid in the group of southern and southwestern states and

territories. It was so judicially accepted in South Carolina[608]

at least as early as 1832; in Louisiana[609] in 1833; Georgia[610]

in 1860; District of Columbia[611] in 1865; Alabama[612] in 1869;

Arkansas[613] in 1872; Missouri[614] in 1877; and Florida[615] in

1880. By the earlier decisions of Tennessee a strict compliance with

the statute was required, the court even declaring in 1829[616]

that a marriage solemnized before a justice of the peace out of

his own county was "absolutely null and void." This opinion was

sustained by a decree of 1831; but later judgments favor the

common-law agreement. Texas has had a similar experience. In 1883

and again in 1894 the common-law contract was repudiated, the court

deciding that license and parental consent according to the statute

were essential;[617] but more recently the highest tribunal has

held the opposite view.[618] Among the states of the middle and

western group Pennsylvania in 1814 was first to follow the New York

precedent.[619] Ohio[620] came next in 1861; and Illinois[621] in

1873. By the law of Michigan, declares Judge Cooley decisively in

1875--in an opinion accepted as authority by the federal courts--a

marriage may be good, although the statutory regulations have not

been complied with. "Whatever the form of ceremony, or even if

all ceremony was dispensed with, if the parties agreed presently

to take each other for husband and wife, and from that time lived

together professedly in that relation, proof of these facts would

be sufficient to constitute proof" of a binding marriage; and

"this," he adds, "has become the settled doctrine of the American

courts."[622] This view has been accepted in Iowa[623] in 1876;

Minnesota[624] in 1877; Wisconsin[625] in 1879; Indiana[626] in

1884; Kansas[627] in 1887; Nebraska[628] and Colorado[629] in 1893;

Nevada[630] in 1896; and favored by the decisions of New Jersey[631]

since 1824. Moreover, the Supreme Court of the United States has

sanctioned the same doctrine. In Jewell _v._ Jewell,[632] considered

in 1843, opinions on the question were evenly balanced, just as they

were in the Queen _v._ Millis which came before the Lords during

the next year; but in 1877, in the case of Meister _v._ Moore,[633]

involving a marriage contracted under the law of Michigan, Justice

Strong adopted "as authoritative" Judge Cooley's interpretation

rendered two years before.

[606] In the case of Fenton _v._ Reed (1809), 4 JOHNS., 52; 4

_Am. D._, 244; EWELL, _Cases on Domestic Relations_, 397-99.

Following are the essential facts in this celebrated case. In

1785 John Guest "left the state for foreign parts." During his

absence, in 1792, his wife Elizabeth married Reed. Subsequently

in the same year her first husband, Guest, returned to the state

and there resided until his death in June, 1800. He professed to

have no marital claim upon Elizabeth; so she lived with Reed as

a wife continuously from 1792 until the latter's death in 1806.

Was she the lawful wife of Reed from 1792 to 1800 during the

lifetime of Guest? If not, was she, without the observance of

any formalities, his lawful wife from 1800 to 1806 after Guest's

demise? To the first question the court answered "no," holding

that "the statute concerning bigamy does not render the second

marriage legal, notwithstanding the former husband or wife may

have been absent above five years, and not heard of. It only

declares that the party who marries again in consequence of such

absence ... , shall be exempted from the operation of the statute,

and leaves the question of the validity of the second marriage

just where it found it." To the second question the court

answered "yes," as explained in the text. _Cf._ Starr _v._ Peck,

1 HILL, _N. Y._, 270.

[607] The doctrine of his own decision was formulated in 1826

by KENT in the first edition of his _Commentaries_. Ten years

earlier, in 1816, it had been accepted by REEVE, former chief

justice of Connecticut, in his treatise on the _Law of Husband

and Wife_. It was followed in 1842 by GREENLEAF in his work

on _Evidence_; and later by BISHOP in his well-known book on

_Marriage and Divorce_. On the other hand, the younger PARSONS,

the first edition of whose _Contracts_ appeared in 1853, is

inclined to reject the Kent doctrine: see the 8th ed., II, 78

ff.; and compare COOK, "The Mar. Cel. in the U. S.," _Atlantic_,

XLI, 521, 522.

[608] See Fryer _v._ Fryer (1832), RICHARDSON'S _Equity Cases_,

92 ff. _Cf._ the case of Vaigneur _v._ Kirk (1808), 2 _S. C.

Equity Reports_, 640-46; and 10 MCCORD'S _Statutes_, 357, ed.

note; _ibid._, II, 733, ed. note.

[609] Holmes _v._ Holmes (1833), 6 _La._, 463. In this state,

under influence of French and Spanish law, the common-law

contract appears always to have been regarded as valid.

[610] Askew _v._ Dupree (1860), 30 _Ga._, 173; _cf._ Clark _v._

Cassidy, 64 _Ga._, 662.

[611] Blackburn _v._ Crawfords (1865), 3 WALL., 175; Diggs _v._

Wormley (1893), 21 _D. C._, 477, 485; Jennings _v._ Webb (1896),

8 _App. D. C._, 43, 56. _Cf._ Green _v._ Norment (1886), 5

MACKEY, 80-92.

[612] In Campbell _v._ Gullatt (1869), 43 _Ala._, 57. But see the

earlier decisions in S. _v._ Murphy (1844), 6 _Ala._, 765-72; 41

_Am. D._, 79; and Robertson _v._ S. (1868), 42 _Ala._, 509; being

conflicting and indecisive as to whether the statute is merely

"directory."

[613] Jones _v._ Jones (1872), 28 _Ark._, 19-26. According to S.

_v._ Willis (1848), 9 _Ark._, 196-98, consent of the parent is

not essential.

[614] Dyer _v._ Brannock (1877), 66 _Mo._, 391; 27 _Am. R._,

359. The license required by statute is not essential to a valid

marriage: S. _v._ Bittick (1890), 103 _Mo._, 183.

[615] Daniel _v._ Sams (1880), 17 _Fla._, 487-97.

[616] In Bashaw _v._ S. (1829), 1 YERG., 177; affirmed in Grisham

_v._ S. (1831), 2 YERG., 589; opposed in Andrews _v._ Page

(1871), 3 HEISK., 653-71; and apparently questioned in Johnson

_v._ Johnson (1860), 1 COLDW., 626.

[617] Dumas _v._ S. (1883), 14 _Tex. Cr. App._, 464-74; Tel. Co.

_v._ Procter (1894), 6 _T. C. A._, 300, 303.

[618] Cumby _v._ Henderson (1894), 6 _T. C. A._, 519-23; 25 _S.

W._, 673; Ingersol _v._ McWillie (1895), 9 _T. C. A._, 543, 553;

30 _S. W._, 56; Chapman _v._ Chapman (1897), 16 _T. C. A._, 384;

and especially Railway Co. _v._ Cody (1899), 20 _T. C. A._,

520-24.

[619] Hantz _v._ Sealey (1814), 6 BINN., 405; also Rodebaugh _v._

Sanks (1833), 2 WATTS, 9-12; and Commonwealth _v._ Stump (1866),

53 _Pa._, 132-38.

[620] Carmichael _v._ S. (1861), 12 _Ohio_, 553-61.

[621] Port _v._ Port (1873), 70 _Ill._, 484; Bowman _v._ Bowman

(1887), 24 _Ill. App._, 165-78.

[622] Hutchins _v._ Kimmel (1875), 31 _Mich._, 126-35; 18 _Am.

R._, 164-69.

[623] Blanchard _v._ Lambert (1876), 43 _Iowa_, 228-32. Since

1851 the statutes of Iowa have clearly accepted the common-law

marriage: _Code of Iowa_ (1851), secs. 1474, 1475; _ibid._

(1897), 1124.

[624] S. _v._ Worthington (1877), 23 _Minn._, 528.

[625] Williams _v._ Williams (1879), 46 _Wis._, 464-80; Spencer

_v._ Pollock (1892), 83 _Wis._, 215-22.

[626] Teter _v._ Teter (1884), 101 _Ind._, 129; 51 _Am. R._, 742.

In Roche _v._ Washington (1862), 19 _Ind._, 53, the opposite

position is taken.

[627] S. _v._ Walker (1887), 36 _Kan._, 297; 59 _Am. R._, 556.

[628] Bailey _v._ S. (1893), 36 _Neb._, 808-14.

[629] Israel _v._ Arthur (1893), 18 _Col._, 158, 164; Taylor _v._

Taylor (1897), 10 _C. A._, 303, 304.

[630] S. _v._ Zichefield (1896), 23 _Nev._, 304-18.

[631] Wyckoff _v._ Boggs (1824), 2 HALST., 138-40; and especially

Pearson _v._ Howey (1829), 6 HALST., 12, 18, 20.

[632] Jewell _v._ Jewell (1843), 1 HOWARD, 219-34.

[633] Meister _v._ Moore (1877), 96 _U. S._, 76-83.

On the other hand, in a number of states the courts have decided

that the common-law marriage is entirely superseded by the statutes,

even when these do not contain words of nullity, and sometimes

when they are expressed in terms far less "mandatory" than in some

instances where the opposite doctrine prevails.[634] In the words

of a writer who believes the courts are historically and logically

justified in this view, "they affirm that when from a comparative

study of the whole course of legislation as well as of the terms

of the various statutes, it is the plain intent to make conformity

to any statutory formality indispensable to the constitution of

marriage, such common law is _ipso facto_ repealed, and a marriage

celebrated by mere consent, without this formality, has no validity

whatever in law. One such indispensable formality, at least, they

find in the intent of the statutes, namely, the presence at the

celebration of an authorized third person."[635] First to take this

position was Massachusetts in 1810, the year after Kent's opposite

decision already cited, when Chief Justice Parsons, in an opinion

which has been steadily sustained ever since, but which is not

remarkable for historical knowledge, held that "when our ancestors

left England, and ever since, it is well known that a lawful

[valid?] marriage there must be celebrated before a clergyman in

orders;" and hence in Massachusetts, although "not declared void by

any statute," a "marriage merely the effect of a mutual engagement

between the parties, or solemnized by any one not a justice of the

peace or an ordained minister, is not a legal marriage, entitled to

the incidents of a marriage duly solemnized."[636] Since 1848 the

Massachusetts doctrine has been followed by Vermont.[637] In the

same year it was adopted in New Hampshire;[638] but in the absence

of more recent decisions the law of that state cannot be regarded

as absolutely settled. It was favored in Maine[639] by a decision

of 1841, although the informal contract was not then positively

rejected by a direct decree. The courts of Connecticut are silent on

the question; but the statute declares that all marriages "attempted

to be solemnized by any other person" than those authorized by it

"shall be void."[640]

[634] See BENNETT, "Uniformity in Mar. and Div. Laws," _Am.

Law Register_, N. S., XXXV, 223 ff., who points out that the

statutes of Alabama, Pennsylvania, and Missouri, where the

common-law marriage is valid, are far more prohibitory than those

of Massachusetts, Maryland, or West Virginia, where it is void.

The statute of Alabama says positively that "no marriage shall

be solemnized without a license issued by the judge of probate

of the county where the female resides;" but a marriage so

solemnized is nevertheless valid.

[635] COOK, "The Mar. Cel. in the U. S.," _Atlantic_, LXI, 523.

[636] Milford _v._ Worcester (1810), 7 _Mass._, 48-58. See also,

to the same effect, Commonwealth _v._ Munson (1879), 127 _Mass._,

459-71; 34 _Am. R._, 411. In this case it is correctly held that

Justice Bigelow's decision in Parton _v._ Hervey (1854), 1 GRAY,

119, that the statute is merely "directory," relates to banns

and parental consent, and not to solemnization; for Milford _v._

Worcester is cited as authority.

[637] See the opinion of Judge Redfield in Northfield _v._

Plymouth (1848), 20 _Vt._, 582, holding that a common-law

marriage could not be regarded as valid without "virtually

repealing our statutes," thus reversing the doctrine of Newbury

_v._ Brunswick (1829), 2 _Vt._ 151; 19 _Am. D._, 703; and consult

especially Morrill _v._ Palmer (1895), 68 _Vt._, 1-23, holding

"that what ... Kent calls the 'loose doctrine of the common law,'

in relation to marriage, was never in force in this state."

[638] See the opinion of Chief Justice Gilchrist in Dumbarton

_v._ Franklin (1848), 19 _N. H._, 257, rejecting as irrelevant

Judge Woodbury's _obiter dictum_ in Londonderry _v._ Chester

(1820), 2 _N. H._, 268-81, usually cited to sustain the

common-law marriage; but this objection to it is scarcely valid.

[639] S. _v._ Hodskins (1841), 19 _Me._, 155-60; 36 _Am. D._,

743. _Cf._ Ligonia _v._ Buxton, 2 _Me._, 95. According to Hiram

_v._ Pierce, 45 _Me._, 367, the statute of Maine, like that of

Massachusetts, is only directory regarding parental consent in

case of minors.

[640] _Gen. Stat. of Ct._ (1902), 1086. According to REEVE, _Law

of Husband and Wife_, 252 ff.; followed by KENT, _Commentaries_,

II, secs. 87 ff., the common-law marriage was formerly good in

Connecticut.

Several states of the South have taken a similar stand.

Maryland[641] and North Carolina[642] have thus repudiated the

common-law agreement, a formal celebration being made essential

to a valid marriage. The supreme court of West Virginia has gone

farther, holding that not only solemnization, but also license and

other prescribed formalities, are requisite. "Our statute," runs

a decision of 1887, "has wholly superseded the common law, and in

effect, if not in express terms, renders invalid all attempted

marriages contracted in this state, which have not been solemnized

in compliance with its provisions.... When the terms of the statute

are such that they cannot be made effective, to the extent of giving

each and all of them some reasonable operation, without interpreting

the statutes as mandatory, then such interpretation should be given

them."[643] In 1821 the common-law contract was judicially accepted

in Kentucky;[644] but by the model statute of 1852--remarkable for

clearness and terseness--a "marriage is prohibited and declared

void when not solemnized or contracted in the presence of an

authorized person or society."[645] Likewise in Mississippi until

recently the informal agreement was held sufficient to constitute

the parties husband and wife;[646] but since 1892 the statute

renders a marriage invalid if contracted or solemnized without a

previous license.[647] Moreover, in Porto Rico, by the code of

1902, the authorization and celebration of the contract "according

to the forms and solemnities prescribed by law" are requisite for

a valid marriage.[648] With these six southern and the four New

England commonwealths must be classed five states of the middle

and western division. Two of these--Oregon[649] since 1870 and

Washington[650] since 1892--have proceeded by judicial decree; and

three--California[651] in 1895, Utah[652] in 1898, and New York[653]

in 1901--have superseded the common-law agreement by statutes

containing the nullifying clause.

[641] The common-law marriage was sustained in Cheseldine _v._

Brewer (1739), 1 HAR. AND MCH., 152; overruled and the opposite

doctrine supported in Denison _v._ Denison (1871), 35 _Md._, 361.

In Jackson _v._ Jackson (1894), 80 _Md._, 176-96, it is held that

the "fact that the marriage was performed by a clergyman may

be inferred from the evidence." _Cf._ BISHOP, _Mar., Div., and

Sep._, I, sec. 416, p. 179.

[642] S. _v._ Samuel (1836), 2 DEV. AND BAT., 177-85; followed

in S. _v._ Patterson (1842), 2 IREDELL, _N. C._, 346-60; left

undecided in S. _v._ Ta-cha-na-tah (1870), 64 _N. C._, 614.

_Cf._ S. _v._ Robbins (1845), 6 IREDELL, _N. C._, 23-27, where

apparently a celebration, but not a license, is held essential to

a valid marriage (25); and especially S. _v._ Wilson (1897), 121

_N. C._, 657, where it is declared that a marriage "pretendedly

celebrated before a person not authorized would be a nullity."

[643] Beverlin _v._ Beverlin (1887), 29 _W. Va._, 732-40.

[644] Dumaresly _v._ Fishly (1821), 3 A. K. MARSHALL, 368-77. See

also Commonwealth _v._ Jackson, 11 BUSH., _Ky._, 679.

[645] _Acts_ (1850-51), 212-16 (law in force July 1, 1852);

sustained in Estill _v._ Rogers (1866), 1 BUSH., _Ky._, 62;

Stewart _v._ Munchandler, 2 BUSH., _Ky._, 278.

[646] Hargroves _v._ Thompson (1856), 31 _Miss._, 211; Dickerson

_v._ Brown (1873), 49 _Miss._, 357; Floyd _v._ Calvert (1876), 53

_Miss._, 37; Rundle _v._ Pegram (1874), 49 _Miss._, 751.

[647] _Ann. Code of Miss._ (1892), 679.

[648] _Rev. Stat. and Codes of Porto Rico_ (1902), 805.

[649] Holmes _v._ Holmes (1870), 1 ABB., _Cir. Ct._ (U. S.), 525,

declaring the statute regarding the solemnization of marriage

mandatory.

[650] _In re_ McLaughlin's Estate (1892), 4 _Wash._, 570; 30

_Pac. R._, 651; _in re_ Wilbur's Estate (1894), 8 _Wash._, 35.

[651] It may require judicial interpretation to determine the

law of California. Sec. 55 of the _Civil Code_, since the act of

1895, does not contain the _usual_ words of nullity; but sec. 68

declares that a marriage is not invalidated by violation of the

provisions governing solemnization, license, authentication, and

record "_by other than the parties themselves_." One or two of

the superior court judges have already decided that the statutory

formalities are mandatory.

[652] The _Rev. Stat. of Utah_ (1898) rendered marriage void when

not celebrated before an authorized person. Before this date a

common-law contract was binding: U.S. _v._ Simpson, 4 _Utah_,

227; 7 _Pac._, 257.

[653] See chap. xvi, sec. iii, _a_).

All the other states and territories have enacted laws governing

the celebration and other preliminaries of marriage; but whether

these laws are to be regarded as mandatory or merely directory has

not yet been judicially determined. The courts are thus silent in

Connecticut and Rhode Island,[654] of the New England group; in

Arizona, Indian Territory, New Mexico, Oklahoma, and Virginia, of

the southern and southwestern group; in Alaska, Delaware, Hawaii,

Idaho, Montana, North Dakota, South Dakota, and Wyoming,[655] of

the middle and western division. Of these Delaware, Virginia,[656]

and Connecticut would probably reject the common-law doctrine, were

the question brought to a judicial test; while it would almost

certainly be accepted by the courts of the other twelve states

and territories, should the statutes remain as they are. Indeed,

in a number of the last-named states, notably in Idaho, Montana,

and South Dakota, it is virtually sanctioned by the terms of the

statutes themselves.

[654] In Peck _v._ Peck (1880), 12 _R. I._, 485-89, the court

declined to decide whether a common-law contract is valid, there

being no prohibitory language in the statute. _Cf._ also S.

_v._ Boyle (1882), 13 _R. I._, 537; and Ben. Association _v._

Carpenter (1892), 17 _R. I._, 720. In Williams _v._ Herrick

(1899), 21 _R. I._, 401-3, the court appears to favor the

validity of a marriage without a formal ceremony, if begun with

"matrimonial intent."

[655] According to Connors _v._ Connors (1895), 40 _Pac._, 966, a

license is not essential in Wyoming.

[656] In Beverlin _v._ Beverlin, 29 _W. Va._, 736, the judge

says, "I have been unable to find any case in which the courts of

Virginia or this state have ever held that a common-law marriage

was held valid;" and this, he adds, is "persuasive evidence" that

it is not. In Colston _v._ Quander (1877), 1 _Va. Decisions_

(not officially reported), license is declared not essential;

but in this case there was a formal celebration. On the probable

position of the states which have not decided see COOK, _The Mar.

Cel. in the U. S._, 525, 526.

It appears, then--to summarize the details presented in the

foregoing discussion--that twenty-three states and territories

have already sanctioned or favored the common-law marriage; while

twelve others are soon likely to do so, unless the statutes

shall be changed. On the contrary, eighteen commonwealths have

repudiated or are inclined to repudiate the informal agreement.

Six of these, it should be noted, have liberated themselves by

statute; five--Mississippi, California, Utah, New York, and Porto

Rico[657]--having done so within the last ten years. This is a

fact of vast social importance. From it the reformer may gather

new courage. In such legislation, in response to a better-educated

popular sentiment, lies the hope of the future: to free American

society from the manifold evils which lurk in the doctrine of the

common-law marriage. It is, indeed, marvelous that a progressive

people with respect to an institution which is the very basis of

the social order should so long neglect the function of proper

public control. For what, according to its nature, is the common-law

marriage? Its possibilities for anarchy are realistically described

by Chief Justice Folger, of New York, in 1880, when that state was

still exposed to them. "A man and a woman," he declares, "who are

competent to marry each other, without going before a minister or

magistrate, without the presence of any person as a witness, with

no previous public notice given, with no form or ceremony, civil

or religious, and with no record or written evidence of the act

kept, and merely by words of present contract between them, may

take upon themselves the relation of husband and wife, and be bound

to themselves, to the state, and to society."[658] Verily this is

individualism absolutely unrestrained! It is the simple truth, as

already suggested, that in principle the canon law as it existed in

Catholic lands before the Council of Trent, and in England until the

marriage act of 1753, with a possibility of all of its attendant

scandals and hardships, still survives in the United States.[659]

The apology of the Middle Ages was found in the sacramental dogma.

Matrimony as such, under whatever conditions contracted, was too

"holy" to be dissolved or effectively hindered for the ordinary

prudential reasons which appeal to the statesman or legislator.

Today there is doubtless a lingering tradition of the same false

sentiment. Yet the common-law marriage is now supported on two

principal grounds. The innocent offspring, we are told, ought not to

suffer because the parents have neglected the formalities prescribed

by a mere statute. Moreover, to declare an irregular, perhaps a

clandestine, union void is to invade the most sacred right of the

individual. There is urgent need that the American people should

realize the fallacy of such arguments. Far better that the children

of a delinquent minority should bear the stain of illegitimacy than

that the welfare of the whole social body should be endangered. For

the same reason the supposed right of the individual must yield to

the higher claims of society. In no part of the whole range of human

activity is there such imperative need of state interference and

control as in the sphere of the matrimonial relations. In this field

as in others we are beginning to see more clearly that the highest

individual liberty can be secured only when it is subordinated to

the highest social good. It is, however, not merely the public which

suffers. "Our common-law marriage fails to protect not only the

contracting parties, but also the families to which they belong.

Indeed to protect the latter it makes not the least attempt, and in

this respect it is far behind the law of Western Europe."[660] As a

preliminary to a general reform of our marriage laws as a whole it

is earnestly to be desired that every state or territory not already

emancipated should enact a statute as clear and decisive as that of

Kentucky, Utah, or New York, absolutely repudiating the common-law

contract. It is only through legislation that this revolution can

be effected. It is not the proper function of the courts to attempt

it. It may be that those states which have superseded the common

law through judicial interpretation of their statutes have done

well. The end has perhaps justified the means. It is quite possible

that in those cases it was the intent of the lawmaker to render the

statute mandatory. Nevertheless he did not express his intent in

the form which has itself become a part of the common law. Chief

Justice Parsons and his followers may have been enforcing a "higher

law;" but it was a "judge-made" law. History is on the side of Chief

Justice Kent and the great number of jurists who have followed him.

Moreover, it is evident from the trend of recent decisions that

not much more can be expected from the courts. According to the

overwhelming weight of juridical opinion, to go farther in this

way would be to legislate consciously through the bench. Besides

"bench-made" law is always _ex post facto_. The only practical

course is to create or further develop a sound popular sentiment in

favor of proper social control of the marital relation; and then to

express that sentiment in statutes whose terms are mandatory beyond

the possibility of evasion.

[657] Of course the statute of Porto Rico must be regarded as

preventing, not abolishing, the common-law marriage.

[658] Quoted by COOK, "The Mar. Cel. in the U. S.," _Atlantic_,

LXI, 526. On the frauds perpetrated under the guise of the

common-law marriage see also the opinion of Judge Pryor of New

York: quoted by RICHBERG, _Incongruities of the Divorce Laws_,

61, 62. "It is singular," said Chief Justice Gilchrist in 1848,

"that the most important of all human contracts, on which the

rights and duties of the whole community depend, requires less

formality for its validity than the conveyance of an acre of

land, a policy of insurance, or the agreements which the statute

of frauds requires should be in writing."--Dumbarton _v._

Franklin, 19 _N. H._, 264, 265.

[659] Except, perhaps, in practically getting rid of the subtle

doctrine of marriage _per verba de futuro cum copula_: see the

decision in Starr _v._ Peck (1841), 1 HILL, _N. Y._, 270; EWELL,

_Cases_, 403. _Cf._ Cheney _v._ Arnold (1857), 15 _N. Y._, 345;

EWELL, 407-13; this being followed in Duncan _v._ Duncan, 10

_Ohio_, 181; but discarded in Port _v._ Port, 70 _Ill._, 484; and

Peck _v._ Peck, 12 _R. I._, 484; 34 _Am. R._, 702. _Cf._ BISHOP,

_Mar., Div., and Sep._, I, secs. 353-77, pp. 147-62; KENT,

_Commentaries_, II, sec. 87 ff., pp. 119 ff.

[660] COOK, "The Mar. Cel. in the U. S.," _Atlantic_, LXI, 528.

_b_) _Resulting character of matrimonial legislation._--The absurd

and demoralizing conflict between common-law validity and statutory

legality ought first to be abolished, because in large measure it

hinders, even frustrates, the effort to develop a thorough and

uniform system of matrimonial administration in the United States.

This once effected, there will remain plenty of hard work to do. If

we consider the details of our legislation, as already analyzed in

the sixteenth chapter, we perceive in nearly every department urgent

need of reform, often of radical innovation. Almost everywhere there

is a want of clearness, certainty, and simplicity; and this defect

is all the more harmful because of the lack of uniformity among

the different states. Diversity, even conflict, in every branch of

state legislation is a burdensome incident of the federal system;

and in no branch is the evil more formidable than in the field of

marriage and divorce. As hereafter suggested, we need not despair

of eventually overcoming it; but from the very nature of the case

it may be many years before an effective remedy can generally be

applied. In the meantime it is all the more necessary that the

laws of each individual state should be made as clear, simple, and

efficient as possible, and that every opportunity should be seized

to prepare the way for a common matrimonial code for the whole

country.

First of all, the statutes relating to the preliminaries of

marriage ought to be overhauled. Already during the past century

progress has been made. Within the last two decades in particular

many reforms in matters of detail have been carried out in various

states. Furthermore, in the broad features or outlines of the law

throughout the country an approximation to a uniform system has

been attained; and this fact may be of great significance when the

task of securing absolutely the same law for all the states is

earnestly taken in hand. Thus there is practical agreement among

the states and territories in requiring a license from a local

civil officer before a marriage may be legally celebrated. The dual

system of banns or license survives only in Maryland, Georgia,

Delaware, and Ohio. All the other states and territories, except

Alaska, New Mexico, and South Carolina, where there is no statute

governing the subject, with New York and New Jersey, where there is

a substitute plan, have each adopted a system of civil license or

certificate, the same in its purpose, though varying widely in the

forms and procedure prescribed. This is a stride in the direction

at once of simplicity and harmony; and besides, for its own sake,

it is well to get rid of the ancient device of oral banns, which

has proved as unsatisfactory in America as in the Old World. Again,

we have developed substantially a common statutory law regarding

the manner of entering into the marital relation. Everywhere,

except in Maryland and West Virginia, where a religious ceremony

is essential to a valid union, the optional civil or religions

ceremony, at the pleasure of the persons contracting, is sanctioned

by the law. As already seen, this dual system has its roots planted

deeply in the history of two centuries. It is clearly entitled to be

regarded as the American plan; although since 1836, with important

modifications, it has also been accepted in the British Isles. It

does not follow, however, that it is the ideal plan. It is too

complex; and it is an obstacle in the way of developing the most

efficient system of matrimonial administration. It is inconsistent

with a proper social control. It will prevent the attainment of the

"maximum of simplicity and the maximum of certainty" in matrimonial

legislation. It is awkward, thoroughly illogical, to intrust the

execution of that part of the law on which publicity and security so

much depend to two different classes of persons: the one consisting

of civil officers created and wholly under control of the state; the

other in its origin, its personnel, and its character completely

beyond such control, and only subject to administrative rules and

restraints. With this system it will be very difficult to establish

a proper standard of special fitness, of special knowledge, such

as is highly needful to exact from public servants intrusted with

functions of vast social importance. European peoples have reached

a wiser solution of the problem in prescribing in all cases without

exception, as the prerequisite of a valid marriage, the obligatory

celebration before an authorized civil officer, leaving the wedded

pair to decide, as wholly a private matter, whether a religious

ceremony shall be added.