Part 3 — CHAPTER XVII A CENTURY AND A QUARTER OF DIVORCE LEGISLATION IN THE UNITED STATES, 1776-1903

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

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

I. THE NEW ENGLAND STATES

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

II. THE SOUTHERN AND SOUTHWESTERN STATES[124]

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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