Chapter XVII (1)

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

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

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

I. THE NEW ENGLAND STATES

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[60] _Ibid._

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[73] See 1 PICKERING, 510, 511.

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

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

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

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

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

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

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

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

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

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

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

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

[83] SLADE, _State Papers_, 364.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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