Chapter XVII (2)

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the hope of securing the presence of the libellee, or it may require the latter's deposition.[105] This provision was repealed in 1886.[106] By the present law, when the "libellee is without the state, the libellant may file his libel in the office of the clerk of the court in the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

[102] _Rev. Stat. of Maine_ (1884), 521.

[103] _Gen. Stat. of Conn._ (1887), 612; as modified by the act
of May 11, 1899: _Pub. Acts_, 1042. For the earlier laws as to
notice see _Acts and Laws_ (1797), 457; _Pub. Stat._ (1821), 178;
_Pub. Stat. Laws_ (1835), 162, 163; _Rev. Stat._ (1849), 274,
275; _Stat. of the State_ (1854), 379, 380. _Cf._ _Gen. Stat._
(1902), 1090.

[104] _Gen. Stat. of Conn._ (1887), 613.

[105] _Vermont Acts and Resolves_ (1884), 86.

[106] _Acts and Resolves_ (1886), 50.

[107] _Vermont Stat._ (1894), 508.

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

[108] Act of June 2, 1898: _Acts and Resolves_, 443; _cf._ _Rev.
Laws_ (1902), II, 1353, 1354.

[109] Rhode Island, in _Pub. Laws_ (1902), 41, has provided that
no divorce from the bond of marriage shall be granted "unless
the defendant shall, in accordance with the rules adopted by the
court, have been personally served with process, if within the
state, or with personal notice duly authenticated, if out of the
state, or unless the defendant shall have entered an appearance
in the cause; or unless it shall appear to the satisfaction of
the court that the petitioner does not know the address nor the
residence of the defendant and has not been able to ascertain
either after reasonable and due inquiry and search for six
months," in which case the court may authorize publication. For
the former law see _Pub. Stat._ (1882), 428; superseded by _Gen.
Laws_ (1896), 635. _Cf._ _Stat. of N. H._ (1891), 497.

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

[110] _Rev. Stat. of Mass._ (1835), 481; _Pub. Stat. of Mass._
(1882), 815; _Rev. Laws of Mass._ (1902), II, 1355; _Pub. Stat.
of N. H._ (1900), 592; _Rev. Stat. of Maine_ (1884), 522.

[111] _Rev. Stat. of Mass._ (1835), 482; _Pub. Stat. of Mass._
(1882), 810; _Rev. Laws of Mass._ (1902), II, 1347; _Rev. Stat.
of Maine_ (1884), 523.

[112] _Rev. Stat. of Maine_ (1847), 367; _ibid._ (1883), 529;
_Rev. Stat. of N. H._ (1843), 293; _Vermont Stat._ (1894), 505;
_Rev. Laws of Mass._ (1902), II, 1346.

[113] As in Rhode Island: _Gen. Laws_ (1896), 840; and Vermont:
_Stat._ (1894), 273; Maine: _Acts and Resolves_ (1899), 89. _Cf._
_Pub. Stat. of N. H._ (1891), 622.

[114] As in Maine: _Acts and Resolves_ (1899), 89; _Rev. Stat._
(1884), 521; _ibid._ (1847), 368.

[115] _Vermont Stat._ (1894), 512; _Gen. Laws of R. I._ (1896),
636; _Gen. Stat. of Conn._ (1887), 613; _Pub. Stat. of Mass._
(1882), 815. In Maine the court may change the wife's name "at
her request": _Acts and Resolves_ (1901), 167.

[116] _Vermont Stat._ (1894), 512.

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

[117] By the Vermont act of Nov. 22, 1898: _Acts and Resolves_,
38, 39, when a married woman files a libel for divorce and prays
for alimony, the husband is enjoined from conveying or removing
from the state, during pendency of the libel, such portion of
his estate as the judge may think necessary to secure alimony,
and from concealing or interfering with the property or clothing
of the wife and minor children, or such portion of his personal
property as may be at the time in her possession.

[118] _Pub. Stat. of Mass._ (1882), 814; _Laws of Mass._ (1821),
508, 509; _Rev. Stat. of Mass._ (1835), 482; _Vermont Stat._
(1894), 509; _Rev. Stat. of Maine_ (1884), 521; _Rev. Stat. of N.
H._ (1843), 294.

[119] _Vermont Stat._ (1894), 510, 511.

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

[120] _Pub. Stat. of Mass._ (1882), 814-16; _Rev. Laws_ (1902),
II, 1355.

[121] For New Hampshire, see _Pub. Stat._ (1900), 592, 593. The
law of Connecticut is very general. For instance, the court may
assign the woman as alimony any part of her late husband's estate
not exceeding one-third thereof. If divorced for her misconduct,
all property received from the husband in consideration of the
marriage or of "love and affection" must be restored. A minor
child must be supported by the parents; and upon complaint of
either of them at any time, the court may inquire into their
pecuniary ability, and pass a decree against either or both for
its just maintenance: _Gen. Stat. of Conn._ (1888), 612-14. See
also _Gen. Laws of R. I._ (1896), 633-36; _Rev. Stat. of Maine_
(1884), 520-23, where it is provided that, when a divorce is
decreed for the adultery of the wife, the husband "may hold her
personal estate forever, and her real estate, of which she was
seized during coverture, during his life, if they had a child
born alive during marriage, otherwise during her life only, if he
survives her; but the court may allow her so much of her real or
personal estate as is necessary for her subsistence."--_Ibid._,
522. But by an act of 1903 it is provided that where the wife
is at fault the husband is "entitled to one-third, in common
and undivided of all her real estate, except wild lands, which
shall descend to him as if she were dead;" and the court in
its discretion may grant him a part of her personal estate. In
all cases the right, title, or interest of the libellee in the
libellant's real estate is barred by the decree of divorce: _Acts
and Resolves_ (1903), 171.

[122] _Vermont Stat._ (1894), 509 ff.

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

[123] Massachusetts made such provision in 1882. Clerks of court
are to submit annual reports to the secretary of the commonwealth
who is to embody the facts in his own report to the legislature.
The first report is to cover the period 1879-82: _Supp. to Pub.
Stat., 1882-88_, 40, 41. In Connecticut and Rhode Island the
clerks are to make a similar report to the secretary of the
state board of health: _Gen. Stat. of Conn._ (1887), 566, 567:
_Gen. Laws of R. I._ (1896), 768, 322. The same officer is made
register of vital statistics in New Hampshire: _Pub. Stat._
(1891), 490; and that state has provided that the clerks of the
supreme court shall report to the register the record of all
divorces decreed since July 1, 1858: _Laws_ (1901), 513. Similar
reports of decrees _nisi_ are required in Maine: _Rev. Stat._
(1884), 522. Vermont has provided for the registration of decrees
under general direction of the secretary of the state board of
health, who is to publish a biennial report, beginning in 1900:
_Acts and Resolves_ (1898), 41 ff.

II. THE SOUTHERN AND SOUTHWESTERN STATES[124]

[124] In this section are considered the laws of the District of
Columbia and Porto Rico; the four territories, Arizona, Indian
Territory, New Mexico, and Oklahoma; and the fifteen states,
Alabama, Arkansas, Florida, Georgia, Kentucky, Louisiana,
Maryland, Mississippi, Missouri, North Carolina, South Carolina,
Tennessee, Texas, Virginia, and West Virginia.

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

[125] See chap. xv, sec. ii.

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

[126] _Laws of Md._ (1790), chap. xxv. _Cf._ BACON, _Laws of Md._
(1715), chap. 44, sec. 26.

[127] _Laws of Md._ (1805), chap. xxxiii.

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

[128] _Maryland Laws_ (1806-7), chaps. xxxix, lxix, lxxvi,
lxxvii, lxxx.

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

[129] Thus the _Laws_ of 1807-8, chaps. xx (no cause given), xxx
(no cause given), ciii (desertion and elopement of wife), clxvi
(no cause given), yield four cases; and the _Laws_ of 1809,
chaps. xxiv, l, two cases more (no cause assigned).

[130] Act of Feb. 27, 1830: _Laws_ (1829-30), chap. 202.

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

[131] Act of March 4, 1836: _Laws_ (1835-36), chap. 128. Twelve
months' residence is required by this act.

[132] Act of March 9, 1841: _Laws_ (1840-41), chap. 238.

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

[133] For the numerous cases of legislative divorce see the
_Index to the Laws of Maryland, 1826-31_; _ibid._, _1832-37_;
_ibid._, _1837-45_, 224-29.

[134] The constitution of 1851, Art. III, sec. 21, declares that
"no divorces shall be granted by the General Assembly."

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

[135] Act of Feb. 17, 1827: _Acts of the Gen. Assembly_
(1826-27), 21, 22. The same act is repeated in _Supp. to Rev.
Code_ (1833), 222, 223. The law of 1827 appears to be the first
legislation of Virginia on the subject of divorce, although
"lawful divorce"--meaning doubtless that of the legislature--is
incidentally mentioned in the act of 1792: _Acts_ (1794), 205.
The act of 1827 provides in all cases for an appeal to the court
of appeals, but, apparently, not in divorces granted by the
assembly.

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

[136] Thus, on Jan. 25, 1827, Macy, _alias_ Amasa Gay (formerly
Birdsong), got a divorce from her husband Charles. The cause
is not mentioned, but he is not permitted to marry during her
lifetime: _Acts_ (1826-27), 126. On Jan. 27, 1827, David Parker,
of the county of Nansemond, was released from his wife Jane, who
likewise was not allowed to remarry: _ibid._, 126.

[137] Act of March 18, 1848: _Acts of the Assembly_ (1847-48),
165-67.

[138] Constitution of 1851, Art. IV, sec. 35: see _Code_ (1860),
48.

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

[139] _Laws_ (1814), chap. 5; also in _Haywood's Manual of the
Laws of N. C._ (1819), 174-78.

[140] _Acts_ (1818), chap. 968.

[141] This inference is justified by the words of the act as
quoted, and from the clause declaring "that all applications for
other causes than those specified"--in the act of 1814--"shall
be subject to the rules and regulations provided in said act for
the causes therein mentioned."--_Acts_ (1827-28), 19, 20. The law
of 1814, as to causes, appears unaltered in _Laws of the State_
(1821), II, 1292-95.

[142] POORE, _Charters_, II, 1416 (1835), 1439 (1876).

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

[143] By the ninth amendment to the constitution of 1820,
ratified at the session of 1852-53: _Rev. Stat._ (1856), I, 96;
POORE, _Charters_, II, 1122. The prohibition is retained in the
constitution of 1875, Art. IV, sec. 53: POORE, _Charters_, II,
1175.

[144] Act of Jan. 31, 1833: _Laws of a Public and General Nature_
(1842), II, 361.

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

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

[145] WRIGHT, _Report_, 388, 389, 155.

[146] Act of March 10, 1803: _Stat. of Miss. Ter._ (1816), 252-54.

[147] Constitution of 1817, Art. VI, sec. 17: POORE, _Charters_,
II, 1064; carried out by act of June 15, 1822: _Code of Miss._
(1848), 496.

[148] _Laws_ (1833), 235 ff.; Const. of 1832, Art. VII, sec.
15: POORE, _Charters_, II, 1077. The omission of the clause
expressly requiring legislative sanction in the constitution of
1832 seems clearly to be intended to abolish legislative divorce.
Yet the act of 1840 makes the decrees of the courts "final and
conclusive, as fully as though the same had been confirmed by
the legislature;" from which language one would naturally infer
that the legislature had continued to ratify divorces after the
constitution went into effect: _Laws_ (1840), 51.

Legislative divorce is prohibited by the constitution of 1868,
Art. IV, sec. 22: POORE, _Charters_, II, 1084; and by Art. IV,
secs. 87 and 90 of the constitution of 1890: _New York Convention
Manual_, Part II, Vol. I, 1067 (1894).

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

[149] The act also appears in _Digest of Laws of Ala._ (1823),
252.

[150] _Digest_ (1823), 254.

[151] Art. VI, sec. 3, Const. of 1819: _Digest_ (1823), 255:
POORE, _Charters_, I, 42.

[152] Act. of Dec. 21, 1820: _Digest_ (1823), 256.

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

[153] For these examples see _Digest_ (1823), 256-58 (those of
1821-22); _Acts_ (1843), 143-47; _Acts_ (1843-44), 210; _Acts_
(1849-50), 517.

[154] _Cf._ Const. of 1865, Art. IV, sec. 30; that of 1867,
Art. IV, sec. 30; and that of 1875, Art. IV, sec. 23: POORE,
_Charters_, I, 53, 65, 81.

[155] _Acts_ (1882-83), 587.

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

[156] _Acts Passed at the First Session of the Leg. Council of
the Ter. of Orleans_ (1805), 454-56. On May 1, 1805, a divorce
was granted to James Elliot and Sophia his wife: _ibid._, 456-58.

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

[157] LISLET, _Gen. Digest_, II, Appendix, 25, 26, gives the
list, with dates. These divorce acts, as usual, fill each but two
or three lines in the statute-book, and usually the cause is not
assigned. For examples see _Acts_ (1822), 12; _ibid._ (1826), 34,
58, 60, 62, 222; and _ibid._ (1827), 12, 18, 24.

[158] By the act of March 19, 1827: _Acts_, 130-35.

[159] Const. of 1845, Art. CXVII: POORE, _Charters_, I, 721; also
Const. of 1852, Art. CXIV: POORE, _op. cit._, I, 735; _Civil
Code_ (1853), 19; Const. of 1864, Art. CXVII; and Const. of 1868,
Art. CXIII: POORE, _op. cit._, I, 750, 767.

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

[160] Fifteen of these divorces were granted by the one act of
Feb. 7, 1879: _Acts and Resolutions_ (1879), 5-8; for the others
see _ibid._, 46, 112; and compare the act of Congress of July 30,
1886: _Statutes at Large_, XXIV, 170. In the same year, 1879,
twenty-eight divorces were granted by the courts of Arizona, and
five in the year before: WRIGHT, _Report_, 151.

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

[161] Act of Jan. 31, 1809: LITTELL, _Stat. Law_ (1814), IV, 19,
20.

[162] Const. of 1850, Art. II, sec. 32: POORE, _op. cit._, I, 671.

[163] See the Index to _Acts of the Gen. Assembly_ for each year,
1809-50.

[164] Act of Feb. 23, 1837: _Acts_ (1836-37), 323, 324.

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

[165] _Acts of the Gen. Assembly_ (1842-43), 205, 206.

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

[166] See chap. xv, sec. ii.

[167] Const. of 1798, Art. III, sec. 9: _Digest of Laws of Ga._
(1801), 40; POORE, _op. cit._, I, 394.

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

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

[168] Act of Dec. 1, 1802: in _Compilation of Laws of Ga._
(1812), 98-100.

[169] _Compilation of Laws of Ga._ (1812), 312-14.

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

[170] PRINCE, _Digest_ (1837), 190; Head _v._ Head, 2 _Georgia_,
193.

[171] In the _Compilation of Laws_ (1812), 61, 83, 113, 202-4,
264, 385, 408, 508, 509, 512, 569, are eighteen divorce acts;
many appear in _Laws of Ga., 1810-19_ (1821), 193-96, 252-63;
and eighty-six cases, in DAWSON, _Compilation, 1819-29_ (1831),
141-53.

[172] PRINCE, _Digest_ (1837), 187, note, gives the following
summary, which appears to be inconsistent: "The number of persons
divorced by the legislature since the date of the present
constitution up to the close of the annual session of 1835, is
291, averaging from 1800 to 1810, about 4; from 1810 to 1820, 8;
from 1820 to 1830, 18, and since that time, 28 per annum." If
his averages are correct, the total number for the entire period
would be about 440.

[173] Nov. 27, 1807: _Compilation_ (1812), 385, 386.

[174] _Laws of Ga., 1810-19_ (1821), 262, 263.

[175] Const. 1798, Art. III, sec. 9, amendment of 1833, in force
1835: PRINCE, _Digest_ (1837), 911; POORE, _Charters_, I, 399.

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

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

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

[176] See chap. xi, sec. 3, _c_).

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