Chapter XVII (3)

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

[177] _Code Napoléon_, Nos. 233, 275-97.

[178] Case of Head _v._ Head, 2 _Georgia Reports_, 191-211.

[179] Const. of 1798, Art. III, sec. 9, amendment of 1849: COBB,
_Digest_ (1851), 1123; POORE, _Charters_, I, 401.

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

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

[180] For natural and incurable impotency of body at the time of
entering into the matrimonial contract; as also for idiocy and
bigamy.

[181] Act of Feb. 17, 1827: _Acts of Gen. Assembly_ (1826-27),
21, 22. _Cf._ same law in _Supp. to Rev. Code_ (1833), 222, 223.

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

[182] Act of March 17, 1841: _Acts of the Assembly_ (1840-41),
78, 79. The court may declare contracts void on the grounds named
in 1827, "or for any other cause for which marriage is annulled
by the ecclesiastical law" (78).

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

[184] _Va. Code_ (1849), 561. Probably the abandonment or
desertion is for a time less than five years, as the latter
period is sufficient for a divorce _a vinculo_: _Code_ (1860),
530, and note. On joint application of the parties and due
evidence of reconciliation, a decree of separation may be revoked
by the same court granting it; and when three years have elapsed
without reconciliation after such a decree, the court may grant
a full divorce: _Acts_ (1895-96), 103; modified by _ibid._
(1902-3), 87, 98.

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

[185] This cause was added by the act of March 23, 1872: _Acts of
the Assembly_ (1871-72), 418, 419.

[186] _Code of Va._ (1887), 561: _Acts of the Assembly_
(1852-53), 47, 48. The term of desertion was reduced from five to
three years by _Acts_ (1893-94), 425.

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

[187] _Code of West Va._ (1891), 612, 613; _ibid._ (1900),
660-62. It is provided that "a charge of prostitution made by the
husband against the wife falsely shall be deemed cruel treatment,
within the meaning of this section."--_Code_ (1900), 662. The
penalties for bigamy do not extend to a person forming a new
marriage when the husband or wife has been absent seven years and
not heard from: _ibid._, 971.

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

[188] As early as 1800 separate maintenance is secured to the
wife in certain cases. It is enacted "that any court of quarter
sessions or district court, shall be vested with jurisdiction
to hear and determine applications from wives against their
husbands for alimony, in cases where the husband has, or may
hereafter desert or abandon his wife for the space of one year
successively, or where he lives in open avowed adultery with
another woman for the space of six months, and in cases of cruel,
inhuman, and barbarous treatment."--_Digest of the Stat. Laws
of Ky._ (1834), I, 121. Such cruel treatment warrants alimony
even when life is not endangered: 2 J. J. MARSHALL, 324; but not
divorce: _ibid._, 322.

"Before the passage of the above act, the chancellor had power
to grant alimony, and since the statute it may be decreed in
cases not embraced by it."--_Digest_ (1834), I, 121, note.
"After a decree for alimony, the power of the husband over the
wife shall cease;" and she may use such alimony, and acquire and
dispose of any property, "without being subject to the control,
molestation, or hindrance" of the husband, as if she were a _feme
sole_: _ibid._, I, 122. The two kinds of common-law divorce,
in canonical sense, were originally recognized in Kentucky:
HUMPHREY, _Compendium of the Common Law in Force in Ky._ (1822),
135.

[189] LITTELL, _Statute Law of Kentucky_ (1814), IV, 19, 20.

[190] Act of Feb. 8, 1812: LITTELL, _loc. cit._, 407 ff. In case
of divorce, the wife may not marry again within one year (409).

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

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

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

[191] HUMPHREY, _Compendium of the Common Law, in Force in Ky._,
135, above cited.

[192] For the present law of divorce see _Ky. Stat._ (1903),
846-51; and compare the act of March 2, 1843: _Acts_ (1842-43),
29, 30.

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

[193] _Code of Md._ (1888), I, 143.

[194] Act of March 1, 1842: _Laws_ (1841-42), chap. 262.

[195] _Laws_ (1844), chap. 306.

[196] _Laws_ (1846-47), chap. 340 (act of March 10, 1847);
MACKALL, _Maryland Code_ (1861), I, 74, 75. The causes of limited
divorce and the other provisions of the act are the same as in
that of 1842.

[197] _Laws_ (1888), chap. 486, modifying an act of 1872, chap.
272, which is the basis of the present law in _Code of Md._
(1888), I, 142, 143.

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

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

[198] _North Carolina Acts_ (1827-28), 20. _Cf._ the preceding
section of the text.

[199] _Rev. Stat. of N. C._ (1837), 238-42.

[200] The first three causes appear in _Public Laws_ (1871-72),
339; the fourth is added by _ibid._ (1879), chap. 132, p. 240;
the fifth by _ibid._ (1887), chap. 100, p. 190; the sixth by
_ibid._ (1889), chap. 442, pp. 422, 423; the seventh by _ibid._
(1903), 846, amending an act in _ibid._ (1899), 337, which made
the term of desertion one year; and the eighth by _ibid._ (1899),
124, 125. The seventh cause applies only to cases occurring
before Jan. 1, 1903. The offender divorced for the seventh cause
may not rewed in five years; and he must have been a resident of
the state for the same period.

[201] The five causes of partial divorce are in _Public Laws_
(1871-72), 339, 340. _Cf._ _Code of N. C._ (1883), I, 514.

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

[202] SCOTT, _Laws of Tenn., Including those of North Carolina
Now in Force_ (1821), I, 645-48 (act of Oct. 26, 1799).

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

[203] _Laws_ (1819), chap. 20; _Stat. Laws_ (1831), I, 76.

[204] _Laws_ (1835), cited in CARUTHERS AND NICHOLSON,
_Compilation of the Stat. of Tenn._ (1836), 257-62.

[205] Act of Jan. 7, 1840: _Acts_ (1839-40), chap. 54, p. 90.

[206] Act of Jan. 27, 1844: _Acts_ (1843-44), chap. 176, pp. 200,
201.

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

[207] _Code of Tenn._ (1884), 611; SHANNON, _Code_ (1896), 1042.
The fifth and sixth causes appear in _ibid._ (1858), 483; the
tenth, in _Acts_ (1867-68), chap. 68.

[208] _Code of Tenn._ (1884), 611, 612. In SHANNON, _Code_
(1896), 1043, these are combined under three heads.

The history of divorce in Georgia has already been brought down to 1849, when resort to the assembly was finally forbidden. By the act of the next year specific causes for either kind of divorce are for the first time enumerated. After obtaining the concurrent verdict of two juries a total divorce may be decreed for (1) intermarriage within the Levitical degrees of consanguinity; (2) mental incapacity or (3) impotency at the time of the marriage; (4) force, menace, or duress in obtaining the marriage; (5) pregnancy of the woman at the time of the marriage by another man without the husband's knowledge; (6) adultery in either of the persons after marriage; (7) wilful and continued desertion for the term of three years; (8) conviction of either spouse of an offense involving moral turpitude, under which the offender is sentenced to imprisonment in the penitentiary for two years or longer. Besides these, certain "discretionary" grounds are approved. In case of cruel treatment or habitual drunkenness on the part of either, the jury in its discretion may determine whether the divorce shall be absolute or limited. A general clause declares that all grounds other than those named in the act shall "only be cause for divorce from bed and board." In case of adultery, desertion, cruel treatment, or intoxication, a decree may not be granted when there is collusion or both parties are guilty of the same offense.[209] At the beginning of the century, the law of 1850, so far as the causes of full divorce and the discretionary grounds are concerned,[210] is still in force; while, in addition, the present statute simply authorizes a separation from bed and board on "any ground which was held sufficient in the English courts prior to the fourth of May, 1784."[211] By the existing constitution the superior court still has jurisdiction; and for total dissolution of wedlock the concurrent verdicts of two juries at different terms of the court are essential to a decree.[212]

[209] Act of Feb. 22, 1850: COBB, _Digest_ (1851), 226; _Acts_
(1849-50), 151, 152.

[210] Except that "fraud" is added to the fourth cause.

[211] _Code of Ga._ (1896), II, 224 ff. Instead of "Levitical,"
"prohibited" degrees is now used.

[212] Const. of 1877, Art. VI, secs. 4, 15, 16: _N. Y. Convention
Manual_, Part II, Vol. I, 427, 431. _Cf._ Const. of 1865, Art.
IV, sec. 2; 1868, Art. V, secs. 2, 3: POORE, _Charters_, I, 409,
420, 422.

In case of partial divorce one jury is sufficient: Const. of
1877, Art. VI, sec. 15; and such seems to have been the earlier
practice: 16 _Ga._, 81; _Code of Ga._ (1882), 394, note. A juror
may be challenged for "conscientious scruples" regarding divorce:
_Code_ (1882), 397. This last-named provision appears in the act
of Dec. 22, 1840: COBB, _Digest_ (1851), 225, 226.

The grounds on which marriage may be annulled or dissolved were in 1803 first defined for the region of Alabama by the territorial assembly. The courts having equity jurisdiction were then authorized to grant total divorce for (1) intermarriage within the forbidden degrees; (2) natural impotency of body; (3) adultery; (4) "wilful, continued, and obstinate desertion, for the term of five years." Bigamous marriages were, of course, void from the beginning. Separation from bed and board was allowed on the sole ground of extreme cruelty in either of the parties; but in neither kind of divorce was a decree permitted where there was proof of collusion.[213] In 1820, the year after the admission of the state to the Union, the circuit courts gained jurisdiction and were given power to render decrees of total divorce, subject to legislative appeal, on the following grounds: I. In favor of the husband: when the wife (1) is "taken in adultery;" (2) has voluntarily left his bed and board for the space of two years with the intention of abandonment; (3) has deserted him and lived in adultery with another man. II. In favor of the wife: when the husband (1) has left her during the space of two years with the intention of desertion; (2) has abandoned her to live in adultery with another woman; (3) when his treatment of her is "so cruel, barbarous, and inhuman as actually to endanger her life."[214] The provisions of this act were considerably modified in 1824;[215] but in 1832 they were restored, except that the period of abandonment for either partner was then fixed at three years.[216] A new cause was sanctioned in 1843, a total divorce being then allowed for pregnancy of the wife by another man at the time of the marriage, if without the husband's knowledge or consent;[217] and habitual drunkenness on the part of either was added to the list in 1870.[218]

[213] Act of March 10, 1803, passed by the Mississippi
territorial legislature: _Digest of the Laws of Ala._ (1823), 252.

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

[215] Act of Dec. 23, 1824: _Acts_ (1824), 61, 62.

[216] AIKIN, _Digest_ (1833), 130-32.

[217] CLAY, _Digest of Laws of Alabama_ (1843), 172; also in
_Acts_ (1843), 27.

[218] _Acts_ (1869-70), 207, 208 (March 1).

The basis of the existing law of Alabama was laid in the act of 1852, although important additions to the causes were subsequently made. The court of chancery now has power to grant a divorce from the bond of wedlock according to the following complex scheme: I. In favor of either spouse: (1) when at the time of the contract the other is "physically and incurably incapacitated from entering into the marriage state;" (2) for adultery; (3) for voluntary abandonment for two years; (4) for imprisonment in any state penitentiary for two years, the sentence being for seven years or longer; (5) for a crime against nature; (6) for "becoming addicted after marriage to habitual drunkenness."[219] II. In favor of the husband: for pregnancy of the wife, as provided in 1843. III. In favor of the wife: "when the husband has committed actual violence on her person, attended with danger to life or health, or when from his conduct there is reasonable apprehension of such violence." The chancellor is further authorized to decree a separation from bed and board for cruelty[220] in either of the consorts, or for any cause which will justify a decree from the bonds of matrimony, if the person applying therefor desires only a partial divorce.[221]

[219] _Code of Ala._ (1887), 253; _ibid._ (1897), 491-95. The
first four of these causes appear in _Code_ (1852), 378; the
fifth and sixth in the act of 1870.

[220] For interpretation of "cruelty" see 23 _Alabama_, 785;
27 _Alabama_, 222; 28 _Alabama_, 315; 30 _Alabama_, 714; 44
_Alabama_, 670, 698.

[221] _Code of Ala._ (1887), 524-26; _ibid._ (1897), 492. The
causes of full divorce mentioned under II and III appear in
_Code_ (1852), 378.

The law of March 10, 1803, beginning the history of divorce legislation for Alabama, applies also to Mississippi during the territorial stage; and, five years after the state was erected, its provisions, so far as they relate to the causes and kinds of divorce, were re-enacted in 1822.[222] In 1840 the time of desertion to warrant a total divorce was shortened from five to three years.[223] Ten years thereafter it was provided that any person already having a separation from bed and board may, by application to the chancery court of the district or the circuit court of the county where he resides, and producing a transcript of the decree, be divorced from the bond of matrimony. For the future the same privilege is extended to each of the parties to a partial divorce when they "have lived separate and apart from each other for the term of four years."[224] By a statute of 1858 this term is reduced to three years; and only those who have thus lived apart after partial separation are now allowed to petition for the entire dissolution of the marriage bond.[225] But in 1860, apparently to meet special cases, a law provides simply for a divorce _a vinculo_ where the persons, prior to the act, have lived apart in the state four years without collusion.[226] A peculiar cause, a product of the Civil War, appears in 1862. The wife is then allowed a complete divorce when her husband is in the army or navy of the United States or resides in one of the United States in preference to one of the states of the Confederacy.[227] By a statute of 1863 a second marriage is valid when the first spouse has been five years absent; and such spouse is to be presumed dead in any question of alimony arising under the second marriage.[228] In 1867 any citizen marrying out of the state, whose spouse commits adultery before his return to the state, may after such return apply for a total divorce, provided he has not cohabited after discovery of the offense.[229] The causes of separation from bed and board, which had remained unaltered since 1803, were extended in 1857. A partial divorce is then allowed for habitual drunkenness, as well as for extreme cruelty in either person; while the wife is granted the same relief whenever the husband, being of sufficient ability, wantonly and cruelly fails to provide for her support; but a decree for partial separation shall in no case bar the right to full divorce from the bond of wedlock.[230] A very important relaxation in the law takes place in 1871. The two causes of partial divorce just mentioned--habitual drunkenness and cruel treatment--become grounds for total divorce; and the term of desertion is shortened from three to two years.[231]

[222] _Stat. of Miss. Ter._ (1816), 252-54; and act of June 15,
1822, in _Code of Miss._ (1848), 495, 496.

[223] Act of Feb. 13: _Laws_ (1840), 125.

[224] Act of Feb. 14: _Laws_ (1850), 122.

[225] Act of Nov. 29: _Laws_ (1858), 166.

[226] Act of Feb. 9: _Laws_ (1860), 202.

[227] Act of Jan. 29, 1862: _Laws_ (1861-62), 246.

[228] Act of Dec. 1, 1863: _Laws_ (1862-63), 125, 126.

[229] Act of Feb. 21, 1867: _Laws_ (1866-67), 387.

[230] _Rev. Code_ (1858), 334.

[231] By the _Rev. Code_ (1871): see WRIGHT, _Report_, 154; and
WILLCOX, _The Divorce Problem_, 52.

By the present code of Mississippi, therefore, limited divorce is not authorized. But courts having chancery jurisdiction may decree entire release from the marriage bond to the injured person (1) for natural impotency; (2) adultery, except by collusion or where there is cohabitation after knowledge of the offense; (3) sentence to the penitentiary when there is no pardon before imprisonment begins; (4) wilful continued, and obstinate desertion for two years; (5) habitual drunkenness; (6) "habitual and excessive use of opium, morphine, or other like drug;" (7) habitual cruel and inhuman treatment;[232] (8) insanity or idiocy at the time of the marriage, if the party complaining did not then know of the infirmity; (9) previous marriage with some other person; (10) pregnancy of the wife by another man at the time of the marriage, the husband being ignorant of the fact; (11) intermarriage within the degrees of kindred prohibited by law.[233]

[232] For interpretation of "cruel treatment" see Johns _v._
Johns, 57 _Miss._, 530.

[233] _Ann. Code of Miss._ (1892), 419, 420.

The first statute defining the grounds of divorce for Missouri was approved in 1807 by the legislature of Louisiana Territory. Either a full or a partial divorce was then authorized when either person (1) is naturally impotent; (2) has entered into the marriage in violation of a "previous vow;" (3) has committed adultery; or (4) has been guilty of wilful and malicious desertion, without a reasonable cause, for four years. The general court may likewise grant the wife a separation from bed and board when the husband shall either abandon his family or turn her "out of doors, or by cruel and barbarous treatment endanger her life, or offer such indignities to her person as to render her condition intolerable and thereby force her to withdraw from his house or family."[234] This law remained in force until 1833, when "extreme cruelty" and conviction of an "infamous crime" were added as causes warranting either the husband or wife to petition for absolute divorce.[235] The number is raised to seven by the revision of 1835, which is silent as to partial divorce; for "indignities" to the person of either such as already described are now made a legal ground for entire dissolution of marriage.[236] Vagrancy[237] of the husband and habitual drunkenness of either for the space of two years came next in 1845; and four years thereafter the introduction of two more causes completed the full quota of eleven grounds on which total divorce is still allowed by Missouri law. The act of 1849 authorizes a divorce to the man when the woman at the time of the marriage, or when it was solemnized, was pregnant by another person without the intended husband's knowledge; and to the wife, when the man prior to the marriage or its solemnization had been convicted of a felony or infamous crime without the woman's knowing it when the marriage took place. The benefits of this cause may now accrue to both persons; otherwise no essential change in the statute has been made for half a century.[238]

[234] Act of May 13, 1807: _Laws of a Pub. and Gen. Nature_
(1842), 1, 90-92.

[235] _Ibid._, II, 360.

[236] _Rev. Stat._ (1835), 225 (Jan. 24). The "indignities" need
not be offered to the person: 5 _Missouri_, 278; 19 _Missouri_,
352; 16 _M. A._, 422; 17 _M. A._, 390; but one or two such acts
are insufficient: 34 _Missouri_, 211.

[237] According to the code, a "vagrant" is "every person who may
be found loitering around houses of ill-fame, gambling houses, or
places where liquors are sold or drunk, without any visible means
of support, or shall attend or operate any gambling device or
apparatus;" and "every able-bodied married man who shall neglect
or refuse to provide for the support of his family, and every
person found tramping or wandering around from place to place
without any visible means of support." Besides being liable to
suit for divorce, such a husband may be sentenced to not less
than twenty days in the county jail, or to pay a fine of 20
dollars, or both: _Rev. Stat._ (1889), I, 917; _ibid._ (1899), I,
621. On vagrancy as a cause see 26 _M. A._, 647.

[238] Act of March 12: _Laws_ (1849), 49, 50; _Rev. Stat._
(1889), I, 1029-32; _ibid._ (1899), I, 741. The circuit courts
have jurisdiction; and process is as in civil suits, except that
the answer of the defendant need not be under oath.

In Florida, since 1828, divorce may be sought only by bill in chancery; and, since 1885, the equity courts have had exclusive jurisdiction, granting only complete dissolution of the marriage bond,[239] although in that state separate maintenance is equivalent to separation from bed and board. The causes now sanctioned are: (1) intermarriage within the forbidden degrees; (2) natural impotence of the defendant; (3) adultery in either party; (4) excessive cruelty; (5) habitual indulgence in violent and ungovernable temper;[240] (6) habitual intemperance; (7) wilful, obstinate, and continued desertion for one year; (8) a divorce obtained by the defendant in any other state or country; (9) having a husband band or wife living at the time of the marriage; (10) incurable insanity.

[239] Acts of Oct. 31, 1828, and Feb. 4, 1835, in _Rev. Stat. of
Fla._ (1892), 504; or THOMPSON, _Manual or Digest_ (1847), 47,
222-24. Incurable insanity is made a legal ground of divorce by
_Acts_ (1901), 118-21.

[240] On the allegations necessary see Johnson _v._ Johnson,
23 _Florida_, 413; Burns _v._ Burns, 13 _Florida_, 369; and on
what does not constitute a cause, Crawford _v._ Crawford, 17
_Florida_, 180.

The Louisiana code of 1808 provides for the annulment of marriage on legal grounds; and allows separation from bed and board (1) for adultery of the wife; or (2) for that of the husband "when he has kept his concubine in their common dwelling;" (3) when either has been guilty of excesses, cruel treatment, or outrages toward the other, if the ill-treatment is of such a nature as to render their living together insupportable; (4) on account of a public defamation by one of the married persons toward the other; (5) for abandonment; or (6) an attempt upon the life of the other by either spouse.[241]

[241] _Digest of Civil Laws Now in Force_ (1808), 26, 28, 30;
also _Code Civil_ (1825), 80, 87-91; LISLET, _Gen. Digest_, II, 3
ff.; _Civil Code of La._ (1853), 19.

In 1827 the "district courts throughout the state and the parish court of New Orleans" were given "exclusive original jurisdiction in cases of divorce," with appeal to the supreme court. They were authorized to grant total divorce (1) for adultery of the wife; or (2) for that of the husband "when he has kept his concubine in the common dwelling, or openly and publicly in any other;" (3) for excesses, cruel treatment, or outrages, as conditioned for separation in 1808; (4) condemnation of either married person to an "ignominious punishment;" (5) abandonment for five years when the offender has "been summoned to return to the common dwelling," as is provided for in cases of separation from bed and board. It is, however, especially declared that, except when the cause is adultery or ignominious punishment, no full divorce shall be granted "unless a judgment of separation from bed and board shall have been previously rendered," and unless two years shall have thereafter expired without reconciliation. But in the two cases excepted above a "judgment of divorce may be granted in the same decree which pronounced the separation from bed and board."[242] The fifth cause approved in 1827 was supplemented by a new ground in 1832. Whenever either spouse is charged with an infamous crime and is a fugitive from justice beyond the state, a total divorce may be claimed by the other, without need of a previous decree of separation, on producing evidence of the actual guilt and flight of the accused.[243] "Habitual intemperance" on the part of either husband or wife was added to the list in 1855;[244] and in 1857 the time which must elapse between the decrees for partial and full divorce was reduced to one year.[245] An "omnibus" clause comes next in 1870, complete dissolution of wedlock being then permitted "for any such misconduct repugnant to the marriage covenant as permanently destroys the happiness of the petitioner;" but it was repealed in 1877.[246]

[242] Act of March 19: _Acts_ (1827), 130-35; also in _Civil
Code_ (1853), 19, 20. Such is still the law, except as to the
term between the decrees.

[243] Act of April 2: _Acts_ (1832), 152; also in _Civil Code_
(1853), 20, 21.

[244] _Acts_ (1855, March 14), 376.

[245] Act of March 16: _Acts_ (1857), 137; VOORHIES, _Rev. Stat.
Laws_ (1876), 313.

[246] Compare the act of March 9: _Acts_ (1870), 108; with _Acts_
(1877), 192. VOORHIES, _op. cit._ (1884), 204-6, gives the law
regarding the causes of divorce just as _ibid._ (1876), 312-14;
and _ibid._ (1870), 18 ff.

For the sake of convenience, the present law of Louisiana covering the grounds of divorce--whose evolution was thus completed in 1870--may now be summarized. Absolute divorce, without need of a previous decree of separation, is permitted where the husband or wife may have (1) been sentenced to an infamous punishment; or (2) been guilty of adultery.[247] A limited divorce, which may be followed in each case by a total divorce after one year, is authorized (1) for adultery on the part of either spouse; (2) when the other party has been condemned to an infamous punishment; (3) on account of the habitual intemperance of one of the married persons; (4) excesses, cruel treatment, or outrages of one of them toward the other; (5) for public defamation; (6) for abandonment on the part of one of the married persons; (7) for an attempt of one of them against the life of the other; (8) when the husband or wife has been charged with an infamous offense and shall have fled from justice, on producing proof of the actual guilt or flight.[248] An important modification was made in 1898. The person in whose favor a limited divorce has been rendered may apply and get a full divorce in one year, while the adverse party must wait two years before fore he can secure a similar decree, in the meantime the wife's right to alimony remaining unimpaired.[249]

[247] As in 1827, in these cases, a divorce may be "granted in
the same decree which pronounces the separation from bed and
board."

[248] _Rev. Civil Code_ (1888), 68 ff.; _ibid._ (1897), 305,
306; _ibid._ (1870), 18 ff. _Cf._ WRIGHT, _Report_, 97, 98.
The habitual intemperance (Cause 3) and cruel treatment (Cause
4) must still be of "such a nature as to render their living
together insupportable."

"The abandonment (Cause 6) with which the husband or wife is
charged must be made to appear by the three reiterated summonses
made to him or her from month to month, directing him or her to
return to the place of the matrimonial domicile and followed by
a judgment which has sentenced him or her to comply with such
request, together with a notification of the said judgment,
given to him or her from month to month for three times
successively."--_Rev. Civil Code_ (1888), 70.

[249] Act of July 4, 1898: _Acts of the Assembly_, 34.

The divorce legislation of the "Republic of Texas" has remained in force with little modification to the present hour. The district courts still have jurisdiction. By the act of January 6, 1841, a marriage may be declared null and void for impotency; and absolute divorce may be granted as follows: I. In favor of the husband: (1) when the wife is guilty of adultery; or (2) has left his bed and board for three years with the intention of abandonment. II. In favor of the wife: (1) when the husband has left her for three years with like intention; or (2) has abandoned her and lived in adultery with another woman. III. In favor of either spouse for excesses, cruel treatment, or outrages toward the other, if the ill-treatment is of such a nature as to render their living together insupportable.[250] These three groups appear unaltered in the present code; and there is added the following: IV. In favor of either husband or wife, "when the other shall have been convicted, after marriage, of a felony and imprisoned in the state prison; _provided_, that no suit for divorce shall be sustained" because of such conviction "until twelve months after final judgment," nor "then if the governor shall have pardoned the convict;" and provided also that the conviction has not been obtained on the testimony of either spouse.[251]

[250] _Laws of the Rep. of Texas_, V, 19-22; also in DALLAM,
_Digest_ (1845), 80, 81. _Cf._ the earlier act of 1837, in
DALLAM, _op. cit._, 79.

[251] _Rev. Civil Stat._ (1888), I, 885-88; _Ann. Civil Stat._
(1897), I, 1095, 1096. No. IV was added by act of May 27, 1876:
_Laws_, 16.

The grounds of divorce recognized in the statutes of Arkansas have been in force since 1838. The circuit courts may now grant total or limited divorce for the following causes: (1) when either spouse was at the time of the marriage and still is impotent of body; (2) when either deserts the other and remains absent one year without reasonable cause; (3) when a former spouse was living at the time of the marriage; (4) when either is convicted of felony or other infamous crime; or (5) shall be addicted to habitual drunkenness for the space of one year; or (6) shall be guilty of such cruel and barbarous treatment as to endanger the life of the other; or (7) shall offer such indignities to the person of the other as shall render his or her condition intolerable; (8) when subsequent to the marriage either person has committed adultery.[252]

[252] _Digest of Ark._ (1894), 680-83; _Rev. Stat._ (1838), 333.
Incurable insanity appears as a ground in _Civil Code_, sec. 464,
as amended in 1873; but it was dropped by _Acts_ (1895), 76.

By act of Congress,[253] certain general laws of Arkansas, including those of divorce, are extended to the Indian Territory; so the causes just enumerated are there in force.[254] Limited divorce does not exist in Oklahoma; but in that territory the district court may grant full dissolution of wedlock (1) when either person had a spouse living at the time of the marriage; (2) for abandonment during one year; (3) for adultery; (4) for impotency; (5) "when the wife at the time of the marriage was pregnant by another than her husband;" (6) for extreme cruelty; (7) for fraudulent contract; (8) for habitual drunkenness; (9) for gross neglect of duty; (10) for conviction and imprisonment in the penitentiary for a felony after marriage.[255]

[253] Act of May 2, 1890: _U. S. Stat. at Large_, XXVI, chap.
182, p. 81.

[254] _Ann. Stat. of Ind. Ter._ (1899), 324.

[255] WILSON, _Stat. of Okla._ (1903), II, 1119.

"Arizona, from 1871-77, in addition to six ample reasons for divorce, had an 'omnibus clause' in operation which is a marvelous piece of legislation." "Whereas," we are told, "in the developments of future events, cases may be presented before the courts falling substantially within the limits of the law, as hereinbefore stated, yet not within its terms, it is enacted, that whenever the judge who hears a cause for divorce deems the case to be within the reason of the law, within the general mischief the law is intended to remedy, or within what it may be presumed would have been provided against, by the legislature establishing the foregoing causes of divorce had it foreseen the specific case and found language to meet it without including cases not within the same reason, he shall grant the divorce." Well was this called, continues Richberg, "the 'seventh wonder' of Arizona's divorce code."[256]

[256] RICHBERG, "Incongruity of the Divorce Laws in the United
States," _Publications of Mich. Pol. Sc. Association_, No. 4, p.
58.