Chapter XVII (5)

_a_) _Legislative divorce._--An examination of the session laws reveals the fact that legislative divorce has at some time existed in many western commonwealths. During the territorial stage, in particular, and in some cases for a considerable period thereafter, the assemblies at each meeting were called upon to hear and determine petitions for dissolution of marriage which ought to have been relegated to the courts. Such, for example, was the practice in Michigan until 1837, when it was forbidden by the first constitution of the state;[347] and in Illinois until a later time. At the session of 1817-18 the assembly of Illinois Territory granted relief to Elizabeth Spriggs because she had been "shamefully abandoned" by her husband, who, it is alleged, is still guilty of "shameful" misconduct, and because she must be "considerably injured if she cannot obtain a divorce sooner than in the ordinary way."[348] Other cases occurred from time to time;[349] and in 1831 the marital bonds of twenty couples were dissolved by one act of a few lines.[350] Indiana appears to have been nearly as indiscreet. For instance, in 1838 the marriage of John Duvall and Nancy Duvall, _alias_ Nancy Stack, was declared null and void.[351] Two years later occurred a divorce from the bond of wedlock, the wife being permitted to resume her maiden name. Thereafter it became the practice in this state for the assembly to grant persons leave to file bills in the courts in cases where the prescribed causes for divorce by judicial process did not exist. Thus in 1842 Mary Ann Bruner was allowed to file a petition because of "her disability by reason of her husband not having absented himself from her for two years," the full term necessary to constitute a valid ground according to the statute.[352] Until 1851, when the constitution put a stop to this evil custom, many such applications were referred to the circuit courts, the full legal requirement being similarly waived.[353] The early Minnesota lawmakers found plenty of business of the same kind. "Be it enacted," runs a decree of the assembly in 1849, "that the marriage heretofore existing between Catherine Hathaway and her husband, Isaac Hathaway, ... is hereby dissolved; and the said parties are restored to all the rights and privileges of unmarried persons."[354] Another example seems to show that a "pale-face" cannot always live happily with a "dusky mate." It is solemnly declared "that Louis Laramie is hereby divorced from Wa-kan-ye-ke-win, his wife, as fully and effectually, as if the legal ceremony of marriage and its rites had never been solemnized."[355] Similar decrees appear in the statute-book until in 1856 constitutional authority finally put a stop to legislative interference.[356]

[347] Special divorce acts may be found in the _Ter. Laws of
Mich._, II, 655, 709, 710, 752, 753, 769; III, 840, 842, 847,
895, 901, 905 (three cases), 907 (two cases).

[348] _Laws of Ill._ (1817-18), 356.

[349] Thus on Jan. 15, 1825, two decrees were granted in one
bill: _Laws_ (1825), 120.

[350] Act of Feb. 15, 1831: _Laws_, 71, 72. There is another
example in _Laws_ (1839), 79.

[351] _Laws of a Local Nature_ (1838), 406.

[352] _Laws of a Local Nature_ (1842), 117.

[353] _Cf._ _ibid._ (1842), 119, 120, 121; _ibid._ (1844), 148;
_ibid._ (1849), 203, 300 (two cases); _ibid._ (1850), 105, 129,
194, 342, 344; _ibid._ (1851), 404, 441, 497.

[354] _Laws of Minn._ (1849), 89.

[355] _Ibid._

[356] For examples see _Laws_ (1851), 39, 40 (four cases); and
_ibid._ (1852), 60, 61 (two cases). Seven of the acts cited are
also given or restated in _Collected Stat. of the Ter. of Minn.
and Decis. of Supreme Court_ (1853).

During the first six years of territorial life many special divorce decrees may be found in the Nebraska laws; and they are invariably expressed in the curt and summary style peculiar to such legislation throughout the country, no reference usually being made to causes or to alimony.[357] At the same time Kansas was having a similar experience. One divorce petition was granted by the assembly in 1857, three in 1858, eight in 1859, while in 1860 the number suddenly rose to forty-three; for this was the "last chance" before the constitutional prohibition of 1859 went into effect.[358] Previous to 1847 Iowa was still more indulgent. Year after year appeals were made to the assembly for relief. Sometimes the intention appears to be to deny the defendant the privilege of further wedlock; as in 1840, when a decree was granted to dissolve the marriage contract, "so far as relates to the said Harriet Williams," who is allowed to change her name. Sometimes a partial divorce is sanctioned, as when the marital bond between John Philips and Nancy his wife was "so far dissolved as to permit the said parties to live separate and apart from each other." In this case the woman was given power to sue and be sued, and was allowed to retain the children. In 1841-42 eleven more legislative decrees were granted. The next year saw nineteen petitions combined in one bill, which was passed over the governor's veto by a two-thirds vote. The last examples occur in 1846, the year when Iowa was admitted to the Union as a state, and when the usual constitutional interdict appears.[359]

[357] Here is an example: "The bonds of matrimony between Obediah
J. Niles and Hannah M. Niles shall be and the same are hereby
dissolved."--_Laws and Resolutions_, I, 373 (act of Feb., 1857).
For other cases see _ibid._, 569, 570 (two cases, 1858), 653-55,
656 (three cases, 1860), 766, 767 (two cases, 1861). On Jan. 23,
1856, six petitions in one bill were referred to the judge of
the district court for the first judicial district with power to
dissolve marriage: _ibid._, 300.

[358] _Private Laws of Kan._ (1860), 232-54. For other cases see
_ibid._ (1858), 10-12 (three cases); and _ibid._ (1859), 41-45
(eight cases).

[359] _Cf._ _Laws of Ia._ (1840), 12; _ibid._ (1840-41), 7, 12;
_ibid._ (1841-42), 3, 11, 13, 28, 30, 31, 66, 73, 94, 95 (eleven
cases); _ibid._ (1842-43), 82-84 (nineteen cases); _ibid._
(1845-46), 42, 48, 51, 52, 61, 72, 79 (eleven cases).

The practice existed also in Idaho,[360] Montana,[361] and Oregon.[362] On the Pacific coast, however, Washington is the chief offender. Beginning with three cases in 1858 and one in 1859, the number mounts to fifteen in 1860, seventeen in 1861, fifteen in 1862, and sixteen in 1863; while after this date the session laws are silent on the subject.[363]

[360] There are two cases in _Laws and Res._ (1871), 86, 91;
others in _Gen. Laws_ (1879), 54, 59-61; five in _ibid._ (1881),
439-41; and four in _ibid._ (1883), 164, 165.

[361] _The Private and Spec. Laws of Mont._ (1864-65), 554, 610,
685, 695, 699, 700, show nine cases of legislative divorce.

[362] For examples see _Spec. Laws_ (1857), 12; _ibid._
(1857-58), 107, 108, 110, 111, 112 (twelve cases); _ibid._
(1858-59), 92-107 (thirty-one cases).

[363] See _Acts_ (1858), 53, 54; _ibid._ (1859), 62; _ibid._
(1860: private laws), 473-79; _Session Laws_ (1861: local laws),
71, 73, 74, 81, 83, 92, 93, 101-3, 110, 131, 132; _ibid._ (1862),
Index; _ibid._ (1863), 138-44.

In some of the old middle states the custom was particularly tenacious. Of it the New York laws show scarcely a trace;[364] and in those of New Jersey no evidence at all has been discovered. The case is very different in Pennsylvania. Although in 1785 the courts were empowered to grant full or partial divorce for the causes specified, the habit of resorting to the assembly, especially when the offense complained of was not a cause recognized by the statute, survived from the provincial era. Thus in 1805 Rebecca Adkinson was released from her spouse Thomas, who for crimes committed had been sentenced to five years' imprisonment. "Whereas it appears that the conduct of the said Thomas, from the month of May, 1803, to the present time, has been one continued scene of vice, evincing a total dereliction of morality, and an entire neglect of his wife and tender infant," therefore, since the law has not provided for such emergency, the assembly sets Rebecca absolutely free from the wedding bond.[365] During the next year a case of somewhat unusual character arose. From the preamble to the bill it appears that as early as 1777 Jacob Sell and Eve, his wife, had divorced themselves by mutual consent, the woman by a written instrument relinquishing all her rights under the marriage. Thereafter, the man considering himself entirely free from former obligations, took unto himself another wife, "by whom he now has living six children." Through "hard labor and honest industry" a considerable property was in due course acquired, some of which Sell had transferred. To this under the existing laws he could not give perfect title because of a claim to dower which "the aforesaid Eve may be supposed to possess." For this reason, and because he had grown old and was in a "delicate state of health," the assembly granted his petition for an absolute dissolution of the first marriage.[366] From this time onward many divorce decrees may be found in the session laws; and not until the adoption of the constitution of 1874 was the practice entirely abandoned.[367]

[364] But in _Laws_ (1848), 94, 95, the following case of
legislative interference may be found: "The right is hereby
given to Ludwig Brunileu to apply to the supreme court of this
state, in equity, for a divorce from his wife Bertha, ... with
the same effect and on the same footing in every respect, as if
they had been married in this state, and the offence or offences
complained of had been committed in this state, and within five
years prior to the time of such application."

[365] THOMPSON, _Laws of the Commonwealth of Pa._ (1804-6), VII,
73-75.

[366] THOMPSON, _op. cit._, 326-28.

[367] See, for example, _Acts_ (1808), 138, 140, 146 (for
cruelty, force at marriage, etc.); _ibid._ (1810), 82, 89, 194
(insanity before and after marriage, imprisonment for crime,
abuse, and abandonment); _ibid._ (1811-12), 28, 34, 143, 195,
198, 228, 231, 237; _ibid._ (1820-21), 3, 29, 35, 48, 139.

It was in Delaware, however, that legislative divorce died the hardest death. By the act of 1832 the superior court was given "sole cognizance of granting divorces" for cruelty, abandonment, and some other causes; and in 1852 it was enacted that no "petition for a divorce shall be received or acted on by the general assembly for any cause cognizable" by that court, "nor without proof of one month's public notice of the intention to prefer such petition, by advertisements in a newspaper published within the county of the petitioner's residence, if there be one," or, if not, then in some other newspaper in the state.[368] Although this declaration of the assembly restricting its jurisdiction to cases not provided for by law was subsequently more than once repeated,[369] there was still a wide range for interference, even if the will of one legislature could bind that of another. The number of petitions granted waxed apace. In 1887 it was forty-two; in 1889, sixty-three; and two years later, forty-eight.[370] In the meantime a remedy was sought through appeal to constitutional interdict. Once the effort was almost successful. By an act of April 20, 1893, the assembly proposed an amendment to the constitution giving the supreme court exclusive jurisdiction in divorce suits, but only "for the causes and upon the conditions prescribed by the legislature.[371] This amendment failed of adoption; but its purpose was soon secured in the new constitution of 1897, which declares that "no divorce shall be granted, nor alimony allowed, except by the judgment of a court, as shall be prescribed by general and uniform law."[372]

[368] _Rev. Stat. of Del._ (1852), 78.

[369] _Ibid._ (1874), 150; _ibid._ (1893), 242.

[370] _Laws_ (1887), 528-40; _ibid._ (1889), 1046-64; _ibid._
(1895), 300-308.

[371] _Laws_ (1893), 617.

[372] _Const. of the State of Del._ (1897), Art. II, sec. 18, p.
141.

_b_) _Judicial divorce: jurisdiction, kinds, and causes._--Regarding the causes of divorce the history of the middle and western states reveals little that is peculiar as compared with that of the southern or eastern group. On the whole, a medial course has been pursued. There is nothing very radical or very conservative. The statutes of these commonwealths are entitled to be looked upon as constituting the average American type.

The policy of New York has, indeed, seemed to be exceptional. Throughout the century absolute divorce has been allowed only on the scriptural ground. In 1787--for the first time since New Netherland came under English rule--a general divorce law was enacted. The preamble hints at the recent practice of special legislation. "Whereas," we are told, "the Laws at present in being within this state, respecting Adultery, are very defective, and Applications have, in Consequence, been made to the Legislature, praying their Interposition;" and since "it is thought more advisable ... to make some general Provision in such Cases, than to afford relief to Individuals, upon their partial representations, without a just and Constitutional Trial of the Facts;" therefore for the offense named, when the persons are inhabitants of the state, a "Petition or Bill" may be presented to the chancellor. The latter is empowered to direct the trial of the case by a "special or common jury" before either the supreme or any circuit court; and in case of conviction may "pronounce the marriage between the said parties to be dissolved, and both of them freed" from its obligations. The guilty defendant is forbidden to "remarry any person whatsoever;" while the innocent plaintiff is fully authorized to "make and complete another marriage, in like manner as if the party convicted was actually dead." The divorce is not to affect the legitimacy of the children, and the chancellor is required to make proper orders for their care and maintenance and for the wife's alimony.[373]

[373] Act of March 30, 1787: _Laws of the State of N. Y._ (1789),
II, 133, 134; and _ibid._ (1792), I, 428, 429.

No further legislation on the subject appears until 1813, when some important changes in the law were made. Now a petition for divorce, on the same grounds, may be brought only when the persons concerned were inhabitants of the state at the time the offense was committed; or when the marriage was solemnized or took place in the state, and the person injured was an actual resident of the state at the time of the offense and at the time of exhibiting the bill. The facts are to be tried by a "special or foreign" jury at some circuit court or sittings, to be held by a justice of the supreme court; and the person convicted is prohibited from further marriage only during the lifetime of the other spouse. But the most important innovation made by this act is the provision for partial divorce in favor of the wife. Under the same conditions as to residence, the court of chancery is empowered to grant a _feme covert_ a decree of "separation from bed and board forever thereafter, or for a limited time, as shall seem just and reasonable," when the husband has been guilty (1) of cruel and inhuman treatment; or (2) of such conduct "as may render it unsafe and improper for her to cohabit with him, and be under his dominion and control;" or (3) when he has abandoned her and neglected or refused to provide for her support. In all such cases, if the defendant prove the ill conduct of the complainant as a justification, he may be "dismissed with or without costs in the discretion of the court." On the other hand, whether a separation be decreed or not, the court is authorized "to make such orders and decree for the suitable support and maintenance" of the wife and children by the husband or out of his property, as the chancellor shall deem just.[374]

[374] Act of April 13, 1813: VAN NESS AND WOODWORTH, _Laws of N.
Y._ (1813), II, 197-201.

The _Revised Statutes_ of 1827-28 make careful provision for the annulment of voidable marriages; and by the same enactment the divorce law is recast. Through sentence of nullity the chancellor may declare void a marriage for the following causes existing at the time of the contract: when (1) either husband or wife was below the age of consent; or (2) had a spouse living under a marriage still in force; or (3) was an idiot or lunatic; or (4) when consent of either was obtained by force or fraud; or (5) when either was physically incompetent to enter the matrimonial state. All these grounds of nullity, with one slight change and some modification of the conditions on which suit may be brought, are sanctioned by the present code.[375] Divorce from the bond of wedlock according to the revision of 1827-28 may be granted on the same conditions regarding residence as those prescribed in 1813, except that it allows the injured person, if an actual inhabitant at the time of exhibiting the bill, to bring suit whenever the offense complained of has been committed in the state. As in 1803, the guilty defendant is forbidden to remarry until after the death of the complainant. The three grounds of separation from bed and board in favor of the wife allowed in that year remain unaltered, save that under the second head the phrase referring to her being under the husband's "dominion and control" is omitted; and now, when the marriage takes place out of the state, the parties must have "become and remained inhabitants" of it for at least one year, and in order to warrant a decree the woman must be an actual resident thereof at the time of bringing complaint.[376]

[375] _Rev. Stat. of 1827-28_ (Albany, 1829), II, 141-44. This
law provides that no bill for annulment may be brought by the
party who was of lawful age of consent, nor by the other if
there is voluntary cohabitation after age of consent. Suit
on the ground of force or fraud is likewise barred, if there
has at any time been voluntary cohabitation; and in case of
physical disability, it must be brought within two years after
solemnization of the marriage: _ibid._, II, 142, 143. _Cf._
STOVER, _Code of Civil Procedure_ (1902), II, 1832-33, where the
last-named provision is retained. By this _Code_, II, 1626, 1627,
the fourth ground of annulment is broadened by adding the word
"duress;" and a woman is authorized to bring action (1) when she
had not reached the age of sixteen at the time of the marriage;
(2) when the marriage took place without the consent of parent
or guardian; or (3) "when it was not followed by consummation or
cohabitation, and was not ratified by any mutual assent of the
parties after the plaintiff attained the age of sixteen years."
_Cf._ _Laws_ (1887), chap. 22, p. 25, for the origin of these
clauses.

[376] _Rev. Stat. of 1827-28_, II, 144-47.

Under the existing law of New York, for adultery, absolute divorce may be granted to either the husband or wife (1) when both were residents of the state at the time of the offense; (2) when the marriage took place within the state; (3) when the plaintiff was a resident of the state when the offense was committed, and so remains at the commencement of the suit; (4) where the offense was committed in the state and the person injured is a resident thereof when the action is brought. In the first instance the judgment is "interlocutory;" and three months must elapse before it can be made final.[377] Remarriage is allowed only under the same conditions as in 1813 and 1827, except that now the law does not "prevent the remarriage of the parties to the action." At present suit for partial divorce may be brought by either spouse, and not by the wife only, as under the earlier laws. The grounds allowed are (1) cruel and inhuman treatment; (2) conduct rendering it unsafe and improper for the plaintiff to cohabit with the defendant; (3) abandonment; (4) where the wife is plaintiff, the neglect or refusal of the husband to provide for her.[378] When the marriage takes place out of the state the provision of 1827-28 requiring one year's previous residence of the parties and actual residence of the plaintiff at the commencement of the action is still maintained.[379]

[377] So required by _Laws_ (1902), II, chap. 364; STOVER, _Code
of Civil Proced._ (1902), II, sec. 1774, p. 1863.

[378] It has been decided in Kennedy _v._ Kennedy, 73 _N. Y._,
363, affirming 47 _N. Y. Supr._, 56, that "threats of violence
of such a character as to induce a reasonable apprehension of
bodily injury, and charges of infidelity, made in bad faith, as
auxiliary to and in aggravation of the threatened violence, are
sufficient to constitute 'cruel and inhuman treatment.'" _Cf._
STOVER, _Code of Civil Proced._ (1892), II, 1639, 1640, note.

A "groundless and malicious charge against a wife's chastity,
and spitting upon her are gross acts of cruelty, and words of
menace accompanied by the probability of bodily violence, if
they inflict indignity and threaten pain, are sufficient." See
Whispell _v._ Whispell, 4 BARB., 217; and _cf._ Lutz _v._ Lutz,
31 _N. Y. St. Rep._, 718; Waltermire _v._ Waltermire, 110 _N.
Y._, 183; Uhlmann _v._ Uhlmann, 17 _Abb. N. C._, 236; Mason _v._
Mason, 1 EDW., _Ch._, 278; Perry _v._ Perry, 2 BARB., _Ch._, 311.

[379] STOVER, _Code of Civil Proced._ (1902), II, 1846.

New Jersey, whose early history ran so closely parallel to that of New York, has during the century pursued a policy regarding divorce more liberal than that of the neighboring commonwealth. As so often happens, the act of 1794 confuses the grounds of annulment with those of divorce proper. The court of chancery is authorized to decree "divorces from the bond of matrimony" (1) when the husband and wife are within the prohibited degrees of kinship; (2) for adultery; (3) for "wilful, continued, and obstinate desertion for the term of seven years;" or (4) when either person had a lawful spouse living at the time of the later marriage, although the statute inconsistently declares such unions "invalid from the beginning" and "absolutely void." This last-named provision is still in force.[380] By the law of 1794, moreover, separation from bed and board is sanctioned for "extreme cruelty" in either spouse.[381]

[380] _Gen. Stat. of N. J._ (1896), II, 1267.

[381] Act of Dec. 2, 1794: PATERSON, _Laws of N. J._ (1800), 143,
144.

A new statute appears in 1820. The conditions as to residence are now defined; the court of chancery may grant absolute dissolution of wedlock for the same causes as in 1794; and separation from bed and board is still permitted for extreme cruelty, but now it may be decreed, "forever, or for a limited time."[382] In the revision of the divorce laws approved April 15, 1846, the term of wilful and continued desertion is reduced to five years;[383] in 1857 two years more are lopped off;[384] and finally a statute of 1890 declares a period of two years' such desertion sufficient to constitute a ground of full divorce.[385]

[382] Act of Feb. 16, 1820: _Laws of N. J._ (1821), 667-69.

[383] _Stat. of N. J._ (1847), 923.

[384] Act of March 20: _Acts_ (1857), 399. The law of 1846 is
retained in ELMER, _Digest_ (2d ed. by NIXON, Philadelphia,
1855), 205-8.

[385] Act of March 5: _Pub. Laws_ (1890), 34; _Gen. Stat._
(1896), II, 1274.

Accordingly, by the present law of New Jersey dissolution of wedlock may be decreed by the court of chancery (1) when the marriage is bigamous; (2) when it is within the forbidden degrees of kinship;[386] (3) for adultery; (4) for "wilful, continued, and obstinate desertion during the term of two years;" and (5) when at the time of the marriage either spouse was "physically and incurably impotent," in which case the contract is declared "invalid from the beginning and absolutely void."[387] But it is important to observe that in certain cases the term of desertion is subject to a peculiar statutory definition. It is declared that "wilful and obstinate desertion shall be ... construed as 'continued' ... notwithstanding that after such desertion has ... begun, the deserting party has ... been imprisoned in this or any other state or country upon conviction by due process of law for a crime, misdemeanor or offence, not political," anywhere committed; provided, however, that such desertion has continued without interruption a sufficient length of time after discharge from prison to make up when added to the term of desertion prior to the confinement the full term of three [two] years.[388] Since 1891 three causes of separation from bed and board have been allowed. For desertion, adultery, or extreme cruelty, in either spouse, the court of chancery may now decree such partial divorce "forever thereafter, or in the case of extreme cruelty, for a limited time, as shall seem just and reasonable;" but in every case except for extreme cruelty the petitioner "shall prove that he or she has conscientious scruples against applying for a divorce from the bond of matrimony."[389]

[386] A marriage within the forbidden degrees is not void but
voidable, and until so pronounced must be treated as valid:
Boylan _v._ Deinzer, 18 STEWART, _N. J. Equity Reports_, 485.

[387] Impotence as a ground of divorce appears in _Rev. Stat._
(1874), 255. _Cf._ also _Gen. Stat._ (1896), II, 1267. Before
this enactment a marriage could not be annulled for impotence:
Anonymous, 9 C. E. GREEN, _N. J. Equity Reports_, 19.

[388] Act of Apr. 1: _Pub. Laws_ (1887), 132; also in _Gen.
Stat._ (1896), II, 1273. This provision thus seems to be in
force; if so, since the act of 1890 already cited, the term must
be two years.

[389] Act of March 4: _Pub. Laws_ (1891), 76. In general, for the
present law regulating both kinds of divorce in New Jersey, see
_Gen. Stat._ (1896), II, 1267-75.

The framers of the Pennsylvania statute of 1785 saw fit to indulge in an apologetic preamble. "Whereas," we are assured, "it is the design of marriage, and the wish of the parties entering into that state, that it should continue during their joint lives, yet where the one party is under natural or legal incapacities of faithfully discharging the matrimonial vow, or is guilty of acts and deeds inconsistent with the nature thereof, the laws of every well-regulated society ought to give relief to the innocent and injured person;" therefore it is enacted that the justices of the supreme court may grant divorce, "not only from bed and board, but also from matrimony,"(1) when either person at the time of the contract was and still is physically incompetent; (2) has knowingly entered into a bigamous marriage; (3) has committed adultery; or (4) has been guilty of "wilful and malicious desertion, without a reasonable cause," for the space of four years. The court is empowered to grant a divorce from bed and board, but not from the bond of wedlock, "if any husband shall, maliciously, either (1) abandon his family, or (2) turn his wife out of doors, or (3) by cruel and barbarous treatment endanger her life, or (4) offer such indignities to her person, as to render her condition intolerable, or life burdensome, and thereby force her to withdraw from his house and family." In these cases the wife is allowed "such alimony as her husband's circumstances will admit of so as the same do not exceed the third part of the annual profits or income of his estate, or of his occupation or labour," or the court may decree "but one of them" as justice may require. She shall continue to enjoy this alimony "until a reconciliation shall take place, or until the husband shall by his petition or libel, offer to receive or cohabit with her again, and to use her as a good husband ought to do." Then the court is authorized either to suspend the decree; or, if the wife refuse "to return and cohabit under the protection of the court," it may discharge and annul the same. But if he fail to make good his offers and engagement, the "former sentence and decree may be revived and enforced;" and the arrears of alimony may be ordered paid.[390]

[390] Act of Sept. 19, 1785: _Laws of the Com. of Pa._ (1803),
III, 102-6. Repealed March 13, 1815: _Laws of Gen. Assem._
(1822), VI, 286; PURDON, _Digest_ (1818), 130.

By the first statute of the period, it thus appears, a liberal divorce policy was adopted by Pennsylvania, and besides, it should be remembered, the courts were not the only source of relief. For many years, as already seen, the assembly exercised jurisdiction in divorce matters. After 1785 the first step in the practical relaxation of the law was taken in 1804, when jurisdiction, hitherto vested exclusively in the supreme court, was extended to the county courts of common pleas, where it still remains.[391] Since that date the progress of legislation has been rapid enough. Under the existing law, as the result of a century's growth, not less than eleven grounds of complete divorce are recognized. By the statute of 1815, repealing the law of 1785, the four causes sanctioned by the latter are re-enacted, the term of "malicious desertion and absence from the habitation of the other"--as the clause is now phrased--being reduced to two years; and it is further provided that full dissolution of marriage may be decreed (5) when any husband, by cruel and barbarous treatment, shall have endangered the life of his wife; or (6) offered such indignities to her person as to render her condition intolerable and life burdensome, thereby forcing her to withdraw from his house and family.[392] Marriage within the forbidden degrees of affinity or consanguinity (7) was made a ground in the same year;[393] lunacy of the wife (8) came next in 1843;[394] and in 1854 divorce was sanctioned (9) when the alleged marriage was procured by fraud, force, or coercion, and has not been later confirmed by the acts of the person injured; (10) when the wife, by cruel and barbarous treatment, has rendered the condition of her husband intolerable or life burdensome; or (11) when either spouse has been convicted for felony with imprisonment for more than two years.[395] These eleven causes are still in force, although in 1903 a new law regarding the crimes of either spouse to constitute a cause was adopted.[396]

[391] _Laws of the Com._, VII, 375.

[392] Act of March 13, 1815: in _Laws of Com._ (1822), VI, 286;
and PEPPER AND LEWIS, _Digest_ (1896), I, 1633.

[393] _Laws of the Com._ (1822), VI, 288; PEPPER AND LEWIS,
_Digest_, I, 1634. But when marriages within such degrees "shall
not have been dissolved during the lifetime of the parties, the
unlawfulness of the same shall not be enquired into after the
death of either husband or wife."

[394] By the act of April 13, 1843: _Laws_ (1843), 233; PEPPER
AND LEWIS, _Digest_, I, 1636, "where the wife is lunatic or _non
compos mentis_" a petition for divorce may be "exhibited by any
relative or next friend" who shall make the affidavit provided
for in other cases of divorce.

[395] Act of May 8: _Laws_ (1854), 644; PEPPER AND LEWIS,
_Digest_ (1896), I, 1635. When divorce is granted the husband for
the tenth cause, the wife may be allowed alimony according to his
circumstances.

By an act of March 9, 1855 (_Pub. Laws_, 68; PEPPER AND LEWIS,
_Digest_, I, 1636), the courts of common pleas are given
jurisdiction in all cases of divorce "from the bonds of matrimony
for the cause of personal abuse, or for such conduct on the part
of either the husband or the wife as to render the condition of
the other party intolerable and life burdensome, notwithstanding
the parties were at the time of the occurring of said causes
domiciled in another state;" but the applicant must be a citizen
and have been a resident of the state for one year. This act,
according to judicial interpretation, does not establish new
causes for divorce, but only enlarges the jurisdiction of
the court in reference to the parties under causes already
recognized: Schlichter _v._ Schlichter, 10 _Phila. Reports_, 11
(1873). Cruel and barbarous treatment must be alleged in the
libel: Pennington _v._ Pennington, _ibid._, 22.

[396] _Laws of Pa._ (1903), 19; repealing the act of June 1,
1891: _ibid._ (1891), 142.

On the other hand, the century has produced but one change in the special grounds of partial divorce. Petitions for separation from bed and board are still allowed only in favor of the wife. The four causes sanctioned in 1785, re-enacted in 1815 and 1817, are yet in force;[397] while, since 1862, adultery on the part of the husband is admitted as a fifth ground of complaint.[398]

[397] PEPPER AND LEWIS, _Digest_ (1896), I, 1687. _Cf._ the act
of March 13, 1815: _Laws of the Com._ (1822), VI, 286; and _Laws_
(1817), 405.

[398] _Laws_ (1862), 430; PEPPER AND LEWIS, _Digest_, I, 1637,
1638.

An important innovation appears in 1893. A new group of discretionary causes is then created. The courts are empowered to grant the wife a divorce, either from bed and board or from the bond of wedlock, on four several grounds. Three of these are identical with the third, fourth, and fifth causes of partial divorce just enumerated. In addition, two years' "wilful and malicious desertion" by the husband is admitted. These same four causes are declared valid "where it shall be shown to the court by any wife that she was formerly a citizen of this commonwealth, and that having intermarried with a citizen of any other state or any foreign country, she has been compelled to abandon the habitation and domicile of her husband" in such place, thereby being "forced to return to this commonwealth in which she had her former domicile." In any such case, if personal service by subpœna cannot be made upon the husband by reason of his non-residence, the court before entering a decree shall require proof that, in addition to the publication required by law, actual or constructive notice of the proceedings has been given him, either "by personal service or by registered letter to his last known place of residence, and that a reasonable time has thereby been afforded to him to appear" and make defense. The wife, however, is only entitled to the benefits of this act when she has been a citizen and resident of the state for one year previous to bringing suit.[399]

[399] Act of June 20: _Laws_ (1893), 471; PEPPER AND LEWIS,
_Digest_, I, 1638, 1639.

It must further be observed, in connection with the present laws of Pennsylvania regarding absolute divorce, that the principle of the colonial statute touching cases of long absence has unfortunately been perpetuated. The snare is still set for the feet of the unwary. "If any husband or wife, upon false rumor, in appearance well founded, of the death of the other (when such other has been absent for the space of two whole years), hath married ... again, he or she shall not be liable to the pains of adultery;" but on return the person remaining unmarried may elect either to have the former spouse restored or to have the former contract dissolved, leaving the second marriage undisturbed.[400]

[400] Act of 1815: _Laws of the Commonwealth_ (1822), VI, 288;
PEPPER AND LEWIS, _Digest_ (1896), I, 1634.

"While a well-founded belief in the death of her first husband
will relieve a woman marrying a second time from the pains of
adultery, it cannot validate her second marriage, if, in fact,
her first husband was living when it was solemnized."--Thomas
_v._ Thomas, 124 _Pa._, 646; s. c., 23 _W. N. C._, 410 (1889).
_Cf._ PEPPER AND LEWIS, _Digest_, I, 1634, ed. note.

By the Delaware statute of February 3, 1832, the superior court is authorized to grant absolute divorce, or, in its discretion, partial divorce or merely alimony, where either spouse (1) had a lawful husband or wife living at the time of the marriage; (2) has been wilfully absent from the other for three years with the intention of abandonment; (3) has committed adultery; or (4) extreme cruelty; or (5) where the male was actually impotent when the marriage took place.[401] Just twenty years later an entirely new grouping of causes and kinds of separation was introduced. The superior court is empowered to grant a full divorce (1) for adultery of the wife; and (2) for impotency of either person at the time of marriage; while separation from bed and board is allowed (1) for adultery of the husband; (2) for extreme cruelty; or (3) for wilful absence of either for three years with intent to abandon. At the same time a distinction was made between divorce and annulment. The court is authorized to declare null and void a marriage (1) within the prohibited degrees of affinity or consanguinity; (2) between a white person and a negro or mulatto; (3) where either person was insane; or (4) had a spouse living at the time of the contract.[402] At present the annulment of voidable contracts is still governed by the enactment of 1852.[403]

[401] _Laws of Del._ (1832), 148-50.

[402] _Rev. Stat. of Del._ (1852), 238.

[403] _Rev. Stat._ (1893), 596.

In 1859 a revised scheme was substituted. Absolute divorce is authorized on the same two grounds as in 1852, the unjust discrimination regarding the husband's infidelity being still maintained. On the other hand, "a divorce from the bond of matrimony, or from bed and board, at the discretion of the court," may now be decreed for (1) adultery of the husband; (2) extreme cruelty; (3) procurement of the marriage by force or fraud; (4) want of legal age--sixteen for males and fourteen for females--if after that age the marriage has not been voluntarily ratified; (5) wilful abandonment for three years; (6) conviction in any place, before or after marriage, of a crime deemed felony by the laws of the state; (7) habitual gross drunkenness for three years, contracted after marriage; or (8) three years' wilful neglect by the husband to provide his wife with the common necessaries of life.[404]

[404] Act of Feb. 24, 1859, amending the act of 1852: _Laws_
(1859), 730, 731.

By the present law of Delaware, which has existed since 1873, the superior court may decree absolute divorce for (1) adultery in either spouse; (2) desertion for three years; (3) habitual drunkenness; (4) impotency at the time of marriage; (5) extreme cruelty; or (6) conviction of felony, as in 1859. The discretionary grounds on which the court may grant either full or limited divorce are now reduced to two, these in substance being nearly identical with the fourth and eighth causes sanctioned by the statute of 1859.[405]

[405] _Cf._ Act of March 12: _Laws of Del._ (1873), 633-35; or
the same in _Rev. Stat._ (1874), 475; with _Rev. Stat._ (1893),
595.

The discretionary grounds are now (1) "procurement of the
marriage by fraud for want of age, the husband being under the
age of eighteen years or the wife being under the age of sixteen
years at the time of the marriage, and such marriage not being
after those ages voluntarily ratified;" (2) "wilful neglect on
the part of the husband for three years to provide for his wife
the necessaries of life suitable to her condition."

The history of judicial divorce in the West begins with the statute adopted for the Northwest Territory in 1795. Jurisdiction is vested in the general court and the circuit courts, which are empowered to grant absolute divorce (1) for adultery; (2) impotency; (3) where either person had a husband or wife alive at the time of the second marriage; or to grant partial divorce for extreme cruelty in either spouse.[406] This law was repealed in 1804 by an act of the legislature of Ohio--that portion of the Northwest Territory having been made a state in 1802--giving the supreme court sole cognizance of divorce suits. By it no provision for partial divorce is made; but full dissolution of marriage is sanctioned (1) for bigamy, as in 1795; (2) for wilful absence for five years; (3) for adultery; and (4) for extreme cruelty.[407] After eighteen years' trial, the plan of 1804 was in its turn superseded. Six grounds of absolute divorce were then provided. Of these four are identical with those just mentioned, except that the term of wilful absence is reduced to three years. In addition there are recognized (5) physical incompetence at the time of the marriage; and (6) sentence with actual imprisonment for violation of the criminal laws of the state, provided application be made during the term of confinement.[408] Two years later a new plan was adopted. Absolute divorce was permitted for the six causes allowed in 1822; and partial divorce, which had not existed by statute for twenty years, was revived; the courts, on the same six grounds, being authorized, instead of full dissolution of wedlock, to decree separation from bed and board, or merely alimony, according to justice and the circumstances in each case.[409] This provision, however, was short-lived; for in 1833 partial divorce was a second time abolished.[410]

[406] CHASE, _Stat._, I, 192, 193 (act of July 15, 1795).

[407] _Ibid._, 493, 494.

[408] Act of Jan. 11, 1822: CHASE, _Stat._, II, 1210, 1211.

[409] Act of Jan. 7, 1824: CHASE, _Stat._, II, 1408, 1409.

[410] Act of Feb. 22, 1833: CHASE, _Stat._, III, 1934.

Thus matters stood until 1853, when a measure appeared by which the law was much relaxed in several important respects. Jurisdiction, which since 1804 had remained solely in the supreme tribunal of the state, was now vested in the several courts of common pleas. In addition to the six grounds for full divorce already created, four new causes were recognized. These were (7) fraudulent contract; (8) gross neglect of duty; (9) habitual drunkenness for three years; and (10) a decree of divorce in another state "by virtue of which the party who shall have obtained such decree shall have been released from the obligations of the marriage contract, while the same remains binding upon the other."[411]

[411] Act of March 11, 1853: SWAN, _Stat. of Ohio_ (1854),
324-28. But the provision regarding sentence and imprisonment is
differently worded. At present (BATES, _Ann. Rev. Stat._ (1900),
II, 2948) the paragraph reads: "The imprisonment of either party
in a penitentiary under sentence thereto; but the petition for
divorce under this clause shall be filed during the imprisonment
of the adverse party."

These ten causes of absolute divorce are still sanctioned by Ohio law. No provision is made for limited divorce; but there is an "action for alimony, which is in effect a limited divorce, and which may be brought by the wife for any of the following causes," also sanctioned by the act of 1853: (1) adultery; (2) any gross neglect of duty; (3) abandonment without good cause; (4) separation in consequence of the husband's ill-treatment, whether the wife is maintained by him or not; (5) habitual drunkenness; and (6) sentence to imprisonment in a penitentiary, if application be made while the husband is so confined.[412]

[412] For the present law of Ohio see BATES, _Ann. Rev. Stat._
(1897), II, 2804-10. _Cf._ WRIGHT, _Report_, 106. Jurisdiction is
still vested in the courts of common pleas, although in certain
counties the probate courts have cognizance: BATES, _op. cit._,
II, 2804.

Indiana, in 1816, is the next portion of the Northwest Territory to be admitted to the Union. Two years after the attainment of statehood her legislature passed the first divorce statute, granting jurisdiction to the circuit courts. By the enactment full divorce in favor of either spouse when aggrieved is allowed for (1) adultery; (2) matrimonial incapacity; (3) bigamous contract; (4) two years' absence with intent to abandon; (5) desertion and living in adultery; (6) conviction for felony; and (7) in favor of the wife when the husband's treatment of her is extremely barbarous and inhuman.[413] In 1824 an "omnibus" clause was introduced, a full divorce being then allowed on petition of the injured person (8) "in all cases where the court in its discretion" shall deem the same "just and reasonable."[414] These grounds are all sanctioned by the act of 1831.[415] Still another cause was admitted in 1836. The circuit courts are empowered to grant the wife absolute divorce (9) when the husband for two years has been a habitual drunkard, and has failed for "any unreasonable length of time to make provision for his family." By the same act, moreover, a marriage may be dissolved "in all cases where the parties have been guilty of murder, manslaughter, burglary, robbery, grand or petty larceny, forgery, counterfeiting, arson, bribery, perjury, or any other crime" the penalty for which on conviction is "imprisonment at hard labor in the penitentiary."[416] But, apparently, this is meant to be a restatement of the sixth cause above given.[417]

[413] Act of Jan. 26, 1818: _Laws of the State of Ind._ (1818),
226-29.

[414] _Rev. Laws_ (1824), 156, 157; same in _ibid._ (1831),
213-15.

[415] Act of Jan. 17, 1831: _Rev. Laws_ (1831), 213.

[416] _Laws of a Gen. Nature_ (1836), 69.

[417] Nevertheless, the act of 1836 provides for causes in
addition to those sanctioned by the act of 1831, which includes
conviction for felony as in 1818.

Only two years elapsed before a new general statute was adopted, authorizing full divorce on eight grounds. Six of these correspond to the first, second, sixth, seventh, eighth, and ninth causes already sanctioned. Bigamous marriage and desertion with adultery no longer appear as causes; while the fourth ground, as above enumerated, is so modified as to require a separate statement for the husband and wife respectively. The husband (7) is allowed a full divorce for two years' absence of the wife with intent to abandon; and the wife is granted the same relief (8) for like absence of the husband, "and also for any other cause or causes"--a most singular legislative freak.[418] In 1843 this vicious clause was dropped. Abandonment for two years is now made a cause of divorce in favor of either person, thus reducing the number of legal grounds to seven. At the same time, in modification of a cause already existing, the wife is allowed a petition on account of "cruel and inhuman treatment" by the husband, "or when his conduct towards her has been such as may render it unsafe and improper for her to live with him." The other five causes sanctioned by the statute of 1838 are re-enacted without change.[419] A relaxation of the law takes place in 1849. One year's abandonment is declared sufficient to constitute a cause; but in such case the court is especially empowered, in its discretion, to grant a divorce, waiving all objections in regard to time of separation, if it deems a reconciliation "hopeless."[420]

[418] _Rev. Stat._ (1838), 242-44. The sixth ground, as
enumerated in the text, the first of this act, is "any crime"
committed in the United States or the territories, the punishment
for which is deemed "infamous."

[419] _Rev. Stat._ (1843), 598 ff.

[420] Act of June 1: _Gen. Laws_ (1849), 62, 63.

A pause of three years next ensues before the lawmaker resumes his tinkering with the causes of divorce. The act of 1852 admits the seven general grounds, as these had existed since the change in 1849; but with two important modifications. For now "habitual drunkenness," without reference to the term during which it has existed, and cruel treatment, each on the part of either husband or wife, are constituted reasons for dissolving the marriage bond. By the same law a divorce for adultery is denied when there has been (1) connivance; (2) voluntary cohabitation after knowledge of the offense; (3) neglect to petition within two years; or (4) when the petitioner is guilty of the same crime.[421] Seven years later the time of abandonment, to constitute a cause, was reduced to one year, the court being thus deprived of its discretionary power to grant a divorce for desertion during a shorter period.[422]

[421] _Rev. Stat._ (1852), II, 233-38.

[422] _Laws of Ind._ (1859), 108.

Finally the long series of enactments defining the grounds of absolute divorces came to a halt in 1873, when the law of Indiana in this regard took its present form. The superior and circuit courts, on petition of either spouse, are granted jurisdiction. Three very important and beneficial amendments, producing a marked decrease in the number of divorces annually granted, are now made. The term of abandonment is increased from one year to two years; "failure of the husband to make reasonable provision for his family" is changed to such failure for a "period of two years;" and, most significant of all, the omnibus clause, existing since 1824 and rephrased in 1838, providing that divorces may be granted "for any other cause" which the court shall deem "reasonable and proper," is stricken out.[423] As a result, the marriage tie may now be dissolved for (1) adultery; (2) impotence existing at the time of the marriage; (3) abandonment for two years; (4) cruel and inhuman treatment; (5) habitual drunkenness; (6) failure of the husband to make reasonable provision for his family for two years; (7) the conviction of either person, in any country, subsequent to the marriage, of an infamous crime. Until very recently limited divorce was not recognized in Indiana; but a married woman might bring action for the support of herself and infant children in the following cases, being analogous to those sanctioned by the Ohio law: (1) when the husband shall have deserted his wife, or wife and children, without leaving sufficient provision for support; (2) when he shall have been convicted of felony and imprisoned in the state prison, not leaving his wife, or wife and children, the same provision; (3) when he is a habitual drunkard and by reason thereof becomes incapacitated or neglects to provide for his family; or (4) when he renounces the marriage covenant, or refuses to live with his wife in the conjugal relation, by joining himself to a sect or denomination the rules and doctrines of which require such renunciation or forbid a man and woman to dwell and cohabit together in the conjugal relation according to the true intent and meaning of the institution of marriage.[424] A statute of 1903 authorizes separation from bed and board "for a limited time" in case of (1) adultery; (2) "desertion, or where the wife is plaintiff, neglect or refusal to suitably provide for her, covering a period of six months;" (3) habitual cruelty of one party, "or such constant strifes of both parties as render their living together intolerable;" (4) habitual drunkenness, "or the confirmed and excessive use of morphine, cocaine, or any other drug;" (5) gross and wanton neglect of conjugal duty for six months.[425]

[423] For construction of the omnibus clause, see Ritter _v._
Ritter, 5 BLACKF., 81.

[424] Act of March 10: _Laws of Ind._ (1873), 107-12; also
HORNER, _Rev. Stat._ (1896), I, secs. 1024-49; II, sec. 5132;
BURNS, _Ann. Stat._ (1901), I, 443, 444; III, 559.

[425] _Laws of Ind._ (1903), 114, 115.

In 1818, closely following Indiana, Illinois was carved from the bountiful region northwest of the Ohio River. After a year's delay, a divorce law was enacted in 1819; and this, as amended in 1825, authorizes both kinds of separation. Full dissolution of wedlock may be granted for (1) physical incapacity at the time of solemnization; (2) adultery; (3) two years' voluntary and continued absence. Partial divorce is likewise sanctioned for (1) extreme and repeated cruelty in either spouse: or (2) constant and habitual intemperance in either for two years. "But in the latter case it shall be incumbent on the complaining party to show that he or she had performed all the duties of a faithful and affectionate husband or wife."[426]

[426] Act of Jan. 17, 1825, to amend an act of Feb. 22, 1819:
_Laws of Ill._ (1825), 169.

The act of 1827 is silent as to limited divorce, which has not since been recognized in Illinois. Full divorce may now be granted by the circuit courts, sitting as courts of equity, when either person (1) was at the time of the marriage and still is naturally impotent; (2) had a husband or wife living at the time of the marriage; (3) has since been guilty of adultery; or (4) wilful desertion for two years; or (5) extreme and repeated cruelty; or (6) habitual drunkenness for two years.[427] A step backward was taken in 1832 through the adoption of a kind of omnibus clause. By proceedings in chancery full dissolution of marriage is authorized (7) for all causes of divorce not provided for by any law of the state.[428] Next, after an interval of thirteen years, on the petition of the aggrieved, comes (8) conviction for felony or other infamous crime.[429] This is followed after the lapse of thirty years more by the sanction (9) of absolute divorce when either person "has attempted the life of the other by poison or other means showing malice."[430]

[427] _Rev. Code_ (1827), 180, 181.

[428] Act of Dec. 4, 1832: _Rev. Laws_ (1833), 234, 235. In the
statutes this is not enumerated as a cause; but it surely is one
in effect.

[429] _Rev. Stat._ (1845), 196; also in PURPLE, _Comp._ (1856),
I, 493, 494; and in _Stat. of Ill._ (1864), 150, 152.

[430] Act of March 10, 1874: GROSS, _Stat. of Ill., 1818-74_ (3d
ed., 1872-74), III, 176.