Chapter XVII (6)

The tale of causes allowed by the present law of Illinois is thus complete. Separation from bed and board is not provided for by statute. In general, chancery process is required. The circuit courts of the respective counties and the superior court of Cook county (Chicago) are clothed with jurisdiction in divorce controversies.[431]

[431] HURD, _Rev. Stat._ (1898), 631-34. _Cf._ _Rev. Stat._
(1845), 196, 197; and STARR AND CURTIS, _Ann. Stat._ (1896), II,
1435-55.

Michigan became a separate territory in 1805, and seven years thereafter the supreme court was granted jurisdiction in both kinds of divorce.[432] By the act of 1819 marriage may be dissolved for adultery in either spouse, when the husband and wife are inhabitants of the territory, or when the marriage was solemnized therein; as also when the injured person was an actual resident of the territory at the time of the offense, and so remains when the bill is filed. When guilty, the wife forfeits her right of dower. On the other hand, the court may grant her a divorce _a mensa_, forever or for a limited time, (1) for "cruel and inhuman treatment;" (2) for such conduct on the part of the husband "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 refuses or neglects to provide" for her support.[433]

[432] Act of 1812: _Territorial Laws of Mich._, I, 183.

[433] Act of Nov. 13, 1819: _Territorial Laws of Mich._, I,
495-98; _cf._ the act of Apr. 12, 1827: _ibid._, II, 363-66,
repeating the provisions given in the text from the act of 1816.

A different plan appears in 1832. A divorce from the bond of wedlock is now permitted (1) for impotency, and (2) for adultery. Furthermore, the court, in its discretion, is empowered to grant either person a full or a partial divorce (1) for extreme cruelty, or (2) for five years' wilful desertion. By this act jurisdiction is vested in the supreme court and either of the circuit courts of the territory.[434] A statute of the next year retains all these provisions of 1832, except that the term of wilful desertion, to constitute a discretionary ground, is reduced to three years.[435] Five years later, after Michigan became a state, a divorce is made unnecessary when a marriage is void or when the persons contracting it are below the age of consent. At the same time the grounds of separation are reconsidered. Absolute divorce is now authorized (1) for adultery; (2) for impotence; (3) for five years' desertion; (4) for sentence to imprisonment at hard labor for three years or more; and either a full or a partial divorce, on the petition of either spouse, (1) for extreme cruelty; (2) for three years' "utter desertion;" or (3) on application of the wife, when the husband, being of sufficient ability to provide a suitable maintenance for her, "shall grossly or wantonly and cruelly refuse or neglect to do so."[436] In 1844 extreme cruelty, "whether practiced by using personal violence, or by any other means," was substituted for the corresponding clause in the act of 1838.[437] Next, in 1846 and 1847 came swift changes in the law of desertion, but only in their turn to be swept away in 1848.[438] So in 1851 we reach an act by which the grounds of divorce in Michigan have been determined for half a century.

[434] Act of June 28, 1832: _Ter. Laws of Mich._, III, 931, 932.

[435] Act of Apr. 4, 1833: _Ter. Laws of Mich._, III, 1005-7.

[436] _Rev. Stat._ (1838), 336, 337.

[437] _Acts_ (1844), 74.

[438] The _Rev. Stat._ (1846), 333, make the term of desertion
two years for either absolute or limited divorce. The _Acts_
(1847), 168, 169, lengthen the period to five years for absolute
divorce and three years for partial divorce. But these changes
are repealed by _Acts_ (1848), 194.

By the existing law, as then enacted, on application of the aggrieved, a full divorce may be decreed by the court of chancery, or by the circuit court of the county where the parties or one of them resides, for (1) adultery; (2) physical incompetency; (3) sentence to imprisonment for three years or more, no pardon to affect the status of the divorced persons; (4) two years' desertion; (5) when the husband or wife shall have become a habitual drunkard; "and (6) the circuit courts may, in their discretion, upon application as in other cases, divorce from the bonds of matrimony any party who is a resident of this state, and whose husband or wife shall have obtained a divorce in any other state." The same tribunals are authorized, in their discretion, to grant either a limited or a full divorce in favor of the aggrieved for (1) extreme cruelty, "whether practiced by using personal violence, or by any other means;" (2) utter desertion for two years; or (3) on complaint of the wife for the husband's neglect to provide, as by the law of 1838.[439]

[439] HOWELL, _Gen. Stat._ (1882-83), II, 1621-30; MILLER, _Comp.
Laws_ (1899), III, 2653-66; _cf._ _Acts_ (1851), 71, 72. The
partial divorce may, as originally, be "forever or for a limited
time."

Wisconsin, the remaining[440] portion of the region originally governed by the ordinance of 1787, was erected into a separate territory in 1836. Its divorce legislation, which in its general outline is similar to that of Michigan, began in 1838-39, when the district court of each county was given jurisdiction in both kinds of separation. The causes of absolute divorce then recognized are (1) impotence; (2) adultery. Those of partial divorces are (1) extreme cruelty; (2) two years' wilful desertion; (3) habitual drunkenness; (4) abandonment of the wife by the husband, or "his refusal or neglect to provide for her."[441]

[440] Except a part of Minnesota.

[441] _Stat. of the Ter. of Wis._ (1838-39), 140, 141.

In 1849, the year following the attainment of statehood, was adopted a new statute by which the foundation of the present system was laid. By it, as under the present law, a marriage is declared absolutely dissolved without any decree of divorce or legal process whenever either spouse is sentenced to imprisonment for life; and a pardon is not to effect a restoration of conjugal rights. The circuit courts are granted jurisdiction. Both full and partial divorce are provided for. Absolute divorce is allowed for (1) adultery; (2) impotence; (3) sentence of either spouse to imprisonment for a period of three years or more, no pardon working a restoration of conjugal rights; (4) wilful desertion for one year next preceding the commencement of the action; (5) when the treatment of the wife by the husband has been "cruel and inhuman, whether practiced by using personal violence, or by any other means," or "when the wife shall be guilty of like cruelty to her husband or shall be given to intoxication;" (6) when the husband or wife shall have been a habitual drunkard for the space of one year immediately preceding the filing of the bill. To these grounds was added as a cause in 1866: (7) voluntarily living entirely separate for the five years next preceding the commencement of the action.[442] So the law of absolute divorce remains at the present time, all attempts to make insanity a permanent ground having thus far failed.[443]

[442] Act of March 31, _Gen. Laws_ (1866), 40.

[443] In 1856 the court in its discretion was authorized to
decree a divorce when either spouse shall become incurably
insane and "shall have so remained for the term of seven years
continuously," the husband being required to give bond with
security for the maintenance of the wife during her life: Act
of March 31, _Gen. Acts_ (1856), 96. After two years this act
was repealed: _Gen. Laws_ (1858), 82. A second attempt was made
in 1881. A full divorce was then authorized when either husband
or wife shall have been insane for the space of five years
immediately preceding the commencement of the action, and the
court shall be satisfied that the insanity is incurable: Act of
April 2, _Laws_ (1881), 376-78. This statute was repealed the
next year: _Laws_ (1882), 798.

The history of partial divorce in Wisconsin is soon told. The provisions of the act of 1849 are still in force. The causes of separation from bed and board, forever or for a limited time, there recognized are (1) the fourth, fifth, and sixth grounds of full divorce above specified; (2) extreme cruelty of either spouse; (3) on complaint of the wife when the husband, being of sufficient ability, shall refuse or neglect to provide for her; or (4) when his conduct toward her is such as may render it unsafe and improper for her to live with him. It is expressly declared that a divorce from the bond of matrimony may be decreed for either of the three causes last named, "whenever, in the opinion of the court, the circumstances of the case are such that it will be discreet and proper to do so." From the somewhat awkward arrangement of its provisions, therefore, the general effect of this statute appears to be that a full divorce _may_ be granted for any ground recognized by it, provided the court deems it prudent to exercise its discretionary authority. Furthermore, it must be noted that by the existing law, just as in 1849, the circuit court is empowered to allow separate maintenance when a partial divorce is denied.[444]

[444] _Cf._ _Rev. Stat._ (1849), 393-98; _ibid._ (1858), 623-28;
_ibid._ (1872), II, 1269-76; _Ann. Stat._ (1889), I, 1362-75; and
SANBORN AND BERRYMAN, _Wis. Stat._ (1899), I, 1702-20.

We may next pass to the long list of new states in the West and Northwest whose generous boundaries spread over the Mississippi valley, the vast regions of the Rocky Mountains, and the Pacific slope. The course of legislation in Minnesota has run closely parallel to that of Wisconsin, though it is divergent in some important details. In 1851, seven years before the admission of that state to the Union, a statute logically declared bigamous marriages and those within the forbidden degrees, if solemnized in the territory, void without a decree. At the same time, as causes of absolute divorce in favor of the aggrieved were sanctioned (1) adultery; (2) impotency; (3) sentence to imprisonment in the penitentiary after the marriage, no subsequent pardon effecting a restoration of conjugal rights; (4) wilful desertion for one year next preceding the commencement of the suit; (5) cruel and inhuman treatment, whether practiced by using personal violence or by any other means; (6) habitual drunkenness for one year immediately preceding the filing of the complaint. By this act no provision is made for partial divorce.[445] The term of wilful desertion was increased from one year to three years in 1866;[446] but in 1895 the shorter period was restored, so that under the existing law the six grounds of absolute divorce as sanctioned in 1851 are recognized, except that "cruel and inhuman treatment" is constituted a cause, the original explanatory clause being omitted.[447] On the other hand, limited divorce is now provided for. Since 1876, on complaint of a married woman, separation from bed and board is authorized (1) for cruel and inhuman treatment by the husband; (2) for such conduct on his part as may render it unsafe and improper for her to cohabit with him; or (3) for abandonment and refusal or neglect by him to provide for her. The district court of the county where the persons or one of them resides is now vested with jurisdiction in all actions for divorce or for the annulment of marriage.[448]

[445] _Rev. Stat. of Minn._ (1851), 272-76.

[446] _Gen. Stat. of Minn._ (1866), 408-12. "The revisers
repeated this chapter under two titles, the second being entitled
'Limited Divorces,' but the legislature rejected Title II and did
not change or amend Title I."--_Ibid._, 408, note.

[447] Act of April 22, _Session Laws_ (1895), 158. _Cf._ _Gen.
Stat._ (1894), I, 1267, for the law modified in 1866.

[448] _Cf._ _Laws_ (1876), chap. 118; _Gen. Stat. of Minn._
(1894), I, 1273, 1267; _Session Laws_ (1895), 158.

One of the worst and most characteristic features of American state legislation is seen in the session laws of Iowa, where the statute-maker is perennially engaged in adopting, changing, abrogating, or re-enacting plans of divorce and alimony. The first step was taken in 1838, when the district court of the county where the persons or one of them resides was given jurisdiction on the petition of the aggrieved. The grounds of absolute divorce then allowed are (1) impotence; and (2) adultery. Those of divorce _a mensa_ or of divorce from the bond of wedlock, in the discretion of the court, are (1) extreme cruelty; or (2) wilful desertion for one year.[449] This law was repealed and a new one adopted in the next year. Nothing is now said of separation from bed and board; but a full divorce may be had by the injured spouse for (1) impotency; (2) bigamous marriage; (3) adultery; (4) one year's desertion; (5) felony; (6) habitual drunkenness; (7) cruel treatment; (8) indignities.[450] Three years later this statute in turn gave place to another by which the same causes are sanctioned, except, under the sixth head, it is provided that "said habitual drunkenness shall be contracted after marriage."[451] In 1846, however, this proviso was dropped; and at the same time an "omnibus" clause was sanctioned. A full divorce may now be granted (9) "when it shall be made fully apparent to the satisfaction of the court, that the parties cannot live in peace and happiness together, and that their welfare requires a separation."[452] The eighth ground was dropped in 1851, and at the same time it was again specified under the sixth head that drunkenness shall have become habitual after marriage.[453]

[449] Act of Dec. 29, 1838: _Laws of Ia._ (1838-39), 179, 180.

[450] Act of Jan. 17, 1840: _Laws of Ia._ (1839-40), 120-22.

[451] Act of Jan. 20, 1843: _Rev. Stat. of Ia._ (1843), 237-41.

[452] Act of Jan. 17, 1846: _Laws of Ia._ (1845-46), 23.

[453] _Code of Ia._ (1851), 223.

Thus matters stood until 1855, when the worthy legislators managed to put the law in a curiously awkward shape. It was then decreed that "hereafter no divorce otherwise than from bed and board shall be granted except" (1) where either spouse shall commit adultery; (2) be convicted of felony; (3) was impotent at the time of the marriage; or (4) wilfully deserts the other for the space of three years. "In all other enumerated causes heretofore deemed sufficient"--continues the statute--"no divorce otherwise than a divorce from bed and board shall be granted."[454] This scheme was short-lived. An act of 1858 revives the law as it stood in 1851, except that the term of wilful desertion was extended to two years and the omnibus clause was omitted, thus leaving seven grounds of petition in force.[455]

[454] Act of Jan. 24, 1855: _Laws of Ia._ (1854-55), 112, 113.

[455] Act of March 15: _Laws of Ia._ (1858), 97, 98.

The present law of Iowa governing the causes of divorce took its rise in the code of 1873. The district court in the county where the plaintiff or defendant resides still has jurisdiction. Limited divorce is not recognized, but "it appears that courts of equity will grant alimony without divorce to a wife where she is separated from her husband because of his misconduct, though no express statutory provision is found authorizing such proceeding."[456] A full divorce may be decreed against the husband (1) when he has committed adultery subsequent to the marriage; (2) when he wilfully deserts his wife and absents himself without reasonable cause for the space of two years; (3) when after marriage he is convicted of felony; or (4) becomes addicted to habitual drunkenness; or (5) when he is guilty of such inhuman treatment as to endanger the life of his wife; and against the wife, for the five causes just enumerated, and also (6) when at the time of the marriage she was pregnant by a man other than her husband, unless the husband then had an illegitimate child or children living and the fact was unknown to her.[457]

[456] WRIGHT, _Report_, 96. _Cf._ Graves _v._ Graves, 36 _Ia._,
310; Whitcomb _v._ Whitcomb, 46 _Ia._, 437.

[457] _Cf._ _Ann. Code of Ia._ (1897), 1135-47; and _Code of Ia._
(1873), 399-401; also _Laws of Ia._ (1870), 429 (jurisdiction).

The divorce legislation of Kansas begins in 1855, the next year after the territory was erected. The grounds on which the aggrieved may secure a complete dissolution of the matrimonial bond are (1) impotence continuing from the time of the marriage; (2) bigamous marriage; (3) adultery; (4) wilful desertion and absence for two years without reasonable cause; (5) conviction of felony or infamous crime; (6) habitual drunkenness for two years; (7) cruel and barbarous treatment endangering life; (8) intolerable indignities offered to the person; (9) vagrancy of the husband.[458] In 1859 this law gave place to another, by which the fifth, eighth, and ninth causes above enumerated were omitted; the term of wilful absence, under the fourth head, was reduced to one year; and habitual drunkenness became a cause, without specification of the time during which it must have existed.[459] The very next year this plan was in its turn superseded. A new act allowed separate alimony without dissolution of marriage, and sanctioned eleven grounds of total divorce. The first four of these are identical with the corresponding numbers in 1855, as modified in 1859. In addition are approved (5) pregnancy of the wife at the time of the marriage by a man other than the husband; (6) extreme cruelty; (7) fraudulent contract; (8) gross neglect of duty; (9) habitual drunkenness; (10) sentence for crime and imprisonment therefor in a penitentiary, provided complaint be filed during the term of confinement; (11) when one person has secured a divorce in another state or territory, leaving the obligation binding on the other.[460]

[458] _Stat. of Kan._ (1855), 310, 311.

[459] Act of Feb. 7: _Gen. Laws of Kan._ (1859), 385.

[460] Act of Feb. 27: _Gen. Laws of Kan._ (1860), 105-10. An Act
of June 4, 1861, provides that a person presenting a copy of an
act of the Territory of Kansas by which he has been divorced
"shall be entitled to a decree of divorce without issuing summons
thereon."--_Gen. Laws_ (1861), 146.

The eleventh cause just specified was dropped in 1868. The remaining ten were then re-enacted;[461] and these grounds, without addition or essential change, constitute the law of Kansas at the present time. In this state there is no separation from bed and board. But "the wife may obtain alimony alone from the husband without a divorce ... for any of the causes for which a divorce may be granted."[462] By the constitution, jurisdiction in all divorce actions is vested in the district courts;[463] and the supreme court has authority when suits are brought up on error.[464]

[461] "Code of Civil Procedure," approved Feb. 25, 1868, Art.
XXVIII: in PRICE, RIGGS, AND MCCAHON, _Gen. Stat. of Kan._,
757-59. The law of 1868 reappears in DASSLER, _Laws of Kan._
(1876), II, 761-63; _ibid._ (1879), 690-92.

[462] _Laws of Kan._ (1897), II, 273-77; DASSLER, _Gen. Stat._
(1901), 1055.

[463] Art. II, sec. 18, Const. of 1859.

[464] See Ulrich _v._ Ulrich, 8 _Kan._, 402. _Cf._ Wesner _v._
O'Brien, 1 _Ct. App._, 416; and McPherson _v._ the State, 56
_Kan._, 140 ff.

Both kinds of separation are provided for by the Nebraska law of 1856; and a marriage is then declared to be completely dissolved without decree in case of conviction and imprisonment for life. The district court of the county where the married persons or one of them resides is empowered to grant absolute divorce on complaint of the aggrieved for (1) adultery; (2) physical incompetency at the time of the marriage; (3) sentence to imprisonment for three years or more, no pardon effecting a restoration of conjugal rights; (4) two years' wilful abandonment without good cause; (5) habitual drunkenness. The same tribunal may decree either a limited or a full divorce for (1) extreme cruelty; or (2) two years' utter desertion by either spouse; and (3) in favor of the wife, when the husband, being of sufficient ability, shall grossly or wantonly and cruelly refuse or neglect to provide for her.[465] No essential change appears in the statutes until 1875, when imprisonment for life was made a sixth ground of absolute divorce;[466] and so the law of Nebraska remains at the present hour.[467]

[465] Act of Jan. 26: _Laws_ (1856), 154-59.

[466] Act of Feb. 19: _Laws_ (1875), 80. _Cf._ _Gen. Stat. of
Neb._ (1873), 344-51; and _Stat. of Neb._, in force Aug. 1,
1867, 128-35, where the causes approved in 1856 appear without
essential change.

[467] _Compiled Stat._ (1901), 577. The law regarding
jurisdiction is the same as in 1856.

Separation from bed and board has at no time been authorized by the laws of Colorado. The district courts have jurisdiction. Full divorce may now be granted in favor of the aggrieved on eight grounds; and in this regard there have been few changes since the first statute of 1861. The present causes are (1) impotence continuing from the time of the marriage or originating thereafter in consequence of immoral or criminal conduct; (2) bigamous contract; (3) adultery; (4) one years' wilful desertion and absence without reasonable cause (5) extreme or repeated acts of cruelty, consisting as well in the infliction of mental suffering as of bodily violence; (6) failure on the part of the husband, being in good bodily health, to make reasonable provision for his family for the space of one year; (7) habitual drunkenness of either spouse for the same period; (8) conviction of felony.[468]

[468] Act of April 3, 1893: _Laws of Col._, 236, 237; also in
MILLS, _Ann. Stat._ (1897), III, 434. The sixth cause was added
in 1881. At the same time the term of habitual drunkenness was
reduced to one year, instead of two years, as by the law of
1861; while desertion and departure from the territory "without
intention of returning," until then a ground for divorce when
committed by the husband, was made a ground when committed by
either party: _Laws of Col._ (1881), 112; also in _Gen. Stat._
(1883), 397 ff. The first cause, in its present form, arose in
_Laws of Col._ (1885), 189, and it differs somewhat from the
original provision in _ibid._ (1861-62), 360.

Since the original statute of 1870, in Wyoming, a bigamous contract or a marriage where the persons are related within the forbidden degrees, or where either is insane or an idiot, is void without judicial decree.[469] In that state separation from bed and board has never been sanctioned. Under the existing law, as it has stood since 1882, absolute divorce is allowed either person when aggrieved for (1) adultery; (2) physical incompetence continuing from the time of the marriage; (3) conviction of a felony and imprisonment therefor in any prison, no subsequent pardon effecting a restitution of conjugal rights; (4) wilful desertion for one year; (5) when either husband or wife has become a habitual drunkard; (6) extreme cruelty; (7) neglect of the husband for the period of one year to provide the common necessaries of life, unless such neglect is the result of poverty which he could not have avoided by ordinary industry; (8) indignities rendering the condition of either spouse intolerable; (9) conduct on the part of the husband constituting him a vagrant within the meaning of the law; (10) when before the marriage or its solemnization either person shall have been convicted of a felony or infamous crime in any state, territory, or count[r]y without knowledge of the fact by the other at the time of the marriage; (11) when the intended wife at the time of contracting the marriage or its solemnization is pregnant by any man other than her intended husband, and without the latter's knowledge at the time of the solemnization.

[469] Act in force Jan. 1, 1870: _Laws_ (1869), 274; VAN ORSDEL
AND CHATTERTON, _Rev. Stat._ (1899), 794.

Although there is no limited divorce in Wyoming, the law in certain cases allows separate alimony to be granted to the wife without a formal decree of separation.[470]

[470] Act of March 8: _Laws_ (1882), 73-81; _Rev. Stat._ (1887),
sec. 1571, pp. 419-24; also VAN ORSDEL AND CHATTERTON, _Rev.
Stat._ (1899), 794-800. The first six of the causes above
enumerated were introduced by the act which came into force
Jan. 1, 1870: _Laws_ (1869), 274-81; but then under the third
head, conviction and imprisonment for three years or more were
necessary to constitute a ground; and by the sixth cause it was
required that one of the parties should be "repeatedly guilty of
such unhuman treatment as shall endanger the life of the other."
The remaining five causes first appeared in 1882.

The legislation of Utah begins in 1852 with an act so faulty that its consequences have become notorious in the divorce annals of the United States. A vicious residence clause, coupled with a loose requirement regarding notice and an "omnibus" provision among the enumerated grounds of complaint, became in effect a standing temptation to clandestine divorce seekers from outside the territory. It is formally declared that the court of probate of the county of the plaintiff shall have jurisdiction in all petitions, and these are to be made in writing upon oath or affirmation setting forth the grounds of action. "If the court is satisfied," continues the statute, "that the person so applying is a resident of the Territory, or wishes to become one; and that the application is made in sincerity and of" the plaintiff's "own free will and choice, and for the purpose set forth in the petition; then the court may decree a divorce from the bonds of matrimony" against the defendant "for any of the following causes, to wit": (1) impotence at the time of the marriage; (2) adultery; (3) wilful desertion or absence without reasonable cause for more than one year; (4) habitual drunkenness subsequent to the marriage; (5) inhuman treatment endangering life; (6) "when it shall be made to appear to the satisfaction and conviction of the court, that the parties cannot live in peace and union together, and that their welfare requires a separation." Nevertheless, the courts are encouraged to adopt a cautious and conservative policy. They are allowed to defer "their decree of divorce, when the same is applied for, to any specified time, not exceeding one year, when it appears" that a compromise may be made; and "during the time of such deference ... , the bonds and engagements of matrimony may not be violated by the parties." Furthermore, the court is empowered to punish by fine or imprisonment or both any person "who shall stir up unwarrantable litigation between husband and wife, or seek to bring about a separation between them."

This statute was doubtless made in good faith. For, although it remained in force without change for a quarter of a century, it does not appear that the Latter Day Saints showed any strong tendency to take advantage of its glaring defects. But it is not surprising that evil should come of it. The petitioner in a divorce suit need not be a "_bona fide_ resident of the territory. The formal expression of an intention to become a resident was all that was required. The plea of a citizen of any part of the United States that he intended to become a citizen of Utah was entertained equally with that of a regularly domiciled resident."[471] Besides, under the "blanket" provision anything might be alleged in the petition as a ground for action. The natural result was that certain sharp lawyers in eastern cities seized the opportunity to promote clandestine divorce on a large scale. Through their skilful plans and the connivance of local judges, the courts of several counties were converted into veritable "divorce bureaus," so that between 1875 and 1877 there was a surprising increase in the annual crop of divorce decrees. Accordingly, in 1878 the assembly passed a statute which effectually put an end to this anomalous state of affairs. One year's _bona fide_ residence was now required; a decree was forbidden in case of default of the defendant except on legal testimony; better provisions for notice were made; and the "omnibus" clause was abandoned. By this act, separation from bed and board is not provided for; but an absolute divorce, in favor of the aggrieved, may be granted for (1) impotence at the time of marriage; (2) adultery; (3) wilful desertion for more than one year; (4) wilful neglect of the husband to provide for the wife the common necessaries of life; (5) habitual drunkenness; (6) conviction of felony; (7) cruel treatment, to the extent of causing great bodily injury or great mental distress.[472] To these grounds in 1903 was added (8) permanent insanity, when the defendant has been duly declared insane five years before.[473] Furthermore, by an act of 1896 separate maintenance without a decree of divorce is allowed the wife for desertion by the husband or when, without her fault, she is living separate from him.[474]

[471] WRIGHT, _Report_, 203-6, 156.

[472] Act of Feb. 2: _Laws_ (1878), 1, 2; also _Rev. Stat. of
Utah_ (1898), 333, 334.

[473] _Laws of Utah_ (1903), 39, 40.

[474] _Laws_ (1896), 111.

By an act of 1853 the legislature of Oregon Territory allows divorce petitions presented under oath to be determined by the district court of the county in which the cause occurs, or in which the defendant resides or is found, or in which the plaintiff resides, if in this last case it be either the county in which the parties last cohabited or that in which the plaintiff has resided for six months next preceding the action. Absolute divorce in favor of the aggrieved is permitted on ten grounds. These are (1) impotence continuing since marriage; (2) adultery committed since marriage and remaining unforgiven; (3) bigamous contract; (4) compulsion or gross fraud in procuring the marriage, if a rescission be sought in a reasonable time after removal of the restraint or discovery of the fraud; (5) wilful desertion for two years without reasonable cause; (6) conviction of felony or infamous crime; (7) habitual gross drunkenness contracted since marriage; (8) harsh and cruel treatment; (9) personal indignities rendering life burdensome; (10) six months' voluntary neglect of the husband to provide the wife with a home and the common necessaries of life.[475] This statute was, however, of short duration. In 1854 the third and fourth causes were dropped; bigamous contracts and those entered into through compulsion or fraud being now properly treated as grounds for annulment of void or voidable marriages. The remaining eight causes recognized in 1853 were retained, except that the term of wilful desertion was reduced to one year; and a period of one year was likewise fixed in case of voluntary neglect to provide.[476] Eight years later neglect to provide ceased to be a legal ground of complaint. At the same time it was enacted that "habitual gross drunkenness" to constitute a cause must exist for two years immediately before the commencement of the suit; and the period of wilful desertion was extended to three years.[477]

[475] Act of Feb. 1, 1853: _Gen. Laws of Ore._ (1852-53), 49-51.

[476] Act of Jan. 17, 1854: _Stat. of Ore._ (1853-54), 494-97.
_Cf._ also the same, _ibid._ (1854-55), 536-41.

[477] Act of Oct. 11, 1862: _Laws_, secs. 485 ff.; and the
same in DEADY AND LANE, _Organic and Other Gen. Laws of Ore.,
1843-1872_ (1874), 208-12.

The law governing the grounds of action, as it still exists in Oregon, took its present form in 1887; and, with the exception of the one clause omitted in 1862, it is practically the same as it was established in 1854. Separation from bed and board is not recognized. The circuit courts, sitting at least twice a year in each county, have jurisdiction. A full divorce may be obtained on petition of the aggrieved for (1) impotence; (2) adultery; (3) conviction of felony; (4) habitual gross drunkenness contracted since marriage and continuing for one year prior to the commencement of the suit; (5) wilful desertion for the period of one year; (6) cruel and inhuman treatment or personal indignities rendering life burdensome.[478]

[478] Act of Feb. 27: _Laws_ (1887), 52, 53; same in _Codes and
Stat. of Ore._ (1902), I, 275. On cruelty as a cause see Morris
_v._ Morris, 73 _Am. Dec._, 619-31.

The divorce laws of Washington have been remarkably free from violent changes. The current of legislation has run smoothly along. Separation from bed and board has never been provided for; but eight causes of absolute divorce were recognized by the first territorial act on the subject in 1854. These are (1) force or fraud in procuring the marriage, provided there be no subsequent voluntary cohabitation; (2) adultery unforgiven, if application be made within one year after knowledge of the offense; (3) impotence; (4) abandonment for one year; (5) cruel treatment; (6) habitual drunkenness; (7) neglect or refusal of the husband to make suitable provision for his family; (8) imprisonment in the penitentiary, if complaint be filed during the term of such confinement.[479] In 1860 was added a new ground in the form of an "omnibus" provision. A divorce was then permitted on application of either spouse (9) "for any other cause deemed by the court sufficient, or when the court shall be satisfied that the parties can no longer live together."[480] Thus the law remained without change for twenty-five years; but in 1885 it was provided (10) that in "case of incurable, chronic mania or dementia of either party, having existed for ten years or more, the court may in its discretion grant a divorce."[481] Finally in 1891 the list of grounds for full dissolution of wedlock sanctioned by the present code of Washington was completed. A full divorce is now allowed, in modification of the fifth cause above enumerated, (11) for "personal indignities rendering life burdensome."[482] Originally the district courts were vested with jurisdiction, but since 1889 the superior courts in the separate counties have had authority in all cases of divorce, alimony, and annulment.[483]

[479] _Stat. for the Ter. of Wash._ (1854), 405-7.

[480] Act of Jan. 23: _Acts_ (1860), 318-20.

[481] Act of Dec. 22, 1885: _Laws_ (1885-86), 120.

[482] Act of Feb. 24: _Laws_ (1891), 42; also in _Ann. Codes and
Stat. of Wash._ (1897), II, 1595-1600.

[483] _Const. of 1889_, Art. IV, secs. 5, 6.

In 1851, at the second session of the state legislature, California granted the district courts "within their respective districts" jurisdiction in divorce questions. Nine causes of "divorces from bed and board, or from the bonds of matrimony," were then recognized. But in 1874 three of these--natural impotence, force or fraud, and the marriage of a female under the age of fourteen years without consent of parent or guardian or without ratification by her after reaching that age--were dropped, and thereafter they were rightly treated as grounds for annulment of voidable contracts. The remaining six causes were then re-enacted, with some changes in the prescribed conditions, but only as grounds of absolute divorce. The statute of 1874 is still in force, full dissolution of wedlock, but not separation from bed and board, being sanctioned for (1) adultery; (2) extreme cruelty; (3) wilful desertion; (4) wilful neglect; (5) habitual intemperance; (6) conviction of felony.

After this formal enumeration of the grounds of petition, the first code of California carefully defines the terms employed and prescribes the conditions under which the law shall take effect. Thus "wilful desertion, wilful neglect, or habitual intemperance must continue for one year before either is a ground for divorce." By the original act of 1851, it may be noted, a period of three years was prescribed for both wilful desertion and wilful neglect to provide. In 1853, however, the term of wilful desertion was reduced to two years; and the same time was fixed for wilful neglect in 1870. A period during which habitual intemperance must exist to constitute a cause of divorce was not mentioned until the statute of 1874, by which, in this case as well as in the two others above named, the one-year term was required. By the existing code extreme cruelty is defined as the "infliction of grievous bodily injury or grievous mental suffering."[484] "Wilful desertion is the voluntary separation of one of the married parties from the other with the intent to desert." But when one person is induced by the stratagem or fraud of the other "to leave the family dwelling-place, or to be absent, and during such absence the offending party departs with intent to desert the other, it is desertion by the party committing the stratagem or fraud, and not by the other." In like manner "departure or absence of one party from the dwelling-place, caused by cruelty or by threats of bodily harm from which danger would be reasonably apprehended from the other, is not desertion by the absent party but it is desertion by the other." Separation by consent, with or without the understanding that one of the married persons will apply for a divorce, is not desertion. Moreover, "absence or separation, proper in itself, becomes desertion whenever the intent to desert is fixed during such absence or separation."[485] Wilful neglect is defined as the neglect of the husband to provide for his wife the common necessaries of life, he having the ability to do so; or his failure to provide as the result of "idleness, profligacy, or dissipation."[486] Finally, habitual intemperance is described as "that degree of intemperance from the use of intoxicating drinks which disqualifies the person a great portion of the time from properly attending to business, or which would reasonably inflict a cause of great mental anguish" upon the innocent person.[487] In like spirit the reasons for denying a decree are minutely specified by the law. Original jurisdiction in all questions of divorce and annulment of marriage is now vested in the superior courts in their respective counties or other districts.[488]

[484] On cruelty see Powelson _v._ Powelson, 22 _Cal._, 358;
Morris _v._ Morris, 14 _Cal._, 76; Kelly _v._ Kelly, 1 _West
Coast Rep._, 143; Eidenmuller _v._ Eidenmuller, 37 _Cal._, 394;
Johnson _v._ Johnson, 14 _Cal._, 459; Pierce _v._ Pierce, 15 _Am.
Dec._, 210, note. In general Poore _v._ Poore, 29 _Am. Dec._, 664.

[485] Sec. 96 of the "Civil Code" also declares that "persistent
refusal to have reasonable matrimonial intercourse as husband
and wife, when health or physical condition does not make such
refusal reasonably necessary, or the refusal of either party to
dwell in the same house with the other party, when there is no
just cause for such refusal, is desertion."--DEERING, _Codes and
Stat._ (1886), II, 34; POMEROY, _Civil Code_ (1901), 48.

On desertion see especially Hardenberg _v._ Hardenberg, 14
_Cal._, 654; Benkert _v._ Benkert, 32 _Cal._, 467; Morrison _v._
Morrison, 20 _Cal._, 431; Christie _v._ Christie, 53 _Cal._, 26;
also Stein _v._ Stein, 5 _Col._, 55; Pilgrim _v._ Pilgrim, 57
_Iowa_, 370.

[486] For interpretation of the law regarding neglect to provide
see Devoe _v._ Devoe, 51 _Cal._, 543; Washburn _v._ Washburn, 9
_Cal._, 475; Rycraft _v._ Rycraft, 42 _Cal._, 444.

[487] On habitual intemperance consult Mahone _v._ Mahone, 19
_Cal._, 626, 629; Haskell _v._ Haskell, 54 _Cal._, 262.

[488] DEERING, _Codes and Stat. of Cal._ (1886), III, 31. The
development of the law of California regarding divorce, as given
in the text, may be traced in _Stat._ (1851), 186, 187; _ibid._
(1853), 70; _Comp. Laws_ (1853), 371, 372; act of March 12,
1870: in _Stat._ (1869-70), 291; act of March 30, 1874: in _Acts
Amendatory of the Codes_, 181-91; POMEROY, _Civil Code_ (1901),
40-62.

The California codes and decisions, as is well understood, have been freely adopted or followed by a number of western states. This is especially true regarding divorce legislation. The causes and conditions of action recognized by California law have often been accepted outright.[489] Such, for example, is the case in Montana. By the code of 1895 the same six causes sanctioned by the law of California since 1874 are recognized; while the prescribed definitions, already in part summarized from that law, are almost exactly reproduced. The grounds for dissolution of wedlock are identical, except in their phraseology, with those authorized by the original Montana act of 1865, save that in addition impotence and bigamous contract were then enumerated among the legal causes of divorce. There is no separation from bed and board in Montana; but the wife may be allowed separate maintenance, although a decree of divorce is denied. Since 1865 the respective district courts, on the chancery side, have had jurisdiction in absolute divorce and in all questions of alimony and annulment of voidable contracts.[490]

[489] For some account of the influence of the California Codes
see HEPBURN, _Hist. Dev. of Code Pleading in America and Eng._
(Cincinnati, 1897), especially 93 ff., 104 ff., 160.

[490] Compare the act of Feb. 7, 1865: in _Acts_ (1864-65), 430,
431; and _Comp. Codes and Stat. of Mont._ (1895), 478-80.

What has just been said of Montana may be repeated for Idaho, where the California system was adopted in 1887.[491] By an act of 1895, however, incurable insanity was admitted as a seventh cause of full divorce.[492] In this case, as in all the others since 1864, the district court in the county of the plaintiff has jurisdiction. Earlier the laws relating to the causes were somewhat less closely patterned upon the California statutes. The act of 1864 allows a full divorce for (1) impotence at the time of the marriage; (2) adultery committed since marriage and remaining unforgiven; (3) wilful desertion for two years; (4) conviction of felony or infamous crime; (5) habitual gross drunkenness, contracted since marriage, incapacitating the offender from contributing his or her share to the support of the family; (6) extreme cruelty; (7) neglect of the husband for two years to provide the common necessaries of life, unless such neglect is the result of poverty which could not be avoided by ordinary industry.[493] Three years later the California law, as it then stood, allowing nine causes of full divorce, was adopted, except that the terms of habitual intemperance and wilful neglect were each fixed at two years, and a period of one year was made sufficient for wilful desertion. It should also be noted that this Idaho statute, unlike the contemporary law of California, made no provision for partial divorce.[494] It was superseded in 1875 by a new act[495] which is identical in its provision regarding the grounds of action with that of 1867; and no further change was made until the present California plan was sanctioned in 1887.

[491] _Rev. Stat. of Idaho_ (1887), 303-7.

[492] But a divorce is not allowed, under this provision, unless
the insane person shall have been regularly and duly confined in
an insane asylum of the state for at least six years immediately
before the action: act of Feb. 4: _Gen. Laws_ (1895), 11, 12.
By an act of Feb. 14: _Gen. Laws_ (1899), 232, 233, were added
the words, "nor unless it shall appear to the court that such
insanity is permanent and incurable;" and now it is sufficient
if the previous confinement has been in an asylum "of a sister
state," provided the plaintiff has been an actual resident for
one year: _ibid._, (1903), 332, 333.

[493] Act of Jan. 16, 1864: in _Laws of the Ter. of Idaho_
(1863-64), 615-18.

[494] Act of Jan. 9: _Laws_ (1867), 69-71.

[495] Act of Jan. 13, 1875: _Comp. and Rev. Laws of Idaho_
(1875), 639-41.

The experience of the Dakotas has been very similar to that of Idaho and Montana, so far as the final results are concerned; but the early territorial legislation was often clumsy in form, vicious in character, and subject to frequent and violent changes. The original act of 1864 grants the several district courts jurisdiction in petitions for absolute dissolution of marriage on suit brought in the county where the persons or one of them resides, for (1) adultery; (2) impotence; (3) imprisonment in a penitentiary subsequently to the marriage, no pardon effecting a restoration of conjugal rights; (4) cruel and inhuman treatment, "whether practised by using personal violence, or by any other means"; (5) habitual drunkenness for one year next before filing the complaint; (6) "when it shall be made fully to appear that from any other reason or cause existing, the parties cannot live in peace and happiness together, and that their welfare requires a separation."[496] Separation from bed and board is not contemplated by the law of 1864; but in 1866 a new statute appears by which both kinds of divorce are provided for. A full divorce is permitted only on the scriptural ground; but a partial divorce "for life or for a limited time" may be decreed in favor of the aggrieved for (1) cruel treatment; (2) conduct rendering cohabitation unsafe or improper; (3) abandonment, accompanied by refusal to fulfil the matrimonial obligations sanctioned by the statute. If in any case a decree of separation be denied, the court may provide for the separate maintenance of the wife and children by the husband or out of his property.[497] The very next year this act was replaced by another which allows the aggrieved spouse absolute divorce for (1) bigamous contract; (2) wilful absence for five years; (3) adultery; (4) impotency; (5) pregnancy of the wife at the time of the marriage by a man other than the husband without the latter's knowledge; (6) extreme cruelty; (7) habitual drunkenness; (8) imprisonment in a penitentiary anywhere in the United States for violation of the criminal laws;[498] (9) whenever it shall be made to appear that the husband or wife of the applicant "has obtained a decree of divorce in any of the courts of any other territory or state, by virtue of which the party who shall have obtained such decree shall have been released from the obligation of the marriage contract, while the same remains binding upon the other party." Limited divorce is not mentioned by this statute; but, in place of it, a wife may obtain separate alimony for (1) the husband's adultery; (2) his gross neglect of duty; (3) abandonment by him without good cause; (4) where there is a separation in consequence of his ill-treatment; (5) his habitual drunkenness; or (6) his confinement in any prison in the country, or for any crime warranting such punishment in the territory.[499]

[496] Act of Jan. 15: in _Gen. and Private Laws_ (1864), 19-26.

[497] Act of Jan. 12, 1866: _Laws, Memorials, and Resolutions_
(1865-66), 13-16.

[498] If for a crime of the same grade as warrants such
imprisonment in the territory, and if application be made during
the term of confinement.

[499] Act of Jan. 10, 1867; in _Gen. Laws_ (1866-67), 45-52.

Only four years elapsed before the restless lawmaker was again at work. By an act of 1871 a divorce from bed and board or from the bonds of matrimony may be granted (1) for impotence at the time of marriage; (2) "when the female at the time of the alleged marriage was under the age of fourteen years, and the alleged marriage was without the consent of her parents, or guardians, or other persons having the legal custody or charge of her person; and when such marriage was not voluntarily ratified on her part" after the attainment of that age; (3) for adultery; (4) for extreme cruelty by the infliction of grievous bodily or mental suffering; (5) for habitual intemperance; (6) for two years' wilful desertion; (7) for having the ability to provide and failure so to do on account of idleness, profligacy, or dissipation; (8) "when from threatening words or acts, the weaker party feels in danger of bodily injury;" (9) when the consent was obtained by "force, fraud, intimidation, deception, or influence of stronger minds;" (10) for conviction of felony after marriage.[500] Here matters rested until 1877, when the California system, including the six causes and the careful definitions of the code, was adopted.[501] This plan without change is retained in the existing laws of South Dakota;[502] as also in those of North Dakota, except that between 1899 and 1901, following the lead of Idaho, incurable insanity for two years was admitted as a seventh ground of absolute divorce.[503] In neither of these states is partial divorce recognized. The district courts in North Dakota still have original jurisdiction; while in South Dakota authority is vested in the circuit courts within the respective circuits or their subdivisions.[504]

[500] Act of Jan. 13, 1871: in _Gen. Laws_ (1870-71), 414. In the
same volume, curiously enough, the civil code of Jan. 12, 1866,
including the divorce law of that year, as given in the text, is
re-enacted; and so the act of Jan. 10, 1867, is entirely ignored.
But the early legislation of Dakota is exceptionally bungling and
confusing.

[501] _Rev. Codes of the Ter. of Dak._ (1877), 215, 216; also
in LEVISSEE, _Ann. Codes_ (1883), II, 747-52. By the code of
1877 the term of wilful desertion, wilful neglect, and habitual
intemperance was fixed at two years; but the one-year period was
substituted in 1881: Act of March 1, _Laws_ (1881), 66.

[502] _Stat. of S. D._ (1899), II, 1025-30; _Rev. Codes_ (1903),
598-603.

[503] Act of March 6: _Acts_ (1899), 95; but insanity as a
ground is omitted in _Laws_ (1901), 81, 82. There is no partial
divorce in North Dakota; but, though a decree be denied, the
court may provide for the maintenance of the wife and children
by the husband: _Rev. Codes_ (1895), 614. _Cf._ McFarland _v._
McFarland, 2 _N. W. Rep._, 269; Ross _v._ Ross, 10 _N. W. Rep._,
193.

[504] _Rev. Codes of N. D._ (1895), 611-15, 929; _Stat. of S. D._
(1899), II, 1489; I, 267.

Nevada has likewise closely followed the example of California. Separation from bed and board has at no time been provided for. Bigamous marriages and those within the forbidden degrees of consanguinity are void without decree or other legal proceedings.[505] But since 1875, with one exception, the grounds of absolute divorce have been practically the same as those prescribed by the California code, although they are differently expressed, and there are not the same minute provisions regarding the application of the law and the conditions of action. On complaint of the aggrieved the courts are now authorized to dissolve the bonds of wedlock for (1) impotence at the time of the marriage continuing to the time of divorce; (2) adultery since marriage, remaining unforgiven; (3) wilful desertion for one year; (4) conviction of felony or infamous crime; (5) habitual gross drunkenness, contracted since marriage and incapacitating the offender from contributing his or her share toward the support of the family; (6) extreme cruelty; (7) neglect of the husband for the period of one year to provide the common necessaries of life, unless such neglect is the result of poverty which could not have been avoided by ordinary industry. Thus the laws of Nevada regarding the causes of divorce have been remarkably free from change; for the statute of 1875 in this regard is identical with the original act of 1861, except that by the latter the terms of wilful desertion and wilful neglect to provide are each fixed at two years.[506]

[505] Since 1861 these marriages have thus been void without
judicial proceedings; while those below the age of consent, or
when there was want of understanding, or when obtained by fraud
with no subsequent voluntary cohabitation, are void from the
time a decree of nullity is pronounced. But a marriage shall in
no case be adjudged a nullity, on the ground of being under age
of consent, if the parties cohabited freely after reaching that
age; nor the marriage of an insane person, if there be similar
cohabitation after restoration to reason: act of March 28: _Laws_
(1861), 96, 97; same in _Comp. Laws_ (1900), 115.

[506] _Cf._ the act of Nov. 28: _Laws_ (1861), 96-99; that of
Feb. 15: _Laws_ (1875), 63; and _Comp. Laws_ (1900), 115-18.
Partial divorce is not recognized; but the common law, as
administered by the ecclesiastical courts, is a part of the law
of Nevada, so far as not superseded by statute: Wuest _v._ Wuest,
17 _Nev._, 216. For the interpretation of extreme cruelty see
Reed _v._ Reed, 4 _Nev._, 395; Gardner _v._ Gardner, 23 _Nev._,
207; Kelley _v._ Kelley, 18 _Nev._, 48.

For Alaska the act of Congress does not authorize partial divorce; but marriage may be dissolved for (1) impotency; (2) adultery; (3) conviction of felony; (4) two years' wilful desertion; (5) "cruel and inhuman treatment, calculated to impair health or endanger life;" or (6) habitual gross drunkenness contracted since marriage and continuing one year before the suit.[507]

[507] _U. S. Stat. at Large_, XXXI, 408-10; _Laws of Alaska_
(1900), 243-46.