I '5^ m /< (i^onirll liaui ^rl;nnl Sibrary Digitized by Microsoft® A 'F'OPULAR TREATISE ON THK LAW OP Mai>riage and Divorce. M:. S. ROBINSON, Of the Chicago Bar. * ■ ■ Giving the Laws of the tabious States of the Unitbd ; States, England and the Continent, CONDENSED HISTORY OF THE ROMAN, CANON AND ECCLESIASTICAL LAW, The causes for which Bivorces will be (jranted in the. States ;'.Tlme of resi- denee requisite; What are and what are not legal Marriages and valid Divorces; Wliat Courts have and what have not jmisdiction to grant, etc.; The varitm causes for Divorce; The mode and manner of proof ; The defenses thereto; How avaHr- aiile; The rights, diiUes and ohltgattons of parties thereto, TIgetljer will) tlje effect upon Persons, Rigljt of Properly, etc- Piaoe in Cloth, $1.50. Paper, $1.00. • FOR SALE ONLY BY THE AUTHOR, SENT ON RECEIPT OF PRICE, POSTPAID, Address all communications to M. S. ROBINSON, Lawyer, CMcago, III. CHICAGO: 1884. Digitized by Micro seft®- This book was digitized by Microsoft Corporation in cooperation with Corneii University Libraries, 2007. You may use and print this copy in iimited quantity for your personai purposes, but may not distribute or provide access to it (or modified or partiai versions of it) for revenue-generating or other commerciai purposes. Digitized by Microsoft® A POPULAR TEEATISE ON THE LAW OF MARRIAGE AKD DIYORCE. M. S. E^BII^SOE", Of the Chicago Bar. GrvTNG THE Laws of the vabious States of the United States, England and the Continent, CONDENSED HISTORY OF THE ROMAN, CANON AND ECCLESIASTICAL LAW. The causes far which Divorces will be granted in the States ; Time of resi- dence requisite; What a/re avid what are not legal Marriages and valid Divorces; What Courts have and what have not iurisdiction to grant, etc.; The varitms causes for Divorce; The mode and manner of proof; The defenses thereto; How avail- dbU; The rights, duties and obligations of parties thereto, Togetljer witlj tlje effect upon Persons, Rigl]t of Property, etc, FOR SALE ONLY BY THE AUTHOR. CHICAGO: 1884. Digitized by Microsoft® copTBiGirr. BY M. S. BOBIKSON. 1884. PRINTED AND BOUND BY DONOHtTE & HENNEBEBRY, CHICAGO. Digitized by Microsoft® OOl^TElsTTS. Preface 5 Chaptes I. Marriage: General View of; What Form of Solemnization, if any, Required, etc 9 Chapter II. Divorce 31 A(&APTBB- "III. Roman Law ? '. 33 Chaptbe IV. Engligh Law 38 Chaptbe V. The Law of Scotland 33 Chapter VI. Prussia, Holland, France 35 Chapter VII. The United States 37 Chapter VIII. Domicile 43 Chapter IX. Causes for Divorce in the Different States: Alabama, Arkansas 46 California, Colorado, Connecticut 47 Delaware, Florida, Georgia 48 Illinois, Indiana, Iowa 49 Kansas, Kentucky 50 Louisiana, Maine, Maryland 51 3 Digitized by Microsoft® 4 CONTENTS. Massachusetts, Michigan, Minnesota, Mls-oisslppi !>- Missouri, Nebraska, Nevada So New Hampshire, New Jersey, New York 54 North Carolina, Ohio, Oregon, Pennsylvania R-'i Rhode Island, South Cai'olina, Tennessee '"iii Texas, Vermont, Virginia oT West Virginia, AVisconsin , 58 Chapter X. Causes for which Marriage mny be Boolared Void or Void- able, or deemed as though thoy had Kevev Existed; Impotence 59 Chapter XI. Specific Causes for Divorce occurring After Marriage: Adultery 64 Cruelty 66 Desei'Uon 68 Habitual Drunkenness 7(> Other Specific Causes for Divorce 71 Chapter XII. Defenses to Suits for Divorce: Connivance 7- Collusion 7;? Condonation 74 Recrimination 76 Consequences of Divorce 78 Chapter XIII. Property Rights 83 Chapter XTV. EfEect and Stability of the Sentence as between the Parties. 85 Digitized by Microsoft® PREFACE. During an enforced idleness of some weeks' duration, in the summer of the present year, the following pages were penned, the main object being mental occupation, with a possible thought, perhaps, of future pubhcation, with resulting finan- cial profits should the work prove acceptable ; and, remotely, a desire to benefit his fellow-man by disseminating a better knowledge of the law governing the contract and status of marriage, its privileges, rights and duties, both in relation to the immediate parties thereto and their obli- gations to the society in which they live. There are few subjects so httle understood by the average citizen as that of the law governing marriage and divorce. This ignorance is, to some extent, shared by a large percentage of the legal profession, as a large number of letters in the possession of the writer from attorneys at law throughout the country will show. It is no unusual thing for lawyers practicing in large commercial centers, to receive letters from lawyers in country Digitized by Microsoft® PREFACE. towns or cities, making inquiries as to the divorce laws of their locahty, "stating that they have chents who wish to obtain divorces in. some foreign jurisdiction, in order to avoid scandal at home " ; or to take advantage of some fancied liberality in the laws of other localities. Kow the law is, and has been for the last century — and has been so laid down by law-writers and the courts — ^that no court has any right, authority or jurisdiction to decree a divorce for any person not an actual bona fide resident of the locality of the court. And as well might the Czar of Eussia attempt to regulate the domestic affairs of a resident of America, as for the courts of one state to decree a divorce for a resident of another state. And if lawyers are sometimes in error upon this point, it is no wonder that most lay citizens labor imder a like delusion. In all large cities there are a class of SHTSTEES, masquerading under the garb of an honored profession, who insert in leading newspapers advertisements hke this : "-A. Blank, attorney at law, 21i, Shyster Sow. Divorces legally and quietly obtained. Twenty yea/rs' experience. Advice free. Charges reason- ahleP Digitized by Microsoft® PEEFAOE. 7 It is hardly necessary to say that all these par- ties are frauds; that not one decree in twenty obtained through them affords any protection at all to its possessor. Yet, it is a well-known fact that they are extensively patronized, and reap golden harvests from uninformed, hut hwrdVy honest clients. To those who have patronized these divorce sharks, and to those who may be tempted so to do, this little book is dedicated. A careful peru- sal of its contents may enable them to protect themselves against fraud, and possibly save some of them from the penitentiary. There is but one road over which one must travel to undo a marriage, and this is through the channels of the local courts, where one, at least, of the parties permanently resides and has his or her domicile. A divorce obtained otherwise, though red-taped, red-lined, and bearing a golden seal, is but as waste paper, and no protection whatever at any time or place. The writer lays no claim to originality in any- thing herein contained, except as to the manner in which the whole is bound together — ^the grain belongs to others, the binding is his. He has Digitized by Microsoft® PEEFACE. copied largely from Bishop's admirable works on marriage and divorce, as "well as from other stand- ard writers on law, also from historical works, cyclopaedias, etc., using their language verbatim sometimes; at other times changing it to suit his ideas, not always giving due credit by a reference to his authorities. The aim has been to avoid aU technical language, that aU who can read may fully understand the law of their coun- try upon a subject aU-engrossing to every citizen of whatever standing, sex or social position. For marriage is the fountain-head from which must flow the future population, and through it mold for weal or woe the moral nature of the people of the future — so pregnant with great possibili- ties — looking to the final triumph of mankind over all animate and inanimate nature, and th» ultimate final glory of the human race. The Authoe. Chicago, III., October 1, 1884. Digitized by Microsoft® CHAPTEE I. MAEEIAGE, GENERAL VIEW OF : WHAT FOEM OF SOLEMNIZATIOfr, IF ANY, EEQUIEED, ETC. "There is nothing connected with the social welfare of the world," says Mr. Bishop, "con- cerning which a greater harmony prevails, in the opinions of mankind, than the great and underly- ing truths which pertain to the law of marriage, considered as a civil institution. Everywhere the doctrine is received, that men and women should not follow their mere animal instincts in their social relations to one another, but that they should ' pair oflf ,' to use an expression applied to the birds of the air. " The institution of marriage, commencing with the race and attending man in aU periods and in all countries of his existence, has ever been con- sidered the particular glory of the social system. It has shone forth in dark countries, and in dark periods of the world, a bright luminary on his horizon. And but for this institution, all that is valuable, virtuous, and desirable in human exist- Digitized by Microsoft® 10 MABEIAGE AUD DIVOECE. ence, would long since have faded away in the general retrograde of the race, and in the peril- ous darkness in which its joys and hopes would have been wrecked together. "And as man has gone up in the path of his improvement, and a purer hght has surrounded him, stiU has this institution of marriage, receiv- ing accessions of glory with every step of the race toward its ultimate glory, remaiaed the first among the institutions of human society. "The word marriage is used in two different senses, the one denoting the act of entering into the marriage relation, the other the relation it- self. Marriage is defined to be the civil status of one man and one woman united in law for life, under the obligations to discharge to each other and the community, those duties which the community, by its laws, holds incumbent on per- sons, whose association is founded on the distinc- tion of sex. Its source is the law of nature, whence it has flowed into the municipal laws of every civilized country, and into the general law of nations ; and since it can exist only in pairs, and since none are compelled, but all who are capable are permitted, to assume it, marriage may Digitized by Microsoft® MAEEIAGB. 11 be said to proceed from a civil contract between one man and one woman, of the needful physical and civil capacity. WhQe the contract is merely an executive agreement to marry, it differs not essentially from other executory civil contracts. It does not superinduce the status ; and, on its vio- lation, an action may be maintained by the party injured to recover damages of the other. But when the contract is executed in what the law regards a valid marriage, its nature as a contract is merged in the higher nature of the status, and through the new relation (that is, the status), retains some similitudes reminding us of its ori- gin ; the contract does in truth no longer exist, but the parties are governed by the law of hus- band and wife." — Bishop on M. and D., Vol. I, Chap. 1. In the various states of the United States, then, what is necessary to constitute a complete and valid marriage ? or, rather, are the ceremonies and forms, or any of them, which are indicated by law, or are customarily used for the solemnization of marriage, indispensable to a valid marriage, or is the mere consent of the parties sufficient ? This question has received great attention, both in Digitized by Microsoft® 12 MAEEIAGE AJSD DIVOECE. England and the United States, and has been passed upon by the English courts in the case of The Queen vs. Millis, decided in the house of lords in 1844. The facts of this case were hte this: The defendant, Millis, a member of the Established Church of England, was married in Ireland to a woman not a member of said church, by a Presbyterian minister, according to the form usual with Presbyterian dissenters, and under this marriage the parties cohabited for two years as husband and wife. Afterward, while this woman was stiU living, MUis married, in Eng- land, another woman, in a form about which no dispute arose. He was indicted in Ireland for polygamy. The first marriage contained aU the essentials of a valid marriage in England, except that it was not solemnized according to the form prescribed by the Established Church of England. "Was it a marriage upon which an indictment for polygamy could be sustained? Upon this question the judges in Ireland were equally divided, but in order that the case might be taken to the house of lords, gave a decision against the defendant. Upon appeal to the house of lords, the ques- Digitized by Microsoft® MAKEIAGE. 13 tion of the validity of the marriage by mere con- sent, was fully argued by the ablest counsel in England, and the six law peers gave their opinions severally, each at great length, but they were equally divided : this equal division affirmed the judgment of the court below, and Millis was sen- tenced. Almost at the same time the same ques- tion came before the Supreme Court of the United States, and Chief Justice Taney in deciding the case (upon other grounds) said, upon this point, " The court is equally divided, and no opinion can be given." Jewell vs. Jewell, 1st Howa/rd U. 8. S19. Chancellor "Walworth in the case of Hose vs. Clark, 8 Podge 57 If,, considers the ancient common law doctrine to have been, that the marriage was invalid unless celebrated in facie eoolesiw. But that the law upon this subject was undoubtedly changed at the Eeformation, if not before. For, he says, " it is now the settled rule of the common law, that any mutual agreement between the par- ties, to be husband and wife, inpreswnti, when it is followed by cohabitation, constitutes a valid and binding marriage, if there is no legal disabil- ity on the part of either to contract matrimony." Digitized by Microsoft® 14 MAERIAGE AND DIVORCE. And the steady tendency of American decisions is in this direction, and it is believed that such is the law in the United States to-day. Bishop, after Tioticing and approving the doc- trine laid down by Chancellor "Walworth, supra^ says, " "Whether the American courts will be influ- enced by the opinions expressed adversely to this kind of marriage in the Queen vs. MiUis, and so the shadow go back on the dial-plate of our jurisprudence, must be left for future judicial de- termination." That the shadow has not gone back on the dial- plate of our jurisprudence, can be readily seen by a glance at the more modern decision of our courts of last resort. At common law, then, it may be safely assumed that no form of solemnization of marriage is nec- essary ; that when two persons of opposite sex, being physically and legally competent to assume marriage, dehberately contract and agree to be man and wife, and follow up such agreement by cohabitation as husband and wife, then and in that case, without doubt, such parties are legally and firmly married. Then the question arises, Does the statutory law Digitized by Microsoft® MAKRIAGE. 15 of the various states, prescribing certain forms in which marriage shall be solemnized, make it nec- essary to follow these forms in order to assume the marriage relationship ? In other words, are all marriages solemnized contrary to the prescribed forms of the statutory law of the place of mar- riage void ? Bishop says, Sec. '283, Vol. I., in treating of this subject, "We are next to seek for the rules of interpretation to determine, whether or not, in a given case, a statute has altered the common law upon the subject. The principle is by no means universal, that, when a statute directs a thing to be done in a particular way, it is void done in any other way. Sometimes, indeed, it is, — ^not always. The distinc- tion relates to what are termed mandatory and directory statutes. If a statute is mandatory, a thing done not according to its direction is void ; if directory, it is not void. Yet it is not easy, probably not possible, to lay down in advance a rule by which it can certainly be determined what statutes are directory, and what are manda- tory. The nature of the subject has something to do with the question. If we remember, there- Digitized by Microsoft® 16 MAEEIAGE AUD DIVOECE. fore, that marriage existed before the statutes, that it has ever been regarded as a thing to be favored in the law, and also that it is of natural right, we shall see very plainly that, whatever directions a statute may give concerning its solemnization, it should be held good, though not solemnized according to the directions; conse- quently the doctrine has become established that a marriage good at common law, is good notwith- standing the existence of any statute on the subject, unless the statute contams express words of nuUity. This rule applies not only to a statute as a whole, but to the several parts of it ; so that, if it declares the marriage void for non-comphance with a particular provision, it is good notwith- standing a failure to comply with any other provis- ions. This rule, hke most other legal rules now well settled, has struggled against some doubts and uncertainties, but it seems never ... to have been successfully discarded in actual adjudi- cation." There is no doubt but that the doctrine above contended for, and as the writer fully beheves is now well established in America by well-digested Digitized by Microsoft® MAKEIAGE. 17 decisions of the courts of final resort in the vari- ous states. It has been questioned, and the oppo- site doctrine ably and vigorously contended for, especially by the various rehgious denominations and churches. That doctrine which bastardizes children, and makes a woman a " sort of select strumpet," because of some slip in the form of a marriage ceremony, makes no appeal to the sense of justice, equity and right of any right-minded man, or civilized community, and the writer dis- misses this part of his subject by a quotation from Mr. Bishop, which he fully indorses: "There was a time when the Anglo-Saxon race, though rude and uncultivated in modern chicanery, never inflicted the disgrace of concubinage on a woman who lived with one man, and one man only, as his wife, and bore him children, unless the man was of too close affinity or consanguinity to her, or unless he had another wife to whom he had been earlier married." In commenting on the reverse of this doctrine, our author concludes, " Men who like to deceive honest women, and men who value riches in a wife, or a settlement more highly than true mar- riage, admire this, and they consider the Scotch Digitized by Microsoft® 18 MAKEIAGE AND DIVORCE. people who do not like it, and the people of some of the states, who also do not like it, to be, by reason of their want of love for the refinement, almost barbarians. May barbarism, if this is such, long prevail in the United States." A resume of the law of marriage applicable ahke to the various states (unless absolutely changed by positive and mandatory local law) is as follows : Marriage is a civil contract. No person is com- pelled to assume it, but all may do so, being phys- ically and legally competent. That while the agreement to marry is unexecuted, the law appli- cable to civil executory contracts applies to it. But after the agreement to marry is executed, then the contract merges into the status of marriage, and the law of civil contracts no longer applies, but the law of husband and wife regulates their con- duct, the one with the other, and the community with them both. The status of marriage entered into through the channels of a civil contract, becomes now more than a civil contract. The interest of a third party (the community, wherein the husband and wife reside) attaches; and in order to dissolve the marriage the consent of Digitized by Microsoft® MAEBIAGE. 19 this third party must be obtained, through the channels of the courts, who alone are authorized to act for it. The pohcy of which is to sustain the marriage upon high moral grounds, and if there are children, upon economic grounds. For if the husband and wife separate, the children may become a pubhc charge. Public pohcy and the law everywhere favor marriage and discounte- nance divorce. Parties living together as husband and wife (in law) are presumed to be married; the contrary must be established, by proof. ^No form of solem- nization is absolutely necessary; mere consent, followed by cohabitation as husband and wife, constitutes a vahd and binding marriage. But the basis of such marriage is the intent of the parties to be married. Mere cohabitation as hus- band and wife without the agreement or intention to marry does not constitute marriage, though it may and undoubtedly does constitute j)rmia facie evidence of marriage, which is sufficient until overcome by positive evidence to the contrary. The intention of the parties can be gathered from their action, and no formal declaration of inten- tion to marry is actually required. "When two Digitized by Microsoft® 20 MAEEIAGE AND DIVOECE. intentions are attributable, the one good and pure, the other vicious and impure, the law will pre- sume the former. Neither would the law re- quire that the intention of both parties be good and pure. For if a man, intending to deceive and betray, should induce a woman to Uve with fhim as his wife, leading her to believe that no formal ceremony was necessary, or requisite, though beheving to the contrary himself, never- theless the marriage would be valid and binding, for the law would not permit him to show his own duplicity in order to reheve him of the con- sequences of his wrongful act. Digitized by Microsoft® CHAPTER II. DIVOECE. Divorce is the dissolution of the relationship of marriage. Few social questions are surrounded Avith greater difficulties than this. For what causes divorces should be granted, and whether complete divorce should be granted at all, in the sense of authorizing the spouse to contract new marriage, are points on which civUized societies have arrived at very different conclusions. Mod- ern practice and opinion are to be traced mainly to two sources of principle, viz. : Eoman law and the Christian religion. The effect of the spread of Christianity was to reiavest marriage with the rehgious character from which, in the later law of Home, it had completely escaped ; and the history of divorce in modern times has been the gradual decay of the restrictions which were thought appropriate to the religious character of the institution of marriage. At the same time, these restrictions have nowhere disappeared. The opinion of society visibly fluctuates be- 31 Digitized by Microsoft® 22 MAEEIAGE AIJD DIVOECE. tween the belief that marriage is a civil coDtract only and the belief that it is a contract of a peouharly sacred character, the dissolution of which must not be lightly, if at all, permitted by human legislation. Again, divorce appears to be regarded sometimes as a penalty against the offending spouse, sometimes as a right which the innocent spouse is entitled to. It will be granted only if a matrimonial offense is proved to have been committed, but it will not be granted if such an offense has been committed on both sides. Digitized by Microsoft® CHAPTEE III. ROMAN LAW. In Eoman law marriage was regarded as a voluntary union, whicli might be terminated at any time by the consent of the parties. No legal process was required, although the abuse of the power of divorce was sometimes punished. Until the time of Justinian, divorce by consent of both parties does not appear to have been subject to any restriction. Justinian, however, allowed it only in three specified cases, viz. : For impotency, or where either party desired to enter on a mo- nastic life, or was for a long time in captivity. At a later period, Justinian enacted, that persons dissolving a marriage by mutual consent should forfeit aU their property, and be confined to a monastery during life, two-thirds of the property forfeited going to the children of the marriage, one-third going to the monastery where the par- ties were confined. This severity, so much at variance with the Eoman spirit, indicated the growing power of the clergy. — Hunter's JRomom 33 Digitized by Microsoft® 24 MAEEIAGE AND DIVOECE. Law, p. 50. These prohibitions were repealed in the next reign. Divorce by the husband against the wishes of the wife was a power much more likely to be abused than that of dissolving marriage by mut- ual consent. Although the legal right was rec- ognized, it is said not to have been acted upon for a period of five hundred years, and Spurius Car- vilius is said to have been the first who put away his wife for barrenness. Harshness in the exercise of the power was condemned by pubhc opinion, and sometimes punished by authority of censors. L. Antonius, a senator, was expelled from the senate for a harsh divorce of a young wife. The wife, who had not come imder the mamus of the husband, had the same power of repudi- ating the marriage at wUl. Later legislation curbed this excessive license. By a later law a husband divorcing a wife for adultery, might re- tain one-sixth of her dowery ; for a smaller offense only one-eighth. When the husband was guilty of adultery, he had to repay the dowery at once ; if the fault was less serious, in six months. Constantine allowed the wife to divorce the husband in the following cases : 1. For murder. Digitized by Microsoft® ROMAN LAW. 25 2. For being a preparer of poisons. 3. For viola- ting tombs. Just causes for repudiation by the husband were : 1. Adultery. 2. Preparing poi- sons. 3. Being a procuress. A wife divorcing her husband for other than specified causes, for- feited the dowery, and might be punished by de- portation. Similarly a husband lost his interest in the dowery of his wife by any injurious divorce. Similar provisions are to be found in the legisla- tion of Honorius and Theodorus (421 A. D.). Justinian settled the grounds of divorce as fol- lows : The wife could divorce her husband. 1. For conspiracy against the Empire. 2. Attempting her life. 3. Attempting to induce her to commit adultery. 4. "Wrongfully accusing her of adultery . 5. Taking a paramour to his house, or frequenting any other house in the same town with a para^ mour. On a divorce for these reasons, a wife re- covered her doAvery and obtained the husband's portion as weU. If she divorced for other reasons she forfeited her dowery, and could not marry for five years, as in the legislation of Theodosius and Valentioian. So a husband might justly divorce his wife for: 1. Concealment of plots against the Empire. 2. Adultery. 3. Attempting her Digitized by Microsoft® 26 MAEEIAGE AND DIVORCE. husband's life or concealing plots against him. 4. Going to baths or banquets with other men. 5. Kemaining from home against her husband's wishes. 6. Going to circus, theatre, or amphithe- atre against his wishes. In such cases the hus- band retains the dowery for life, or if he had no children, absolutely. The grounds for divorce specified in these various enactments are an inter- esting comcmentary on contemporary manners. These experiments in divorce legislation display anxiety to regulate the relationship of marriage as a purely civil institution, with a view mainly to pubhc decorum and the comfort of individ- uals. When marriage had manifestly failed, it was no longer worth preserving, and it had failed when either of the parties showed a desire to withdraw from the alhanoe. At the same time, an innocent party must be protected against the caprices of an unjust spouse, and such protection was sought by the devices just described. It is a remarkable illustration of the Koman view of marriage that, in view of what must have been the great social evil of capricious divorce, the right of either party to dissolve the marriage was never successfully questioned. Digitized by Microsoft® BOMAN LAW. 27 From the pure Eoman to the canon law, the change is great indeed. The ceremony became sacred, the tie indissoluble. " Those whom God hath joined let no man put asunder," was the first text of the new law of marriage, and against such a prohibition social convenience and experience pleaded in vain. While marriage once created became indissoluble, the impediments to marriage also multiplied. The canon law annulled a marriage ab initio for causes which we would now consider wholly inadequate. The tie of con- sanguinity was extended to the eighth genera- tion ; and affinity, it was held, might be established by adulterous intercourse without marriage. The power of dispensing with canonical disa- bilities, and the power of annulling marriage on the ground of such disabihties, belonged to the church, and were important aids to its influence in society. In countries which have embraced the doctrines of the Keformation, a relaxation of the law of divorce has generally followed the changes of religon, whether immediately, as in Scotland, or indirectly, as in England. In Eoman Cathohc countries the theory of the canon law still rules. Se^ Enc. Brit., 9 ed., Vol. VII., Title Bvoorce. Digitized by Microsoft® CHAPTER IV. ENGLISH LAW. The history of divorce in English law is partic- ularly intei-esting. Down to the passing of the Divorce Act of 1868, the theory of the law of England was the same as that of the Roman, church. There were attempts during the period of the Reformation to introduce a greater hcense of divorce, and in the Reformatio Legum Ecclesi- astiGo/rum (a code of ecclesiastical law projected by a royal commission, but never enacted) the leaders of the Reformation sanctioned principles which were considered very liberal. Divorce was to be granted for adultery, and the innocent spouse was to be permitted to marry again. Other grounds for divorce were specified, such as de- sertion, continued absence, and savageness of temper. Separation from bed and board was to be superseded by this more complete remedy. And the more advanced reformers advocated even greater liberty of divorce, justifying their propositions by a reference to the Scriptures. 38 Digitized by Microsoft® ENGLISjg LAW. 29 But the law remained unchanged. The constitu- tion of marriage belonged to the jurisdiction of the ecclesiastical courts. The tie was indissolu- ble. The marriage, indeed, might be declared null and void in certain cases, e. g., consanguinity or afl&nity. This proceeding was not a dissolution of marriage so much as a declaration that no real marriage had taken place between the parties. Divorce from bed and board was granted for adultery and cruelty. Here the marriage, being originally good, was not dissolved, but a separa- tion was ordered either for a limited or indefinite time. The spouse was not permitted to marry again. But while the law remained unchanged, the practice of granting complete divorces by private act of parliament had come into exist- ence. The legislature did in particular cases that which it refused to do by general law. Two con- ditions were in general necessary to satisfy par- liament: First, a divorce from bed and board had to be obtained from the ecclesiastical court ; second, an action for damages had to be brought against the adulterer in the civil courts for crimi- nal conversation. The latter was not absolutely Digitized by Microsoft® 30 MAEEIAGE ADD DIVOECE. necessary, and appears to have been regarded as a safeguard against divorces being granted to a person who had connived at the act of adultery, or had themselves been guilty of misconduct in the marriage state. The passage of these acts through parliament became a matter of as much formahty as a proceeding in an ordinary law court. The two houses passed standing orders on the subject, under which bills for divorce were argued before the lay lords by professional advo- cates, and generally neither the house of com- mons nor the lay lords interfered. By this char- acteristic evasion, the law of England completely changed its practice while stiU maintaining its ancient theory of divorce. Probably the anomalous character of the remedy might not have brought about a change, but for the great expense attending the proceed- ings. Three suits — ecclesiastical, civil and parha- mentary — were necessary. Divorce became a remedy for the rich. The poor were driven to bigamy. The satirical address of Mr. Justice IVTaule to a poor man convicted of bigamy, in 1845, put the absurdities of the existing law in a way not likely Digitized by Microsoft® ENGLISH LAW. 31 to be forgotten. The prisoner's wife had robbed him and ran away with another man. "You should have brought an . action," he told him, " and obtained . damages, which the other side would probably not have been able to pay, and you would have had to pay your own costs — per- haps a hundred or a hundred and fifty pounds. You should then have gone to the ecclesiastical courts, and obtained a divorce a mensu et thero, and then to the house of lords, when, having proved that these preliminaries had been complied with, you would have been enabled to marry again; the expense might amount to five or six hundred, or perhaps a thousand, pounds. You say you are a poor man. But I must teU you that there is not 6ne law for the rich and another for the poor." It was not until 185Y — and not then without determined resistance — ^that this disgraceful state of things was changed. A commission appointed in 1850 recommended the establishment of a reg- ular court for divorce, and that divorces should be granted for the wife's adultery, but not for the husband's, unless aggravated by other offenses. Bills constructed on these principles were intro- Digitized by Microsoft® 32 MAERIAGE AND DIVORCE. duced in parliament and successively abandoned or lost, until in 1857 the ministry of the day, by great exertions, carried the bill which is now the act of 20 and 21 Yict., C. 85. Notwithstanding the hostility it excited, the bill proposed little more than a consolidation of jurisdictions; and proceedings in the divorce courts have now, with few exceptions, the same object and result as the former proceedings in parMament and in the civil and ecclesiastical courts. The action for damages for criminal conversation is represented by the adulterer being made a party to the husband's suit. Full divorce is granted on the principles usually recognized by the house of lords ; and the other remedies are such as might formerly have been granted by the ecclesiastical courts. Digitized by Microsoft® CHAPTER Y. THE LAW OF SCOTLAND. Divorce for adultery has been recognized in Scotland since the Eeformation. It appears not to have been introduced by aiiy statute, but to have been assumed by the post-reformation judges as the common law. In another point the law of Scotland is in advance of the law of England. Divorce for adultery is competent to either spouse ; malicious desertion is also a ground for divorce. Recrimination is no bar to an action for divorce in Scotland. Judicial separation is granted for cruelty and adultery. The party injured by the adultery of the other spouse may choose either judicial separation or divorce. The cruelty re- quired to justify judicial separation must, as in England, be of a somewhat aggravated character. Divorce in Scotland had the effect of remitting the parties to the status of unmarried persons. The law, however, made one exception : a divorced person was not allowed to marry the paramour, at aU events if the paramour was named in the 3 33 Digitized by Microsoft® 34: TVTARBIAGE AND DIVORCE. decree ; and for tliis reason the name of the para- mour is sometimes omitted, so that the parties may be allowed to marry if they wish. By the Conjugal Eights Amendment Act of 1861, provis- ions similar to those of the English divorce acts were established. A deserted wife may apply to the court of sessions for Un order to protect any property which she has or may acquire by her own in- dustry, or may succeed to; and such order of protection when made has the effect of a separsi- tion from bed and board, in regard to the property rights and obhgations of the husband and of the wife, and in regard to the wife's capacity to sue and be sued. When a wife obtains a decree of separation from bed and board, all property she may acquire is to be considered as property be- longing to her in reference to which the husband has no rights. She may dispose of it as if she were unmarried and if she dies intestate, it would pass to her heirs and representatives, as if her husband were dead. A wife so separated is cap- able of entering into obhgations and of suing and being sued, as if she were an unmarried woman, and the husband is not liable for her debts, etc. Digitized by Microsoft® CHAPTEE YI. PEUSSIA. In Prussia divorce is allowed for adultery, sodomy and other unnatural vices, malicious de- sertion, persistent refusal of marital intercourse, plots or practices endangering life or health, ungovernable temper, drunkenness, extravagance, etc., unless corrected after admonition of the judge ; failure of the husband to support the wife, hopeless insanity continuing for more than a year ; and, where there are no children, dehberate mutual consent. HOLLAND. Allows divorces for adultery and desertion. FEAl^CE. The civil code of France allowed divorce : 1. For adultery of the wife, but not for adultery of the husband, except where he brought a para- mour or concubine into his house. 2. To either party for any outrage, cruelty or greivous wrong inflicted upon him or her by the other party. 3. To 35 Digitized by Microsoft® 36 MAEEIAGE AND DIVOECB. either/upon the condemnation of the other to an infamous punishment, which is elsewhere defined to be either imprisonment, banishment, loss of civil rights, or being placed in the public stocks. 4. By mutual consent, with other satisfactory- proof that the continuance of the marriage would be insupportable. These provisions were rescinded in the religious reaction of 1816. A law was passed (May, 1816) eliminating divorce from the civil code and re-establishing the old law, which allowed only separation. Ineffectual attempts to change this law were made at various times, and the agitation of this question was kept up until the present year, and has resulted in the passage of a divorce law, the exact text of which the writer is not informed. But it is learned through the press that within a week after the law took effect over three thousand applications for divorce were filed in the city of Paris alone. Digitized by Microsoft® CHAPTEE YII. THE UNITED STATES. The matrimonial law of England at the time of the adoption of the Declaration of Independ- ence, forms a part of the common law of the United States. But as no ecclesiastical courts have ever existed here, those courts upon whom jurisdiction has been conferred have adopted that part of the Eng- hsh law of divorce not inconsistent with the spirit of our institutions. There is no national juris- diction in divorce, and though it is competent to congress to authorize divorces in territories — sofar as the writer knows- — ^that body has never yet exercised this power, but has left it like most other subjects, to the legislatures of the several territories. In the earlier states, as in England, divorces were at first granted by the legislative power. But gradually those states have by statutory law delegated the subject of divorce to the several ■courts of their respective jurisdictions, and the 37 Digitized by Microsoft® 88 MAEEIAGB AND DIVOECE. newer states have followed the example thus set. In fact, in some of the states— by constitutional enactment — ^legislative divorces have been pro- hibited. It is contended that legislative divorces are debarred by general clauses in the constitution of the United States. This instrument provides that "no state shaJl pass laws impairing the obli- gations of contracts." TJ. S. Constitution, Art. I., Sec. 10, Darimwuth College 'o. Woodward, It Wheat., 518. And inasmuch as marriage is a civil contract, that this clause prohibits legislative divorces. However, Bishop in his work on marriage and divorce, says " that it is settled law, that legisla- tive divorces are not invalid as impairing the obh- gations of contracts." Bishop on Marriage and Divorce, Yol. I., Sec. 665. Mr. Bishop contends with great force and much show of reason, that marriage is not a civil con- tract only, but a status, and that " when the con- tract to become husband and wife is executed by the parties becoming such, then the status assumed stands before the law a thing of legal institution, to be regulated, from time to time, as the public good may determine." In other words, that after Digitized by Microsoft® THE LAWS OF THE UNITED STATES. 39 the marriage is actually consummated, the law of contracts ceases to apply, and the parties are ever afterwards — in their wedded relationship — gov- erned by the law of husband and wife. But the supreme court of the state of Mis- souri, in the case of The State vs. Fry (reported in 4th Missouri Eeports, page 120), decided this question against the validity of such divorces, and, later, the supreme court of Florida followed the Missouri court. See Powder vs. Graham, Ifth Florida Reports, page 83. In view of the known policy of the various states against such divorces, this subject is of no great importance, and has no place in a work like this. The practice throughout the states is to confer jurisdiction in divorce on the courts of equity to be administered in general accordance with the ordinary rules of equity practice. Each state, of course, determines for itself the causes for which divorces may be granted. The states are to each other, in the matter of divorce, as foreign countries, and the tribunals of a state have no jurisdiction in divorce, if neither of the parties has an actual iona fide domicile within its borders. Each state has the exclusive Digitized by Microsoft® 40 MABEIAGB AKD DIVOECE. right to determine the matrimonial status of per- sons domiciled within it, the causes for divorce, and what courts shall have jurisdiction to grant the same. In the language of Judge Story, " The doctrine now firmly estabhshed in America upon the sub- ject of divorce is, that the law of the place of the actual hona fids dctaiicile of the parties gives jurisdiction to the proper court to decree a divorce for any cause allowed by the local law, without reference to the law of the original place of marriage, or to the place where the offense was committed." Story Confl. Laws, Sec. 830 a. " This doctrine," says Bishop, "has forced its way through many a field of conflict, and its authority is fuUy acknowledged in the United States." Bishop on M.