A History of Matrimonial Institutions, Vol. 3 of 3

by George Elliott Howard

FOOTNOTES:

[1] Const. of Mass. (1780), chap. 3.

[2] For the document containing this veto see Acts and Laws of the Commonwealth of Mass. (1790-91: reprinted by the secretary of state, Boston, 1895), 575, 576.

[3] Laws of the Commonwealth of Mass., 1780-1816 (1807-16), I, 303.

[4] Act of May 31, 1887: Supp. to the Pub. Stat. of the Com. of Mass., 1882-88 (1890), 584, 585.

[5] The act provides "That divorces from the bond of matrimony shall be decreed, in case the parties are within the degrees aforesaid, or either of them had a former wife or husband, or for impotency or adultery in either of the parties."—Laws of the Com. of Mass., 1780-1816, I, 301.

[6] "All marriages which are prohibited by law on account of consanguinity or affinity between the parties, or on account of either of them having a former wife or husband then living; all marriages, solemnized when either of the parties was insane or an idiot, and all marriages, between a white person and a negro, Indian or mulatto," shall, if solemnized within the state, be absolutely void, "without any decree of divorce, or other legal process."—Rev. Stat. of the Com. of Mass. (1836), 479. The same is true when either of the parties is under the age of consent, "if they shall separate during such nonage, and shall not cohabit together afterwards."—Ibid., 479. The clause forbidding marriages between a white person and a negro, Indian, or mulatto was repealed Feb. 25, 1843: Supp. to Rev. Stat., 1836-53 (1854), 248; Acts and Resolves (1843), 4.

[7] So in New Hampshire: compare the act of Feb. 17, 1791: Laws of the State of N. H. (1797), 295, with Rev. Stat. (1843), 293, when the modern usage was adopted. For Rhode Island see Pub. Laws (1798), 497, and later revisions; for Maine compare Laws (1821), I, 344, 345, with Rev. Stat. (1847), 364 (modern usage).

[8] On the confusing use of terms see Bishop, Marriage, Divorce, and Separation, II, 214, who says: "Not unfrequently the judicial declaration of nullity is called a 'divorce.' It is properly so when the marriage it declares void was only voidable. For example, it is common and correct in law language to speak of impotence as cause for divorce;" but to prevent confusion he favors the term "sentence" or "decree of nullity" to indicate "the legal avoiding of a voidable marriage." On the other hand, Shelford, Marriage and Divorce, 365, holds that "divorce" cannot properly be applied to sentences for annulment of either void or voidable marriages. For the present state of the law this appears to be the right conclusion. Blackstone, Com., I, 440, retains the canonical usage.

[9] But an act of the preceding year "against adultery, polygamy, and lewdness" exempts from its penalties a person whose husband or wife has been absent seven years unheard of: Act of Feb. 17, 1785, Laws of the Com. of Mass., 1780-1816, I, 217, 218.

[10] Act of Feb. 28, 1811: ibid., IV, 223.

[11] Act of Feb. 18, 1829: Laws of the Com. of Mass., 1828-31 (1831), 83, 84.

[12] The causes of divorce a mensa et thoro remain unaltered in Rev. Stat. of the Com. of Mass., 1835 (1836), 480.

[13] Supp. to Gen. Stat. of the Com. of Mass., 1860-72, I (2d ed., Boston, 1873), 871 (act of June 23, 1870).

[14] Rev. Stat. (1836), 480. Impotency is also sanctioned; but this was already allowed by the act of 1786.

[15] Act of April 17, 1838: Laws of the Com. of Mass. (1838), 415.

[16] Act of March 20, 1850: Supp. to Rev. Stat., 1836-53, I, 592.

[17] Act of May 9, 1867: Supp. to Gen. Stat. of the Com. of Mass., 1860-72, I, 565, 566. Cf. 98 Mass. Reports, 408; 104 ibid., 567.

[18] See above chap. xi, sec. iii, d).

[19] So by an act of 1870 the decree nisi may in three years and shall in five years be made absolute, upon proof of the parties living separate during the period; if they live together, the decree nisi becomes void: Supp. to Gen. Stat., 1860-72, I, 871. This act was repealed in 1873: Supp. to Gen. Stat., 1873-77, II, 104; but the interval in case of a decree for desertion was then fixed at three years: ibid., 104. In the next year the act of 1867 was amended by adding, "but a decree of divorce when personal service is made on the libellee, or when the libel for divorce shall have been entered at a term prior to the term granting a decree of divorce, shall be a decree absolute, and not nisi": ibid., II, 306 (June 30, 1874). On May 19, 1875, the interval fixed by the law of 1870 was restored: three years on petition of the libellant; five years on petition of either party: ibid., II, 364. But in 1881 it was again made six months on the petition of either party: Acts and Resolves (1881), 563. The next year the law was slightly modified in the details of procedure, the six months' interval being retained: ibid. (1882), 178, 179; amending chap. 146, Pub. Stat. of the Com. of Mass. (1882), 813, 815.

[20] Act of May 2, 1893: Acts and Resolves (1893), 916, amending slightly another act of the same year: ibid., 829, 830. Cf. Rev. Laws (1902), II, 1355.

[21] Supp. to Gen. Stat. of the Com. of Mass., 1860-72, I, 871.

[22] Act of June 11, 1873: Acts and Resolves (1873), 908.

[23] Pub. Stat. of the Com. of Mass. (Boston, 1882), 813.

[24] Act of June 7, 1889: Acts and Resolves (1889), 1172.

[25] Rev. Laws (1902), II, 1352, 1353. Divorce for joining a religious sect, under the act of 1850, seems to have been dropped out in the revision. It is still in Pub. Stat. (1882), 813.

[26] See the Index to the MSS. Laws of New Hampshire Recorded in the Office of the Secretary of State, 1679-1883 (1886), 149, 150, where a list is given showing that legislative decrees were granted in 1766, 1771, 1773, 1778, 1779, 1780, 1781, 1782, and 1783.

[27] See the provision in Poore, Charters, II, 1290.

[28] It is by that constitution left in the hands of the superior court until the legislature shall make provision: Poore, Charters, II, 1305; also in Const. and Laws of the State of N. H. (1805), 18.

[29] See Laws of N. H. (1855), 1542; also Gen. Stat. (1867), 386; Gen. Laws (1878), 432, 433; Pub. Stat. (1891), 573.

[30] Laws of the State of N. H. (1797), 295.

[31] Laws of N. H. (1839, act of July 6), 400. This act was amended in 1840 so that the divorce may be given within three months after passage of the act, provided the whole time of desertion before and after shall not be less than three years: Laws of N. H. (1840, June 19), 439, 440.

[32] Counting divorce for injury to health or endangering reason as two grounds, as in the Rev. Stat. (1842), 293.

[33] Laws of N. H. (1840, November), 488, 489. In the case of habitual drunkenness and of gross and wicked conduct not more than two of the three years may precede the passage of the act.

[34] Rev. Stat. of the State of N. H. (1843), 293. In these cases the time may be counted before and after the act, or if the three years have already expired, then a divorce may be granted in one month after it goes into force: ibid., 293, 294. The period for joining a religious sect was reduced to six months by the act of Jan. 4, 1849: Laws of N. H. (1848-49), 707; Comp. Stat. (1853), 377.

[35] Laws of N. H. (1854), 1424, 1425; also Gen. Stat. of the State of N. H. (1867), 335.

[36] They are still in force in Pub. Stat. (1900), 591. To constitute a cause there must now be conviction for a "crime" punishable in the state by more than one year's imprisonment; and there must be actual confinement under the sentence.

[37] See chap. XV, sec. i, c).

[38] So in the Acts and Laws of his Majesty's Colony of Conn. (1750), 43; in Acts and Laws (1784), 41; ibid. (1805), 457; the Pub. Stat. Laws (1821), 178, 179; ibid. (1835), 162, 163; ibid. (1838), 185, 186; Pub. Acts (1849), 17.

[39] Gen. Stat. of Conn. (1887), 612.

[40] Act of March 21, 1899: Pub. Acts, 996.

[41] Pub. Acts (1843), 20; Rev. Stat. (1849), 274. For a construction of "intolerable cruelty" see Shaw v. Shaw, 17 Conn. Reports, 189.

[42] Pub. Acts (1849), 17 (June 19). Cf. Gen. Stat. (1866), 305, 306, where the nine causes already existing in 1849 are enumerated; also ibid. (1875), 188.

[43] Pub. Acts (1878), 305.

[44] The eight causes already named appear in Gen. Stat. (1887), 612; and no later action seems to have been taken. Cf. Gen. Stat. (1902), 1090, 1091.

[45] So in 1798: Pub. Laws of R. I. (1798), 481. See also Gen. Laws (1896), 760, 761, where exclusive jurisdiction in such cases is vested in the appellate division of the supreme court.

[46] Pub. Laws (1798), 479.

[47] Pub. Laws (1844), 263. But this provision may be earlier; I have not been able to verify the date.

[48] Laws of R. I. (1851), 796.

[49] Gen. Laws (1896), 634. Eight causes are here formally enumerated; but the act further declares that when it is alleged in the petition that the parties have lived apart from each other for at least ten years, the court may in its discretion grant a divorce: ibid., 634. This provision originated in 1893: Acts and Resolves (1892-93), 237.

[50] Pub. Laws (1902), 39-41.

[51] For the rare cases of permission to live "apart" granted by the legislature cannot be regarded as historically important.

[52] Pub. Stat. (1882), 427.

[53] Gen. Law (1896), 634, 635; Pub. Laws (1902), 39. This act of 1902 allows such separation, provided the petitioner has been a domiciled inhabitant of the state and has resided there for such length of time as the court shall deem sufficient.

[54] Slade, Vermont State Papers, including laws enacted 1779-86 (1823), 364.

[55] Laws of the State of Vermont (1798), 333.

[56] Act of Nov. 7, 1805: Laws of the State of Vt. (1808), I, 270-72.

[57] It appears to have been abrogated by sec. 3 of the act of Oct. 21, 1807: see Laws of Vt. (1825), 364, 365, note.

[58] Revision of the Stat. (1840), 324.

[59] Vermont Stat. (1894), 507.

[60] Ibid.

[61] Acts and Resolves (1896), 43, 44.

[62] Vermont Stat. (1894), 508, 236.

[63] Laws of the State of Maine (1821), I, 344-47; also Smith, Laws of the State of Maine (1834), I, 424 ff.

[64] Act of March 6, 1830: Pub. Acts (1830), 1227, 1228. This statute merely changes the terms of another of the preceding year: ibid. (1829), 1208, 1209.

[65] In 1835 a divorce is authorized "where the consent of one of the parties to the marriage was obtained, by gross and deliberate fraud or false pretences ... provided the parties have not cohabited, as husband and wife, after such fraud was known to the party, thus deceived."—Pub. Acts (1835), 177. Habitual drunkenness was added in 1838: Pub. Acts (1838), 499, 500; cf. Rev. Stat. (2d ed., 1847), 364.

[66] The act of July 13, 1847, gave a "majority" of the justices this power: Acts and Resolves (1847), 8; but this was amended in harmony with the text in 1849: Acts and Resolves (1849), 104.

[67] Ibid. (1850), 150, 151.

[68] Except by an act of 1863, in addition to the "blanket" provision of 1847, three years' wilful desertion is specified as a cause: Laws (1863), chap. 211, sec. 2; also in Rev. Stat. (1871), 488.

[69] Acts and Resolves (1883), chap. 212, secs. 1, 2, p. 175 (March 13); Rev. Stat. (1884), 520-23.

[70] Acts and Resolves (1883), chap. 212, sec. 4, pp. 175, 176; Rev. Stat. (1884), 522.

[71] Compare the act of March 2, 1897: Acts and Resolves (1897), 232, 233, with that of March 15, 1899: ibid. (1899), 89.

[72] Case of West Cambridge v. Lexington (Oct., 1823), 1 Pickering, 507-12. The act of 1785 provides that the penalties for "polygamy," which it prescribes, shall not extend "to any person that is or shall be at the time of such marriage divorced, by sentence of any Court ... unless such person is the guilty cause of such divorce."—Acts and Laws (Reprint, Boston, 1784), 118; also in Perpetual Laws of the Com. of Mass., I, 217, 218. The act of 1786, chap. 69, provides that all "marriages where either of the parties shall have a former wife or husband living at the time of such marriage, shall be absolutely void."—Perpetual Laws of the Com., I, 301. This provision is ambiguous, and might of itself seem to make void the marriage even of the innocent party to a divorce; but, in the case just cited, the court held: "Supposing the legislature to have considered the parties to a marriage which had been dissolved as standing in the relation of husband and wife, so far as to bring them within the purview of the former statute [that of 1785], it will follow that a marriage of persons so situated would be void. It is true, that by this statute [that of 1786] standing by itself, the marriage of an innocent party to a divorce would not be protected; but the statutes, being in pari materia, must be construed together, and the exception in the first cited statute in favor of such persons, would avail."—1 Pickering, 509.

[73] See 1 Pickering, 510, 511.

[74] Case of Putnam v. Putnam, 8 Pickering, 433-35 (Sept., 1829).

[75] Act of March 13, 1841: Acts and Resolves (1841), 371; also in Supp. to Rev. Stat., 1836-53, I, 189.

[76] Act of May 19, 1853: Supp. to Rev. Stat., 1836-53, I, 976.

[77] Act of May 21, 1855, repealing the act of May 19, 1853: Acts and Resolves (1855), 823.

[78] Act of May 11, 1864: Supp. to Gen. Stat., 1860-72, I, 279. But there must be no collusion. See 10 Allen, 276.

[79] Act of June 11, 1873: Supp. to Gen. Stat., 1873-77, 104; Act of June 30, 1874: ibid., 306.

[80] Act of May 6, 1881: Acts and Resolves (1881), 563; Pub. Stat. (1882), 815; Rev. Laws (1902), II, 1355.

[81] Rev. Stat. (1884), 520-22.

[82] Rev. Stat. of the State of Maine (1884), 522. This provision originated in 1874: Acts and Resolves (1874), chap. 184, sec. 3, p. 130.

[83] Slade, State Papers, 364.

[84] By an act of 1797, both parties may at once remarry: Laws of the State of Vt. (1798), 364.

[85] Act of Nov. 27, 1878: Acts and Resolves (1878), 32, 33; also in Stat. of Vt. (1894), 511, 512. The penalty for violation of this provision is imprisonment from one to five years.

[86] Laws of N. H. (1840), 488, 489. See subsection a) above.

[87] Pub. Stat. of N. H. (1900), 591.

[88] Pub. Laws of R. I. (1902), 41.

[89] Pub. Stat. of the Com. of Mass. (1882), 813, 817; Rev. Laws (1902), II, 1353, 1357. The main features of the present law originated as early as 1835; Rev. Stat. (1836), 480, 484. By the act of May 2, 1877, the prior time of residence had been fixed at three years in all cases where the parties were inhabitants of the state at the time of the marriage: Supp. to Gen. Stat., 1873-77, II, 516.

[90] Act of May 8, 1884: Acts and Resolves, 181; Supp. to Pub. Stat., chap. 219, p. 185; Rev. Laws (1902), II, 1353.

[91] Pub. Stat. of the State of N. H. (1891), 495; ibid. (1900), 590, 591.

[92] Raised from one year to two by Pub. Laws (1902), 40; but it is provided that if the defendant has for that time been a resident and domiciled inhabitant of the state, and has been actually served with process, the requirement of the act as to term of the petitioner's residence shall be satisfied.

[93] Act of Nov. 7, 1805: Laws of State of Vt. (1808), I, 270.

[94] Laws of State of Vt., I, 272, 273, 274.

[95] Gen. Stat. (1863), chap. 70.

[96] Act of Nov. 27, 1878: Vermont Acts and Resolves (1878), 32, 33.

[97] Vermont Stat. (1894), 507.

[98] Act of March 15, 1899: Acts and Resolves, 89. Cf. the act of 1897: Acts and Resolves, 232, 233, which in the residence clause contained the additional words "or if the libellee is a resident of the state" at the time. This clause was restored by Acts and Resolves (1903), 31.

[99] Rev. Stat. (1884), 522.

[100] See Acts and Laws (1797), 457; also Stat. of the State of Conn. (1854), 380, where the term may be less for the plaintiff when the defendant has been three years in the state.

[101] Gen. Stat. of Conn. (1887), 613; Gen. Stat. (1902), 1091.

[102] Rev. Stat. of Maine (1884), 521.

[103] Gen. Stat. of Conn. (1887), 612; as modified by the act of May 11, 1899: Pub. Acts, 1042. For the earlier laws as to notice see Acts and Laws (1797), 457; Pub. Stat. (1821), 178; Pub. Stat. Laws (1835), 162, 163; Rev. Stat. (1849), 274, 275; Stat. of the State (1854), 379, 380. Cf. Gen. Stat. (1902), 1090.

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

[105] Vermont Acts and Resolves (1884), 86.

[106] Acts and Resolves (1886), 50.

[107] Vermont Stat. (1894), 508.

[108] Act of June 2, 1898: Acts and Resolves, 443; cf. Rev. Laws (1902), II, 1353, 1354.

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

[110] Rev. Stat. of Mass. (1835), 481; Pub. Stat. of Mass. (1882), 815; Rev. Laws of Mass. (1902), II, 1355; Pub. Stat. of N. H. (1900), 592; Rev. Stat. of Maine (1884), 522.

[111] Rev. Stat. of Mass. (1835), 482; Pub. Stat. of Mass. (1882), 810; Rev. Laws of Mass. (1902), II, 1347; Rev. Stat. of Maine (1884), 523.

[112] Rev. Stat. of Maine (1847), 367; ibid. (1883), 529; Rev. Stat. of N. H. (1843), 293; Vermont Stat. (1894), 505; Rev. Laws of Mass. (1902), II, 1346.

[113] As in Rhode Island: Gen. Laws (1896), 840; and Vermont: Stat. (1894), 273; Maine: Acts and Resolves (1899), 89. Cf. Pub. Stat. of N. H. (1891), 622.

[114] As in Maine: Acts and Resolves (1899), 89; Rev. Stat. (1884), 521; ibid. (1847), 368.

[115] Vermont Stat. (1894), 512; Gen. Laws of R. I. (1896), 636; Gen. Stat. of Conn. (1887), 613; Pub. Stat. of Mass. (1882), 815. In Maine the court may change the wife's name "at her request": Acts and Resolves (1901), 167.

[116] Vermont Stat. (1894), 512.

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

[118] Pub. Stat. of Mass. (1882), 814; Laws of Mass. (1821), 508, 509; Rev. Stat. of Mass. (1835), 482; Vermont Stat. (1894), 509; Rev. Stat. of Maine (1884), 521; Rev. Stat. of N. H. (1843), 294.

[119] Vermont Stat. (1894), 510, 511.

[120] Pub. Stat. of Mass. (1882), 814-16; Rev. Laws (1902), II, 1355.

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

[122] Vermont Stat. (1894), 509 ff.

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

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

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

[126] Laws of Md. (1790), chap. xxv. Cf. Bacon, Laws of Md. (1715), chap. 44, sec. 26.

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

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

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

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

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

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

[133] For the numerous cases of legislative divorce see the Index to the Laws of Maryland, 1826-31; ibid., 1832-37; ibid., 1837-45, 224-29.

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

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

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

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

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

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

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

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

[142] Poore, Charters, II, 1416 (1835), 1439 (1876).

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

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

[145] Wright, Report, 388, 389, 155.

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

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

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

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

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

[150] Digest (1823), 254.

[151] Art. VI, sec. 3, Const. of 1819: Digest (1823), 255: Poore, Charters, I, 42.

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

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

[154] Cf. Const. of 1865, Art. IV, sec. 30; that of 1867, Art. IV, sec. 30; and that of 1875, Art. IV, sec. 23: Poore, Charters, I, 53, 65, 81.

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

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

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

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

[159] Const. of 1845, Art. CXVII: Poore, Charters, I, 721; also Const. of 1852, Art. CXIV: Poore, op. cit., I, 735; Civil Code (1853), 19; Const. of 1864, Art. CXVII; and Const. of 1868, Art. CXIII: Poore, op. cit., I, 750, 767.

[160] Fifteen of these divorces were granted by the one act of Feb. 7, 1879: Acts and Resolutions (1879), 5-8; for the others see ibid., 46, 112; and compare the act of Congress of July 30, 1886: Statutes at Large, XXIV, 170. In the same year, 1879, twenty-eight divorces were granted by the courts of Arizona, and five in the year before: Wright, Report, 151.

[161] Act of Jan. 31, 1809: Littell, Stat. Law (1814), IV, 19, 20.

[162] Const. of 1850, Art. II, sec. 32: Poore, op. cit., I, 671.

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

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

[165] Acts of the Gen. Assembly (1842-43), 205, 206.

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

[167] Const. of 1798, Art. III, sec. 9: Digest of Laws of Ga. (1801), 40; Poore, op. cit., I, 394.

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

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

[170] Prince, Digest (1837), 190; Head v. Head, 2 Georgia, 193.

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

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

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

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

[175] Const. 1798, Art. III, sec. 9, amendment of 1833, in force 1835: Prince, Digest (1837), 911; Poore, Charters, I, 399.

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

[177] Code Napoléon, Nos. 233, 275-97.

[178] Case of Head v. Head, 2 Georgia Reports, 191-211.

[179] Const. of 1798, Art. III, sec. 9, amendment of 1849: Cobb, Digest (1851), 1123; Poore, Charters, I, 401.

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

[181] Act of Feb. 17, 1827: Acts of Gen. Assembly (1826-27), 21, 22. Cf. same law in Supp. to Rev. Code (1833), 222, 223.

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

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

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

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

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

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

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

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

[189] Littell, Statute Law of Kentucky (1814), IV, 19, 20.

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

[191] Humphrey, Compendium of the Common Law, in Force in Ky., 135, above cited.

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

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

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

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

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

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

[198] North Carolina Acts (1827-28), 20. Cf. the preceding section of the text.

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

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

[201] The five causes of partial divorce are in Public Laws (1871-72), 339, 340. Cf. Code of N. C. (1883), I, 514.

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

[203] Laws (1819), chap. 20; Stat. Laws (1831), I, 76.

[204] Laws (1835), cited in Caruthers and Nicholson, Compilation of the Stat. of Tenn. (1836), 257-62.

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

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

[207] Code of Tenn. (1884), 611; Shannon, Code (1896), 1042. The fifth and sixth causes appear in ibid. (1858), 483; the tenth, in Acts (1867-68), chap. 68.

[208] Code of Tenn. (1884), 611, 612. In Shannon, Code (1896), 1043, these are combined under three heads.

[209] Act of Feb. 22, 1850: Cobb, Digest (1851), 226; Acts (1849-50), 151, 152.

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

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

[212] Const. of 1877, Art. VI, secs. 4, 15, 16: N. Y. Convention Manual, Part II, Vol. I, 427, 431. Cf. Const. of 1865, Art. IV, sec. 2; 1868, Art. V, secs. 2, 3: Poore, Charters, I, 409, 420, 422.

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

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

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

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

[216] Aikin, Digest (1833), 130-32.

[217] Clay, Digest of Laws of Alabama (1843), 172; also in Acts (1843), 27.

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

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

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

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

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

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

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

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

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

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

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

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

[230] Rev. Code (1858), 334.

[231] By the Rev. Code (1871): see Wright, Report, 154; and Willcox, The Divorce Problem, 52.

[232] For interpretation of "cruel treatment" see Johns v. Johns, 57 Miss., 530.

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

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

[235] Ibid., II, 360.

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

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

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

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

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

[241] Digest of Civil Laws Now in Force (1808), 26, 28, 30; also Code Civil (1825), 80, 87-91; Lislet, Gen. Digest, II, 3 ff.; Civil Code of La. (1853), 19.

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

[243] Act of April 2: Acts (1832), 152; also in Civil Code (1853), 20, 21.

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

[245] Act of March 16: Acts (1857), 137; Voorhies, Rev. Stat. Laws (1876), 313.

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

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

[248] Rev. Civil Code (1888), 68 ff.; ibid. (1897), 305, 306; ibid. (1870), 18 ff. Cf. Wright, Report, 97, 98. The habitual intemperance (Cause 3) and cruel treatment (Cause 4) must still be of "such a nature as to render their living together insupportable."

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

[249] Act of July 4, 1898: Acts of the Assembly, 34.

[250] Laws of the Rep. of Texas, V, 19-22; also in Dallam, Digest (1845), 80, 81. Cf. the earlier act of 1837, in Dallam, op. cit., 79.

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

[252] Digest of Ark. (1894), 680-83; Rev. Stat. (1838), 333. Incurable insanity appears as a ground in Civil Code, sec. 464, as amended in 1873; but it was dropped by Acts (1895), 76.

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

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

[255] Wilson, Stat. of Okla. (1903), II, 1119.

[256] Richberg, "Incongruity of the Divorce Laws in the United States," Publications of Mich. Pol. Sc. Association, No. 4, p. 58.

For this act of Feb. 16, 1871, see Comp. Laws of the Ter. of Ariz., 1864-71 (1871), 303, 304. The other six causes referred to in the text are (1) impotency; (2) marriage of a female under fourteen without parental consent and not ratified by her after reaching that age; (3) adultery in either without collusion or subsequent voluntary cohabiting; (4) extreme cruelty, or habitual intemperance, wilful desertion for one year, or neglect to provide for the wife; (5) force or fraud; (6) conviction of either of felony after marriage. For the earlier law see the Howell Code, 232 ff.; and the amendments of 1865, in Comp. Laws (1871), 297-303.

[257] Rev. Stat. of Ariz. (1887), 373, 374; cf. Wright, Report, 90. By the act of 1871 the period of desertion is fixed at one year; and it is two years by the Howell Code: Compiled Laws (1871), 298, 304.

[258] Rev. Stat. of Ariz. (1901), 812-15; amended by Acts (1903), 52.

[259] Acts of N. M. (1901), 116 ff. For the earlier laws see Acts of the Ass. of N. M. (1886-87), 68; Comp. Laws (1897), 407. In case of permanent separation, without a dissolution of marriage, either spouse may institute a suit for division of property or disposal of the children; or the wife may bring suit for alimony alone: ibid., 116.

[260] Compiled Laws of N. M. (1885), 514, 516.

[261] Rev. Stat. and Codes of Porto Rico (1902), 813-17.

[262] "Provided, that, when the suit is instituted by the party deserting, it appears that the desertion was caused by the extreme cruelty of the other party, or that the desertion of the wife was caused by the gross or wanton and cruel neglect of the husband to provide suitable maintenance for her, he being of sufficient ability to do so" (p. 30).

[263] Act of Jan. 31: Acts and Joint Res. (1872), 30 ff.

[264] Repealed by act of Dec. 20: Acts and Joint Res. (1878), 719.

[265] Previous to 26 Geo. II., chap. 33.

[266] H. W. Desaussure, in 2 S. C. Equity Reports, 644 (revised edition).

[267] Opinion of Justice Pope in McCreery v. Davis, 44 S. C. Reports, 195-227 (1894).

[268] Comp. Stat. of D. C. (1894), 275, 276.

[269] Moore, Code of D. C. (1902), 199, 200.

[270] See the cases already cited, Acts (1826-27), 126.

[271] Act of March 18, 1848: Acts of the Assembly (1847-48), 165, 166.

[272] Code of Va. (1887), 562.

[273] Act of April 1: Laws (1872), chap. 272, p. 445.

[274] The Code of Md. (1888) seems to be entirely silent as to remarriage.

[275] Comp. Stat. of D. C. (1894), 275 ff., allowing entire freedom; superseded by the act of 1901: Moore, Code (1902), 199, 200.

[276] Laws (1814), chap. 5; and Haywood, Manual (1819), 176. The same provision appears in Laws of the State of N. C. (1821), II, 1294.

[277] Acts (1827-28), 20.

[278] Rev. Code (1855), chap. 39, sec. 17, p. 254.

[279] Act of April 7, 1869: Pub. Laws, 323.

[280] All restriction is removed by Laws (1870-71), chap. 193, sec. 46, p. 343; also in Code of N. C. (1883), I, 518.

[281] Compilation of Laws of Ga. (1812), 313.

[282] For instance, see Hotchkiss, Codification (1845), 331; Cobb, Analysis (1846), 294 ff.; Cobb, Digest (1851), 226 ff.

[283] Acts (1872), 14; ibid. (1879), 51; also in Code of Ga. (1896), II, 29, 30. A "verdict of divorce in 1866 will not authorize the guilty party to marry again without proof of a decree of court authorizing to marry."—62 Ga., 408.

[284] Act of Oct. 26, 1799: Scott, Laws of Tenn. (1821), I, 647.

[285] Code of Tenn. (1884), 617; Shannon, Code (1896), 1050.

[286] Littell, Stat. Laws of Ky. (1814), IV, 20. This restriction upon the defendant appears also in the act of 1812: ibid., IV, 407-10.

[287] Acts (1819-20), 896.

[288] Act of March 2, 1843: Acts (1842-43), 29, 30.

[289] Kentucky Stat. (1899), 827.

[290] Rev. Stat. of Ariz. (1887), 374; Comp. Laws of N. M. (1897), 407 ff.; Digest of Ark. (1894), 680 ff.; Ann. Stat. of Ind. Ter. (1899), 324-27; Laws of the Rep. of Tex. (act of Jan. 6, 1841), V, 20; also Rev. Civil Stat. of Tex. (1888), I, 887; Ann. Civil Stat. (1897), I, 1095-1100; Code of W. Va. (1899), 660 ff.; also Kelly, Rev. Stat. of W. Va. (1878), I, 495. The five-year limit for Missouri is fixed by the act of Jan. 24, 1835: Rev. Stat. (1835), 226; and is retained in Rev. Stat. (1845), 428; and ibid. (1879), I, 362; but it is struck out by Laws (1885), 159; and there is no restriction in Rev. Stat. (1899), I, 741-44. But by the act of Jan. 31, 1833, it was provided that "when one of the parties ... shall be divorced, it shall ... be lawful for the other party to marry again, after two years shall have expired."—Laws of a Pub. and Gen. Nature (1842), II, 361.

[291] Ann. Code of Miss. (1892), 420; Rev. Code (1857), 334.

[292] Cf. Acts (1824), 61, 62; ibid. (1869-70), 76, 77; ibid. (1872-73), 122; Code of Ala. (1897), 492, 493.

[293] Stat. of Okla. (1893), 876, 877; Wilson, Statutes (1903), II, 1122.

[294] Digest of Civil Laws (1808), 28; Rev. Civil Code (1888), 68.

[295] Rev. Laws (1897), 306; ibid. (1870), 21; Acts (1827), 132, 134; Acts (1855), 376, 377.

[296] Rev. Stat. and Codes of Porto Rico (1902), 860.

[297] Rev. Stat. of Fla. (1892), 820.

[298] Act of March 18: Acts of the Assembly (1847-48), 165, 166.

[299] Code of Va. (1887), 561.

[300] Code of W. Va. (1900), 662; Acts (1882), chap. 60.

[301] Act of Oct. 20, 1891: Acts (1890-91), 235.

[302] Ky. Stat. (1894), 769, 770; Digest of Ark. (1894), 681. Cf. Wright, Report, 80.

[303] Code of Ala. (1887), 525; ibid. (1897), 493.

[304] Act of June 15, 1822: Code of Miss. (1848), 495.

[305] Rev. Code (1857), 335.

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

[307] Ann. Code of Miss. (1892), 421.

[308] Rev. Stat. of Fla. (1892), 504. But by the act of May 19, 1899, "when the defendant has been guilty of adultery in this state," then any citizen of the state, being the aggrieved, may get a divorce at any time, the two years' previous residence not being required: Acts and Res. (1899), 117. Cf. Comp. Stat. of D. C. (1894), 276, requiring two years; superseded by the act of 1901: Moore, Code (1902), 200.

[309] Code of Tenn. (1884), 612; Shannon, Code (1896), 1044 n. 2. Earlier the condition was citizenship and residence for one year: Act of Oct. 26, 1799: Scott, Laws (1821), I, 647; same in 1835, except the petitioner may have been absent on business or for health: Caruthers and Nicholson, Compilation (1836), 260; also see 5 Yerg., 203. A male citizen bringing suit for divorce must give bond and security for costs: Acts (1891), chap. 221, p. 433. On divorce in a foreign state see 3 Lea, 260.

[310] Code of Md. (1888), I, 144; cf. Laws (1841-42), chap. 262; Laws (1843), chap. 287; Laws (1886), chap. 10.

[311] Laws (1814), chap. 5; Haywood, Manual (1819), 177; Laws (1821), II, 1294, 1295.

[312] Code of N. C. (1883), I, 575. See Wright, Report, 83; Pub. Laws (1903), 846.

[313] The plaintiff must also be a bona fide resident of the state: Rev. Civil Stat. of Tex. (1888), I, 886; Ann. Civil Stat. (1897), I, 1097.

[314] By act of Congress, May 25, 1896: Stat. at Large, XXIX, 136, not less than one year's previous residence in any of the territories is required to entitle the plaintiff to bring suit for divorce. See Rev. Stat. of Ariz. (1901), 813; Acts of N. M. (1901), 117; Wilson, Stat. of Okla. (1903), II, 1119.

[315] Rev. Stat. of Mo. (1889), I, 1030; ibid. (1899), I, 742, 743. This provision for residence appears in the statutes from 1835 onward: Rev. Stat. (1835), 225; ibid. (1845), 427; ibid. (1879), 361; and the period is one year by the act of May 13, 1807; Laws of Pub. and Gen. Nature (1842), I, 92.

[316] Digest of Ark. (1894), 681; Ann. Stat. of Ind. Ter. (1899), 325. The statute does not contemplate "constructive" residence; and applies to limited as well as absolute divorce: see Wood v. Wood, 54 Ark., 172; 15 S. W., 459.

[317] Rev. Stat. and Codes of Porto Rico (1902), 814.

[318] Rev. Civil Code of La. (1888), 69; ibid. (1870), 19.

[319] Code of N. C. (1883), I, 81, 82; Wright, Report, 88.

[320] Code of Tenn. (1884), 613; Wright, Report, 88.

[321] Comp. Laws (1897), 408.

[322] Compare Rev. Stat. of Fla. (1892), 505; Wright, Report, 87.

[323] Code of Va. (1887), 561; Code of W. Va. (1900), 662; Code of Md. (1888), 142; Ann. Code of Miss. (1892), 421; Code of Ga. (1882), 395; ibid. (1896), II, 227; Digest of Ark. (1894), 681; Ann. Stat. of Ind. Ter. (1899), 325. See Wright, Report, 85-89.

By the Alabama Act of Dec. 14, 1898, in case of a decree pro confesso taken in the chancery court, the evidence having been taken and the cause being ready for decree, and no defense being interposed, if the complainant or his solicitor shall file a written request to the register or the clerk of the court to deliver the papers in the suit to the chancellor or judge, at the same time submitting his note of testimony in the case, then the chancellor shall render a decree in term time or in vacation: Gen. Laws of Ala. (1898-99), 118.

[324] Rev. Stat. of Mo. (1899), I, 742; Rev. Stat. of Ariz. (1887), 373 ff.; ibid. (1901), 439; Rev. Civil Stat. of Tex. (1888), I, 885 ff.; Stat. of Okla. (1893), 875; Wilson, Stat. of Okla. (1903), II, 1120; Moore, Code of D. C. (1901), 21.

[325] For example, by Code of Va. (1887), 620; Code of W. Va. (1891), 666; ibid. (1900), 713; Code of N. C. (1883), I, 518; Code of Ga. (1896), II, 230; Rev. Stat. of Fla. (1892), 505; Rev. Stat. of Ariz. (1901), 814; Rev. Civil Stat. of Tex. (1888), I, 887; Ann. Civil Stat. of Tex. (1897), I, 1099; Comp. Stat. of D. C. (1894), 276, 277.

[326] Code of Ga. (1882), 396; Rev. Civil Stat. of Tex. (1888), I, 886; Ann. Civil Stat. of Tex. (1897), I, 1097; Code of N. C. (1883), I, 516.

[327] Ky. Stat. (1894), 767.

[328] Digest of Ark. (1894), 683; Ann. Stat. of Ind. Ter. (1899), 327; Stat. of Ky. (1894), 772; Rev. Stat. of Mo. (1899), I, 740; Stat. of Okla. (1893), 876; Wilson, Stat. of Okla. (1903), II, 1121; Comp. Stat. of D. C. (1894), 277; Moore, Code of D. C. (1902), 200.

[329] Moore, Code of D. C. (1902), 201.

[330] Rev. Civil Code of La. (1888), 69.

[331] Laws of Tex. (1897), 49; Code of N. C. (1883), I, 516; Stat. of Okla. (1893), 877, 878; Wilson, Stat. of Okla. (1903), II, 1123: Acts and Res. of Fla. (1885), 24.

[332] As by Kentucky Stat. (1894), 770, 771; Digest of Ark. (1894), 683; Ann. Stat. of Ind. Ter. (1899), 327; Code of Va. (1887), 562, 563; Code of W. Va. (1891), 614; ibid. (1900), 663.

[333] Code of Va. (1887), 562; cf. Code of W. Va. (1900), 662.

[334] Code of N. C. (1883), I, 517.

[335] Digest of Ark. (1894), 681; Ann. Stat. of Ind. Ter. (1899), 326.

[336] Rev. Civil Stat. of La. (1888), 70-72; ibid. (1870), 19-21; ibid. (1897), 306.

[337] Code of Ga. (1896), II, 236; Rev. Stat. of Fla. (1892), 505; Stat. of Okla. (1893), 877; Wilson, Stat. of Okla. (1903), II, 1123; Code of Va. (1887), 562. Cf., for Virginia, 4 H. and M., 507; 4 Rand., 662: 1 Rob., 608; 1 Minor's Inst., 282.

[338] Laws of N. C. (1814), chap. 5; Haywood, Manual (1819), 174 ff. It may be noted that the act of 1814 lays on the party "cast" in each divorce suit a tax of ten pounds payable to the state: ibid., 177.

[339] Acts (1816), chap. 33: also in Haywood, Manual, 177, 178.

[340] Acts (1828-29), 25.

[341] Code of N. C. (1883), I, 696, 700; and Laws (1893), chap. 153, pp. 114-16, amending Laws (1871-72), chap. 193, sec. 44. By the law of the District of Columbia, "in case of adultery of the wife, committed after ... divorce from bed and board, the court may, on petition of the husband ... deprive the wife of alimony from the date of her said criminal act, and rescind her right of dower, as well as dispossess her ... of the care, custody, and guardianship" of any child awarded to her by the original judgment: Comp. Stat. (1894), 277. Cf. Moore, Code, 201.

[342] Rev. Civil Stat. (1889), I, 1036. Cf. 61 Mo., 148; and 57 Mo., 200; 3 M. A., 321.

[343] Code of Tenn. (1884), 616, 617. "If the wife, at the time of a decree dissolving the marriage, be the owner of any lands, or have in her possession goods or chattels or choses in action acquired by her own industry or given to her by devise or otherwise, or which may have come to her, or to which she may be entitled by the decease of any relative intestate, she shall have entire and exclusive dominion and control thereof, and may sue for and recover the same in her own name subject, however, to the rights of creditors who became such before the decree was pronounced." When "a marriage is dissolved at the suit of the husband, and the defendant is owner, in her own right, of lands, his right to and interest therein and to the rents and profits of the same, shall not be taken away or impaired by the dissolution."—Ibid., 616, 617. Cf. Shannon, Code (1896), 1050.

[344] Code of Ga. (1896), II, 237; and 43 Ga., 295. But in case of bona-fide separation without divorce alimony may be granted: Code (1882), 401: ibid. (1896), II, 235.

[345] Rev. Civil Code (1888), 72, 73; ibid. (1870), 20.

In general, on all these provisions, see also Code of Md. (1888), I, 143, 144; Rev. Civil Stat. of Mo. (1899), I, 742, 743; Code of Ga. (1896), II, 230 ff.; Ann. Code of Miss. (1892), 420; Digest of Ark. (1894), 681 ff.; Ann. Stat. of Ind. Ter. (1899), 325-27; Stat. of Okla. (1893), 875 ff.; Wilson, Stat. of Okla. (1903), II, 1119-28; Kentucky Stat. (1903), 846-51; Rev. Stat. of Ariz. (1887), 374, 375; ibid. (1901), 814, 815; Rev. Stat. of Fla. (1892), 505, 506; Rev. Civil Stat. of Tex. (1888), I, 886-88.

[346] In this section are analyzed the statutes of the following twenty-six states, districts, and territories: Alaska, California, Colorado, Delaware, Hawaii, Idaho, Illinois, Indiana, Iowa, Kansas, Michigan, Minnesota, Montana, Nebraska, Nevada, New Jersey, New York, North Dakota, Ohio, Oregon, Pennsylvania, South Dakota, Utah, Washington, Wisconsin, and Wyoming.

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

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

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

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

[351] Laws of a Local Nature (1838), 406.

[352] Laws of a Local Nature (1842), 117.

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

[354] Laws of Minn. (1849), 89.

[355] Ibid.

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

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

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

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

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

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

[362] For examples see Spec. Laws (1857), 12; ibid. (1857-58), 107, 108, 110, 111, 112 (twelve cases); ibid. (1858-59), 92-107 (thirty-one cases).

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

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

[365] Thompson, Laws of the Commonwealth of Pa. (1804-6), VII, 73-75.

[366] Thompson, op. cit., 326-28.

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

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

[369] Ibid. (1874), 150; ibid. (1893), 242.

[370] Laws (1887), 528-40; ibid. (1889), 1046-64; ibid. (1895), 300-308.

[371] Laws (1893), 617.

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

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

[374] Act of April 13, 1813: Van Ness and Woodworth, Laws of N. Y. (1813), II, 197-201.

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

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

[377] So required by Laws (1902), II, chap. 364; Stover, Code of Civil Proced. (1902), II, sec. 1774, p. 1863.

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

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

[379] Stover, Code of Civil Proced. (1902), II, 1846.

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

[381] Act of Dec. 2, 1794: Paterson, Laws of N. J. (1800), 143, 144.

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

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

[384] Act of March 20: Acts (1857), 399. The law of 1846 is retained in Elmer, Digest (2d ed. by Nixon, Philadelphia, 1855), 205-8.

[385] Act of March 5: Pub. Laws (1890), 34; Gen. Stat. (1896), II, 1274.

[386] A marriage within the forbidden degrees is not void but voidable, and until so pronounced must be treated as valid: Boylan v. Deinzer, 18 Stewart, N. J. Equity Reports, 485.

[387] Impotence as a ground of divorce appears in Rev. Stat. (1874), 255. Cf. also Gen. Stat. (1896), II, 1267. Before this enactment a marriage could not be annulled for impotence: Anonymous, 9 C. E. Green, N. J. Equity Reports, 19.

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

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

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

[391] Laws of the Com., VII, 375.

[392] Act of March 13, 1815: in Laws of Com. (1822), VI, 286; and Pepper and Lewis, Digest (1896), I, 1633.

[393] Laws of the Com. (1822), VI, 288; Pepper and Lewis, Digest, I, 1634. But when marriages within such degrees "shall not have been dissolved during the lifetime of the parties, the unlawfulness of the same shall not be enquired into after the death of either husband or wife."

[394] By the act of April 13, 1843: Laws (1843), 233; Pepper and Lewis, Digest, I, 1636, "where the wife is lunatic or non compos mentis" a petition for divorce may be "exhibited by any relative or next friend" who shall make the affidavit provided for in other cases of divorce.

[395] Act of May 8: Laws (1854), 644; Pepper and Lewis, Digest (1896), I, 1635. When divorce is granted the husband for the tenth cause, the wife may be allowed alimony according to his circumstances.

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

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

[397] Pepper and Lewis, Digest (1896), I, 1687. Cf. the act of March 13, 1815: Laws of the Com. (1822), VI, 286; and Laws (1817), 405.

[398] Laws (1862), 430; Pepper and Lewis, Digest, I, 1637, 1638.

[399] Act of June 20: Laws (1893), 471; Pepper and Lewis, Digest, I, 1638, 1639.

[400] Act of 1815: Laws of the Commonwealth (1822), VI, 288; Pepper and Lewis, Digest (1896), I, 1634.

"While a well-founded belief in the death of her first husband will relieve a woman marrying a second time from the pains of adultery, it cannot validate her second marriage, if, in fact, her first husband was living when it was solemnized."—Thomas v. Thomas, 124 Pa., 646; s. c., 23 W. N. C., 410 (1889). Cf. Pepper and Lewis, Digest, I, 1634, ed. note.

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

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

[403] Rev. Stat. (1893), 596.

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

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

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

[406] Chase, Stat., I, 192, 193 (act of July 15, 1795).

[407] Ibid., 493, 494.

[408] Act of Jan. 11, 1822: Chase, Stat., II, 1210, 1211.

[409] Act of Jan. 7, 1824: Chase, Stat., II, 1408, 1409.

[410] Act of Feb. 22, 1833: Chase, Stat., III, 1934.

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

[412] For the present law of Ohio see Bates, Ann. Rev. Stat. (1897), II, 2804-10. Cf. Wright, Report, 106. Jurisdiction is still vested in the courts of common pleas, although in certain counties the probate courts have cognizance: Bates, op. cit., II, 2804.

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

[414] Rev. Laws (1824), 156, 157; same in ibid. (1831), 213-15.

[415] Act of Jan. 17, 1831: Rev. Laws (1831), 213.

[416] Laws of a Gen. Nature (1836), 69.

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

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

[419] Rev. Stat. (1843), 598 ff.

[420] Act of June 1: Gen. Laws (1849), 62, 63.

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

[422] Laws of Ind. (1859), 108.

[423] For construction of the omnibus clause, see Ritter v. Ritter, 5 Blackf., 81.

[424] Act of March 10: Laws of Ind. (1873), 107-12; also Horner, Rev. Stat. (1896), I, secs. 1024-49; II, sec. 5132; Burns, Ann. Stat. (1901), I, 443, 444; III, 559.

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

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

[427] Rev. Code (1827), 180, 181.

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

[429] Rev. Stat. (1845), 196; also in Purple, Comp. (1856), I, 493, 494; and in Stat. of Ill. (1864), 150, 152.

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

[431] Hurd, Rev. Stat. (1898), 631-34. Cf. Rev. Stat. (1845), 196, 197; and Starr and Curtis, Ann. Stat. (1896), II, 1435-55.

[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.

[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.

[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."

[440] Except a part of Minnesota.

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

[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.

[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.

[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.

[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.

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

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

[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).

[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.

[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.

[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.

[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.

[469] Act in force Jan. 1, 1870: Laws (1869), 274; Van Orsdel and Chatterton, Rev. Stat. (1899), 794.

[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.

[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.

[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.

[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.

[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.

[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.

[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.

[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.

[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.

[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.

[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.

[507] U. S. Stat. at Large, XXXI, 408-10; Laws of Alaska (1900), 243-46.

[508] Civil Laws of the Hawaiian Islands (1897), 715-21.

[509] Rev. Stat. (1889), IV, 2599; Stover, Code of Civil Proced. (1902), II, 1843. Cf. 5 Barbour, Chancery Reports, 117; 11 N. Y., 228; 34 N. Y., 643; 42 N. Y., 546; 2 Hun, N. Y. Supreme Court Reports, 241; 92 N. Y., 146.

[510] Van Voorhis v. Brintnall, 86 N. Y., 18; reversing s.c. 23 Hun, N. Y. Supreme Court Reports, 260; as summarized in Brightly, Digest of the Decis. of all the Courts of N. Y., II, 2531, 2532, where the later cases are cited. Cf. especially Thorp v. Thorp (1882), 90 N. Y., 602; and Moore v. Hegeman (1883), 92 N. Y., 521.

[511] H. J. Whitmore, "Statutory Restraints on the Marriage of Divorced Persons," Central Law Journal, LVII, 447; Smith v. Woodworth, 44 Barbour, Chancery Reports, 198.

[512] Bullock v. Bullock, 122 Mass. Reports, 3; Clark v. Clark, 8 Cushing, Mass. Reports, 385; Succession of Hernandez, 46 La. Ann., 962; 15 So. Rep., 461.

[513] The law provides that the penalties for "polygamy" shall not extend to persons marrying after having been lawfully divorced from the bonds of matrimony: Gen. Stat. of N. J., I, 1057. Cf. ibid., II, 1267 ff.

[514] Cf. the act of 1785: Carey and Bioren, Laws of the Com., III, 105; Pepper and Lewis, Digest, I, 1646, 1647.

[515] Cf. the act of February 3, 1832: Laws, 150, with Rev. Stat. of Del. (1893), 598.

[516] Rev. Laws of Ind. (1831), 214; Rev. Stat. (1838), 243; ibid. (1843), 606; ibid. (1852), II, 237; ibid. (1896), I, sec. 1048; Burns, Ann. Stat. (1901), I, 1059.

[517] Laws of Ind. (1873), 108, 109; Rev. Stat. (1896), I, sec. 1030. This section applies only to parties "constructively" summoned: Sullivan v. Learned, 49 Ind., 252. The general policy of the law is against disturbing divorces granted: McJunkin v. McJunkin, 3 Ind., 30; McQuigg v. McQuigg, 13 Ind., 294.

[518] Act of Jan. 26, 1818: Laws of Ind. (1818), 228.

[519] Rev. Laws of Ind. (1824), 157.

[520] Act of Jan. 17: Laws of Ill. (1825), 169.

[521] The act of June 1, 1827: Rev. Code (1827), 181, allows the injured person to obtain a dissolution of the marriage contract; but neither this nor any subsequent statute seems expressly to forbid the defendant to remarry.

[522] Hurd, Rev. Stat. (1899), 565.

[523] Ter. Laws of Mich., I, 496; see also act of April 12, 1827: ibid., II, 363-66. An act of this last date (ibid., II, 543), for the punishment of crime, exempts persons marrying again after divorce from the pains of bigamy, provided they may do so by the terms of the decree or by those of the law where the divorce was granted. The act of June 28, 1832 (ibid., III, 931, 932), is silent as to remarriage.

[524] Howell, Gen. Stat. (1890), III, 3605; Miller, Comp. Laws (1899), III, 2666.

[525] By the act of Jan. 24, 1855, the guilty party is prohibited from remarrying: Laws of Ia. (1854-55), 112. The restriction was dropped in 1858: Laws (1858), 97, 98, 236: Ann. Code (1897), 1135-47.

[526] Stat. of Kan. (1855), 312.

[527] Gen. Laws of Kan. (1859), 385. This and the later acts to 1881 are silent as to remarriage.

[528] Laws of Kan. (1889), 145; same in Comp. Laws of Kan. (1897), II, 276: "Every decree of divorce shall recite the day and date when judgment was rendered in the cause, and that the decree does not become absolute and take effect until the expiration of six months from said time." Cf. the act of March 5: Laws of Kan. (1881), 229-31, where the six-months' prohibition first appears.

[529] The Nebraska law is peculiar in that, in addition to the general prohibition of marriage in six months, it especially forbids the defendant in error or appellee to marry again during the pendency of proceedings in error or on appeal under the penalties prescribed for bigamy: Laws of Neb. (1885), chap. 49, pp. 248, 249; Comp. Stat. of Neb. (1901), 582. See Codes and Stat. of Ore. (1902), I, 280, 296; Codes and Gen. Laws (1892), I, 458; being the same as act of Oct. 11, 1862: Organic and Other Gen. Laws of Ore., 1843-72, 211, 218; Ann. Codes and Stat. of Wash. (1897), II, 1599; Laws (1893), 225.

[530] Laws of N. D. (1901), 81, 82; Laws of Idaho (1908), 10, 11.

[531] Laws of Col. (1893), 240, 241; Mills, Ann. Stat. (1897), III, 441, 442.

[532] "But upon application of such divorced person, any court of record or presiding judge thereof, who granted the divorce, ... may authorize" marriage within the year: Acts of Wis. (1901), 369.

[533] Complete Codes and Stat. of Mont. (1895), 480.

[534] Stat. of S. D. (1899), II, 1025, 1028; Rev. Codes (1903), 602. This principle was adopted by the territorial assembly: Levissee, Ann. Codes (1884), II, 750. Except for a brief term in 1866, the earlier territorial laws allow entire freedom of remarriage: see act of Jan. 12, 1866: Laws, Memorials, and Resolutions (1865-66), 14, forbidding the guilty adulterer to remarry during the lifetime of the innocent spouse; but in the next year this was replaced by a new law allowing full liberty: Act of Jan. 10, 1867: Gen. Laws, Memorials, and Resolutions (1866-67), 45-52.

[535] U. S. Stat. at Large, XXXI, 408-10, 415.

[536] "Sec. 61. A subsequent marriage contracted by any person during the life of a former husband or wife ... , with any person other than such former husband or wife, is illegal and void from the beginning unless:

"1. the former marriage has been annulled or dissolved; provided, that in case it be dissolved, the decree of divorce must have been rendered and made at least one year prior to such subsequent marriage."—Act of Feb. 25: Stat. and Amend. to the Codes (1897), 34.

"Sec. 91. The effect of a judgment decreeing a divorce is to restore the parties to the state of unmarried persons."—Act of March 30, 1874: Amendments to the Codes (1873-74), 189; also in Deering, Codes and Stat. of Cal. (1886), II, 31; Pomeroy, Civil Code (1901), 44.

[537] In Abbie Rose Wood v. Estate of Joseph M. Wood, filed in the superior court of San Francisco, June 14, 1900, Judge Belcher decided that the marriage on Jan. 1, 1898, in Reno, Nev., of a person divorced in California, Aug. 19, 1897, the former husband still living, was not valid. He relies upon the words of nullity in the amendment of 1897; and the fact that the person went to another state solely for the purpose of getting married while still retaining her domicile in California. "Section 61, Civil Code, contains no penal clause, as stated; but it does contain words of nullity, and words which suspend, as to third persons, the operation of the decree ... ; and these cannot be avoided by merely invoking another jurisdiction for that purpose. The two sections (61 and 91, C. C.) are to be read together, and, so read, their interpretation and meaning are free from either uncertainty or ambiguity. The law of the domicile is invoked, and the law of the domicile controls. No other jurisdiction can relieve against it."—See San Fran. Law Journal (July 2, 1900), 1.

In a case decided on Dec. 10, 1900, Judge Trout, of the superior court of San Francisco, takes the same position as Judge Belcher.

On the other hand, on Dec. 4, 1900, Judge Hebbard, of the same court, in Adler v. Adler, maintains the validity of a similar Reno marriage. He holds that the California law "is in restraint of marriage," since it fixes an arbitrary prohibitory period. "We may imagine the reason which induced the passage of the section, by an examination of the law of the State of Oregon upon the same subject. In that state there is no fixed prohibitory period, but the law is to the effect that, pending an appeal from a decree of divorce, if one be taken, and, if not, during the time in which it may be taken, the parties shall be incapable of contracting marriage with a third person. In California an appeal from a final judgment must be taken in six months; an appeal from an order granting or refusing a new trial in sixty days. The great majority of divorce cases go to judgment upon the default of the defendants, and in such cases there can be no appeal upon the merits of the cause. When no appeal can be taken, or when the time for appeal has gone by and none taken, why compel the parties in the case to abstain from matrimony for the remainder of the year thereafter? The proportion of divorce decrees appealed from is infinitely small, and therefore the prohibition in section 61 discriminates against the many, for the protection of the few; it is an arbitrary law." He relies upon Pearson v. Pearson, 51 Cal., 120 (1875), construing sec. 63 of the Civil Code to the effect that "all marriages contracted without this state, which would be valid by the laws of the country in which the same were contracted, are valid in this state."—San Fran. Law Journal (July 16, 1900), 1.

[538] See the Estate of Wood, 137 Cal. (1902), 129 ff., where Reno marriages are held valid, three justices dissenting.

[539] In Willey v. Willey, 22 Wash. (Jan. 27, 1900), 115-21. The courts of Oregon have taken the opposite view, holding such marriages of residents of Oregon contracted in another state absolutely void under the statute: McLennan v. McLennan, 31 Ore. (1897), 480.

[540] Acts of March 2 and 16, 1903, Stat. and Amend. to the Codes, chaps. lxvii, clviii.

[541] It has already been so declared by Judge Rhodes in the superior court of Santa Clara county.

[542] Compare Moore v. Moore, 8 Abb., N. C., 171-73; Colvin v. Colvin, 2 Paige, 385-87, denying the right of remarriage in such cases; with Moore v. Hegeman, 92 N. Y., 521-29, where the question is left undecided.

[543] Stover, Code of Civil Proced. (1892), II, 1640.

[544] Rev. Stat. of Del. (1893), 598; being the act of 1891: Laws, XIX, chap. 243, p. 480.

[545] Rev. Stat. of Del. (1893), 598. "In all other cases a divorce decreed in any other state or country" is valid: ibid., 598.

[546] Gen. Stat. of N. J. (1896), II, 1273; being act of March 7, 1889: Pub. Laws, 48. This law has existed in nearly the same form since 1820: see act of Feb. 16, 1820: Laws of the State (1821), 667.

[547] Gen. Stat. of N. J. (1896), II, 1273; being act of May 11, 1886: Pub. Laws, 345.

[548] Rev. Laws of Ind. (1831), 213.

[549] Ibid. (1838), 243.

[550] Gen. Laws (1849), 62.

[551] Rev. Stat. (1852), 234: of "which bona fide residence the affidavit of the petitioner shall be prima facie evidence."

[552] Laws of the State (1859), 108.

[553] Act of March 10: Laws (1873), 109; same in Rev. Stat. (1896), I, sec. 1031.

[554] Ter. Laws of Mich., I, 495.

[555] Ter. Laws of Mich., III, 931.

[556] Rev. Stat. (1838), 337; Acts (1844), 74.

[557] Pub. Acts (1899), 326, 327. When the order for appearance is served outside the state, the law requires that the fact of service be proved by affidavit before a justice or notary whose legal character and signature must be attested by the certificate of a court of record. See the earlier act of 1895: Pub. Acts (1895), 371; and cf. Howell, Gen. Stat., II, 1624; Miller, Comp. Laws (1899), III, 2657.

[558] Cf. the act of June 20: Laws of Pa. (1893), 471; also in Pepper and Lewis, Digest (1896), I, 1638, 1639; and the act of Sept. 19, 1785: Laws of the Com. of Pa. (1803), III, 105.

[559] Bates, Ann. Stat. of Ohio (1897), II, 2805. The law of 1827 requires two years' residence on the part of the plaintiff: Chase, Stat., III, 1581.

[560] Cf. act of June 1, 1827: Rev. Code of Ill. (1827), 182; Hurd, Rev. Stat. of Ill. (1898), 632: being the same as ibid. (1845), 196.

[561] Cf. Rev. Stat. of Minn. (1851), 274; Gen. Stat. (1894), I, 1268, 1269.

[562] The development of the Wisconsin law of residence may be traced in Stat. of the Ter. (1838-39), 140; Rev. Stat. (1849), 395; ibid. (1858), 623-28 (in which the clause referring to the wife as plaintiff first appears); Ann. Stat. (1889), I, 1368.

[563] The petition for divorce "must state that the plaintiff has been for the last year a resident of the state, specifying the township and county in which he or she has resided, and the length of such residence therein after deducting all absences from the state; that it has been in good faith and not for the purpose of obtaining a divorce only"; and "in all cases it must be alleged that the application is made in good faith and for the purpose set forth in the petition."—Ann. Code of Ia. (1897), 1137; same in Code (1873), 339. See also act of Dec. 29, 1838: Laws (1838-39), 179, 180, first fixing the period of one year's previous residence.

[564] "Provided, further, that such suit shall only be brought in the county in which such plaintiff or defendant resides, or where such defendant last resided."—Mills, Ann. Stat. of Col. (1897), III, 437, 438; being the act of 1893: Laws, 239. Cf. the original act in Laws of Col. (1861-62), 360, 361, fixing the one-year term.

[565] Laws of Kan. (1897), II, 273; being same as Gen. Stat. (1868), 757. Cf. original act of 1855: Stat. (1855), 311. In 1859 the term of residence was reduced to six months, but the one-year period was restored the next year: Laws of Kan. (1859), 385; ibid. (1860), 108. Now the petitioner must be a resident of the county of the action.

[566] See the preceding subsection.

[567] Comp. Codes and Stat. of Mont. (1895), 482. See Acts (1864-65), 430.

[568] Ann. Codes and Stat. of Wash. (1897), II. 1596; Stat. (1854), 405-7. The term was reduced to three months in 1864, but restored to one year in 1866: Stat. (1864), 13; Stat. (1865-66), 89, 90.

[569] When the marriage was solemnized in the state, it is sufficient if the plaintiff be an inhabitant thereof at the commencement of the suit. If not solemnized in the state, both parties must be inhabitants at the commencement of the suit, and the plaintiff for one year before (act of 1862). The plaintiff must be an inhabitant of the state at the commencement of the suit and for one year before; "which residence shall be sufficient to give the court jurisdiction, without regard to the place where the marriage was solemnized, or the cause of suit arose" (act of 1865): Codes and Gen. Laws (1902), I, 277. By the act of 1853, in force till 1862, the term of residence was fixed at six months: Gen. Laws. (1852-53), 49-51.

[570] Stat. and Amend. to Codes of Cal. (1891), 52. The plaintiff must be a resident of the state one year and of the county three months. Between 1851 and 1891 the term was six months: Act of March 25: Stat. of Cal. (1851), 186, 187.

[571] Acts (1899, Feb. 3), 94: The plaintiff must have been a resident of the state in good faith for twelve months, and be a citizen of the United States or have declared his intention to become such citizen. By the earlier law, as at the close of the territorial period, the term of residence was ninety days: Rev. Codes of N. D. (1895), 614.

[572] Laws of Wyo. (1901), 4.

[573] U. S. Stat. at Large, XXXIII, 944. The period is two years in Hawaii: ibid., XXXI, 150.

[574] Comp. Stat. of Neb. (1901), 577; Laws (1856), 155.

[575] Rev. Stat. of Idaho (1887), 305; Laws (1867), 69. The law of residence took its present form in 1867: but the provision of 1864, Laws (1863-64), 615, 616, is identical with that of Nevada quoted in the text.

[576] Comp. Laws of Nev. (1900), 115. Cf. Laws (1861), 96, 97; and Laws (1875), 63.

[577] Stat. of S. D. (1899), II, 1029; Rev. Codes (1903), 602. The territorial law of 1883: Levissee, Ann. Codes of Ter. of Dak. (1884), 751, requires a residence of ninety days.

[578] In California and Montana summons and publication in divorce suits are given under the general provisions for civil actions: Pomeroy, Codes and Stat.: Civil Proced. (1901), secs. 410 ff.; Codes and Stat. of Mont. (1895), 782, 796, 797. This is, of course, not inconsistent with Sharon v. Sharon (1885), 67 Cal., 185, ruling that an action for divorce is a case in equity under the clause in the constitution conferring appellate jurisdiction on the supreme court.

[579] The statute of Wisconsin requires the proceedings to be as in "courts of record" so far as practicable: Ann. Stat. (1889), I, 1362.

[580] In New York, for instance, the order for publication must direct that the summons be published "in two newspapers, designated in the order as most likely to give notice to the defendant, for a specified time, which the judge deems reasonable, not less than once a week for six successive weeks;" and unless the judge is satisfied from affidavits presented that the defendant's residence is unknown, it must also require that copies of the summons, complaint, and order be mailed to him at a specified place: Birdseye, Rev. Stat. (1896), I, 18. The laws of Ohio and Kansas are similar: Bates, Ann. Rev. Stat. of Ohio (1897), II, 2805; Laws of Kan. (1897), II, 273. By the statute of Pennsylvania, if the adverse party is not found, the court may issue an alias subpoena, and trial may be set for a later term. If a second time personal service cannot be had, notice must be "published in one or more newspapers printed within or nearest to the said county for four weeks successively" prior to the first day of the next term: Pepper and Lewis, Digest (1896), I, 1642. Colorado has a careful provision. See also Civil Laws of the Hawaiian Islands (1897), 716-18; and the new law of New Jersey: Acts (1903), 122, 123.

[581] By Laws (1899), 1471, 1472, on application of either party, when the assigned cause is adultery, a jury must be called; and in other cases it may be empaneled.

[582] Mills, Ann. Stat. of Col. (1897), III, 438; Ann. Codes and Stat. of Wash. (1897), II, 1600.

[583] Rev. Stat. of Ind. (1896), I, sec. 1038. An emergency act of 1901 makes provision for counties of 100,000 inhabitants; that is, for Marion county, containing Indianapolis. Where no bona fide counsel for the defendant is entered in the appearance docket, the prosecuting attorney is to enter his name therein, and to resist the petition on behalf of the state. Any attorney, other than the prosecuting attorney, appearing for the defendant, if so ordered by the court, must file a written authority executed by the defendant: Laws (1901), chap. 151, pp. 336, 337. In substance this requirement as regards the prosecuting attorney is made general for the state by an act of 1903: Laws, 393, 394.

[584] Mills, Ann. Stat., III, 438; Laws (1893), 238, 239.

[585] Codes and Gen. Stat. (1892), I, 664 (act of Oct. 11, 1862); Codes and Stat. (1902), I, 456.

[586] Ann. Codes and Stat. (1897), II, 1600.

[587] This is the duty of the district attorney in Idaho, and of the county attorney in Utah, when the ground of the petition is the alleged insanity of the defendant: Gen. Laws of Id. (1895), 12; Laws of Utah (1903), 39, 40; and of the prosecuting attorney in Michigan, when there are children under fourteen years of age whose interests require his intervention: Howell, Gen. Stat., III, 3605; Miller, Comp. Laws (1899), III, 2665.

[588] Cal. Stat. and Amend. to the Codes (1891), 279; ibid. (1893), 48; ibid. (1900-1901), 444; Rev. Stat. of Ill. (1898), 633, 634; Rev. Stat. of Ind. (1896), I, sec. 2129; Bates, Ann. Rev. Stat. of Ohio (1897), II, 3218; Ann. Codes and Stat. of Wash. (1897), II, 1987, 1988; Gen. Laws of Minn. (1901), 286. By Laws of N. Y. (1902), I, 536, this offense is made a misdemeanor. Cf. Laws of Montana (1903), 146.

[589] Rev. Stat. (1896), I, 1049.

[590] Act of Feb. 11, 1897: Pub. Acts of Mich., 12; ibid. (1899), 69.

[591] See chap, viii, sec. i; and consult Glasson, Le mar. civil et le divorce, 210 ff., 232-51.

[592] On the revolutionary legislation regarding marriage and divorce (1792-1816) see Naquet, Le divorce (Paris, 1877), 37-56, 153-353, containing extracts from the debates, text of the laws, reports, and other documents; Archives parlementaires, XXVI, 166-86, giving the report on the proposed civil marriage law; Wright, Report, 1004-6, presenting summaries of the laws; Champion, "La revolution et la réforme de l'état civil," La révolution française, June 14, 1887; Colfavru, "La question du divorce devant les législateurs de la révolution," ibid., March 14, 1884; Koenigswarter, Histoire de l'organisation de la famille en France, 268 ff.; Glasson, Le mar. civil et le divorce, 252-75; Legrand, Le mariage et les mœurs en France, 196-99; Durrieux, Du divorce, 99 ff.; Féval, Pas de divorce, 74 ff.; Fiaux, La femme, le mariage, et le divorce, 25 ff.; Vraye and Gode, Le divorce et la séparation du corps, I, 7-26; Bertillon, Étude démographique du divorce, 89 ff.; and in general Lasaulx, Uebereinstimmung der französischen Ehetrennungsgesetze mit Gotteswort (Koblenz and Hadamar, 1816).

A powerful influence on revolutionary opinion must have been exerted by the remarkable Contrat conjugal, published in 1781, again in 1783, and in German translation in 1784, which advocated civil marriage and free divorce, while attacking the ecclesiastical system of impediments and dispensations. The revolutionary ideas regarding divorce are also vigorously presented by Hennet, Du divorce (3d ed., Paris, 1792); and by Bouchotte, Observations sur le divorce (Paris, 1790). On the other hand, the divorce law of 1792 is criticised and divorce opposed by Madame Necker, Réflexions sur le divorce (Paris, 1792; Lausanne, 1794); as in Du divorce (Paris, 1801), 1 ff., by Bonald, who opposed the law of 1803 and secured its repeal in 1816. See Père Daniel's Le mariage chrétien et le Code Napoléon (Paris, 1870); and for an examination of the literature of the period, Tissot, Le mariage, la séparation, et le divorce, 174 ff., 180 ff., 196 ff., 211 ff., 222 ff.

[593] In Paris alone during the first twenty-seven months after the passage of the act 5,994 divorces were granted; while in 1797 the divorce decrees in that city actually outnumbered the marriages: Glasson, Le mar. civil et le divorce, 261, 262. Accordingly, in 1798, the law was amended so as to make divorce for "incompatibility allowable only six months after final failure of attempts at reconciliation;" and this law also required all municipal authorities to proceed, and all teachers of public and private schools to take their pupils, "to the usual meeting places of the community every ten years in person and in state, there to make stern proclamation of the parties divorced during the previous decade, with the view of thus checking divorces."—Wright, Report, 1005; Naquet, Le divorce, 212-37, giving documents; Brun, "Divorce Made Easy," North Am. Rev., CLVII (July, 1893), 12, 13; citing Duval, Souvenirs thermidoriens, I, 60, 61. See also the Rapport (27 thermidor, an. V) of Portalis, who was the chief advocate of the amendment. In 1800, it is alleged, there were about 4,000 marriages and 700 divorces in Paris. To what extent the relative decrease was due to the change in the law can only be conjectured.

[594] On this doctrine, with the leading cases, see Kent, Commentaries (14th ed., Boston, 1896), II, secs. 87 ff., pp. 119 ff.; Reeve, The Law of Husband and Wife ("Domestic Relations"), 250-58; Greenleaf, Law of Evidence (16th ed., Boston, 1899), II, secs. 460-64, pp. 441-47; and especially Bishop, Mar., Div., and Sep., I, secs. 409 ff., pp. 176 ff.

[595] See chaps. xii-xv, inclusive.

[596] Cook, "The Marriage Celebration in the United States," Atlantic, LXI, 521. "But in the early part of this century there arose in the courts a discussion regarding the nature of our common law, and the relation of that law to our statute law in governing the celebration of marriage—a discussion which since then has constantly increased, and has gradually brought about a revolution unparalleled in the history of our subject."—Ibid.

[597] Chap. xv, sec. ii; chap. xiii, sec. iv.

[598] Chap. xiii, sec. i.

[599] Hening, Statutes, I, 252, 253. See chap. xiii, sec. i.

[600] For these colonies see chap. xiii, secs, iii, iv.

[601] Chap. xiv, sec. i, c).

[602] Chap. xii, sec. vi.

[603] MSS. Records of the County Court of Middlesex (Apr. 1, 1656), I, 80.

[604] See the case of Usher v. Troop (Throop), 1724-29, in which is raised the question as to whether the "constitutions and canons ecclesiastical of the Church of England" are binding in Massachusetts: MSS. Records of the Superior Court of Judicature, 1725-30, fol. 236. Cf. chap. xii, secs, i, ii.

[605] Cook, "The Mar. Cel. in the U.S.," Atlantic, LXI, 520-32, has given a systematic account of the subject to the year 1888. To this article, and to his "Reform in the Celebration of Marriage," ibid., 680-90, I am indebted; as also to Bennett, "Uniformity in Marriage and Divorce Laws," Am. Law Register, N. S., XXXV, 221-31. Cf. Convers, Mar. and Divorce, 15-119; Stewart, Mar. and Divorce, 78 ff.

[606] In the case of Fenton v. Reed (1809), 4 Johns., 52; 4 Am. D., 244; Ewell, Cases on Domestic Relations, 397-99. Following are the essential facts in this celebrated case. In 1785 John Guest "left the state for foreign parts." During his absence, in 1792, his wife Elizabeth married Reed. Subsequently in the same year her first husband, Guest, returned to the state and there resided until his death in June, 1800. He professed to have no marital claim upon Elizabeth; so she lived with Reed as a wife continuously from 1792 until the latter's death in 1806. Was she the lawful wife of Reed from 1792 to 1800 during the lifetime of Guest? If not, was she, without the observance of any formalities, his lawful wife from 1800 to 1806 after Guest's demise? To the first question the court answered "no," holding that "the statute concerning bigamy does not render the second marriage legal, notwithstanding the former husband or wife may have been absent above five years, and not heard of. It only declares that the party who marries again in consequence of such absence ... , shall be exempted from the operation of the statute, and leaves the question of the validity of the second marriage just where it found it." To the second question the court answered "yes," as explained in the text. Cf. Starr v. Peck, 1 Hill, N. Y., 270.

[607] The doctrine of his own decision was formulated in 1826 by Kent in the first edition of his Commentaries. Ten years earlier, in 1816, it had been accepted by Reeve, former chief justice of Connecticut, in his treatise on the Law of Husband and Wife. It was followed in 1842 by Greenleaf in his work on Evidence; and later by Bishop in his well-known book on Marriage and Divorce. On the other hand, the younger Parsons, the first edition of whose Contracts appeared in 1853, is inclined to reject the Kent doctrine: see the 8th ed., II, 78 ff.; and compare Cook, "The Mar. Cel. in the U. S.," Atlantic, XLI, 521, 522.

[608] See Fryer v. Fryer (1832), Richardson's Equity Cases, 92 ff. Cf. the case of Vaigneur v. Kirk (1808), 2 S. C. Equity Reports, 640-46; and 10 McCord's Statutes, 357, ed. note; ibid., II, 733, ed. note.

[609] Holmes v. Holmes (1833), 6 La., 463. In this state, under influence of French and Spanish law, the common-law contract appears always to have been regarded as valid.

[610] Askew v. Dupree (1860), 30 Ga., 173; cf. Clark v. Cassidy, 64 Ga., 662.

[611] Blackburn v. Crawfords (1865), 3 Wall., 175; Diggs v. Wormley (1893), 21 D. C., 477, 485; Jennings v. Webb (1896), 8 App. D. C., 43, 56. Cf. Green v. Norment (1886), 5 Mackey, 80-92.

[612] In Campbell v. Gullatt (1869), 43 Ala., 57. But see the earlier decisions in S. v. Murphy (1844), 6 Ala., 765-72; 41 Am. D., 79; and Robertson v. S. (1868), 42 Ala., 509; being conflicting and indecisive as to whether the statute is merely "directory."

[613] Jones v. Jones (1872), 28 Ark., 19-26. According to S. v. Willis (1848), 9 Ark., 196-98, consent of the parent is not essential.

[614] Dyer v. Brannock (1877), 66 Mo., 391; 27 Am. R., 359. The license required by statute is not essential to a valid marriage: S. v. Bittick (1890), 103 Mo., 183.

[615] Daniel v. Sams (1880), 17 Fla., 487-97.

[616] In Bashaw v. S. (1829), 1 Yerg., 177; affirmed in Grisham v. S. (1831), 2 Yerg., 589; opposed in Andrews v. Page (1871), 3 Heisk., 653-71; and apparently questioned in Johnson v. Johnson (1860), 1 Coldw., 626.

[617] Dumas v. S. (1883), 14 Tex. Cr. App., 464-74; Tel. Co. v. Procter (1894), 6 T. C. A., 300, 303.

[618] Cumby v. Henderson (1894), 6 T. C. A., 519-23; 25 S. W., 673; Ingersol v. McWillie (1895), 9 T. C. A., 543, 553; 30 S. W., 56; Chapman v. Chapman (1897), 16 T. C. A., 384; and especially Railway Co. v. Cody (1899), 20 T. C. A., 520-24.

[619] Hantz v. Sealey (1814), 6 Binn., 405; also Rodebaugh v. Sanks (1833), 2 Watts, 9-12; and Commonwealth v. Stump (1866), 53 Pa., 132-38.

[620] Carmichael v. S. (1861), 12 Ohio, 553-61.

[621] Port v. Port (1873), 70 Ill., 484; Bowman v. Bowman (1887), 24 Ill. App., 165-78.

[622] Hutchins v. Kimmel (1875), 31 Mich., 126-35; 18 Am. R., 164-69.

[623] Blanchard v. Lambert (1876), 43 Iowa, 228-32. Since 1851 the statutes of Iowa have clearly accepted the common-law marriage: Code of Iowa (1851), secs. 1474, 1475; ibid. (1897), 1124.

[624] S. v. Worthington (1877), 23 Minn., 528.

[625] Williams v. Williams (1879), 46 Wis., 464-80; Spencer v. Pollock (1892), 83 Wis., 215-22.

[626] Teter v. Teter (1884), 101 Ind., 129; 51 Am. R., 742. In Roche v. Washington (1862), 19 Ind., 53, the opposite position is taken.

[627] S. v. Walker (1887), 36 Kan., 297; 59 Am. R., 556.

[628] Bailey v. S. (1893), 36 Neb., 808-14.

[629] Israel v. Arthur (1893), 18 Col., 158, 164; Taylor v. Taylor (1897), 10 C. A., 303, 304.

[630] S. v. Zichefield (1896), 23 Nev., 304-18.

[631] Wyckoff v. Boggs (1824), 2 Halst., 138-40; and especially Pearson v. Howey (1829), 6 Halst., 12, 18, 20.

[632] Jewell v. Jewell (1843), 1 Howard, 219-34.

[633] Meister v. Moore (1877), 96 U. S., 76-83.

[634] See Bennett, "Uniformity in Mar. and Div. Laws," Am. Law Register, N. S., XXXV, 223 ff., who points out that the statutes of Alabama, Pennsylvania, and Missouri, where the common-law marriage is valid, are far more prohibitory than those of Massachusetts, Maryland, or West Virginia, where it is void. The statute of Alabama says positively that "no marriage shall be solemnized without a license issued by the judge of probate of the county where the female resides;" but a marriage so solemnized is nevertheless valid.

[635] Cook, "The Mar. Cel. in the U. S.," Atlantic, LXI, 523.

[636] Milford v. Worcester (1810), 7 Mass., 48-58. See also, to the same effect, Commonwealth v. Munson (1879), 127 Mass., 459-71; 34 Am. R., 411. In this case it is correctly held that Justice Bigelow's decision in Parton v. Hervey (1854), 1 Gray, 119, that the statute is merely "directory," relates to banns and parental consent, and not to solemnization; for Milford v. Worcester is cited as authority.

[637] See the opinion of Judge Redfield in Northfield v. Plymouth (1848), 20 Vt., 582, holding that a common-law marriage could not be regarded as valid without "virtually repealing our statutes," thus reversing the doctrine of Newbury v. Brunswick (1829), 2 Vt. 151; 19 Am. D., 703; and consult especially Morrill v. Palmer (1895), 68 Vt., 1-23, holding "that what ... Kent calls the 'loose doctrine of the common law,' in relation to marriage, was never in force in this state."

[638] See the opinion of Chief Justice Gilchrist in Dumbarton v. Franklin (1848), 19 N. H., 257, rejecting as irrelevant Judge Woodbury's obiter dictum in Londonderry v. Chester (1820), 2 N. H., 268-81, usually cited to sustain the common-law marriage; but this objection to it is scarcely valid.

[639] S. v. Hodskins (1841), 19 Me., 155-60; 36 Am. D., 743. Cf. Ligonia v. Buxton, 2 Me., 95. According to Hiram v. Pierce, 45 Me., 367, the statute of Maine, like that of Massachusetts, is only directory regarding parental consent in case of minors.

[640] Gen. Stat. of Ct. (1902), 1086. According to Reeve, Law of Husband and Wife, 252 ff.; followed by Kent, Commentaries, II, secs. 87 ff., the common-law marriage was formerly good in Connecticut.

[641] The common-law marriage was sustained in Cheseldine v. Brewer (1739), 1 Har. and McH., 152; overruled and the opposite doctrine supported in Denison v. Denison (1871), 35 Md., 361. In Jackson v. Jackson (1894), 80 Md., 176-96, it is held that the "fact that the marriage was performed by a clergyman may be inferred from the evidence." Cf. Bishop, Mar., Div., and Sep., I, sec. 416, p. 179.

[642] S. v. Samuel (1836), 2 Dev. and Bat., 177-85; followed in S. v. Patterson (1842), 2 Iredell, N. C., 346-60; left undecided in S. v. Ta-cha-na-tah (1870), 64 N. C., 614. Cf. S. v. Robbins (1845), 6 Iredell, N. C., 23-27, where apparently a celebration, but not a license, is held essential to a valid marriage (25); and especially S. v. Wilson (1897), 121 N. C., 657, where it is declared that a marriage "pretendedly celebrated before a person not authorized would be a nullity."

[643] Beverlin v. Beverlin (1887), 29 W. Va., 732-40.

[644] Dumaresly v. Fishly (1821), 3 A. K. Marshall, 368-77. See also Commonwealth v. Jackson, 11 Bush., Ky., 679.

[645] Acts (1850-51), 212-16 (law in force July 1, 1852); sustained in Estill v. Rogers (1866), 1 Bush., Ky., 62; Stewart v. Munchandler, 2 Bush., Ky., 278.

[646] Hargroves v. Thompson (1856), 31 Miss., 211; Dickerson v. Brown (1873), 49 Miss., 357; Floyd v. Calvert (1876), 53 Miss., 37; Rundle v. Pegram (1874), 49 Miss., 751.

[647] Ann. Code of Miss. (1892), 679.

[648] Rev. Stat. and Codes of Porto Rico (1902), 805.

[649] Holmes v. Holmes (1870), 1 Abb., Cir. Ct. (U. S.), 525, declaring the statute regarding the solemnization of marriage mandatory.

[650] In re McLaughlin's Estate (1892), 4 Wash., 570; 30 Pac. R., 651; in re Wilbur's Estate (1894), 8 Wash., 35.

[651] It may require judicial interpretation to determine the law of California. Sec. 55 of the Civil Code, since the act of 1895, does not contain the usual words of nullity; but sec. 68 declares that a marriage is not invalidated by violation of the provisions governing solemnization, license, authentication, and record "by other than the parties themselves." One or two of the superior court judges have already decided that the statutory formalities are mandatory.

[652] The Rev. Stat. of Utah (1898) rendered marriage void when not celebrated before an authorized person. Before this date a common-law contract was binding: U.S. v. Simpson, 4 Utah, 227; 7 Pac., 257.

[653] See chap. xvi, sec. iii, a).

[654] In Peck v. Peck (1880), 12 R. I., 485-89, the court declined to decide whether a common-law contract is valid, there being no prohibitory language in the statute. Cf. also S. v. Boyle (1882), 13 R. I., 537; and Ben. Association v. Carpenter (1892), 17 R. I., 720. In Williams v. Herrick (1899), 21 R. I., 401-3, the court appears to favor the validity of a marriage without a formal ceremony, if begun with "matrimonial intent."

[655] According to Connors v. Connors (1895), 40 Pac., 966, a license is not essential in Wyoming.

[656] In Beverlin v. Beverlin, 29 W. Va., 736, the judge says, "I have been unable to find any case in which the courts of Virginia or this state have ever held that a common-law marriage was held valid;" and this, he adds, is "persuasive evidence" that it is not. In Colston v. Quander (1877), 1 Va. Decisions (not officially reported), license is declared not essential; but in this case there was a formal celebration. On the probable position of the states which have not decided see Cook, The Mar. Cel. in the U. S., 525, 526.

[657] Of course the statute of Porto Rico must be regarded as preventing, not abolishing, the common-law marriage.

[658] Quoted by Cook, "The Mar. Cel. in the U. S.," Atlantic, LXI, 526. On the frauds perpetrated under the guise of the common-law marriage see also the opinion of Judge Pryor of New York: quoted by Richberg, Incongruities of the Divorce Laws, 61, 62. "It is singular," said Chief Justice Gilchrist in 1848, "that the most important of all human contracts, on which the rights and duties of the whole community depend, requires less formality for its validity than the conveyance of an acre of land, a policy of insurance, or the agreements which the statute of frauds requires should be in writing."—Dumbarton v. Franklin, 19 N. H., 264, 265.

[659] Except, perhaps, in practically getting rid of the subtle doctrine of marriage per verba de futuro cum copula: see the decision in Starr v. Peck (1841), 1 Hill, N. Y., 270; Ewell, Cases, 403. Cf. Cheney v. Arnold (1857), 15 N. Y., 345; Ewell, 407-13; this being followed in Duncan v. Duncan, 10 Ohio, 181; but discarded in Port v. Port, 70 Ill., 484; and Peck v. Peck, 12 R. I., 484; 34 Am. R., 702. Cf. Bishop, Mar., Div., and Sep., I, secs. 353-77, pp. 147-62; Kent, Commentaries, II, sec. 87 ff., pp. 119 ff.

[660] Cook, "The Mar. Cel. in the U. S.," Atlantic, LXI, 528.

[661] Kentucky Stat. (1903), 843, 844.

[662] Civil Laws of the Hawaiian Islands (1897), 700.

[663] Bodington's Kelly, French Law of Marriage, 12.

[664] By the law of 1875 marriages are thus celebrated before the local Standesbeamten: Kohler, Das Eherecht des bürg. Gesetzbuches, 16, 17, 55 ff.

[665] Counting Hawaii which was not included in chap. xvi.

[666] In "Diagnostics of Divorce," Jour. of Soc. Sci. (Am. Assoc.), XIV, 136, Professor Robertson takes the extreme view that "no person should be marriageable under the age of 21, and a marriage ceremony celebrated between persons either of whom is under age should be ipso facto void."

[667] Neither in England nor anywhere in the United States is a marriage declared void for want of parental consent. The leading case on the point is Parton v. Hervey, 1 Gray, 119. "Some years ago a young girl, only thirteen years of age, named Sarah Hervey, was enticed away from her widowed mother's house by a young fellow, named Parton, of bad character and dissolute habits, who by false representations as to the age of the girl, procured a marriage license, and persuaded a magistrate to formally marry them. She returned to the house of her mother who forbade the young man to see her. Upon his petition against the mother for writ of habeas corpus, the Supreme Court of the Commonwealth, after full consideration, ordered the young wife to be surrendered to the husband, and he bore her away in triumph.... The mother then brought suit against a confederate of the husband, who had aided in enticing away the girl and in practising the fraud upon the magistrate; but the mother again failed in her efforts to vindicate her rights to protect her daughter, since it distinctly appeared that the marriage was with the daughter's full and free consent."—Hervey v. Moseley (1856), 7 Gray, 449; as summarized by Bennett, "Uniformity in Mar. and Div. Laws," Am. Law Register, N. S., XXXV, 222.

[668] Laws of N. H. (1903), 79.

[669] Louisiana formerly had a law requiring notice of intention to be filed fifteen days before issue of license; but it appears to have been repealed. In Porto Rico the period of delay is ten days.

[670] As suggested by Cook, "The Mar. Cel. in the U. S.," Atlantic, LXI, 687.

[671] The laxity of the law in this respect, coupled with that of permitting the license to be issued without delay, is the most fruitful source of clandestine marriages. There are many so-called "Gretna Greens" in the United States. One is (or was) at Aberdeen, O.: Whitney, Marriage and Divorce, 43; another at Greenwich, Conn. Oct. 2, 1900, the San Francisco Chronicle had the following telegram: "Greenwich's reputation as a Gretna Green and that of Judge Burns of Greenwich of the Borough court as one who marries all who come, appears to have extended to the Pacific Slope. On Saturday there arrived in town —— —— of Alameda, California, and —— —— of Los Angeles, California. They went to Judge Burns' office, arranged for the marriage ceremony, and then secured a marriage license from the town clerk.... Immediately after the ceremony" they "left town, maintaining the greatest secrecy as is the usual custom." Another wedding resort, for the benefit of Chicago, is the little town of St. Joseph, Mich., where in the four years, 1897-1900, 1,594 licenses are said to have been issued to persons residing outside the state, the ceremony being performed by ministers. In 1903 an attempt to adopt the Wisconsin plan, requiring an interval of five days between the issue of the license and the celebration, failed by a very few votes.

[672] Examples are given by Dike, "Statistics of Marriage and Divorce," Pol. Sci. Quart., IV, 597.

[673] On the faults of the registration laws see ibid., 594, 595.

[674] In his enlightening criticism of our matrimonial laws Cook, "The Mar. Cel. in the U. S.," Atlantic, LXI, 688, has suggested the division of the county into districts for the appointment of registrars.

[675] In England the registration of births and deaths in the district is intrusted to a separate registrar: Compare the details of the British system as presented in chap. x, sec. iii.

By the law of Massachusetts towns of more than 2,000 inhabitants may choose a separate registrar to record and license, but not to celebrate, marriages: see chap, xvi, sec. i, c).

[676] Cf. Richberg, Incongruity of the Divorce Laws, 65 ff.

[677] "Age of consent laws, in their usual acceptation, refer to the crime of rape, and designate the age at which a young girl may legally consent to carnal relations with the other sex. Statutes pertaining to rape provide, in varying phrase, for the punishment of 'whoever ravishes and carnally knows a female by force and against her will,' at any age; and also penalties for whoever unlawfully and carnally knows a female child, with or without consent, under a given age."—Powell, in Arena, XI, 192.

[678] "In the New York senate, in 1890, a bill was introduced to lower the age of consent from sixteen to fourteen years. It was reported favorably by the senate judiciary committee, but vigorous protests against the proposed retrograde legislation were promptly sent to Albany by the friends of purity, and the disreputable scheme was defeated. It was understood to have originated with Rochester attorneys who sought thus to provide a way of escape for a client, a well-to-do debauchee guilty of despoiling a young girl under the legally protected age of sixteen." A similar attempt, in the house, in 1892, in the interest of the New York brothel-keepers, was barely defeated by calling for the yeas and nays. "In the Kansas senate, in 1889, a bill was introduced and passed to lower the age ... from eighteen to twelve years. The house was flooded with earnest protests, and its judiciary committee reported adversely the disgraceful senate bill."—Powell, loc. cit., 194, 195.

[679] Aaron M. Powell, editor of the Philanthropist, in the Arena (1895), XI, 192-94. The Arena was the principal medium of publication for the reformers: see the symposium by Powell, Gardener, and others, "The Shame of America," Arena, XI, 192-215; the symposium by Gardener, Robinson, and others, ibid., XIII, 209-25; the symposium by Leach and Campbell, ibid., XII, 282-88; Smith, "Age of Consent in Canada," ibid., XIII, 81-91; and especially Gardener, "A Battle for Sound Morality," ibid., XIII, 353-71; XIV, 1-32, 205-20, 401-19. Cf. Flower, "Wellsprings of Immorality," ibid., XII, 337-52.

[680] Gardener, "A Battle for Sound Morality," Arena, XIII, 354, 355.

[681] Powell, in Arena, XI, 195; cf. Gardener, ibid., XIII, 358.

[682] Gen. Laws of R. I. (1896), 999.

[683] Laws of N. H. (1897), 30, 31; Pub. Stat. (1900), 832.

[684] Vermont Stat. (1895), 877; Acts and Resolves (1898), 90, 91.

[685] Gen. Stat. of Conn. (1887), 325; Pub. Acts (1887), 669; ibid. (1895), 580; ibid. (1901), 1208; Gen. Stat. (1902), 350.

[686] Rev. Stat. of Me. (1884), 883; Acts and Resolves (1887), 110; ibid. (1889), 170.

[687] Mass. Acts and Resolves (1886), 270; ibid. (1888), 40; ibid. (1893), 1381; Rev. Laws (1902), II, 1745.

[688] Laws of Fla. (1901), 111; penalty, not less than ten years' imprisonment, or a fine not exceeding $2,000, or both.

[689] Up to fourteen carnally knowing a girl is rape, punishable by death or imprisonment for not less than five years, at the discretion of the jury: Rev. Stat. (1899), I, 547. Between fourteen and eighteen, not only must the girl be "of previously chaste character"—which begs the whole question—but the penalty is ridiculously light: imprisonment in the penitentiary for two years; or a fine of not less than $100 nor more than $500; or confinement in the county jail not less than one month nor more than six months or both such fine and confinement: Laws (1895), 149; also in Rev. Stat. (1899), I, 547. Cf. Rev. Stat. (1889), I, 850; Gardener, in Arena, XIV, 31.

[690] Laws of Arizona (1895), 48; ibid. (1899), 29; the same in Rev. Stat. (1901), 1226: penalty, imprisonment for life or for not less than five years.

[691] Act of April 1, 1893: Digest (1894), 572: penalty, not less than five nor more than twenty-one years in prison. In Arkansas rape is punished by death, and, by exception, the execution is to be public; but this does not apply in case of conviction under the consent law.

[692] Act 115 (1896), 165; also in Rev. Laws (1897), 196: "if any person over the age of 18 years shall have carnal knowledge of any unmarried female between the ages of 12 and 16 with her consent he shall be deemed guilty of felony," and be imprisoned with hard labor not exceeding five years.

[693] Act of Feb. 9, 1889: 1 Supp. to U. S. Stat., c. 120, p. 641; also Code of D. C. (1902), 170: penalty not less than five nor more than thirty years' imprisonment, or death when the jury so determines.

[694] Act of Feb. 9, 1889, applying to all territory in exclusive jurisdiction of the U. S.: 1 Supp. to U. S. Stat., c. 120, p. 641; Ann. Stat. Ind. Ter. (1899), 845: first offense, not more than fifteen years in prison; each later offense, not more than thirty years.

[695] When the girl is under fourteen the offense is rape punishable by not less than ten years in the territorial prison; between fourteen and sixteen the penalty is not less than five years' such imprisonment, if she be of "previous chaste and virtuous character": cf. Stat. of Okla. (1893), 467; and Laws (1895), 104, 105.

[696] Up to fourteen for the girl the penalty is death or imprisonment for life or for any definite term from eighteen months to twenty-one years: cf. Pub. Gen. Laws of Md. (1888), I, 533, 534; with Laws (1890), c. 410, p. 447. By the act of 1898, c. 218, abuse of a girl between fourteen and sixteen is only a misdemeanor punishable by not more than two years in the house of correction or by a fine not to exceed $500: Prentiss's Supp. to Code (1898), 195.

[697] In Tennessee the offense against a girl below twelve years of age is punishable, as in case of rape, by death or, if the jury please, by imprisonment for life or not less than ten years; from twelve to sixteen, it is a felony, with three to ten years in prison, if the child be of previous chaste character, and if she can bring witnesses to support her statements. The one day was added by way of a joke! See the interesting account of the passage of the act by Dromgoole, in Arena, XI, 209-12; and for the act consult Laws (1893), c. 129, § 1, 273, 274; Code (1896), 1593, 1594.

[698] Laws of Tex. (1891), 96; ibid. (1895), 79, 104: not less than two years in the penitentiary.

[699] Acts of S. C. (1896), 223: a felony; penalty, death or imprisonment for life, unless the jury recommends the offender to mercy, when the court shall reduce the punishment to imprisonment for a term not exceeding fourteen years.

[700] Act of March 3, 1896: Acts (1895-96), 673: penalty, death or imprisonment from five to twenty-one years, as the jury may determine.

[701] Acts of W. Va. (1901), 218: penalty, death or imprisonment from seven to twenty years, as the jury may decide; but the penalty does not apply to a boy under fourteen ravishing a girl over twelve "with her free consent."

[702] By the Code of N. C. (1883), 444, the age is ten; raised to fourteen by Pub. Laws (1895), 374; but the crime is only "punished by fine or imprisonment at the discretion of the court, provided she has never previously had sexual intercourse with any male person."

[703] The Code of Ala. (1897), 460, punishes the abuse of a girl below fourteen, at the discretion of the jury, either by death or by not less than ten years in prison; but an act of 1897, also in the Code, punishes carnal knowledge of a female between ten and fourteen only by a fine of $50 to $500, and the offender "may be imprisoned in the county jail for six months." This provision appears to reduce the protection of a child above ten to little more than a pretense: Acts (1897), 944.

[704] Comp. Laws of N. M. (1897), 344: penalty, five to ten years' imprisonment.

[705] For Georgia, in 1895, the age of consent was reported as fourteen, or any younger age if the jury finds that "by reason of her intelligence she knows good from evil": see Gardener, in Arena, XIV, 415, 416; but I have not been able to find this provision in the present Code. The penalty for rape is death, unless the jury recommend to mercy, when it is one to twenty years' imprisonment at hard labor: Code (1896), III, 36, 39. This penalty applies when the girl is under ten: 11 Ga., 227.

[706] Ky. Stat. (1899), 516: penalty, ten to twenty years in prison.

[707] Ann. Code (1892), 372: penalty, death, unless the jury fix the punishment at life imprisonment. There is in Mississippi an abduction law to protect girls below sixteen: but the age-of-consent law stops at ten. Cf. Gardener, loc. cit., 416.

[708] Laws of Kan. (1887), c. 150, § 1: Gen. Stat. (1901), 437: penalty, five to twenty years in prison.

[709] Act of Dec. 18, 1890, amending an act of March 14, 1890, which fixed the age at fourteen: Laws of Wyo. (1890), 130: ibid. (1890-91), 85, 86; Rev. Stat. (1899), 1236; penalty, rape, with imprisonment "not less than one year or during life."

[710] Raised from fourteen: Laws of Neb. (1895), 314, 315; Comp. Stat. (1901), 1409: penalty three to twenty years in prison. But the value of the law is lessened by the provision that it shall not apply in case of a girl over fifteen if "previously unchaste."

[711] Laws of Col. (1895), 155: penalty, one to twenty years in prison; raised from sixteen to eighteen.

[712] Raised from ten to fourteen in 1893, and advanced to eighteen in 1895: penalty, imprisonment for life or not less than five years. Compare Rev. Stat. of Idaho (1887), 733; Laws (1893), 10, 11; Laws (1895), 19; and Penal Code (1901), 134, 139.

[713] Raised from sixteen: Laws of N. Y. (1895), c. 460; Birdseye's Rev. Stat. (1901), III, 3012: rape in second degree; penalty, not more than ten years in prison; rape in first degree, with not less than twenty years in prison, when an imbecile, etc.

[714] Laws of Utah (1896), 87; Rev. Stat. (1898), 902, 877: felony, penalty, not more than five years in prison.

[715] From 1881 to 1897 the age in Washington was twelve: cf. Laws (1897), 19; Ballinger's Codes and Stat. (1897), II, 1951, note. Present penalty, imprisonment for life or any term of years.

[716] Abuse of a female below eighteen is now made rape in the first degree: Laws of N. D. (1903), 200.

[717] Laws of Del. (1889), 951; ibid. (1895), 192; Rev. Stat. (1893), 924: when below seven, rape, with death penalty: when between seven and eighteen, misdemeanor, punished by not more than seven years in prison or a fine of not exceeding $1,000 or both, at the discretion of the court. Cf. Gardener, in Arena, XIV, 411, 412.

[718] Gen. Laws of Minn. (1891), c. 90, § 1, p. 162; Stat. (1894), II, 1747: penalty, confinement in the state prison for life, when the girl is under ten; when between ten and fourteen, seven to thirty years; between fourteen and sixteen, one to seven years in state prison, or in county jail three months to one year.

[719] Laws of S. D. (1893), c. 138; Ann. Stat. (1901), II, 1916, 1917: rape in second degree; penalty, not less than five years in the state prison.

[720] Pub. Acts of Mich. (1895), 170: penalty, imprisonment for life or any term of years.

[721] Codes and Stat. of Mont. (1895), 1062, 1063: penalty, imprisonment for life or not less than five years.

[722] From 1864 to 1895 the age was fourteen: Hill's Codes (1892), I, 897; Laws of Ore. (1895), 67: penalty, three to twenty years in prison.

[723] Ohio raised the age from ten to fourteen in 1887, and advanced it to sixteen by the act of March 3, 1896: Acts (1875), 93 (age made ten years); ibid. (1887), 65; ibid. (1896), 54: Bates's Ann. Stat. (1897), II, 3144, 3145: rape if the boy is over eighteen; penalty, three to twenty years in prison; lowered by Acts (1902), 344, to one to twenty years, "or 6 months in the county jail or workhouse at the discretion of the court, which is hereby authorized to hear testimony in mitigation or aggravation of sentence." Cf. Bates, Ann. Rev. Stat. (1903), III, 3307-8.

[724] Compare Stat. and Amend. to Codes (1889), 223, and ibid. (1897), 201: penalty, not less than five years in prison.

[725] Laws of Alaska (1900), 4.

[726] Pub. Laws of Pa. (1887), 128; Pepper and Lewis, Digest (1896), I, 1318, 1319: penalty, when the woman child is between ten and sixteen, fine not exceeding $1,000 and imprisonment not exceeding fifteen years, if she "was of good repute;" below ten, without this condition. Thus there is no sure protection beyond ten. No conviction when boy is under sixteen.

[727] Laws of N. J. (1887), 230; Gen. Stat. (1896), I, 1096: penalty, not exceeding $1,000, or imprisonment at hard labor not more than fifteen years, or both. There is also an abduction law to protect a female under fifteen: Gen. Stat. (1896), I, 1064. The age is ten in Rev. Stat. (1874), 148.

[728] Raised from thirteen; Acts of Ia. (1896), 71; Ann. Code (1897), 1888: penalty, imprisonment for life or any term of years.

[729] Laws of Ill. (1887), 171; Hurd's Rev. Stat. (1901), 634: penalty, when male is above sixteen, imprisonment for life or not less than one year.

[730] Raised from twelve: Stat. of Nev. (1889), 74; Comp. Laws (1900), 914, 915: rape when the boy is fifteen or more; penalty, imprisonment for life or not less than five years.

[731] Raised from twelve: Acts of Ind. (1893), 22; Burns's Ann. Stat. (1901), I, 790: penalty, one to twenty-one years in prison.

[732] Raised from twelve: Laws of Wis. (1895), c. 370, sec. 1; Wis. Stat. (1898), 2668: penalty, five to thirty-five years in prison.

[733] Rev. Stat. and Codes of Porto Rico (1902), 532, 533: penalty, not less than five years in the penitentiary.

[734] Penal Laws of Hawaiian Islands (1897), 73.

[735] "When the question is asked, 'What is the best divorce law?' the only answer can be, 'There is no good divorce law.' There are some faults in human nature which always have existed and apparently always will exist; and there is no satisfactory method of dealing with them."—Bryce, Studies in Hist. and Jurisprudence, 853. This assertion would apply equally well to the whole body of laws dealing with questions arising in human conduct or social relations. It is misleading, and instead of helping to a solution tends to befog the issue.

[736] See the Reports of the league and the numerous papers of Mr. Dike mentioned in the fourth division of the "Bibliographical Index."

[737] The evils which may result from conflicts of this kind in the divorce laws are discussed in a lively way by Richberg, Incongruity of the Divorce Laws, 69, 70. But the California act of 1903, if constitutional, may check the abuse: see pp. 150, 151, above.

[738] See Realf, "The Sioux Falls Divorce Colony and Some Noted Colonists," Arena, IV, Nov., 1891, 696-703, and compare the remarks of Dike, in Rep. of Nat. Div. Ref. League (1891), 12, who has taken pains to correct the exaggerated accounts of the newspapers; those of Hare, Marriage and Divorce, 16 ff.; and see the articles of A. R. Kimball and R. Ogden mentioned in Part IV of the Bibliographical Index.

[739] Extract from an address delivered by Hon. Carroll D. Wright before the fourteenth National Conference of the Unitarian Society, Saratoga, N. Y., 1891: in Arena, V, 143; printed entire in the Christian Register, Oct. 8, 1891; based on the statistics collected in his Report, 193-206. Commenting on the passage quoted the editor of the Arena says (142):

"Another charge made against our divorce laws is that, not being uniform, certain states are being overrun with persons of loose moral character, who seek release from marriage ties. Those who make this charge seem to overlook the fact that persons of loose moral character would not be liable to go to the trouble of leaving their home and state in order to gratify guilty passions. But those who find the marriage tie too galling for endurance and yet who wish to be law-abiding citizens presumably, will take advantage of liberal, enlightened, and humane laws, framed with a view to increase the happiness of the people rather than made in such a way as to foster immorality and enforced prostitution."

[740] According to the method of determining the amount of interstate migration for the purpose of securing divorce suggested by Willcox, "A Study in Vital Statistics," Pol. Sci. Quart., VIII, 90-92.

[741] Dike, "Statistics of Marriage and Divorce," Pol. Sci. Quart., IV, 608-12.

[742] See Streitwolf v. Streitwolf (1900), Opinions of U. S. Supreme Court, No. 13, p. 553, involving a decree of divorce granted in North Dakota to a resident of New Jersey; Bell v. Bell (1900), ibid., 551, voiding a similar judgment secured in Pennsylvania by a resident of New York; and S. v. Armington (1878), 25 Minn., 29-39, in which a divorce granted in Utah to a resident of Minnesota in 1876 was declared void for want of jurisdiction. Similar decisions, involving the notorious fraudulent divorces obtained in Utah before the change of the law in 1878, "have been reached in criminal trials in New York, Indiana, and Iowa, and in civil suits in Massachusetts, Kansas, and Tennessee"—the earliest in 1877: Willcox, "A Study in Vital Statistics," Pol. Sci. Quart., VIII, 86 n. 1.

[743] Wright, Report, 162-64. In the whole country, during the years 1867-86, 328,716 decrees were granted, representing probably 484,683 petitions.

[744] In forty-five counties in twelve states, for the period 1867-86, notice was served by publication in 9,944 cases; in 17,040 cases personal service was made; and in 2,681 cases no evidence on the point was obtainable: Wright, Report, 201, 202.

[745] For a good discussion of the scope of various statutory grounds of divorce, with the defenses, as actually interpreted by the courts, see Whitney, Marriage and Divorce, 108-56; and compare Bishop, Mar., Div., and Sep., I, 610 ff., II, 1 ff.; Stewart, Law of Mar. and Div., 203 ff.; Lloyd, Law of Div., 147 ff., 180 ff.; Convers, Mar. and Divorce, 180 ff.

[746] The ninety-nine illustrations of the allegations of the plaintiff presented in Wright's Report, 172-78, constitute very interesting reading. Some of them are quoted by Bryce, Studies in Hist. and Jurisp., 835, 836. The frauds arising in the procedure are forcibly described by Judge Jameson, "Divorce," North Am. Rev., CXXXVI, 323, 324; and the conflicts in laws by Phillips, "Divorce Question," Internat. Rev., XI, 139-52.

[747] Wright, Report, 139-42.

[748] According to the table by classified causes: Wright, Report, 181-83. However, the relative number of divorces granted on the wife's petition varies greatly among the states: from 39.3 per cent. in North Carolina to 77.9 in Nevada: compare the table in Willcox, The Divorce Problem, 34-37.

[749] Dike, "Statistics of Marriage and Divorce," Pol. Sci. Quart., IV, 607, summarizing the tables and figures in Wright, Report, 135-39.

[750] Wright, Report, 137.

[751] Ibid., 147-49.

[752] Willcox, The Divorce Problem (2d ed.), 16-19, and Appendix.

[753] According to Willcox, "A Study in Vital Statistics," Pol. Sci. Quart., VIII, 78, the "number of persons divorced (not the number of divorces) to every 100,000 of the population" is as follows for various countries, the date being 1886 unless otherwise stated: Ireland, 0.28; Italy (1885), 3.75; England and Wales, 3.79; Canada, 4.81; Australia (including New Zealand and Tasmania), 11.14; German Empire, 25.97; France, 32.51; Switzerland, 64.49; United States, 88.71; Japan, 608.45. "In the year 1886," he adds, "there were in Japan 315,311 marriages and 117,964 divorces, more than one divorce to every three marriages and more than four and a half times as many divorces as there were in the United States, although the population of Japan was only about two-thirds as great."

[754] Willcox, op. cit., 92-96.

[755] Wright, Report, 158-63: Willcox, op. cit., 74, 75; Bertillon, Étude démographique du divorce, 54-57; and Statistik der Ehescheidungen der Stadt Berlin, vi, vii, showing that for each 10,000 married persons living in Berlin in 1867 29.85 divorces were granted, while in 1894 the rate had risen to 37.93.

[756] Willcox, op. cit., 73 ff., 93 ff. Cf. Wright, Report, 145, 146. Within this group the New England states show a small decrease in the divorce rate; "while in New York, New Jersey, and Pennsylvania as a whole it has slightly increased, the two offsetting each other."

[757] Dike, in Rep. of Nat. League for Protection of the Family (1901), 6, 11. But in 1902, for the state, the ratio was 1 divorce to 7.6 marriages; ibid. (1903), 10.

In 1896 the number of marriages celebrated to one divorce granted was 19.2 in Massachusetts, 15.7 in Vermont, 14.9 in Connecticut, 9.2 in Rhode Island, and only 8.3 in Maine. In 1901 the ratio in Rhode Island had fallen to 8.2; while it had risen in Connecticut to 15.8 and in Massachusetts to 20.2: Registration Report (Me., 1896), 91; ibid. (Vt., 1896), 96; Dike in Report (1901), 11. In 1902 the number of marriages to one divorce was sixteen in Massachusetts; 8.4 in Rhode Island; 10 in Vermont; and only about six in Maine; while in 1901 it was 8.3 in New Hampshire: Dike, op. cit. (1903), 9, 10.

[758] For these facts see the parliamentary Return of the Number of Divorces in Foreign Countries (Part I, being Misc. No. 4, 1895), 3-5, 8, 9, 10, 12, 15, 16. See also Bertillon, Étude démographique du divorce, 58 ff., 74 ff.; the table in Statistik der Ehescheidungen der Stadt Berlin, vi, vii, giving figures (1867-94) for German and other lands as well as for the city; Oettingen, Die Moralstatistik, 134-62, passim; Rubin and Westergaard, Statistik der Ehen (relating chiefly to Denmark and particularly to Copenhagen); Cadet, Le mariage en France (containing many statistical tables for marriage and divorce); Naquet, Le divorce (giving two tables for marriage and divorce, 1840-74); Woolsey, Divorce and Divorce Legislation, 181-93; Muirhead, "Is the Family Declining?" Internat. Jour. of Eth., Oct., 1896, 33 ff.; Mayo-Smith, Statistics and Sociology, 101 ff., 124; Wright, Report, 981 ff.; and the mass of marriage statistics in Cauderlier, Les lois de la population et leur application à la Belgique.

[759] Bryce, Studies in Hist. and Jurisp., 841.

[760] Mill, Prin. of Pol. Econ. (Boston, 1848), I, 413.

[761] Fawcett, Manual of Pol. Econ. (4th ed., London, 1874), 143.

[762] Bodio, Del Movimento della populazione in Italia e in altri stati d'Europa (1876), 136, 137; Farr, Vital Statistics, 68-75; and idem, in Report of the Registrar General: quoted by Ogle, "On Marriage Rates," etc., Jour. of the Royal Statistical Society, LIII, 254 ff. Cf. Newsholme, Vital Statistics, 45, 46.

[763] Ogle, op. cit., 256-63. Cauderlier, Les lois de la population, 71-74, 113, 114, has also shown in the case of England that foreign commercial relations must be considered in determining the condition of material well-being.

[764] Oettingen, Die Moralstatistik, 89-94, and authorities there cited; Bertillon, Annales de démographie internationale, I, 24; Cauderlier, op. cit., 61-78, 102 ff., giving statistics for Germany, Belgium, England, and France. Cf. Mayo-Smith, Statistics and Sociology, 100, 101.

[765] Ogle, op. cit., 255; cf. Oettingen, op. cit., 93, 94.

[766] Willcox, "A Study in Vital Statistics," Pol. Sci. Quart., VIII, 76, 77. Cf. idem, "The Marriage Rate in Michigan," Pub. Am. Stat. Assoc., IV, 7; and Crum, "The Marriage Rate in Massachusetts," ibid., 328, 329.

[767] Willcox, loc. cit., 76, 77, 79-82. On the increase of divorce among the southern negroes see idem, The Divorce Problem, 21-23, 29-32.

[768] Bertillon, op. cit., 20-28, 88-102; Wright, Report, 150.

[769] See table in Wright, Report, 145.

[770] See the table in Bottet, La famille, 47 ff. His figures do not agree with those quoted from Wright's Report: According to his table, 3,010 separations were granted in 1883; 3,790 separations and divorces in 1884; 4,640 in 1885; 6,270 in 1886; 7,983 in 1887; and 7,430 in 1888. Compare Keller, "Divorces in France," Procds. of the Am. Stat. Assoc., I, 469 ff., who summarizes Turquan, Résultats statistiques de cinq années de divorce. See also "Divorce: from a French Point of View," North Am. Rev., CLV, 721-30, by Naquet, author of the law of 1884; and the vigorous criticism of Brun, "Divorce Made Easy," ibid., CLVII, 11-17. In 1897, 7,460 divorces were decreed; while in 1900 there were only 7,157; Dike, Rep. of the Nat. League for Protection of the Family (1903), 11.

[771] Willcox, The Divorce Problem, 37, 38.

[772] Ibid. (2d ed.), 45, 46; Wright, Report, 148, 169.

[773] Wright, Report, 150 ff.

[774] Including the repeal in 1878 of the celebrated Connecticut "omnibus clause" introduced in 1849. On the alleged influence of this clause see Dike, "Facts as to Divorce in New England," in Christ and Modern Thought, 197-202; idem, "Some Aspects of the Divorce Problem," Princeton Review, March, 1884, 170, 171; and especially Loomis, "Divorce Legislation in Conn.," New Englander, XXV, 436 ff., 441, 442, giving a table of Connecticut divorces by counties, 1849-65; and Allen, "Divorce in New England," North Am. Rev., CXXX, 547 ff., giving statistics for the period 1860-78.

[775] For example, Massachusetts created four new causes of divorce in 1870; and in 1873 reduced the time of desertion necessary to constitute a ground of divorce from five to three years. Divorces increased from 337 in 1872 to 611 in 1874. A part of this gain was probably due to the change in law, although in all the entire group of north Atlantic states there was at the same time a large increase which cannot be thus accounted for. The lax law of residence in Utah previous to 1878, and the reduction of the term of desertion from two years to one by the Dakota legislature in 1881, were each responsible for an increase in the divorce rate: compare Wright, Report, 152 ff., 156, 203 ff.; Willcox, A Study in Vital Statistics, 85-90; idem, The Divorce Problem, 41-61; with the criticism of Dike, "Legislation and Divorce," New York Eve. Post, July 2, 1891.

[776] See Bertillon, Note pour l'étude statistique du divorce, 464 ff., 471-73, giving Berlin statistics for 1878 which show that divorced men remarry within the first three years at about the same rate as widowers, while divorced women remarry more rapidly than widows. The results obtained from Swiss statistics are nearly the same: see the table in Bertillon, "Du sort des divorcés," Jour. de la société de statistique de Paris, June, 1884; reproduced by Willcox, The Divorce Problem, 27. On the other hand, Oettingen, Die Moralstatistik, 153-62, on the basis of statistics for Saxony (1834-49) and the Netherlands (1850-54), shows a strong tendency to remarry on the part of divorced persons of either sex, as compared with widows and widowers, the divorced women remarrying much more frequently than the men. Dike, Rep. of the Nat. Div. Ref. League (1891), 18, gives some facts for Connecticut. In 1889, 286 divorced persons were married, "135 men and 151 women, which is a little above one-third of the number divorced in the year. In 1890 there were 477 divorces granted, or 954 individuals divorced: and there were 350 divorced persons"—143 men and 207 women—"who married again." To be of much value these figures should be compared with the number of marriages of widowers and widows for the same period.

[777] Bryce, Studies in Hist. and Jur., 830.

[778] See Wright, Report, 1030, 1033 ff.

[779] "Wenn der andere Ehegatte durch schwere Verletzung der durch die Ehe begründeten Pflichten oder durch ehrloses oder unsittliches Verhalten eine so tiefe Zerrüttung des ehelichen Verhältnisses verschuldet hat, dass dem Ehegatten die Fortsetzung der Ehe nicht zugemuthet werden kann."—Reichsgesetzbuch, Tit. 7, § 1568. For discussion see Kohler, Das Eherecht des bürg, Gesetzbuchs, 42-46.

But the statistics seem to show that the law is conservatively administered. The number of divorces is decreasing. "For the years 1891-95, inclusive, the annual average was 7,258. In 1896 there were 8,601; in 1897 there were 9,005; in 1898 there were 9,143; and in 1899 they had become 9,563. But under the new law in 1900 they dropped to 8,934, and in 1901 they were 8,037."—Dike, Report (1903), 8, 9, on the authority of the Chief of the Statistical Bureau of Berlin.

The other grounds of divorce allowed by the imperial statute are adultery, attempt on the life of either spouse by the other, malicious desertion, and insanity (Geisteskrankheit) of three years' standing. Divorce for malicious desertion is decreed only after a preliminary suit for the re-establishment of marital relations and a year's delay to allow the deserter to return to conjugal duty: Reichsgesetzbuch, Tit. 7, § 1567.

[780] The uniform divorce law for the Swiss cantons, which went into effect in 1876, has not tended to produce a uniform rate. In 1885, for instance, Appenzell, Outer Rhodes, "has forty-nine times as much divorce as Unterwalden o. d. W., while with all the divergences of law in this country the differences of rate are much less."—Willcox, The Divorce Problem, 59, giving a table of the decrees granted in the twenty-six cantons, 1876-85; compiled from Die Bewegung der Bevölkerung in der Schweiz im Jahre 1885 (Beilage I).

[781] Dike, "Uniform Marriage and Divorce Laws," Arena, II, 399-408, gives a valuable discussion of the two methods of procedure. See also Bennett, "National Divorce Legislation," Forum, II, 429-38; Stewart, "Our Mar. and Div. Laws," Pop. Sci. Monthly, XXIII, 232, 233; and Jameson, "Divorce," North Am. Rev., CXXXVI, 325, all favoring a constitutional amendment; also North, "Uniform Mar. and Div. Laws," ibid., CXLIV, 429-31; Lloyd, Law of Divorce, 269 ff.; Johnson, Remarks upon Uniformity of State Legislation; Snyder, Problem of Uniform Legislation, 3 ff., favoring state action. In his Geography of Marriage, 182 ff., Snyder favors concert of action among the states and a prohibitory amendment restricting or defining the maximum number of causes for divorce which a state might sanction. See also the articles by Stanwood and Stanton mentioned in the Bibliographical Index, IV; and consult the Reports of the Conferences of the State Boards of Commissioners for Promoting Uniformity of Legislation in the U. S.

[782] See Reports of the Nat. League for the Protection of the Family (1900), 7; (1901), 8.

[783] Peabody, "The Teaching of Jesus Concerning the Family," in his Jesus Christ and the Social Question, 129 ff.; Dike, "Problems of the Family," Century, XXXIX, 392, 393; idem, Some Aspects of the Divorce Question, 177 ff.; idem, Perils of the Family; Mulford, The Nation, 276-83; Bushnell, "The Organic Unity of the Family," in his Christian Nurture, 90-122; Henderson, Social Elements, 71 ff.; Allen, "Divorces in New England," North Am. Rev., CXXX, 559 ff.; Potter, "The Message of Christ to the Family," in his Message of Christ to Manhood; Salter, The Future of the Family; Mathews, "The Family," Am. Journal of Sociology, I, 457-72; Pearson, "The Decline of the Family," in his National Life and Character, 227 ff.; and the reply of Muirhead, "Is the Family Declining?" Int. Jour, of Ethics, Oct., 1896, 33 ff.; Ross, Social Control, 405, 433. The ablest appreciation of the value of individualism is that of Mill, On Liberty (2d ed.), 100 ff.

[784] Commons, "The Family," in his "Sociological View of Sovereignty," in Am. Jour. of Sociology, V, 683 ff., 688, 689. On the future of the family compare Spencer, Principles of Sociology, I, 737 ff., 788; Letourneau, L'évolution du mariage, 444 ff.; Pearson, "The Decline of the Family," in his National Life and Character, 255, 256; Muirhead, "Is the Family Declining?" Int. Jour. of Ethics, Oct., 1896, 53-55; Tillier, Le mariage, 283 ff., 316.

[785] Cf. Peabody, Jesus Christ and the Social Question, 162-79; Muirhead, Is the Family Declining? 35.

[786] In the great centers of Germany, we are assured, the family of the blood-kindred has yielded to the family composed of kindred and strangers. For lack of space in the closely packed districts people are forced to live almost in common: Göhre, Drei Monate Fabrikarbeiter, 12 ff., 37 ff. Cf. Bebel, Die Frau und der Sozialismus, 123, 124; and Rade, Die sittlich-religiöse Gedankenwelt unserer Industriearbeiter, 117 ff.; Stewart, Disintegration of the Families of the Workingmen; Henderson, Social Elements, 73.

[787] Peabody, op. cit., 140.

[788] See Engels, Der Ursprung der Familie, 4 ff.; and his follower, Bebel, Die Frau und der Sozialismus, 1 ff., 93 ff.

[789] Muirhead, Is the Family Declining? 37.

[790] Carpenter, Love's Coming of Age; quoted from Muirhead, op. cit., 37. The views of various socialists regarding woman and marriage are criticised by Hertzberg, Der Beruf der Frau, 43-57.

[791] Morris and Bax, Socialism: Its Growth and Outcome, 299, 300.

[792] Gronlund, The Co-operative Commonwealth, 193-206.

[793] Owen, Marriages of the Priesthood of the Old Immoral World, 54: "I resume the subject of marriage because it is the source of more demoralization, crime, and misery, than any other single cause, with the exception of religion and private property; and these three together form the great trinity of causes of crime and immorality among mankind." For examples of the bitter denunciations which Owen's doctrines naturally provoked see the tract of Brindley, The Marriage System of Socialism (Chester, 1840); and that of Bowes, The 'Social Beasts' (Liverpool, 1840).

[794] For examples see Marriages of the Priesthood, 41, 43, 44, 81.

[795] Owen, op. cit., 81.

[796] Ibid., 86, 87, giving an extract from his six lectures delivered at Manchester in 1837.

[797] Owen's book was written in 1835, just before the passage of the new civil-marriage law; and the violence of its tone may in part have been provoked by the injustice and intolerance sanctioned by the Hardwicke act of 1753, at that time in force. In 1840 he declared, as regards the form of marriage, that the law of 1836 had "exactly" met his "ideas and wishes;" and that all which he then desired was "to see another law enacted, by which Divorces, under wise arrangements, and on principles of common sense, may be obtained equally for rich and poor."—Op. cit., 90. He himself outlines marriage and divorce laws which possess some excellent features: ibid., 88-90.

[798] Robert Dale Owen, "Marriage and Placement," Free Inquirer, May 28, 1831; and his letter to Thomas Whittemore, editor of the Boston Trumpet, May, 1831; both quoted by Besant, Marriage, 23, 24, 26, 27. The Free Inquirer was founded in New York city by Robert Dale Owen and Frances Wright in 1829: Johnson, Woman and the Republic, 121.

[799] Bebel, Die Frau und der Sozialismus, 93 ff., 175, 176, 427 ff., 431; or the same in Walther's translation, 43 ff., 229 ff. Compare Karl Pearson's discussion of "Socialism and Sex" in his Ethic of Free Thought, 427-46; and Caird, Morality of Marriage, 123-27.

[800] A Philosophical, Historical, and Moral Essay on Old Maids, by a Friend of the Sisterhood (London, 1785). Some of the gleanings from history in the second and third volumes are not entirely devoid of permanent interest.

[801] Haywood, The Female Spectator (7th ed., London, 1771). This is a fairly representative compilation of gossip and literary anecdote regarding woman, but without a trace of sociological perception.

For examples of the lighter productions referred to see An Essay on Marriage, in a cautionary Epistle to a Young Gentleman, wherein the Artifices and Foibles of the Fair, etc. (London, 1750); The Deportment of a Married Life: Laid down in a Series of Letters ... to a Young Lady ... lately Married (2d ed., London, 1798; 3d ed., 1821); Boone, The Marriage Looking-Glass: written as a Manual for the Married and a Beacon to the Single (London, 1848); Guthrie, Wedded Love (London, 1859), a volume of sentimental verse. Some of them have a pious or theological tone: The Advantages and Disadvantages of the Married State ... under the Similitude of a Dream (5th ed., London, 1760); Conjugal Love and Duty (4th ed., Dublin and London, 1758); Reflections on Celibacy and Marriage, in Four Letters to a Friend (London, 1771); Sandeman, The Honour of Marriage opposed to all Impurities (London, 1777); Bean, The Christian Minister's Affectionate Advice to a New Married Couple (4th ed., London, 1809). Others contain valuable passages, while vividly reflecting the contemporary view regarding woman's inferior position: "Philogamus," The Present State of Matrimony (London, 1739); The Art of Governing a Wife; with Rules for Batchelors (London, 1747).

[802] Astell, An Essay in Defense of the Female Sex (London, 1696; 3d ed., 1697). Cf. her Serious Proposal to the Ladies (London, 1694; 3d ed., 1697); and her Reflections upon Marriage (London, 1700; 4th ed., 1730).

[803] Defoe, An Essay upon Projects (London, 1697).

[804] The Hardships of the English Laws in relation to Wives (London, 1735), 4 ff.

[805] "Sophia," Woman not Inferior to Man; or, A short and modest Vindication of the natural Right of the Fair-Sex to a perfect Equality of Power, Dignity, and Esteem with the Men (London, 1739; 2d ed., 1740). This tract was answered by a "Gentleman," Man Superior to Woman; or, a Vindication of Man's Natural Right of Sovereign Authority over the Woman (London, 1739), insisting that woman was not created at all, but is "a sort of after-produced being" who must not "presume to call in question the great duty of vassalage" to man, under penalty of the withdrawal of his heart from her power. To this "Sophia" rejoined in Woman's Superior Excellence over Man (London, 1740).

[806] A new edition of this book, with an introduction by Mrs. Fawcett, appeared in London in 1890. Cf. Pennell, "A Century of Women's Rights," Fort. Rev., XLVIII, 408 ff.; Rauschenbusch-Clough, A Study of Mary Wollstonecraft and the Rights of Woman; Ostrogorski, The Rights of Women, 40; Richter, Mary Wollstonecraft die Verfechterin der "Rechte der Frau."

[807] In Germany Dorothea Christine Erxleben, in her Gründliche Untersuchung der Ursachen, die das weibliche Geschlecht vom Studium abhalten (Berlin, 1742); Vernünftige Gedanken vom Studiren des schönen Geschlechts (Frankfort and Leipzig, 1749); and Hippel, Bürgerliche Verbesserung der Weiber (Berlin, 1792); followed by his Nachlass über weibliche Bildung (Berlin, 1801), were already beginning the agitation for woman's liberation. A remarkably clear and incisive essay in defense of woman, entitled De l'égalité des deux sexes, appeared in Paris in 1673. Condorcet, Lettres d'un bourgeois de New Haven à un citoyen de Virginie (1787) compressed into a few sentences the basic arguments for the movement. In the same year appeared Mary Wollstonecraft's Thoughts on the Education of Daughters, a forerunner of her Vindication five years later. During the next fifty years a few earnest champions of woman's freedom came forward. First was Mary Anne Radcliffe, Female Advocate, or an attempt to recover the Rights of Women from Male Usurpation (London, 1799); followed by Hannah Mather Crocker, Observations on the Real Rights of Women (Boston, 1818); William Thompson and Mrs. Wheeler, Appeal ... of Women (London, 1825), a book written in reply to a statement in James Mill's article on Government, and possibly influencing John Stuart Mill's later thoughts on the subject; Sarah M. Grimke, Letters on Equality of the Sexes (Boston, 1838); Lady Sydney Morgan, Woman and her Master (London, 1840); Mrs. Ellis, Woman's Rights and Duties (London, 1840). The movement took organic form in 1848, when the first convention was held at Seneca Falls, New York. This was followed in 1850 by conventions in Ohio and Massachusetts. In 1851 Mrs. John Stuart Mill's powerful article in the July number of the Westminster Review on the "Enfranchisement of Women" supplied the agitation with a definite program. See Fawcett, The Woman Question in Europe, 273, note; Stanton, Anthony, and Gage, Hist. of Woman Suffrage, I, 70 ff.; Ostrogorski, Rights of Women, 54 ff.; Johnson, Woman and the Republic, 39 ff.; Wade, Women, Past and Present, 247.

[808] According to Hartmann, The Sexes Compared, 3, 6 ff., there is between man and woman a fundamental and irremovable distinction: The woman rules sexually and therefore "we must, by way of compensation, uphold the legal superiority of man." In establishing sexual equality the progress of culture receives a severe blow. More wonderful is the teaching of Schopenhauer. "Women," he says, "are directly adapted to act as the nurses and educators of our childhood, for the simple reason that they themselves are childish, foolish, and short-sighted—in a word are big children all their lives, something intermediate between the child and the man, who is a man in the strict sense of the word."—On Women: in Dircks's Essays of Schopenhauer, 65; or his Sämmtliche Werke, III, 649 ff.

[809] Lourbet, La femme devant la science contemporaine, 157, 161. See especially Bebel, Die Frau und der Sozialismus, 233 ff.

[810] Spencer, Justice, 186. For an elaborate discussion of woman's mental capacity see Mill, Subjection of Women, 91-146.

[811] For example, see Dr. Strahan, "The Struggle of the Sexes: its Effect upon the Race," Humanitarian, III (Nov., 1893), 349-57; replying to an article entitled "Sex Bias" in the same journal for July of that year; Edson, "Women of Today," North Am. Rev., CLVII, 440-51; who is criticised by Ichenhaeuser, Die Ausnahmestellung Deutschlands in Sachen des Frauenstudiums, 8 ff.; an article entitled "'Woman's Rights' Question Considered from a Biological Point of View," Quart. Jour. of Sci., XV, 469-84; which is effectually disposed of by Ward, "Our Better Halves," Forum, VI, 266-75. Ward is attacked by Allen, "Woman's Place in Nature," Forum, VII, 258-63. Romanes, "Mental Differences of Men and Women," in Pop. Sci. Monthly, XXXI, 383-401, takes a conservative or intermediate position. A liberal view is held by Brooks, "The Condition of Women Zoölogically," ibid., XV, 145 ff., 347 ff.; and by White, "Woman's Place in Nature," ibid., VI, 292-301.

[812] Caird, Morality of Marriage, 13, 174, 175.

[813] Quoted by Caird, op. cit., 14. For a trenchant discussion of this point compare Mill, Subjection of Women, 38-52, 111 ff., passim.

[814] Ward, Dynamic Sociology, I, 662.

[815] Dike, "Some Aspects of the Divorce Question," Princeton Rev., March, 1884, 180. Compare Allen, "The New England Family," New Englander, March, 1882, 146 ff.; Crepaz, Die Gefahren der Frauen-Emancipation, 24 ff.

[816] Kuczynski, "Fecundity of the Native and Foreign Born Pop. of Mass.," Quart. Jour. of Economics, XVI, 1-36; Crum, "The Birth-Rate in Mass.," ibid., XI, 248-65; Dumont, "Essai sur le natalité en Mass.," Jour. de la soc. stat. de Paris, XXXVIII (1897), 332-53, 385-95; XXXIX (1898), 64-99; Molinari, "Decline of the French Population," Jour. of the Royal Stat. Soc., LIII, 183-97; Mayo-Smith, Statistics and Sociology, 67 ff.; Ussher, Neo-Malthusianism, 137-64; Edson, "Women of Today," North Am. Rev., CLVII, 446 ff.

[817] Sometime, it is to be hoped, society may seriously take in hand the problem of restraining the propagation of criminals, dependents, and the other unfit: see Warner, American Charities, 132, 133.

[818] Willcox, "A Study of Vital Statistics," in Pol. Sci. Quart., VIII, 76, 77; Ogle, "On Marriage-Rates and Marriage-Ages," Jour. of the Royal Stat. Soc., LIII, 272 ff.; Kuczynski, "Fecundity of the Native and Foreign Born Pop. in Mass.," Quart. Jour. of Economics, XVI, 1-36; Mayo-Smith, Statistics and Sociology, 103 ff., 124; Crum, "The Marriage Rate in Mass.," Pub. of Am. Stat. Assoc., IV, 331 ff.; Wallace, "Human Selection," Fort. Rev., XLVIII, 335 ff.

[819] Strahan, Marriage and Disease, 245 ff., giving statistics. Cf. Edson, "The Evils of Early Marriages," North Am. Rev., CLVIII, 230-34; Ussher, Neo-Malthusianism, 213 ff.; Wallace, "Human Selection," Fort. Rev., XLVIII, 333 ff.; Legouvé, Hist. morale des femmes, 74-84.

[820] See especially the excellent paper of Mary Roberts Smith, "Statistics of College and Non-College Women," Pub. of the Am. Stat. Assoc., VII, 1-26, whose conclusions support the view taken in the text; and Sidgwick, Health Statistics of Women Students of Cambridge and Oxford and Their Sisters (Cambridge, 1890), who reaches similar general results. Cf. Thwing, "What Becomes of College Women?" North Am. Rev., CLXI, 546-53, taking a very favorable view of the influence of higher education on woman in her domestic relations; and Shinn, "The Marriage Rate of College Women," Century, L, 946-48. Consult also the articles of F. M. Abbott, C. S. Angstman, G. E. Gardner, and F. Franklin mentioned in the Bibliographical Index, IV; and read Clara E. Collet's "Prospects of Marriage for Women," Nineteenth Century, XXXI, 537-52.

[821] Muirhead, "Is the Family Declining?" Int. Jour. of Ethics, Oct., 1896, 47-50.

[822] There are many reasons why all persons do not marry. Among these is a loftier ideal of love. "Persons often live single a whole life-time because they are unable to obtain the only one in the world for whom they can ever experience a throb of pure passion.... We see then that this more diffused and elevated form of love becomes at once the greatest incentive and the greatest barrier to marriage. It differs wholly from the localized passion in being selective. While it is less selfish, it must be called out by, and exclusively directed toward, one definite object. From this circumstance it may be called the objective form of love."—Ward, Dynamic Sociology, I, 626.

[823] Mrs. Mill, "Enfranchisement of Women," Westminster Review, July 1851; or Dissertations and Discussions, III, 117, 118. "While far from being expedient, we are firmly convinced, that the division of mankind into castes, one born to rule over the other, is in this case, as in all cases, an unqualified mischief; a source of perversion and demoralization, both to the favored class and to those at whose expense they are favored; producing none of the good which it is the custom to ascribe to it, and forming a bar, almost insuperable while it lasts, to any really vital improvement, either in the character or in the social condition of the human race."—Ibid., 101. Cf. Mr. Mill's masterly discussion of the relative effects of equality and inequality in marriage, in Subjection of Women, 53-90, 146 ff.

[824] "Yet coeducation wisely managed is almost indispensable to the training of noble men and women; for education in its broadest sense takes account of all the influences that go to form character. It is not wholly intellectual, but is moral and social, and can best be carried forward, under a proper régime, where young men and women are educated and trained together."—Livermore, What Shall We Do with Our Daughters? 44 ff. Cf. Kuhnow, Frauenbildung und Frauenberuf, 7 ff.; and especially Wollstonecraft, Vindication of the Rights of Woman, 361 ff., 381-413.

[825] Stetson, Women and Economics, 151. On the woman labor question see the very enlightening discussion of Olive Schreiner, "The Woman's Movement of Our Day," Harper's Bazar, XXXVI (1902), 3-8, 103-7, 222-27; and her "Woman Question," Cosmopolitan, XXVIII (1899-1900), 45-54, 182-92, emphasizing the danger of woman's "sex-parasitism," through her economic dependence. Compare Günther, Das Recht der Frau auf Arbeit, 6 ff.

[826] The hardships which women as well as men endure under the present industrial conditions have little connection with their economic emancipation. "What some call a woman's movement for industrial liberty is not quite what it is claimed to be. It is largely an incident in the movement of property, which is seeking its own ends, caring very little for either sex or age. In order to find an easier place under the common industrial yoke that rests upon the neck of every individual, women seek more and more employments. But it is not so much womanhood as it is property that is the real impelling cause."—Dike, "Problems of the Family," Century, XXXIX, 392. Cf. Legouvé, Hist. morale des femmes, 366-90; Graffenried, "The Condition of Wage-Earning Women," Forum, XV, 68 ff.; Edson, "American Life and Physical Deterioration," North Am. Rev., CLVII, 440 ff., referring to the alleged evil effects of woman's new activities; Dilke, "Industrial Position of Women," Fort. Rev., LIV, 499 ff., discussing the condition of factory workers; Phillipps, "The Working Lady in London," ibid., LII, 193 ff.; Bremner, "The Financial Dependence of Women," North Am. Rev., CLVIII, 382 ff., protesting against regarding the economic "dependence of the wife as degradation;" and Collet, "Official Statistics on the Employment of Women," Jour. of the Stat. Soc., LXI, 216-60. Mrs. Mill, "Enfranchisement of Women," Dissertation, III, 109 ff., effectually disposes of the objection based on the alleged effects of woman's industrial competition with men. Cf. the elaborate discussion of Bebel, Die Frau und der Sozialismus, 202 ff.

[827] Mary Anne Radcliffe, The Female Advocate (London, 1799). A petition of women to Louis XVI. in 1789 prays "that men may not ply the trades belonging to women, whether dressmaking, embroidery, or haberdashery. Let them leave us, at least the needle and the spindle, and we will engage not to wield the compass or the square."—Ostrogorski, The Rights of Women, 26, 27; following Lefaure, Le socialisme pendant la révolution, 122.

[828] By the Custody of Infants Act, 1886: see the discussion of Caird, Morality of Marriage, 49, 55 ff.

[829] Bishop, Marriage, Div., and Sep., II, 452 ff.

[830] Pearson, "The Decline of the Family," in his National Life and Character, 240, 234, 235. In many of the American states the wife may bring action against the seducer of her husband: Bishop, Mar., Div., and Sep., I, 568.

[831] This fact is seized upon in one of the most powerful books produced in recent sociological discussion. According to Mrs. Stetson "we are the only animal species in which the female depends on the male for food, the only animal species in which the sex-relation is also an economic relation. With us an entire sex lives in a relation of economic dependence upon the other sex." The wife may toil unceasingly; but the labor which she "performs in the household is given as a part of her functional duty, not as employment." She is therefore not her husband's "business partner;" for as an intended equivalent for what she gets she contributes neither labor nor capital nor experience nor even motherhood. She contributes her sex-attractions. Sex-distinctions are therefore excessively developed; and the "sexuo-economic relation" becomes inevitable. "By the economic dependence of the human female upon the male, the balance of forces is altered. Natural selection no longer checks the action of sexual selection, but coöperates with it;" for "man, in supporting woman, has become her economic environment." Under "sexual selection the human creature is of course modified to its mate, as with all creatures. When the mate becomes also the master, when economic necessity is added to sex-attraction, we have the two great evolutionary forces acting together to the same end; namely, to develop sex-distinction in the human female. For, in her position of economic dependence in the sexual relation, sex-distinction is with her not only a means of attracting a mate, as with all creatures, but a means of getting a livelihood, as is the case with no other creature under heaven. Because of the economic dependence of the human female on her mate she is modified to sex to an excessive degree. This excessive modification she transmits to her children; and so is steadily implanted in the human constitution the morbid tendency to excess in this relation, which has acted so universally upon us in all ages, in spite of our best efforts to restrain it." While in man the immediate dominating force of sexual passion may be more conspicuous, in woman it holds more universal sway. "For the man has other powers and faculties in full use, whereby to break loose from the force of this; and the woman, specially modified to sex and denied racial activity, pours her whole life into love." Useful to the race as was this evolution originally, its influence for good has long since reached its limit. Excessive sex-energy has threatened to "destroy both individual and race." Hence woman is declining longer to be confined to her highly specialized sexual function and is demanding an equal place in the social organization. She is gaining a social consciousness: Stetson, Women and Economics, 5, 12 ff., 37 ff., 48, 122-45. Cf. Schreiner, "The Woman Question," Cosmopolitan, XXVIII, 183 ff., on "sex-parasitism."

[832] Cf. Stetson, op. cit., 156 ff. "The woman's club movement is one of the most important sociological phenomena of the century—indeed, of all centuries—marking as it does the first timid steps toward social organization of these so long unsocialized members of our race;" for "social life is absolutely conditioned upon organization."—Ibid., 164. On woman's clubs see Croly, Hist. of the Woman's Club Movement in America; Henrotin, Attitude of Women's Clubs Toward Social Economics; Livermore, North Am. Rev., CL, 115; Anstruther, Nineteenth Century, XLV, 598-611; and a symposium in Arena, VI, 362-88. The financial dependence of the wife is discussed by Cooke, "Real Rights of Women," North Am. Rev., CXLIX, 353, 354; and by Ives, "Domestic Purse Strings," Forum, X, 106-14, showing the hardships and temptations of wives dependent upon the husband for current supplies of money.

[833] According to Cardinal Gibbons there are "two species of polygamy—simultaneous and successive": "Is Divorce Wrong?" in North Am. Rev., CXLIX, 520.

[834] The epigram of Father Yorke, of San Francisco.

[835] Wilhelm v. Humboldt, Sphere and Duties of Government: cited by Mill, On Liberty, 185, 186.

[836] For examples see Sewell, in Westminster Review, CXLV, 182 ff., suggesting a form of private contract; and Besant, Marriage, 19, 20, who asks: "Why should not we take a leaf out of the Quakers' book, and substitute for the present legal forms of marriage a simple declaration publicly made?... but as soon as the laws are moralized, and wives are regarded as self-possessing human beings, instead of as property, then the declaration may, with advantage, seek the sanction of the law." She mentions the well-known cases of Mary Wollstonecraft, her daughter and Shelley, Richard Carlile, and that of George Henry Lewes and George Eliot. Mrs. Caird would not go so far. The state, she concludes, hes no right to interfere in the marriage contract. "How can it withdraw its interference without causing social confusion? The answer seems plain. By a gradual widening of the limitations within which individuals might be allowed to draw up their private contracts, until, finally, moral standards had risen sufficiently high to enable the state to cease from interfering in private concerns altogether."—The Morality of Marriage, 126. Donisthorpe, "The Future of Marriage," Fort. Rev., LI, 263, recommends a system of free private contract for one year, renewable at the pleasure of the parties. He is criticised by Malmsbury, ibid., 272-82. Cf. also "Marriage and Free Thought," ibid., L, 275 ff.

[837] Tocqueville, La démocratie en Amérique, II, 215.

[838] Lecky, Dem. and Liberty, II, 208.

[839] Bryce, Studies in Hist. and Jur., 850.

[840] Wright, in Arena, V, 141, 143. See also his Practical Sociology, 170 ff.; and compare the article of Savage, "Matrimony and the State," Forum, X, 117 ff.; that of Janes, "Divorce Sociologically Considered," New Englander, May, 1891, 395-402; and that of Adler, "The Ethics of Divorce," in Ethical Record, II, 200-209; III, 1-7.

[841] The following newspaper paragraph relating to a notorious wedding resort in Michigan illustrates the shocking frivolity with which the most important of human relations is sometimes treated: "It is estimated that fully 20,000 people will visit this city tomorrow to attend the third annual Maccabees' county picnic.... It is thought tomorrow will prove to be the greatest day in the history of St. Joseph as the Gretna Green of Chicago.... Fully forty-four bridal couples will arrive from Chicago to take advantage of being married free, as is offered by the Maccabees in a part of their program. The parties with matrimonial intentions, upon calling at Marriage Temple, will be furnished by County Clerk Needham with their license and a handsome marriage certificate, free of charge, provided they consent to be married in public from the verandah of the hotels. Any clergyman in the city, upon request ... , will officiate. Hundreds of excursionists from Indiana will come for the express purpose of witnessing the ceremonies." On this point read the interesting article of Dendy, "Marriage in East London," Cont. Rev., LXV, 427-32.

[842] Elizabeth Stuart Phelps, "Women's Views of Divorce," North Am. Rev., CL, 130, 131.

[843] Cf. Flower, "Prostitution Within the Marriage Bond," Arena, XIII, 59-73; idem, "Wellsprings of Immorality," ibid., XI, 56-70; Heinzen, The Rights of Women and the Sexual Relations, 44 ff.; Stetson, Women and Economics, 63 ff.; Caird, Morality of Marriage, 73-91, 134 ff., discussing the influence of the Reformation upon sensuality; Karl Pearson, "Socialism and Sex," in his Ethic of Free Thought, 427-46, on the alleged evil influence of Luther on the sex-relations; Bebel, Die Frau und der Sozialismus, 93 ff., taking the opposite view as to Luther, and considering the causes of the decline in the birth and marriage rates.

The traditional opinion is represented by Naumann, Christenthum und Familie, 21, 22, who believes in getting children at all hazards, relying on God to take care of them: "Es gibt auch Christen," he says, "welche sich vor Entfaltung des vollen Gottessegens in den Ehen fürchten, ganz als ob es nicht wahr wäre: was unser Gott erschaffen hat, das will er auch erhalten. In unsern Augen ist es Glaubensschwäche, wenn ein christliches Volk sich vor dem Gottessegen reicher, blühender Kinderschaaren fürchtet." On the same side see Hartmann, The Sexes Compared, 28 ff.; Pomeroy, The Ethics of Marriage, 45 ff., 94 ff. For an antidote read the able discussion of the diminishing need of child-bearing under modern conditions, by Olive Schreiner, "The Woman Question," Cosmopolitan, XXVIII, 51 ff.; and Lady Somerset, "The Welcome Child," Arena, XII, 42-49; criticised by Ussher, Neo-Malthusianism, 101 ff., 201. Cf. Wright, Practical Sociology, 68 ff.; Bertheau, Lois de la population, 299 ff., 342 ff.

[844] For a radical discussion of this topic, see Stanley, "Artificial Selection and the Marriage Problem," Monist, II, 51 ff.; idem, "Our Civilization and the Marriage Problem," Arena, II, 94-100. He is criticised by Wallace, "Human Selection," Fort. Rev., XLVIII, 325 ff. An extreme position is taken by Grant Allen, "The Girl of the Future," Universal Rev., May, 1890; and "Plain Words on the Woman Question," Fort. Rev., Oct., 1889. Cf. Wertheimer, "Homiculture," Nineteenth Century, XXIV, 390-92.

[845] See Dr. Thomas D. Wood's able paper, Some Controlling Ideals of the Family Life of the Future, 27.

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