A History of Matrimonial Institutions, Vol. 3 of 3

by George Elliott Howard

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

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

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

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

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

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

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

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

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

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