[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 The clause forbidding marriages between a white person and a negro, Indian, or mulatto was repealed Feb. 25, 1843: Supp.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.