A radical change was made in 1847. All the foregoing causes were at once superseded by a sweeping provision which is without parallel in the previous history of New England. By an act of that year, amended in one particular in 1849, any justice of the supreme judicial court, at any term held in the county of the parties, may grant decrees of divorce from the bond of wedlock, when "in the exercise of a sound discretion" he may "deem the same reasonable and proper, conducive to domestic harmony, and consistent with the peace and morality of society."[66] Moreover, to understand the full import of this law we must take into account an enactment of 1850. In no case is the libellant then to be "restricted to the proof of causes happening within the state," or where either of the persons is "residing within the state," but he "may allege and prove any facts tending to show that the divorce would be" just according to the provision of the law in question.[67] The act of 1847 remained in force until 1883,[68] when a new statute appeared which completely transformed the divorce system of Maine. Seven causes of dissolution a vinculo are prescribed. These are (1) adultery; (2) impotence; (3) extreme cruelty; (4) utter desertion for three years; (5) gross and confirmed habits of intoxication; (6) cruel and abusive treatment; and (7) gross, cruel, and wanton neglect or refusal of the husband, being able, to provide for the wife.[69] At the same time the decree from bed and board is abolished; and the decree nisi is instituted in practically the same form as in Massachusetts.[70] In 1897 a modified provision as to residence was adopted, and two years later the law took its present form. The same seven causes sanctioned by the act of 1883 are retained, except that under the fifth head the qualifying words are added, "from the use of intoxicating liquors, opium, or other drugs."[71]
b) Remarriage, residence, notice, and miscellaneous provisions.—The character of a divorce law does not, of course, depend wholly upon the number of causes for separation allowed, but in large measure upon the conditions under which the decree is granted and the safeguards provided to prevent hasty or clandestine action. Whether or not either or both of the divorced persons shall be allowed to contract further marriage, and on what terms, has always been an important question. The more general tendency of modern legislation, in the United States and elsewhere, is to allow entire freedom in this regard, except for a short period after the decree. But in New England during the century the matter has been dealt with in various ways. Thus in Massachusetts, for more than fifty years after the Revolution, the guilty party to a complete divorce was absolutely incapable of contracting a legal marriage. This doctrine is established by later judicial construction of the act of February 17, 1785, in connection with that of March 16, 1786. "We think it very clear," declares Chief Justice Parker, interpreting these laws in 1823, that "the marriage of the guilty party, after a divorce a vinculo for the cause of adultery, if contracted within this state, would be unlawful and void. The statutes which we think must have this construction are not expressed in very intelligible terms, but, on close examination, we think the intention of the legislature cannot be mistaken."[72] In this decision the court further raises one of the gravest difficulties of divorce legislation in the United States. The marriage in another state of the guilty party to a divorce in Massachusetts, under the laws just considered, is held to be valid, if such marriage is not forbidden in the state where the new marriage is contracted.[73] But will such a marriage be good in Massachusetts, should the persons at once return to that commonwealth? This important question, left in doubt by Chief Justice Parker, was settled in 1829. In the case of Putnam v. Putnam the court decided that if a man, "being a resident in this state for the sake of evading the law, goes into a neighboring state where such a marriage is valid, and is there married and immediately returns and continues to reside here, the marriage is valid here, and after his death his widow is entitled to dower in his estate."[74]
Gradually the stringency of the early Massachusetts rule was relaxed. An act of 1841 declares that whenever a divorce from the bond of matrimony "shall be decreed for any of the causes allowed by law, the guilty party shall be debarred from contracting marriage during the life-time" of the other, subject for disobedience to the penalty prescribed for "polygamy."[75] Twelve years later, by leave of the court, in case of divorce for desertion, the offending spouse is allowed to remarry.[76] A further step is taken in 1855. In all cases, except for adultery, the court is then empowered, on petition and proper notice, to allow the person against whom a decree has been granted to marry again.[77] In 1864 a new rule appears. Three years must now elapse in all cases, not excepting a decree for adultery, before such permission may be granted.[78] Still later all restriction as to time is removed,[79] but as the law now stands, the offending person, without petition to the Court, may again marry after an interval of two years from the date of the absolute decree.[80]
The early laws of Maine show no restraints upon remarriage after divorce, but since 1883 the Massachusetts precedent has been followed, with some interesting variations. In case of collusion, where both persons are guilty of adultery, no separation will be allowed. After obtaining the final decree, the person in whose favor it is granted may not marry within two years without the court's permission. Within that period the adverse party is absolutely forbidden to remarry; nor may he do so thereafter without the court's consent.[81] There is also a unique provision for a new trial. Within three years after a judgment has been rendered, a rehearing as to divorce may be had in case the persons have not cohabited nor either of them contracted a new marriage during the period. Moreover, if either has married again, such new trial may be "granted as to alimony or specific sum decreed" when "it appears that justice has not been done through fraud, accident, mistake, or misfortune."[82]
During the "assumption" period the popular assembly of Vermont followed the Connecticut rule as it then stood, allowing only the innocent person to contract a new marriage.[83] But from 1797 onward the laws of the state grant entire freedom to either spouse in this regard.[84] At present the "libellee" is not permitted "to marry a person other than the libellant for three years," unless the latter dies.[85]
The other states have been less conservative. By the New Hampshire law of 1840, already noticed, divorce from the bond of marriage is allowed to the "innocent party" in case of felony, drunkenness, and the other causes there assigned.[86] This provision is still retained;[87] but either person may remarry. So also by the Connecticut law previous to 1849 it is the "aggrieved" who is to be counted as "single" and able to marry, while at present no such limitation appears. Rhode Island has been even more liberal. At no time during the century, apparently, has the legislature placed any conditions upon the remarriage of either party to a divorce decreed for any cause, except that in 1902 it was provided that no decree shall become final and operative until six months after trial and decision.[88]
Clandestine divorce is an evil as notorious, if not so harmful, as clandestine marriage. To prevent it the New England states have been fairly prudent in their regulation of "residence" and "notice." By the existing law of Massachusetts, a divorce will be granted for any lawful cause, occurring in the state or elsewhere, when the libellant has lived for five years in the commonwealth; or, when the parties were inhabitants of the state at the time of the marriage, if the libellant has been such an inhabitant for three years before the libel was filed, provided neither person came into the state for the purpose. With this exception, as expressly provided in the statute, a divorce will not be granted for any cause, if the parties have never lived together as man and wife in the commonwealth; nor for any cause occurring in another state or country, unless, before it occurred, they had so lived together in the commonwealth, and one of them was there living at the time it took place. A divorce lawfully decreed in another state or country is recognized as valid. On the other hand, when an inhabitant of the commonwealth goes outside the state to obtain a divorce for a cause which occurred in the state while the persons there resided, or for a cause which would not be recognized as lawful therein, the "divorce so obtained shall be of no force or effect" in the commonwealth.[89] Proceedings for a divorce are not barred, however, when the "libellee has been continuously absent for such a period of time and under such circumstances as would raise a presumption of death."[90]
Similar provisions exist in the other states, although sometimes they are less severe. The New Hampshire court has jurisdiction in matters of divorce under three alternate conditions: (1) when both parties are domiciled in the state when the libel is filed; (2) when the plaintiff is so domiciled and the defendant is personally served with process in the state; and (3) when either of the parties is domiciled in the state at the commencement of the suit, and has actually resided there for the year preceding.[91] In Rhode Island the term of prior residence for the petitioner is two years.[92] As early as 1805 in Vermont a three-years' residence was required in order to obtain a divorce; and a decree would not be granted for any cause occurring before the applicant became a resident of the state.[93] The term was reduced to one year in 1807.[94] As the law stood in 1863, the requirement as to residence was still defective. "Such divorce for adultery, intolerable severity, and wilful desertion for three years may be granted when the causes happened while residing in another state or country if the libellant has resided in the state two years previous to the term of court to which the petition is preferred."[95] An attempt was made in 1878 to put a check upon the increasing number of divorces by prescribing more careful conditions. No divorce is henceforth to "be decreed for any cause, if the parties have never lived together as husband and wife" in the state, nor unless the libellant shall have resided there "one full year next preceding the filing of the libel in court." Furthermore, no divorce may be granted for any cause "which shall have accrued in any other state or country, unless one of the parties was then living in the state, and unless before such cause accrued the parties had lived together in this state as husband and wife.[96] In substance this law is still in force, though the present provisions are more precise. A divorce may not be granted "for any cause which accrued in another state or country before the parties lived together in this state as husband and wife, and while neither party was a resident of this state, unless the libellant shall have resided in this state at least one year and in the county where the libel is preferred at least three months next before the term of the court to which the libel is preferred."[97] The statutes of Maine authorize divorce for any legal cause, if the persons were married in the state; or if they cohabited there after marriage; or if the libellant resided in the state when the cause of action occurred, or had so resided for one year prior to the commencement of the suit; or if the libellee is a resident of the state when suit is brought.[98] With regard to foreign divorces and divorces obtained outside the state by inhabitants thereof, the law of Maine is identical with that of Massachusetts.[99] Throughout the century Connecticut has maintained a high standard in this regard. With some qualifications, three years' prior residence has always been required of a petitioner coming into the state from abroad.[100] As the law now stands, a complaint will be dismissed unless the complainant has continuously resided in the state for the preceding three years, except when the cause of divorce arose subsequently to his removal into the same; or unless the defendant had in like manner there resided for three years, and actual service was made upon him; or "unless the alleged cause is habitual intemperance, or intolerable cruelty and the plaintiff was domiciled in the state at the time of the marriage," and before bringing the complaint has returned with the intention of there remaining.[101]
Provision is likewise made by statute for proper notice to the defendant. Usually much freedom in this regard is left to the court. Thus in Maine, when the residence of the defendant can be ascertained, it must be named in the libel; and if the defendant lives out of the state, notice is to be made in such manner as the court may order. When the residence of the defendant is not known to the plaintiff and cannot be ascertained, the fact must be alleged under oath in the libel.[102] According to the Connecticut statute, the person aggrieved may make complaint to the court "in the form prescribed for civil actions, which shall be duly served on the other party, and whenever alimony is claimed, attachments to secure the same may be made by direction in the suit, or by an order pending suit in the same manner as in other civil actions." But when the adverse party resides out of the state or is absent from it, or his whereabouts is unknown to the plaintiff, "any judge or clerk of the supreme court of errors, or of the superior court, or any county commissioner, may make such order of notice to the adverse party as he may deem reasonable." Then "such notice having been given and duly proved," if the court finds that the defendant has actually received it, the suit may go on; otherwise the court may either "hear the case, or, if it see cause, order such further notice to be given as it may deem reasonable, and continue the complaint until the order is complied with."[103] In no case may a complaint be heard or a decree rendered until after the expiration of ninety days; except when the defendant appears in person or by counsel, when the complaint is to be treated as "privileged" and assigned at once for trial.[104] By the Vermont act of November 26, 1884, designed to "diminish the frequency of divorces," it is provided that "at the term succeeding the term at which the cause is entered, or at any subsequent term to which the cause may be continued, the same shall not be heard unless the libellee is present, except in cases when it is proven to the court that the libellant has, in good faith, attempted to procure the attendance of the libellee and has been unable to do so." In this last event the court may in its discretion proceed to try the case, postpone the hearing in the hope of securing the presence of the libellee, or it may require the latter's deposition.[105] This provision was repealed in 1886.[106] By the present law, when the "libellee is without the state, the libellant may file his libel in the office of the clerk of the court in the county where the same is required to be brought, and such clerk shall issue an order stating the substance of the libel or petition, and requiring the adverse party to appear on the first day of the next stated term of the county court" and make answer. This order the libellant "shall cause to be published in such newspaper as is directed by the order, three weeks successively, the last publication to be at least six weeks previous to the commencement of the term at which the libellee is required to appear." Should the libellee not appear, and "the notice of the pendency of the libel is considered by the court defective or insufficient, it may order further notice to be given."[107]
Massachusetts likewise has a recent provision as to notice. "When the adverse party does not appear," declares the act of 1898, "and the notice of the pendency of the libel is considered by the court to be defective or insufficient, it may order such further notice as it may consider proper." This statute further provides that "in all libels for divorce where the cause alleged is adultery, the person alleged to be particeps criminis with the libellee may appear and contest the libel."[108] Similar rules have been adopted by other states.[109]