The Washington Historical Quarterly, Volume V, 1914

by Various

A more sturdy type of man, who served as war governor, was William Pickering. His views on the granting of legislative divorces is but a voicing of the general sentiment. Prior to his arrival in the territory, unhappy married people had usually applied to the legislature for the granting of divorces. At nearly every session one or more acts had been passed and the divorce business had been particularly active during the two preceding sessions, at one of which fifteen and the other seventeen such acts had been passed. Secretary Turney, as acting governor, had declared against this practice in the message he sent to legislature in December, 1861, but no attention was paid to his recommendation that it be discontinued. Turney's attitude on the question was expressed as follows: "All good citizens acknowledge and respect the marriage relation. Yet, the interests of society are often stabbed and stricken down, and public sentiment outraged and insulted by disregarding that sanctity, in severing those who have been united in wedlock's holy bands. Those ties should be sundered only by courts of competent jurisdiction, and only for one cause—the scriptural ground for a writing of divorcement."

Pickering's message was but a renewal of this recommendation and his principal points were that the law declared marriage to be a civil contract, all breaches or violations of which were proper subjects for the judiciary alone. The courts alone could hear the testimony of the parties and they alone could render final judgment and decree for alimony and determine which of the parties should have the care and custody of the minor children. Although sixteen divorces were granted at this session, an act was passed at the succeeding session which practically committed the granting of divorces to the courts, and the practice of applying to the legislature was soon discontinued.

Pickering's position on the question, as brought out in his first gubernatorial message to the legislature on December 17, 1862, was as follows: "I should be recreant to the duty I owe to society, if I failed to call your serious attention to the sad and immoral effects growing out of the readiness with which our legislative assemblies have heretofore annulled that most solemn contract of marriage. Let me earnestly invoke you to stay the evils, which result from the legislature granting divorces, thereby destroying the sacred responsibilities and duties of husband and wife merely upon the request, or petition, of one of the parties.

"Without intending to trespass upon your law making province, permit me to suggest for your consideration the fact, that the present laws declare marriage to be a civil contract; therefore all breaches or violations of its conditions are proper subjects for the judiciary alone, and not for legislative enactment on one side, or ex parte statements.

"The law as it stands upon the statute books of the territory has conferred full jurisdiction upon the courts, in all cases belonging to divorces, which is the only tribunal that can deliberately hear and examine all the witnesses on both sides of those unfortunate domestic difficulties of the parties applying for a dissolution of the marriage contract.

"The legislature seldom has the opportunity of hearing any witnesses, even on the side of the complaining party, and never can have before them all the witnesses connected with both parties, especially necessary to the proper adjudication of these cases. It will also be well to remember, that in the divorce cases the legislature cannot decree or enter judgment for alimony, division of property belonging to the married parties, nor legally decide whether the separate husband or wife, shall lawfully continue the possession, care and control of their children.

"The court alone can have full power to render final judgment and decree of alimony, division of property and direct who shall have the care and control of the minor children.

"Many of the legislatures of the states, for several years past, have positively refused to grant divorces. Eminent lawyers are agreed in the opinion that all divorces granted by the legislature are entirely unconstitutional, and therefore null and void, for the reason that no act of the legislature can destroy, annul, violate, or set aside the said civil contract nor the sacred and religious bonds and mutual obligations entered into by man and wife at the solemnization of marriage. It is at all times a very serious and delicate matter for any person or persons to interfere in any manner in the unhappy quarrels and family difficulties of man and wife. There are few subjects brought before the courts of our country requiring to be treated with more deliberate care and caution than divorces.

"Whenever a legislative body takes an action in cases of divorces, it is not improperly regarded as an infringement upon the legislative provinces of the courts. For these reasons I trust your honorable body will firmly refuse to interfere with the rights of husband and wife. Applicants, seeking separation, should be directed to the courts of our territory where they can receive all the relief and remedy for their grievances which the laws of our country afford."