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." 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. 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

1 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 materiâ, must be construed together, and the exception in the first cited statute in favor of such persons, would avail." -1 PICKERING, 509.

2 See 1 PICKERING, 510, 511.

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."1

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." Twelve years later, by leave of the court, in case of divorce for desertion, the offending spouse is allowed to remarry. 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. 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. Still later all restriction as to time is removed," 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.'

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

1 Case of Putnam v. Putnam, 8 PICKERING, 433-35 (Sept., 1829).

2 Act of March 13, 1841: Acts and Resolves (1841), 371; also in Supp. to Rev. Stat., 1886-53, I, 189.

823.

3 Act of May 19, 1853: Supp. to Rev. Stat., 1836–53, I, 976.

4 Act of May 21, 1855, repealing the act of May 19, 1853: Acts and Resolves (1855),

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

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

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

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.' 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.""

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.3 But from 1797 onward the laws of the state grant entire freedom to either spouse in this regard. At present the "libellee" is not permitted "to marry a person other than the libellant for three years," unless the latter dies."

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. This provision is still retained; but either person may remarry. So also by the Connecticut law previous to

1 Rev. Stat. (1884), 520–22.

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

3 SLADE, State Papers, 364.

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

5 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.

* Laws of N. H. (1840), 488, 489. See subsection a) above.

1 Pub. Stat. of N. H. (1900), 591.

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.'

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.2 Proceedings for a divorce

1 Pub. Laws of R. I. (1902), 41.

2 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),

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."1

3

As

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. In Rhode Island the term of prior residence for the petitioner is two years. 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. The term was reduced to one year in 1807.5 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." An attempt was made in 1878 to put a check upon the increasing number of

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.

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

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

3 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.

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

5 Laws of State of Vt., I, 272, 273, 274.

6 Gen. Stat. (1863), chap. 70.