task of the legislator during the century following the birth of the nation has, in general, consisted in effecting a further liberalization in the causes of divorce; while at the same time the details of the system have been gradually wrought out. At the close of the period one finds much more elaborate and careful provisions regarding causes, residence, notice, alimony and property than at the beginning. An attempt will be made in this chapter to sketch the course of legislation in all of the states during a hundred and twentyfive years. Necessarily only the more salient features can be brought out. The beginning and the end, with some of the more important intervening changes, may be dwelt upon. The immense volume of laws, the constant stream of legislative enactments, the ceaseless tinkering of the statutemaker, the wearisome repetitions, render anything more than this very difficult and perhaps unnecessary. The most that one can hope for is to make the right impression; to disclose the true perspective by a judicious selection and grouping of the materials.

a) Jurisdiction; causes and kinds of divorce.-Through their silence on the subject nearly all of the first state constitutions left the power of granting divorces in the hands of the legislative bodies. In Massachusetts, however, the practice of the provincial period was temporarily continued. "All causes of marriage, divorce, and alimony," declares the constitution of 1780, "shall be heard by the Governor and Council, until the Legislature shall by law make other provision." Such provision was made in 1786. Yet six years thereafter Governor Hancock is obliged to return to the senate unsigned a bill "for dissolving the bond of matrimony between Daniel Chickering and Abigail his wife," remarking that it is unconstitutional and the proposed divorce is for a cause for which by law only a separation a mensa et

1 Const. of Mass. (1780), chap. 3.

thoro may be granted. By the act of 1786 all questions of divorce and alimony are referred to the "Supreme Judicial Court holden for the County where the parties live," and its decrees are final. Here the jurisdiction remained until 1887, when it was vested in the superior court with appeal to the first-named tribunal; and the power to hear petitions for separate maintenance and for the care, custody, education, and support of minor children was given to the courts of probate in the several counties.3

The statute of 1786 is reactionary with respect to the grounds of divorce. It is expressly declared that no divorce from the bond of matrimony, in the proper sense of the word, shall be allowed except for impotency or adultery in either of the parties. But in the outset it is necessary to be on one's guard against a confusion of terms caused by a retention of canonical usage. In this act, and for many years in the statutes of Massachusetts, as in those of some of the other states, the sentence of nullity of void or voidable wedlock, on the usual grounds of forbidden degrees, bigamy, or the like, is called "divorce." For the first time in the revision of 1835 such unions, if solemnized within the state, are declared to be "absolutely void, without any decree of divorce, or other legal process;" and this is typical of the

1 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.

2 Laws of the Commonwealth of Mass., 1780-1816 (1807-16), I, 303.

3 Act of May 31, 1887: Supp. to the Pub. Stat. of the Com. of Mass., 1882–88 (1890), 584, 585.

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.

5"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

tendency in other states' to adopt what is now the prevailing usage.*

But in

The act under discussion was conservative in another important respect. Divorce from bed and board, which had crept into the judicial practice toward the close of the provincial era, was now allowed either partner by statute on the one ground of "extreme cruelty." Two new causes were added twenty-five years later. By the act of 1786, it will be observed, desertion and long absence, admitted during the earlier period as sufficient causes for dissolving the marriage bond, are not mentioned for either kind of divorce. 1811 it was enacted that the wife may be divorced a mensa et thoro, whenever the husband "shall utterly desert" her, or whenever, "being of sufficient ability thereto," he shall "wantonly and cruelly neglect or refuse to provide suitable maintenance for her." In all cases of separation from bed and board, as provided in 1829, the court may assign the wife all the personal estate which the husband received through the marriage, or such part of it as may seem just

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.

1 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).

2 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.

3 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. + Act of Feb. 28, 1811: ibid., IV, 223.

under the circumstances; while "all promissory notes and other choses in action" belonging to her before the marriage, or made payable during the coverture to her alone, or jointly with the husband on account of property belonging to her or debts due to her before the marriage, and all legacies to her, and personal property, which may have descended to her, as heir, or be held for her in trust, or in any other way appertaining to her in her own right, none of which things enumerated have been reduced to possession by the husband before the libel was filed, shall be and remain her separate property; and she is empowered to bring suit to recover it "in the same manner as if she were a feme sole." further important change' in the law appears to have been made before 1870, when divorce from bed and board was abolished.3

No

Chief interest, therefore, centers in the history of divorce from the bond of wedlock. To the two grounds of dissolution originally permitted new causes were added from time to time. Thus in 1835 the confinement of either spouse at hard labor under penal sentence for a period of seven years or more is declared sufficient for such a divorce; and a pardon granted to the guilty person will not work a restoration of conjugal rights. Utter and wilful desertion for a term of five years came next in 1838; and in 1850 a fifth cause, probably relating to the Shakers, was added. If either partner, it is declared, shall leave the other without consent and join a "religious sect or society that believes, or professes to believe, the relation between husband and wife void

4

1 Act of Feb. 18, 1829: Laws of the Com. of Mass., 1828-31 (1831), 83, 84.

2 The causes of divorce a mensa et thoro remain unaltered in Rev. Stat. of the Com. of Mass., 1835 (1836), 480.

3Supp. to Gen. Stat. of the Com. of Mass., 1860–72, I (2d ed., Boston, 1873), 871 (act of June 23, 1870).

Rev. Stat. (1836), 480. Impotency is also sanctioned; but this was already allowed by the act of 1786.

5 Act of April 17, 1838: Laws of the Com. of Mass. (1838), 415.

or unlawful," and there remain for three years, such act shall be deemed in behalf of the injured person a "sufficient cause of divorce from the bond of matrimony."1

A measure of fundamental importance makes its appearance in 1867. By it the divorce system of Massachusetts is completely reorganized. Not only is the way opened for presently doing away with separation from bed and board, but provision is made for suspending final action in any suit for dissolution of marriage by a device similar to that adopted in the English statute of 1860. The distinction between the "decree nisi" and the "decree absolute" was then introduced. "Decrees for divorce from the bond of matrimony may in the first instance be decrees nisi, to become absolute after the expiration of such time, not being less than six months from the entry thereof, as the court shall, by general or special orders, direct. At the expiration of the time assigned, on motion of the party in whose favor the decree was rendered, which motion may be entertained by any judge in term or vacation, the decree shall be made absolute, if the party moving shall have complied with the orders of the court, and no sufficient cause to the contrary shall appear." The orders of the court referred to require the person in whose favor a decree nisi has been rendered to publish at his own cost, in one or more newspapers, designated by the court, the fact of granting of the decree together with its terms and such other notice as the court may direct. will be observed that there is no express provision for "intervention," as in England by a private citizen or the Queen's proctor. The institution of the decree nisi gave the legislator thereafter a great deal of trouble. Statute after statute was enacted to alter, extend, or repeal its provisions. These

1 Act of March 20, 1850: Supp. to Rev. Stat., 1836–53, I, 592.

It

2 Act of May 9, 1867: Supp. to Gen. Stat. of the Com. of Mass., 1860–72, I, 565, 566. Cf. 98 Mass. Reports, 408; 104 ibid., 567.

3 See above chap. xi, sec. iii, d).