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intolerable ill-usage, or wilful desertion, or unheard-of absence, or habitual drunkenness, or some of them, will authorize a decree for a divorce a vinculo, or from bed and board, under different modifications * and restrictions. The question of di- * 106




lature to authorize the courts, by laws of general and uniform operation, to grant divorces for causes to be specified; and by statute, in 1835, adultery, malicious desertion, or wilful absence for two years, or conviction of an infamous crime, were declared to be causes for judicial divorce. Statute Laws of Tennessee, 1836, p. 257.

In New Hampshire, desertion by the husband for three years, without provision for the wife's support, or joining the religious society of the Shakers, who hold cohabitation unlawful, and continuing in that society for three years, is a sufficient cause for a divorce. Dyer v. Dyer, 5 N. Hamp. 271. Clark v. Clark, 10 Ibid. 388. Union with any such sect is also ground for divorce in Kentucky. In Connecticut, divorce a vinculo applies to cases of adultery and intolerable cruelty, and habitual intemperance, and fraudulent contract, and wilful desertion for three years, with total neglect of duty, or seven years' absence, and being unheard of during the time. Statute Code, 1702. Ibid. 1784. Ibid. 1821, p. 178. Statutes of Connecticut, 1838, p. 135. Statute of Connecticut, 1843. This last statute requires a residence of three years after removal from another state or nation before a petition for a divorce can be allowed, unless the cause of divorce arose since the removal of a party to a state. The statute of 1667 has remained the same in substance down to this day, though, during all that period, the legislature has occasionally passed special acts of divorce a vinculo. Dagget, J., in Starr v. Pease, 8 Conn. 541. The power of granting divorces in Connecticut is conferred upon the Superior Court, and it is declared that no petition or memorial shall be preferred to the General Assembly, but in cases where no judicial court is, by law, competent to grant relief. Statutes of Connecticut, 1838, pp. 185, 324. Shaw v. Shaw, 17 Conn. 189, on the question of cruelty. Divorces in Maine are placed under similar regulations. 16 Maine, 479, App. This legislative provision must now put an end to the former irregular practice. In Maryland, by Act of 10th of March, 1842, the chancellor and the county court, as courts of equity, have jurisdiction in cases of divorce; and if the defendant has abandoned the complainant, and has remained absent from the state for five years, a divorce a vinculo may be had. A subsequent statute of 10th of March, 1845, has shortened the period of abandonment to three years, provided the abandonment has continued uninterruptedly, and is deliberato and final, without any reasonable expectation of reconciliation. But by the statute of 9th March, 1844, no application for a divorce is to be sustained, when the cause of the divorce occurred out of the state, unless the complainant has resided in the state for two years next preceding the application.

In Ohio, the Supreme Court is authorized to grant a divorce, if either party had a former husband or wife living at the time of the second marriage, or where either party is wilfully absent from the other for three years; and in cases of adultery or impotency at the time of the marriage, or in case of extreme cruelty, or where either party is imprisoned in the penitentiary for a crime, and application is made for the divorce pending the imprisonment: Statute of Ohio, 1824; and also in all classes of fraudulent


1 In Pennsylvania, the fact of the wife being insane at the time of committing adultery, is said, obiter not to be a bar to a bill of divorce by the husband. Matchin v. Matchin, 6 Barr, 332. But see, contra, Wray v. Wray, 19 Ala. 522. Broadstreet v. Broadstreet, 7 Mass. 474. Nichols v. Nichols, 31 Vernfont, 328.

vorce involves investigations which are properly of a judicial nature, and the jurisdiction over divorces ought to be confined exclusively to the judicial tribunals, under the limitations to be prescribed by law.(a)


contracts, and of habitual drunkenness for three years; and for a total and gross neglect of duty. Act, 1834. For the Revised Statutes of Massachusetts, 1836, on the subject, vide supra, p. 96, note (a). In Vermont, imprisonment in the state prison for three years or more, and being actually confined, is ground for a divorce. Revised Statutes of Vermont, 1839. In Massachusetts, by the statute of 17th April, 1838, wilful and utter desertion by either party from the other for five years consecutively, and without consent, is a ground for divorce. This statute of 1838 introduced a great change in the law of divorce, and in addition to adultery, confined the divorce a vinculo to this case of wilful and utter desertion, leaving the cases of extreme cruelty, and gross and wilful neglect of a suitable maintenance, to be redressed by a divorce from bed and board. Pidge v. Pidge, 3 Metcalf, 257. In Maine, by statute, 1838, a confirmed and common drunkard for three years may be divorced. In Pennsylvania, impotency, adultery, wilful and malicious desertion for two years, barbarous treatment by husband, &c., are grounds for a divorce a vinculo or a mensa et thoro in the latter case. Purdon's Dig. 268, 270. The statute of New Hampshire, 1839, ch. 457, authorizes divorce for incest, bigamy, impotency, adultery, absence for three years unheard of, extreme cruelty in either party, or wilful absence of either party for three years.8

(a) The legislature of Maine, in 1838, by concurrent resolution, declared, that to dissolve the marriage contract was rightfully a judicial and not a legislative power. The

3 In Connecticut, in addition to those mentioned above, the following are causes of divorce: Imprisonment of the other party for life; bestiality, or other infamous crime, involving a violation of conjugal duty, and punishment by imprisonment in the state's prison; or any misconduct of the other party permanently destroying the happiness of the petitioner, and defeating the purposes of the marriage relation.

In Kentucky, the following are causes of divorce, a rinculo, viz.: where a jury finds that either party has been guilty of, (1.) concealing any contagious or loathsome disease: (2.) that the contract has been entered into under duress by force or fraud: (3.) that either party has been guilty of such immoral conduct, or addicted to such obscene or degrading habits, as are destructive of the happiness of the parties, or of either of them: (4.) that the parties have separated and lived without communication for five years: (5.) that either party has unnecessarily exposed, in a public paper, the other to public notoriety and reproach for alleged abandonment: (6.) or by other unnecessary and cruel conduct, endeavored to disgrace the same. Laws, 1650, ch. 498.

In Louisiana, habitual intemperance was, in 1848, added to the preëxisting causes of divorce. Act of 1848, No. 80.

The Rev. Stats. of 1843, of Indiana, are so amended that the abandonment of one party by the other, for the space of one whole year, or such circumstances as in the opinion of the court renders the reconciliation of the parties hopeless, are made sufficient causes of divorce. Acts of Indiana, 1849, ch. 52.

In Missouri, in addition to the usual causes of divorce, there are added the following: habitual drunkenness for two years; cruel or barbarous treatment so as to endanger life; indignities, rendering the marriage state intolerable; the husband being guilty of such conduct as renders him a vagrant; pregnancy of the wife by another man at the time of marriage, unknown to the husband; and conviction of the husband before marriage, unknown to the wife, in any state, territory, or country, of felony. or infamous crime. Laws of Missouri, 1849.

It is very questionable whether the facility with which divorces can be procured in some of the states, be not productive of more evil than good. It is doubtful whether even divorces for adultery do not lead to much fraud and corruption. (6) Some of the jurists are of opinion that the adultery of the husband ought not to be noticed, or made subject to the same animadversion as that of the wife ; because it is not evidence of such entire depravity, nor equally injurious in its effects upon the morals, and good order, and happiness of domestic life. Montesquieu, (c) Pothier, (d) and Dr. Taylor, (e) all insist, that the case of husband and wife ought to be distinguished, and that the violation of the marriage vow, on the part of the wife, is the most mischievous, and the prosecution ought to be confined to the offence on her part. (f)

(2.) Of foreign divorces. It may become a question of some difficulty with us, how far

law of Mississippi required every judicial decree of a divorce a vinculo to be sanctioned by a law or resolution of two thirds of both branches of the legislature. R. C. of Mississippi, 1824, p. 230. But by the constitution and statute law of Mississippi, as they existed in 1843, jurisdiction is conferred equally upon the chancery and circuit courts in cases of divorce and alimony. Shotwell v. Shotwell, 1 Smedes & Marsh. Ch. 51.

(b) I have had occasion to believe, in the exercise of a judicial cognizance over numerous cases of divorce, that the sin of adultery was sometimes committed on the part of the husband, for the very parpose of the divorce.

(c) Esprit des Lois, tom. iii. p. 186.
(d) Traité du Contrat de Mariage, No. 516.

(e) Elem. of the Civil Law, p. 254. The early settlers in Massachusetts made the distinction, and male adultery was held not to be sufficient cause for a divorce. Hutchinson's Hist. vol. i. p. 445.

(f) In 1801 the question was discussed in the House of Lords, whether a parliamentary divorce ought to be granted on the application of the wife against the husband who had been guilty of incest with her sister. The divorce was granted by act of Parliament, and eloquently sustained by Lord Thurlow, and the precedent has been followed since in other cases of similar atrocityCampbell's Lives of the Lord Chancellors,


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In Virginia, the causes of divorce a vinculo are adultery, incurable impotency at the time of marriage, and sentence of either party to the penitentiary for seven years or more. Rev. Stats. tit. 31, ch. 109, sec. 6.

1 In South Carolina, no court has power to grant a divorce; and it was held, that there was no distinction between granting a divorce and declaring a marriage null. Mattison v. Mattison, 1 Strobh. Eq. 387.

a divorce in one state is to be received as valid in another. The first inquiry is, how far has the legislature of a state the right,

under the constitution of the United States, to interfere * 107 * with the marriage contract, and allow of divorces be

tween its own citizens, and within its own jurisdiction. The question has never been judicially raised and determined in the courts of the United States, and it has generally been considered that the state governments have complete control and discretion in the case. In the case of Dartmouth College v. Woodward, (a) the point was incidentally alluded to; and the chief justice observed, that the constitution of the United States had never been understood to restrict the general right of the legislatures of the states to legislate on the subject of divorces; and the object of state laws of divorce was to enable some tribunal, not to impair a marriage contract, but to liberate one of the parties, because it had been broken by the other. It would be in time to inquire into the constitutionality of their acts, when the state legislatures should undertake to annul all marriage contracts, or allow either party to annul it at the pleasure of the other. Another of the judges of the Supreme Court (6) spoke to the same effect. He said that a general law, regulating divorces, was not necessarily a law impairing the obligation of such a contract. А law, punishing a breach of a contract by imposing a forfeiture of the rights acquired under it, or dissolving it, because the mutual obligations were no longer observed, was not a law impairing the obligation of contracts. But he was not prepared to admit a power in the state legislatures to dissolve a marriage contract without any cause or default, and against the wish of the parties, and without a judicial inquiry to ascertain the breach of the contract.

Assuming, therefore, that in ordinary cases the constitution ality of the laws of divorce in the respective states is not to be questioned, (c) the embarrassing point is, to determine how far a divorce in one state has a valid operation in another. There can be no doubt that a divorce of the parties

(a) 4 Wheaton, 518.
(6) Mr. Justice Story.

(c) In Starr v. Pease, 8 Conn. 541, it was adjudged that legislative divorces a vinculo for cause, were constitutional and valid.

* who were married, and regularly domiciled at the time, * 108 in the state whose courts pronounced the divorce, would be valid everywhere. The difficulty is, when the husband and wife were married, and reside in a state where divorces are not permitted at all by the policy of its law, or not permitted to the extent and for the causes allowed to operate in other states; and they, or one of them, remove into another state for the sole and express purpose of procuring a divorce, and, having obtained it, return into their native state, and contract other matrimonial ties. How are the courts of the state where the parties had their home, to deal with such a divorce? When a divorce was sought in such a case, the courts in Massachusetts very properly refused to sustain a libel for a divorce, and sent the parties back to seek such relief as the laws of their own domicil afforded. (a) The Supreme Court of New York has refused to assist a party who had thus gone into another state, and obtained a divorce on grounds not admissible in New York, and procured in evasion of its laws. They would not sustain an action for alimony founded on such a divorce. (6) Afterwards, in Borden v. Fitch, (c) the same court held a divorce in another state, obtained by the husband when the wife resided out of the state, and had no notice of the proceeding, to be null and void ; because the court pronouncing the divorce

(a) Hopkins v. Hopkins, 3 Mass. 158. Carter v. Carter, 6 Mass. 263. By the Massachusetts Revised Statutes, 1836, no divorce is to be granted for a cause occurring out of the state, unless the parties, before such cause occurred, lived together as husband and wife in the state ; nor unless one of the parties at the time be living in the state. And if an inhabitant of the state goes out of it in order to obtain a divorce for a cause occurring within it, while the parties reside within it, or for any cause which would not authorize a divorce by the laws of Massachusetts, a divorce so obtained is of no force in the state. But in all other cases, a divorce decreed in any other state or country, according to the law of the place, by a court having jurisdiction of the cause and of the parties, would be valid in Massachusetts. This, as the revisers justly observed, is founded on the rule established by the comity of all civilized nations. In Barber v. Root, 10 Mass. 260, the decision was to that effect. A divorce in Vermont, of parties bonâ fide domiciled there, from a marriage contracted in Massachusetts, and for a cause which would not have dissolved the marriage in Massachusetts, was recognized as valid.

(6) Jackson v. Jackson, 1 Johns. 424.

(c) 15 Johns. 112. S. P. in Bradshaw v. Heath, 13 Wendell, 407, Vischer v. Vischer, 12 Barb. (N. Y.) 643. McGiffert v. McGiffert, 31 Barb. (N. Y.) 69.

Lyon v. Lyon, 2 Gray, 367. Leith v. Leith, 39 N. Hamp. 20, and Smith v. Smith, 13 Gray, 209.

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