the case of a woman, (a) yet that lapse of time, or a long tacit acquiescence of the husband in his wife's infidelity, even without cohabitation, but without any disability on his part to prosecute, will be deemed equivalent to a condonatio injuriæ, and bar a prosecution for a divorce, unless the delay be satisfactorily accounted for. The husband is not to be permitted, at any distance of time, to agitate such inquiries, and especially where his tacit acquiescence continued after his wife had formed another matrimonial connection, and he slumbered, in uncomplaining silence, until she became the mother of a new race of children. (b) The statute law of New York has declared, that the court may refuse to decree a divorce, though the fact of adultery be established. (1.) If the offence was committed by the procurement or with the connivance of the complainant. (2.) If it has been forgiven, and the forgiveness proved by express proof, or by the voluntary cohabitation of the parties with

the knowledge of the fact. (3.) Where the suit has not * 102 been brought within five years after the knowledge of the adultery. (4.) Or where the complainant has been guilty of the same offence. (c) All these exceptions, except the positive limitation as to time, were, as we have already seen, settled and acknowledged principles of general jurisprudence applicable to the subject.

The policy of New York has been against divorces from the marriage contract, except for adultery. We meet with a great variety of practice and opinion on this subject, in this country and in Europe, and among ancient and modern nations; but the stronger authority and the better policy are in favor of the stability of the marriage union. The ancient Athenians allowed divorces with great latitude, but they were placed under one important check, for the party suing for a divorce was obliged to appeal to the magistrate, state the grounds of complaint, and submit to his judgment. It was a regular action, analogous in substance to a bill in chancery; and if the wife was the prose

(a) Popkin v. Popkin, 1 Hagg. Eccl. Rep. 765, note.

(b) Williamson v. Williamson, ubi supra. Best v. Best, 2 Phillimore's Rep. 161. Mortimer v. Mortimer, 2 Hagg. Consist. Rep. 313. Whittington v. Whittington, 2 Dev. & Batt. 64.

(c) N. Y. Revised Statutes, vol. ii. p. 145, sec. 42.

cutor, she was obliged to appear in person, and not by a proctor. (a) The Greeks were, comparatively, exemplary in their domestic relations; but the graver Romans permitted the liberty of divorce to a most injurious and shameful degree. (b) The maxim of the civil law was, that matrimonia debent esse libera. Either party might renounce the marriage union at pleasure. It was termed divortium sine causa, or sine ulla querela; and the principle is solemnly laid down in the Pandects, that bona gratia matrimonium dissolvitur. (c) We find the Roman lawyers discussing questions of property depending upon these voluntary divorces, or in which Titia divortium a Seio fecit; Mavia Titio repudium misit. (d) This facility of separation tended to destroy all mutual confidence, and to inflame every trifling dispute. The abuse of divorce prevailed in the most *103 polished ages of the Roman republic, and it was unknown in its early history. Though the twelve tables gave to the husband the freedom of divorce, yet the republic had existed 500 years when the first instance of a divorce occurred. (e) The Emperor Augustus endeavored by law to put some restraint upon the facility of divorce; (f) but the check was

(a) Plutarch's Life of Alcibiades. Potter's Greek Antiq. 296, 297. Taylor's Elements of the Civil Law, 352, 353.

(b) It is understood that Solon at Athens, as well as Augustus at Rome, made adultery a public crime, and triable by a public prosecution.

(e) Dig. 24, 57, 62, and 64.

(d) Dig. 24, 3, 34, and 38. See, also, Heinecc. Antiq. Rom. App. lib. 1, Nos. 44 to 49, where the learning on the subject is abundant.

(e) The institutions of Romulus, tending to render the marriage union indissoluble, were very much praised by Dionysius of Halicarnassus, Antiq. Rom. lib. 2. According to Plutarch, Romulus instituted, that if the husband abandoned his wife without due cause, he forfeited one half of his goods to the wife, and the other half to the goddess Ceres. How beautifully Horace recommended the value and continuance of the marriage union, must be familiar to every classical scholar :

Felices ter et amplius,

Quos irrupta tenet copula ; nec malis

Divulsus Querimoniis,

Suprema citius solvet amor die. Lib. 13. car. 14.

On the other hand, the Roman philosophers, poets and satirists, held up to public scorn and indignation the wanton and extreme abuse of the liberty of divorce. Seneca, de Benef. iii. 16. Martial, vi. 7. Ibid. lib. 9. Epig. 16. Juvenal, Sat. 6.

v. 228.

U) Suet. ad Aug. 34.

Vol

overpowered by the influence and corruption of manners. untary divorces were abolished by one of the novels of Justinian, and they were afterwards revived by another novel of the Emperor Justin. (a) In the novel restoring the unlimited freedom of divorce, the reasons for it are assigned; and while it was admitted that nothing ought to be held so sacred in civil society as marriage, it was declared that the hatred, misery, and crimes, which often flowed from indissoluble connections, required, as a necessary remedy, the restoration of the old law, by which marriage was dissolved by mutual will and consent. (b) This practice of divorce is understood to have continued in the Byzantine or Eastern empire, to the 9th or 10th century, and until it was finally subdued by the influence of Christianity. In modern Europe, divorces are not allowed in the Roman Catholic countries, because marriage is considered a sacrament, and held indissoluble during the life of the parties. This was formerly the case in France; (c) and it was the general doctrine in the Latin, though not so either in the Greek or Protestant churches. (d) But the French revolution, like a mighty inundation, swept away at once the laws and usages of ages; and, at one period, the French government seemed to have declared war against the marriage contract, and six thousand divorces are said to have taken place in the city of Paris in the space of two years and three months. (e) The code Napoleon regards marriage only as a civil contract, and allows divorces not only for several reasonable causes, such as adultery,

* 104

(a) Dict. du Dig. tit. Divorce, Nos. 617, 618. Nov. 117, c. 8, 9.

(b) Nov. 140.

(c) 2 Domat, 651. Traité de l' Adult., par Fournel, 366, 370. Traité du Contrat de Mariage, par Pothier, sec. 462, 466, 467.

(d) The canon of the Council of Trent, de sacramento matrimonii, in 1563, recognised the indissolubility of the marriage tie. The facility of divorces in Protestant Germany is deemed by a late well-informed traveller, (Russel's Tour in Germany,) to be no less injurious than the absolute indissolubility of that relation in Catholic countries. In 1817, 3000 marriages were dissolved in Prussia! The Prussian code of 1794, prepared and published under Frederick Wm. III., gave great and dangerous facility to divorce, by allowing it for many causes fatal to the stability and sanctity of the contract. In Austria, divorces between Protestants may be had, not only for several substantial causes, but at the request of both parties, on the ground of unconquerable aversion. Turnbull's Austria, vol. ii. p. 509.

(e) Quarterly Review, No. 56, p. 509.

and grievous injuries, to be submitted to a judicial tribunal, but also without cause, and founded merely upon mutual consent, according to the usage of the ancient Romans. This consent is subjected to several restraints, which do in fact create very great and serious checks upon the abuse of the privilege. (a) By the Dutch law, there are but two just causes of divorce a vinculo, viz: adultery and malicious desertion; (b) and, by the English law, a marriage, valid in its commencement, cannot be dissolved for any cause, without an act of Parliament. (c) This was not the case in England anciently; (d) and until the 44th Eliz., divorces a vinculo were allowed for adultery. But in Foliamb's case, 44 Eliz., it was held, in the star cham- 105 ber, that adultery was only a cause of divorce a mensa et thoro, (e) and the archbishop of Canterbury said in that case, it had been so settled before him, on appeal, by many divines and civilians.

In some of the United States, (f) divorces are restrained, even by constitutional provisions, which require to every valid divorce the assent of two thirds of each branch of the legislature, founded on a previous judicial investigation and decision. The policy of other states is exceedingly various on this subject. In several of them (g) no divorce is granted, but by a

(a) Code Napoleon, Nos. 233, 275 to 297. Toullier, in his commentaries on the code, cannot withhold his astonishment at the perversion of moral sentiment which prevailed, even among the enlightened and exalted jurisconsults of ancient Rome, on the subject of the right of divorce. Droit Civil Française, tom. vi. Nos. 294–298. Since the restoration of the Bourbon dynasty, the law of divorce in France has been changed, and in 1816 it was confined to a judicial sentence of separation from bed and board.

(b) Voet de Divortiis et Repudiis, sec. 5, lib. 24, tit. 2. So, by the Scots' law, there are two admissible causes of divorce, adultery and wilful desertion by either party. Bell's Principles of the Law of Scotland, pp. 419, 420.

(c) 1 Blacks. Com. 441. I observe that in the session of Parliament in 1844, four different private acts of Parliament were passed in favor of divorces a vinculo in individual cases, and allowing the husband to marry again.

(d) Bracton, fol. 92.

(e) Moore's Rep. 683, pl. 942. 3 Salk. 138.

(f) Georgia, Mississippi, and Alabama. In Georgia, two concurring verdicts of special juries are conclusive on the subject of divorce, whether absolute or only limited. There had been, from 1800 to 1837, 291 legislative divorces. Prince's Dig. 2d edit. p. 187.

(g) Virginia and South Carolina. In Virginia and Kentucky, the legislatures

special act of the legislature, according to the English practice; and in others (a) the legislature itself is restrained from granting them, but it may confer the power on the courts of justice. So strict and scrupulous has been the policy of South Carolina, that there is no instance in that state, since the Revolution, of a divorce of any kind, either by the sentence of a court of justice, or by act of the legislature. (b) In all the other states, divorces a vinculo may be granted by the courts of justice for adultery. (c) In New York, the jurisdiction of the court as to absolute divorces, for causes subsequent to the marriage, is con

have always referred to the judicial investigation of the facts constituting a ground for divorce a vinculo, in any given case, to the courts of justice. 3 B. Monroe, 91. In some of the states, divorces by special acts of the legislature are very common. In 1836, divorces a vinculo were granted by the legislature of Illinois without any cause assigned, and in 1837 by that of Missouri; but in the latter state the equity side of the circuit courts has regular jurisdiction, conferred by statute over cases of divorce. R. S. of Missouri, 1835, p. 225. In the states generally the legislatures may in their discretion grant divorces in extraordinary cases, and they occasionally exercise the power. In 1846, the governor of Pennsylvania, in his message, strongly condemned the practice of granting legislative divorces.

The congress of the United States, by an act of the 15th of May, 1826, ch. 46, annulled several acts passed by the governor and legislative council of the Territory of Florida, granting divorces. This is an instance of a strong national condemnation of the practice of granting legislative divorces.1

(a) Tennessee, North Carolina, Arkansas, Michigan, New Jersey, Florida, and New York.

(b) Desauss. South Carolina Equity Reports, vol. i. Int. p. 54. Vol. ii. p. 646. (c) In Louisiana, by statute, in 1827, a divorce a vinculo for adultery may be obtained by judicial decree. Adams v. Hurst, 9 Louis. Rep. 243. The civil code of Louisiana, art. 133, says that the marriage may be dissolved by a divorce legally obtained, but it does not define the causes that will authorize it. If the action for a divorce be founded on the abandonment of the wife by the husband, proof of the abandonment for five years is requisite, and also a decree of separation from bed and board rendered two years previously. Harman v. M'Leland, 16 Louis. Rep. by Curry, 26.

1 Duke v. Fulmer, 5 Rich. Eq. 121. In Michigan and Missouri, legislative divorces are declared to be unconstitutional. Teft v. Teft, 3 Mich. 67. Bryson v. Bryson, 17 Miss. 590. In Maryland they are said to be a legitimate exercise of legislative power. Wright v. Wright, 2 Md. 429. See Jones v. Jones, 12 Penn. 350; Gaines v. Gaines, 9 B, Mon. 295. In Bingham v. Miller, 17 Ohio, 445, the Supreme Court of that state held that the legislature had no power to grant divorces: and yet in view of the incalculable evils of holding all the acts of that body, granting divorce for a long series of years, absolutely null, the court refused to treat the divorce of the parties before them as void. The present constitution of Ohio expressly declares that the General Assembly shall grant no divorces. (Const. 1851, art. 11, § 32.)